William DeSimone, as Executor of the Estate of Evelyn DeSimone, deceased, individually in such capacities and on behalf of all others similarly situated, Plaintiff-Respondent, v. Springpoint Senior Living, Inc., Springpoint at Monroe Village, Inc., Springpoint at Montgomery, Inc., Springpoint at Crestwood, Inc., Springpoint at Meadow Lakes, Inc., and Springpoint at the Atrium, Inc., Defendants-Appellants.
A-37 September Term 2022 087891
SUPREME COURT OF NEW JERSEY
January 10, 2024
256 N.J. 172
JUSTICE FASCIALE
SYLLABUS
This syllabus is not part of the Court’s opinion. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Court and may not summarize all portions of the opinion.
William DeSimone v. Springpoint Senior Living, Inc. (A-37-22) (087891)
Argued September 26, 2023 -- Decided January 10, 2024
FASCIALE, J., writing for a unanimous Court.
The Court considers whether the refund provision contained in
Plaintiff William DeSimone and the class of plaintiffs he represents brought suit against defendant Springpoint Senior Living, Inc. (Springpoint). Alleging in relevant part that Springpoint violated the CFA with regard to representations about its entrance fee refund policy, plaintiffs sought the return of “all monies received or collected from” them by Springpoint. Plaintiffs relied on
Springpoint moved to dismiss, arguing that
HELD: The refund provision is limited in scope:
1. From its enactment in 1960, the CFA has imposed liability upon those who engage in certain “unlawful practice[s].” See
2. Chapter 347’s refund provision contains key language suggesting its scope is limited: “Any person violating the provisions of the within act shall be liable for a refund of all moneys acquired by means of any practice declared herein to be unlawful.”
3. Plaintiffs allege that Springpoint engaged in deceptive advertising practices and provided misleading disclosure statements regarding Springpoint’s return policy of resident entrance fees under its “90% refundable plan.” Those allegations pertain entirely to misrepresentations about fees charged by a senior living facility. None of plaintiffs’ allegations are related to misrepresentations of food. Thus, the claims are not governed by
REVERSED and REMANDED to the trial court.
CHIEF JUSTICE RABNER and JUSTICES PATTERSON, SOLOMON, PIERRE-LOUIS, WAINER APTER, and NORIEGA join in JUSTICE FASCIALE’s opinion.
Argued September 26, 2023 Decided January 10,
Bruce W. Clark argued the cause for appellants (Clark Michie and Morgan Lewis & Bockius, attorneys; Bruce W. Clark, Christopher J. Michie, Stephanie R. Feingold, and Jamie Huffman, on the briefs).
Eric S. Pasternack argued the cause for respondent (Cohen, Placitella, & Roth and Mayer Law Group, attorneys; Eric S. Pasternack, Christopher M. Placitella, Michael Coren, William L. Kuzmin, and Carl Mayer, on the briefs).
Alex R. Daniel argued the cause for amicus curiae New Jersey Civil Justice Institute (New Jersey Civil Justice Institute, attorneys; Anthony M. Anastasio, of counsel, and Alex R. Daniel, of counsel and on the brief).
Edward J. Fanning, Jr., argued the cause for amici curiae New Jersey Business & Industry Association, New Jersey Chamber of Commerce, and Commerce and Industry Association of New Jersey (McCarter & English, attorneys; Edward J. Fanning, Jr., David R. Kott, and Leroy E. Foster, of counsel and on the brief).
JUSTICE FASCIALE delivered the opinion of the Court.
In 1960, the Legislature enacted the New Jersey Consumer Fraud Act (CFA) to protect New Jersey consumers from unconscionable and deceptive commercial practices. Over time, to achieve that goal, the Legislature has expanded consumer protections through various supplemental statutes, one of which is central to this appeal.
Striving to combat food-related fraud, the Legislature enacted L. 1979, c. 347 (Chapter 347), codified at
We hold that the refund provision is limited in scope:
We therefore reverse the order under review and enter partial summary judgment in defendants’ favor, dismissing with
I.
A.
We derive the pertinent facts from the allegations contained in plaintiffs’ amended complaint.
In February 2009, plaintiff William DeSimone and his siblings moved their mother, Evelyn DeSimone, into Springpoint Monroe Village, one of the “Continuing Care Retirement Communities” owned and operated by defendant Springpoint Senior Living, Inc. (Springpoint). In addition to monthly service fees and “other fees” relating to activities, incidentals, and medical care, Springpoint charges an entrance fee for residents. The amount of the entrance fee varies from $84,000 to over $700,000, depending on the Springpoint facility and living accommodation unit.
Springpoint offers two different “entrance fee refund” plans -- a “traditional plan” and the plan relevant to this appeal, a “90% refundable plan.” The “90% refundable plan” is available upon election to pay a higher entrance fee. Through oral statements, marketing, and sales materials, Springpoint represented that under the “90% refundable plan,” 90% of the entrance fee a resident paid, minus applicable deductions for medical care provided, would be refunded to the resident’s estate when the resident dies or moves out of the facility. In its disclosure statements, Springpoint likewise stated that the “90% refundable plan” “allows for up to 90% of the entrance fee to be refunded.”
Those disclosures, however, also stated that the entrance fee refund policy is explained in greater detail in an attached “Residence & Care” agreement. Plaintiffs allege that the additional information is found “buried” on page 20, in Section VI of that agreement. They assert that, “contrary to all other prior representations and descriptions by Springpoint, including the Disclosure Statement,” the language on page 20 provided “that the 90% refund would be paid without interest based on the lesser of the original entrance fee paid or the subsequent resident’s entrance fee,” subject to certain additional deductions. (emphasis added).
The DeSimone family paid an entrance fee totaling $159,000 and selected the “90% refundable plan.” According to the complaint, the DeSimone family believed that, if Evelyn moved out of the facility or passed away, 90% of the $159,000 paid entrance fee would be refunded, minus incurred medical costs. After Evelyn passed away in April 2010, Springpoint sent William a check for $80,136, accounting for approximately 50% of the entrance fee paid. When William inquired about the amount of the refund, Springpoint responded that the refund had been calculated based on the entrance fee paid by the resident who subsequently moved into Evelyn’s unit. That resident paid an entrance fee of $127,000, and Springpoint calculated the refund based on that lesser amount in keeping with Section VI of the “Residence & Care” agreement.
Plaintiffs allege that the DeSimone family was unaware of the “highly material ‘lesser than’ caveat” limiting the entrance fee refund policy because it was “buried on page 20 in the lengthy Residence and Care Agreement.” They assert that had they known of the limiting provision, the DeSimone family would not have moved Evelyn into Springpoint Monroe Village. Plaintiffs further allege that Springpoint failed to disclose that it actively offered substantial entrance fee discounts to attract prospective residents -- discounts that, in turn, could affect the prior resident’s refund under the “90% refundable plan.” They contend
Relevant to the present appeal, plaintiffs asserted two counts of CFA violations: (1) “Misleading Advertisements/Marketing Collateral Materials” and (2) “Misleading Disclosure Statement[s].” On those two counts, and relying on
In June 2021, the trial judge certified the class and appointed plaintiff William DeSimone as a class representative.
B.
In June 2022, Springpoint moved for judgment on the pleadings under Rule 4:6-2, and/or partial summary judgment under Rule 4:46, to dismiss plaintiffs’ claims for a full refund under
Springpoint moved for leave to appeal from the order denying its motion for partial dismissal of the complaint. The Appellate Division denied the motion, concluding that interlocutory “review [was] not necessary in the interests of justice.”
This Court granted leave to appeal. 253 N.J. 457 (2023). We also granted motions from the New Jersey Civil Justice Institute (NJCJI), and from the New Jersey Business and Industry Association, the New Jersey Chamber of Commerce, and the Commerce and Industry Association of New Jersey (collectively, NJBIA), to appear as amici curiae.
II.
Springpoint asks us to reverse the trial judge’s order and grant partial summary judgment in its favor. Springpoint argues that the words “within” and “herein” found in
Plaintiffs argue that the word “act” in
NJCJI supports Springpoint’s legal contentions and argues that Chapter 347 did not create a “generally applicable” refund remedy for all CFA violations. NJCJI asserts that allowing otherwise would lead to results where a plaintiff would receive a “windfall unmoored from their actual losses.” NJCJI emphasizes that New Jersey has adopted a comprehensive statutory and regulatory framework to monitor and regulate retirement communities. It asserts that the Legislature, in enacting a refund remedy and self-help cause of action to combat misrepresentations in the food industry, eliminated the need for the State to inspect menus and kitchens. That policy rationale, according to NJCJI, does not extend to the heavily regulated retirement communities in New Jersey.
NJBIA also supports Springpoint, echoing many of Springpoint’s arguments, specifically that the “within” language in
III.
A.
We review the denial of summary judgment de novo. Samolyk v. Berthe, 251 N.J. 73, 78 (2022). Summary judgment should be granted “if the discovery and any affidavits ‘show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law.’” Perez v. Professionally Green, LLC, 215 N.J. 388, 405 (2013) (quoting Rule 4:46-2(c)). When “only a question of law remains, this Court affords no special deference to the legal determinations of the trial court.” Templo Fuente De Vida Corp. v. Nat’l Union Fire Ins. Co. of Pittsburgh, 224 N.J. 189, 199 (2016).
We also review the interpretation of a statute’s meaning de novo, Nicholas v. Mynster, 213 N.J. 463, 478 (2013). We utilize our “established rules of statutory construction” in interpreting the CFA, and “[o]ur goal ‘is to determine and effectuate the Legislature’s intent.’” Perez, 215 N.J. at 399 (quoting Bosland v. Warnock Dodge, Inc., 197 N.J. 543, 553 (2009)).
In doing so, “we first examine the statute’s plain language, giving its ‘words their ordinary meaning and significance,’ and reading those words in the context of ‘related provisions so as to give sense to the legislation as a whole.’” Ibid. (quoting DiProspero v. Penn, 183 N.J. 477, 492 (2005)). If the statutory language is ambiguous and “leads to more than one plausible interpretation, we may turn to extrinsic evidence, ‘including legislative history, committee reports, and contemporaneous construction.’” DiProspero, 183 N.J. at 492-93 (quoting Cherry Hill Manor Assocs. v. Faugno, 182 N.J. 64, 75 (2004)).
Turning to the CFA, we construe it “in light of its objective to greatly expand protections for New Jersey consumers.” D’Agostino v. Maldonado, 216 N.J. 168, 183 (2013) (internal quotations omitted). The CFA is remedial legislation, which the “courts liberally enforce . . . to fulfill its objective to protect consumers from prohibited unconscionable acts by sellers.” All the Way Towing, LLC v. Bucks Cnty. Int’l, Inc., 236 N.J. 431, 434 (2019). “But while liberality of construction of remedial legislation is desirable, we cannot ignore the plain meaning of the language employed by the Legislature . . . .” Wormack v. Howard, 33 N.J. 139, 142 (1960).
B.
The Legislature enacted the CFA in 1960, Perez, 215 N.J. at 399, “to ‘combat sharp practices and dealings that victimized consumers by luring them into purchase through fraudulent or deceptive means,’” D’Agostino, 216 N.J. at 183 (quoting Cox v. Sears Roebuck & Co., 138 N.J. 2, 16 (1994)). From the outset, the CFA imposed liability upon those who engaged in certain “unlawful practice[s].” See L. 1960, c. 39 (codified at
The act, use or employment by any person of any commercial practice that is unconscionable or abusive, 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 . . . .
[
As consumer practices have evolved, the Legislature has amended and supplemented the CFA to provide additional protections to consumers, including what is arguably the greatest expansion of the CFA -- a 1971 amendment authorizing a private right of action. See L. 1971, c. 247 § 7 (codified at
In addition to a private cause of action, the CFA has “been ‘repeatedly amended and expanded . . . often by adding sections to address particular areas of concern.’” Sun Chem. Corp., 243 N.J. at 330 (omission in original) (emphasis added) (quoting Czar, Inc. v. Heath, 198 N.J. 195, 201 (2009)). The Legislature has broadened the definition of an “unlawful practice” under the CFA to address specific practices as they arise or become prevalent, including the following: wrongfully implying association with a department or agency of the federal or state government,
In furtherance of its mission to protect consumers, the Legislature enacted the supplemental statute at issue in this appeal, L. 1979, c. 347, codified at
It shall be an unlawful practice for any person to misrepresent on any menu or other posted information, including advertisements,
the identity of any food or food products to any of the patrons or customers of eating establishments including but not limited to restaurants, hotels, cafes, lunch counters or other places where food is regularly prepared and sold for consumption on or off the premises . . . .
[
Chapter 347 defines when an act constitutes a misrepresentation of the identity of food or food products. For example, a food product is misrepresented if “served, sold, or distributed under the name of another . . . food product.”
Importantly, Chapter 347 created a refund remedy whereby “[a]ny person violating the provisions of the within act shall be liable for a refund of all moneys acquired by means of any practice declared herein to be unlawful.”
Our focus in this case is the scope of
IV.
We hold that the refund provision in
A.
Chapter 347’s refund provision contains key language suggesting its scope is limited: “Any person violating the provisions of the within act shall be liable for a refund of all moneys acquired by means of any practice declared herein to be unlawful.”
The term “within” is typically used “to indicate [a] situation or circumstance in the limits of or compass of,” or “not beyond the quantity, degree or limitations of,” a particular matter. Webster’s New Collegiate Dictionary 1347 (8th ed. 1973). The plain meaning of “within” therefore implies that
“Declare” means “to make clear” or “to make known formally or explicitly.” Webster’s at 294. “Herein” is defined as “in this.” Id. at 535. Thus, the plain meaning of “declared herein,” when read in the context of
Furthermore, Chapter 347 is not the only conduct-specific supplementary statute to provide additional rights and remedies, including consumer refunds. See, e.g.,
Although the plain language of
In conditionally vetoing the proposed bill, Governor Brendan Byrne expressed concern that it could require state agencies “to inspect menus and commercial kitchens or to taste test products at a time when other budgetary priorities exist.” Governor’s Veto Statement to S. 1408 (Dec. 10, 1979). Governor Byrne “recommend[ed] a different approach i.e. a self help remedy which would provide restitution to the defrauded customer or patron.” Ibid. (emphasis added). Specifically, he recommended that the Senate insert a refund provision containing the following language: “Any person violating the provisions of the within act shall be liable for a refund of all monies acquired by means of any practice declared herein to be unlawful.” Ibid. That language is identical to the codified refund provision,
After the bill passed, a press release reaffirmed Governor Byrne’s recommendation “that defrauded consumers be entitled to a refund if the eating establishment is found to be in violation of the act.” Office of the Governor, Press Release: Statement upon Signing S. 1408 (Jan. 24, 1980) (emphasis added). Significantly, the unlawful practices proscribed in Chapter 347 all deal with food-related misrepresentations.
Finally, we note that construing
B.
Against that backdrop, an analysis of the facts of this case is straightforward. We hold that plaintiffs are not entitled to relief under
Plaintiffs allege in their amended complaint that Springpoint engaged in deceptive advertising practices and provided misleading disclosure statements regarding Springpoint’s return policy of resident entrance fees under its “90% refundable plan.” Those allegations pertain entirely to misrepresentations about fees charged by a senior living facility. None of plaintiffs’ allegations are related to misrepresentations of food. Thus, the claims are not governed by
Moreover, any reliance on Lemelledo, Weinberg, Dugan, and Sun Chemical to support the proposition that
In Lemelledo, the principal issue was “whether the [CFA] applies to lenders who engage in ‘loan packing.’” 150 N.J. at 260. In providing a background discussion of the CFA, this Court noted that the CFA “provides individual consumers with a cause of action to recover refunds,” citing
Similarly, our focus in Weinberg was not on
In Dugan, we focused on class certification issues in relation to CFA claims. 231 N.J. at 34-35. Similar to Lemelledo, as background, we noted that “the Legislature amended the CFA ‘to permit individual consumers to bring private actions to recover refunds,
And in Sun Chemical, a case dealing with an alleged defective “explosion isolation and suppression system,” the primary issue was whether CFA claims can co-exist with claims under the Products Liability Act. 243 N.J. at 324-26. The Court in Sun Chemical did not specifically analyze
In short, none of the isolated references to Chapter 347’s provisions in our previous cases suggest that the food-related refund remedy applies broadly to all CFA violations. We expressly hold here that it does not.
V.
We reverse the denial of Springpoint’s motion for partial dismissal of the amended complaint, enter partial summary judgment dismissing with prejudice plaintiffs’ claims seeking refund damages under
CHIEF JUSTICE RABNER and JUSTICES PATTERSON, SOLOMON, PIERRE-LOUIS, WAINER APTER, and NORIEGA join in JUSTICE FASCIALE’s opinion.