# GREGORY R. DUKE, ETC. VS. ALL AMERICAN FORD, INC. NICOLE BARBARINO, ETC. VS. PARAMUS FORD, INC. EDWARD M. GREENBERG VS. MAHWAH SALES AND SERVICE, INC. MARK WALTERS, ETC. VS. DREAM CARS NATIONAL, LLC (L-3010-15, L-2856-15, L-6105-15 AND L-9571-14, BERGEN COUNTY AND STATEWIDE)(CONSOLIDATED)

> New Jersey Superior Court Appellate Division · July 27, 2018

URL: https://www.frixlaw.com/law-library/cases/4430774

## Case

- **Court:** New Jersey Superior Court Appellate Division
- **Decided:** July 27, 2018
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

NOT FOR PUBLICATION WITHOUT THE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 NOS. A-0795-15T3
A-0796-15T3
A-2338-15T3
A-3514-15T1

GREGORY R. DUKE, on behalf
of himself and all others
similarly situated,

Plaintiff-Appellant,

v.

ALL AMERICAN FORD, INC.,
d/b/a ALL AMERICAN FORD,

Defendant-Respondent.

_____________________________

NICOLE BARBARINO, f/k/a NICOLE
D'ANGELO, on behalf of herself
and all others similarly situated,

Plaintiff-Appellant,

v.

PARAMUS FORD, INC., d/b/a ALL
AMERICAN FORD,

Defendant-Respondent.

__________________________________

EDWARD M. GREENBERG and BARBARA L.
GREENBERG, on behalf of themselves
and all others similarly situated,

Plaintiffs-Appellants,

v.

MAHWAH SALES AND SERVICE, INC.,

Defendants-Respondents.

__________________________________

MARK WALTERS, on behalf of himself
and all others similarly situated,

Plaintiff-Appellant,

v.

DREAM CARS NATIONAL, LLC, GOTHAM
DREAM CARS, LLC, NOAH LEHMANN-HAUPT
and ROBERT FERRETTI,

Defendants-Respondents.

__________________________________

Argued March 27, 2017
Resubmitted November 27, 2017 -
Decided July 27, 2018

Before Judges Sabatino, Nugent and Currier.

On appeal from Superior Court of New Jersey,
Law Division, Bergen County, Docket Nos. L-
3010-15, L-2856-15, L-6105-15, and L-9571-14.

Kelly Magnus Purcaro argued the cause for
appellants Gregory R. Duke in A-0795-15 and
Nicole Barbarino in A-0796-15 (Cohn Lifland
Pearlman Herrmann & Knopf, LLP, attorneys;
Kelly Magnus Purcaro and Alex A. Pisarevsky,
on the briefs).

2 A-0795-15T3
Gavin J. Rooney argued the cause for
respondent All American Ford in A-0795-15 and
Paramus Ford in A-0796-15 (Lowenstein Sandler,
LLP, attorneys; Gavin J. Rooney and Joseph A.
Fischetti, on the briefs).

Michael R. McDonald argued the cause for
amicus curiae New Jersey Coalition of
Automotive Retailers in A-0795-15, A-0796-15
and A-2338-15 (Gibbons, PC, attorneys; Michael
R. McDonald and Caroline E. Oks, on the
briefs).

Michael P. Daly argued the cause for amicus
curiae New Jersey Civil Justice Institute in
A-0795-15 and A-0796-15 (Drinker Biddle &
Reath, LLP, attorneys; Michael P. Daly, Daniel
E. Brewer and Jenna M. Poligo, on the briefs).

Michael A. Galpern argued the cause for amicus
curiae New Jersey Association for Justice in
A-0796-15, A-2338-15 and A-3514-15 (Locks Law
Firm, LLC, attorneys; Michael A. Galpern,
Andrew P. Bell and James A. Barry, on the
briefs).

Jeffrey W. Herrmann argued the cause for
appellant Edward M. Greenberg and Barbara L.
Greenberg in A-2338-15 (Cohn Lifland Pearlman
Herrmann & Knopf, LLP, attorneys; Jeffrey W.
Herrmann, Kelly Magnus Purcaro and Alex A.
Pisarevsky, on the briefs).

Thomas G. Russomano argued the cause for
respondent Mahwah Sales in A-2338-15 (Schiller
& Pittenger, PC, attorneys; Perry A. Pittenger,
of counsel; Thomas G. Russomano, of counsel
and on the brief; Jay B. Bohn, on the brief).

Philip A. Goldstein argued the cause for
amicus curiae Capital One Bank (USA) N.A. in
A-2338-15 (McGuire Woods LLP, attorneys;
Philip A. Goldstein, on the brief).

3 A-0795-15T3
Andrew R. Wolf argued the cause for appellant
Mark Walters in A-3514-15 (The Wolf Law Firm,
LLC, and Poulos LoPiccolo, PC, attorneys;
Matthew S. Oorbeek, Andrew R. Wolf and Joseph
LoPiccolo, on the brief).

Michael R. McDonald argued the cause for
respondents in A-3514-15 (Gibbons, PC,
attorneys; Michael P. McDonald and Caroline
E. Oks, on the brief).

PER CURIAM

These appeals, which we consolidate, concern the purchase,

lease, or rental of motor vehicles and the New Jersey Truth-in-

Consumer Contract, Warranty, and Notice Act ("TCCWNA"), N.J.S.A.

56:12-14 to -18. In three of the cases, plaintiffs filed single-

count, putative class action complaints. In the fourth, plaintiff

pled a putative class action TCCWNA claim in his complaint's first

count. Plaintiffs alleged the existence of certain clauses in the

purchase, lease, and rental documents violated TCCWNA and thus

entitled them to statutory damages. They did not allege they nor

any putative class member suffered an adverse consequence because

of the clauses. As an adverse consequence is a necessary element

of the TCCWNA cause of action, we reject the appeals and affirm

the orders dismissing their class action TCCWNA claims consistent

with the Supreme Court's recent decision in Spade v. Select Comfort

Corp., 232 N.J. 504 (2018).

4 A-0795-15T3
I.

Because we are reviewing orders of dismissal for failure to

state a claim upon which relief can be granted, Rule 4:6-2(e), we

recount the material facts alleged in the complaint and the

documents on which the complaints are based. Banco Popular N. Am.

v. Gandi, 184 N.J. 161, 183 (2005).

A.

The first three cases — Gregory R. Duke v. All American Ford,

Inc., d/b/a All American Ford, Nicole Barbarino v. Paramus Ford,

Inc., d/b/a All American Ford, and Edward M. Greenberg and Barbara

L. Greenberg v. Mahwah Sales and Service, Inc. — involve contracts

for the lease or purchase of vehicles. Plaintiff Gregory R. Duke

leased a Ford Explorer from defendant All American Ford, Inc.

Plaintiff Nicole Barbarino leased a Ford Edge from defendant

Paramus Ford, Inc. Plaintiffs Edward M. Greenberg and Barbara L.

Greenberg purchased a Ford Mustang from defendant Mahwah Sales and

Service, Inc. Among the documents plaintiffs signed were "Motor

Vehicle Retail Purchase Order Forms" ("Order Forms") that

contained the following clause (the "Taxes Clause"):

Payment of Sales and Use Taxes: The
price of the motor vehicle specified on the
face of this Order includes reimbursement for
certain Federal Excise taxes but does not
include sales taxes and use taxes (Federal,
State or Local) or other taxes, unless
expressly stated. Consumer assumes and agrees
5 A-0795-15T3
to pay, unless prohibited by law, any such
sales, use or occupational taxes imposed on
or applicable to the transaction covered by
this Order, regardless of which party may have
primary tax liability.

[(Emphasis added).]

The plaintiffs' putative class action complaints alleged the

Taxes Clause in the Order Forms violated Section 16 of the TCCWNA,

which states, among other terms:

No consumer contract, notice or sign
shall state that any of its provisions is or
may be void, unenforceable or inapplicable in
some jurisdictions without specifying which
provisions are or are not void, unenforceable,
or inapplicable within the State of New
Jersey. . . .

[N.J.S.A. 56:12-16 ("Section 16").]

Plaintiffs asserted the existence in the Order Forms of a

clause that violated Section 16 entitled them and class members

to statutory penalties under the TCCWNA's remedial provision,

N.J.S.A. 56:12-17 ("Section 17"), which states:

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 attorney’s 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
6 A-0795-15T3
consumer also shall have the right to petition
the court to terminate a contract which
violates the provisions of Section 2 of this
act and the court in its discretion may void
the contract.

No complaint alleged a plaintiff or putative class member suffered

damage or any adverse consequence because of the existence of the

Taxes Clause in the Order Forms.

The fourth case, Mark Walters v. Dream Cars National, LLC,

Gotham Dream Cars, LLC, Noah Lehmann-Houpt, and Robert Feretti,

involved Walters' rental of a Lamborghini Murcielago LP 640

Roadster from Dream Cars National, LLC ("Dream Cars National"),

in Englewood.1 He intended to drive the Lamborghini in the 2012

Gumball 3000 Rally, a weeklong trip across the United States and

Canada with periodic events scheduled along the way.

Walters' First Amended Complaint included four counts. The

first count alleged a TCCWNA claim on behalf of a putative class.

The remaining three counts alleged causes of action concerning

only Walters. These counts alleged a violation of the New Jersey

1
Walters asserted in the complaint that Dream Cars National and
Gotham Dream Cars, LLC were interrelated companies and the
individual defendants were principals of the companies. He also
alleged various theories as to why those defendants not a party
to the rental agreement were nonetheless liable. These theories
are not relevant to these appeals, so we refer only to Dream Cars
National as the defendant.
7 A-0795-15T3
Consumer Fraud Act ("CFA"), N.J.S.A. 56:8-1 to -210, a violation

of the TCCWNA based on the CFA, and breach of the rental agreement.

The rental agreement between Walters and Dream Cars National

included the following clauses in its sixth, seventh, and twelfth

paragraphs (respectively, the "Insurance Clause," the "Penalty

Clause," and the "Release Clause"):

Where state law requires us to provide auto
liability insurance, or if you have no auto
liability insurance, we provide auto liability
insurance (the "Policy") that is secondary to
any other valid and collectible insurance
whether primary, secondary, excess or
contingent. The policy provides bodily injury
and property damage liability coverage with
limits no higher than minimal levels
prescribed by the vehicle responsibility laws
of the state where the damage or loss occurs.
You and we reject PIP, medical payments, no
fault and uninsured and under-insured motorist
coverage, where permitted by law. . . .

You will pay us, or the appropriate
government authorities, on demand, all charges
due us under this Agreement including . . .
(i) a 2% per month late payment fee, or the
maximum amount allowed by law on all amounts
past due . . . (k) $25, or the maximum amount
permitted by law, whichever is greater, if you
pay us with a check returned unpaid for any
reason. . . .

Unless prohibited by law, you release us
from any liability for consequential, special
or putative damages in connection with this
rental or the reservation of a vehicle. If any
provision of this agreement is deemed void or
unenforceable, the remaining provisions are
valid and enforceable. . . .

8 A-0795-15T3
[(Emphasis added).]

The complaint expressly stated the following "questions of

law and fact common to the members of the Class":

a. Whether [the Insurance Clause] of the
Rental Agreement and Addendum used by
Defendants in the transactions with Plaintiff
and those similarly situated violated the
TCCWNA by stating "You and we reject PIP,
medical payments, no-fault and uninsured and
under-insured motorist coverage, where
permitted by law.", and failing to specify
what the law in New Jersey is and if it permits
rejection of the insurance coverage;

b. Whether [the Penalty Clause] of the
Rental Agreement and Addendum used by
[d]efendants in the transactions with
[p]laintiff and those similarly situated
violated the TCCWNA by stating ". . . a 2%
late payment fee, or the maximum allowed by
law . . ." and ". . . $25 or the maximum amount
permitted by law, whichever is greater . . .",
and failing to specify what the law in New
Jersey is and failing to specify whether the
law in New Jersey permitted the late and
returned-check charges set forth therein;

c. Whether [the Release Clause] of the
Rental Agreement and Addendum used by
[d]efendants in the transactions with
[p]laintiff and those similarly situated
violated the TCCWNA by stating "Unless
prohibited by law, you release us from any
liability . . .", and failing to specify what
the law in New Jersey is and failing to specify
whether the law in New Jersey prohibited the
release from liability set forth therein; and

d. Whether [p]laintiff and those similarly
situated are entitled to statutory damages of
not less than $100 for each violation of
TCCWNA.
9 A-0795-15T3
The amended complaint did not allege Walters or a putative

class member suffered any adverse consequence or damage because

of the existence of the Insurance, Penalty, and Release Clauses.

B.

In each case, after plaintiffs filed their respective

complaints, defendants filed motions to dismiss the complaints

under Rule 4:6-2(e) for failure to state a claim upon which relief

could be granted. The court dismissed the Duke, Barbarino, and

Greenberg complaints, and dismissed the TCCWNA claims in the first

and third counts of the Walters amended complaint.

The court determined in Duke, Barbarino, and Greenberg the

Taxes Clause did not violate the TCCWNA. The court explained when

plaintiffs executed the Order Forms, they were obligated under New

Jersey law to pay the sales tax on leased or purchased vehicles.

The court observed plaintiffs did not allege they suffered any

injury as a result of the Taxes Clause.

Addressing the Taxes Clause language plaintiffs deemed

unlawful — i.e., "[c]onsumer assumes and agrees to pay, unless

prohibited by law, any such sales, use or occupational taxes

imposed on or applicable to the transaction" — the court noted the

language did not state the Taxes Clause varied by State. The

court concluded because Section 16 of the TCCWNA prohibits a

10 A-0795-15T3
consumer contract from stating a provision or provisions "may be

void, enforceable or inapplicable in some jurisdictions without

specifying which provisions are or are not void, unenforceable or

inapplicable within the State of New Jersey," the statute applied

only to multi-jurisdictional contracts. The court noted if

plaintiffs' interpretation of Section 16 were correct, plaintiffs

and the putative class would reap a windfall in the form of civil

penalties, despite suffering no harm or deprivation of rights, and

thereby subject retailers to potentially endless liability even

though they seemingly comply with the language of the TCCWNA as

drafted.

For similar reasons, the court dismissed the First Amended

Complaint's putative class action count in Walters, as well as the

third count's TCCWNA claim based on a CFA violation. The court

rejected Walters' argument that "the TCCWNA . . . flatly

prohibit[s] such flexible language as 'where permitted by law',

'maximum amount allowed by law', or 'unless prohibited by law'

even in cases where the applicability of New Jersey law is

uncontroverted or no known right of the consumer has been

violated." The court concluded Section 16 contained an express

jurisdictional or geographic qualifier in its prohibitory

language. In other words, the prohibition in Section 16 applies

only when a contractual provision may be void, unenforceable or
11 A-0795-15T3
inapplicable in some jurisdictions. The court deemed

"jurisdictions" to be the geographic qualifier. If a contract –

such as Walters' rental agreement – were subject to New Jersey law

only, the Section 16 prohibition did not apply to the transaction.

The rental agreement in Walters expressly provided, "[t]his

agreement and all associated vehicle rentals are governed by the

laws of the State of New Jersey." There is no geographic ambiguity

in that declaration.

The court also concluded the Insurance, Penalty, and Release

Clauses did not violate the TCCWNA because they did not

"declaratively or impliedly state . . . [they] may be void,

unenforceable, or inapplicable in some state without specifying

the validity, enforceability, or applicability in the State of New

Jersey." Thus, according to the court, the clauses "nowhere

implicate[] other state law."

Plaintiffs in Duke, Barbarino, and Greenberg appealed.

Walters filed a motion for leave to appeal. We granted Walters

"leave to appeal the trial court's . . . order insofar as it

dismissed Count I of the First Amended Complaint, plaintiff's

class-based claim." We denied Walters "[l]eave to appeal . . .

insofar as the order dismissed Count III of the First Amended

Complaint."

12 A-0795-15T3
During the appellate proceedings, we granted leave to appear

as amicus curiae to the New Jersey Coalition of Automotive

Retailers, Inc. (NJCAR), the New Jersey Association for Justice,

the New Jersey Civil Justice Institute, and Capital One Bank (USA),

N.A. We also invited supplemental briefs, most recently following

the Supreme Court's decision in Spade.

II.

In their initial appellate arguments, plaintiffs asserted the

trial court erred in finding the Taxes Clause at issue in Duke,

Barbarino, and Greenberg and the Insurance, Penalty, and Release

Clauses at issue in Walters did not violate Section 16 of the

TCCWNA. They contended the "unless prohibited by law" phrase in

the Order Forms and phrases such as "where state law requires us"

and "the maximum amount permitted by law" found in Walters' rental

agreement are the substantial equivalent of the language

prohibited by Section 16 of the TCCWNA. According to plaintiffs

in Duke, Barbarino, and Greenberg, in order to state a claim for

relief under Section 16, a complaint must "sufficiently allege

facts which satisfy three elements." The elements, according to

plaintiffs, are:

1) There is a consumer contract;

2) The consumer contract states that one of
its provisions is or may be void,

13 A-0795-15T3
unenforceable or inapplicable in some
jurisdictions; and

3) The consumer contract fails to specify
whether this provision is or is not void,
unenforceable or inapplicable in New Jersey.

Plaintiffs insisted their complaints pled facts to satisfy these

elements.

Following the Supreme Court's decision in Spade, plaintiffs

in Duke, Barbarino, and Greenberg acknowledged "[t]he Supreme

Court in Spade determined that an additional element of 'harm' is

required to be an 'aggrieved consumer' entitled to relief under

TCCWNA Section 15."2 Plaintiffs asked the court to remand their

cases to the trial court with leave to file amended complaints.

In their initial arguments, defendants responded the TCCWNA's

plain language and legislative history supported the trial court's

decision. They argued that Section 16 neither obligated defendants

to inform consumers of the state of the law in New Jersey nor

barred the use of conditional language in consumer contracts.

Defendants also argued the Taxes, Insurance, Penalty, and Release

Clauses did not state they were or may be void, unenforceable or

2
Walters argued that because his claim for contractual damages
included the two percent late fee, he had suffered actual harm.
Even if such a claim is viable under the TCCWNA, Walters' complaint
makes clear this claim involves his individual causes of action,
not his class action TCCWNA claim, the latter being the only claim
for which we granted leave to appeal.

14 A-0795-15T3
inapplicable in some jurisdictions, and therefore did not violate

Section 16. Lastly, defendants argued when clauses such as these

conform with New Jersey law, they do not offend the TCCWNA.

Amicus Capital One Bank reiterated defendants' arguments and

added that use of conditional language in multi-jurisdictional

contracts did not necessarily constitute a Section 16 violation.

Capital One Bank also argued that plaintiffs' Section 16 claim

concerning the Taxes Clause failed due to the absence of any

allegation the Retail Order containing the Taxes Clause was void,

unenforceable, or inapplicable in New Jersey.

Amicus NJCAR reiterated and amplified defendants' arguments.

Amicus New Jersey Civil Justice Institute added that to be "an

aggrieved consumer" under TCCWNA's Section 17, a plaintiff must

have suffered "some measure of concrete, particularized harm."

More specifically, the New Jersey Civil Justice Institute argued

Section 17 of TCCWNA entitles only "aggrieved" consumers to the

$100 remedial penalty and a consumer is not "aggrieved" under

Section 17 merely by being a party to a contract containing clauses

that violate either Section 15 or 16. Amicus The New Jersey

Association for Justice argued Section 16 did not require proof

that a contract was used in multiple jurisdictions or that a

predicate violation had occurred; and, that the remedial

provisions of Section 17 entitled an aggrieved consumer to the
15 A-0795-15T3
statutory remedy even absent proof of actual deception or actual

damages.

Following the Supreme Court's decision in Spade, defendants

and the amici aligned with them argued the Spade decision

foreclosed "no injury" TCCWNA class actions. They argued the

Spade holding was another ground — in addition to those grounds

argued in their previous submissions — for affirming the trial

court orders dismissing the putative class action TCCWNA claims.

III.

A.

Motions to dismiss under Rule 4:6-2(e) "should be granted

only in rare instances and ordinarily without prejudice." Smith

v. SBC Commc'ns, Inc., 178 N.J. 265, 282 (2004). This standard

"is a generous one." Green v. Morgan Props., 215 N.J. 431, 451

(2013).

[A] reviewing court searches the complaint in
depth and with liberality to ascertain whether
the fundament of a cause of action may be
gleaned even from an obscure statement of
claim, opportunity being given to amend if
necessary. At this preliminary stage of the
litigation the Court is not concerned with the
ability of plaintiffs to prove the allegation
contained in the complaint. For purposes of
analysis plaintiffs are entitled to every
reasonable inference of fact. The examination
of a complaint's allegations of fact required
by the aforestated principles should be one
that is at once painstaking and undertaken
with a generous and hospitable approach.
16 A-0795-15T3
[Printing Mart-Morristown v. Sharp Elecs.
Corp., 116 N.J. 739, 746 (1989) (citations
omitted).]

Nonetheless, a court must dismiss a complaint if it fails "to

articulate a legal basis entitling plaintiff to relief." Sickles

v. Cabot Corp., 379 N.J. Super. 100, 106 (App. Div. 2005) (citation

omitted). "A pleading should be dismissed if it states no basis

for relief and discovery would not provide one." Rezem Family

Assocs., LP v. Borough of Millstone, 423 N.J. Super. 103, 113

(App. Div. 2011) (citation omitted).

Our review of a trial court's order dismissing a complaint

under Rule 4:6-2(e) is plenary. Gonzalez v. State Apportionment

Comm'n, 428 N.J. Super. 333, 349 (App. Div. 2012). We apply the

same standard as the trial judge. Malik v. Ruttenberg, 398 N.J.

Super. 489, 494 (App. Div. 2008).

B.

When the Legislature enacted the TCCWNA in 1981, it "did not

recognize any new consumer rights but merely imposed an obligation

on sellers to acknowledge clearly established consumer rights and

provided remedies for posting or inserting provisions contrary to

law." Dugan v. TGI Fridays, Inc., 231 N.J. 24, 68 (2017) (quoting

Shelton v. Restaurant.com, Inc., 214 N.J. 419, 432 (2013) (citing

N.J.S.A. 56:12-15 to -16)). The Legislature had observed that

17 A-0795-15T3
"[f]ar too many consumer contracts, warranties, notices and signs

contain provisions which clearly violate the rights of consumers"

and that the "very inclusion in a contract, warranty, notice or

sign deceives a consumer into thinking they are enforceable, and

for this reason the consumer often fails to enforce his rights."

Ibid. (alteration in original) (quoting Sponsor's Statement to A.

1660 to 1980).

For these reasons, the TCCWNA prohibits sellers, lessors,

creditors, lenders and bailees from offering or entering into

written consumer contracts, or displaying any written consumer

warranties, notices, or signs, that include "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." N.J.S.A. 56:12-15. In

addition, in Section 16, the TCCWNA prohibits the inclusion in a

consumer contract, warranty, notice or sign of language stating

"that any of its provisions is or may be void, unenforceable, or

inapplicable in some jurisdictions without specifying which

provisions are or are not void, unenforceable or inapplicable

within the State of New Jersey."

Spade involved plaintiffs who signed contracts to purchase

furniture. The contracts included language that violated

regulations the Attorney General had promulgated under the
18 A-0795-15T3
authority of the CFA concerning the content of contracts of sale

or sale orders for the delivery of household furniture. Spade,

232 N.J. at 508. The Supreme Court addressed two questions of law

certified to it by the United States Court of Appeals for the

Third Circuit:

1. Does a violation of the Furniture
Delivery Regulations alone constitute a
violation of a clearly established right or
responsibility of the seller under the TCCWNA
and thus provides a basis for relief under the
TCCWNA?

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

[Id. at 508-09.]

The Supreme Court "answer[ed] the first certified question in the

affirmative and the second certified question in the negative."

Id. at 509.

The Court noted the second question required it to "determine

whether a consumer who receives a contract containing provisions

that violate one of the regulations at issue, but who has suffered

no adverse consequences as a result of the contract's noncompliance

with the regulation, constitutes an 'aggrieved consumer,' as that

term is used in N.J.S.A. 56:12-17." Id. at 520. Finding ample

evidence of legislative intent in the TCCWNA's plain language to

19 A-0795-15T3
answer the question, the Court reasoned that if the term "aggrieved

consumer" in [Section 17], the TCCWNA's remedial provision, meant

nothing more than the word "consumer" as defined in Section 15 —

any individual who buys, leases, borrows, or bails any money,

property or service which is primarily for personal, family or

household purposes — the term "aggrieved" in Section 15 would be

be superfluous. Id. at 521-22.

To give the term "aggrieved" significance, and relying on

Black's Law Dictionary (5th ed. 1979), the Oxford English

Dictionary (2d ed. 1989), and Webster's Third New International

Dictionary,(3d ed. 1981) as "reference sources contemporaneous to

the TCCWNA's enactment," the Court interpreted the term "aggrieved

consumer" as denoting "a consumer who has suffered some form of

harm as a result of the defendant's conduct." Spade, 232 N.J. at

522.

The Court did not, however, "view that harm to be limited to

injury compensable by monetary damages." Id. at 523. For example,

"[i]f 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." Id. at 523-24. Nevertheless, the Court

concluded that "[i]n the absence of evidence that the consumer

suffered adverse consequences as a result of the defendant's
20 A-0795-15T3
regulatory violation, a consumer is not an 'aggrieved consumer'

for purposes of the TCCWNA." Id. at 524.

The Court defined the four elements of a Section 15 TCCWNA

claim: (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)

plaintiff is an "aggrieved consumer." Id. at 516.

Under Section 16, the third element would require proof that

at the time a written consumer contract is signed or a written

consumer warranty, notice or sign is displayed, the writing

contains language prohibited by that statutory section.

Concerning the Supreme Court's holding in Spade, we discern no

significant difference between Sections 15 and 17 on the one hand,

and Sections 16 and 17 on the other; nor have plaintiffs argued

there is such a distinction.

In the four actions before us, plaintiffs' class action claims

all fail to state a viable TCCWNA cause of action. The complaints

do not allege that any plaintiff or any member of a putative class

has suffered harm or an adverse consequence as the result of a

consumer contract, notice, sign, or warranty containing any

provision or language prohibited by Section 16. Accordingly, the
21 A-0795-15T3
trial court properly dismissed the class action TCCWNA complaints

for failure to state a claim upon which relief can be granted.

Plaintiffs request that these matters be remanded to permit

them to amend their complaints. The Supreme Court has admonished

that "dismissals pursuant to Rule 4:6-2(e) should ordinarily be

without prejudice and that plaintiffs generally should be

permitted to file an amended complaint to cure the defects in

their pleading." Nostrame v. Santiago, 213 N.J. 109, 128 (2013).

Here, however, plaintiffs have not explained in their post-Spade

briefs how putative class members could have suffered an adverse

consequence under the contracts. We need not mandate an exercise

in futility. See Interchange State Bank v. Rinaldi, 303 N.J.

Super. 239, 256 (1997) ("courts are free to refuse leave to amend

when the newly asserted claim is not sustainable as a matter of

law. In other words, there is no point to permitting the filing

of an amended pleading when a subsequent motion to dismiss must

be granted." (quoting Mustilly v. Mustilly, 287 N.J. Super. 605,

607 (Ch. Div. 1995)). Hence we affirm the dismissal of the class

action TCCWNA claims with prejudice.

In view of our disposition of these matters, we need not

address defendants' remaining arguments for affirmance.

22 A-0795-15T3
IV.

In Duke, Barbarino, and Greenberg, plaintiffs' putative

TCCWNA class action complaints were properly dismissed in their

entirety for failing to state a claim upon which relief could be

granted, the complaints having failed to allege plaintiffs or any

putative class member suffered an adverse consequence as a result

of language in a consumer contract that allegedly violated the

TCCWNA. For the same reason, the first count of Walters' amended

complaint was properly dismissed. The orders dismissing the TCCWNA

class actions under Rule 4:6-2(e) are affirmed. Walters is

remanded for further proceedings on the open second and fourth

counts of the complaint. We do not retain jurisdiction.

23 A-0795-15T3

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4430774. Public record. Not legal advice.