07-2-3508 O'Malley v. Neary, N.J. Super. App. Div. (per curiam) (12 pp.) Appellants were retained by respondent to represent him in a federal criminal prosecution; separate representations were executed for investigatory services and appeals regarding the same prosecution. Respondent subsequently sued and settled with the second firm for breach of contract. Following settlement, respondent sued appellant alleging breach of contract and breach of the duty of good faith and fair dealing. Appellant moved for, and was denied, dismissal arguing respondent's failure to name him in the first suit barred the instant action under the entire controversy doctrine. On appeal, the court affirmed finding insufficient proofs to warrant dismissal pursuant to the entire controversy doctrine. The court noted the parameters of Rule 4:5-1(b)(2) mandated that, with the initial pleading, each party submit a certification advising the court if any other action was pending or contemplated that related to the controversy before the court. Here, at this early stage of litigation, the court was unable to determine if respondent's failure to notify appellant of being a potential party was inexcusable under Rule 4:5-1(b)(2). Accordingly, the court affirmed denial of dismissal as it was unable to determine whether failure to comply with the Rule's notice requirement was inexcusable or caused substantial prejudice.

07-2-3521 Ciaglia v. West Long Branch Zoning Bd. of Adjustment, N.J. Super. App. Div. (per curiam) (12 pp.) Following a jury trial awarding just compensation to respondent in his eminent domain action, respondent submitted a revised motion in support of counsel fees. Appellant objected arguing that the motion was untimely and an award of counsel fees was not mandatory, but discretionary under N.J.S.A. 20:3-26(c). In response, respondent contended the twenty-day timeframe set forth in Rule 4:49-2 was inapplicable as the final judgment order anticipated that the court would retain jurisdiction to hear his motion. In its decision to award fees, the trial court noted that N.J.S.A. 20:3-26(c) mandated the award of counsel fees, that the application was timely when viewed through the clear intention of the parties, and the fees sought were reasonable. On appeal, the court affirmed holding the trial court's order stated that it was “a Final Judgment as to all issues, except that the [respondent] may file a timely motion for . . . fees and expenses.” The order further recognized a decision had not been made on whether “such a motion should or should not be granted.” Moreover, the court noted the same judge who issued the “Order for Final Judgment” also presided over the application for counsel fees and was, therefore, in a position to understand the intention between the parties at the time of the order. Finally, the court affirmed holding the trial court determined the reasonableness of the fees based on the record and detailed analysis.

09-2-3534 Mellet v. Aquasid, LLC, N.J. Super. App. Div. (per curiam) (15 pp.) Plaintiff appealed from the order denying class certification and granting defendant's motion for summary judgment. Plaintiffs entered membership agreements to join defendant's health club, but subsequently stopped paying their memberships. When plaintiff Robert Mellet attempted to cancel his membership, defendant declined his request and charged him late fees, collection fees, administrative fees, and 15 months of dues. Similarly, when plaintiff Betty Evans sought to cancel her membership, defendant declined her request, and continued to charge her dues. Plaintiffs filed suit, alleging their membership agreements and the fees charged violated the Retail Installment Sales Act, Consumer Fraud Act, Health Club Services Act, and Truth In Consumer Contract, Warranty, and Notice Act, and sought class certification. Defendant contested class certification and moved for summary judgment. The trial court denied class certification upon concluding that RISA did not apply to the parties' contracts because they did not afford plaintiffs an ownership interest, that they did not have a cause of action under TCCWNA, and that the agreement passed muster under HCSA. Because there were no individual or class claims, the trial court granted defendant summary judgment. On appeal, plaintiffs first argued that RISA covered health club contracts because RISA explicitly stated that it applied to health club services. However, the court agreed that RISA was inapplicable because it contemplated eventual ownership of a good or service after the contract, which was not the case here. The court further ruled that the contract's exculpatory clause was facially valid under TCCWNA, since it did not waive injury-related liabilities or a duty of care. Finally, the court exercised jurisdiction to review the contracts under HCSA after the trial court failed to make findings. The court found that the agreements did contain the total amount owed monthly on the first page. Accordingly, the court affirmed the orders of the trial court.