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Nejmeh v. Forbes

November 10, 2008

MARK NEJMEH, PLAINTIFF-APPELLANT,
v.
DOUG FORBES AND ELENA MATYAS, A/K/A ELENA FORBES, DEFENDANTS-RESPONDENTS.



On appeal from the Superior Court of New Jersey, Law Division, Special Civil Part, Monmouth County, Docket No. L-1192-06.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted: August 20, 2008

Before Judges A.A. Rodríguez and C.L. Miniman.

Plaintiff Mark Nejmeh appeals from a judgment entered in favor of defendants Doug Forbes and Elena Matyas dismissing his complaint for money due and owing for home repairs and awarding defendants $22,146.14 as trebled damages, attorney's fees, and costs pursuant to the Consumer Fraud Act (CFA), N.J.S.A. 56:8-1 to -181. We affirm.

Plaintiff, in a complaint filed on October 28, 2005, in the Special Civil Part, sought to recover $8,419.32 for labor and materials supplied to defendants for renovations and repairs made to their newly acquired, unoccupied home in Asbury Park. On December 12, 2005, defendants answered the complaint and counterclaimed, alleging that plaintiff failed to comply with N.J.A.C. 13:45A-16.2 requiring a written contract for home repairs, an unlawful practice under the CFA. They also alleged negligent performance of the work, breach of contract, and assault, seeking an award of punitive damages. Defendants' motion to transfer the case to the Law Division was granted on February 3, 2006, and on May 3, 2006, they requested entry of default on the counterclaim. Default was entered on the next day. Plaintiff did not answer the counterclaim until October 6, 2006. A bench trial was conducted on October 9, 10, 11, and 12, 2007, and the judge placed his decision on the record on October 31, 2007, entering a final judgment that day.

Initially, the judge addressed the credibility of the witnesses. In assessing the credibility of plaintiff and his secretary, the judge found that their recollections were uncertain in many respects and that this uncertainty was compounded by the lack of documentation respecting the nature and scope of work, materials to be utilized, and the schedule for performance and completion. Additionally, plaintiff's lack of recollection was evidenced sometimes by contradictory statements. As a result, the judge found that the affirmative value of plaintiff's testimony was negatively affected. The judge found defendant Forbes, on the other hand, to be honest and direct, and his "recollection of critical events [was] more precise and his statements [were] documented by the exhibits submitted."

The parties entered into an agreement in August 2004 to have plaintiff perform certain home improvement services. Plaintiff did not prepare or submit a written contract for the services. Plaintiff was to build a four-by-five-foot extension of defendants' kitchen into the porch by adding a header and connect the support beams, enclosing two exterior walls; inserting French doors in the south wall, reinsulating, and installing sheet rock on the interior. The price for the work was $750 for demolition, $250 to remove the siding from the original kitchen wall, and $7000 for the kitchen construction, including installation of ceramic flooring.

The kitchen demolition began sometime before September 15, 2004, when Asbury Park issued a stop-construction order for failure to obtain a construction permit. After the initial work began, the parties agreed to expand the scope of work to other areas in the home. Plaintiff agreed to renovate the upstairs bath and charged $650 for demolition, $6500 for installation of basic fixtures, sheet rock, and paint as well as $700 for a skylight, $450 for a cathedral ceiling, $475 for a new exterior window, $600 for a glass-block window, and $600 for a pocket door. The parties also agreed to the following additional work to be done by plaintiff for which plaintiff charged the following sums: $3000 for basement structural work, $200 to block up the basement window, $1200 to upgrade the passage to the basement, $400 for patching walls, $300 for sealing gas-light-fixture lines, $1500 for a new dining room wall, $1200 for installing an archway from the kitchen to the dining room, $2400 for miscellaneous plumbing work, and $4000 for painting the house.

Plaintiff did not provide defendants with any written contract for the home-improvement work or any written change orders. As a consequence, the materials to be used, the scope of work to be done, the timetable for completion, and any responsibilities of defendants were never established. He did not give defendants a written notice of the reasons for any delay in performance, stating when the work would be completed. He began the work without a construction permit and did not secure required inspections, thus evading inspection of the footings for the structural work in the basement. He did improper work in the dining room, which had been damaged by the kitchen demolition and renovations. Although defendants did not ask him to perform any work on the heating system, he dismantled ducts in the basement without any permit and without being a licensed plumber. He did not provide defendants with copies of the inspection certificates before demanding payment of the balance due.

When the project was nearly complete, defendants were cited by Asbury Park on November 1, 2004, for failing to remove the debris in a timely manner, leading to an argument between the parties. Defendants were also angry over delays in the progress of the work and dissatisfied with its quality. As a result, defendants ordered plaintiff off the job and hired other contractors to complete the work.

The total sum for the work to be done by plaintiff was $32,175. Plaintiff admitted that he did not install the ceramic floor in the kitchen and that defendants were entitled to a credit of $2300. The parties stipulated that defendants paid plaintiff a total of $21,430. However, defendants refused to pay plaintiff the balance of the agreed price--$8445.

Some of the materials used by plaintiff were different than defendants expected or more expensive; others were substandard. Some work was done by plaintiff that was not requested by defendants. Because plaintiff failed to obtain required permits and inspections, his structural and plumbing work had to be repaired to meet code requirements. When plaintiff was removed from the project, the shower and heat were not operational and defendants were forced to stay at a Days Inn in Neptune for four days, which cost $325.51, because the lease on their apartment had expired. They also had to board their pet at a cost of $291.36. They expended $350.46 for removal of construction debris and $215 to reconnect duct work that plaintiff removed and did not properly reinstall. Additional remedial work on the ducts cost $1175. Repair of the basement footings cost $600. Remedial work in the kitchen cost $3000. Remediation and completion of the plumbing work cost $1458. Defendants also could not use a custom cabinet over the refrigerator costing $434.60 because the ceiling height constructed by plaintiff had to be lowered to comply with code requirements. They also incurred $250 for materials to repaint areas in the home that plaintiff improperly painted.

The judge concluded the plaintiff was entitled to be paid for the work he completed and found that $8445 was due and owing plaintiff because he performed a substantial amount of the work, which was nearly complete when defendants ordered him off the job. The judge also determined that plaintiff violated N.J.A.C. 13:45A-16.2(7)(iii), -16.2(10), -16.2(11), and -16.2(12), which violations constituted unfair practices in violation of N.J.S.A. 56:8-2, for which ...


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