ORDER
Plaintiff Irene Cappalli filed this putative class action against Defendant BJ’s Wholesale Club, Inc. (“BJ’s”), alleging breach of contract and, in the alternative, an equitable claim of money had and received.
1. Facts
The following facts are undisputed unless otherwise noted. BJ’s is a corporation that owns and operates warehouse club stores. BJ’s offers twelve-month memberships for a fee.
Cappalli became a BJ’s member on November 11, 2005 through a free sixty-day trial membership. (Def.’s SUF ¶ 12C.)
When Cappalli joined BJ’s in 2005, BJ’s “Core Membership Privileges and Conditions” (“P & C’s”) provided, “[mjembers who renew their Memberships during their expiration month, or within three (3) months after the expiration month, will retain their current expiration month for the renewed year. Memberships renewed more than three (3) months after their original expiration date are subject to new Membership expiration dates at BJ’s discretion” (“renewal policy”). (Ex. A to Atkinson Aff., ECF No. 45-1.) Because Cappalli renewed her membership in March 2006, less than three months after the expiration of her prior membership, she retained her prior expiration date of January 31. In April 2008, BJ’s shortened its renewal policy from three months to one month. (Def.’s SUF ¶ 10.) Also at this time, BJ’s revised its P & C’s to omit the description of its renewal policy. (Ex. B to Atkinson Aff., ECF No. 45-2.) In September 2010, BJ’s adopted a two-month renewal policy and revised its P & C’s to include a description of that policy. (Ex. C to Atkinson Aff., ECF No. 45-3.) All three iterations of the P & C’s, in a separate section drawing no distinction between initial and renewal memberships, provided, “[mjembership is effective for one year from enrollment.” (Exs. A-C to Atkinson Aff.) Throughout Cappalli’s membership, BJ’s membership desk personnel were instructed to provide a copy of the P & C’s to anyone who purchased a membership. (Def.’s SUF ¶ 8.)
BJ’s members are not required to sign any form indicating their agreement to the P & C’s. (Pl.’s Separate Statement of Undisputed Facts (“PL’s SSUF”) ¶60, ECF No. 55.) In fact, BJ’s does not require its members to assent to BJ’s membership renewal policy in any written agreement. (Def.’s Resp. to PL’s Separate Statement of Additional Undisputed Facts (“Def.’s Resp.”) ¶ 61, ECF No. 63.)
Between April 2008 and August 2010, when BJ’s renewal policy was not reflected in its P & C’s, BJ’s provided information about its renewal policy in the “Frequently Asked Questions” section of its website. (Ex. E to Atkinson Aff., ECF No. 45-5.)
It is BJ’s stated practice to provide every member who renews at the membership desk of a BJ’s store a printed receipt showing the expiration date of the renewal membership. (Def.’s SUF ¶ 17.) When Cappalli purchased her renewal membership on February 15, 2007, she received a receipt that stated, “MEMBERSHIP EXPIRES ON 01/08.” (Ex. B. to Renshaw Aff., ECF No. 46-4.) Similarly, when Cappalli purchased her renewal membership on February 12, 2009, she received a receipt that stated, “MEMBERSHIP EXPIRES ON 01/10.” (Ex. B. to Renshaw Aff., ECF No. 46-5.)
It is also BJ’s practice to provide members with a receipt showing their membership expiration date whenever they make a purchase in a BJ’s store. (Def.’s SUF ¶ 18.) Cappalli shopped at BJ’s stores on 46 occasions between November 2005 and January 2011.
Additionally, it is BJ’s practice to send a renewal notice to members during the month that their memberships are due to expire and to send a second notice after their memberships have expired. (Id. at ¶ 22.) Cappalli received a renewal notice from BJ’s in early 2007. This notice stated that Cappalli’s “Membership Expired” in January 2007 and encouraged her to “[rjenew for a year right now.” (Ex. A to Woodward Aff. 49-50, ECF No. 54-1.) The notice listed Cappalli’s “Renewal Date” as January 2007. (Id.) It also stated, “Inner Circle and Business Membership Privileges and Conditions are available at any BJ’s Member Services Desk or online at www.bjs.com.” (Id.)
Cappalli testified at her deposition that, when she renewed her BJ’s membership, she expected the renewal membership to expire twelve months from the date of purchase. (Ex. B to Renshaw Aff. (Cappalli Dep. 128:15-18), ECF No. 46-2.) However, Cappalli also testified that she could not recall the basis of this belief and referred to it as “an assumption.” (Id. at 128:3-12,128:23-129:2.)
BJ’s was aware of the fact that its renewal policy was not member-friendly. One BJ’s employee, in a 2007 internal communication, referred to the policy as the “punish the member rule.” (Ex. C to Woodward Aff., ECF No. 54-3.) During Cappalli’s membership, BJ’s received over 2,000 contacts from members regarding its membership renewal policy. (Id.) BJ’s maintains a “ticket” of each customer contact. (Def.’s Resp. ¶ 55.) Excerpts of tickets from 2007 indicated that at least some BJ’s members were surprised and upset by BJ’s renewal policy. (Ex. C to Woodward Aff.) BJ’s has specific “Renewal Reset FAQs” providing pre-scripted answers to customers’ questions concerning BJ’s renewal policy.
Cappalli filed her Complaint against BJ’s on October 1, 2010. (ECF No. 1.) On June 30, 2011, this Court denied BJ’s motion to dismiss Cappalli’s claims. (ECF No. 21.) Subsequently, BJ’s filed a motion asking this Court to grant summary judgment in its favor on all counts. (ECF No. 43.) Cappalli responded by filing a motion for partial summary judgment on BJ’s affirmative defenses of: (1) “Plaintiffs claims are barred by the terms of the parties’ contractual agreements;” (2) “statutes of limitations and/or statutes of fraud;” (3) failure to mitigate damages; (4) right of setoff; (5) voluntary payment; (6) laches; (7) waiver; (8) estoppel; (9) account stated; and (10) “Plaintiffs claims are not properly maintainable as a class action.” (ECF Nos. 22 and 48.)
II. Discussion
Summary judgment is appropriate when, viewing the record in the light most favorable to the non-moving party, there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56; Taylor v. Am. Chemistry Council,
“[T]he standards are the same where, as here, both parties have moved for summary judgment.” Pac. Ins. Co. v. Eaton Vance Mgmt.,
A defendant moving for summary judgment on the basis of an affirmative defense “has the burden of proving the defense.” Emory v. Miller,
It is undisputed that Cappalli and BJ’s entered into several contracts for renewal memberships. The parties disagree, however, concerning whether they contracted for a renewal term of twelve months from the date of purchase or a renewal term of lesser duration. “Contract interpretation is a question of law.” ADP Marshall, Inc. v. Noresco, LLC,
“In order to establish an express or implied contract a litigant must prove mutual assent or a meeting of the minds between the parties.” Mills v. R.I. Hosp.,
The terms of a contract are thus dependent upon the parties’ objective manifestations, not their undisclosed or secret intentions. See Ret. Bd. of the Emps.’ Ret. Sys. v. DiPrete,
While contract interpretation is generally a question of law, it “becomes a question of fact” when the contract terms are ambiguous. ADP Marshall,
The preliminary question of whether a contractual term is ambiguous is, however, a question of law. Haviland v. Simmons,
Under Rhode Island law, ambiguities in a contract must be construed against the drafter. Id. at 1259-60. An ambiguous contract should also be interpreted in accordance with one party’s understanding where “that party does not know of any different meaning attached by the other, and the other knows the meaning attached by the first party.” See Restatement (Second) of Contracts § 20 (1981). Additionally, ambiguity in the parties’ objective manifestations may negate the mutual assent required to create an enforceable contract. See id.
Here, the parties never expressly agreed upon any particular term of renewal. Thus, in order to determine what renewal term they agreed upon, this Court must consider their objective manifestations. Viewing the evidence in the light most favorable to Cappalli, this Court finds the renewal term to be ambiguous. Two versions of the P & C’s accurately described BJ’s renewal policy in one section, but, in a separate section, those same documents also stated that membership was effective “for one year from enrollment.” Similarly, while the renewal notice did indicate that Cappalli’s “Renewal Date” would be January 2007, it also stated that the duration of the renewal membership would be “a year.” Because Cappalli received the notice after her membership
BJ’s also contends that, because Cappalli was a BJ’s member, she was bound by BJ’s rules of membership, including those contained in the P & C’s, regardless of her knowledge of those rules. The cases cited by BJ’s in support of this argument, however, all involve associations very different from the one at issue in the present case. See Post v. Belmont Country Club, Inc.,
In the present case, unlike in Post and Martin, there is no indication that BJ’s renewal policy was subject to change by BJ’s members. Additionally, while BJ’s does point out that the collection of membership fees allows it to offer low prices to members, it does not contend that the renewal policy itself benefits those members. Unless the word “member” is treated as a talisman, BJ’s is distinct from the organizations at issue in the cases it cites, and, in any event, those cases are not controlling here.
B. Damages
BJ’s contends that, even if this Court finds that genuine issues of fact exist concerning whether the parties contracted for a renewal term of twelve months from the date of purchase, its motion for summary judgment should be granted because Cappalli suffered no damages as a result of BJ’s renewal policy. “[A]n element of a breach of contract claim is proof of damages.” Chrabaszcz v. Johnston Sch. Comm.,
Cappalli argues that, under the terms of her contract with BJ’s, she was entitled to a renewal membership lasting twelve months from the date of purchase. Cappalli purchased her renewal memberships on March 26, 2006, February 15, 2007, February 2, 2008, February 12, 2009, and February 27, 2010, respectively. Each of these memberships expired on January 31 of the following year. It is undisputed that BJ’s provides members a fifteen-day “grace period” after the expiration of their prior memberships during which they may make purchases at BJ’s without paying the 15% non-member surcharge. Thus, Cappalli enjoyed the full benefits of her renewal memberships through February 15. For this reason, Cappalli suffered no damages as a result of BJ’s renewal policy with respect to the renewal memberships she purchased on February 15 or earlier, namely her second, third, and fourth renewal memberships.
In a similar case, Kaymak v. AAA Mid-Atl., Inc., Civil Action No. 10-6532,
Kaymak does not, however, dictate that this Court grant BJ’s motion for summary judgment with respect to Cappalli’s first and fifth renewal memberships. Because Cappalli purchased those memberships on March 26 and February 27, respectively, and her membership benefits terminated on February 15 of the follow
The fact that Cappalli never paid a surcharge at BJ’s does not mean that she suffered no compensable damages as a result of BJ’s renewal policy as a matter of law. See Held v. AAA S. New England, No. 3:11cv105 (SRU),
For the reasons set forth above, the Court grants BJ’s motion for summary judgment on both counts with respect to Cappalli’s second, third, and fourth renewal memberships, but denies that motion with respect to her first and fifth renewal memberships.
C. BJ’s Affirmative Defenses
BJ’s argues that Cappalli’s claims fail under the voluntary payment doctrine, which “bars recovery of payments voluntarily made with full knowledge of the facts.” Solomon v. Bell Atl. Corp.,
In this case, there is a genuine dispute of fact with respect to whether Cappalli knew that her renewal memberships would expire less than twelve months from the date of purchase. While BJ’s explained its renewal policy in its P & C’s and on its website, there is no evidence that Cappalli ever read a description of the policy. Similarly, although BJ’s provided Cappalli with receipts that stated the expiration date of her membership, there is no evidence that Cappalli ever read those receipts.
While Cappalli may have been negligent in her failure to learn the expiration date of her BJ’s membership, it is not clear that her negligence rises to the level of that at issue in cases where federal courts have granted motions for summary judgment on voluntary payment grounds. See Spivey,
In a brief footnote, BJ’s asserts that Cappalli’s claims are also barred by the doctrines of waiver, equitable estoppel, and account stated. With respect to waiver, a grant of summary judgment in favor of either party would be inappropriate for the same reasons that it is inappropriate with respect to the voluntary payment doctrine. “Waiver is the voluntary intentional relinquishment of a known right.” 1800 Smith St. Assocs., LP v. Gencarelli,
The doctrines of equitable estoppel and account stated are not directly applicable to the facts of this case, and, for this reason, Cappalli’s motion for summary judgment is granted with respect to these affirmative defenses. Under Rhode Island law, equitable estoppel requires:
an affirmative representation or equivalent conduct on the part of the person against whom the estoppel is claimed which is directed to another for the purpose of inducing the other to act or fail to act in reliance thereon; and ..., that such representation or conduct in fact did induce the other to act or fail to act to his injury.
Sturbridge Home Builders, Inc. v. Downing Seaport, Inc.,
The Rhode Island Supreme Court has described an “account stated” as “a striking of a balance by an arithmetical computation of debits and credits resulting from a running account between the parties and followed thereafter by an expressed or tacit promise by one, found to be indebted to the other, to pay the agreed balance determined to be owed.” Mello v. Coy Real Estate Co.,
Finally, Cappalli’s motion for summary judgment on BJ’s affirmative defense that “Plaintiffs claims are barred by the terms of the parties’ contractual agreements” is denied. As previously discussed, there is a genuine issue of fact concerning whether the parties contracted for a renewal membership term of twelve months from the date of purchase. If, instead, the parties contracted for a renewal membership of lesser duration, Cappalli’s claims must fail.
D. Atkinson Deposition
After the initiation of this lawsuit, pursuant to Rule 30(b)(6) of the Federal Rules
Cappalli contends that this Court should grant her motion for partial summary judgment because of Atkinson’s refusal to respond to these deposition questions. This argument fails for two reasons. First, the questions posed to Atkinson by BJ’s counsel were improper. See Am. Nat’l Red Cross v. Travelers Indem. Co.,
With respect to the affirmative defense that “Plaintiffs claims are barred by the terms of the parties’ contractual agreements,” Cappalli characterizes Atkinson’s testimony as indicating that there is no agreement between BJ’s and its customers concerning BJ’s renewal policy. This characterization is inaccurate. While Atkinson testified that there is no “written contract” in which BJ’s members agree to the renewal policy reflected in the P & C’s, he did not testify that BJ’s members never agree to the renewal policy in some other manner. (Ex. C to Woodward Aff. (Atkinson Dep. 159:21), ECF No. 50-3.)
E. Money had and Received
In addition to her breach of contract claim, Cappalli brings an equitable claim of money had and received. This claim is essentially one of unjust enrichment. See 66 Am.Jur.2d Restitution and Implied Contracts § 156 (2011) (“An action for ‘money had and received,’ or the more modern action for ‘unjust enrichment,’ is said to be a remedy equitable in nature .... ” (footnotes omitted)). As this Court recognized in its denial of BJ’s motion to dismiss, “it is permissible under Rhode Island law to plead an equitable
“An action for money had and received ‘is maintainable whenever one person has money which in equity and good conscience belongs to another.’ ” Cappalli,
BJ’s motion for summary judgment is denied with respect to Cappalli’s first and fifth renewal memberships. There is evidence in the record indicating that BJ’s was aware of the fact that its customers were being misled concerning its renewal policy and continued the policy nonetheless. This evidence is sufficient to create a genuine issue of fact material to Cappalli’s equitable claim.
BJ’s argument that, even if Plaintiff can successfully establish the elements of her claim of money had and received, any damages must be offset by the benefit she gained from her BJ’s membership, namely waiver of the 15% non-member surcharge, is baseless. Contrary to BJ’s contentions, equitable relief is not an all or nothing proposition. This Court can grant relief without placing the parties in the position they would have been in had the transaction between them never occurred. See Dellagrotta v. Dellagrotta,
For the reasons stated above, Defendant’s motion for summary judgment is GRANTED on both counts with respect to Cappalli’s second, third, and fourth renewal memberships. Defendant’s motion for summary judgment is DENIED on both counts with respect to Cappalli’s other two renewal memberships.
Plaintiffs motion for partial summary judgment is GRANTED with respect to BJ’s affirmative defenses of failure to state a claim, “statutes of limitations and/or statutes of fraud,” failure to mitigate damages, right of setoff, laches, estoppel, account stated, and “Plaintiffs claims are not properly maintainable as a class action.” Plaintiffs motion for summary judgment is DENIED with respect to BJ’s three remaining affirmative defenses, namely “Plaintiffs claims are barred by the terms of the parties’ contractual agreements,” voluntary payment, and waiver.
IT IS SO ORDERED.
Notes
. Between 2006 and 2010, the annual membership fee was $45 for "Inner Circle” members, like Cappalli. (Def.’s Statement of Undisputed Facts ("Def.'s SUF”) ¶ 4, ECF No. 47.)
. In its Statement of Undisputed Facts, BJ’s used paragraph numbers twelve through fourteen in section B and repeated those same paragraph numbers in section C. For this reason, when referring to the paragraphs in section C with duplicated numbers, this Court has included a "C.”
. BJ’s contends that Cappalli “consulted” with an attorney concerning her BJ’s membership in August 2009, before she purchased her last renewal membership. (Def.'s SUF ¶¶ 24, 30.) Cappalli counters that, in her response to Defendant’s interrogatories, she merely stated that she "spoke” to an attorney who she was working for at the time. (Pl.'s Statement of Disputed Facts (“Pl.’s SDF”) ¶ 30, ECF No. 56; Ex. B to Renshaw Aff., ECF No. 46-7.) There is a genuine dispute concerning the extent of Cappalli's interactions with the attorney and, thus, whether those interactions indicate her knowledge of BJ’s renewal policy. For this reason, the Court will not consider Cappalli’s meeting with the attorney in ruling on the parties’ motions. See Taylor v. Am. Chemistry Council,
. In her deposition testimony, Cappalli acknowledged that she received a receipt every time she shopped at BJ's, but she could not recall whether the receipts she received showed her expiration date. (Ex. B to Renshaw Aff. (Cappalli Dep. 106:1-6), ECF No. 46-2.)
. For "Irate Members or cancellation threats only — after explaining the policy,” BJ's instructs its employees to offer to extend the member’s expiration date and explain that this is a "one-time exception” to BJ's policy. (Ex. A to Woodward Aff., ECF No. 54-1.) Employees are instructed not to "suggest”
. Even if BJ’s could establish that Cappalli was bound by the terms of the P & C's, the P & C's did not describe BJ’s renewal policy when Cappalli purchased two of her renewal
. As an initial matter, this Court grants Cappalli's motion for partial summary judgment with respect to BJ's affirmative defenses of: (1) failure to state a claim; (2) "statutes of limitations and/or statutes of fraud;” (3) failure to mitigate damages; (4) laches; and (5) "Plaintiff's claims are not properly maintainable as a class action” because BJ's failed to present any argument concerning these affirmative defenses in its summary judgment papers or at the summary judgment hearing and thus waived its objection. "Issues are considered waived if they are not accompanied by some attempt at developed argumentation.” Am. States Ins. Co. v. LaFlam,