On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, L-5869-03.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Lintner, Seltzer and C.L. Miniman.
Plaintiffs Thomas and Lydia Romond appeal from the denial of their cross-motion for summary judgment on March 6, 2006,*fn1 on certain claims advanced pursuant to the Consumer Fraud Act (CFA), N.J.S.A. 56:8-1 to -166. They also appeal from a verdict of no cause for action returnable on April 18, 2006, in favor of defendants Valiant Home Remodelers (Valiant Home) and Great Lakes Window, Inc. (Great Lakes), and from the May 26, 2006, denial of their motion for a new trial. A final judgment dismissing the action was entered on August 16, 2006. We affirm the denial of summary judgment, but we reverse the final judgment and remand the matter for a new trial on the CFA claims.*fn2
The Romonds, as part of a general exterior remodeling project, wanted to replace their twenty-five-year-old eight-foot Andersen bow window with a new one of the same style, having five lights*fn3 and narrow mullions.*fn4 They looked at newspaper and magazine advertisements and requested brochures from four or five companies. The Romonds were particularly interested in a bow window pictured in Valiant Home's newspaper advertisement because it had five lights and narrow mullions.*fn5 Other remodeling companies offered bow windows with wide mullions and did not have eight-foot-wide, five-light bow windows. Based on Valiant Home's newspaper advertisement, the Romonds called Valiant Home, and its president, Michael Valiant, went to their home in late August or early September 2001.
Mrs. Romond testified that when Valiant arrived at the Romonds' house, he gave her two Great Lakes brochures*fn6 and told her that she could have the five-light bow window pictured on page nine of the brochure. Although Mrs. Romond asked Valiant about the glass available from other manufacturers, he told her to concentrate on what he had in the Great Lakes brochure and he took the competitors' brochures from Mrs. Romond and set them aside. She told him that she wanted the bow window with the star-beveled glass pattern depicted in the brochure. She also told him she wanted the narrow mullions. Mrs. Romond assumed that was what he would order.
Mr. Romond testified that he told Valiant that they wanted the same five-light bow window that was in the brochure, with the same beveled glass and the same color. The brochure did not specify the size of the window or the size of the mullions. The Andersen window in their home had narrow mullions and they wanted the same mullions. They showed Valiant other brochures, including one from Window Man, to point out that they did not want wide mullions like those shown in the other brochures. The Romonds were not told that they could choose from different size mullions, believing they would receive what was shown in the brochure. Valiant admitted that the mullions in the Romonds' window should have been the same as the mullions in the brochure. Mr. Romond further testified that he and his wife selected Valiant Home because all the other remodelers had only wide mullions depicted in their advertisements, whereas the advertisements of Valiant Home depicted windows with narrow mullions. He believed that they were ordering a bow window from Valiant Home with the narrow mullions depicted in the brochure.
Mr. Romond also testified that he and his wife had one-year-old custom-made vertical blinds in their existing window and they wanted those blinds to fit inside the replacement window because they had been purchased at considerable expense. The old window was ninety-six inches on the inside measurement where the blinds were installed. The rough opening would have been two-and-a-half to three inches wider. Mr. Romond was with Valiant when he measured the window.
Valiant testified that he told Mrs. Romond that the configuration of the glass would be different depending on the overall size of the window, but he could not remember at his deposition what words he used to explain the difference. However, at trial he testified that he said "that the glass in the bow window is going to be a little bit . . . altered. It's not going to look exactly the same as it is in the brochure. That's what I said."*fn7 He admitted that he never told Mrs. Romond when they were going over the contract that she would get a one-diamond pattern rather than the two-diamond pattern depicted in the brochure. What he did tell her was that the glass in the door was going to be different from the glass in the bow window, but they would, nevertheless, have a similar diamond pattern. Valiant also admitted he never told Mrs. Romond that the window in the brochure was a different size than the eight-foot bow window she was ordering.
Valiant returned to the Romonds with a "Remodeling Proposal"*fn8 dated September 4, 2001. When he prepared the proposal, he did not specifically refer to the window in the brochure, nor did he refer to the configuration of the glass or the size of the mullions.*fn9 The proposal described the window by brand name (Plygem) and by various features, but it did not include any measurements of the window. The contract merely called for a five-light bow window with "star-beveled/classic designer glass." Mrs. Romond testified that they were never given a choice respecting the size of the mullions and so believed that only the narrow mullions were available. Therefore, they did not ask to have the size specified in the contract.
Valiant testified that when he sells a specific product or sells a product by reference to a brochure, he has to put that information into the contract. However, if Valiant Home sells a product that is going to be different in any way from the product in a brochure, he claimed that he does not have to put that information into the contract. Mrs. Romond signed the proposal that day and gave Valiant Home a deposit of $3000 on the total contract price of $6700.*fn10 It is undisputed that the signed proposal became the contract between plaintiffs and Valiant Home.*fn11
The day after the window was installed, Mrs. Romond told Valiant that it was not the window she ordered and that she could not see out of the window.*fn12 The Romonds were dissatisfied with the size of the mullions and the fact that they could not see out of the window because of the extent of the frosted glass. They insisted that the mullions depicted in the brochure were smaller than the ones in the window, despite repeated representations to the contrary.
When the window was installed, the blinds did not fit because the inside measurement was only about ninety-four inches wide, rather than ninety-six, and the blinds had to be cut. Additionally, Mr. Romond testified that he and his wife never received a warranty on the window from either Great Lakes or Valiant Home. Valiant Home, in answers to interrogatories, indicated that warranties are mailed by Great Lakes to Valiant Home's customers. Great Lakes, however, claimed that it only supplies warranties to its dealers. Valiant admitted that he personally did not give the warranty to the Romonds, although he assumed that someone at Valiant Home sent it to them.
Valiant testified that right after the window was installed, Mrs. Romond showed him that the brochure had a two- diamond pattern, but she received only a one-diamond pattern. He denied that she told him that she wanted two diamonds at the time she signed the contract. He also denied that she made any mention of the size of the mullions before she signed the contract. He claimed that the only complaint she made right after the window was installed was about the glass. He promised to return with a representative from Great Lakes to see what could be done.
Within a week of the installation, Valiant brought Jeff O'Leary, a representative of Great Lakes from 1999 to 2004,*fn13 to the Romonds' house in an effort to resolve their dissatisfaction.*fn14 O'Leary told Mrs. Romond that the window was manufactured according to the order submitted by Valiant Home. O'Leary told the Romonds that the window in the brochure was a studio shot of a twelve-foot, five-light bow window which made the mullions look smaller. He insisted that the window in the brochure was the same window that the Romonds received.
Valiant confirmed that when he and O'Leary were at the Romonds' house, Mrs. Romond disputed O'Leary's statement that the window in the brochure was twelve feet wide. She pointed to the dining room table in front of the window and said that it could not possibly be a twelve-foot window from a comparison of the size of the table to the window. She contended that the brochure window was only eight feet wide. He also confirmed that Mrs. Romond "thought all along" that the mullions in the brochure were smaller than what she got and that she made this claim when he and O'Leary were at the Romonds' house. Mr. Romond believed that Valiant and O'Leary were lying to him.
In October 2001, Great Lakes proposed several glass patterns, including one with a double-diamond design, which would provide an increased viewing area. Valiant testified in detail respecting the proposals made by Great Lakes to modify the glass in the lights or to remake the window as a four-light bow to increase the viewing area. Mr. Romond testified that none of them were acceptable because they all had wide mullions, which they specifically did not want. He did concede that one of the glass proposals would have been acceptable if the mullions were smaller, but they were not. Mr. Romond also testified that they would not accept the proposal for a three-or four-light bow window with six-inch mullions because that was neither what they wanted nor what they ordered.
Walsh appeared as Great Lakes' representative at deposition and at trial. He testified at trial that the double-diamond glass pattern in the brochure can be manufactured in widths from 14-11/16 inches to 21-7/16 inches wide. With six-inch mullions the overall size of the window ranges between 98-3/4 inches and 131-1/2 inches.*fn15 A window smaller than 98-3/4 inches, like that of the Romonds, would have only a single-diamond glass pattern.*fn16
This is because the size of the diamonds is fixed and the other components are designed around the diamonds. If the window was larger than 131-1/2 inches, it would have three or more diamonds, depending on its size.*fn17 Walsh never saw a Great Lakes brochure with six-inch mullions.
Walsh explained that what really changed was the frame of the window around all four sides of a light. This was done in order to have uniform frame sizes for fixed and vented casements. The consequence of that change was that the standard mullions went from 3-7/16 inches wide in 1997 to six inches wide in 1998. Until Walsh's deposition on January 27, 2006, no one admitted to the Romonds that the window in the brochure had mullions narrower than the one installed in their home.
Although Walsh did not know the actual size of the window in the 1997 and subsequent brochures, he did know that it had to be between eighty-seven inches and 118-3/4 inches.*fn18 From looking at the picture, he felt that it was closer in size to the maximum because, at the minimum size, the two diamonds would have been touching. He explained that in the two-diamond pattern, the size of the diamond, the size of the clear glass below the diamond, and the size of the frosted glass are always the same, but as the width of the light increases from 14-11/16 inches up to 21-7/16 inches, the amount of clear glass between the diamonds increases.*fn19 Thus, the change to the size of the mullions required an increase in the overall width of the window, precluding an eight-foot window from having a double-diamond glass pattern after 1998.*fn20
The Great Lakes brochures and advertising continued to show the smaller 3-7/16 inch mullions on the bow window, even though they were no longer available. A window with 3-7/16 inch mullions could only be manufactured if Great Lakes had leftover stock. Walsh did acknowledge that he would have expected a dealer to tell a customer that the window would not look like the brochure and would offer to provide the customer with photographs of what the window would look like.
Walsh admitted that, before the change in the size of the mullions, the bow window depicted in the brochure could not have been any larger than 9 feet, 10-3/4 inches, and that after the mullions were enlarged the maximum standard width was slightly under eleven feet wide. He testified that Great Lakes can manufacture special-order windows that do not conform to their standard sizes and patterns, including narrower mullions and varied glass patterns, but stated that Valiant Home did not submit an order for a customized window. Although Great Lakes could have remade the lights with a mullion only one-half inch bigger than the pre-1968 mullions, i.e., 4-1/16 inches wide, it did not offer to do so.
There was also testimony respecting the course of the litigation as a result of the opening statement of Valiant Home's counsel and the judge's ruling permitting that statement.
Mr. Romond explained the progression of the suit from a small claims case to a Superior Court case with CFA claims. He testified that he moved the case to Superior Court because Valiant Home and Great Lakes kept insisting that the mullions they got were the same size as those in the brochure. Mr. Romond also testified in some detail respecting the expense of the litigation and his obligation for counsel fees. This was introduced because the trial judge had permitted defense counsel to discuss counsel fees in their opening statements and had denied the Romonds' motion for a mistrial based on those statements.
After the jury returned a verdict in favor of defendants and the trial judge denied the Romonds' motion for a new trial, they filed this appeal and present the following issues for our consideration.
POINT I -- THE LOWER COURT IMPROPERLY DENIED THE PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT.
A. The Undisputed Proofs Established that the Defendants Committed an Unlawful Affirmative Act in Violation of the Consumer Fraud Act as a Matter of Law.
B. The Undisputed Proofs Established that the Plaintiffs Sustained an Ascertainable Loss as a Direct Result of the Defendants' Unlawful Practice.
POINT II -- THE TRIAL COURT'S REFUSAL TO INSTRUCT THE JURY ON ALL RELEVANT PORTIONS OF THE CONSUMER FRAUD ACT AND THE HOME IMPROVEMENT PRACTICES REGULATIONS WAS REVERSIBLE ERROR.
POINT III -- THE CUMULATIVE EFFECT OF THE TRIAL COURT'S ERRONEOUS EVIDENTIARY RULINGS RESULTED IN A MISCARRIAGE OF JUSTICE.
A. The Trial Court Abused Its Discretion in Allowing the Defendants to Present Evidence of the Pre-Suit ...