On appeal from Superior Court, Law Division - Special Civil Part, Hudson County.
Pressler, Baime and Arnold M. Stein. The opinion of the court was delivered by Pressler, P.J.A.D.
Plaintiff R. Wilson Plumbing & Heating, Inc. brought this action in the Special Civil Part to recover payment of a bill in the amount of some $1,500 plus interest which it had rendered to defendant Donna Wademan for repair of a shower in a bathroom of her home. Defendant counterclaimed, alleging that the work had been done in a negligent and unworkmanlike manner as a result of which she sustained damage, namely the cost of correcting the defective work. Following a bench trial, the court, in a written letter opinion, found not only that the plaintiff's work had been improperly done, resulting in damage to defendant in the amount of $3,000, but it also concluded that plaintiff's conduct constituted a violation of the Consumer Fraud Act, N.J.S.A. 56:8-1, et seq. The judge therefore held defendant entitled to treble damages but limited her recovery to $5,000, the court's jurisdictional limitation. Plaintiff appeals, claiming that consumer fraud was not a justiciable issue in the case. We agree and accordingly reverse.
At the outset we are satisfied that the evidence supported the trial judge's findings that plaintiff's performance of the repair was prosecuted in an unworkmanlike manner, that he was consequently entitled to no recovery and that defendant was entitled to compensatory damages of $3,000 on her counterclaim. R. 2:11-3(e)(1)(A) and (E).
The problem here is the judge's sua sponte reliance in his letter opinion on consumer fraud as the dispositive issue. Neither
consumer fraud nor legal or equitable fraud had been pleaded, raised at trial, or asserted in any other way. The summations, consistent with the thrust of the proofs, dealt only with the manner in which the work had been performed. The judge's letter opinion was the first injection of consumer fraud into this case, and entry of judgment on a consumer fraud cause of action was therein directed without any prior notice to plaintiff and without affording it any opportunity to meet that cause of action either legally or factually.
We are satisfied that the judgment so directed cannot stand. We are aware that the proofs might have supported a consumer fraud cause of action and a consumer fraud remedy by reason of plaintiff's apparent or arguable violation of N.J.A.C. 13:45A-16.2(a)7(ii), 10(i) and 12.*fn1 We are also aware that R. 4:9-2 permits issues not raised by the pleadings and pretrial order which are tried by consent or without objection to be "treated in all respects as if they had been raised in the pleadings and pretrial order." The rule does not, however, permit the trial court to enter judgment against a party on a cause of action which is conceived of by the judge only after submission of the case to him for decision, which comes as a complete surprise to all the litigants, and whose post-trial interjection in the case obviously prejudices the litigant who is accorded no opportunity to offer a factual or legal defense.
The issue before us is not one of technical pleading requirements. It is rather one of procedural due process. As Justice
There is a want of jurisdiction to render judgment unless there be a submission of a justiciable controversy to a competent tribunal in some mode sanctioned by the constitutional precept that accords to the defendant the hearing on notice inherent in due process. Pleading in civil actions as the means of raising issues for adjudication; and where, as here, there is not even the semblance of a cause of action pleaded against a particular defendant, there is no issue for determination and no basis for judgment against him, unless the parties waive formal pleading of operative facts and by consent submit an issue to the court for determination.
And see Grobart v. Society of Establishing Useful Mfrs., 2 N.J. 136, 65 A.2d 833 (1949). See also Rivera v. Gerner, 89 N.J. 526, 538, 446 A.2d 508 (1982), making clear that "[a]n appropriate regard for the orderly judicial process requires that parties be ...