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D'Antonio v. Maytin

June 25, 2007

MICHAEL D'ANTONIO, PLAINTIFF-APPELLANT/ CROSS-RESPONDENT,
v.
TERENCE MAYTIN AND GAIL MAYTIN, DEFENDANTS-RESPONDENTS/CROSS-APPELLANTS.



On appeal from Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-006208-05.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued May 22, 2007

Before Judges Payne and Graves.

Plaintiff Michael D'Antonio, a general contractor for more than three decades, appeals from an order entered on April 17, 2006, granting summary judgment in favor of defendants Terence Maytin and Gail Maytin, and a subsequent order dated June 19, 2006, denying his motion for reconsideration and awarding counsel fees and costs to defendants pursuant to the frivolous litigation statute, N.J.S.A. 2A:15-59.1. On their cross-appeal, defendants argue they are entitled to damages under the Consumer Fraud Act (CFA), N.J.S.A. 56:8-1 to -166, and "[a]lthough no specific cases have been found, and it was not argued below, it would be logical [based on the CFA] to treble the legal fees." We affirm the orders under appeal except for the amount of counsel fees and costs, which we remand to the trial court for further consideration.

During the Spring of 2005, plaintiff had extensive discussions with defendants regarding a major addition to their home. Prior to those discussions, plaintiff had completed some basic repairs and several smaller home-improvement projects for defendants. Defendants initially budgeted approximately $200,000 for their new addition, but they anticipated that the actual cost "could easily rise to $300,000."

In his four-page written estimate, dated July 2, 2005, plaintiff stated he was pleased to submit the estimate "in a line fashion, this means that each item is priced for you to choose what you would like to keep or remove." Plaintiff acknowledged, however, that some of the necessary costs to complete the project were not included in the estimate: "[c]ertain items are purposely left out due to customer not having a final selection or a price to control the final price of the estimate." Although plaintiff's estimate was incomplete, the total cost for the items that were included in the estimate was slightly more than $308,000. Upon receipt of plaintiff's written estimate, it was clear to defendants the proposal was not only open-ended, but also more than they planned to spend. Consequently, they informed plaintiff they were not going to hire him to build the addition.

In a letter dated July 25, 2005, plaintiff acknowledged that defendants were "not proceeding with the job"; nevertheless, plaintiff requested a payment of $2,500 from defendants for the time he spent "advising and working with" them. Plaintiff's letter, which makes no mention of either a written or oral contract between the parties, reads as follows:

Re: Construction

Dear Mr. & Mrs. Maytin:

It has been two weeks since I spoke with you. I must reason that since you have not called me, that you are not proceeding with the job.

The cost for the estimate is free however, I have spent over 37 hours in advising and working with you to design and redesign the plans, which are still not correct. I have spent several hours in meeting with the architect and phone conversations. I have driven with Mrs. Maytin to physically choose building materials for the project. I have even signed a document for your insurance company to aid in the insurance process of this job.

I must get paid for the time that I have spent in working for you. I will consider my usual 3-4 hours as the normal estimating time and that would leave 33 hours at the rate of $3,300.00 for the work, however due to you ...


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