On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-5080-05.
The opinion of the court was delivered by: Lyons, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 12, 2007
Before Judges Parker, R. B. Coleman and Lyons.
We granted leave to defendants Jo Anne Heath and Thomas J. Heath, Sr. to appeal from a March 22, 2007, order dismissing the fourth count of defendants' counterclaim, which asserted a violation of the New Jersey Consumer Fraud Act (the Act), N.J.S.A. 56:8-1 to -20, by plaintiff Czar, Inc. At issue is whether defendants' claim against plaintiff for violations of the Act is legally viable. Because we find, in these circumstances, that plaintiff is a "seller" of a "home improvement" as defined in N.J.A.C. 13:45A-16.1A, we reverse and remand the matter for trial. The pertinent facts and procedural history are as follows.
Sometime prior to 2005, defendants engaged a general contractor to construct a new home for them. They contracted directly, however, with plaintiff for the installation of custom kitchen cabinets, interior doors, a front door, and certain moldings. Plaintiff was not the general contractor, nor a subcontractor, and its name does not appear on the building permit for the new home. Eventually, a dispute between plaintiff and defendants arose over payment and timing of work. In June 2005, plaintiff filed a complaint in the Law Division, Essex County, for moneys owed to it. In July 2005, defendants filed a complaint in the Law Division, Morris County, seeking damages and alleging a violation of the Act. On September 16, 2005, a consent order was entered which consolidated both matters in the Law Division, Essex County.
On March 21, 2007, on the morning of trial, the judge entertained in limine motions, one of which is at issue here. Plaintiff argued that the Act was inapplicable to plaintiff in this case and sought dismissal of count four of defendants' counterclaim alleging a violation of the Act.
The judge heard argument and took testimony. The trial judge found that the new home was a "new residence" within the meaning of N.J.A.C. 13:45A-16.1A, and that plaintiff and defendants had entered into a contract and, therefore, were in direct privity with one another. The trial judge found that the parties' contract was for plaintiff to install custom kitchen cabinets, chair rails, doors, and certain molding.
After making the findings set forth above, the trial judge concluded that plaintiff was "intimately involved with the construction of the new residence, at least as to the kitchen," although the judge found that the only construction plaintiff undertook in the home was with respect to the installation of kitchen cabinets, certain doors, and chair rails. The judge made it clear that plaintiff was not involved in any plumbing, electrical work, or any structural work on the new residence.
The trial judge, though, concluded that the home improvement practice regulations found in N.J.A.C. 13:45A-16.1 to 16.2 were not applicable to plaintiff and, therefore, dismissed the fourth count of defendants' counterclaim. We granted leave to appeal from the trial judge's March 22, 2007, interlocutory order.
We begin by reviewing certain applicable legal principles. As we often recognize, a trial judge's factual findings in a non-jury matter "are considered binding on appeal when supported by adequate, substantial and credible evidence." Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974). Therefore, we do not disturb the factual findings of a trial judge unless they are "so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interest of justice . . . ." Ibid. (quoting Fagliarone v. Twp. of N. Bergen, 78 N.J. Super. 154, 155 (App. Div.), certif. denied, 40 N.J. 221 (1963)). However, a trial judge's legal interpretations are not entitled to the same level of deference. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995). We undertake an independent "interpretation of the law and the legal consequences that flow from established facts . . . ." Ibid.
"Throughout its history, the Act has protected consumers from deception and fraud, even when committed in good faith." Gennari v. Weichert Co. Realtors, 148 N.J. 582, 604 (1997). "[I]n 1975, the Legislature further amended the Act to include ...