On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-651-04.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges S. L. Reisner, Gilroy and King.
Plaintiff Candace M. Sabo is the surviving spouse of Richard A. Sabo, who died on August 8, 2003. Plaintiffs Richard Wm. Sabo, Jay M. Sabo, and Caren M. Sabo are the adult children of Candace and her deceased husband. Plaintiffs appeal from the May 31, 2006, order, which granted partial summary judgment, dismissing all claims of the children and Candace's claims for breach of the implied covenant of good faith and fair dealing and emotional distress. Candace also appeals from the January 18, 2007, judgment in the amount of $71,610.99. We affirm.
On August 9, 2003, Candace, together with her children, met with defendant Laura James, a sales representative of defendant Princeton Memorial Park Association*fn1 (the Association), at the office of the Association, to discuss and potentially purchase mausoleum crypts for her deceased husband and for the future needs of her children and their spouses. Because Candace desired that all the crypts be in a single mausoleum, she agreed to purchase four vaults, containing two crypts each, for a total of eight crypts, in a new mausoleum to be constructed by the Association. James not only represented to Candace and her children that the Association had obtained all governmental approvals and permits necessary for the construction of the new mausoleum, but also that the new mausoleum would be fully constructed by the end of the 2003 calendar year. Relying on that representation, Candace purchased the eight crypts in the proposed new mausoleum at a price of $38,571. Pending completion of the new mausoleum, the Association agreed to place the remains of Candace's husband in a temporary crypt located outside of an existing mausoleum. On August 12, 2003, Candace paid in full for the eight crypts. On August 14, 2003, the remains of Candace's husband were entombed in the temporary crypt as had been agreed. On September 3, 2003, the Association sent Candace the certificates of ownership to the eight crypts.
Throughout the fall of 2003, Candace voiced concerns regarding her late husband's entombment in the temporary crypt. Her concerns included: a missing "rosette" on the corner of the crypt; unsatisfactory quality of workmanship of the letters of her husband's name on the crypt's plaque; and, the slow pace of construction of the new mausoleum. In response to Candace's concerns, David B. Wendrzycki, the Association's vice president, offered to move Mr. Sabo's remains to an inside vault. Candace agreed, and the transfer was made on or around November 11, 2003.
On October 30, 2003, Wendrzycki sent a letter to Candace informing her that according to the contractor construction of the new mausoleum was delayed, and its expected completion was the spring of 2004. Because Candace remained dissatisfied, she moved her husband's remains to Colonial Park Cemetery, after obtaining a disinterment permit from the New Jersey State Department of Health. The Association charged Candace $500 to disentomb her husband's body before its move to Colonial.
Due to the stress of the events surrounding her husband's entombment, Candace sought solace from her current and former ministers on three occasions. However, Candace did not seek treatment from a health-care provider. Richard Wm. had also consulted his pastor, but only on one occasion, about the distress of his father's burial, but like Candace, he did not seek medical attention. Likewise, Jay did not seek medical attention, but had spoken with his pastor about his father's death once, apart from his pre-marriage counseling. Lastly, Caren did not seek medical attention as a result of the emotional distress arising from her father's entombment.
On March 11, 2004, plaintiffs filed a complaint, alleging that the Association, Laura James, and David B. Wendrzycki (collectively "Defendants"): 1) violated the Consumer Fraud Act (CFA)*fn2 (Count One); 2) breached the implied covenant of good faith and fair dealing in the parties' contract (Count Two); 3) breached the contract between plaintiffs and the Association (Count Three); and 4) caused plaintiffs intentional or negligent infliction of emotional distress (Count Four). Plaintiffs alleged in the complaint that defendants had misrepresented the anticipated completion date of the new mausoleum because at the time of the representations the Association "did not possess the necessary building and other permits necessary to immediately proceed with the construction as promised." Plaintiffs contended that the building permits were not approved until September 19, 2003, and construction did not commence until on or about November 10, 2003, three months after the contract for the purchase of the crypts was signed. In addition, plaintiffs asserted that the temporary crypt was inadequate and poorly maintained.
On May 13, 2006, defendants filed a motion for summary judgment as to all counts of the complaint. On May 12, 2006, trial Judge Innes granted summary judgment, dismissing the children's complaint and dismissing Counts Two and Four of Candace's complaint. Candace's claims on Counts One and Three proceeded to a jury trial. Prior to commencement of testimony, the court dismissed the complaint as to James and Wendrzycki, after the Association acknowledged it was bound by any representations made by the two individual defendants in the course of their employment.
At the conclusion of trial, the issues of liability and damages were submitted to the jury on special interrogatories. The jury determined that the Association had violated the CFA and that Candace had not suffered an ascertainable loss therefrom. Because the jury determined that the Association had not proximately caused an ascertainable loss to Candace, the jury did not return a monetary verdict. Instead, the jury was asked to determine the amount of refund Candace was entitled to, pursuant to N.J.S.A. 56:8-2.11. The jury found that Candace was entitled to a refund in the amount of $50,000. Following trial, the trial judge molded the award to the amount paid, $38,571. On January 2, 2007, the trial judge entered a final judgment in the ...