SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO . A

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- 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 E UGENIA SANTIAGO, Plaintiffs

- Appellants,

v. SC ACADEMY HOLDINGS, INC., STAR CAREER ACADEMY, QUAD PART N ERS, CULINARY ACADEMY OF LONG ISLAND, INC., CUL I NARY ACADEMY OF NEW YORK, INC., MICHAEL IANN A CONE, MICHAEL S. LEVITT, TIM JAMES, ROBERT EMME, COLEEN LEARD, MCHELLE MU MMA, 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LINCOLN, CAROL HANNON, JENNIFER DIMEDIO, RHONDA TERWILLIGER, RON PINO, SHEILA STOKES, CHERYL ACKEY, and AMY TORRES, NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court

. " A lthough 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

- 3.2 A

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Defendants

- Respondents.

____________________________ _

Submitted March 19, 2019

– Decided April 18, 2019 Before Judges Fi sher and Geiger. On appeal from Superior Court of New Jersey, Law Division, Camden County, Docket No. L

- 0 780

- 15. Robert J. O'She a, 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 B ar, 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 Star3 A

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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 foll owing

reason s , 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. 26:2 H

- 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). An other 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. 26:2H

12. 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 nati onally recognized accreditors of ST programs. Star4 A

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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 o ur recent ruling in a related class action impacts the decisions rendered by the trial court in th is matter , we briefly discuss the pertinent facts and procedural history in that separate class action , Polonco v. Star Career Acad emy , 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 an d 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.5 A

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Ibid. Other students also questioned Star admissions officers regarding how the ST law would affect them. Ibid. The a dmissions 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 ye ar 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 f or 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 accreditat ion and that accreditation by ABHES or CAAHEP was unnecessary.6 A

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- 17T4 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

- 12.6 3(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 aga i nst 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. T he trial court certified the proposed class o ver Star's objection, and appointed Polonco class representative. Id. at 11. The court denied Star's subsequent motion to decertify the class. Ibid.7 A

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The c ase proceeded to trial and t he 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 agree d , 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 2 2

. We decertified t he class , vacated the final judgment and remanded for retrial. Id. at 2 7, 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).
T he 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.8 A

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Star mo ved 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 th ey 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 di s miss without prejudice

. 2 One month later, Star again moved to dismiss plaintiff's claims in the
Guzman and Silva Action s under R ule 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 the y were members of
the class in Polanco , and their claims were deemed duplicative

. 3 Plaintiffs' motion for r econside ration 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. O n March 11, 2016, the trial court entered a handwritten order addressing various motions. Despite its prior dismissal order, t he trial

2 The record does not include a copy of the order.

3 The parties acknowledge Ev e lyn Guzman was not a member of the Polanco class.

4 The record does not include the moving papers.9 A

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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 cont ract 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 f ound the c ontracts 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 n ot 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 it s applicat ion 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 du e to service of10 A

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process issues

. The record does not contain a transcript of any proceedings on April 8, 2016.
O n May 13, 2016, the court entered a five

- part order. In pertinent part, the order : ( 1) dismissed with prejudice all breach of contract and w arranty 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 Polanc o 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) continue d Quad's motion to dismiss cl aims brought by plaintiffs who were Polanco class members to May 23, 2016. While t he order states the court placed
it reasons on the record on May 13, 2016, the transcript co nsists 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 o n the merits ; ( 2)11 A

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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 dismiss ed the claims of all plaintiffs in the Guzman and Silva Action s 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 a ll of her claims with prejudice

. Thi s appeal followed. Plaintiffs challenge the March 11 and June 3, 2016 orders and the January 23, 2018 stipulation of dismissal

. Plaintiffs argue: (1) defe n d a nts 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 Qua d 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 not ice complied with due process by providing the best practicable notice ; (5) the trial court erred by considering unverified evidence12 A

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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 di smiss 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 wheth er a cause of action is '"suggested" by the facts.'" Rezem Family Assoc., LP v. Borough of Millstone , 423 N.J. Super. 103, 11 3 (App. Div. 2011) (quoting Printing Mart

- Morristown v. Sharp Elecs

. Corp

. , 116 N.J. 739 , 746 (1989)). The court should " ascertai n 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 c omplaint and legitimate inferences drawn therefrom are deemed admitted. ' " Rieder v. State , 221 N.J. Sup er. 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.13 A

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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 defer ence 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 su bsequently decertified the class. Polonco , slip op. at 25. In light of our ruling , d efendants 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, p laintiff s adequately pleaded cause s 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 W e
vacate the di smiss al 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

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Paragraphs two and five of t he May 13, 2016 order State:
#2

– All NJCFA and common law fraud claims by all plaintiffs in these consolidated cases asserted against all in dividual 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 cl a ims 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 briefe d 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. 6 48, 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

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Guzman was not a member of the Polonco class

. We affirm the dism issal 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 h er 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 unde r 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.