On appeal from the Superior Court of New Jersey, Law Division, Special Civil Part, Bergen County, Docket No. DC-0740-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 7, 2008
Before Judges S.L. Reisner and Gilroy.
Plaintiff Paul Bucci appeals from a June 25, 2007 order of the Law Division, dismissing his complaint without prejudice based on an arbitration clause. We reverse and remand to the trial court for further proceedings.
Plaintiff filed a complaint alleging that defendant Four Seasons Ridgewood Sales was negligent in performing work on a greenhouse in plaintiff's home. He also alleged breach of contract and violations of the Consumer Fraud Act (CFA), N.J.S.A. 56:8-1, et seq. Defendant filed an answer contending, among other things, that the work had been performed pursuant to a written contract that contained an arbitration clause.
Defendant subsequently filed a motion to stay the action pending arbitration. The motion was supported by a certification of defendant's president, Albert Tepper,*fn1 attesting that in 2006, plaintiff had hired defendant to repair some glass panels in a sunroom. According to Tepper, he "forwarded a contract embodying our agreement" to plaintiff, but according to the certification, "Plaintiff did not sign and return the 2006 contract. I do not know why." However, Tepper contended that defendant performed all of the services required under the contract, and plaintiff paid for all but $333.80 of the contract price. Based on his understanding that plaintiff's performance indicated acceptance of the contract terms, Tepper sought to enforce a clause in the contract requiring that "[a]ny controversy or claim arising out of or relating to this contract, or the breach thereof, shall be settled by arbitration." The contract by its terms also provided "Upon your review & acceptance, kindly sign one copy & mail to our office with the required deposit. Upon our receipt we will order material & schedule accordingly."
After hearing oral argument on June 8, 2007, the trial judge determined that there were factual disputes as to the enforceability of the arbitration clause, and scheduled a hearing for June 12, 2007, on that issue. At the hearing, Tepper testified that his company installed a greenhouse at plaintiff's home in 1998, and that in 2004, plaintiff and his wife asked defendant to "do a reglaze" on the greenhouse. According to Tepper, he sent them a proposal for the work in 2004, but no agreement was reached at that time. Plaintiff returned to Tepper's office in 2006. Tepper testified that sometime prior to September 26, 2006, "we faxed" the contract to plaintiff. On October 3, plaintiff came to defendant's office with a $2,000 check, which was the deposit required under the terms of the contract. Contrary to his earlier certification that he did not know why plaintiff did not sign the contract, Tepper testified that plaintiff "didn't want to sign the contract because he didn't like the door that he had and Four Seasons doesn't make that door any longer."
According to Tepper, one of his employees went to plaintiff's house and arranged to fix the door instead of replacing it. Tepper testified that on October 9, 2006, he signed another copy of the contract. However, the copy of the contract included in defendant's appendix provides for installation of the "swing door" that Tepper testified plaintiff allegedly did not want. Tepper testified that plaintiff later gave him a check dated October 24, 2006 for $6,000 as "the delivery payment when the materials, all the glass, and the door" were delivered. Tepper testified that he mailed plaintiff a copy of the contract that Tepper had signed on October 9. Tepper did not learn that plaintiff had not signed the contract until the lawsuit was filed.
On cross-examination, Tepper admitted that he accepted the $2,000 check from plaintiff on October 3, when Tepper "had not [yet] signed the contract" he was attempting to enforce. The $6,000 check was given to the truck driver who delivered the materials to plaintiff's house. According to Tepper, before the delivery, his company would have sent plaintiff a letter "saying that the material is coming on such and such a day and there would be $6,000 required as, you know, per the contract." Tepper did not know how the letter was actually conveyed to plaintiff as he did not mail or fax it himself.*fn2
Plaintiff testified that defendant never presented him with a contract. He testified that the first time he saw the contract was when a copy was faxed to him two weeks before the hearing. He denied that he was presented with a written proposal for the work. He gave defendant a $2,000 deposit because he wanted the work done quickly before winter arrived. He testified that he did not receive a letter, but rather received several phone calls from Tepper's office advising him that "if you don't have the [$6,000] check we're not coming."
In deciding the matter, the trial judge treated defendant's application as a motion to dismiss pending arbitration. He reasoned that a lack of signature on a contract is immaterial to its validity if the parties act in reliance on its content, and it's clear that the parties here acted in reliance as if the contract were signed by both parties. Defendant did the work. The plaintiff made the payments.
The judge concluded that "I don't find as credible [plaintiff's] assertion that he knew nothing about this because he made the payments that were set forth in the payment schedule." Relying on case law under the CFA, the judge reasoned that a consumer who refused to sign a contract, despite being offered one, was estopped from using the CFA as a defense to the contractor's claim for payment.
The judge concluded that "everybody knew what was going on. The work was done. The only issue now is whether it was done in a good and workmanlike fashion." He further reasoned that affirmative conduct showed that this was the contract, and the mere fact that the homeowner didn't sign it or at least that the plaintiff . . . is not in possession of the signed contract should ...