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Wisser v. Kaufman Carpet Co.

Decided: February 4, 1983.

JACK L. WISSER, PLAINTIFF-RESPONDENT,
v.
KAUFMAN CARPET CO., INC., DEFENDANT-APPELLANT



On appeal from Middlesex County District Court.

Botter, Polow and Brody. The opinion of the court was delivered by Brody, J.A.D.

Brody

The question on this appeal is whether the statutory jurisdictional limit in the small claims division of the county district court of $1,000 "exclusive of costs" permits recovery as "costs" of punitive damages and reasonable attorney's fees allowed under the Consumer Fraud Act. We hold that in the small claims division the total recovery under the act for compensatory damages, punitive damages and reasonable attorney's fees may not exceed $1,000.

Plaintiff obtained judgment in the small claims division in the amount of $3,000 "plus $500 attorney's fees, plus costs of Court ($9.00)." The complaint demands "judgment . . . for $1,000.00 upon the following claim: Failure to complete contract for delivery and installation of carpeting." Plaintiff had paid defendant the $1,000 as a deposit under a written contract for the purchase, delivery and installation of carpeting in plaintiff's home. At trial plaintiff was represented by counsel. Defendant appeared in the person of its vice-president and general sales manager William Liberman.

The dispute arose when defendant's installers arrived at plaintiff's home with the carpet but refused to install it. The refusal followed plaintiff's statement that he would have his check for the balance certified by the bank while the work was being done and would not turn it over until completion of the work. The contract provided in part: "On delivery only cash or certified check will be accepted." The installers took back the carpet.

Immediately before the trial, plaintiff's attorney without objection invoked the Consumer Fraud Act (the act), N.J.S.A. 56:8-1 et seq. A regulation promulgated thereunder, N.J.A.C. 13:45A-16.2(a)(6)(v), provides that in these circumstances it shall be unlawful for a seller to "request the buyer to . . . make final

payment on the contract before the home improvement is completed in accordance with the terms of the contract." At the conclusion of the trial the judge found that defendant had made an unlawful demand for payment before installation and awarded plaintiff treble damages, reasonable attorney's fees and court costs pursuant to N.J.S.A. 56:8-19.

Defendant argues preliminarily that the installers did not demand payment in advance of completion, but only wanted assurance that plaintiff had the certified check in hand before they began installation. The judge's finding that defendant insisted on payment in advance of installation is based on sufficient credible evidence in the record and therefore will not be disturbed. Rova Farms Resort v. Investors Ins. Co., 65 N.J. 474 (1974).

Defendant's main point is that the judgment exceeds the $1,000 statutory jurisdictional limit of the small claims division. Defendant is correct; the judgment must be reduced. N.J.S.A. 2A:6-43 establishes jurisdiction where the amount in dispute "does not exceed, exclusive of costs, the sum of $1,000.00."*fn1 N.J.S.A. 2A:6-44 provides that although "the amount really due or recoverable" exceeds this limit, a party may recover "a sum not exceeding $1,000.00 and costs" in the small claims division and this recovery will then bar recovery of the excess in any court.*fn2

No case has dealt with the question of whether "costs" in the small claims division may include treble damages and attorney's fees. However, Nieves v. Baran, 164 N.J. Super. 86 (App.Div.1978), involved a Consumer Fraud Act judgment of treble damages and attorney's fees recovered in the county district court. The court disallowed the treble damages insofar as they exceeded the statutory jurisdictional dollar limit of the district court but permitted the judgment to exceed that limit to cover attorney's fees under the act.

The operative language of the statutes establishing the jurisdictional dollar limit of the county district court and the small claims division is virtually the same except for the amounts. Compare N.J.S.A. 2A:6-34(a), 35(a) with N.J.S.A. 2A:6-43, 44. We therefore apply to the small claims division the Nieves reasoning that the treble damages recovered under the act are encompassed in ...


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