On appeal from the Superior Court of New Jersey, Law Division, Somerset County, L-186-03.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges A. A. Rodríguez, Collester and Sabatino.
A jury awarded plaintiffs Bryan and Florence Cook $180,000 in contractual damages arising out of their purchase of a home from a builder, defendant Keith McPherson. Plaintiffs appeal the award as insufficient, contending that the jury was improperly charged on the New Jersey Consumer Fraud Act, N.J.S.A. 56:8-1 to -20 ("the CFA"). They also allege other trial errors. We affirm.
The seven-day trial concerned the sale of a private residence in Peapack-Gladstone. Here are the pertinent facts that emerged.
In October 2000, plaintiff Bryan Cook was transferred from Denver, Colorado to New Jersey in connection with his employment. His wife, plaintiff Florence Cook, remained in Denver with their two children, occasionally coming to New Jersey for house-hunting purposes. In searching for a home, plaintiffs utilized the services of Maureen Soderberg, an agent with the Coldwell Banker real estate firm. American Standard had referred Coldwell Banker to plaintiffs.
Plaintiffs were interested in finding a home in New Jersey somewhat larger then their existing home in Colorado, which was 4,000 square feet. With Soderberg's assistance, plaintiffs began looking at homes in the 5,500 to 5,600 square foot range.
Soderberg showed plaintiffs homes in Bedminster, Bernardsville, Far Hills, Chester, and Peapack-Gladstone, which were areas they suggested as places they would like to live. They hoped to find a home in the price range of $1.2 million to $1.3 million dollars.
One of the homes Soderberg showed to plaintiffs was a new home in Peapack-Gladstone built and owned by defendant. The house had been multiply listed so that numerous realtors, including Coldwell Banker, had access to the listing through the Multiple Listing Service ("MLS"). Weichert Realtors, representing the seller, McPherson, had listed the house on the MLS.
By the time plaintiffs viewed defendant's house, it had been on the market since January 2000. When plaintiffs first viewed the house, it was still under construction. Plaintiffs did not see the house fully constructed prior to closing. Nor did they see the architectural plans.
As is typical, the MLS listing for the house described its features, size and amenities. The listing stated that the house consisted of eleven rooms, and totaled 5,600 square feet. Across the bottom of the print-out of the listing the following item was printed: "(c)Copyright, Garden State Maureen SoderbergColdwell Banker." Soderberg testified that her name had been printed on the bottom of this MLS listing because she was the one who had gained access to it. Soderberg further stated her understanding that the only person who can alter a listing is the listing realtor. In this case, that would have been Weichert Realtors and its individual agent, Theodore Starycki.
At trial, plaintiffs' counsel introduced defendant's deposition testimony, in which he testified that he had provided to his realtor all information contained in the MLS listing. At his deposition, defendant also testified that he believed that 5,600 square feet was an accurate measurement. He also stated that, to his knowledge, the MLS listing had never been modified.
The MLS listing provided to plaintiffs became part of the sale contract between defendant and plaintiffs. The proposed contract was presented by plaintiffs, the buyers. Item D under the "Miscellaneous" section of the contract recites that various specific items were included in the sale "[a]s per listing agreement MLS [#]1220206 12/05/2000 attached." (emphasis added). Below these references was a handwritten entry about a backsplash allowance, followed by the parties' initials.
Both parties acknowledged that before executing the sale contract, they and their real estate agents reviewed its terms. Defendant conveyed to plaintiffs that he would agree to the terms of the proposed contract, as written, if the purchase price were increased from the sum plaintiffs had offered to $1,250,000. Plaintiffs agreed to that figure, and the price change was subsequently initialed by both parties.
On February 8, 2001, plaintiffs and defendant closed on the sale. After the closing, plaintiffs began having problems with the house. According to Soderberg's testimony, plaintiffs reported to her that they were having trouble getting defendant to come back and finishing work still uncompleted. Soderberg attempted to resolve the problem by contacting defendant and asking him to finish the work.
In December 2002, Florence Cook obtained the architectural plans for the residence from the Township of Peapack. Upon reviewing the architectural plans, plaintiffs learned that, contrary to the MLS listing, the house as designed actually contained only 4,782 square feet of living space. The entire building area was compromised of only 5,023 square feet. This prompted Florence Cook to measure the square footage of the home herself. She calculated a total of 4,788 square feet of living area. All of these figures fell short of the 5,600 square feet represented in the MLS listing.
At trial, defendant testified that he had no idea how the 5,600 square foot estimate specifically came to be included in the MLS listing. Defendant testified that the original MLS listing offered the house in January 2000 for $1.3 million but had stated no square footage. In August 2000, the MLS listing was revised to raise the offering price to $1.325 million dollars, but still lacked a square footage estimate. The final MLS listing for the house, when it was shown to plaintiffs, stated the price as $1.325 million and included the aforementioned 5,600 square foot estimate.
Defendant testified that he had not known the MLS listing accessed by Soderberg was different than the earlier multiple listings that he had seen. On cross-examination, defendant did admit to initialing the sale contract under Item D, which referenced the MLS listing. Defendant contended that he did not learn that the MLS had contained the 5,600 square feet estimate until his deposition.
After discovering the square-footage disparity and being dissatisfied with other aspects of their new home, plaintiffs filed a civil action in the Law Division in February 2003. The complaint initially named, as the sole defendant, Keith McPherson. Soon thereafter, plaintiffs amended the complaint to include numerous additional defendants, including Washington Architectural Group, P.A. (which had designed the home); Mark Kendra (a mason subcontractor); Deerfield Plumbing (a plumbing subcontractor); Michael Hammer (a utility subcontractor); Rich Enderley*fn1 (a painting subcontractor); and Neil Alexander (an HVAC subcontractor). The amended complaint alleged that those co-defendants had also breached their obligations concerning the home. Eventually, however, plaintiffs voluntarily dismissed the additional defendants.
With respect to McPherson, the amended complaint alleged that he had "willfully and knowingly" failed to complete repairs on the home, had "intentionally misrepresented the commencement date of the homeowner warranty," committed "negligence" and "intentional contract breach," and "committed acts of [c]onsumer [f]raud," causing plaintiffs harm. The amended complaint did not specifically mention the square-footage disparity, but that issue was treated in the litigation as subsumed within the plaintiffs' allegations. Plaintiffs sought compensatory damages, as well as treble damages under the CFA, attorneys fees, interest, and costs.
After the case had been called for trial, plaintiffs moved, among other things, to amend the complaint to join Weichert Realty as an additional defendant, or in the alternative, to order that any potential claims against Weichert Realty would be preserved and not barred by the entire controversy doctrine.
The motion to amend was precipitated by defendant's post-discovery attempt to contend that Weichert Realty, and its individual agent, Starycki, were responsible for causing the misrepresentation concerning the 5,600 square feet estimate. Defendant had not impleaded Weichert Realty or Starycki as third-party defendants. Given the circumstances, the judge denied the motion to amend but did rule that the entire controversy doctrine would not bar a future action against Weichert Realty or its employees.
During the trial, plaintiffs both testified. They also presented testimony from their real estate agent, Soderberg, as well as a structural engineer and an HVAC consultant as expert witnesses. Defendant testified on his own behalf. He presented no experts or other witnesses.
On the second day of deliberations, the jury returned a verdict. In the verdict, the jury unanimously found that defendant had "breached [his] contract of sale [with plaintiffs] by selling them a house with defective construction or unfinished work or features." It awarded $116,000 in damages for those breaches. By a 7-1 vote, the jury also found that defendant "breached [the] contract of sale by selling [plaintiffs] a smaller house than the square footage stated by the contract." For that separate breach, the jury awarded $64,000 in additional damages. As to plaintiffs' claims under the ...