                        NOT FOR PUBLICATION WITHOUT THE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
