SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION DOCKET NO. A-1051- 22
NEW JERSEY COALITION OF AUTOMOTIVE RETAILERS, INC., a non-profit New Jersey Corporation, Plaintiff-Appellant,

v. FORD MOTOR COMPANY, d/b/a LINCOLN MOTOR COMPANY, Defendant-Respondent.

______________ ___ ___________

Argued March 6, 2024

– Decided April 4, 2024 Before Judges Firko, Susswein and Vanek. On appeal from the Superior Court of New Jersey, Law Division, Mercer County , Docket No. L- 0234

- 20. W. Kirby Bissell (Bass Sox Mercer) of the Florida b ar, admitted pro hac vice, argued the cause for appella nt (Genova Burns, LLC, Jason T. Allen (Bass Sox Mercer ) of the Florida bar, admitted pro hac vice, and W. K irby Bissell, attorneys; Jennifer Borek, Jason T. Allen, and W. Kirby Bissell, of counsel on the briefs ).

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court. " Although it is posted on the internet, this opinion is binding only on the parti es in the case and its use in other cases is limite d. R. 1:36- 3.2 A- 1051

- 22 Robert M. Palumbos (Duane Morris LLP) of the Pennsylvania bar, admitted pro hac vice, argued the cause for respondent (Duane Morris, LLP , and Campbell Conroy & O'Neil, PC, attorneys; Robert M. Palumbos, Andrew R. Sperl, Leah Ariel Mintz, Willia m Joseph Conroy, and Emily Jo Rogers, of counsel and on the brief).
PER CURIAM Plaintiff, New Jersey Coalition of Automotive Retai lers, Inc. (NJCAR), appeals from October 21, 2022 Law Division orders g ranting defendant Ford Motor Company's (Ford) motion for summary judgment and denying plaintiff's motion for summary judgment. NJCAR brought an acti on against Ford seeking declaratory and injunctive relief, alleging Ford 's Lincoln Commitment Program (LCP) violates a provision of the New Jersey Franch ise Practices Act (NJFPA or Act) , N.J.S.A. 56:10 -1 to 56:10- 15

. The trial court found NJCAR lacked standing under the Act to bring the lawsuit and, as a result, did not address the remainder of the substantive arguments in the summa ry judgement motion record. After carefully reviewing the record in li ght of the arguments of the parties and governing legal principles, we conclude NJCAR has associational standing to bring the action. We therefore reverse an d remand for the trial court to address the summary judgment motions on the meri ts

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- 22 I. We discern the following pertinent facts and proced ural history from the record. NJCAR is not an automotive dealership. Ra ther, it is a trade association whose members are franchised new motor vehicle deal erships in New Jersey. NJCAR provides education, training, and advocacy se rvices to its members. Some of its members are Lincoln dealerships. The LCP assists dealerships with the cost of implem enting various customer amenities, such as loaner vehicles and fre e car washes. Ford's Lincoln Operations Manager explained, "Ford created the [LC P] as an avenue to compensate those dealers that wished to participate in undertaking those actions and incurring those expenses, in the form of provid ing a payment to the dealer on new vehicle sales to retail customers to help of fset the costs of participation." In January 2020, NJCAR filed a complaint against For d, alleging the LCP violated N.J.S.A. 56:10-7.4(h) 1 because Ford's LCP payments "result[] in

1 N.J.S.A. 56:10-7.4 reads in pertinent part:

It shall be a violation of [the NJFPA] for any moto r vehicle franchisor, directly or indirectly, through any officer, agent or employee, to engage in any of the following practices . . .4 A- 1051

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vehicle price differentials." NJCAR does not claim it has s uffered any damages from the LCP. Rather, it seeks declaratory and injunctiv e relief to vindicate the rights of dealership members subject to the LCP. In December 2021, both parties filed cross-motions for summary judgment. On October 21, 2022, the trial court hel d a hearing after which it denied NJCAR's summary judgment motion and granted summary judgment in favor of Ford. The trial court issued an oral ruling, explai ning in pertinent part:

The [c]ourt is not going to address every substanti ve argument made by both sides in the cross-motion for summary judgment, as the [c]ourt finds fundamentall y that there is a lack of standing in this case becau se of the clear provisions of the [NJFPA]. . . . This appeal follows. NJCAR contends it has associa tional standing to raise i ts members' claims under the NJFPA and the trial court erred by analyzing

(h) [t]o fail or refuse to sell or offer to sell to all motor vehicle franchisees in a line make every motor vehi cle sold or offered for sale to any motor vehicle franc hisee of the same line make, or to fail or refuse to sell or offer to sell such motor vehicles to all motor vehicle franchisees at the same price for a comparably equi pped motor vehicle, on the same terms, with no different ial in discount, allowance, credit or bonus, and on reasonable, good faith and non-discriminatory allocation and availability terms.5 A- 1051

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statutory standing rather than associational standi ng. NJCAR also argues it is entitled to summary judgment because "Ford's LCP pa yments to New Jersey Lincoln dealers create b onus differentials on comparably equipped new motor vehicles because n ot all New Jersey Lincoln dealers receive the same per centage of [the Manufacturer's Suggested Retail Price] as an LCP Payment ."
II. We begin our analysis by acknowledging the foundati onal legal principles governing this appeal. We review decisions grantin g summary judgment de

novo. Samolyk v. Berthe, 251 N.J. 73, 78 (2022). A gra nt of summary judgment is appropriate if "there is no genuine issue as to any material fact" and the moving party is entitled to judgment "as a matter o f law." R ule 4:46 -2(c). We therefore "must 'consider whether the competent evi dential materials presented, when viewed in the light most favorable to the non- moving party, are sufficient to permit a rational factfinder to resolve the alle ged disputed issue in favor of the non-moving party.'" Samolyk, 251 N.J. at 78 (q uoting Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995)). With respect to the issue of standing, in O'Shea v. N.J. Schs. Const. Corp. , we explained:

Standing is an aspect of justiciability. Flast v. Cohen , 392 U.S. 83, 98-99, 101 (1968). While we do not6 A- 1051

- 22 render advisory opinions or function in the abstrac t, our courts have historically taken a liberal approach t o the issue of standing. See Crescent Park Tenants Ass'n v. Realty Equities Corp. of N.Y., 58 N.J. 98, 101 (197 1). Standing may be found as long as the parties seekin g relief have a sufficient personal stake in the cont roversy to assure adverseness and the controversy is capabl e of resolution by the courts. Id. at 103-04. Our Supr eme Court has recognized the standing of associations t o litigate on behalf of their constituencies, id. at 106. . . . [388 N.J. Super. 312, 318 (App. Div. 2006).] In N. Haledon Fire Co. No. 1 v. Borough of N

. Haledon, we explained when and in what circumstances "[a]n association ma y have standing to seek judicial relief in its own right or on behalf of it s members." 425 N.J. Super. 615, 627 (App. Div. 2012). Specifically, "[t]o establis h that it has standing, 'an

as sociation must demonstrate that its members would h ave standing to sue; the interests its seeks to maintain are germane to the purposes of the organization; and neither the claim asserted nor the relief reque sted requires individual participation by the association's members.'" Id. at 627-28 (quoting Med . Soc'y of N.J. v. AmeriHealth, HMO, Inc., 376 N.J. Super. 48, 55 n. 2 (App. Div. 2005) (citing Hunt v. Was h. State Apple Adver. Comm'n, 432 U.S. 333, 343 (1977 ))).
III. We next apply these associational standing element s to the matter before us. With respect to the first prong

— whether the association's members would7 A- 1051

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have standing to bring an action under the NJFPA in their own right

— we note the parties dispute whether NJCAR's members have su ffered injury. Although we express no opinion on whether summary judgment u ltimately should be granted for either party, we are satisfied NJCAR is not seeking a mere "advisory opinion." Rather, there appears to be a justiciable controversy so that individual NJCAR members would have standing to bring an actio n under the NJFPA. See O'Shea, 388 N.J. Super. at 318 ("Plaintiffs are not seeking an advisory opinion, but in fact have placed before the court a sharply- focused issue in which the

or ganization's constituent members have a personal st ake. The issue has been presented in an adversarial context, and is capable of judicial resolution."). With respect to prong two of the associational stan ding test, we conclude that proper enforcement of the NJFPA is germane to NJCAR's purpose, which includes advocating on behalf of its members and pr omoting public policies to ensure a competitive and fair marketplace. As to the third prong of the associational standing test, we conclude this litigation does not require participation of indivi dual members because NJCAR seeks only declaratory and injunctive relief, not d amages based on the alleged violation of the statute. In Hunt , the United States Supreme Court explained:

[W]hether an association has standing to invoke the court's remedial powers on behalf of its members8 A- 1051

- 22 depends in substantial measure on the nature of the relief sought. If in a proper case the association seeks a declaration, injunction, or some other form of prospective relief, it can reasonably be supposed t hat the remedy, if granted, will inure to the benefit o f those members of the association actually injured. Indee d, in all cases in which we have expressly recognized standing in associations to represent their members , the relief sought has been of this kind. [432 U.S. at 34 3 (quoting Warth v. Seldin, 422 U.S. 490, 515 (1975)).] In sum, NJCAR meets all three prongs of the test fo r associational standing.
IV. We next address defendant's argument the text of t he NJFPA forecloses an association from bringing an action. The Act pr ovides in relevant part:

[a]ny franchisee may bring an action against its franchisor for violation of this act in the Superio r Court of the State of New Jersey to recover damages susta ined by reason of any violation of this act and, where appropriate, shall be entitled to injunctive relief . Such franchisee, if successful, shall also be entitled t o the costs of the action including but not limited to reasonable attorney's fees. [N.J.S.A. 56:10-10.] The Act defines a "[f]ranchisee" as "a person to wh om a franchise is offered or granted." N.J.S.A. 56:10-3(d).9 A- 1051

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Defendant is correct the Act does not expressly aut horize an association to bring an action on behalf of its members who are franchisees. But nor does the Act explicitly preclude associational standing. In view of New Jersey's "liberal" standing jurisprudence when there is real dispute between parties that have a real interest, see O'Shea, 388 N.J. Super. a t 318, we decline to apply the "canon of statutory construction, expressio unius e st exclusio alterius

— expression of one thing suggests the exclusion of a nother left unmentioned." DiProspero v. Penn, 183 N.J. 477, 495 (2005) (quoti ng Brodsky v. Grinnell Haulers, Inc., 181 N.J. 102, 112 (2004)). We add that in N.J. Coal. of Auto. Retailers v. Da imlerChrysler Motors Corp., NJCAR

— the same plaintiff as in the matter before us

— alleged "DaimlerChrysler [was] interfering with the rights of NJCAR members to secure the rights afforded them under the [NJFPA]. . . ." 107 F.Supp.2d 495, 498 (D.N.J. 1999). Among other arguments, DaimlerChrys ler argued NJCAR lacked standing to sue on behalf of the dealers. Ibid.
The district court addressed the associational stan ding argument in a footnote, explaining:

The first prong [of associational standing] is sati sfied because members of NJCAR would have standing to bring this claim. Our decision granting the prelimi nary10 A- 1051

- 22 injunction application would not change if the case had been brought by an individual dealer. The second prong is satisfied because NJCAR is a trade association, made up of New Jersey motor vehicle retailers, and "routinely takes action on b ehalf of its members in areas of common interest, includi ng participation in legislative and judicial proceedin gs." Accordingly, the interests of dealers in asserting their statutory rights under the NJFPA is germane to NJCAR's purpose. Finally, the third prong is met a s the participation of individual members is not required in this action for injunctive relief. See Warth v. Se ldin , 422 U.S. 490, 515 (1975). [Id. at 501 n.5 (internal citation omitted).] While the district court's published opinion is not binding on us, we find it to be persuasive on the standing question. Finally, with respect to standing, we address defe ndant's argument that :

NJCAR cannot have it both ways. It cannot both rel y on the standing of its members to claim association al standing but then deny Ford the opportunity to asse rt defenses specific to those members. If one of NJCA R's Lincoln-affiliated members had brought identical claims against Ford in a stand-alone lawsuit, there is no doubt that Ford would be able to assert a complete defense to that action if the franchisee was in mat erial breach of the franchise agreement. See N.J.[S.A.] 56:10

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2 N.J.S.A. 56:10-9 provides "[i]t shall be a defense for a franchisor, to any action brought under this act by a franchisee, if it be sh own that said franchisee has failed to substantially comply with requirements im posed by the franchise and other agreements ancillary or collateral thereto."11 A- 1051

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Our review of the record fails to show Ford alleged that any Lincoln dealerships that are members of NJCAR, much less al l of them, materially breached their agreements. In these circumstances , Ford's argument does not preclude associational standing to bring an action for dec laratory and injunctive relief.
V. As noted, the trial court's summary judgment rulin g in defendant's favor was based on NJCAR's lack of standing. The court d id not make findings of fact and conclusions of law with respect to whether there is a genuine issue of material fact in dispute. We decline to exercise o riginal jurisdiction to decide whether summary judgment is appropriate based on th e present record. Estate of Doefler v. Fed. Ins. Co. , 454 N.J. Super. 298, 301-02 (App. Div. 2018) ("Although our standard of review from the grant of a motion for summary judgment is de novo . . . our function as an appell ate court is to review the decision of the trial court, not to decide the moti on tabula rasa."); Price v. Himeji, LLC, 214 N.J. 263, 294 (2013) (Rule 2:10 -5 "allow[s an] appellate court to exercise original jurisdiction to eliminate unne cessary further litigation, but discourage[s] its use if factfinding is involved.") (alterations in original) (quoting State v. Santos, 210 N.J. 129, 142 (2012)) . Accordingly, we remand12 A- 1051

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for the trial court to decide the parties' cross-mo tions for summary judgment on the merits. Reversed and remanded for further proceedings in ac cordance with this opinion. We do not retain jurisdiction.