SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION DOCKET NO. A-3995- 22 PETER and NITA ROSE, on behalf of themselves and all others similarly situated, Plaintiffs-Appellants,

v. SHORE CUSTOM HOMES CORP., Defendant, and VINCENT SIMONELLI, and DREAM HOMES & DEVELOPMENT CORPORATION, Defendants-Respondents.

Submitted August 27, 2024

– Decided September 3, 202 4 Before Judges DeAlmeida and Vinci. On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Docket No. L- 1428

- 22. _______________________________ NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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 t he 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- 3995

- 22 Lueddeke Law Firm, attorneys for appellant (Ronald L. Lueddeke, on the brief). Vito C. DeMaio, attorney for respondents.
PER CURIAM Plaintiffs Peter and Nita Rose appeal from the Law Division's June 19,
2023 order compelling arbitration of their individual c ontractual and statutory claims against defendants Vincent Simonelli and Dre am Homes and Development Corporation (Dream Homes), as well as t he July 21, 2023, and August 25, 2023 orders denying plaintiffs' motions for reconsideration. 1 We affirm. Plaintiffs entered into an "Addition/Renovation C[ ontract]" (Contract) with Shore Custom Homes Corp

. (Shore Custom) to raise, renovate, and build an addition on their property located in Bayville f or a total cost of $314,800. 2

1 Plaintiffs also asserted putative class action cl aims against defendants that were bifurcated by the trial court and excluded fro m the June 19, 2023 order compelling arbitration

. The parties did not appeal from that aspect of the June 19 order

. Accordingly, the arbitrability of plaintiffs' clas s action claims is not before us.

2 Shore Custom is a wholly owned subsidiary of Drea m Homes. Shore Custom was dismissed from the case after it filed f or Chapter 11 bankruptcy protection.3 A- 3995

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The Contract contains a provision entitled "Contact and Warranty Disputes" that provides:

In the event any dispute arises between the parties and the dispute is not resolved within thirty (30) busi ness days, [plaintiffs] agree[] to submit resolution of the dispute(s) to [b]inding [a] rbitration as administered by the American Arbitration [Association], and to be bound by the Rules and Regulations as promulgated by the American Arbitration [Association]. [Plaintiffs] specifically agree[] that any disputes shall be determined by arbitration and shall not be otherwise litigated in a court of law. [Plaintiffs ] agree[] to submit all unresolved disputes covered under the Homeowner's Warranty to the Homeowner's Warranty agency and agree [] to permit all necessary work if warranted, to be performed by the Homeowner[']s Warranty agency before initiating any further action against [Shore Homes]. Cost of arbitration will be paid for by the party who insti tutes arbitration. [Plaintiffs] specifically agree[] tha t no claims will be made under the Consumer Fraud Act unless there is a specific material breach by [Shor e Homes] involving a default under this contract or failure to complete the scope of work. The Contract contains a provision entitled "Legal R epresentation" that provides, in relevant part: "[Plaintiffs] acknowle dge [] that [plaintiffs have] the right at [plaintiffs'] cost and expense, to hire an y lawyer to represent [plaintiffs'] interest[s] in this transaction." The Contract also contains a provision entitled "Attorney Review" that provides, in relevant part: "From the date of signing of this Agreement, the [plainti ffs] may cancel this contract4 A- 3995

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by midnight of the third day after receiving a copy of this contract, by registered or certified mail." After disputes arose regarding Shore Custom 's work under the Contract , plaintiffs filed a complaint in the Law Division ag ainst Shore Custom and Simonelli alleging causes of action based on: (1) the New Jersey Consumer Fraud Act, N.J.S.A. 56:8-1 to - 227 (CFA); (2) fraud; (3) breach of contract; (4) breach of warranty; (5) breach of the implied coven ant of good faith and fair dealing; (6) breach of the implied covenant that wo rk will be performed in a workmanlike manner; (7) negligence; and (8) unjust enrichment. Shore Custom and Simonelli moved to compel arbitra tion. Plaintiffs opposed that motion and cross-moved to file a first amended complaint to add Dream Homes as a defendant and assert putative clas s action claims alleging violations of the CFA and the New Jersey Truth in C onsumer Contract, Warranty and Notice Act, N.J.S.A. 56:12- 14 to

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- 18 (TCCWNA). On May 26, 2023, after hearing oral argument, the trial court grant ed both motions in an oral opinion. The court determined, "there is an arbitration clause that binds the parties to arbitration. The [c]ourt does[ not] find that there[ is] anything unusual or unclear, anything th at would be unconscionable about that clause." The court also found "these di sputes were between two5 A- 3995

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competent knowing parties. That there was the oppo rtunity . . . to have the [C]ontract reviewed by an attorney" and "[a]ttorney review says you have three days to cancel the contract if you do [ not] want to proceed." Based on defendants' representation that they would initiate the arbitration proceeding, the court "recognize[d] the obligation to pay for the arbitration, which will be paid for and file[d] by the defendant[s] . . . within [thirty] days . . . ." Finally, with the consent o f defendants, the court bifurcated plaintiffs' class action claims from the claims the court determined were subject to the arbitration provision. On June 19, 2023, the court entered an order consistent with its May 26 opinion. Plaintiffs moved for reconsideration arguing their CFA claims are not subject to arbitration because the Contract does no t expressly provide for arbitration of statutory claims. On July 21, 2023, the court heard oral argument and denied plaintiffs' motion in an oral opinion

. Plaintiffs subsequently moved to extend discovery, vacate the court's June 19 order compelling arbitration, or, alternati vely, for a stay pending appeal. Plaintiffs did not request oral argument. On August 25, 2023, the court entered an order extending discovery, denying plaintiffs' motion to vacate the June 19 order, and staying the arbitrati on for thirty days.6 A- 3995

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As permitted by Rule 2: 2-3(b)(8), plaintiffs appeal from the June 19 , July 21, and August 25, 2023 orders to the extent t hey compelled arbitration of plaintiffs' claims. On appeal, plaintiffs contend: (1) the arbitration provision is defective because it does not clearly and unambi guously convey the rights being waived; (2) the arbitration provision is defe ctive because it is unconscionable, goes against public policy, and con tains multiple violations of the TCCWNA; and (3) there is no delegation clause t hat would arguably give the arbitrator authority to resolve issues of arbit rability. We affirm substantially for the reasons set forth in the trial court's May 26, 2023 oral opinion. We add the following commen ts. The enforceability of an arbitration agreement is a question of law, which we review de novo. Skuse v. Pfizer, Inc., 24 4 N.J. 30, 46 (2020). "Similarly, the issue of whether parties have agree d to arbitrate is a question of law that is reviewed de novo." Jaworski v. Ernst & Young U.S. LLP, 441 N.J. Super. 464, 472 (App. Div. 2015). Thus, we exercis e de novo review of a trial court's order compelling arbitration

. Goffe v. Foulke Mgmt. Corp., 238 N.J. 191, 207 (2019). " [I] n reviewing such orders, we are mindful of the stro ng preference to enforce arbitration agreements, both at the state and federal level." Hirsch v. Amper Fin. Servs., LLC, 215 N.J. 174, 186 (2013). That7 A- 3995

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preference, "however, is not without limits." Garf inkel v. Morristown Obstetrics & Gynecology Assocs., P.A., 168 N.J. 124 , 132 (2001). Arbitration agreements are subject to customary con tract law principles. Atalese v. U.S. Legal Servs. Grp., L.P., 219 N.J. 430, 442 (2014)

. A valid and enforceable agreement requires: (1) consideration; (2) a meeting of the minds based on a common understanding of the contract ter ms; and (3) unambiguous assent. Id. at 442-45. Consequently, to be enforc eable, the terms of an arbitration agreement must be clear, and any legal rights being waived must be identified. Id. at 442- 43; see also Kernahan v. Home Warranty Adm'r of Fla., Inc., 236 N.J. 301, 319-20 (2019). "[C]ontract terms should be given their plain and ordinary meaning." Kernahan, 236 N.J. at 321. Plaintiffs' contention that the arbitration provisi on is defective because it fails to convey a waiver of the right to bring suit in court is not persuasive. "No particular form of words is necessary to accomp lish a clear and unambiguous waiver of rights." Atalese, 219 N.J. a t 444. If, "at least in some general and sufficiently broad way," the language o f the clause conveys that arbitration is a waiver of the right to bring suit in a judicial forum, the clause will be enforced. Id. at 447; see also Morgan v. S anford Brown Inst., 225 N.J.8 A- 3995

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289, 309 (2016) ("No magical language is required t o accomplish a waiver of rights in an arbitration agreement."). Here, the Contract provides, "[i]n the event any di spute arises between the parties . . . [plaintiffs] agree[] to submit re solution of the dispute(s) to [b]inding [a]rbitration as administered by the Amer ican Arbitration [Association]" and "be bound by the Rules and Regul ations as promulgated by the American Arbitration [Association]." The Contract further provides, "[ plaintiffs] specifically agree[] that any disputes shall be determined by arbitration and shall not be otherwise litigated in a court of law." We agree with the trial court that this arbitration provision meets the standards of Atalese and its progeny. The provisio n clearly and unambiguously evidences a waiver of plaintiffs' rig ht to pursue any claim s against defendants in a judicial forum and obligates plaintiffs to resol ve their claims through arbitration. Plaintiffs' contention that the arbitration provisi on does not encompass their CFA claims is likewise un convincing

. "[I]t is well-established that CFA claims may be the subject of arbitration and need n ot be exclusively presented in a judicial forum." Curtis v. Cellco P'ship, 413 N.J. Super. 26, 37 (App. Div. 2010)

. "Arbitration of statutory claims is enforceable whe n the contract9 A- 3995

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provisions . . . contain language reflecting a gene ral understanding of the type of claims included in the waiver[.]" Id. at 35 -36. An arbitration clause need

not "identify the specific constitutional or statutory right . . . that is waived by agreeing to arbitration." Atalese, 219 N.J. at 447. The arbitration provision in Curtis provided that t he parties agreed to submit "any controversy or claim arising out of or related to [the parties] agreement," and defined the subject claims to inclu de any "statutory right for reimbursement of attorney's fees." Curtis, 413 N.J . Super. at 37. We concluded that contractual language was sufficient to encompass CFA claims because it "reflect[ed] a willingness to arbitrate all claims, contractual, as well as statutory . . . ." Id. at 39. Here, the arbitration provision extends to "any di sputes" between the parties. Moreover, the provision specifically refe rences the CFA, provid ing , "no claims will be made under the [CFA] unless ther e is a specific material breach . . . involving a default under this contract or failure to complete the scope of work." Given the broad language of the ar bitration agreement and the specific reference to claims asserted under the CFA , we are satisfied the court correctly determined the arbitration agreement refl ects a willingness to arbitrate all claims, including CFA claims.10 A- 3995

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Plaintiffs' argument that the arbitration provisio n is unconscionable lacks merit. Plaintiffs' contention that the provision violates the CFA and the TCCWNA because it improperly shifts the "[c]ost of arbitration" to "the party who institutes arbitration" is moot. Defendants ag reed they will institute arbitration and, based on that representation, the court ordered defendants to do so and pay the costs as required by the Contract

. Plaintiffs' claim that they are precluded from pur suing CFA claims based

on the Home Improvement Practices regulations, N.J.A.C . 13:45A-16.2 (HIP regulations) or the Contractor's Registration Act, N.J.S.A. 56:8- 136 to - 152 (CRA) is unavailing. Nothing in the Contract prohi bits such claims. The Contract provides "no claims will be made under the [CFA] unless there is a specific material breach . . . involving a default under this contract or failure to complete the scope of work." Plaintiffs satisfied that condition because they allege material breaches involving a default under the Contract and failure to complete the scope of work. Therefore, based on th e plain terms of the Contract, plaintiffs are free to assert all manner of CFA claims, including claims based on the HIP regulations or the CRA. 3

3 Defendants concede plaintiffs satisfied the condi tion set forth in the Contract and may assert CFA claims without limitation.11 A- 3995

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Plaintiffs' reliance on our recent decision in Ach ey v. Cellco Partnership , 475 N.J. Super. 446 (App. Div.) , certif. granted , 255 N.J. 286 (2023), is misplaced. Achey involved a customer agreement tha t was a "contract of adhesion . . . 'presented on a take- it

- or -leave-it basis . . . without opportunity for the "adhering" party to negotiate.'" Id. at 455 (second omission in original). Under those circumstances, we concluded the "'cumulative effect' of . . . various unconscionable terms render[ ed ] the arbitration agreement 'unenforceable for lack of mutual assent.'" Id. at 459. The Contract in this case is not a contract of adh esion. Plaintiffs entered into an agreement with Shore Custom for substantial renovations to their property. The Contract was not presented to them o n a "take- it

- or -leave-it basis." Plaintiffs selected Shore Custom to do the work, had the express right under the Contract to retain counsel to review and negotiate the terms of the Contract, and had the right to cancel the Contract within three days. Even if plaintiffs could demonstrate that their statutory r ights were impaired , which they cannot, there would be no basis to find the ar bitration agreement unenforceable under the circumstances of this case. Finally, plaintiffs' claim that the arbitration ag reement is not enforceable because it does not contain a "delegation" clause i s incorrect. "Parties to an12 A- 3995

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arbitration agreement can agree to delegate to an a rbitrator the issue of whether they agreed to arbitrate a particular dispu te." Morgan, 225 N.J. at
303

. Absent a delegation clause, "the decision whether t he parties agreed to arbitration . . . is for a court to resolve." Id. at 295 -96. Here, the Contract does not contain a delegation clause and, as a resu lt, the court decided whether the parties agreed to resolve their disputes throug h arbitration. To the extent we have not addressed any of plaintif fs' remaining arguments, it is because they lack sufficient merit to warrant discussion in a written opinion. R. 2:11 -3(e)(1)(E). Affirmed.