Opinion
DOCKET NO. A-2005-13T1
03-08-2016
STEVEN D'AGOSTINO, Plaintiff-Appellant, v. APPLIANCES BUY PHONE, INC., STEVEN SIGMAN, CHERYL SIGMAN, and GOOGLE CORPORATION, Defendants-Respondents.
Steven D'Agostino, appellant, argued the cause pro se. Susan A. Lawless argued the cause for respondents Appliances Buy Phone, Inc., and Steven Sigman (Purcell, Mulcahy, Hawkins, Flanagan & Lawless, LLC, attorneys; Ms. Lawless, of counsel and on the brief; Alyssa K. Weinstein, on the brief). Barry Werbin (Herrick, Feinstein, LLP) of the New York bar, admitted pro hac vice, argued the cause for respondent Google (Herrick, Feinstein LLP, attorneys; Mr. Werbin, of counsel; Patricia M. Graham, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Alvarez, Ostrer and Manahan. On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Docket No. L-3250-10. Steven D'Agostino, appellant, argued the cause pro se. Susan A. Lawless argued the cause for respondents Appliances Buy Phone, Inc., and Steven Sigman (Purcell, Mulcahy, Hawkins, Flanagan & Lawless, LLC, attorneys; Ms. Lawless, of counsel and on the brief; Alyssa K. Weinstein, on the brief). Barry Werbin (Herrick, Feinstein, LLP) of the New York bar, admitted pro hac vice, argued the cause for respondent Google (Herrick, Feinstein LLP, attorneys; Mr. Werbin, of counsel; Patricia M. Graham, on the brief). PER CURIAM
Plaintiff Steven D'Agostino appeals from a grant of partial summary judgment in favor of defendants Steven Sigman (Steven), Cheryl Sigman (Cheryl), (collectively, the Sigmans), and Appliances Buy Phone, Inc. (ABP), (collectively, ABP defendants). Plaintiff also appeals from a grant of summary judgment and a motion to quash in favor of defendant Google, Inc. (Google). Plaintiff further appeals the jury verdict as against the weight of the evidence. We affirm.
I.
We take the following from the record. Plaintiff is an electronics engineer and computer scientist who began working in website development in the early 1990s. In the summer of 2003, while working as an independent consultant, he met Steven, the president of ABP, an online retailer. Plaintiff was hired by the ABP defendants to redesign the ABP website for a flat fee of $1500. Plaintiff would also develop and provide custom software for the site. Plaintiff prepared, and Steven signed, a written contract for the scope of the work to be performed.
Appended to the contract was a "Future Website Maintenance Agreement," which provided that plaintiff would "make his services available for any future website modification, maintenance, updating, etc. (i.e. updating online database with new spreadsheet data, changing page layouts, updating pricing information, etc.)" for a rate of $30 per hour. The agreement was not signed by either party. Over the next seven years, plaintiff continued to work for Steven on an as-needed basis.
In charging for his services, plaintiff noted that he would often start negotiations with an hourly rate of $30, but he would also sometimes work for less or perform services free of charge. At some point over the seven-year period, plaintiff raised the base rate to $40 per hour. Although Steven acknowledged that he accepted the increased rate, plaintiff claimed that Steven only paid $30 per hour or less throughout the duration of their business relationship.
Plaintiff alleged as part of his claim that on two occasions he performed services for the ABP defendants for which he was never compensated. The first occurred in 2006 when plaintiff was traveling to a meeting and Steven called him for emergency assistance involving a supplier, General Electric (G.E.). The G.E. representative phoned Steven and told him to remove price information for the G.E. Monogram line of products on the ABP website or G.E. would cease selling the product line to ABP. Steven advised G.E. that the information would be removed by 3:00 p.m. Steven called plaintiff to effectuate the removal. Plaintiff, who was on his way to a business meeting, cancelled the meeting and made the necessary changes to the website by 3:00 p.m. Plaintiff claimed he was never compensated for this service; a matter which the ABP defendants did not dispute at trial.
The second occasion occurred in late 2006 and continued into early 2007. When the ABP website first opened, it did not feature images of the products. Wanting to place product images on the site, Steven arranged to meet with an individual named Richard Akerman (R.A.). R.A. was to supply images for ABP's products for a year. According to plaintiff, in addition to the images, R.A. offered Steven new software to run the website for $57,000. Steven contacted plaintiff to evaluate the software. Plaintiff performed the review and sent a list of additional functional requirements that the software would need for it to suit the business. Steven forwarded the list to the seller of the software as well.
Around January 2007, Steven, plaintiff, and R.A. participated in a telephone call, which ended in a disagreement. Due to the disagreement, plaintiff was concerned that R.A. would discontinue Steven's access to the product images. On his own, plaintiff copied the images to ABP's server to preserve them in the event that R.A. terminated the supply; a task that plaintiff claimed took nearly twenty-four hours to complete.
Plaintiff noted that R.A. cut off access to the product images less than a day after the argument. At that time, Steven called plaintiff, fearing that he lost all of the images for the ABP website. Plaintiff informed Steven that he captured the images and would have to make changes to the website before he could start utilizing them. Steven told plaintiff to send an invoice for his work. Plaintiff sent Steven an invoice for the time spent copying the images and reconfiguring the website, but did not include "around 100 hours" he spent prior to that when he was investigating R.A.'s proposed software and communicating with the software's developer. Steven paid plaintiff approximately $4,000 for his services.
In July 2009, Steven approached plaintiff about implementing search engine optimization (SEO) techniques to increase the ABP's website's visibility on the internet. SEO, if performed effectively, would increase a website's rank within a search engine. Plaintiff was not proficient in SEO techniques at the time of Steven's request.
Plaintiff devised a plan whereby he would learn SEO techniques by building a website from scratch, using one of Steven's dormant domain names. Steven agreed to permit plaintiff to use the Appliances4Sale (AFS) domain name as an address from which to host the site. On Appliances4Sale.com, AFS would utilize ABP's existing supply chain, and feature the same products at the same prices as the ABP website. Plaintiff aimed to drive traffic to AFS. Plaintiff's compensation would be 50% of AFS's profits.
At trial, plaintiff and Steven offered differing accounts as to their understanding of the ownership and duration of the AFS business. Plaintiff testified that AFS was set up as his own business subject to the ABP defendants' interest in 50% of the profits. He argued that he designed the site from scratch, created software for it, obtained his own toll-free number, handled credit card processing, and opened a business bank account. Steven testified that he viewed AFS and its website as an experiment of limited duration, a means by which plaintiff could learn SEO techniques that he would later implement on the ABP website.
Both the ABP and AFS sites were enrolled in Google Merchant Center, which enabled the sites to be visible in "Google Product Search," a price comparison search engine offered by Google at no cost to merchants. Google approved plaintiff's Merchant Center Account for AFS on October 22, 2009.
In late July 2010, plaintiff noticed a problem with the AFS website in Google Merchant Center. He contacted Google to investigate. On July 26, 2010, Google explained by email that it temporarily suspended AFS's ability to upload its products in Google Merchant Center because AFS was a duplicate of another site. The email stated:
This account has been identified as a duplicate of another account in our system. In the interest o[f] providing Google product search users with the best experience possible, we wish to avoid the duplication of sites and items originatingPlaintiff sent a reply email to Google that day. Plaintiff wrote that he suspected his feed was taken down because AFS was identified as a duplicate site. Plaintiff acknowledged that AFS and ABP used the same prices and content, but represented that AFS was a separate business that he operated.
from the same provider. Therefore, we could only accept one of your sites.
On July 29, 2010, ABP's data could not be uploaded in Google Merchant Center. Steven called plaintiff either that day or the next to tell him that the data was being blocked.
Plaintiff received a reply to his email from Google on July 30, 2010. In the email, Google noted plaintiff's additional information and approved his participation in Google Product Search. Plaintiff replied that there was "another issue," in that he was still unable to upload his feed without receiving error messages.
Steven called plaintiff regarding the problem with ABP's website's product feed in Google Product Search. Plaintiff advised Steven that AFS was having a similar problem which he was working to resolve. Plaintiff did not disclose to Steven that Google uncovered a conflict between ABP and AFS. The Sigmans conducted independent research which lead to the belief that the problem was due to ABP and AFS sharing the same content, which was prohibited under Google Merchant Center Program Policies.
Plaintiff testified at trial that the "technical glitch" was his inability to re-upload content even though he had been reapproved.
On July 31, 2010, Steven sent an email to Google explaining that he did not realize that Appliances4Sale.com, described as a "test website" which "mirrored" ABP's, would harm ABP's business. Steven wrote that he researched Google's policies and would "try to correct the problem before it gets any worse." Attached to the email was a copy of an email he sent to plaintiff requesting that plaintiff take down the AFS site "due to a notice of disapproval from Google."
That same day, plaintiff and the Sigmans met to discuss the issues with the two sites. The conversation was recorded by plaintiff and the Sigmans. The Sigmans told plaintiff that they communicated by phone with Google and that Google was forcing them to shut down the AFS website.
Steven testified at trial that he lied to plaintiff as he never spoke to Google by phone. Steven further testified that he read Google policies and was repeating the policies as he understood them, using Google "as a voice" based on his research.
On August 1, 2010, plaintiff received another message from Google that his account was reapproved. Plaintiff attempted to access "[his] website" on August 2, 2010, but it had already been disabled by Steven. At the time, plaintiff earned $5,000-$6,000 from his operation of AFS.
Google responded to Steven's July 31, 2010 email three days later. Google indicated that it "wish[ed] to avoid the duplication of sites and items originating from the same provider" and "[t]herefore, . . . [could] only accept one of [the] sites." The email listed the ABP and AFS websites and explained that "[ABP] has been approved to participate in Google Product Search."
On August 24, 2010, plaintiff filed a thirteen-count complaint against the ABP defendants and Google. He alleged: (1) unjust enrichment (count one); (2) breach of contract (count two); (3) breach of the implied covenant of good faith and fair dealing (count three); (4) business information misrepresented (count four); (5) business injured by another's false description (count five); (6) business intentionally interfered with by an outsider (count six); (7) cybersquatting (count seven); (8) future earning capacity damaged by tort (count eight); (9) tortious interference with prospective economic advantage (count nine); (10) punitive damages due from tortfeasor (count ten); (11) agent's negligence causing harm (count eleven); (12) competition unlawfully restrained (count twelve); and (13) unfair competition (count thirteen).
After arguing that plaintiff's allegations as to Google invoked federal question jurisdiction, Google filed a notice of removal in the United States District Court for the District of New Jersey (District Court). The District Court judge granted Google's request. Thereafter, plaintiff moved to remand the matter back to the State court. Plaintiff proposed that he would remove any and all federal causes of action from the complaint, provided that he remained free to pursue them at a later date. On or about December 21, 2010, the District Court judge granted plaintiff's leave to amend his complaint. Thereafter, on or about January 18, 2011, plaintiff filed an amended complaint in which he voluntarily removed count seven.
On February 14, 2011, the ABP defendants moved to dismiss counts one, three, six, eight, and nine of the amended complaint, all claims against Cheryl, and all punitive damages claims. On September 15, 2011, the District Court judge granted the motion to dismiss the claims against Cheryl and the punitive damage claims, and denied the remaining relief.
The matter was remanded to the State court on July 5, 2012. On September 27, 2012, Google moved for summary judgment on all of plaintiff's remaining claims. The motion judge granted Google's motion as to counts eleven, twelve, and thirteen, and provided plaintiff twenty days to amend his complaint to bring a breach of contract claim against Google.
Plaintiff filed his second amended complaint on or about November 13, 2012, adding claims against Google for breach of contract and the implied covenant of good faith and fair dealing. Google filed an answer to the second amended complaint. The ABP defendants also filed an answer, and Steven filed an amended counterclaim alleging consumer fraud, negligence, and breach of contract.
On June 28, 2013, Google filed a motion for summary judgment as to plaintiff's newly added claims for breach of contract and the implied covenant of good faith and fair dealing. The motion judge granted Google's motion on July 30, 2013.
Meanwhile, on July 25, 2013, the ABP defendants also moved for partial summary judgment. In a written decision and an implementing order, the motion judge granted the ABP defendants' motion and dismissed with prejudice plaintiff's claims for unjust enrichment (count one), business intentionally interfered with by outsider (count six), future earning capacity damaged by tort (count eight), and tortious interference with prospective economic advantage (count nine). The remaining breach of contract claims remained.
The order also barred plaintiff "from introducing any testimony [at trial], directly or indirectly . . . concerning 'cybersquatting' activity on the part of any defendant."
In anticipation of the trial, plaintiff faxed subpoenas to Google's counsel seeking testimony of two Google employees. The judge granted Google's application to quash the subpoenas, and noted that plaintiff could cross-examine Steven regarding the testimony sought by the subpoenas, and could also use the Google business records certified during discovery.
Following the ruling, the trial commenced. Plaintiff and the Sigmans testified. At the conclusion of testimony, plaintiff moved for a directed verdict dismissing Steven's counterclaim, which the judge granted. The ABP defendants also moved for a directed verdict on their claims for breach of contract (count two), breach of the implied covenant of good faith and fair dealing (count three), business information misrepresented (count four), and business injured by another's false description (count five). The judge denied the motion as to counts two and three, but granted the motion for directed verdict on counts four and five.
The jury returned a verdict of no cause on both of the remaining contractual claims the same day. Plaintiff moved for a new trial. He alleged: (1) the jury's verdict was against the weight of the evidence; (2) that a prospective juror who was dismissed during jury selection prejudiced the entire jury pool when they witnessed him express his opinion that there was "too much litigation"; and (3) the jury instructions were unclear.
Subsequent to oral argument, plaintiff's new trial motion was denied. The judge held there was sufficient evidence to support the verdict, and the jury selection process, to which plaintiff did not object, was untainted. Plaintiff's second amended complaint was dismissed with prejudice. This appeal followed.
II.
Plaintiff raises the following points on appeal:
[POINT I]
VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE.
A. The [Two] Unpaid Webmaster Services (G.E. Monogram and [R.A.]).
B. The Joint Venture ([Appliances4Sale]).
[POINT II]
UNJUST ENRICHMENT THEORY SHOULD HAVE BEEN PRESENTED AT TRIAL.
A. The Nature of the [Two] Unpaid Tasks Were Outside the Scope of the Regular Rate.
B. The Quantum of the Benefit Conferred Was Essential to Underpin My Reasons.
C. My Discounts And a Few Complimentary Tasks Temper the Trial Court's Ruling.
D. Defendants['] Own Argument Was That There Was No Meeting of the Minds.
[POINT III]
TORT CAUSES OF ACTION (AGAINST ABP & SIGMAN DEFENDANTS) WERE VALID.
A. Cheryl Sigman
[POINT IV]
ERRORS IN GRANTING GOOGLE'S MOTION FOR SUMMARY JUDGMENT (MSJ).
A. The Google Merchant Agreement Was a Contract of Adhesion.
B. The Exculpatory Clauses Are Not Enforceable.
C. The Court Erred by Enforcing a Limitation of Zero Liability Clause.
D. An Express Termination Clause Does Not Allow Google to Breach the Contract.
i. The Express Termination Clause Was Unenforceable.
E. Google Did Breach the Implied Covenant of Good Faith and Fair Dealing.
F. Google Failed to Meet Its Initial Burden in Moving for Summary Judg[]ment.
G. The Trial Court's Improper Judicial Notice.
[POINT V]
ERRORS IN GRANTING GOOGLE'S MOTION TO QUASH MY SUBPOENA.
[A.] Using Google's Interrogatory Answers.
[POINT VI]
ENTIRE JURY PREJUDICED BY ONE JUROR'S COMMENTS.
[POINT VII]
POSSIBLE ALTERNATE EXCUSES FOR THE JURY'S ERRONEOUS VERDICT.
[POINT VIII]
OTHER SMALLER CUMULATIVE ERRORS AND UNFAIR HANDICAPS.
III.
We first address whether the judge erred in granting partial summary judgment in favor of the ABP defendants as to plaintiff's unjust enrichment and tort claims. In our review, we apply the same standard as the trial court in the granting of a motion for summary judgment. Townsend v. Pierre, 221 N.J. 36, 59 (2015). If there is no factual dispute, and only a legal issue to resolve, the standard of review is de novo and the trial court rulings "are not entitled to any special deference." Manalapan Realty, L.P. v. Manalapan Twp. Comm., 140 N.J. 366, 378 (1995).
Preliminarily, we note that neither party has provided a statement of "all items submitted to the court on the summary judgment motion" as required by Rule 2:6-1(a)(1) and Rule 2:6-3. We therefore base our decision on the record before us. --------
Summary judgment must be granted "if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact challenged and that the moving party is entitled to a judgment or order as a matter of law." R. 4:46-2(c). The court's inquiry is "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Liberty Surplus Ins. Corp., Inc. v. Nowell Amoroso, P.A., 189 N.J. 436, 445-46 (2007) (quoting Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 536 (1995)); Jolley v. Marquess, 393 N.J. Super. 255, 267 (App. Div. 2007). "At this stage of the proceedings, the competent evidential materials must be viewed in the light most favorable to plaintiff, the non-moving party, and [plaintiff] is entitled to the benefit of all favorable inferences in support of [the] claim." Bagnana v. Wolfinger, 385 N.J. Super. 1, 8 (App. Div. 2006) (citing R. 4:46-2(c)); see also Brill, supra, 142 N.J. at 540; In re Estate of Sasson, 387 N.J. Super. 459, 462-63 (App. Div.), certif. denied, 189 N.J. 103 (2006).
Plaintiff argues that the judge's decision to grant summary judgment on the unjust enrichment claim was erroneous, as the nature of his professional services in relation to the G.E. Monogram emergency and R.A. dispute "rendered these tasks outside the scope of [his] regular contractor rate of [$40 per hour]." Plaintiff further argues that he was entitled to recover for his professional services rendered under a quasi-contract theory.
At oral argument, the judge stated:
[Plaintiff] . . . you may have a claim for work in your contractual relationship with [Steven] that you weren't paid for. Maybe you don't, maybe you weren't, maybe you were paid for it. But it was within the parameters of your contractual arrangement. And you're saying that you didn't bill him, either intentionally or negligently didn't bill him for that work, and now you're seeking to recoup the monies that are due [to] you[,] that you worked for. And, you know, . . . there are questions about how long can you sit and wait on a claim. I mean, are there laches issues, are there issues of this sort?
But the bottom line here is you're asserting that within the contractual relationship that you have with [Steven or ABP,] that they didn't pay everything that they were supposed to pay you. And to that extent, it's a breach of contract claim.
That's what we're dealing with here. And I think you have a right to proceed on that. You have a right to say to the jury they didn't pay me everything that they were obligated to pay me, but I don't see anything more here in terms of that part of your claim.
So, I'm satisfied you have the right to proceed. . . . I understand the difference between this idea of unjust enrichment and quasi-contract. When I'm saying quasi-contract, . . . it's actually inartfully said. It's not quasi-contract. Everybody knows what the contracted amount was. They know what your services were worth. The issue is did you get paid for everything that you did there at the contracted rate of $40 an hour[,] and maybe you didn't. I don't know. They say that you submitted a voucher, they negotiated it, they paid it over time and then that's the end of it. A jury's going to tell us whether or not that they — you're owed more money under that contractual arrangement or not.
In his written decision, the judge restated his finding that the course of dealing between the parties suggested that there was a contractual relationship.
In certain instances a plaintiff may recover for the value of the goods and services provided to the defendant, even though the parties' words and actions are insufficient to manifest an enforceable contractual intention to agree to the tendered terms. Weichert Co. Realtors v. Ryan, 128 [N.J.] 427, 437 (1992). "Courts generally allow recovery in quasi-contract when one party has conferred a benefit on another, and the circumstances are such that to deny recovery would be unjust." [Ibid.]
That is not the situation the [c]ourt is confronted with here. The parties agree that [p]laintiff would submit invoices, they would negotiate the price, and then [the ABP defendants] would pay. This was the nature of their joint venture and business relationship. Plaintiff may possibly have claims for a breach of contract, but not for unjust enrichment on a quasi-contract. . . . The [c]ourt is not going to alter their pay arrangement almost a decade after its occurrence. Furthermore, [p]laintiff and [the ABP defendants] continued their joint venture after these alleged services were performed. This is not a situation where a plumber or electrician performed services on a one-time basis and forgot to add additional work onto the bill and subsequently amended the original bill to reflect those changes. In this instance, the two parties had a continuing relationship, and not once did [p]laintiff submit another amended invoice or voice his concern about not being paid. Plaintiff merely "hoped" to be paid in the future. Nobody was "unjustly enriched" that would require [the ABP defendants] to pay [p]laintiff above and beyond what they contracted. Plaintiff has his breach of contract claim which can cover the hours and work that he alleges he was uncompensated for; however, he cannot claim unjust enrichment.
In Winslow v. Corporate Express, Inc., 364 N.J. Super. 128, 138 (App. Div. 2003), this court held:
An oral employment contract . . . "may be formed by the existence of conditions, not only manifested by words, but also implied from the circumstances of employment." Troy v. Rutgers, 168 N.J. 354, 365 (2001). Where a court is called upon to resolve an ambiguity or uncertainty concerning the terms of such a contract, it may consider
"custom, usage, and the interpretation placed on the disputed provision by the parties' conduct." Kearny PBA Local # 21 v. Town of Kearny, 81 N.J. 208, 221 (1979). One form of conduct which may manifest the parties' intent is a course of dealing that establishes "a common basis of understanding for interpreting their expressions and other conduct." Restatement (Second) of Contracts § 223(1) (1981).If a contract exists between the parties, unjust enrichment is inapplicable, Shalita v. Twp. of Wash., 270 N.J. Super. 84, 90-91 (App. Div. 1994), and the parties must seek damages for breach of the contract, Nat'l Amusements, Inc. v. N.J. Tpk. Auth., 261 N.J. Super. 468, 478 (Law Div. 1992), aff'd, 275 N.J. Super. 134 (App. Div. 1994).
In viewing the summary judgment record in the light most favorable to plaintiff, we are satisfied that the on-going course of dealing between plaintiff and the ABP defendants demonstrated the existence of a contractual relationship. As we noted in Shalita, supra, 270 N.J. Super. at 90-91, "the parties are bound by their agreement, and there is no ground for imposing an additional obligation where there is a valid unrescinded contract that governs their rights."
IV.
We next analyze the judge's decision to grant partial summary judgment in favor of the ABP defendants on plaintiff's tort claims. The judge dismissed plaintiff's claims for business intentionally interfered with by an outsider (count six), future earning capacity damaged by tort (count eight), and tortious interference with prospective economic advantage (count nine). Plaintiff argues that the tort causes of action should have survived summary judgment because "even though [Steven] was an insider to the joint venture, once he decided to discontinue in that operation[, he] then undertook additional malicious actions[,]" which prevented plaintiff from "going forward in that business without him[.]"
In dismissing plaintiff's tort claims, the judge reasoned:
Count [e]ight is essentially an outline of his damages and not a claim in tort. Plaintiff claims that he was beginning to reap the benefit of his work when [Steven] allegedly interfered . . . . There is no separate claim in [c]ount [e]ight for which relief can be granted because it is essentially damages he seeks recourse for, thus [c]ount [e]ight is dismissed. The [c]ourt also finds that [c]ount [s]ix and [n]ine must be dismissed because they are based on theories of tort liability, when the cause of action and damages, if any, arise from the joint venture which is defined by the terms of any express or implied contractual relationship defining that joint venture.
. . . .
Here[,] we have a situation where there was a clear business relationship and joint business venture between the parties. There was either an implied or express contract which was either oral or in writing, however and regardless, there was a joint venture
between the parties[,] and [the ABP defendants] cannot [tortuously] interfere with their own joint venture. Tortious interferences is meant to protect a party to a contract from outside interference, beyond just normal competition in the business world. In this instance, [p]laintiff and [Steven] were jointly operating two websites, both of which were actually owned by [Steven]. Even assuming [Steven] had the website removed from the Google Search Product, it was [Steven's] own business. Plaintiff had the option to leave the joint venture and open his own business or website, but he did not. He cannot now bring a cause of action in tort beyond what he would have been entitled to under the contract which defined the nature of the joint venture. [Steven] was not a stranger or outsider of the agreement between the parties; he was actually a primary party to the agreement. The only cause of action available to [p]laintiff is for breach of contract or agreement for failing to perform his duties under the agreement, or in the alternative, his unjust enrichment claim.
Although a plaintiff's complaint may sound in tort, the action will be governed by contract principles if it "'essentially arises in contract rather than tort.'" Saltiel v. GSI Consultants, Inc., 170 N.J. 297, 309 (2002) (quoting Wasserstein v. Kovatch, 261 N.J. Super. 277, 286 (App. Div.), certif. denied, 133 N.J. 440 (1993)). "Under New Jersey law, a tort remedy does not arise from a contractual relationship unless the breaching party owes an independent duty imposed by law." Id. at 316-17. The interference with one's own contract is merely a breach of that contract. The tort requires the meddling into the affairs of another . . . ." Cappiello v. Ragen Precision Indus., Inc., 192 N.J. Super. 523, 529 (App. Div. 1984).
A claim for tortious interference requires proof that one or more defendants interfered with a plaintiff's legally protectable expectation of receiving a present or future economic benefit under an existing or prospective contract or economic relationship. Printing Mart-Morristown v. Sharp Elecs. Corp., 116 N.J. 739, 751 (1989). Our Supreme Court has opined:
An action for tortious interference with a prospective business relation protects the right to pursue one's business, calling, or occupation, free from undue influence or molestation. Not only does the law protect a party's interest in a contract already made, but it also protects a party's interest in reasonable expectations of economic advantage. To prove its claim, plaintiff must show that it had a reasonable expectation of economic advantage that was lost as a direct result of defendants' malicious interference, and that it suffered losses thereby. Causation is demonstrated where there is "proof that if there had been no interference there was a reasonable probability that the victim of the interference would have received the anticipated economic benefit.""[I]t is fundamental to a cause of action for tortious interference with a prospective economic relationship that the claim be directed against defendants who are not parties to the relationship." Printing Mart-Morristown, supra, 116 N.J. at 752 (internal citations and quotation marks omitted); Silvestre v. Bell Atl. Corp., 973 F. Supp. 475, 486 (D.N.J. 1997) (holding that "[a] tortious interference with contract claim can be waged only against a third-party who is not a party to the contractual or economic relationship at issue"), aff'd, 156 F.3d 1225 (3d Cir. 1998).
[Lamorte Burns & Co., Inc. v. Walters, 167 N.J. 285, 305-06 (2001) (internal citations omitted).]
Again, when viewing the summary judgment record in the light most favorable to plaintiff, we hold, as there was no genuine dispute as to any material fact, that the ABP defendants were entitled to a judgement as a matter of law. See R. 4:46-2(c). As noted by the judge, plaintiff's claim for loss of future earning capacity due to tort (count eight) was "essentially an outline of his damages and not a claim in tort." Similarly, plaintiff's claims for tortious interference by Steven fail. There was a contract, either implied or express, between the parties concerning the "joint venture." Neither Steven nor the ABP defendants could tortiously interfere with the joint venture, as they were parties to the contract. As opined by the judge, and we concur, plaintiff cannot now "bring a cause of action in tort beyond what he would have been entitled to under the contract which defined the nature of the joint venture."
V.
We next address plaintiff's argument that the jury's verdict was against the weight of the evidence. "[A] jury verdict, from the weight of evidence standpoint, is impregnable unless so distorted and wrong, in the objective and articulated view of a judge, as to manifest with utmost certainty a plain miscarriage of justice." Carrino v. Novotny, 78 N.J. 355, 360 (1979) (citing Baxter v. Fairmont Food Co., 74 N.J. 588, 597-98 (1977)). The appellate court is not to substitute its judgment for that of the jury, but instead is only to "correct clear error or mistake by the jury." Ibid. (quoting Dolson v. Anastasia, 55 N.J. 2, 6 (1969)).
Prior to appealing a jury verdict on the grounds that the jury verdict is against the weight of the evidence, the party must have made a motion for a new trial. R. 2:10-1. "The standard for appellate review of a trial court's decision on a motion for a new trial is substantially the same as that controlling the trial court except that due deference should be made to its 'feel of the case,' including credibility." Caldwell v. Haynes, 136 N.J. 422, 432 (1994) (quoting Feldman v. Lederle Labs., 97 N.J. 429, 463 (1984)). The appellate court defers to the trial court with respect to "intangibl[es]" not transmitted by the record to decide if there was a miscarriage, but otherwise makes its own independent determination of whether a miscarriage of justice occurred. Carrino, supra, 78 N.J. at 360 n.2.
In returning a no cause for action verdict here, the jury determined that ABP did not breach a contractual agreement with plaintiff by failing to pay for webmaster services rendered in connection with the G.E. Monogram emergency and R.A. dispute. In addition, the jury determined Steven did not breach the terms of the contractual agreement with plaintiff concerning the operation of the AFS website. When plaintiff moved for a new trial on the grounds that the jury verdict was against the weight of the evidence, among other things, the judge found there was sufficient evidence to support the verdict.
Each side had ample opportunity to present their issues . . . to the jury. There were very strong factual disputes that were in place between the parties and . . . each side supported their position . . . with testimony in the . . . case. . . . And the jury didn't agree with you, [plaintiff]. That's what it comes down to. They didn't agree with you. And I am satisfied that there is more than sufficient evidence to support . . . the jury verdict that came down in this case. I see no reason here to order a new trial or to alter the decision of the jury.
[E]ach party had . . . their opportunity to make their say to the jury, to get their argument out. . . . I'm satisfied that . . . the jury rendered a verdict that they felt was appropriate considering the law and considering the . . . facts that were presented to them.
Applying our standard of review, we conclude the verdict did not result in a miscarriage of justice. We are in accord with the judge that both parties had an opportunity to present their version of the facts in dispute. Reasonable jurors could have concluded that there was insufficient evidence to support plaintiff's contention that he was not paid by ABP for allegedly contracted work from 2006 to 2010. Plaintiff failed to submit invoices for the professional services at issue, despite regularly submitting invoices to Steven during their seven-year business relationship for services performed. Moreover, each final invoice submitted by plaintiff over the course of the business relationship was paid in full by Steven.
As well, we find a reasonable juror could have concluded that no breach occurred by Steven concerning the operation of the AFS website. Although each party had contrasting opinions as to the purpose and duration of the AFS site, there was ample evidence that the AFS site was more akin to a test website, rather than an independent and competing business venture. For example, AFS utilized ABP's supply chain, business contacts, prices, and even one of its online domain names.
VI.
We next turn to the issue of whether the judge erred in granting summary judgment in favor of Google. Relying on the language of the Terms of Service agreement (TOS), the judge dismissed plaintiff's claims in his second amended complaint as to Google for breach of contract and the implied covenant of good faith and fair dealing. Matters of contract interpretation are subject to plenary review on appeal. Selective Ins. Co. of Am. v. Hudson E. Pain Mgmt. Osteopathic Med. & Physical Therapy, 210 N.J. 597, 605 (2012); see also Kieffer v. Best Buy, 205 N.J. 213, 222-23 (2011); Jennings v. Pinto, 5 N.J. 562, 569-70 (1950) ("[I]t is a general rule that the construction of a contract is a question of law . . . ."). An appellate court does not defer to the trial court in reviewing pure issues of contract interpretation. Kieffer, supra, 205 N.J. at 223 n.5 ("De novo review of a contract is predicated on the absence of a factual dispute at issue. When there is such a factual dispute, the finder of fact must resolve it, and a deferential standard of review applies." (internal citations omitted)).
"[W]here the terms of a contract are clear and unambiguous there is no room for interpretation or construction and the courts must enforce those terms as written." Schor v. FMS Fin. Corp., 357 N.J. Super. 185, 191 (App. Div. 2002) (quoting Karl's Sales and Serv., Inc. v. Gimbel Bros., Inc., 249 N.J. Super. 487, 493 (App. Div.), certif. denied, 127 N.J. 548 (1991)). However, whether the terms of a contract are clear as written or are ambiguous is a question of law subject to an appellate court's independent review and conclusions. Nester v. O'Donnell, 301 N.J. Super. 198, 210 (App. Div. 1997).
"An ambiguity in a contract exists if the terms of the contract are susceptible to at least two reasonable alternative interpretations." Schor, supra, 357 N.J. Super. at 191 (quoting Nester, supra, 301 N.J. Super. at 210). "To determine the meaning of the terms of an agreement by the objective manifestations of the parties' intent, the terms of the contract must be given their 'plain and ordinary meaning.'" Ibid. But the contract must also be viewed and interpreted as a whole and not by examining individual phrases independent of one another. Nester, supra, 301 N.J. Super. at 210; see also Hardy ex rel. Dowdell v. Abdul-Matin, 198 N.J. 95, 103 (2009) ("A basic principle of contract interpretation is to read the document as a whole in a fair and common sense manner.").
In December 2012, Google filed a motion to dismiss plaintiff's claims for breach of contract and the implied covenant of good faith and fair dealing based on the Google Merchant Center contract's forum selection clause. The contract's forum selection clause reads:
[Choice of Law and Forum]. The [TOS] and the relationship between you and Google shall be governed by the laws of the State of California without regard to its conflict of law provisions. You and Google agree to submit to the personal and exclusive jurisdiction of the courts located within the county of Santa Clara, California.
Google's motion was denied after a hearing. Neither party has submitted to this court a copy of the judge's opinion as to Google's motion to dismiss; however, we have been provided with a transcript of the oral argument. We therefore discern the following from the record of the hearing.
The judge found the forum selection clause to be valid and enforceable; however, as noted in the judge's July 30, 2013 opinion concerning Google's summary judgment motion, New Jersey's "strong public policy against fractured litigation required that the entire case be litigated in New Jersey, including any claims against Google." We will not disturb this ruling, as this is not an issue on appeal before us.
As to the choice-of-law provision, which was not addressed by the judge during the December 21, 2012 hearing, we find the judge correctly applied New Jersey law. Nothing has been presented to this court indicating that the laws of California and New Jersey diverge or "are at variance on a material issue in this case." Curtis T. Bedwell & Sons, Inc. v. Geppert Bros., Inc., 280 N.J. Super. 391, 395 (App. Div.), certif. granted, 142 N.J. 451 (1995), appeal dismissed, 143 N.J. 481 (1996). "We are thus presented with a false conflict." Ibid. We have held that if there is a false conflict, the law of the forum state applies. DeMarco v. Stoddard, 434 N.J. Super. 352, 367 (App. Div. 2014), rev'd on other grounds, 223 N.J. 363 (2015). As such, the judge's application of the law of New Jersey, the forum state, when determining the validity of the contract provisions was not in error.
On appeal, plaintiff now argues that the TOS was a contract of adhesion, and that the exculpatory clauses of the contract should have been found unenforceable. Plaintiff also contends that the contract's express termination clause was unenforceable, and that Google breached the implied covenant of good faith and fair dealing.
The relevant portions of the TOS for this appeal include:
1. SERVICE
By using Google Merchant Center, you agree to the following terms and conditions and any product policies, guidelines or amendments thereto . . . .
. . . .
In order to use certain services, you are required to provide current, accurate identification, contact, and other information as part of the registration process for a Merchant Center Account . . . .
. . . .
11. MODIFICATIONS TO SERVICE
Google reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, the Google Merchant Center service (or any part thereof) with or without notice. You agree that Google shall not be liable to you or to any third party for any modification, suspension or discontinuance of Google services.
12. TERMINATION
. . . .
Google may at any time and for any reason, including a period of account inactivity, terminate your access to Google services, terminate this [TOS], or suspend or terminate your account. In the event of termination, your account will be disabled[,] and you may not be granted access to your account . . . .
Except as set forth above or unless Google has previously cancelled or terminated your use of Google services (in which case subsequent notice by Google shall not be required), if you have provided an alternate email address, Google will notify you via email of any such termination or cancellation, which shall be effective immediately upon Google's delivery of such notice. Sections 15 through 22 of the [TOS] (including the section regarding limitation of liability), shall survive expiration or termination.
. . . .
16. DISCLAIMER OF WARRANTIES
YOU EXPRESSLY UNDERSTAND AND AGREE THAT:
a. YOUR USE OF GOOGLE SERVICES IS AT YOUR SOLE RISK. GOOGLE SERVICES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. GOOGLE EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
b. GOOGLE MAKES NO WARRANTY THAT (I) GOOGLE SERVICES WILL MEET YOUR REQUIREMENTS, (II) GOOGLE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE, (III) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF GOOGLE SERVICES WILL BE ACCURATE OR RELIABLE, (IV) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH GOOGLE SERVICES WILL MEET YOUR EXPECTATIONS, AND (V) ANY ERRORS IN THE SOFTWARE WILL BE CORRECTED.
. . . .
d. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM GOOGLE OR THROUGH OR FROM GOOGLE SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE [TOS].
17. LIMITATION OF LIABILITY
YOU EXPRESSLY UNDERSTAND AND AGREE THAT GOOGLE SHALL NOT BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF GOOGLE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) RESULTING FROM: (I) THE USE OR THE INABILITY TO USE GOOGLE SERVICES; (II) THE COST OF PROCUREMENT OR SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM GOOGLE SERVICES; (III) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (IV) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON GOOGLE SERVICES; OR (V) ANY OTHER MATTER RELATING TO GOOGLE SERVICES.
In his opinion granting Google's motion for summary judgment, the judge found that the TOS was not a contract of adhesion, and that the exculpatory clause, namely section 17 concerning the limitation of liability, was valid and enforceable. In support, the judge opined:
The [c]ourt finds that as a matter of law the [TOS] [a]greement is valid and enforceable. In this day and age, most people have had the opportunity to see a "terms of service" internet agreement much like the one presented in this matter. . . . This agreement is not unlike any of those agreements[.]
. . . .
. . . [The] [c]ourt finds that the TOS [a]greement is valid and enforceable against
the parties [involved] with this litigation. Here, [p]laintiff created and registered his Google Merchant Account on October 22, 2009. During the registration process, [p]laintiff had to read and accept the TOS agreement by clicking "Yes, I have read and accepted the above Terms and Service." . . . Plaintiff was free to scroll through the agreement prior to accepting its terms. The Google Merchant Center's terms and services were relatively short and easy to read, and contained no material misrepresentations, unlike in Hoffman v. Supplements Togo Management, LLC, 419 [N.J. Super.] 596, 611 (App. Div. 2011), [certif. granted, 209 N.J. 231 (2012),] where the court found that "the website was designed in a manner that makes it unlikely that consumers would even see it at all on their computers screens." The TOS agreement did not contain illegible or small print, or over sophisticated legalese that would support invalidating the entire agreement.
The [c]ourt also finds that the exculpatory clause is valid and enforceable. . . .
. . . .
. . . In this instance, we have a [p]laintiff who holds himself out to be a sophisticated website designer who has previously signed similar online agreements with other providers. Google, while extremely large in market capacity, is not in the business of selling appliances. The Court's ruling in [Lucier v. Williams, 366 N.J. Super. 485, 488 (App. Div. 2014)] was largely based upon the nature of the contract and the implication it could have on many homebuyers in New Jersey. Homeowners would essentially be left with no recourse if a home inspector failed to act diligently knowing that he or she would have no repercussions. The TOS agreement is not
synonymous to a home inspection contract, where the homeowners are most likely uninformed in homebuilding or home inspecting. Moreover, the TOS was not a contract between a consumer and business, such as a retail agreement. This was a merchant agreement between two businesses, where one business was providing a service for another free of cost. For these reasons, the [c]ourt finds that the entire TOS agreement, including the exculpatory clause limiting liability[,] is enforceable[.]
The judge then held that the TSO's contractual provisions, specifically section 12 concerning termination and section 17 regarding the limitation of liability, entitled Google to summary judgment as to plaintiff's claim for breach of contract.
Google had a right, pursuant to [s]ection 12 of the [TOS] agreement, to temporarily suspend access to [p]laintiff's website. Section 12 of the agreement states in relevant part that "Google may at any time and for any reason, including a period of account inactivity, terminate your access to Google services, terminate this [TOS], or suspend or terminate your account." Section 12 also states that the party will be given notice via email, upon which termination or suspension will become effective immediately. The Google Merchant Center Program Policies, states that "[w]e do not permit duplicate products in the same account or between multiple accounts. If products [are] available on multiple sites under the same ownership, one site must be chosen to exclusively submit those products. For example, if you own two websites that sell the same product, you may not submit that product for both sites, regardless of the pricing or promotional differences."
In this instance, there were two websites, AppliancesBuyPhone.com and Appliances4Sale.com[,] each owned by the same person, co-defendant [Steven]. Plaintiff agreed that while both of the domain names were both owned by [Steven], he was the actual owner of the website Appliances4Sale.com. Plaintiff also registered the Merchant Account for that website and agreed to the TOS. On July 26, 2010, Google informed [p]laintiff via the email he provided when he registered his Merchant Account, that [p]laintiff's website's products were no longer listed on Google Products because Google believed it was a duplicate of the AppliancesBuyPhone.com website. The subject websites did indeed sell the same products at the same prices. This was a legitimate reason to temporarily suspend the use of the Appliances4Sale.com website, and thus, Google was acting with the parameters of the TOS.
However, even if the [c]ourt were to find that Google breached the termination section of the TOS, [p]laintiff's damages are limited by section 17 (Limitation of Liability), which the [c]ourt has already found to be valid and enforceable. Section 17 states in relevant part[] that "you expressly understand and agree that Google shall not be liable to you for any direct, indirect, incidental, special, consequential or exemplary damages, including but not limited to, damages for loss of profits . . . resulting from: (i) [t]he use or inability to use Google Services." That section must be read in conjunction with [s]ection 12 that specifically states either Google or the user can cancel the TOS at any time for any reason.
The judge also noted that section 13 of the TOS, which concerns the disclaimer of warranties, was "in the TOS precisely for reasons such as the one presented to the court, i.e. technical errors."
The judge next concluded that Google did not breach the implied covenant of good faith and fair dealing when "it temporarily suspended [p]laintiff's website on its product search service because it had legitimate reasons for doing so, believing the website was a duplicat[e]."
Plaintiff's website was de-activated, removed, suspended, or terminated for a short period of time by Google. Google suspended the website from the Product Search service because it reasonably believed that it was a duplicative website. The other website being AppliancesBuyPhone.com. Plaintiff agreed to the terms of the TOS prior to utilizing the service. AppliancesBuyPhone.com and Appliances4Sale.com sold the same products at the same price, and had the same registered domain owner, [Steven]. Under these facts, it was completely reasonable for Google to temporarily suspend [p]laintiff's website. There is not an inkling of evidence that would support a finding that Google acted in bad faith prior to suspending the use of the webpage. And in fact, almost immediately after discovering that the websites were not duplicates, Google restored [p]laintiff's website to the Google Product Search service, again free of charge.
VII.
Consistent with our summary judgement analysis, we will now address whether the TOS constituted a contract of adhesion, and whether the contract's exculpatory clauses were valid and enforceable.
A contract of adhesion is not necessarily unconscionable and therefore unenforceable. "The determination that a contract is one of adhesion . . . 'is the beginning, not the end, of the inquiry' into whether a contract, or any specific term therein, should be deemed unenforceable based on policy considerations." Muhammad v. Cty. Bank of Rehoboth Beach, 189 N.J. 1, 15 (2006) (quoting Rudbart v. N. Jersey Dist. Water Supply Comm'n, 127 N.J. 344, 354, cert. denied, 506 U.S. 871, 113 S. Ct. 203, 121 L. Ed. 2d 145 (1992)), cert. denied, 549 U.S. 1338, 127 S. Ct. 2032, 167 L. Ed. 2d 763 (2007). Courts must conduct a fact-sensitive analysis in which they consider the standardized nature and subject matter of the particular contract, the relative bargaining power of the parties, "'the degree of economic compulsion motivating the adhering party,'" and the public interests affected by the contract in determining whether to enforce a contract of adhesion. Martindale v. Sandvik, Inc., 173 N.J. 76, 90 (2002) (quoting Rudbart, supra, 127 N.J. at 356).
A contract of adhesion is "'[a] contract where one party . . . must accept or reject the contract . . . .'" Rudbart, supra, 127 N.J. at 353 (alteration in original) (quoting Vasquez v. Glassboro Serv. Ass'n, 83 N.J. 86, 104 (1980)). Its "essential nature . . . is that it is presented on a take-it-or-leave-it basis, commonly in a standardized printed form, without opportunity for the adhering party to negotiate except perhaps a few particulars." Ibid. (internal citations and quotation marks omitted). It may be "unenforceable if its terms are manifestly unfair or oppressive and are dictated by a dominant party." Howard v. Diolosa, 241 N.J. Super. 222, 230 (App. Div.), certif. denied, 122 N.J. 414 (1990). Contracts of adhesion "invariably evidence some characteristics of procedural unconscionability," and therefore "require[] a careful fact-sensitive examination into substantive unconscionability." Muhammad, supra, 189 N.J. at 16. "[G]ross disparity in the relative bargaining positions of the parties [can be] self-evident from the nature of the . . . contract . . . ." Id. at 18.
Where the disparity is not self-evident, determining unconscionability requires consideration of two factors: procedural unconscionability and substantive unconscionability. The former arises out of defects in the process by which the contract was formed, and "'can include a variety of inadequacies, such as age, literacy, lack of sophistication, hidden or unduly complex contract terms, bargaining tactics, and the particular setting existing during the contract formation process[.]'" Id. at 15 (quoting Sitogum Holdings, Inc. v. Ropes, 352 N.J. Super. 555, 564-66 (Ch. Div. 2002)). The latter "generally involves harsh or unfair one-sided terms." Ibid. Stated differently, substantive unconscionability "simply suggests the exchange of obligations so one-sided as to shock the court's conscience." Sitogum Holdings, supra, 352 N.J. Super. at 565 (internal citations omitted).
Generally, a "sliding scale" analysis is utilized in tandem, considering the respective degrees of procedural and substantive unconscionability found to exist. Muhammad, supra, 189 N.J. at 16 n.3. Under this approach, overall unconscionability may be found if there is a gross level in one category but only a lesser level in the other. Sitogum Holdings, supra, 352 N.J. Super. at 565-66.
As to the enforceability of exculpatory clauses, such clauses "must 'reflect the unequivocal expression of the party giving up his or her legal rights that this decision was made voluntarily, intelligently[,] and with the full knowledge of its legal consequences.'" Stelluti v. Casapenn Enters., LLC, 203 N.J. 286, 304-05 (2010) (quoting Gershon v. Regency Driving Ctr., Inc., 368 N.J. Super. 237, 247 (App. Div. 2004)). Additionally, an exculpatory clause is 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." Gershon, supra, 368 N.J. Super. at 248.
Here, we disagree with the judge's finding that the TOS was not a contract of adhesion. Although plaintiff was a merchant and free to use other services to sell his merchandise, in order to create a Google Merchant Account, and utilize the Google Product Search service, plaintiff was required to agree to the TOS. Plaintiff was presented with the TOS on a take-it-or-leave-it-basis, where he had no opportunity to negotiate the terms. As such, we are satisfied that the TOS constituted a contract of adhesion.
However, when considering the factors articulated in Martindale, supra, we are unconvinced that the TOS was unenforceable, as it was neither procedurally nor substantively unconscionable. 173 N.J. at 90. Plaintiff was a sophisticated webmaster who had great familiarity with "click-wrap" contracts like the TOS. Further, there was no economic "compulsion" here, as plaintiff could have sought alternate comparison shopping services, rather than utilizing Google's free product search service for merchants. See Ibid. Plaintiff also makes no showing that public interests would be undermined if the TOS is enforced.
The TOS's exculpatory clauses, namely the section 16 disclaimer of warranties clause and the section 17 limitation of liability clause, satisfy the four factors enumerated in Gershon. We have addressed the fourth factor above; that the TOS was not the result of unequal bargaining power or any other unconscionable conduct, as plaintiff was a sophisticated webmaster who had experience with contracts similar to the TOS. The third factor is inapplicable here, as Google is not a public utility or common carrier. The remaining factors concern whether enforcement of the exculpatory clauses implicates matters of the public interest or whether Google was under some legal duty to perform, independent of its contractual obligations.
In Stelluti, supra, the Court identified two sources of legal duties to perform: statutorily imposed duties and common law duties. 203 N.J. at 306. Here, plaintiff has not identified any such imposed duties, or provided this court with evidence of how the enforcement of the exculpatory clauses will adversely affect the public interest. In our view, the exculpatory clauses are valid and enforceable, and not of the type that are so "one-sided as to shock the court's conscience." Sitogum Holdings, supra, 352 N.J. Super. at 565.
VIII.
We next address whether the judge erred in finding that Google was entitled to summary judgment as to plaintiff's claims for breach of contract. Upon review of the record, we hold that Google acted within the parameters of the TOS when it temporarily suspended plaintiff's website. In addition to section 12 of the TOS concerning the contract's termination, cited above, under the "Duplicate and [B]orrowed [C]ontent" heading of the Google Merchant Center Program Policies, Google does "not permit duplicate products in the same account or between multiple accounts." As such, "[i]f products [are] available on multiple sites under the same ownership, one site must be chosen to exclusively submit those products."
Here, the ABP and AFS websites were clearly violative of Google's policies. Both websites were owned by Steven and offered the same merchandise at the same price. Enforcement by Google of the TOS under these undisputed circumstances was entirely consistent with the express language of the agreement and did not constitute a breach. Even if Google breached the TOS by its conduct, the TOS's limitation of liability clause, which we have determined to be valid and enforceable, would preclude plaintiff from recovering damages. Accordingly, when viewing the evidential materials in a light most favorable to plaintiff, we discern no error when granting summary judgment in favor of Google as to plaintiff's breach of contract claim.
IX.
We now turn to the judge's grant of summary judgment in favor of Google as to plaintiff's breach of the implied covenant of good faith and fair dealing. Every contract entered into under the laws of this state contains an implied covenant of good faith and fair dealing. Kalogeras v. 239 Broad Ave., L.L.C., 202 N.J. 349, 366 (2010). "Good faith" imports "standards of decency, fairness or reasonableness," and "requires a party to refrain from destroying or injuring the right of the other party to receive its contractual benefits." Iliadis v. Wal-Mart Stores, Inc., 191 N.J. 88, 109-10 (2007) (internal citations and quotation marks omitted). "The party claiming a breach of the covenant of good faith and fair dealing 'must provide evidence sufficient to support a conclusion that the party alleged to have acted in bad faith has engaged in some conduct that denied the benefit of the bargain originally intended by the parties.'" Brunswick Hills Racquet Club, Inc. v. Route 18 Shopping Ctr. Assocs., 182 N.J. 210, 225 (2005) (quoting 23 Williston on Contracts § 63:22, at 513-14 (Lord ed. 2002)). The covenant of good faith and fair dealing focuses on the performance and enforcement of a valid agreement more than it regulates contract formation. Id. at 224; see Restatement (Second) of Contracts § 205 (1981) ("Every contract imposes upon each party a duty of good faith and fair dealing in its performance and its enforcement.").
Plaintiff has offered no evidence to support his contention that Google failed to act in good faith throughout the tenure of their business relationship. Google legitimately suspended the AFS website from its product search service for the reasons noted above; namely, AFS's sale of ABP's merchandise at ABP's prices. Moreover, immediately after its later recognition that AFS was not a duplicate of ABP, Google restored plaintiff's access to its product search service, without charge; conduct we hold to be consistent with good faith and fair dealing. We are satisfied there was no error in granting summary judgment on this claim.
X.
Finally, we briefly address plaintiff's argument that the judge erred in granting Google's motion to quash plaintiff's pre-trial subpoenas seeking the testimony of two Google employees at trial. A judge's decision to quash a subpoena is reviewed for abuse of discretion. State v. Medina, 201 N.J. Super. 565, 580-81 (App. Div.), certif. denied, 102 N.J. 298 (1985). "The court on motion made promptly may quash or modify the subpoena or notice if compliance would be unreasonable or oppressive . . . ." R. 1:9-2. Rule 1:9-1 provides:
The testimony of a party who could be subpoenaed may be compelled by a notice in lieu of subpoena served upon the party's attorney demanding that the attorney produce the client at trial. . . . The notice shall be served in accordance with [Rule] 1:5-2 at least [five] days before trial.
The judge here found that plaintiff's subpoenas were procedurally defective, among other things, as the notice in lieu of subpoena, and the subpoena itself, were not served "at least [five] days before trial." Ibid. The subpoena was faxed to Google on Friday, October 11, 2013, when trial was set to begin on October 15, 2013. We therefore discern no abuse of discretion in granting Google's motion to quash plaintiff's subpoena.
XI.
Plaintiff's remaining arguments not specifically addressed in this opinion lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION