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                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-4438-15T1


ROBERT MELLET and BETTY EVANS,
on behalf of themselves and other
persons similarly situated,

        Plaintiffs-Appellants,

v.

AQUASID, LLC, t/a FUTURE FITNESS
POWERED BY AFC,

     Defendant-Respondent.
________________________________

              Argued May 4, 2017 – Decided          June 21, 2017

              Before Judges O'Connor, Whipple, and Mawla.

              On appeal from Superior Court of New Jersey,
              Law Division, Camden County, Docket No. L-516-
              15.

              Andrew P. Bell argued the cause for appellants
              (Locks Law Firm, L.L.C. and the Law Office of
              Charles N. Riley, L.L.C., attorneys; Michael
              Galpern, James A. Barry, Charles N. Riley, and
              Mr. Bell, on the brief).

              Sean X. Kelly argued the cause for respondent
              (Marks, O'Neill, O'Brien, Doherty & Kelly,
              P.C., attorneys; Sean Robins and Mr. Kelly, on
              the brief).

PER CURIAM
     Plaintiffs Robert Mellet and Betty Evans appeal from an April

29, 2016 order denying class certification and granting defendant

summary judgment.       We affirm.

     We derive the following facts from the record.              Defendant

Aquasid, LLC, is a health club operated at two locations in Cherry

Hill, New Jersey.       Plaintiffs entered membership agreements with

defendant on February 21, 2014, and subsequently stopped paying

their memberships.      Specifically, when Mellet sought to cancel his

membership in July 2014, defendant declined his request and charged

him $1,256.71, comprised of three months of late fees, a collection

fee, administrative fee, and fifteen months of dues.             Defendant

attempted to collect these funds from Mellet.          In September 2014,

Evans sought to cancel her membership, but defendant declined her

request. Evans' October 2014 payment was declined for insufficient

funds and she was charged a $25 fee. Defendant continued to charge

Evans, and sought to collect $198.34 from her.

     Plaintiffs filed suit asserting the form of their membership

contracts   and   the    fees   defendant   charged   violate   the    Retail

Installment Sales Act (RISA), Consumer Fraud Act (CFA), Health

Club Services Act (HCSA), and the Truth in Consumer Contract,

Warranty, and Notice Act (TCCWNA).            They allege at least one

hundred other similarly improper contracts were entered into by

other members.      Plaintiffs sought class certification for all

                                      2                               A-4438-15T1
persons who entered into a membership agreement with defendant on

or after April 9, 2008.         Defendant contested class certification

and moved for summary judgment.

     After     hearing   oral     argument,   the   trial   judge    denied

plaintiffs' motion for class certification and granted defendant's

request for summary judgment.         Regarding plaintiffs' individual

claims, the trial judge concluded RISA did not apply to defendant's

installment contracts with plaintiffs because the contracts did

not afford them an ownership interest in either an object or

service at its conclusion.         The trial judge also found Attorney

General review and approval of the membership forms containing the

contract fees, as required by the HCSA, barred any claim under

RISA,   and     concluded   defendant's       exculpatory    clause      was

enforceable.

     The trial judge found plaintiffs did not have a clearly

established right under TCCWNA to assert their waiver claim.               He

found no CFA claim because the fees plaintiffs sought to recover

under the CFA were RISA fees, which were barred because defendant's

membership agreements passed muster under the HCSA.            The trial

judge did not make any findings as to the HCSA requirement the

total fees charged appear on the front of the contract.

     Class certification was denied for lack of the necessary

predominance on the issue of calculation of total fees and whether

                                      3                             A-4438-15T1
the total fees must appear on the front of every contract, as

required by the HCSA.         The trial judge concluded HCSA claims are

individual    in    nature,    not   class     based,    because    defendant's

contracts contained no common price.              Finding no individual or

class   claims,     the   trial    judge    entered     summary    judgment     for

defendant.    This appeal followed.

     Plaintiffs contend the trial judge erred in granting summary

judgment because the membership agreements violate RISA, the HCSA,

TCCWNA,     and    CFA.     They     contend    New     Jersey    favors     class

certification, and all the prerequisites to certification under

Rule 4:32-1(a) were met, as well as the requirements of independent

justification for class certification required by Rule 4:32-1(b).

Plaintiffs further contend the trial judge erred in considering

defendant's cross motion for summary judgment on short notice.

     We review the grant of summary judgment by a trial court de

novo.     Templo Fuente De Vida Corp. v. Nat'l. Union Fire Ins. Co.

of Pittsburgh, 224 N.J. 189, 199 (2016).                   We apply the same

principles governing an adjudication of a motion for summary

judgment as the trial court.               Atl. Mut. Ins. Co. v. Hillside

Bottling Co., 387 N.J. Super. 224, 230 (App. Div.), certif. denied,

189 N.J. 104 (2006). Rule 4:46-2(c) states an order granting

summary judgment shall be entered if "the pleadings, depositions,

answers to interrogatories and admissions on file, together with

                                       4                                   A-4438-15T1
the affidavits, if any, show that there is no genuine issue as to

any material fact challenged and that the moving party is entitled

to a judgment or order as a matter of law."        A fact is material

if it is substantial in nature.        See Brill v. Guardian Life Ins.

Co. of Am., 142 N.J. 520, 529 (1995).

     "A court deciding a summary judgment motion does not draw

inferences from the factual record as does the factfinder in a

trial, 'who may pick and choose inferences from the evidence to

the extent that a miscarriage of justice under the law' is not

created."   Globe Motor Co. v. Igdalev, 225 N.J. 469, 480 (2016)

(quoting Brill, supra, 142 N.J. at 536).         Rather, in reviewing

summary judgment orders, the Court must look at the facts in a

light most favorable to the non-moving party and determine whether

a genuine issue of material fact exists sufficient to be tried.

See Brill, supra, 142 N.J. at 523.

                                  I.

     Plaintiffs argue RISA covers health club contracts because

the plain language of RISA specifically states it applies to

services, including health club services.       They assert the trial

judge’s interpretation of RISA is contradictory to the finding of

our Supreme Court in Perez v. Rent-A-Center, 186 N.J. 188 (2006),

cert. denied, 549 U.S. 115, 127 S. Ct. 984, 166 L. Ed. 2d 710

(2007).

                                  5                            A-4438-15T1
       The health club contracts at issue here were twenty-month

membership contracts payable in monthly installments.          Plaintiffs

state these contracts also included various administrative and

late fees charged month-to-month for the period of the contract.

They argue defendant committed several clear violations of RISA:

charging a late fee of more than $10, N.J.S.A. 17:16C-42(a);

charging more than $20 for a returned check for insufficient funds,

N.J.S.A. 17:16C-42(e); charging more than $10 for a collection

fee,   N.J.S.A.   17:16C-42(b);    and   applying   charges   to   customer

accounts, which were not court costs, attorney fees, or the expense

to retake goods authorized by law, N.J.S.A. 17:16C-50.

       Defendant argues RISA does not apply to their membership

agreements and Perez controls because the entire premise of the

installment sales contract contemplated by RISA is possession and

eventual ownership of a specified good by a buyer.                 Defendant

argues plaintiffs were not paying to eventually own but to utilize

the gym's facilities and equipment, and, thus, the RISA claim was

properly dismissed.    We agree.

       RISA defines a retail installment contact as:

           [A]ny contract, other than a retail charge
           account or an instrument reflecting a sale
           pursuant thereto, entered into in this State
           between a retail seller and a retail buyer
           evidencing an agreement to pay the retail
           purchase price of goods or services, which are
           primarily for personal, family or household

                                    6                                A-4438-15T1
            purposes, or any part thereof, in two or more
            installments over a period of time. This term
            includes   a   security   agreement,   chattel
            mortgage, conditional sales contract, or other
            similar instrument and any contract for the
            bailment or leasing of goods by which the
            bailee or lessee agrees to pay as compensation
            a sum substantially equivalent to or in excess
            of the value of the goods, and by which it is
            agreed that the bailee or lessee is bound to
            become, or has the option of becoming, the
            owner of such goods upon full compliance with
            the terms of such retail installment contract.

            [N.J.S.A. 17:16C-1(b).]

     The term "'[s]ervices' means and includes work, labor and

services,   professional    and   otherwise   which    are   primarily   for

personal,   family   or   household   purposes   but   does   not   include

services which are subject to the 'Home Repair Financing Act,' and

insurance premiums financing which is subject to the 'Insurance

Premium Finance Company Act.'"        N.J.S.A. 17:16C-1(s).

     In Perez, the Court stated:

            In enacting RISA, the stated legislative
            purpose was protection of the public interest
            through   the   regulation  of   the   charges
            associated with the time sale of goods. By
            including     conditional    sales,    chattel
            mortgages, security interests, leases, and
            similar instruments within RISA's protective
            ambit, the Legislature signaled that it
            intended to sweep into the Act as many cognate
            agreements as possible, even those that did
            not strictly fall within a denominated
            category. That broad mandate, along with the
            well-established     notion   that    remedial
            statutes like RISA should be liberally
            construed to achieve their salutary aims,

                                      7                             A-4438-15T1
          require questions regarding the applicability
          of the statute to be resolved in favor of
          consumers for whose protection RISA was
          enacted.

          [Perez, supra, 186 N.J. at 209      (citations
          omitted).]

     The thrust of RISA is to "protect consumers from themselves

and rapacious sellers." See id. at 218.      Thus, the Legislature

aimed to protect the public interest regarding the sale of goods.

See id. at 209.

     Although the Perez Court stated RISA should be construed

broadly, the statute itself refers to the following categories:

"security agreement, chattel mortgage, conditional sales contract

or other similar instrument."    N.J.S.A. 17:16C-1(b).   We fail to

see how a health club membership agreement is similar to any of

the enumerated instruments.     Health club members are not in the

category of consumers RISA is designed to protect, because these

contracts do not involve the sale of goods.     For these reasons,

the trial judge's determination RISA does not apply is affirmed.

Also, because it is undisputed plaintiffs' CFA claim is contingent

upon its RISA claim, the trial judge’s summary judgment dismissal

of the CFA claim is affirmed as well.

                                 II.

     Plaintiffs assert defendant's exculpatory clause is the type

of overly broad contract barred by TCCWNA.   Plaintiffs argue their

                                  8                         A-4438-15T1
TCCWNA claims should have survived summary judgment because in

Bosland v. Warnock Dodge, Inc., 197 N.J. 543, (2009), the Supreme

Court held TCCWNA "prohibits any provision in a consumer contract

requiring a customer to waive his or her rights under the Act."

They assert the Bosland Court stated TCCWNA "should be broadly

construed in favor of consumers," and, thus, TCCWNA prohibits

broad    exculpatory    clauses    of    the    type    found   in   defendant's

membership contract.

     Plaintiffs     assert   the    trial       judge    incorrectly    applied

Stelluti v. Casapenn Enterprises, LLC, 203 N.J. 286 (2010),                where

the Supreme Court upheld the validity of limited liability waivers

for injuries suffered while exercising at a health club.                      They

argue the holding in Stelluti was narrow and specific to "injuries

sustained as a matter of negligence that result from a patron's

voluntary    use   of   equipment       and    participation    in   instructed

activity."    See id. at 313.      Plaintiffs cite Walters v. YMCA, 437

N.J. Super. 111, 120 (App. Div. 2014), where we considered a waiver

in the context of a slip and fall case at a gym, and held when a

"defendant seeks to shield itself from all civil liability, based

on   a    one-sided     contractual          arrangement    that     offers     no

countervailing or redeeming societal value[,] [s]uch a contract

must be declared unenforceable as against public policy."



                                         9                               A-4438-15T1
     Defendant   refutes   plaintiffs'   broad      reading   of   Walters.

Rather,   defendant   contends   the   court   in   Walters   stated     the

enforceability of an exculpatory clause in a health club membership

contract must be decided on a case-by-case basis.

     Our review begins with the statute itself.         TCCWNA states:

           No consumer contract, warranty, notice or
           sign, as provided for in this act, shall
           contain any provision by which the consumer
           waives his rights under this act. Any such
           provision shall be null and void. No consumer
           contract, notice or sign shall state that any
           of its provisions is or may be void,
           unenforceable   or    inapplicable   in   some
           jurisdictions    without    specifying   which
           provisions are or are not void, unenforceable
           or inapplicable within the State of New
           Jersey; provided, however, that this shall not
           apply to warranties.

           [N.J.S.A. 56:12-16.]

     Stelluti and Walters address the validity of exculpatory

clauses in health club contracts.      In Stelluti, the Court stated:

           In sum, the standard we apply here places in
           fair and proper balance the respective public-
           policy interests in permitting parties to
           freely contract in this context (i.e. private
           fitness center memberships) and requires
           private gyms and fitness centers to adhere to
           a standard of conduct in respect of their
           business. Specifically, we hold such business
           owners to a standard of care congruent with
           the nature of their business, which is to make
           available the specialized equipment and
           facility to their invitees who are there to
           exercise, train, and to push their physical
           limits.   That is, we impose a duty not to
           engage in reckless or gross negligence.     We

                                  10                                A-4438-15T1
         glean such prohibition as a fair sharing of
         risk in this setting, which is also consistent
         with    the    analogous    assumption-of-risk
         approach used by the Legislature to allocate
         risks in other recreational settings with
         limited    retained-liability    imposed    on
         operators.

         [Stelluti, supra, 203 N.J. at 312-13.]

The ruling in Stelluti was expressly premised on the fact the

plaintiff there was engaging in the type of strenuous physical

activity normally undertaken at a gym, creating an inherent risk

of injury.

    In Walters, we addressed whether an exculpatory clause was

proper where an injury at a health club facility occurred not as

a result of engaging in the type of strenuous activity creating

an inherent risk, but as the result of ordinary negligence.

Walters, supra, 437 N.J. Super. at 111.     We applied the same

standard as the Supreme Court in Stelluti, noting an exculpatory

agreement:

         [I]s enforceable only if: (1) it does not
         adversely affect the public interest; (2) the
         exculpated party is not under a legal duty to
         perform; (3) it does not involve a public
         utility or common carrier; or (4) the contract
         does not grow out of unequal bargaining power
         or is otherwise unconscionable.

         [Id. at 117-18 (quoting Stelluti, supra, 203
         N.J. at 298).]




                              11                          A-4438-15T1
We held the exculpatory clause at issue was unenforceable as

against public policy because it "eviscerated" the health club's

ordinary duty of care by shielding it from injuries occurring

while patrons utilize its equipment and also immunized the health

club from liability for any injury occurring on its premises, even

those having nothing to do with exercise.   Id. at 118-20.

     Here, defendant's exculpatory clause states:

          I/we accept full responsibility for my/our use
          of any and all apparatus, appliance, facility,
          privilege, or service, whatsoever, owned and
          operated by FF/AFC, or while engaging in any
          contest, games function, exercise, either on
          or off the FF/AFC premises, and shall do so
          at my/out own risk and shall hold FF/AFC, it’s
          owners, partners, shareholders, directors,
          officers, employees, representatives, agents
          and/or affiliated companies, harmless from any
          and all loss, claim, injury, damage or
          liability sustained or incurred by me/us,
          resulting from any act or omission of any
          owner,   partner,    shareholder,   directors,
          officers, employees, representatives, agents
          and/or affiliated companies hereunder in
          respect of any such loss, cost, claim injury,
          damage or liability sustained or incurred by
          using FF/AFC’s services and facilitates.

     Plaintiffs' challenges to this exculpatory clause are not for

injuries suffered at a health club as in Stelluti and Walters.

Rather, plaintiffs argue the mere existence of the clause violates

TCWWNA because it exculpates defendant from the type of liability

barred in Walters and Stelluti.     TCWWNA mandates no "business

offer to any consumer or prospective consumer or enter into any

                               12                            A-4438-15T1
written consumer contract or give or display any written consumer

warranty, notice or sign after the effective date of this act

which includes any provision that violates any clearly established

legal right. . . ."           N.J.S.A. 56:12-15.    TCWWNA prohibits any

contract from requiring a party to sign away a clearly established

right.       See N.J.S.A. 56:12-16.

       The    language   in   defendant's    exculpatory   clause   is   more

analogous to the exculpatory clause in Stelluti.           However, unlike

Stelluti, it does not contain any waiver for slip and fall type

incidents, which we barred in Walters.           See Walters, supra, 437

N.J. Super. at 115.       Therefore, defendant's exculpatory clause is

facially enforceable, because it neither broadly waives exercise-

related injuries, nor negates defendant’s ordinary duty of care,

which may not be waived as contrary to public policy.           See id. at

113.     For these reasons, the trial judge's determination of the

waiver issue is affirmed.

                                      III.

       Plaintiffs contend the trial judge did not state his reasoning

for dismissal of the HCSA claims.              They state the membership

agreements at issue did not include the total payment obligation

on the first page of the membership agreement as required by the

HCSA.    See N.J.S.A. 56:8-42(b).       Thus, plaintiffs argue dismissal

of this claim was improper.

                                      13                             A-4438-15T1
      In opposition, defendant points out the form of the contracts

at issue was subject to review by the Attorney General, who did

not   find    any   violations.    Defendant   also   notes   plaintiffs'

contracts contained the total payment information on the first

page of the document.

      The HCSA states,

             A   health  club   services   contract   shall
             specifically set forth in a conspicuous manner
             on the first page of the contract the buyer's
             total payment obligation for health club
             services to be received pursuant to the
             contract.

             [N.J.S.A. 56:8-42.]

      The record reveals the trial judge did not make any findings

about the display of the total membership cost on the front page

of the agreement as required by N.J.S.A. 56:8-42.              Therefore,

pursuant to Rule 2:10-5 we elect to exercise original jurisdiction

to adjudicate this issue.     As stated by our Supreme Court,

             [r]esort    to   original    jurisdiction   is
             particularly appropriate to avoid unnecessary
             further litigation, as where the record is
             adequate to terminate the dispute and no
             further    fact-finding   or    administrative
             expertise or discretion is involved, and thus
             a remand would be pointless because the issue
             to be decided is one of law and implicates the
             public interest.

             [Price v. Himeji, LLC, 214 N.J. 263, 294
             (2013) (citing Vas v. Roberts, 418 N.J. Super.
             509, 523-24 (App. Div. 2011) (alteration in
             original)).]

                                    14                            A-4438-15T1
     Here,     the    record    reveals      plaintiffs'         health    membership

agreements contained the total amount owed on a monthly basis on

the first page of their contracts.                 For these reasons, summary

judgment as to this issue is proper.1

     Because we have found plaintiffs do not have any viable

claims,   we   do    not   reach    the   issue     of     the    denial    of     class

certification.       We also decline to address plaintiffs' claim the

trial judge improperly considered defendant's cross-motion on

short notice.         The transcript demonstrates, by virtue of an

adjournment the trial judge granted, plaintiffs had sufficient

time to respond and did not seek permission to file a sur-reply.

Furthermore,    the    record      reveals    at    oral    argument       plaintiffs

requested more time to file a statement of material facts, but

failed to argue which facts were in dispute beyond the facts

already before the trial judge to necessitate an additional filing.

Likewise, we do not address plaintiffs' TCCWNA claims derived from

RISA, the CFA, and HSCA, because we have found these claims are

not independently viable.

     Affirmed.




1
     We note here appellants' motion to supplement the record on
appeal is denied.

                                       15                                        A-4438-15T1
