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Purofirst of Southwest Jersey v. Warner

March 19, 2008


On appeal from Superior Court of New Jersey, Law Division-Special Civil Part, Burlington County, DC-628-06.

Per curiam.


Submitted October 31, 2007

Before Judges Payne and Messano.

Defendant, Joseph R. Warner, appeals from a verdict entered against him and in favor of plaintiff, Purofirst of Southwest Jersey, in the amount of $8,471.32, following a bench trial in the Law Division, Special Civil Part. On appeal, defendant makes a myriad of arguments that we distill into the following:

(1) whether the trial judge erred in finding that the original signed contract was valid; (2) whether the trial judge erred by not raising the Consumer Fraud Act (CFA) sua sponte to invalidate the signed contract; (3) whether the trial judge erred in awarding plaintiff compensation on the theory of quantum meruit, despite a violation of regulations adopted pursuant to the CFA; (4) whether the judge erred in calculating damages; (5) whether the judge erred in establishing the amount of the attorney fee award; and (6) whether the trial judge erred in denying defendant's motion to vacate the judgment based upon plaintiff's alleged perjury and defendant's discovery of "new" evidence. We affirm.


Suit in this matter was instituted by plaintiff, a restoration company that does emergency service work for properties that are damaged by fire, water or other conditions, seeking payment by defendant of $13,884.60, constituting the balance of amounts allegedly owed for plaintiff's demolition and construction services. Following entry and vacation of a default judgment, defendant filed a pro se answer and counterclaim, asserting as defenses in his answer that plaintiff had breached its contract by failing to conform to the architect's plan, and that defendant's "failure to perform" under the contract was excused by plaintiff's actions. In his counterclaim, defendant alleged: "During Plaintiff's performance of the contract alleged in the complaint, plaintiff damaged defendant's property and failed to make repairs."

Despite any reference in defendant's answer or counterclaim to the CFA, N.J.S.A. 56:8-1 to -166, or the incorporation into that counterclaim of any facts supporting a cause of action under the CFA, at trial, defendant, now represented by counsel, selectively sought, without objection from plaintiff's counsel,*fn1 to apply that Act so as to invalidate an unsigned supplement to the contract between the parties that imposed additional costs upon defendant. Defense counsel did not urge the applicability of the CFA to the signed initial contract, and while also arguing that a second unsigned supplement was void, made no objection to the recognition of credits acknowledged in that supplement that benefited defendant. To further complicate the legal basis for the matter, at the conclusion of the bench trial, the judge awarded attorney's fees to defendant pursuant to the CFA, despite the lack of any application for such fees.

As a consequence of counsel's inattention to the niceties of concepts of notice and the consistent application of law, we are left with a result that in some respects defies logical explication. However, we are mindful of the fact that no cross-appeal has been filed in this matter, and that as a result, many of the difficulties presented by the record simply are not at issue before us. We thus limit our view of the case to those issues raised by defendant in this appeal that we have identified at the commencement of this opinion.

In viewing the judge's factfinding in this matter, our role is limited to a determination of whether those findings could reasonably have been reached as the result of substantial credible evidence in the record, while giving due regard to the ability of the trial judge to gauge the credibility of the witnesses appearing before her. State v. Locurto, 157 N.J. 463, 470-71 (1999). Our review of the judge's application of the law to the facts is plenary. Manalapan Realty v. Manalapan Tp. Comm., 140 N.J. 366, 378 (1995).

The trial record establishes to our satisfaction that, as the result of the death of defendant's aunt and defendant's purchase of the property at issue from his sister, in or around 2003, defendant became the owner of a house located at 3234 South Main Street in Medford, New Jersey. The house is approximately 150 years old. A photograph in the record demonstrates that it consists of one-half of a two-family row house, built directly adjacent to the sidewalk. To the right of the house, when facing the building, is a connected one-story structure referred to in the record as a store. The store is bounded on the right by Friends Avenue, which intersects South Main Street, and thus it is situated on a corner. The building is located in a designated historical district.

In April 2001, a fire in the attached residence spread to the third, or attic, floor of 3234 South Main Street, causing significant damage to the roof and supporting beams. As a result, defendant's aunt, who was living there at the time, was forced to move out, and thereafter, the house has remained without heat and without electrical and water service. In December 2002, plaintiff was contacted by defendant, who sought to repair the building's roof and to raise its elevation to permit the third floor to be used as a room. Plaintiff provided an estimate at that time, but heard no further from defendant until December 2003. Meanwhile, the building remained unoccupied.

In December 2003, Debra Conroy, a project manager for plaintiff, visited the house, and an estimate for the demolition and construction specified by defendant was prepared. Conroy testified at trial that at the time she inspected the residence, it was uninhabitable. Leaking water was being collected in trash cans and a second-floor tarp. Extensive water damage existed, the plaster was crumbling, mold was present, and trash was everywhere. Conroy testified that the ceiling in the kitchen area was being ...

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