JOHN MICHAEL VAZQUEZ, District Judge.
Plaintiff is an automobile finance company "that offers indirect new and used vehicle financing through an extensive network of [d]ealers." Plaintiff's Statement of Undisputed Material Facts ("PSOMF") ¶ 1 [D.E. 55]. Defendant is a New Jersey corporation located in Westwood, New Jersey "that indirectly sells and leases automobiles" and was a dealer in TDAF's network. Id. in 2-3. From approximately June 4, 2012 to January 2, 2013, Cinema "participated in the TDAF Retail Installment Contract and Lease Program" which was governed by the Retail Installment Contract and Lease Program Agreement (the "Program Agreement"). Id. ¶¶ 3-4. As such, Cinema "originate[d] motor vehicle retail installment contracts" ("RICs")
Some of the RICs TDAF purchased from Cinema indicated that individual purchasers bought additional insurance coverages, including service contracts and GAP plans, at the time of the vehicle purchase. Declaration of William L. Reid III in Support of Plaintiff [TDAF]'s Motion for Partial Summary Judgment ("Reid Decl.") ¶¶ 19-20 [D.E. 57]. A service contract is an extra insurance or warranty that "covers the costs associated with vehicle repair, including parts, labor, and/or sales tax, for certain repairs or replacements[.]" Id. ¶ 17. A GAP plan is another type of insurance that "pay[s]-off any deficiency between amounts paid for collision coverage and owed on financing in the event a vehicle is declared a total loss." Id. ¶ 18.
The Program Agreement, which was executed by the parties on June 4, 2012 and governed by New Jersey law, set forth the terms under which TDAF would purchase RICS from Cinema. PSOMF ¶¶ 4-5, 13. Pursuant to the Program Agreement, Cinema agreed to a number of representations and warranties regarding each RIC that was purchased by TDAF. The representations and warranties relevant to this motion include the following:
PSOMF ¶¶ 6-9. The Purchase Agreement also set forth the remedies available to TDAF if Cinema breached the contract. The parties agreed that in the event of a material breach, Cinema must immediately satisfy its guaranty and indemnity obligation, or alternatively, repurchase each affected RIC. Id. ¶¶ 11-12. The Purchase Agreement also establishes that TDAF is entitled to recover reasonable attorneys' fees and costs associated with enforcing the terms of the Program Agreement. Id. ¶ 13.
Six months after the parties executed the Program Agreement, "the New York Department of Motor Vehicles notified TDAF that an individual attempted to use fraudulent documents to register and obtain a license plate for a vehicle relating to a RIC that Cinema [] sold to TDAF."
Cinema contends that all of the Schedule A RICs had the required service contracts arid GAP plans in place. Although Cinema did not provide TDAF with the underlying service contracts or GAP plan agreements, it did give TDAF "warranty declaration pages" for each of the service contracts and GAP plans at issue in Schedule A. Cinema alleges that these declaration pages demonstrate that the coverages were actually in place. Statement of Undisputed Facts of [Cinema] in Support of Cross-Motion for Partial Summary Judgment ("DSOMF") ¶¶ 5, 10 [D.E. 69]. In addition, Cinema alleges that TDAF has not suffered any damages relating to the Schedule A RICs because the vehicles are either paid in full or the purchaser is making timely payments. Id. ¶¶ 13-14, 16-17.
TDAF and Cinema had multiple meetings to discuss the audit findings. On March 27, 2013, TDAF requested that Cinema provide evidence of the service contract and GAP coverage at issue "in a form satisfactory to [TDAF] in [TDAF's] sole discretion," or repurchase all the RICs at issue. PSOMF ¶¶ 29-30, 32, 35. Cinema did not repurchase any of the RICs and failed to provide evidence that was satisfactory to TDAF. Id. ¶¶ 36-41.
TDAF subsequently filed this lawsuit on July 10, 2013. TDAF's complaint asserts two breach of contract claims for the Schedule A and B RICs, due to Cinema's failure to obtain the service contract and GAP plan coverage as represented in the RICs, as well as a third breach of contract claim for the Schedule C RICs due to the false or misleading information contained in the RICs. TDAF also asserted claims for promissory estoppel and unjust enrichment. See Complaint [D.E. 1]. During discovery, Cinema failed to produce any underlying contracts for the allegedly missing coverages. Cinema did, however, produce service contract and GAP plan "declaration pages." DSOMF ¶¶ 5-6, 10. Cinema contends that these declaration pages establish that the additional coverages existed for the Schedule A and B RICs. Id. Cinema also contends that it "self-insured" the service contracts and a company called After Market Sales Are Profitable ("After Market") was the warranty administrator. DSOMF ¶¶ 6-7; Declaration of Joe F. Irizarry ("Irizarry Decl.") ¶ 15 [D.E. 61-4]. Cinema insists that GAP coverage was provided by one of four unnamed coverage providers. Irizarry Decl. ¶ 19.
Cinema's current representation that it self-insured the service contracts and used four unnamed companies to provide the GAP plans, however, is not the first or even second explanation as to how it provided the coverage. On April 12, 2013, Cinema represented that the required service contracts were provided by Auto Source of Toms River and that the GAP plans were provided by GMACI Advantage Programs. PSOMF ¶ 36. Instead of providing TDAF with documentation to confirm this statement, Cinema "suggest[ed] that a representative of [TDAF] contact the representative ... for each of the entities" to confirm that the required coverages exist. Reid Decl. Ex. J. When TDAF contacted the two entities, it was unable to ascertain whether the coverage was in place. PSOMF ¶ 39.
Cinema continued to provide inconsistent information and limited documentary support during discovery. In response to TDAF's first set of interrogatories, Cinema stated that coverage was provided by entirely different entities than it had first represented: the service contracts were provided by After Market and Auto Source of America, while the GAP policies were purchased through Gap Care Advantage and American Heritage Insurance Services. Id. ¶ 45.
During his deposition, Guy J. Camazza, the president of Cinema, testified that Cinema provides and self-insures the service contracts — which is Cinema's current position. Camazza further testified that despite self-insuring the service contracts, Cinema does not keep reserves for service contract costs. Carnazza testified that instead Cinema draws from its operating budget for service contract costs. Carnazza Dep. 80:1-15 [D.E. 66]. But again, Cinema failed to provide any evidence to substantiate its claim of self-insurance or, for that matter, to explain why it had made two different representations in the past. As for the GAP plans, Cinema's current position is that "coverage was placed through one of four coverage providers that [Cinema] used at the time." Irizarry Decl. ¶ 19.
TDAF now seeks summary judgment pursuant to Federal Rule of Civil Procedure 56 for its three breach of contract claims. D.E. 54. In terms of relief, TDAF wants Cinema to repurchase the Schedule A RICs for the outstanding amount due as well as pay monetary damages regarding the Schedule B and C RICs. See Plf's Br at 21-22 [D.E. 56]. TDAF also seeks attorneys' fees and costs pursuant to the Purchase Agreement. Id. at 34-35. Cinema filed a brief opposing TDAF's motion and also filed a cross-motion for summary judgment. Cinema, however, does not seek summary judgment as to any of TDAF's counts. Instead, Cinema requests summary judgement as to vehicles relevant to TDAF's claims. [D.E. 61-62]. Through its cross-motion, Cinema "seeks an Order dismissing the vehicles which have been paid in full and an Order dismiss[ing] the vehicles which are . . . in a current [payment] status." Def's Br. at 6. Cinema also seeks an order dismissing the vehicles that TDAF alleges are missing service contracts or GAP coverage because it provided evidence of the applicable coverage. Id. at 5-6.
A moving party is entitled to summary judgment where "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). A fact in dispute is material when it "might affect the outcome of the suit under the governing law" and is genuine "if the evidence is such that a reasonable jury could return a verdict for the non-moving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Disputes over irrelevant or unnecessary facts will not preclude granting a motion for summary judgment. Id. "In considering a motion for summary judgment, a district court may not make credibility determinations or engage in any weighing of the evidence; instead, the non-moving party's evidence `is to be believed and all justifiable inferences are to be drawn in his favor.'" Marino v. Indus. Crating Co., 358 F.3d 241, 247 (3d Cir. 2004) (quoting Anderson, 477 U.S. at 255)). A court's role in deciding a motion for summary judgment is not to evaluate the evidence and decide the truth of the matter but rather "to determine whether there is a genuine issue for trial." Anderson, 477 U.S. at 249.
A party moving for summary judgment has the initial burden of showing the basis for its motion and must demonstrate that there is an absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). After the moving party adequately supports its motion, the burden shifts to the nonmoving party to "go beyond the pleadings and by her own affidavits, or by the depositions, answers to interrogatories, and admissions on file, designate specific facts showing that there is a genuine issue for trial." Id. at 324 (internal quotation marks omitted). To withstand a properly supported motion for summary judgment, the nonmoving party must identify specific facts and affirmative evidence that contradict the moving party. Anderson, 477 U.S. at 250. "[E]f the non-movant's evidence is merely `colorable' or is `not significantly probative,' the court may grant summary judgment." Messa v. Omaha Prop. & Cas. Ins. Co., 122 F.Supp.2d 523, 528 (D.N.J. 2000) (quoting Anderson, 477 U.S. at 249-50)).
Ultimately, there is "no genuine issue as to any material fact" if a party "fails to make a showing sufficient to establish the existence of an element essential to that party's case." Celotex Corp., 477 U.S. at 322. "If reasonable minds could differ as to the import of the evidence," however, summary judgment is not appropriate. See Anderson, 477 U.S. at 250-51.
The parties agree that the Program Agreement is governed by New Jersey law. See PSOMF ¶ 13. To establish a breach of contract under New Jersey law, "a plaintiff has the burden to show that the parties entered into a valid contract, that the defendant failed to perform his obligations under the contract and that the plaintiff sustained damages as a result." Murphy v. Implicito, 392 N.J.Super. 245, 265 (App. Div. 2007). There is no dispute that the parties entered into the Program Agreement, a valid and unambiguous contract.
TDAF argues that through the Program Agreement, Cinema "represented and warranted that customers charged for coverages . . . under the RICs being sold, actually received the coverages." Plfs Br. at 24-25. TDAF asserts that Cinema breached the Program Agreement because it sold RICs that indicated that a service contract and/or GAP plan was in place when, in fact, there was no such coverage. Plf's Br. at 24-25, 31. Cinema counters that TDAF's allegation "is contrary to the evidence contained in the record." Defs Br. at 9. Specifically, Cinema argues that "the warranty declaration pages . . ., the declaration of Joe F. Irizarry, and the testimony of Robert Marchionni . . . establish that the service warranties were in place," and GAP coverage existed. Id. at 10. This evidence, however, fails to establish or create a genuine issue of material fact that Cinema provided the service contracts or GAP coverage as represented.
Irizarry, the Business Manager at Cinema, first states that the service warranties were provided by After Market. Irizarry Decl. ¶¶ 4, 14. Marchionni, the owner of After Market, however, testified that After Market does not provide service contracts for vehicles purchased through Cinema. Marchionni testified that After Market is only involved after a claim for service is made and that its sole role is to adjudicate claims. DSOMF ¶ 7; see also Irizarry Decl. ¶ 16 ("In the event of a mechanical problem with a covered vehicle, Mr. Marchionni as the warranty administrator makes the determination if the repair is a covered item. If the determination is made that the repair is covered, [Cinema] is then obligated to have the repair made at its own cost."). Irizarry claims that Cinema is self-insured and After Market is the warranty administrator. Irizarry Decl. ¶ 15; see also Carnazza Dep. 80:1-15 (stating that Cinema self-insures the service contracts). Yet, this statement is internally inconsistent with the prior paragraph in Irizarry's declaration, and Cinema fails to produce any evidence to substantiate its assertion that it self-insures the service contracts. As for the alleged lapse in GAP coverage, Irizarry states that "GAP coverage was placed through one of four coverage providers that [Cinema] used at the time." Irizarry Decl. ¶ 19. Neither Irizarry nor Cinema, however, provide any other information, such as the names of the four coverage providers, much less documents reflecting the coverage.
Irizarry also states that the warranty declaration pages correspond with each of the vehicles at issue in Schedule A, B, and C. Id. ¶¶ 14, 18. As discussed, Cinema contends that these declaration pages establish that the coverages existed. DSOMF ¶¶ 5, 10. The warranty declaration pages, however, fail to substantiate Cinema's assertion that it actually provided service contracts and GAP coverage.
Moreover, the warranty declaration pages do not establish that Cinema self-insured the service contracts or that GAP coverage was provided by four (unidentified) providers. First, one of the warranty declaration pages is titled "Contract Application" and is from GWC Warranty, a company that Cinema has never mentioned before. See Irizarry Decl. at 15. Cinema fails to provide any additional evidence to establish whether the application was approved or even submitted. In addition, three of the warranty declaration pages that allegedly demonstrate that GAP coverage existed discuss an extended service plan and do not mention GAP coverage. Id. at 54-57. Moreover, these three declaration pages are from Autosource, a company that Cinema previously told TDAF it used for service contracts before Cinema took its current position, i.e. that it self-insures. PSOMF 1136. Cinema also provided two Autosource declaration pages and one from AUL Administrators
Consequently, the Court concludes that Cinema fails to present a genuine issue of material fact contradicting TDAF's proof that Cinema failed to provide the service contracts and GAP coverage as was represented in the RICs. Because Cinema represented in the Program Agreement that it would provide such coverage (PSOMF ¶¶ 6, 9), this failure constitutes a breach of the Program Agreement and no genuine issue of material facts exists to the contrary. Thus, as to Counts I and II, TDAF is entitled to summary judgment regarding liability.
TDAF argues that it "bargained to receive RICs that were complete, accurate and not misleading." Plf's Br. at 25. When TDAF purchased RICs that did not actually have the service contracts and/or GAP plans as indicated, TDAF did not receive the benefit of its bargain. Id. As a result, TDAF argues that pursuant to the plain terms of the Purchase Agreement, Cinema must repurchase the Schedule A RICs and indemnify it for losses related to the Schedule B RICs. Id. at 26, 31.
Cinema argues that TDAF did not incur any damages because fifteen vehicles are fully paid off and twelve vehicles are in current payment status. Def's Br. at 6. At the outset, TDAF is not seeking to recover damages for vehicles that have been paid in full and did not include any such vehicles in Schedule A. Response to DSOMF ¶ 11; compare Lodato Decl. Ex. A-V (deposition excerpts addressing accounts that are paid in full), with Reid Decl. Exs. C (providing list of Schedule A account numbers). In addition, whether vehicle purchasers are in current payment status does not impact TDAF's claim for relief. Service contracts and GAP plans affect the overall purchase price of a RIC and increase the amount of financing that TDAF indirectly provided. Plf's Br. at 25. In other words, TDAF paid more to purchase RICs that included a service contract and/or GAP coverage. Consequently, "TDAF suffered damages as a result of Cinema[`s] breach of the Program Agreement because it was providing financing for [s]ervice [c]ontracts and GAP [p]lans that did not exist." Response to DSOMF ¶ 17. Cinema fails to provide any evidence that genuinely and materially counters TDAF's argument that it was damaged when it paid a premium for the RICs that supposedly contained the additional coverage.
TDAF seeks specific performance requiring that Cinema repurchase the Schedule A RICs because the parties expressly agreed to the right of repurchase if a material breach occurred. As a result, TDAF argues that Cinema should be ordered to repurchase the RICs for $751,629.46, which is the outstanding amount due and owing to TDAF. Plf's Br. at 26-30. Cinema argues that specific performance is not appropriate and compelling it to repurchase the RICs at issue "would result in extreme prejudice." Ders Br. at 12.
Under New Jersey law, "[s]pecific performance is not an automatic remedy for a breach of contract, but rather a matter within the trial court's discretion which must be exercised on the basis of equitable considerations." Ballantvne House Assocs. v. City of Newark, 269 N.J.Super. 322, 334 (App. Div. 1993) (citing Barry M. Dechtnzan, Inc. v. Sidpaul Corp., 89 N.J. 547, 551-52 (1963)). A party seeking specific performance must establish the legal right to such relief by showing that: (1) the contract at issue is valid and enforceable; (2) the terms of the contract are clear, such that the court can determine with reasonable certainty, "the duties of each party and the conditions under which performance is due;" and (3) an order compelling performance would not be "harsh or oppressive." Marioni v. 94 Broadway, Inc., 374 N.J.Super. 588, 598-99 (App. Div. 2005) (internal citations omitted).
A court should not award specific performance based on the mere showing of the right to such relief. Instead, it must "examine the facts, circumstances, and incidents underlying the parties' dispute to determine whether and how to fashion relief that serves the equities." Textron Fin.-N.J. Inc. v. Herring Land Grp., LLC, No. 06-2585, 2012 WL 1079613, at * 19 (D.N.J. Mar. 30, 2012). This consideration "may modify the relief sought or, perhaps, entirely prevent its exercise." Id. (quoting Marioni, 374 N.J. Super. at 599). Consequently, when considering these equitable factors, the court must also (1) "appraise the respective conduct and situation of the parties;" (2) consider the clarity of the agreement; and (3) determine "the impact of an order compelling performance, that is, whether such an order is harsh or oppressive to the defendant or whether a denial of specific performance leaves plaintiff with an adequate remedy." Marioni, 374 N.J. Super. at 600 (internal citations omitted). In short, there must be "a conscious attempt on the part of the court of equity to render complete justice to both parties." Id. Further, a court "will often direct performance of such a contract because, when there is no excuse for the failure to perform, equity regards and treats as done what, in good conscience, ought to be done." Id. at 600-01.
The Program Agreement provides that "should any representation or warranty made hereunder . . . prove to be false or incorrect in any material respect, [TDAF] shall have the right to insist that [Cinema] immediately pay and satisfy [TDAF's] guaranty and indemnity obligations under this Agreement, or alternatively to repurchase each affected [RIC]." PSOMF ¶ 11. In addition, "[Cinema] agrees to guarantee payment in full of, or alternatively to repurchase, each [RIC] that is affected or may be affected by [TDAF'S] failure to perform its obligations under this Agreement, or by a material breach of any of [TDAF'S] representations or warranties as provided herein." Reid Decl. Ex. A at 6. As discussed, there is no dispute that the Program Agreement is valid, enforceable and clear. In addition, the Program Agreement provides TDAF with alternatives as to the form of relief available to it upon a breach. "Alternative" is defined as "offering or expressing a choice." Mirriam-Webster's Online Dictionary, http:', www.merriamwebster.com/dictionary/alternative (last visited December 13, 2016). Thus, TDAF has the clear right to choose between enforcing Cinema's indemnity obligations and the repurchase option. Consequently, TDAF's request that Cinema should be ordered to repurchase the Schedule A RICs is consistent with its rights under the Program Agreement.
Cinema argues that repurchase is not an appropriate remedy because the additional coverages it failed to provide "are not essential to the contract."
Cinema also appears to argue that specific performance is unequitable under the facts at hand. Def's Br. at 12. Cinema alleges that specific performance would be oppressive because TDAF failed to commence actions against defaulting customers to collect any deficiencies. Def's Br. at 12. This approach however, does not take into account the premiums paid by TDAF when purchasing RICs that it believed had the necessary coverage for the additional insurance. Moreover, there is nothing in the Purchase Agreement indicating that TDAF should or must seek relief from the customers. To the contrary, the Purchase Agreement makes clear that TDAF's remedy lies with Cinema. Finally, the suggested approach fails to account for the additional costs TDAF would have to incur, including potential litigation, if TDAF chose to seek relief from the customers. In fact, the customers may have a valid defense to any such action if he she could show that they never sought or purchased the additional coverage or if they paid for an additional coverage that was never actually provided.
Further, it is unlikely that Cinema will suffer any material damage or harm in repurchasing the Schedule A RICs. Cinema can continue to collect payments from vehicle purchasers; Cinema itself even admits that twelve vehicles at issue are in current payment status. DSOMF ¶ 14. If these purchasers continue to make timely payments, the only risk Cinema faces is if a situation arises in which service and/or GAP coverage is needed. This risk, however, is entirely of Cinema's own doing because it falsely represented that such coverage existed so it should be forced to bear the risk itself. In addition, as it alleges TDAF should have done, Cinema can commence actions against defaulting customers if it so chooses. Consequently, the Court concludes that requiring Cinema to repurchase the Schedule A RICs is not harsh or oppressive.
As a result, the Court will order Cinema to repurchase the Schedule A RICs at their current value, i.e. the value in light of the payments TDAF has received to date.
Schedule B includes two RICS that did not have the represented GAP coverage. After the vehicles were declared totaled, the insurance payments were insufficient to cover the amount still owed to TDAF. PSOMF ¶ 24. "As a result, and in absence of the valid GAP [p]lans that were represented to be in place, TDAF was unable to collect the balance due on its financing after insurance covered the losses." Plf's Br. at 31. TDAF claims that the Program Agreement requires Cinema to indemnify TDAF for its losses, that is, 59,434.52.
Although Cinema denies that TDAF suffered damages as a result of the missing GAP coverage, it does not provide any genuine and material evidence contradicting TDAF's statement that there are outstanding balances for the Schedule B RICs. Cinema alleges that TDAF representative William Butterfield testified that a GAP coverage payment was pending for one vehicle.
As discussed, the Program Agreement requires Cinema to indemnify TDAF for losses that result from a breach of the Agreement.
TDAF also seeks summary judgment as to Count III, which alleges that Cinema sold two RICs that contained information that was "untrue, incomplete and inaccurate." Plf's Br. at 32. TDAF alleges that in one RIC "the credit application furnished to TDAF was not true, complete and correct." PSOMF ¶ 53. Specifically, TDAF alleges that the RIC and the related credit application listed different employers and income, and that the vehicle trade listed in the RIC never occurred. Id. The second RIC in Schedule C relates to the Porsche Panamera discussed in note 3. TDAF states that Cinema acknowledged the "[identity] theft deal and accepts responsibility." Id. TDAF argues that by selling these RICs, Cinema breached multiple representations in the Program Agreement. Plf's Br. at 32. Cinema acknowledges the one instance of identity fraud as to the Porsche Panamera but otherwise denies that it breached the Program Agreement as to the Schedule C RICs. Des Br. at 4-5. Cinema denies having any knowledge of fraudulent conduct or that it "facilitated the financing of any motor vehicle knowing that the information being provided by the customer was not truthful, accurate and complete." Id.
Again, there is no dispute that the parties entered into a valid, unambiguous contract through which Cinema represented that each vehicle purchaser "is a bona fide individual," and that "the Customer has accurately represented his or her identity and all other relevant information on the Contract, the credit application and all other documents and the Customer has not misappropriated the identity or information of another individual." PSOMF ¶ 6.
Cinema argues that it did not breach the Program Agreement because the ultimate decision of whether to grant or deny credit information was made by TDAF. Des Br. at 5. Even if this is true, it in no way affects Cinema's obligation pursuant to the Program Agreement. Cinema also appears to argue that it did not breach the Program Agreement for the RIC associated with the Porsche Panamera because it terminated the sales representative who was involved with the transaction. Id. at 4. Cinema further states that after the vehicle was recovered by law enforcement, Hartford Insurance Company took possession of the car. Id. The Court is at a loss as to how these facts are relevant or negate Cinema's obligations under the Program Agreement. Cinema represented that each vehicle purchaser was a bona fide individual and that the customer information in each RIC was truthful and accurate. PSOMF ¶ 6. Cinema fails to provide any evidence by which a reasonable jury could conclude that this did not occur with the Schedule C RICs. Therefore, Cinema breached the Program Agreement.
TDAF also established that it was damaged by this breach because there are outstanding balances for both Schedule C RICs. PSOMF ¶ 56. As discussed, the Program Agreement requires Cinema to indemnify TDAF for losses that result from a breach of the Agreement. Again, Cinema presented no evidence creating a genuine issue of material fact as to the damages TDAF suffered. Consequently, the Court will grant summary judgment for Count [II of the complaint and will enter judgment in the amount of $154,093.81.
Cinema filed a cross-motion for summary judgment requesting that the Court dismiss multiple RICs, not counts, from this matter. Cinema argues that the Schedule A RICs that were allegedly missing service contracts be dismissed because the warranty declaration pages establish that the coverage existed and "there has been no damage as to TDAF." Des Br. at 6. Cinema also argues that it provided evidence that GAP coverage existed, so seeks an order dismissing the RICS that were allegedly missing this coverage "as there has been no damage to TDAF." Id. Last, Cinema seeks for the Court to dismiss the RICs in which the vehicles have been paid in full and those in which payments are current "as TDAF has sustained no damages for any of those vehicles." Id.
Cinema's arguments are addressed above in connection with TDAF's motion. In sum, Cinema fails to establish, or create a genuine issue of material fact, that the service contracts and GAP coverage existed, or that TDAF did not suffer damages as a result of Cinema's breach of the Program Agreement. In addition, the vehicles that are paid in full are not part of this litigation and whether vehicle purchasers make timely car payments is irrelevant. Consequently, Defendant's cross-motion for summary judgment is denied.
TDAF also argues that it is entitled to reasonable attorneys' fees and costs pursuant to the express terms of the Program Agreement. [Ifs Br. at 34-35. Although New Jersey law generally disfavors fee-shifting, "a prevailing party can recover [attorneys'] fees if they are expressly provided for by statute, court rule, or contract." Packard-Baniberger & Co., Inc. v. Collier., 167 N.J. 427, 440 (2001). When a contract provides for fee shifting, the applicable contractual provision "should be strictly construed in light of our general policy disfavoring the award of attorneys' fees." Litton Indus., Inc. v. IMO Indus., Inc., 200 N.J. 372, 385 (2009). Here, the Program Agreement expressly states that if TDAF is required to retain an attorney to protect its rights under the contract, it would be entitled to recover reasonable attorneys' fees and costs associated with enforcing the terms of the Agreement. PSOMF ¶ 13. Cinema offers no facts, law, or argument to counter TDAF's position. TDAF is the prevailing party and is protecting its rights pursuant to the Program Agreement. Consequently, TDAF is entitled to an award of reasonable attorneys' fee and costs incurred in connection with this action. The Court will grant summary judgment and enter judgment in favor of Plaintiff for an award of reasonable attorneys' fees and costs.
For the foregoing reasons and for good cause shown Plaintiff's Motion for Partial Summary Judgment (D.E. 54) is
