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Wenger v. Cardo Windows

March 16, 2009


On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-4924-07.

Per curiam.


Submitted February 25, 2009

Before Judges Cuff and Baxter.

In this appeal, we review an order that granted summary judgment to defendant, Castle "The Windows People,"*fn1 thereby dismissing the class action complaint filed by plaintiffs, Christopher and Jennifer Wenger,*fn2 in which they alleged that the contract they signed for the purchase of replacement windows violated various consumer protection statutes. We conclude that plaintiffs presented sufficient facts to have survived the dismissal of the majority of their claims, and that the grant of defendant's motion concerning those claims was therefore error.

In particular, the Law Division erred when it rejected plaintiffs' claims arising under the Truth-in-Consumer Contract, Warranty and Notice Act; the Home Repair Financing Act; the Door-to-Door Home Repair Sales Act of 1968 and the Federal Trade Commission's cooling-off rule. We affirm the dismissal of plaintiffs' claims arising under the Consumer Fraud Act and its supplemental provisions, the Home Improvement Contractor Registration Act and the Home Improvement Practices regulations. We also reverse the denial of plaintiffs' motion for class certification, because that denial was premised upon the incorrect determination that defendants violated no applicable statutes or regulations. On remand, after the completion of discovery, the judge is directed to reconsider the class certification motion on the merits.


In March 2007, plaintiffs received from defendant a postcard advertising the sale of replacement windows. Plaintiffs responded by calling defendant and requesting that a sales representative come to their Monroe Township home to demonstrate defendant's products.

On March 17, 2007, one of defendant's salesmen went to plaintiffs' home to make the requested presentation. At the conclusion of the presentation, plaintiffs signed a "Purchase Agreement" in which they agreed to purchase twenty custom-made replacement windows for the price of $10,700. The sales representative offered plaintiffs the opportunity to borrow the entire purchase price of the windows and the cost of installation, to be repaid over a period of sixty months with interest, to which plaintiffs agreed by signing a document entitled "Castle Straight Talk Financing."*fn3 The salesman provided plaintiffs with a copy of these two documents and a third document entitled Notice of Cancellation, before he left their home.

On March 21, 2007, plaintiffs decided to cancel the transaction. They signed the Notice of Cancellation and mailed it to defendant. On or about March 29, 2007, more than a week after plaintiffs mailed the cancellation notice, one of defendant's representatives arrived at plaintiffs' home to measure the windows. Plaintiff was surprised by the man's arrival in light of the contract cancellation plaintiffs had mailed, but permitted him to enter their home. After taking measurements, the representative presented plaintiffs with several additional documents to sign. Plaintiff claimed to have signed the documents and asserts he was never provided with copies. The record does, however, contain a March 29, 2007 credit application to finance a $10,700 loan at an interest rate of 13.24% for sixty months.

On April 5, 2007, plaintiff telephoned defendant and spoke with a representative, Anthony Cardillo, regarding the cancellation. Cardillo informed plaintiff that he could not cancel the contract. Over the telephone, Cardillo offered to reduce the price of the windows from $10,700 to $9,700. When plaintiff agreed to that change, Cardillo prepared and mailed to plaintiffs a document entitled Change Order. No other documents were mailed to plaintiffs. The Change Order listed a reduced contract price of $9,700 at an annual interest rate of 13.24%. Plaintiff executed the Change Order on April 7, 2007, and promptly mailed it back. Notably, the Change Order specified, "Customer agrees that he has not nor will not attempt to cancel this order."

On April 10, 2007, a roofing contractor was performing work at plaintiffs' home. He informed plaintiffs that their bay windows should be replaced only with pre-constructed, single-unit bay windows. He also advised them that bay windows should be secured from the sides of the windows rather than from the top and bottom. That same day, plaintiff telephoned defendant and spoke to Cardillo about the advice he received from the roofer. Cardillo referred plaintiff to one of defendant's engineers, who informed plaintiff that defendant could not provide a one-piece, pre-constructed bay window and that defendant would install all the windows by screwing them into the top and bottom of the window frame. Immediately thereafter, plaintiff left a message for Cardillo informing him that he was canceling the contract.

Plaintiff called Cardillo again the following morning, April 11, 2007. Plaintiff reiterated his earlier message that he was canceling the contract because defendant could not provide the appropriate bay windows and because the windows would be installed in an unacceptable manner. During that conversation, Cardillo agreed that plaintiffs could cancel the order for the six bay windows but he refused to accept the cancellation of the entire order. That same day, plaintiff sent a letter to defendant by regular and certified mail reiterating and confirming that he had canceled the order. In that letter, plaintiff requested copies of all the documents that were signed on March 29, 2007, but he never received a response.

On April 24, 2007, defendant filed a small claims complaint against plaintiffs seeking $3,000 in damages for breach of contract. Plaintiffs filed an eight-count class action complaint in the Law Division on June 1, 2007, as well as a motion to transfer the small claims matter to the Law Division. In response, defendant dismissed its small claims complaint on June 18, 2007. On July 13, 2007, defendant filed a motion to dismiss plaintiffs' complaint, pursuant to Rule 4:6-2(e), for failure to state a claim upon which relief can be granted. Plaintiffs filed a motion for class certification on October 3, 2007.

On January 28, 2008, the motion judge issued a written decision and order dismissing plaintiffs' complaint with prejudice on the following grounds:*fn4 1) the Door-to-Door Home Repair Sales Act did not apply to the parties' transaction; 2) plaintiffs failed to show that they suffered an "ascertainable loss" under the Consumer Fraud Act; 3) plaintiffs did not fall within the definition of "consumer" under the Truth-in-Consumer Contract, Warranty and Notice Act; and 4) because ...

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