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Fernandes v. Navas

April 10, 2008

ALEX FERNANDES AND ELAINE FERNANDES, PLAINTIFFS-RESPONDENTS,
v.
SUSAN NAVAS T/A G&S GENERAL CONTRACTING, PELCON CONSTRUCTION, INC., DEFENDANTS, AND GASPER SCATURRO, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Bergen County, L-6471-05.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted January 29, 2008

Before Judges Skillman and LeWinn.

In July 2003, plaintiffs, husband and wife, contracted with defendant, Gasper Scaturro, doing business as G & S Contracting (G & S), to perform certain renovations to their two-family residence in Lodi, New Jersey. Plaintiff, Elaine Fernandes (hereinafter "plaintiff") had been referred to Scaturro through his girlfriend, Susan Navas, whom plaintiff knew through her employment. Difficulties arose during the course of the construction that ultimately led plaintiffs to file a lawsuit against Scaturro, Navas, G & S, and Pelcon Construction, Inc.;*fn1 the complaint asserted claims under the Consumer Fraud Act, N.J.S.A. 56:8-1 to -20 (CFA), as well as for breach of contract, fraud and various other theories of liability.

Trial was held on November 28, 2006, at which time plaintiff appeared with counsel, and Gasper Scaturro (hereinafter defendant) appeared pro se. At the conclusion of trial, the judge rendered a bench decision finding that defendant had violated the CFA and awarding plaintiffs treble damages under N.J.S.A. 56:8-19 in the amount of $360,000, representing three times the $120,000 they had paid to defendants pursuant to the proposal. The judge also awarded counsel fees and costs in the amount of $14,586. On December 18, 2006, the judge entered judgment against defendants in accordance with his decision.*fn2

Defendant has appealed, raising the following issues:

I. The Plaintiffs had the burden of proving damages flowing from a violation of the Consumer Fraud Act or regulations.

II. The Court below lacked impartiality.

We have thoroughly reviewed the record. We affirm the trial court's findings that defendant violated the CFA. However, we remand for reconsideration of the quantum of damages. We reject, as without merit, defendant's claim that the trial judge lacked impartiality. R. 2:11-3(e)(1)(E).

I.

Plaintiff met Susan Navas while both were working as paralegals at a law firm. In July 2003, plaintiff told Navas about a decision she and her husband had made to renovate and enlarge a two-family residence owned by her in-laws; the Fernandes' were to acquire title to the property in August 2003, and it was their intention to renovate and expand it so they could move in and live together with Mr. Fernandes' parents.

Navas told plaintiff that defendant, who was her boyfriend, was a general contractor, and she recommended him for the job. On July 18, 2003, plaintiff met with defendant and, on July 24, signed a proposal with G & S for the following work: construction of a two-story addition and a finished basement apartment; complete re-modeling of the first floor, as well as the kitchen and bathrooms; installation of all new flooring, plumbing and electric fixtures throughout the residence; aluminum siding on the exterior of the entire residence; and construction of a sidewalk on the side of the residence.

The proposal was entirely hand-written, including the name G & S Contracting at the top with an address listed only as "Elizabeth, N.J." The proposal provided that the "job will be totally completed to move in condition. Specs to follow. Plans and permits included." No start date or completion date was stated in the proposal. Plaintiff testified that she told defendant that she and her husband and his parents wanted to be back in the residence by Thanksgiving, and that defendant agreed to have the job completed by then.

The total price stated on the proposal was $124,000, with a payment schedule described as follows: "$62,000 deposit[,] 2 payments 1/2 way through[,] $31,000 with remain[d]er at completion." Plaintiff paid defendant $6,000 on July 24, 2003, and an additional $56,000 in August 2003 when she and her husband obtained title to, and took a mortgage on, the residence.

Construction permits were not issued until October 10, 2003; plaintiff paid for the permits even though the proposal stated defendant would pay for them. Defendant provided no plans or "specs" as promised in the proposal. Demolition began in late October. Around that time, defendant ...


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