On appeal from Superior Court of New Jersey, Law Division, Somerset County, Docket No. L-1611-03.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 11, 2007
Before Judges Fuentes and Grall.
This dispute arises from the installation of a prefabricated swimming pool at the home of plaintiff Barbara Beck. The defendants are Viking Pools (Viking), the manufacturer, and Jason Gomez, the installer.*fn1 Beck filed a complaint alleging that Gomez breached his contract and that both defendants violated the Consumer Fraud Act (CFA), N.J.S.A. 56:8-1 to -20. A default judgment was entered against Viking and was subsequently modified to preserve the question of damages for trial. Following a bench trial, the judge found that Gomez breached his contract with Beck and awarded contract damages in the amount of $39,072.05. Although the judge determined that both defendants violated the CFA, she concluded that Beck failed to establish an ascertainable loss caused by either violation. Finally, the judge concluded that equitable principles barred Beck's claim for "reasonable attorneys' fees, filing fees and reasonable costs of suit" pursuant to N.J.S.A. 56:8-19.
Beck appeals and contends that the judge erred by excluding three components of her alleged contract damages, finding no ascertainable loss attributable to defendants' violations of the CFA and denying counsel fees and costs pursuant to N.J.S.A. 56:8-19. Because the judge's findings on damages and ascertainable loss are supported by substantial credible evidence in the record and are not clearly mistaken, we affirm. See Meshinsky v. Nichols Yacht Sales, Inc., 110 N.J. 464, 475-76 (1988) (noting that the standard of review articulated in Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 483-84 (1974), applies on review of judicial fact finding in an action alleging a violation of the CFA). We conclude, however, that Beck is entitled to recover reasonable attorneys' fees and costs pursuant to N.J.S.A. 56:8-19. Accordingly, we remand for a determination of the amount.
The following facts are pertinent to the issues raised on appeal. Interested in having an in-ground pool installed in her backyard, Beck visited Vikings' website. The posted advertisement described two options for installation, a "do-it-yourself" program and a "complete installation" program. "Complete installation" was described as follows:
Your Viking Pool can be installed by a local dealer or a mobile installation crew from one of our four manufacturing plants. They will work with you from beginning to completion, through all the stages of planning and design. A Viking representative will be there to provide a pool that is right for you and your backyard AND be sure the job is done right from start to finish. You can be swimming in as little as 14 days.
According to Beck, she was interested in a Viking Pool, in part, because she believed that a representative of Viking would oversee the installation. The pool she selected was "beautiful." It had "every kind of option you could think of," including a "mosaic tile of dolphins on the bottom." She contacted Viking, was given Gomez's name and phone number and was told that he was trained and certified.
Gomez met with Beck at her home. She showed him where she wanted the pool, which was in the middle of the yard and positioned to permit her to see the deep end from her kitchen window. Beck did not have a survey of the property available, but Gomez placed stakes to mark the location she selected. Beck then signed a contract for purchase and installation of a fiberglass pool for a total cost of $30,500 payable in installments as the work progressed. The work to be done by Gomez included digging, delivery of the pool, running plumbing lines and back filling. The pool, a pump, filter, heater, fiber optics, cleaning system and one load of stone were included in the contract price. Beck paid the deposit and, later that day, faxed a copy of the survey to Gomez. Several days later, Gomez completed applications for plumbing, electrical and building permits, which Beck signed. A sketch of the proposed pool, prepared by Gomez, was appended to the applications.
A construction permit was issued on June 5, 2000. It included a notice that final inspection was required before final payment to the contractor. Although the permit was posted in a window in their living room, neither Beck nor her husband read it.
Beck claimed that a representative of Viking Pools was present when the pool was delivered and he told her that he would oversee installation. Gomez's work was inspected by the municipality as it progressed. When Gomez finished his work, but before final inspection and issuance of a certificate of occupancy, he requested and received final payment. Gomez explained that the final inspection had to await completion of the cement decking around the pool and the subsequent installation of the required fencing; Beck had retained others to do that work. He recommended the delay in order to allow the pool to settle and Beck agreed. The concrete and fencing was installed in spring 2001.
In April 2001, the municipality advised Beck that her pool had been placed within an easement for the municipality's sanitary sewer that crossed her property, over a sewer line and within the setback required by the zoning ordinance. In addition, a portion of the fence surrounding the pool extended beyond her property line. There were manholes in the Becks' backyard along the sewer line. Beck and her husband considered their alternatives and opted to relocate the sewer line and obtain a variance, rather than move the pool from the location Beck had selected. Gomez claimed that when Beck contacted him about the problem, he offered to move the pool, concrete and fence at no cost to her, but she wanted to leave the pool where it was. According to Beck, Gomez never made that offer.
The board of adjustment approved the variance Beck required in order to keep the pool in its place. The variance was granted upon the condition that Beck acquire all necessary permits and approvals, relocate the sewer line, remove the encroaching portions of the fence, and add a buffer of plantings between ...