JONATHAN ARNOLD, et al. v. EDUCATIONAL TESTING SERVICE

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3288-05T23288-05T2

JONATHAN ARNOLD, on behalf of

himself and all others

similarly situated,

Plaintiff-Appellant,

v.

EDUCATIONAL TESTING SERVICE,

Defendant-Respondent.

_______________________________________________________

 

Argued March 27, 2007 - Decided April 10, 2007

Before Judges Coburn, Axelrad and R.B. Coleman.

On appeal from the Superior Court of

New Jersey, Law Division, Mercer County,

L-2856-04.

Steele R. Chadwell argued the cause for

appellant (W. Brack Collier, on the brief).

Jonathan E. Paikin (Wilmer, Cutler, Pickering,

Hale and Dorr) of the District of Columbia

and New York bars, admitted pro hac vice, argued

the cause for respondent (McCarter & English,

attorneys; William S. Greenberg, of counsel;

A. Stephen Hut, Jr. and Bruce M. Berman

(Wilmer, Cutler, Pickering, Hale and Dorr) of

the District of Columbia bar, admitted pro

hac vice, on the brief).

PER CURIAM

In 2004, plaintiff, Jonathan Arnold, sued defendant Educational Testing Service ("ETS") for breach of contract, negligence, negligent misrepresentation, and consumer fraud. The action was based on ETS's scoring error on a Graduate Management Admissions Test ("GMAT") that Arnold took in March 2000, pursuant the parties' contract. Defendant's first motion for summary judgment, which addressed plaintiff's common law tort claims and consumer fraud claim was decided in defendant's favor by Judge Innes on March 18, 2005. Defendant's second motion for summary judgment, which addressed plaintiff's contract claim, was decided in defendant's favor by Judge Mathesius. Plaintiff appeals from orders confirming both decisions.

After carefully considering the record and briefs, we are satisfied that all of plaintiff's arguments are without sufficient merit to warrant discussion in a written opinion,

R. 2:11-3(e)(1)(E). Nonetheless, we add the following comments. Plaintiff argues that "[t]he central question for a jury to decide in this case is whether . . . had he obtained a total GMAT score of 580 and a [Quantitative Score] of 32, he would have been admitted to the Florida [Warrington College of Business Administration] MBA program." He paid ETS a fee of $225 to take the GMAT test in March 2000. Because of a scoring error in the March 2000 examination he had been given a "Quantitative Score" of 27 and a total score of 540. In December 2000, ETS informed him of the error and provided the correct scores; namely, a "Quantitative Score" of 32 and a total score of 580. Since he never applied to the University of Florida MBA program and failed to offer proof that had he applied he likely would have been admitted, the question that he defines as central could not properly have been submitted to a jury. In other words, he failed to offer any evidence that the scoring error had caused him any damages. Cromartie v. Carteret Sav. & Loan, 277 N.J. Super. 88, 104 (App. Div. 1994).

Plaintiff also argues that he is at least entitled to a refund of the $225 fee under a "benefit of the bargain" theory of damages. See, e.g., Donovan v. Bachstadt, 91 N.J. 434, 444 (1982). Of course, under the contract plaintiff was entitled to a correct score, but the initial error was corrected, and so he received the benefit of the bargain that he had made. Return of the fee would not put him in as good a position as he would have been in had performance been rendered as promised. Rather, it would leave him in a better position because he would have both the score and the fee. Moreover, he used the incorrect score to gain entrance into a masters program from which he has graduated, and based on which he has pursued a successful career.

Plaintiff's common law tort claims were properly dismissed because ETS owed him no duties other than those created by the contract at issue. Saltiel v. GSI Consultants, Inc., 170 N.J. 297, 316-18 (2002). And finally, the consumer fraud claim was properly dismissed because he lost nothing as a result of the incorrect score. See, e.g., New Jersey Citizen Action v. Schering-Plough Corp., 367 N.J. Super. 8, 12-13 (App. Div.),

certif. denied, 178 N.J. 249 (2003).

Therefore, we affirm substantially for the reasons expressed by Judges Innes and Mathesius in their respective oral decisions of March 18, 2005, and January 20, 2006.

Affirmed.

 

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A-3288-05T2

April 10, 2007