MERWYN FERNANDES et al. v. RAMSEY NISSAN, et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2499-05T22499-05T2

MERWYN FERNANDES and

DOLLY FERNANDES,

Plaintiffs-Appellants,

v.

RAMSEY NISSAN, RAMSEY CHRYSLER/

PLYMOUTH/JEEP, and CHASE MANHATTAN

AUTOMOTIVE FINANCE CORPORATION,

Defendants-Respondents.

__________________________________

 

Submitted October 10, 2006 - Decided November 3, 2006

Before Judges Seltzer and C.L. Miniman.

On appeal from the Superior Court of New Jersey, Law Division, Special Civil Part, Bergen County, Docket No. DC-013539-04.

Michael A. Mark, attorney for appellants.

Hartmann, Doherty & Rosa, attorneys for respondents Ramsey Nissan and Ramsey Chrysler/Plymouth/Jeep (Richard M. Rosa, on the brief).

Olshan Grundman Frome Rosenzweig & Wolosky, attorneys for respondent Chase Manhattan Automotive Finance Corporation (Jerome F. Gallagher, Jr. and Kerry A. Duffy, on the brief).

PER CURIAM

Plaintiffs Merwin and Dolly Fernandes argue on appeal that the Special Civil Part erred in dismissing their complaint without prejudice to arbitration under the terms of their agreement to lease a 1999 Nissan Quest from defendant Ramsey Nissan. Ramsey assigned that lease to Chase Manhattan Automotive Finance Corporation.

The relevant facts and procedural history are recited in Fernandes v. Ramsey Nissan, No. A-3085-04 (App. Div. November 28, 2005) (slip op. at 3-4), and need not be recited here. There we held that dismissal of the complaint prior to any demand for arbitration was premature in light of the specific language of the arbitration agreement between the parties, and we remanded the matter to the Special Civil Part. Id. at 5-6.

Subsequent to the remand Ramsey filed a December 13, 2005, formal demand for arbitration with the National Arbitration Forum and on motion the trial court again dismissed plaintiffs' complaint. Plaintiffs contend on appeal that the arbitration agreement is unenforceable because the language of the agreement is ambiguous, the arbitration clause does not contain a definitive waiver of statutory claims, and the clause was obscure in its location and exceedingly difficult to read. As a consequence, plaintiffs assert that our decision in Rockel v. Cherry Hill Dodge, 368 N.J. Super. 577 (App. Div.), certif. denied, 181 N.J. 545 (2004), precludes enforcement of the agreement to arbitrate. We disagree.

In Rockel the agreement to arbitrate was "highly ambiguous" because the parties executed two agreements, each with disparate arbitration clauses. Id. at 581. We concluded that the ambiguity was "fatal to the compelling of the arbitration of plaintiffs' [Consumer Fraud Act] CFA claims." Ibid. This was so because "defendant's inclusion of two conflicting arbitration provisions in the contract documents confounds any clear understanding of the parties' undertaking and tilts the balance, between the policies underlying arbitration and the CFA, in plaintiffs' favor." Id. at 583 (footnote omitted).

Here, there is only one arbitration clause and it unambiguously notified plaintiffs that both parties were "giving up the rights to seek remedies in court, including the right to a jury trial," that both parties' ability to conduct discovery would be more limited, and that both parties' right to appeal would be very limited. We find no ambiguity in the language of the arbitration agreement that is before us here.

We also found in Rockel that the agreement to arbitrate did not contain "a definitive waiver of plaintiffs' statutory claims." Id. at 580. Rather, one of the arbitration clauses contained an agreement that "you, the purchaser, agree that any controversy or claim arising out of or relating to this Agreement shall be settled by arbitration." Id. at 581. The other clause provided that "[a]ny claim or dispute, whether in contract, tort or otherwise . . . , between us . . . which arise out of or relate to this contract or any resulting transaction or relationship" had to be resolved by arbitration. Id. at 582. Because there was no express mention of statutory claims, such as the CFA, or even the right to trial by jury, we found that the clause did not meet the level of specificity required by Martindale v. Sandvik, Inc., 173 N.J. 76, 94-96 (2002), and Garfinkel v. Morristown Obstetrics & Gynecology Assocs., P.A., 168 N.J. 124, 135 (2001). Id. at 585-87.

In Garfinkel the arbitration clause simply stated that "'any controversy or claim' that arises from the agreement or its breach shall be settled by arbitration." Garfinkel, supra, 168 N.J. at 134. There was no express or general mention of statutory claims, such as those redressable by the Law Against Discrimination (LAD). Ibid. As a consequence, the Court concluded that the agreement was ineffectual to require arbitration of LAD claims. Ibid. Although a laundry list of statutes was not necessary, the Court held that "[t]o pass muster . . . a waiver-of-rights provision should at least provide that the employee agrees to arbitrate all statutory claims arising out of the employment relationship or its termination." Id. at 135.

The following year, the Supreme Court enforced an arbitration agreement which provided that the employee "agree[d] to waive [her] right to a jury trial in any action or proceeding related to [her] employment with Sandvik." Martindale, supra, 173 N.J. at 81. The employee also agreed "that all disputes relating to [her] employment with Sandvik or termination thereof shall be decided by an arbitrator." Id. at 81-82. On this occasion, the Supreme Court found that the arbitration language was "sufficiently broad to encompass reasonably plaintiff's statutory causes of action." Id. at 96. The Court explained:

Unlike the arbitration provision[] contained in Garfinkel . . . , the arbitration provision here does not contain any limiting references. Its wording provided plaintiff with sufficient notice at the time she signed the agreement that all claims relating to employment with and termination from Sandvik would be resolved through arbitration. It also addressed specifically a waiver of the right to a jury trial, augmenting the notice to all parties to the agreement that claims involving jury trials would be resolved instead through arbitration.

[Ibid.]

This clause, like the one before the Supreme Court in Martindale, provided plaintiffs with sufficient notice that all claims arising from or related to the lease would be resolved through arbitration. It also explicitly addressed the waiver of the right "to seek remedies in court, including the right to a jury trial." As such, the agreement encompassed all of plaintiffs' statutory claims relating to the lease and was fully enforceable.

Finally, plaintiffs contend that the size of the print and the location of the arbitration provision made the agreement difficult to locate and onerous to read, in contravention of the holding in Rockel. Not so. Unlike the agreement in Rockel, the lease in this case had a warning on the first page:

BY SIGNING THIS LEASE, YOU ACKNOWLEDGE THAT THIS LEASE CONTAINS AN "AGREEMENT TO ARBITRATE DISPUTES" ON THE REVERSE SIDE, THAT YOU HAVE READ THE AGREEMENT TO ARBITRATE DISPUTES AND AGREE TO ITS TERMS.

This notice is located a mere eleven-sixteenths of an inch above the signature line. The Agreement to Arbitrate Disputes on the reverse side is at the bottom of the page and set off from the balance of the text with a box. Inside the box on the first line are the words, "AGREEMENT TO ARBITRATE DISPUTES." Although the text below the box is predominantly in the same type face as the balance of the page, the type is not so small that it is onerous to read and it is certainly not difficult to locate. We are satisfied that the prominence of the "Agreement to Arbitrate Disputes" on the reverse of the lease and the warning of its existence on the face of the lease serve to distinguish this agreement from the one found defective in Rockel.

There was no error in dismissing plaintiffs' complaint without prejudice to arbitration.

Affirmed.

 

Although this issue was not raised on appeal, we note that the agreement to arbitrate specifically provided that "any question regarding whether a matter is subject to arbitration under this Agreement to Arbitrate Disputes" was itself a dispute subject to arbitration.

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A-2499-05T2

November 3, 2006