Opinion
DOCKET NO. A-5495-11T4
02-14-2013
ELI LUTZ and CHAVI LUTZ, Plaintiffs-Appellants, v. CONTINENTAL AIRLINES, INC., Defendant-Respondent, and VICTORIA SCARDIGNO and LAWRENCE KELLNER, Defendants.
Eli Lutz, appellant, argued the cause pro se. Douglas H. Amster argued the cause for respondent (LeClairRyan, attorneys; Peter B. Van Deventer, Jr. and Mr. Amster, of counsel and on the brief; Kevin A. Hickman, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Sapp-Peterson and Haas.
On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-1298-12.
Eli Lutz, appellant, argued the cause pro se.
Douglas H. Amster argued the cause for respondent (LeClairRyan, attorneys; Peter B. Van Deventer, Jr. and Mr. Amster, of counsel and on the brief; Kevin A. Hickman, on the brief). PER CURIAM
Plaintiffs Eli and Chavi Lutz appeal from the Law Division's June 15, 2012 order granting defendant Continental Airlines, Inc.'s motion to dismiss their complaint. We are constrained to remand because the court did not make findings of fact and conclusions of law on the issues raised by defendant's motion.
In their three-count complaint, plaintiffs alleged they purchased eighty ticket vouchers from one of defendant's employees that would enable them or their guests to take eighty flights in the future. They paid the employee $47,320 for the vouchers and were given a "Continental pin number" to use when they wanted to activate them. Plaintiffs stated they used ten of the vouchers "successfully without any problems." However, when they attempted to use some of the remaining vouchers for flights, defendant informed them the airline was "not honoring the vouchers" because they were not part of any ticket program authorized by it.
The employee who sold plaintiffs the vouchers subsequently pled guilty in federal district court to wire fraud. She admitted that, while employed as a ticket agent by defendant, she "became involved in a fraudulent scheme to sell vouchers that purchasers were falsely told they could later exchange [for] tickets on Continental." In total, she allegedly sold over 2,100 vouchers to numerous customers and "received approximately $1 million from the sale of these purported vouchers."
In count one of their complaint, plaintiffs alleged defendant breached the Consumer Fraud Act (CFA), N.J.S.A. 56:8-1 to – 20, because its employee sold them fraudulent vouchers. In count two, they alleged defendant breached a duty owed to them "to ensure their employees are carefully scrutinized regarding issuing fraudulent vouchers to the public." Finally, in count three, plaintiffs sought damages for the intentional infliction of emotional distress.
It is not clear from the record whether plaintiffs ever served the other two defendants named in the complaint, Victoria Scardigno, the Continental employee who sold them the vouchers, and Lawrence Keller, Continental's former Chief Executive Officer.
On May 24, 2012, defendant filed a motion to dismiss the complaint. It argued plaintiffs' CFA claim was preempted by the Airline Deregulation Act of 1978, 49 U.S.C. §§ 1301 to – 1557, and the remaining counts of the complaint failed to state a claim upon which relief could be granted. Plaintiffs did not file a response to the motion until June 14, 2012, the day before the return date.
On June 15, 2012, the trial court issued an order dismissing plaintiffs' complaint with prejudice. Although the body of the order states the court had "reviewed all papers and argument submitted in support of and in opposition to [defendant's] motion," a handwritten notation at the bottom of the order states the motion was "unopposed[.]" The court did not conduct oral argument on the motion, although it had been requested by defendant, did not hold a hearing, and provided no statement of its reasons for the dismissal of the action.
Plaintiffs appeal the June 15, 2012 order, claiming the court erred in dismissing their complaint. However, because the court failed to provide findings of fact and conclusions of law supporting its decision, this appeal cannot be decided on the merits.
Rule 1:7-4(a) clearly states that a trial "court shall, by an opinion or memorandum decision, either written or oral, find the facts and state its conclusions of law thereon . . . on every motion decided by a written order that is appealable as of right[.]" See Shulas v. Estabrook, 385 N.J. Super. 91, 96 (App. Div. 2006)(requiring an adequate explanation of basis for court's action). Here, the court provided no reasons for granting defendant's motion to dismiss. Curtis v. Finneran, 83 N.J. 563, 569-70 (1980)(requiring court to clearly state its factual findings and correlate them with the relevant legal conclusions). As a result, we have no way of knowing why it determined to dismiss the complaint. The trial court's failure to provide the findings of fact and conclusions of law required by Rule 1:7-4(a), necessitates a remand for fulfillment of the court's obligation in this regard.
Remanded for findings of fact and conclusions of law. We do not retain jurisdiction.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION