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Branigan v. Level on the Level

October 06, 1999

JOHN D. BRANIGAN AND BETH RANDALL BRANIGAN, HIS WIFE, PLAINTIFFS-APPELLANTS,
v.
LEVEL ON THE LEVEL, INC. AND DAVID MARLINSKI, INDIVIDUALLY, DEFENDANTS/THIRD-PARTY PLAINTIFFS/RESPONDENTS,
v.
KERR PLUMBING AND MICHAEL VRICELLA, THIRD-PARTY DEFENDANTS, AND MICHAEL KERR, PLAINTIFF,
v.
JOHN BRANIGAN, DEFENDANT.



Before Judges Kimmelman and Ciancia.

The opinion of the court was delivered by: Ciancia, J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted September 14, 1999

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

Plaintiffs appeal the involuntary dismissal of their suit pursuant to defendants' motion under R. 4:37-2(b), made at the close of plaintiffs' proofs.

Plaintiffs had contracted with defendant Level on the Level, Inc., through its president, David Marlinski, for an extensive home improvement project designed to renovate portions of plaintiffs' existing Victorian home and add significant additional living space. Plaintiff John Branigan, a graphic designer by profession, spent three years developing the design plans and specifications for the project. When the project went out to bid, the specifications encompassed twenty-four pages of detailed requirements. Marlinski's company was the successful bidder, and the contract entered between the parties specifically incorporated the drawings and specifications prepared by Branigan as well as the bid proposal submitted by Level on the Level, Inc.

Suffice it to say when the work was completed there were two problems that became the impetus for this litigation - an inadequate heating system and the presence of water in the basement of the new addition under certain conditions. Plaintiffs' complaint essentially alleged breach of contract, negligence, breach of warranty, and violations of the Consumer Fraud Act.

Plaintiffs' case included testimony from a professional engineer, an expert in heating and air conditioning, as well as Marlinski, himself. A complete factual scenario was developed, and there were surprisingly few disputed factual issues. When plaintiffs rested, defendants moved for, and were granted, an involuntary dismissal.

Judge Kirsten found an absence of proof to support the plaintiffs' allegations. With one exception, discussed below, we affirm the dismissal substantially for the reasons set forth by Judge Kirsten.

Essentially the facts displayed a homeowner attempting to cover all the bases and retain control over all the primary decisions. Unfortunately, some of those decisions proved to be incorrect. Thus, for example, an understandable desire to cut down on costs and an absence of water problems in the existing structure prompted Branigan not to install water prevention or water removal devices either in the basement of the new addition or outside the foundation. This decision was made even though Marlinski and others pointed out to him what options were available. So too, the heating problem arose from Branigan's specification that required the existing furnace to carry the load of the new addition. As it turned out, the furnace was unable to do so, and ultimately the problem was remedied by the installation of a second furnace.

We are thoroughly convinced, as was Judge Kirsten, that viewing the proofs most favorably to plaintiffs, there was no evidence to permit a jury to find defendants had done anything or failed to do anything that could be considered negligent, a breach of contract, a breach of warranty, or a violation of the Consumer Fraud Act. Dolson v. Anastasia, 55 N.J. 2 (1969).

There is, however, more to the consumer fraud statute than acts of commission or knowing acts of omission. There is a third category that may be the basis of an unlawful practice, and that is the regulations promulgated pursuant to N.J.S.A. 56:8-4. A violation of those regulations will result in the imposition of liability. "The parties subject to the regulations are assumed to be familiar with them, so that any violation of the regulations, regardless of intent or moral culpability, constitutes a violation of the Act." Cox v. Sears Roebuck & Co., 138 N.J. 2, 18-19 (1994). Proof of a regulation violation will be sufficient to establish unlawful conduct under the Act. Ibid.

Here, plaintiffs alleged the contract with Level on the Level, Inc. contained several violations of the regulations, including a failure to provide warranties; a failure to set forth contracts with subcontractors; a failure to adequately describe the products and materials to be used on the job; and the failure to set forth starting and completion dates of the work. As we read the pertinent regulations (N.J.A.C. 13:45A-16.2), there is no requirement the "seller" set forth its contracts with subcontractors. Nor, in the first instance, are warranties required. Rather, any guarantees or warranties that are to be provided with respect to labor, services, products, or materials shall be set forth in writing. N.J.A.C. 13:45A-16.2(11)(i) and (12)(xi). The regulations do require that a description of the work to be done include "where applicable" a description of principal products, fixtures, building or construction materials. N.J.A.C. 13:45A-16.2(12)(ii). Here, however, this requirement was clearly met by the inclusion of plaintiff's plans and detailed specifications in the contract.

This leaves only the regulation that requires the home improvement contract to set forth "the dates or time period on or within which the work is to begin and be completed by the seller." N.J.A.C. 13:45A-16.2(12)(iv). Here, the contract was drawn up by Marlinski, and it did not contain any reference to a starting date or completion date. The evidence in plaintiffs' case was that the parties discussed the topic and Branigan testified that one reason he hired Level on the Level, Inc. was because he thought the job would be completed in a timely manner. Ultimately, the job that began in late summer could not be finished before winter set in, and a small portion of the ...


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