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Sun Source Inc. v. Kuczkir

Decided: November 9, 1992.


On appeal from the Superior Court of New Jersey, Law Division, Middlesex County.

Michels, Baime and Wallace. The opinion of the Court was delivered by Michels, P.J.A.D.


[260 NJSuper Page 258] Defendant and third-party plaintiff Mary R. Kuczkir appeals (1) from a judgment of the Law Division entered on a jury verdict that awarded plaintiff Sun Source, Inc. damages in the sum of $11,965.04 and dismissed defendant's counterclaim against plaintiff and third-party complaint against third-party defendant John L. Buzzi, Jr. (Buzzi), and (2) from a pretrial

order that denied her motion to amend the counterclaim and third-party complaint to assert claims grounded on the Consumer Fraud Act.

In early 1987, defendant, after seeing construction work on a house similar to her own, stopped and met with Buzzi, the principal of plaintiff. Defendant wanted her single family ranch style house remodeled so as to make it more open. She had liked the work performed by plaintiff and felt that plaintiff could create the "California" house or style she desired. After consultation, a blue print was prepared by an independent draftsman illustrating the substantial renovations to be made. The original plan was submitted to and approved by the municipal building officials in July 1987. The initial cost of the project was $67,000, and defendant made a downpayment of $2500. The original plan was expanded to increase the size of the addition, redesign the master bedroom and bath, and reconfigure the office space. The cost of the revised project was increased to $87,000. This plan also was submitted and approved by the municipality.

On August 10, 1987, the parties signed the contract, which in pertinent part, provided that:

Any alteration or deviation from the above specifications involving extra costs, will be executed only upon written orders, signed by the Owner and Builder, and will become an extra charge over and above the amount agreed to here under.

Plaintiff commenced work sometime between August 10, 1987 and October 8, 1987. After the work commenced, defendant made numerous additional changes to the project. In November 1987, the parties signed an Additional Work Authorization form for various additions, including a skylight, a cathedral ceiling in the office, rearrangement of certain hallways, installation of new windows, addition of a sliding door and new front door, and extending the garage totaling $9,116.00. In December 1987, the parties signed a proposal for the construction of a new deck for $6,164. Defendant later again signed the proposal after the deck project had been completed to her

satisfaction. In January 1988, defendant signed another proposal for changes to the stonework and style of the fireplace, the addition of a new heat pump, and certain attic work totaling $6,825. While plaintiff did not sign the proposal, the proposal was drafted on a pre-printed form with the plaintiff's corporate name and address printed on the form.

Later in January 1988, both parties signed another Additional Work Authorization form for certain electrical work totaling $5,036.23. Sometime thereafter plaintiff charged defendant $3,964.42 for certain installation work, plumbing work and kitchen appliances. Defendant claims she did not sign the invoice although it apparently bore her signature. Plaintiff contends it was signed by defendant in his presence. In February 1988, plaintiff charged defendant an additional $2,111.75 for certain items which she had requested. Defendant, however, refused to sign the invoice. Finally, plaintiff requested another $3,200.00 for additional work performed at defendant's request but not included in any change orders. The total cost of the work, including all additions and changes was $120,715.55.

In June 1988, after the work was completed, the municipal building inspector inspected the project to determine whether a Certificate of Occupancy could be issued. The Certificate of Occupancy was not approved because the inspector could not verify that the bath vent extended to the extension of the house, a deck permit had not been obtained, nor sketchings submitted, the fire box was cracked, the door to the garage had no fire rating, a portion of the garage needed sheetrock, and equipment in the attic did not meet the mechanical code as the inspector could not see the equipment. The house was again inspected in August 1990 and all of the previous problems except the deck, the attic equipment and a light switch in the bathroom were eliminated.

Defendant paid plaintiff $100,749 of the total cost of $120,715.55, less a credit of $419, leaving an unpaid balance due of

$19,547.32. When defendant refused to pay the claimed balance, plaintiff instituted this action in May 1988 seeking to recover damages, costs, interest and attorneys fees. In July 1988, a default against defendant was entered when she failed to answer the complaint. The default was subsequently vacated by consent and in October 1988, defendant filed an answer in which she denied owing any money and asserted as defenses that the action was barred by the Statute of Limitations, that plaintiff provided certain items that she did not authorize or order and that she was induced to accept certain items without proper explanation as to their nature and costs. Defendant also filed a counterclaim asserting that plaintiff failed to perform the project in a professional and workman-like manner and seeking damages for property damage, economic loss and pain and suffering. In addition, defendant filed a third-party complaint claiming that Buzzi was individually liable for the damages she sustained. In April 1988, a default was again entered against defendant for her failure to answer interrogatories. In July 1989, the trial court again vacated the default and ordered defendant to furnish more specific and responsive answers to the interrogatories.

The case was originally assigned a trial date of August 6, 1990. On August 3, 1990, three days before trial and more than two years after institution of this action, defendant moved to amend her pleadings to add claims based on violations of the Consumer Fraud Act. Specifically, she claimed that plaintiff and Buzzi (1) misled her as to the new sheetrocking, and the energy efficiency and cost savings of a new heat pump; (2) charged her for change orders that were neither written nor signed by the parties, and (3) demanded payment of the balance on the contract before applying for a Certificate of Occupancy. The trial court denied defendant's motion to amend this pleading to include the Consumer Fraud Act claims even though the trial date was adjourned until September 24, 1990.

At the Conclusion of the trial, the jury, in response to special interrogatories, found that (1) ...

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