SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3028-17T4

EVELYN GUZMAN, ALYSSA

CAPALDI, AMBER CARFAGNO,

KAMEISHA JOHNSON, KAREEMA

JOHNSON, I'YAHNA LEWIS,

SHEMAIAH PRICE, KIARA BROOKS,

JESSICA SILVA, NACHALEE 

ANDUJAR, KIANNA MARQUEZ, 

and EUGENIA SANTIAGO,

Plaintiffs-Appellants,

v.

SC ACADEMY HOLDINGS, INC., 

STAR CAREER ACADEMY, 

QUAD PARTNERS, CULINARY 

ACADEMY OF LONG ISLAND,

INC., CULINARY ACADEMY OF

NEW YORK, INC., MICHAEL

IANNACONE, MICHAEL S.

LEVITT, TIM JAMES, ROBERT

EMME, COLEEN LEARD, 

MCHELLE MUMMA, RICHARD 

LINCOLN, CAROL HANNON,

JENNIFER DIMEDIO, RHONDA

TERWILLIGER, RON PINO, 

SHEILA STOKES, CHERYL 

ACKEY, and AMY TORRES,

NOT FOR PUBLICATION WITHOUT THE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 parties in the case and its use in other cases is limited. R. 1:36-3.
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A-3028-17T4

Defendants-Respondents.

_____________________________

Submitted March 19, 2019 – Decided April 18, 2019

Before Judges Fisher and Geiger.

On appeal from Superior Court of New Jersey, Law 

Division, Camden County, Docket No. L-0780-15.

Robert J. O'Shea, Jr., attorney for appellants.

Greenberg Traurig, LLP, attorneys for respondents

SC Academy Holdings, Inc., Star Career Academy, 

Culinary Academy of Long Island, Inc., Culinary 

Academy of New York, Inc., Michael Iannacone, 

Michael S. Levitt, Tim James, Robert Emme, Colleen 

Leard, Michele Mumma, Richard Lincoln, Jennifer 

DiMedio, Rhonda Terwilliger, Ron Pino, Sheila Stokes, 

Cheryl Ackey, and Amy Torres (David Jay, Jason H. 

Kislin and Paige S. Nestel, on the brief).

Orloff, Lowenbach, Stifelman & Siegel, PA and Arthur 

H. Aufses, III (Kramer Levin Naftalis & Frankel LLP) 

of the New York Bar, admitted pro hac vice, attorneys 

for respondent Quad Partners, LLC (Laurence B. 

Orloff, on the brief).

PER CURIAM

Plaintiffs appeal from several Law Division orders dismissing their claims 

against defendants Star Career Academy, SC Academy Holdings, Inc., Culinary 

Academy of Long Island, Inc., Culinary Academy of New York, Inc. 

(collectively Star), fourteen individual Star employees (collectively the Star
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individual defendants), and Quad Partners, LLC (Quad), for violation of the 

Consumer Fraud Act (CFA), N.J.S.A. 56:8-1 to -20, breach of contract, breach 

of warranty, misrepresentation, and strict liability. All claims relate to plaintiffs' 

enrollment in Star's surgical technician (ST) program. For the following 

reasons, we affirm in part and vacate and remand in part. 

Star and its affiliates own and operate for-profit schools, including the 

institution at issue that trains students to become employed as STs. In 2011, the 

Legislature enacted N.J.S.A. 26:2H-12.63 (the ST law), addressing five paths 

for employment as an ST by a health care facility in New Jersey. One path is 

successful completion of a "nationally or regionally accredited educational 

program for surgical technologists." N.J.S.A. 26:2H-12.63(a). Another path is 

to obtain a "certified surgical technologist credential administered by the 

National Board of Surgical Technology and Surgical Assisting or its successor, 

or other nationally recognized credentialing organization." N.J.S.A. 26:2H12.63(b). 

There are two types of higher education accreditation: programmatic and 

institutional. The Commission on Accreditation of Allied Health Education 

Programs (CAAHEP) and the Accrediting Bureau of Health Education Schools 

(ABHES) are the only nationally recognized accreditors of ST programs. Star 
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did not receive programmatic accreditation from either CAAHEP or ABHES. 

The Accrediting Commission of Career Schools and Colleges (ACCSC) is 

approved by the United States Department of Education (USDOE) to give 

institutional accreditation, but is not authorized to give programmatic 

accreditation to an ST program. In August 2010, the ACCSC recognized Star 

as an accredited institution.

The Polonco Class Action.

Because our recent ruling in a related class action impacts the decisions 

rendered by the trial court in this matter, we briefly discuss the pertinent facts 

and procedural history in that separate class action, Polonco v. Star Career 

Academy, No. A-3756-15 (App. Div. July 26, 2018).1 Shirley Polonco enrolled 

in Star's ST program before the ST law was enacted. Id. at 7. After the law was 

enacted, Polonco asked the director of the program if the ST law would affect 

her ability to gain employment as a ST. Ibid. The director assured her 

graduating from Star's program would qualify her under the ST law. Ibid. The 

director of externships also told Polonco that Star's ST program was accredited. 

 

1

 While unpublished opinions do not constitute precedent and are not binding 

on any court, Rule 1:36-3, we cite our unpublished opinion in Polonco because 

it vacated the trial court's order certifying the class in that action. The class 

certification in Polonco was the basis for the dismissal of the majority of the 

claims raised in the Guzman and Silva actions. 
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Ibid. Other students also questioned Star admissions officers regarding how the 

ST law would affect them. Ibid. The admissions officers discussed the 

accreditation issues with their subordinates and "instructed them to 'sell the 

program as best as [they] could.'" Ibid. (alteration in original).

As we described in Polonco:

A year after the ST law was enacted, an entire 

class of ST students withdrew from the program "in 

protest" because the Association of Surgical 

Technologists (AST), a national organization 

representing the profession, told them that the program 

was worthless. According to a Star administrator, 

admissions officers gave inaccurate information to 

students on the ST law and accreditation requirements.

In August 2012, John A. Calabria of the New 

Jersey Department of Health (DOH) issued a 

memorandum addressing programmatic accreditation 

under the ST law that stated, "If a[n] [ST] program is 

listed as accredited [by the USDOE] . . . , then it is 

compliant with [the ST law]." Two months after 

Calabria's memorandum, an AST representative 

emailed Star that, to comply with the ST law, 

programmatic accreditation was necessary and that an 

ST program should only be considered regionally or 

nationally accredited for purposes of the ST law if it 

was accredited by CAAHEP or ABHES. Star's CEO 

and president disagreed with AST's understanding of 

the ST law, explaining that it was sufficient if a school 

had institutional accreditation rather than 

programmatic accreditation and that accreditation by 

ABHES or CAAHEP was unnecessary.
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According to plaintiff, the National Center for 

Competency Testing (NCCT) administered testing to 

graduates of ST programs, but was not nationally 

recognized as required by N.J.S.A. 26:2H-12.63(b). 

NCCT recognized Star's ST program as approved for 

the "tech in surgery-certified" certification exam; in 

other words, graduates of the Star ST program were 

eligible for the exam. However, because NCCT was 

not nationally recognized under the ST law, they added 

a disclaimer to their website indicating that their exam 

was not accepted in New Jersey. . . . 

. . . [Calabria] later recognized that institutional 

accreditation was not sufficient and programmatic 

accreditation was necessary. A supplemental 

memorandum reflecting Calabria's change in 

knowledge was never issued. 

[(Id. at 7-9).]

Three years after enrolling, Polonco filed a class action complaint against 

Star alleging Star violated the CFA by misrepresenting information about the 

accreditation of its ST program. Id. at 9-10. The proposed class was comprised 

of "all individuals who were enrolled in [Star's ST program] for surgical 

technician training to take place in the State of New Jersey as of June 29, 2011 

and thereafter." Id. at 10. The trial court certified the proposed class over Star's 

objection, and appointed Polonco class representative. Id. at 11. The court 

denied Star's subsequent motion to decertify the class. Ibid. 
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The case proceeded to trial and the jury returned a verdict in favor of the 

class. Ibid. Star appealed, arguing the trial court improperly certified the class 

because common issues did not predominate over issues affecting individual 

class members as required by Rule 4:32-1(b)(3). Id. at 18. We agreed, 

concluding "the individualized factual inquiries surrounding Star's 

misrepresentations and the nexus between those misrepresentations and 

omissions and the class members' ascertainable loss compels decertification." 

Id. at 22. We decertified the class, vacated the final judgment and remanded for 

retrial. Id. at 27, 31. 

The Guzman and Silva Actions.

Evelyn Guzman, Alyssa Capaldi, Amber Carfagno, Kameisha Johnson, 

Kareema Johnson, I'Yahna Lewis, Shemaiah Price, and Kiara Brooks filed their 

action against defendants on February 25, 2015 (the Guzman Action). On March 

17, 2015, additional former Star students Jessica Silva, Nachalee Andujar, 

Kianna Marquez, and Eugenia Santiago filed a similar complaint against 

defendants and Quad (the Silva Action). 

The trial court consolidated the Guzman and Silva Actions. Star and the 

Star individual defendants filed several rounds of Rule 4:6-2(e) dismissal 

motions before any discovery was undertaken.
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Star moved to dismiss the Guzman Action under Rule 4:6-2(e); it argued 

plaintiffs were part of the Polanco class and could not file a separate action. 

Plaintiffs asserted they were not Polanco class members because they did not 

receive notice of the class action and, thus, were not advised of their right to opt 

out of the class. The trial court denied the motion to dismiss without prejudice.

2

 

One month later, Star again moved to dismiss plaintiff's claims in the 

Guzman and Silva Actions under Rule 4:6-2(e). On September 18, 2015, the 

trial court granted the motion in part, dismissing the claims against Star with 

prejudice as to all plaintiffs – except Guzman – because they were members of 

the class in Polanco, and their claims were deemed duplicative.

3

 Plaintiffs' 

motion for reconsideration was denied on December 4, 2015.

In January 2016, Star again moved for dismissal of the Guzman and Silva 

Actions.4 The motion also sought dismissal of plaintiffs' claims against certain 

sales representatives. On March 11, 2016, the trial court entered a handwritten 

order addressing various motions. Despite its prior dismissal order, the trial 

 

2

 The record does not include a copy of the order. 

3

 The parties acknowledge Evelyn Guzman was not a member of the Polanco

class. 

4

 The record does not include the moving papers.
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court dismissed the claims brought by Capaldi, Carfagno, both Johnsons, Lewis, 

Price, Brooke, Silva, Andujar, Marquez, and Santiago against Star; the contract 

claims brought by Guzman and others against the Star individual defendants; 

and all strict liability and educational malpractice claims. With respect to the 

breach of contract claims against the Star individual defendants, the trial court 

found the contracts were with "SC Academy or Star Academy or some corporate 

entity," rather than with the individual employees. Next, the court dismissed 

any claims based upon strict liability and educational malpractice, explaining 

that such causes of action were not recognized under New Jersey law. 

The court denied the motion to dismiss the CFA and common law fraud 

claims against the Star individual defendants. The trial court also denied 

dismissal of the breach of contract and fraud claims brought against Star by the 

remaining plaintiffs, finding it inappropriate to decide the breach of contract 

claim because it was "necessarily interwoven with the fraud claim." The trial 

court stated it would allow discovery to proceed after which Star could renew 

its application as a summary judgment motion. 

The court carried the following aspects of the motions to April 8, 2016:

the CFA claims, the common law fraud claims, the vicarious liability claims 

against Quad, and the exceptions to administrative dismissals due to service of 
10 A-3028-17T4

process issues. The record does not contain a transcript of any proceedings on

April 8, 2016. 

On May 13, 2016, the court entered a five-part order. In pertinent part, 

the order: (1) dismissed with prejudice all breach of contract and warranty 

claims against the Star individual defendants; (2) dismissed without prejudice 

all CFA and common law fraud claims against the Star individual defendants 

and Quad; (3) dismissed with prejudice all claims brought by plaintiffs included 

in the Polanco class list except the claims against Quad; (4) confirmed the 

plaintiffs in the Guzman and Silva Actions voluntarily dismissed with prejudice 

all claims against Quad except the CFA and common law fraud claims; and (5) 

continued Quad's motion to dismiss claims brought by plaintiffs who were 

Polanco class members to May 23, 2016. While the order states the court placed 

it reasons on the record on May 13, 2016, the transcript consists of a brief 

colloquy and does not contain any factual findings or conclusions of law by the 

trial court. 

On May 23, 2016, the trial court granted Quad's motion to dismiss based 

on res judicata, connecting Quad to the Polanco class action. The court found: 

(1) the judgment in the Polanco action was valid, final, and on the merits; (2) 
11 A-3028-17T4

plaintiffs' complaint alleged Quad was in privity with the Polanco defendants;

and (3) the current action arose from the same transaction and occurrence. 

A subsequent June 3, 2016 order dismissed the claims of all plaintiffs in 

the Guzman and Silva Actions against Quad with prejudice, except the claims 

made by Guzman, which had been previously dismissed on May 13, 2016. 

On January 23, 2018, Guzman executed a stipulation of dismissal, 

dismissing all of her claims with prejudice.

This appeal followed. Plaintiffs challenge the March 11 and June 3, 2016 

orders and the January 23, 2018 stipulation of dismissal. 

Plaintiffs argue: (1) defendants misled the trial court regarding 

dissimilarities between the Guzman and Silva complaints and the Polonco class 

action complaint; (2) the Polonco class action did not divest the trial court of 

jurisdiction over the Guzman Action as to Star; (3) the Polonco class action did 

not divest the trial court of jurisdiction over the Guzman Action as to Quad and 

the Star individual defendants who were not named defendants in the class 

action; (4) defendants did not meet their burden of proving the Polonco trial 

court had exclusive jurisdiction over the Guzman and Silva Actions or that the 

Polonco opt out notice complied with due process by providing the best 

practicable notice; (5) the trial court erred by considering unverified evidence 
12 A-3028-17T4

submitted by Star in deciding Star's Rule 4:6-2(e) motion to dismiss; (6) the trial 

court's ruling overlooked New Jersey's strong policy interest in eradicating 

fraud; and (7) the trial court erred by dismissing all claims brought by the 

Guzman Action plaintiffs other than those brought by Evelyn Guzman. 

Defendants moved to dismiss the complaint under Rule 4:6-2(e) for 

"failure to state a claim upon which relief may be granted." "In considering a 

motion to dismiss under Rule 4:6-2(e), courts search the allegations of the 

pleading in depth and with liberality to determine whether a cause of action is 

'"suggested" by the facts.'" Rezem Family Assoc., LP v. Borough of Millstone, 

423 N.J. Super. 103, 113 (App. Div. 2011) (quoting Printing Mart-Morristown 

v. Sharp Elecs. Corp., 116 N.J. 739, 746 (1989)). The court should "ascertain 

whether the fundament of a cause of action may be gleaned even from an obscure 

statement of claim, opportunity being given to amend if necessary." Ibid.

(quoting Printing Mart-Morristown, 116 N.J. at 746). "For this purpose, 'all 

facts alleged in the complaint and legitimate inferences drawn therefrom are 

deemed admitted.'" Rieder v. State, 221 N.J. Super. 547, 552 (App. Div. 1987) 

(quoting Smith v. City of Newark, 136 N.J. Super. 107, 112 (App. Div. 1975)). 

"On appeal, we engage in a de novo review from a trial court's decision to 

grant or deny a motion to dismiss filed pursuant to Rule 4:6-2(e)." Smith v. 
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Datla, 451 N.J. Super. 82, 88 (App. Div. 2017) (citing Rezem, 423 N.J. Super. 

at 114). "We owe no deference to the trial court's conclusions." Rezem, 423 

N.J. Super. at 114. We will uphold the dismissal if "the factual allegations are 

palpably insufficient to support a claim upon which relief can be granted." 

Rieder, 221 N.J. Super. at 552.

The issues presented in this matter do not require extended discussion. 

The trial court dismissed the majority of plaintiff's claims based solely on the 

class certification in Polonco, concluding the class certification divested it of 

jurisdiction. We subsequently decertified the class. Polonco, slip op. at 25. In 

light of our ruling, defendants do not dispute that plaintiffs can pursue their 

claims individually. 

Assuming the facts alleged by plaintiffs in their complaints are true, and 

affording them all reasonable inferences, plaintiffs adequately pleaded causes of 

action for violation of the CFA, common law fraud, and misrepresentation 

against Star. The trial court erred by dismissing those claims against Star.

5

 We 

vacate the dismissal of those claims and remand this matter for the parties to 

engage in discovery.

 

5

 We further note that the record before us does not contain any factual findings, 

analysis, or legal conclusions by the trial court on May 13, 2016. This too was 

error. R. 1:7-4(a).
14 A-3028-17T4

Paragraphs two and five of the May 13, 2016 order State:

#2 – All NJCFA and common law fraud claims by all 

plaintiffs in these consolidated cases asserted against 

all individual defendants and Quad Partners, LLC are 

dismissed without prejudice.

#5 – Plaintiffs in Guzman and Silva voluntarily dismiss 

with prejudice [p]laintiffs' claims against Quad other 

than the NJCRA and common law fraud claim, i.e., 

breach of contract, breach of warranty and strict 

liability.

The order does not state it is a consent order. On this record, we are unable to 

determine if the order was consented to by counsel as to just form or also as to 

entry. We vacate the dismissal of plaintiffs' CFA and common law fraud claims 

against the Star individual defendants and Quad and remand those claims. 

Plaintiffs shall be afforded a reasonable period to amend their complaint as to 

those claims and to engage in discovery. 

Plaintiffs have not briefed the dismissal of their claims for breach of 

contract and breach of warranty. Nor have they briefed the dismissal of their 

claims for strict liability and educational malpractice. We deem those issues 

waived. See Sklodowsky v. Lushis, 417 N.J. Super. 648, 657 (App. Div. 2011)

("An issue not briefed on appeal is deemed waived."). We affirm the dismissal 

of the breach of contract, breach of warranty claims, strict liability, and 

educational malpractice claims.
15 A-3028-17T4

Guzman was not a member of the Polonco class. We affirm the dismissal 

of her claims against Star and the Star individual defendants with prejudice 

pursuant to the stipulation of dismissal she executed. We discern no basis to 

overturn the dismissal of those claims as a result of the resolution of her claims 

against defendants. Guzman does not argue otherwise. 

Guzman seeks a remand of her claims against Quad. We find no basis to 

do so. The stipulation of dismissal states "the claims brought by Evelyn Guzman 

. . . in the actions consolidated under docket number CAM-L-780-15, are 

dismissed with prejudice." The stipulation of dismissal encompasses all of 

Guzman's claims in the Guzman Action; it does not preserve Guzman's claims 

against Quad. The stipulation of dismissal is binding and enforceable. The 

dismissed claims cannot be resurrected or pursued. 

In light of these rulings, we do not reach the other issues raised by 

plaintiffs.

Affirmed in part and vacated and remanded in part. We do not retain 

jurisdiction.