GILLIAN L. SHARP VS. SEARS HOME APPLIANCE SHOWROOM, LLC (L-1077-16, BURLINGTON COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1962-16T1

GILLIAN L. SHARP,

Plaintiff-Appellant,

v.

SEARS HOME APPLIANCE
SHOWROOM, LLC (improperly
pled as SEARS, d/b/a
SEARS HOME APPLIANCE),

Defendant-Respondent.
______________________________

Argued May 15, 2018 – Decided June 21, 2018

Before Judges Yannotti, Carroll and DeAlmeida.

On appeal from Superior Court of New Jersey,
Law Division, Burlington County, Docket No.
L-1077-16.

Lewis G. Adler argued the cause for appellant
(Lewis G. Adler and Law Office of Paul N.
DePetris, attorneys; Lewis G. Adler and Paul
N. DePetris, of counsel and on the briefs).

Jerry A. Cuomo argued the cause for respondent
(Landman, Corsi Ballaine & Ford, PC,
attorneys; Jerry A. Cuomo and Fay L. Szakal,
on the brief).

PER CURIAM
 Plaintiff, Gillian L. Sharp, appeals from an order entered

by the trial court on December 19, 2016, which dismissed her

complaint with prejudice. We affirm.

I.

The relevant facts are essentially undisputed. Defendant,

Sears Appliance Showroom, LLC (Sears), operates a retail appliance

store in Burlington County. On July 19, 2015, Sharp purchased a

wall oven from Sears to replace an existing wall oven in her

kitchen. Sharp paid $2990.48 for the oven, and charged that amount

to a Sears credit card she opened on the date of purchase. It was

agreed that Sears would deliver the oven to Sharp's home.

On July 27, 2015, Sears delivered the oven to Sharp's home.

Sears deliverymen removed the existing oven from Sharp's kitchen

cabinet. However, the deliverymen determined that the new oven

would not fit into the space for which it was intended. Sharp

refused to accept the oven, and the deliverymen returned the

existing oven to its place in the cabinet. Sharp returned to the

Sears store the same day and ordered a different oven, which was

also to be delivered to her home. Sharp paid $2845.98 for the

second oven, which was also charged to her Sears credit card.

On August 10, 2015, the Sears deliverymen returned to Sharp's

home and removed the existing oven from the kitchen cabinetry.

The deliverymen attempted to install the second oven, but it would

2 A-1962-16T1
not fit. Sharp refused to accept the second oven, and the

deliverymen returned the existing oven to the cabinet.

Thereafter, Sharp purchased a third oven from a different

retailer. Apparently, the third oven fit into the wall of the

kitchen, after Sharp hired a contractor to modify the cabinetry

in her kitchen. On September 22, 2015, Sears provided Sharp with

a full refund for the cost of both of the ovens. Sears cancelled

Sharp's credit card and closed the account.

On May 9, 2016, Sharp filed a complaint in the trial court

alleging that the receipts Sears had issued to her violate the New

Jersey Truth-in-Consumer Contract, Warranty, and Notice Act

(TCCWNA), N.J.S.A. 56:12-14 to -18. Sharp based her claims on

alleged violations of the Delivery of Household Furniture and

Furnishings Regulations (HFR), N.J.A.C. 13:45A-5.1 to -5.4, which

were adopted by the Division of Consumer Affairs (DCA) pursuant

to the Consumer Fraud Act (CFA), N.J.S.A. 56:8-1 to -210. Sharp

sought to pursue these claims on her own behalf, as well as a

putative class of New Jersey citizens who purchased "household

furniture" as defined in the HFR from Sears.

Sharp alleged in count one that the July 19, 2015 and July

27, 2015 receipts violate the TCCWNA because they failed to include

certain language required by N.J.A.C. 13:45A-5.2(a), specifically

the statement that "The merchandise you have ordered is promised

3 A-1962-16T1
for delivery to you on or before (insert date or length of time

agreed upon)." Sharp claimed that instead of the mandatory

language, the July 19, 2015 receipt stated, "You will be contacted

within [twenty-four] hours to set up the installation

appointment." The July 27, 2015 receipt stated "DELIV. DATE

08/10/15" and also included the language regarding the

installation appointment.

In count two, Sharp alleged the receipts violated the TCCWNA

because they did not include certain language mandated by N.J.A.C.

13:45A-5.3(a). The regulation requires home furniture delivery

contracts to include the following statement: "If the merchandise

ordered by you is not delivered by the promised delivery date,

(insert name of seller) must offer you the choice of (1) canceling

your order with a prompt, full refund of any payments you have

made, or (2) accepting delivery at a specific later date." Ibid.

Sharp acknowledged the receipts Sears provided to her included all

of the mandatory language, except they referred to the "promised

date" rather than the "promised delivery date."

In count three, Sharp claimed the Sears receipts violated the

TCCWNA because they included conditions on the return of

merchandise that allegedly violated N.J.S.A. 13:45A-5.3(c). The

regulation states that a home furniture delivery contract may not

contain "any terms, such as 'all sales final,' 'no cancellations'

4 A-1962-16T1
or 'no refunds,' which violate or are contrary to the rights and

responsibilities provided for by this rule." Ibid.

In count four, Sharp sought a declaratory judgment with regard

to all of the TCCWNA violations pled in the first three counts of

the complaint. She sought a declaration that the Sears sales

documents violated the HFR, and a judgment declaring the contracts

void and unenforceable.

Sears filed a motion to dismiss pursuant to Rule 4:6-2(e),

arguing that Sharp had not stated a claim upon which relief could

be granted. Sharp opposed the motion. The court heard oral argument

on the motion, and on December 19, 2016, filed a written opinion

finding that Sharp had not asserted a cognizable claim under the

TCCWNA. The court filed an order dismissing the complaint with

prejudice. This appeal followed.

On appeal, Sharp argues: (1) she pled viable claims under the

TCCWNA because Sears' non-compliance with the HFR is a per se

violation of the CFA and, therefore, violates a clearly established

legal right of the consumer or responsibility of the seller; (2)

she pled viable TCCWNA claims because the Sears contracts

affirmatively misstate consumer rights and seller responsibilities

under the HFR and omit language required by the HFR; (3) the trial

court erroneously concluded that counts one and two did not state

valid TCCWNA claims because they merely pled an omission rather

5 A-1962-16T1
than an affirmative misstatement; (4) the court erred by dismissing

counts one and two based on an unpublished opinion of the Court

of Appeals for the Third Circuit; (5) the court erred by dismissing

count three on the basis of an interpretation of the HFR in a

brief filed by the DCA; and (6) the declaratory judgment claim was

properly pled because it was not dependent on a viable TCCWNA

claim.

II.

The TCCWNA was enacted "to prevent deceptive practices in

consumer contracts." Dugan v. TGI Fridays, Inc., 231 N.J. 24, 67

(2017) (quoting Kent Motor Cars, Inc. v. Reynolds & Reynolds Co.,

207 N.J. 428, 457 (2011)). In the TCCWNA, the Legislature "did not

recognize any new consumer rights but merely imposed an obligation

on sellers to acknowledge clearly established consumer rights and

provide[] remedies for posting or inserting provisions contrary

to law." Id. at 68 (quoting Shelton v. Restaurant.com, Inc., 214

N.J. 419, 432 (2013)). The TCCWNA provides:

No seller, lessor, creditor, lender or bailee
shall in the course of his business offer to
any consumer or prospective consumer or enter
into any written consumer contract or give or
display any written consumer warranty, notice
or sign after the effective date of this act
which includes any provision that violates any
clearly established legal right of a consumer
or responsibility of a seller, lessor,
creditor, lender or bailee as established by
State or Federal law at the time the offer is

6 A-1962-16T1
 made or the consumer contract is signed or the
warranty, notice or sign is given or
displayed. Consumer means any individual who
buys, leases, borrows, or bails any money,
property or service which is primarily for
personal, family or household purposes.

[N.J.S.A. 56:12-15.]

The TCCWNA authorizes the award of a civil penalty, damages,

attorneys' fees, and costs to an "aggrieved consumer."

Any person who violates the provisions of this
act shall be liable to the aggrieved consumer
for a civil penalty of not less than $100.00
or for actual damages, or both at the election
of the consumer, together with reasonable
attorneys' fees and court costs. This may be
recoverable by the consumer in a civil action
in a court of competent jurisdiction or as
part of a counterclaim by the consumer against
the seller, lessor, creditor, lender or bailee
or assignee of any of the aforesaid, who
aggrieved him. A consumer also shall have the
right to petition the court to terminate a
contract which violates the provisions of
[N.J.S.A. 56:12-15] and the court in its
discretion may void the contract.

[N.J.S.A. 56:12-17.]

Therefore, a plaintiff pursuing a TCCWNA claim must prove

four elements: (1) defendant was a seller; (2) defendant offered

or entered into a written consumer contract; (3) at the time the

written consumer contract is signed or displayed, that writing

contains a provision that violates any clearly established legal

right of a consumer or responsibility of a seller; and (4)

7 A-1962-16T1
plaintiff is an "aggrieved consumer." Spade v. Select Comfort

Corp., 232 N.J. 504, 516 (2018) (citing N.J.S.A. 56:12-15, -17).

"The CFA was enacted to provide[] relief to consumers from

'fraudulent practices in the market place.'" Dugan, 231 N.J. at

50 (quoting Lee v. Carter-Reed Co., 203 N.J. 496, 521 (2010)).

Conduct violating the CFA is defined as:

The act, use or employment by any person of
any unconscionable commercial practice,
deception, fraud, false pretense, false
promise, misrepresentation, or the knowing
concealment, suppression, or omission of any
material fact with intent that others rely
upon such concealment, suppression or
omission, in connection with the sale or
advertisement of any merchandise or real
estate, or with the subsequent performance of
such person as aforesaid, whether or not any
person has in fact been misled, deceived or
damaged thereby, is declared to be an unlawful
practice.

[N.J.S.A. 56:8-2.]

An "unlawful practice" in violation of the CFA may arise from

"(1) an affirmative act; (2) a knowing omission; or (3) a violation

of an administrative regulation." Dugan, 231 N.J. at 51 (citing

Thiedemann v. Mercedes-Benz USA, LLC, 183 N.J. 234, 245 (2005);

Cox v. Sears Roebuck & Co., 138 N.J. 2, 17 (1994)). "A showing of

intent is not essential if the claimed CFA violation is an

affirmative act or a regulatory violation, but such a showing is

necessary if the claimed violation is an omission pursuant to

8 A-1962-16T1
N.J.S.A. 56:8-2." Id. at 51 (citations omitted). Furthermore, a

plaintiff asserting a claim under the CFA must demonstrate an

"ascertainable loss" and "a causal relationship between the

unlawful conduct and the ascertainable loss." Id. at 52 (quoting

D'Agostino v. Maldonado, 216 N.J. 168, 184 (2013)).

The DCA adopted the HFR, which apply to the delivery of

household furniture and furnishings. Spade, 232 N.J. at 509. The

regulations apply to "[a]ny person who is engaged in the sale of

household furniture for which contracts of sale or sale orders are

used for merchandise ordered for future delivery." N.J.A.C.

13:45A-5.1(a).

N.J.A.C. 13:45A-5.1(a) requires the seller to "[d]eliver all

of the ordered merchandise by or on the promised delivery date,"

or "[p]rovide written notice to the consumer of the impossibility

of meeting the promised delivery date." The written notice must

"offer the consumer the option to cancel said order with a prompt,

full refund of any payments already made or to accept delivery at

a specified later time." Ibid. N.J.A.C. 13:45A-5.2 and -5.3

prescribe specific language that must be included in the contract

forms or sales documents. N.J.A.C. 13:45A-5.2(a) requires the

contract forms or sales documents to state the agreed upon delivery

date.

9 A-1962-16T1
 N.J.A.C. 13:45A-5.3(a) generally requires the seller to

include language indicating that if the delivery is not made when

promised, the consumer has the choice of cancelling the order and

receiving a prompt, full refund, or accepting delivery at a later

date. In addition, N.J.A.C. 13:45A-5.3(c) prohibits a seller from

including certain language in a sales contract or agreement, such

as "all sales final," "no cancellations," or "no refunds."

III.

In Spade, the Court addressed two questions that had been

certified by the Third Circuit. 232 N.J. at 508. The questions

were:

1. Does a violation of the . . . [HFR] alone
constitute a violation of a clearly
established right or responsibility of the
seller under the TCCWNA and thus provide[] a
basis for relief under the TCCWNA?

2. Is a consumer who receives a contract that
does not comply with the . . . [HFR], but has
not suffered any adverse consequences from the
noncompliance, an "aggrieved consumer" under
the TCCWNA?

[Ibid.]

In answering the first question, the Court held that the

inclusion of language in a contract of sale or sale order for the

delivery of household furniture that is prohibited by N.J.A.C.

13:45A-5.3(c) "may alone give rise to a violation of a 'clearly

established legal right of a consumer or responsibility of a

10 A-1962-16T1
seller' for purposes of the TCCWNA." Id. at 509 (citing N.J.S.A.

56:12-15).

The Court stated there is "no support in the TCCWNA or in

case law for the proposition that . . . [the HFR] cannot serve as

the source of a consumer's 'clearly established legal right' or a

'responsibility of a seller' under N.J.S.A. 56:12-15." Id. at 519.

The Court explained,

N.J.A.C. 13:45A-5.3(c) is plainly the source
of a "clearly established legal right of a
consumer or responsibility of a seller" within
the meaning of N.J.S.A 56:12-15. The
regulation carries the force of law; indeed,
a violation "shall be subject to the sanctions
contained in" the CFA.

. . . .

[A] furniture seller's inclusion in a consumer
sales contract or agreement of language
prohibited by N.J.A.C. 13:45A-5.3(c) may alone
constitute a violation of a "clearly
established legal right of a consumer or
responsibility of a seller" under N.J.S.A.
56:12-15, and thus may provide a basis for
relief under the TCCWNA.

[Id. at 26–27 (citations omitted).]

In responding to the second question, the Court held that "a

consumer who receives a contract that includes language prohibited

by N.J.A.C. 13:45A-5.3(c), but who suffers no monetary or other

harm as a result of that non-compliance, is not an 'aggrieved

consumer' entitled to a remedy under the TCCWNA." Id. at 509

11 A-1962-16T1
(citing N.J.S.A. 56:12-17). The Court explained that the term

"aggrieved" "distinguishes consumers who have suffered harm

because of a violation of N.J.S.A. 56:12-15 from those who have

merely been exposed to unlawful language in a contract or writing,

to no effect." Id. at 522.

Ultimately, a consumer may be "aggrieved" for purposes of

N.J.S.A. 56:12-17 if he or she has suffered harm as a result of

the defendant's inclusion of prohibited language in a contract or

other writing even if that harm is not a basis for a damages award.

Id. at 523. The Court stated

If, for example, a furniture seller fails to
timely deliver a consumer's furniture, and the
consumer would have sought a refund had he or
she not been deterred by the "no refunds"
language prohibited by N.J.A.C. 13:45A-5.3,
that consumer may be an "aggrieved consumer"
entitled to a civil penalty under N.J.S.A.
56:12-17. If an untimely delivery and
misleading "no refunds" language leave a
consumer without furniture needed for a family
gathering, the consumer may be an "aggrieved
consumer" for purposes of N.J.S.A. 56:12-17.

[Ibid.]

"Proof of harm resulting from contract language prohibited

by N.J.S.A. 56:12-15 may warrant a civil penalty under N.J.S.A.

56:12-17, even if the harm is not compensable by damages." Id. at

524. However, a consumer who receives a contract containing

provisions that violate one of the regulations at issue, but who

12 A-1962-16T1
has suffered no adverse consequences as a result of the contract's

non-compliance with the regulations, is not an "aggrieved

consumer" for purposes of the TCCWNA. Ibid.

[I]f a consumer has entered into a sales
contract containing a provision that violated
N.J.A.C. 13:45A-5.3, but his or her furniture
was delivered conforming and on schedule, and
he or she has incurred no monetary damages or
adverse consequences, that consumer has
suffered no harm. Such a consumer is not an
"aggrieved consumer" under N.J.S.A. 56:12-17.

[Ibid.]
IV.

Here, Sharp argues that the trial court erred by dismissing

her complaint pursuant to Rule 4:6-2(e) for failure to state a

claim upon which relief can be granted. She contends the trial

court erred by finding that counts one and two failed to state

viable claims under the TCCWNA because they were based on the

omission of language required by the HFR. She also contends the

court erred by dismissing count three because the conditions placed

upon returns of merchandise and refunds are reasonable and not

precluded by the HFR.

We need not address these issues because even if we assume

the Sears sales documents and receipts violated the HFR, Sharp

failed to plead sufficient facts showing she is an "aggrieved

consumer" under the TCCWNA. The record shows that the sales

documents did not include a specific delivery date for the first

13 A-1962-16T1
sale, but the second delivery date was specified in the receipt.

There is no claim that the ovens were not delivered as promised.

Sharp therefore has not shown that she was in any way aggrieved

by the absence of the specific language required by N.J.A.C.

13:45A-5.2(a).

Moreover, the record shows that the Sears receipts included

all of the language required by N.J.A.C. 13:45A-5.3(a), with the

exception of the word "delivery." Thus, the receipts state that

if the merchandise is not "DELIVERED BY THE PROMISED DATE," Sears

offers a choice of cancelling the order with a prompt, full refund,

or accepting delivery at a specific later date, rather than if the

merchandise is not "delivered by the promised delivery date."

Clearly, the reference to the "PROMISED DATE" in the receipts

means the "promised delivery date." Sharp has not shown that she

was in any way aggrieved by the omission of the word "delivery"

in the receipts.

Furthermore, Sharp alleges Sears included conditions on

returns and refunds that are not permitted by N.J.A.C. 13:45A-

5.3(c). Sharp claims the following terms are prohibited by the

regulation:

THE ORGINAL RECEIPT MUST BE PROVIDED FOR ALL
RETURNS AND EXCHANGES. ITEMS MUST BE IN THE
ORIGINAL PACKAGING AND CONTAIN ALL ORIGINAL
ACCESSORIES TO BE RETURNED OR EXCHANGED.

14 A-1962-16T1
 . . . .

SOME ITEMS CAN NOT BE RETURNED IF OPENED.
OTHER RESTRICTIONS APPLY.

. . . .

YOU MUST REPORT ANY VISIBLE DAMAGE ON THIS
ITEM WITHIN [SEVENTY-TWO] HOURS OF HOME DEL.
TO BE ELIGIBLE FOR RETURN OR EXCHANGE. IF
VISIBLE DAMAGE IS NOT REPORTED THE REFUND OR
EXCHANGE WON'T BE ACCEPTED.

. . . .

IN THE EVENT OF A RETURN OF ORIGINAL
QUALIFYING MERCHANDISE, REWARD CARD[S] WILL BE
DEDUCTED FROM ANY REFUND AMOUNT.

However, the Sears return and exchange policy does not include

any language expressly prohibited by N.J.A.C. 13:45A-5.3(c). The

Sears sales documents do not set forth prohibited terms such as

"all sales final," "no cancellations," or "no refunds." In any

event, Sharp has not alleged that she was aggrieved in any way by

the Sears return and exchange policy.

As indicated in the complaint, the Sears deliverymen

immediately accepted the return of both ovens after determining

that they did not fit in Sharp's kitchen cabinetry. It is also

undisputed that Sharp received a full refund of the amounts she

paid or agreed to pay for the ovens.

15 A-1962-16T1
 We therefore conclude that in counts one, two, and three,

Sharp failed to state claims upon which relief can be granted. The

trial court did not err in dismissing those claims, with prejudice.

V.

Sharp further argues that the trial court erred by dismissing

count four, in which she sought a declaratory judgment. She

contends that she is entitled to seek relief under the Uniform

Declaratory Judgment Law, N.J.S.A. 2A:16-50 to -62. In her

complaint, Sharp sought a declaration that her contracts with

Sears violated the HFR, and are null, void, and unenforceable.

Sharp's argument lacks sufficient merit to warrant

discussion. R. 2:11-3(e)(1)(E). We note, however, that Sharp has

not stated a viable claim under the TCCWNA based on the alleged

violation of the HFR. Moreover, it is undisputed Sears accepted

return of the merchandise and provided Sharp with a full refund.

There is no allegation that Sears is attempting to enforce the

sales contracts. Thus, the issues that Sharp seeks to litigate in

her declaratory judgment claim are moot. The court did not err by

dismissing count four.

Affirmed.

16 A-1962-16T1