Unpublished Opinions for the Week of September 19, 2016

09-2-1294 Smerling v. Harrah’s Entm’t Inc., N.J. Super. App. Div. (per curiam) (16 pp.) Plaintiff filed this action asserting claims under the Consumer Fraud Act and the Truth-in-Consumer Contract, Warranty and Notice Act after she was unable to redeem a “birthday cash” offer sent to her by defendant. The trial court ruled in her favor. The appellate panel affirmed in part, reversed in part, and remanded for further proceedings. It found that the birthday cash offer did not require the payment of any cash and plaintiff did not “buy” the offer with cash or on credit. Therefore, she was not a “consumer,” the offer was not a “consumer contract” under the TCCWNA, and the act did not apply to the claims based upon the offer. The panel therefore reversed the orders granting declaratory judgment and summary judgment to plaintiff on her TCCWNA claim and the award of $100 civil penalty per class member under the TCCWNA. The panel reversed the order granting injunctive and declaratory relief and found that the issue regarding the certification of the injunctive class was moot. It said the predicate for the grant of injunctive relief was the trial court’s finding that the offer violated the TCCWNA and the CFA. However, the conclusion that there was no violation of the TCCWNA eliminated that finding as a basis for injunctive relief. Further, assuming that a CFA violation existed, the only person identified as suffering an ascertainable loss was plaintiff, and her claim was settled. Therefore, there was inadequate proof that injunctive relief granted was necessary to prevent a continuing, irreparable injury and was no more extensive than reasonably required. The panel found no abuse of discretion in the trial court’s refusal to recalculate the June 2012 counsel fee award to apply the rate in effect in 2013 but remanded on the issue of attorney fees in light of the reversal of the relief granted under the TCCWNA claim and to permit the judge to determine what portion of the fees and costs related to the CFA claims and to eliminate any award relating to the TCCWNA claims.

16-2-1283 M.O’K v. Bd. of Educ. of Borough of Cresskill, N.J. Super. App. Div. (per curiam) (9 pp.) Petitioners and their minor children had resided in Cresskill, where the children received special education services, until they lost their home through foreclosure. They moved in with a grandmother in Little Ferry until that home was damaged by Superstorm Sandy. They returned to that home several months later. They then moved to an apartment in Little Ferry rented by the older son, who was emancipated. Petitioners filed a petition on behalf of their minor children, contending that they were homeless and seeking to have their children continue with their education in Cresskill. The ALJ found that the family was initially homeless, but then became domiciled in Little Ferry. The commissioner of education rejected the ALJ’s conclusion that the family was no longer homeless and determined that under the applicable regulatory criteria, the family was still homeless; the children should continue their schooling in Cresskill; and Little Ferry was responsible for the cost of their education in that district for the 2013-2014 school year. On Little Ferry’s appeal, the panel affirmed. It found that the commissioner correctly applied the relevant regulations in determining that the family was homeless for purposes of educational funding obligations for the 2013-2014 school year.