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Joe D'Egidio Landscaping, Inc. v. Apicella

February 13, 2001

JOE D'EGIDIO LANDSCAPING, INC.,
PLAINTIFF-RESPONDENT,
V.
DANIEL APICELLA,
DEFENDANT-APPELLANT.



Before Judges Wefing, Cuff and Lefelt.

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

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted: December 18, 2000

On appeal from the Superior Court of New Jersey, Law Division, Morris County, L-0603- 97.

Following a bench trial, the trial court entered a judgment for plaintiff in the amount of $8,132.94 and dismissed defendant's counterclaim. Defendant has appealed. After a careful review of the record in light of the arguments advanced on appeal, we affirm, but not for the reasons expressed by the trial court.

The underlying dispute involves certain work that plaintiff*fn1 performed for defendant at defendant's home. Joe D'Egidio and defendant Apicella are related through marriage; Apicella's sister is married to D'Egidio's brother. The two men were together at a family function in February 1996, and discussed certain work that Apicella wished to have done at his home. The house was relatively new and the driveway remained unpaved. In addition, an easement adjoined Apicella's property upon which there were certain manholes which had been improperly covered over. The township was refusing to grant Apicella a certificate of occupancy until these manholes were excavated and corrected.

Apicella asked D'Egidio, who installs paver driveways as part of his landscaping business, to come to the property to look at it. D'Egidio did so and prepared an estimate of $12,000 to do both jobs. This price was significantly lower than others Apicella had received; D'Egidio told Apicella he was giving him a lower price because of the family connection between the two.

This was not the first time the two men had done work for one another. Apicella has a painting business; when D'Egidio moved into a new house a few years earlier, Apicella spent two days painting the house for him. When Apicella moved into his home, D'Egidio spent several days cleaning the yard and the easement.

Plaintiff prepared a contract for the job but Apicella refused to sign it. He professed to be insulted that D'Egidio wanted a signed contract, stressing he had known D'Egidio from the time that he, Apicella, was eight years old and that they were related through marriage.

Faced with Apicella's protestations, D'Egidio proceeded to perform the work without a contract and Apicella made two payments on account. Disputes developed on this project, however, and Apicella refused to pay the balance D'Egidio said was owed. D'Egidio testified that Apicella told him that unless D'Egidio performed certain landscaping work for free, Apicella would not pay him what he owed and would tie him up in litigation.

This lawsuit resulted. Apicella counterclaimed for damages, alleging the workmanship on the driveway was poor.

The parties presented significantly different versions at the trial of what transpired between them. It is clear from the trial court's letter opinion that it accepted plaintiff's version and rejected defendant's as not credible. Within its letter opinion, the trial court specifically noted that it accepted as true D'Egidio's testimony about Apicella's reaction to D'Egidio's request that he sign a contract.

One of the issues argued before the trial court was the consequence of plaintiff having proceeded to perform this work without having first obtained a written contract. Under N.J.A.C. 13:45A-16.2(12), a regulatory provision adopted under the Consumer Fraud Act, all home improvement contracts in excess of $200 are required to be in writing and signed by all parties and must specify the work to be done and materials to be used and include a beginning and ending date.

The Supreme Court has held that mere proof of a regulatory violation is sufficient to establish unlawful conduct under the Consumer Fraud Act. Cox v. Sears Roebuck & Co., 138 N.J. 2, 18-19 (1994). An aggrieved consumer does not have to establish an intent to evade or ...


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