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Christopher Wenger and Jennifer Wenger, On Behalf of Themselves and v. Cardo Windows

February 1, 2012


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

Per curiam.


Argued March 2, 2011

Before Judges Fuentes, Ashrafi and Nugent.

In this class action case, plaintiffs seek injunctive relief and statutory civil penalties against defendants in connection with the sale of residential windows. This is the second time we have been asked to review the trial court's decision concerning the certification of this class action. In the first appeal, we affirmed in part and reversed in part the trial court's grant of defendants' summary judgment motion and dismissal of plaintiffs' complaint. Wenger v. Cardo Windows, No. A-3076-07 (App. Div. March 16, 2009).

Specifically, we affirmed the court's dismissal of plaintiffs' claims under the Consumer Fraud Act (CFA), N.J.S.A. 56:8-1 to -20, and its supplemental provisions, the Contractor's Registration Act (CRA), N.J.S.A. 56:8-136 to -152, and the Home Improvement Practices regulations, N.J.A.C. 13:45A-16.1 to -16.2, and reversed the court's dismissal of the claims arising under the Door-to-Door Home Repairs Sales Act of 1968 (DDHRSA), N.J.S.A. 17:16C-95 to -103, the Federal Trade Commission (FTC) "Cooling-Off Rule," 16 C.F.R. 429.1, the Home Repair Financing Act (HRFA), N.J.S.A. 17:16C-93 to -103, and the Truth-in-Consumer Contract Warranty and Notice Act (TCCWNA), N.J.S.A. 56:12-14 to -18. Wenger, supra, slip op. at 2. In this light, we remanded for the court to reconsider its denial of plaintiffs' motion for class certification. Id. at 3.

On remand, plaintiffs renewed their motion for class certification, this time limited to the legal bases we upheld in our prior opinion. After hearing from counsel, the court granted plaintiffs' motion for class certification. We denied defendants' motion for leave to appeal the trial court's ruling certifying the class. The Supreme Court summarily reversed our decision and remanded for this court to decide whether the trial court erred in granting class certification. Wenger v. Cardo Windows, Inc., 201 N.J. 496 (2010). We now affirm.


The salient facts of this case were succinctly described by our colleagues who made up the panel that decided the earlier appeal:

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." 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 [sic] 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. [Wenger, supra, slip op. at 3-6 (footnote omitted).]

On remand, the trial court followed our directive and reconsidered its denial of plaintiffs' motion for class certification. Applying the standard in Rule 4:32-1, the court granted plaintiffs' motion and certified a class consisting of:

All persons who, at any time on or after December 31, 2005, received a transaction document from Defendants the same as or similar to the transaction documents given to Plaintiffs.

The court found plaintiffs had established the four general prerequisites to class certification under Rule 4:32-1(a). In addition, the court found that plaintiffs established the appropriateness of injunctive relief under Rule 4:32-1(b)(2), and satisfied the concerns indicated in Rule 4:32-1(b)(3). On this latter point, the trial court found:

[A] class action is appropriate [here] because common questions of law or fact "predominate over any questions affecting only individual members" and the class action mechanism is "superior to other available methods for the fair and efficient adjudication of the controversy." The common nucleus of operative facts are that the Wengers and all class members allegedly received transaction documents from Defendants in connection with a home improvement that Plaintiffs claim violated DDHRSA, the FTC Cooling-Off Rule, and/or HICRA. Accordingly, common issues of fact and law predominate over any individual issue. Moreover, class certification is superior in this situation because a class action will cause an orderly and expeditious administration of the claims of the class and will foster economies of time, effort, and expense.


Defendants now appeal arguing that class certification was improperly granted because the four prerequisites of Rule 4:32-1(a) were not met. We disagree. Our analysis of the requirements of Rule 4:32-1 will be guided by the overarching public policy favoring class actions in cases involving the adjudication of numerous claims arising from a common nucleus of operative facts, for which the amount of recovery is so small that it becomes impractical to litigate on a case-by-case basis. United Consumer Fin. Servs. Co. v. Carbo, 410 N.J. Super. 280, 295 (App. Div. 2009) (citing Iliadis v. Wal-Mart Stores, Inc., 191 N.J. 88, 103-06 (2007)).

Class action cases are governed by Rule 4:32-1 and must satisfy the two-step process described therein. Gross v. Johnson & Johnson-Merck Consumer Pharms. Co., 303 N.J. Super. 336, 341 (Law Div. 1997). The party seeking certification must first establish that the four prerequisites of Rule 4:32-1(a), commonly referred to as "numerosity, commonality, typicality and adequacy of representation" have been satisfied. Carroll v. Cellco P'ship, 313 N.J. Super. 488, 494 (App. Div. 1998). Class certification is thus appropriate only if (1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class. [Rule 4:32-1(a).]

If those prerequisites are met, the class applicant must then satisfy one of the three alternatives for maintaining a class action under Rule ...

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