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Czar, Inc. v. Heath

SUPREME COURT OF NEW JERSEY


March 18, 2009

CZAR, INC., A NEW JERSEY CORPORATION, PLAINTIFF-APPELLANT,
v.
JO ANNE HEATH AND THOMAS J. HEATH, SR., DEFENDANTS-RESPONDENTS.

On appeal from the Superior Court, Appellate Division, whose opinion is reported at 398 N.J. Super. 133 (2008).

SYLLABUS BY THE COURT

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).

The issue in this appeal is whether a contractor hired by a homeowner to design and install a kitchen and to perform certain other interior work in a new home then being built by a different contractor, was engaged in new home construction, thus limiting the homeowners' claim to the New Home Warranty and Builders' Registration Act, N.J.S.A. 46:3B-1 to -20, or was instead performing home improvements, and thus subject to suit under the Consumer Fraud Act because of the 2004 amendments to that statute, N.J.S.A. 56:8-136 to -152, regulating home improvement contractors.

Defendants JoAnne and Thomas Heath, Sr., hired a general contractor to build a new home for them. After much of the home was completed, they hired plaintiff Czar, Inc., to design the kitchen, to build and install custom kitchen cabinets, and to perform other interior work, including installing doors and decorative moldings. Before Czar completed its work, a dispute arose and the Heaths refused to pay Czar the full contract price for services and work that it had performed. Czar filed a complaint alleging that it had performed by building the cabinets and that the Heaths breached the contract by preventing Czar from delivering and installing the cabinets, and thus completing its work. The Heaths' counterclaim alleged that the work Czar had performed was not workmanlike and the cabinets were not what had been promised. They asserted they were entitled to relief based upon nine causes of action, including consumer fraud. Czar moved to dismiss the Consumer Fraud Act (CFA) count, arguing that its work was part of the construction of a new home and thus specifically excluded from the CFA. The Heaths asserted that the work was properly categorized as home improvements. The trial court dismissed the CFA claim, finding that Czar's services were properly classified as the "construction of a new residence" and thus the Heaths could not seek CFA remedies against Czar.

The Appellate Division, in a published opinion, reversed. 398 N.J. Super. 133 (2008). The panel held that the exemption for construction of a new residence found in the home improvement regulations did not apply to the work performed by Czar. The panel relied in part on the facts that Czar was not the general contractor hired to build a new residence and did not install or build any structural improvements in the home, but rather contracted directly with the Heaths for the installation of custom cabinets and certain interior work. Construing the statutes and regulations together, the panel found that because the statutory remedies applicable to new home builders would not be available to address work done by a separately-retained contractor who performs his work in a new home, Czar's theory would deprive the Heaths of protections to which they were entitled. Alternatively, the panel concluded that even if Czar were engaged in new home construction, that separate statutory scheme included a reservation of, and an election of, remedies, which would preserve a CFA cause of action as an alternative form of relief.

The Supreme Court granted Czar's motion for leave to appeal. 195 N.J. 414 (2008).

HELD: The Consumer Fraud Act, the Contractor's Registration Act, the New Home Warranty Act, and the regulations promulgated pursuant to those statutes were designed to provide an integrated scheme of protections for homeowners. The contractor, which neither acted as the general contractor nor qualified as a builder of new homes, was engaged in the business of home improvements and subject to the remedies of the Consumer Fraud Act.

1. To determine whether Czar was engaged in new home construction or was performing home improvements, the Court analyzes the interplay between the CFA, the Contractor's Registration Act, the New Home Warranty and Builders' Registration Act, and the regulations promulgated to implement those statutes. The CFA is broad remedial legislation enacted to protect consumers of a variety of goods and services. One example of the Legislature's repeated expansions of the CFA's reach is the 2004 enactment of the Contractor's Registration Act, N.J.S.A. 56:8-136 to -152. That statute and its implementing regulations created a framework within the CFA that regulates contractors engaged in the home improvement business. The statute broadly applies to those engaged in "remodeling, altering, renovating, repairing, restoring, modernizing, moving, demolishing, or otherwise improving or modifying of the whole or any part of any residential or non-commercial property." Any person or entity that falls within the definition of a home improvement contractor must register with the Division of Consumer Affairs and maintain commercial general liability insurance. Any violation of the statute's provisions is "an unlawful practice" subject to the CFA's remedies, which strongly suggests that the Legislature intended to broadly empower consumers of these services to seek relief for violations and to be made whole. (pp. 7-11)

2. The Contractor's Registration Act exempts from its provisions any person required to register under the New Home Warranty and Builders' Registration Act, N.J.S.A. 46:3B-1 to -20, a statute in existence for nearly three decades. Those governed by the New Home Warranty Act were already subject to a registration requirement and a regulatory mechanism that provided recourse to the homeowners who dealt with them through that statute's remedies. The key to understanding how the Legislature intended these statutes to be construed in complimentary fashion lies in the identity of the entities to which each applies and the differences in the remedies that each affords. The New Home Warranty Act defines "builder" simply in terms of entities "engaged in the construction of new homes." The principal remedy of the New Home Warranty Act is its warranty program, which focuses on major defects that might be found in a new home and provides homeowners a source of payment to correct deficiencies. A homeowner's reliance on the warranty is an affirmative election of remedies that precludes suit based on a defect within the scope of the warranty. By making the provision of the warranty its central focus, the New Home Warranty Act limits the meaning of the definition of contractors to whom the statute can apply. (pp. 11-16)

3. By comparing the two statutes, it is apparent that they create a harmonious protective scheme. Each imposes a registration requirement upon a defined group of contractors. The New Home Warranty Act created a warranty program, coupled with a home buyer's right to elect remedies, and required the new home contractor to include warranty information in its registration. In place of warranty protections, the Contractor's Registration Act requires insurance and disclosure and, through implementing regulations, defines unlawful practices subject to the CFA's remedies. (pp. 16-17)

4. Czar argues that it was involved in the building of a new home and thus exempt from the remedies available under the home improvement statute and regulations. At the same time, Czar does not suggest that it registered as a new home builder under the New Home Warranty Act, or that it made available the warranty that is so central to that statute's protections. The Court declines to read the statutes as Czar suggests because it would provide less, rather than more, protection for the homeowner. The Legislature did not intend that a contractor could escape registration and participation in the warranty program applicable to new home builders and also avoid registration and compliance with the remedies available under the home improvement statute and regulations. (pp. 17-20)

5. That the Heaths hired Czar to build the kitchen and make other changes to the home not yet completed is of no moment. The Court looks beyond the description and location of the work and focuses on whether the entity hired to perform it would have been required to, or could have adhered to, the New Home Warranty Act registration and warranty program. As Czar simply did not, its argument that it was engaged in new home construction fails. (p. 20)

The judgment of the Appellate Division is AFFIRMED as MODIFIED.

JUSTICE RIVERA-SOTO has filed a separate, DISSENTING opinion, expressing the views that the work at issue was the construction of a new home; that simply because the Legislature sought to cure two different sets of ills under two different statutes does not mean that all claims involving the construction of a new home must fall under one of the statutory schemes; that the common law is designed to fill gaps that may exist between the coverage of dissimilar statutes; and that there is no gap to fill in this case because the homeowners still retain their already pled claims, including breach of contract, negligence, unjust enrichment, and unlawful possession of goods.

CHIEF JUSTICE RABNER and JUSTICES LONG, LaVECCHIA, ALBIN, and WALLACE join in JUSTICE HOENS's opinion. JUSTICE RIVERA-SOTO filed a separate, dissenting opinion.

The opinion of the court was delivered by: Justice Hoens

Argued October 20, 2008

This appeal presents us with a novel question about the scope and application of the Consumer Fraud Act (CFA), N.J.S.A. 56:8-1 to -20. In short, we are required to decide whether a contractor hired by a homeowner to design and install a kitchen and to perform certain other interior work in a new home then being built for the homeowner by a different contractor, was engaged in new home construction or was instead performing home improvements. The homeowners argue that the kitchen and interior work constituted home improvements, thus subjecting the contractor to suit pursuant to the CFA because of the 2004 amendments to that statute, see N.J.S.A. 56:8-136 to -152, regulating the work of home improvement contractors. The contractor contends that any work performed as part of building a new home is excluded from the definition of home improvements that is utilized by the CFA and that the homeowners' claim is governed instead by the New Home Warranty and Builders' Registration Act, N.J.S.A. 46:3B-1 to -20.

Because the several statutes relied upon by the parties, and the regulations promulgated pursuant to each of them, were designed to be understood and applied as an integrated scheme of protections for homeowners, and because adopting plaintiff's analytical approach might leave these homeowners without the remedy that the Legislature intended be available to them, we conclude that plaintiff, which neither acted as the general contractor nor qualified as a builder of new homes, was engaged in the business of home improvements and subject to the remedies of the CFA.

I.

The facts that are germane to our analysis of this issue are relatively few. Defendants JoAnne and Thomas Heath, Sr., contracted with a general contractor to build a new home for them in Florham Park. After much of the home had been completed, they hired plaintiff Czar, Inc., to design the kitchen, which included relocating the plumbing and electrical fixtures, to build and install custom kitchen cabinets, and to perform other interior work, consisting of the installation of interior doors, a front door, window casings, and decorative moldings throughout the house.

Before plaintiff completed the work, a dispute arose and defendants refused to pay plaintiff the full contract price for services and work that plaintiff had performed. Plaintiff's complaint, filed in Essex County, demanded that defendants pay $80,296.96, representing the balance of the original contract price of $153,296.96, together with interest and costs. Plaintiff's complaint alleged that it had performed by building the custom kitchen cabinets and that defendants breached the contract by preventing plaintiff from delivering and installing the cabinets, and thus completing its work.

At approximately the same time, the Heaths filed their complaint in Morris County, claiming that Czar, Inc. had failed to perform its work according to the terms of the contract, that the work that it had performed was neither workmanlike nor completed on time, and that the kitchen cabinets in particular were not what had been promised. In their complaint, the Heaths asserted that they were entitled to relief based upon nine separate causes of action, including breach of contract, negligence, fraud, consumer fraud, negligent infliction of emotional distress, conversion, breach of the implied covenant of good faith and fair dealing, unjust enrichment, and unlawful possession of goods for which the Heaths had already paid.

The parties consented to having the complaint filed by the Heaths transferred to Essex County and consolidated with the complaint that Czar, Inc. had previously filed, after which it proceeded as a counterclaim. When the parties appeared for trial, plaintiff moved in limine to dismiss defendants' CFA count. Central to the arguments between the parties was their dispute about the true nature of plaintiff's work. Defendants asserted that the work was properly categorized as home improvements, and thus governed directly by the CFA, while plaintiff argued that its work was simply part of the construction of a new home, and therefore specifically excluded from the CFA.

The trial court, after hearing testimony from witnesses that it deemed necessary to its decision on the motion, dismissed the CFA claim. In support of its order, the court found that the work to be performed by plaintiff under the contract was "essential to the construction of a new residence." As a result, the court concluded that plaintiff's services were properly classified as the "construction of a new residence" rather than the performance of home improvements. Relying on language in the home improvement regulations promulgated pursuant to the CFA that excluded new residential construction, see N.J.A.C. 13:45A-16.1A, the court concluded that defendants could not seek CFA remedies against plaintiff.

The Appellate Division, in a published opinion, reversed. Czar, Inc. v. Heath, 398 N.J. Super. 133 (App. Div. 2008). In its view, the exemption for construction of a new residence found in the home improvement regulations, see N.J.A.C. 13:45A-16.1A, did not apply to the work performed by plaintiff. Czar, Inc., supra, 398 N.J. Super. at 135. In part, the panel relied on the undisputed facts that "plaintiff was not the general contractor hired to construct a new residence, did not install or build any structural improvements in the home, but rather contracted directly with defendants for the installation of custom kitchen cabinets, a front door, interior doors, and certain moldings." Id. at 138.

In addition, the panel based its decision on its analysis of the applicable statutes and regulations, concluding that they could only be understood if all of them were read "in pari materia[, an analysis that] results in a harmonious and effective remedy for homeowners." Id. at 139. The panel reasoned that because the statutory remedies applicable to new home builders would not be available to correct work done by a separately-retained contractor who merely performs his work in a new home, plaintiff's theory would deprive defendants of protections to which they were entitled. Id. at 138-39.

As a part of its consideration of the issues, the court distinguished two earlier Appellate Division decisions, see Messeka Sheet Metal Co. v. Hodder, 368 N.J. Super. 116, 124-25 (App. Div. 2004) (concluding that subcontractor could not be subject to homeowner's claim pursuant to home improvement regulations); Splash of Tile, Inc. v. Moss, 357 N.J. Super. 143, 154 (App. Div.) (suggesting broad interpretation of new home construction exclusion), certif. denied, 176 N.J. 430 (2003), concluding that neither directly addressed the essential questions presented in this dispute. Czar, Inc., supra, 398 N.J. Super. at 140-41.

Finally, and in the alternative, the Appellate Division concluded that even if plaintiff were considered to be engaged in new home construction, that separate statutory scheme included a reservation of, and an election of, remedies, see N.J.S.A. 46:3B-9, which, in its view, would preserve a CFA cause of action as an alternative form of relief. Czar, Inc., supra, 398 N.J. Super. at 140.

We granted plaintiff's motion for leave to appeal, 195 N.J. 414 (2008).

II.

The issue raised in this appeal relates only to defendants' CFA claim and turns on only a single point of contention between the parties. Simply put, plaintiff, the contractor, argues that the CFA and the regulations on which defendants rely do not afford defendants a remedy because plaintiff's work was part of the building of defendants' new home. Defendants contend that the CFA provides them with a cause of action because plaintiff was not the builder of a new home, but was instead performing work that constituted a home improvement, albeit in connection with the construction of a new residence.

Answering the deceptively simple question raised, that is, whether plaintiff was engaged in new home construction or was performing home improvements, requires that we analyze the interplay between the CFA, N.J.S.A. 56:8-1 to -20, the Contractor's Registration Act, N.J.S.A. 56:8-136 to -152, the regulations adopted pursuant to the Contractor's Registration Act, N.J.A.C. 13:45A-16.1 to -17.14, the New Home Warranty and Builders' Registration Act, N.J.S.A. 46:3B-1 to -20, and the regulations promulgated to implement that statute, N.J.A.C. 5:25-1.1 to -5.5.

We need say little about the CFA, its history or its scope because, as it relates to the issue before us, we have sufficiently explained the statute and its essential purposes in our many earlier decisions. See, e.g., Furst v. Einstein Moomjy, Inc., 182 N.J. 1, 11 (2004); Cox v. Sears Roebuck & Co., 138 N.J. 2, 21 (1994). Indeed, we need only reiterate that it is broad remedial legislation enacted for the protection of consumers of a variety of goods and services, see Thiedemann v. Mercedes-Benz USA, L.L.C., 183 N.J. 234, 245 (2005), and that its history has been marked by the "constant expansion of consumer protection." Gennari v. Weichert Co. Realtors, 148 N.J. 582, 604 (1997). Of particular significance to this matter, we note that over the years following the initial adoption of the CFA, the Legislature has repeatedly amended and expanded the reach of its provisions, often by adding sections to address particular areas of concern and to include them specifically within its protective sweep. See, e.g., N.J.S.A. 56:8-26 to -38 (regulating resale of tickets to "places of entertainment"); N.J.S.A. 56:8-39 to -48 (regulating health club contracts); N.J.S.A. 56:8-61 to -66 ("preventing consumer fraud in the preparation, distribution and sale of food as kosher").

One example of this expansion of the application of the CFA can be seen in the Legislature's 2004 enactment of the Contractor's Registration Act, L. 2004, c. 16 (codified at N.J.S.A. 56:8-136 to -152). That statute, and the implementing regulations promulgated thereafter, see N.J.A.C. 13:45A-16.1 to -17.14, created a framework within the CFA that regulates contractors who are engaged in the business of making or selling home improvements. Although the legislative history surrounding the statute is sparse, there can be no doubt about the fact that the Legislature regarded the home improvement industry as being greatly in need of regulation. Indeed, the seriousness with which the Legislature approached the perceived problems in that industry is reflected both in the expansive language of the statute's definitional reach and in the remedies that the statute authorizes.

In particular, the Legislature made the statute applicable broadly, by defining those in the home improvement industry that would fall within its terms without regard to the type of business entity through which they operated. See N.J.S.A. 56:8-137 (defining contractors to include persons operating through "corporation, partnership, association and any other form of business organization or entity" together with their "officers, representatives, agents and employees"). Similarly, the statute used sweeping language in its definition of "home improvements" so that the requirements of the Act would reach an extensive variety of persons and entities involved in the home improvement business. See ibid. (defining home improvement). As a result, the statute applies to individuals and entities engaged in "remodeling, altering, renovating, repairing, restoring, modernizing, moving, demolishing, or otherwise improving or modifying of the whole or any part of any residential or non- commercial property . . . [and] shall also include insulation installation, and the conversion of existing commercial structures into residential or non-commercial property." Ibid.

Apart from those expansive definitions both as to the persons or entities that are engaged in the business and as to the nature of the business of home improvements, the statutory enforcement mechanisms chosen by the Legislature independently suggest an intention to provide strong protections to consumers. Some are regulatory in nature, for example, requiring any person or entity that falls within the definition of a home improvement contractor, see N.J.S.A. 56:8-137, to register with the Division of Consumer Affairs, N.J.S.A. 56:8-138, and to make detailed annual disclosures that might subject it to suspension or revocation of its registration, N.J.S.A. 56:8-141; see N.J.A.C. 13:45A-17.3 (imposing detailed registration requirements).

Other provisions, however, relate either directly or indirectly to the remedies that the Legislature intended the statute to make available to the consumer. As an example, persons or entities involved in the home improvement industry are obligated to "secure [and] maintain . . . commercial general liability insurance" in the required amount, N.J.S.A. 56:8-142. In practice, the requirement that the contractors carry insurance does not protect consumers*fn1 directly; instead the statute provides two other, powerful means of enforcement. The Act specifically makes any violation of its provisions "an unlawful practice" subject to the remedies available under the CFA, N.J.S.A. 56:8-146(a), as well as a fourth degree criminal offense, N.J.S.A. 56:8-146(b). The statute's identification of the CFA as its principal civil enforcement mechanism, particularly in light of the adoption of implementing regulations that identify numerous prohibited practices, see N.J.A.C. 13:45A-16.2, strongly suggests that the Legislature intended to broadly empower consumers of these services to seek relief for violations and to be made whole.

In spite of its breadth, however, the statute requiring registration of home improvement contractors specifically exempts certain persons and entities from its provisions entirely. See N.J.S.A. 56:8-140. In relevant part, the Legislature excluded from this statute "any person required to register pursuant to 'The New Home Warranty and Builders' Registration Act,' P.L. 1977[, c.] 467 ([N.J.S.A.] 46:3B-1 [to -20])." N.J.S.A. 56:8-140(a). Although the available legislative history does not illuminate the reasons for that exemption, it is apparent that the Legislature recognized that individuals and entities that were then governed by the New Home Warranty Act were already subject to a registration requirement and a regulatory mechanism that provided recourse to the homeowners who dealt with them through that statute's separately-mandated remedies.

Indeed, it is plain that the Legislature intended to create complementary protections for people who were, on the one hand, either building or buying new homes or, on the other hand, using the services of persons or entities who were engaged in making home improvements. We reach this conclusion because New Home Warranty Act, which had been in existence for nearly three decades, made specific remedies available to new home buyers, a part of which included a registration requirement for new home builders through which their participation in those remedial programs would be assured. See N.J.S.A. 46:3B-5. The key to our understanding about how the Legislature intended these statutes to be construed in a complementary fashion lies in the identity of the entities to which each applies and the differences in the remedies that each affords.

Unlike the expansive language used in the statutory scheme that regulates home improvement contractors, the New Home Warranty Act defines "builder" simply in terms of entities "engaged in the construction of new homes." N.J.S.A. 46:3B-2(f); see N.J.A.C. 5:25-1.3 (defining "new home builder" as one "engaged in the construction of new homes"). Plaintiff asserts that we should give a broad reading to that definition, with the effect that anyone "engaged in the construction of new homes" would be expanded to mean anyone "participating in" or "playing a role in" the construction of a new home or anyone "working on the premises" of a new home under construction. See, e.g., Messeka Sheet Metal, supra, 368 N.J. Super. at 124-25 (considering, but not deciding, whether supplier, who contracted with general contractor engaged in new home construction, was exempt from home improvement regulations); Splash of Tile, supra, 357 N.J. Super. at 154 (commenting in dicta that all construction within new home would fall outside home improvement regulations). A further analysis of the statute itself, however, yields no support for that interpretation.

Although, like the statute and regulations governing home improvement contractors, the New Home Warranty Act includes a registration requirement, N.J.S.A. 46:3B-5 ("No builder shall engage in the business of constructing new homes unless he is registered with the [Department of Community Affairs]"); N.J.A.C. 5:25-2.1(a) (requiring those "engage[d] in the business of constructing new homes" to register), its principally-available remedy is embodied in its warranty program. See N.J.S.A. 46:3B-3. New home builders must either participate in that program and make the new home warranty available to home buyers, ibid., or must qualify for the alternate new home warranty security program, N.J.S.A. 46:3B-8, and make that relief available to new home buyers. N.J.S.A. 46:3B-5. In either event, the statute provides that a new home buyer can elect to access the warranty which, by and large, is focused on major systems or structural defects that might be found in a new home. N.J.S.A. 46:3B-3(b).

We have recognized that the New Home Warranty Act "standardizes the responsibilities of new-home builders" and, in part, that its warranty program "protect[s] homeowners by providing a source of payment to correct deficiencies caused by culpable builders." Marchak v. Claridge Commons, Inc., 134 N.J. 275, 279 (1993). At the same time, we have concluded that the warranty program does not necessarily replace traditionally available remedies, id. at 280, and that even though arbitration is a central feature of the warranty program, "[t]he owner's right to sue . . . remains intact." Id. at 280. In spite of that, the warranty program is the statute's essential method for protecting new home buyers and our Appellate Division has recognized that its scope can extend to matters not otherwise included within that remedy. See Konieczny v. Micciche, 305 N.J. Super. 375, 380 (App. Div. 1997) (concluding that homeowner accepting warranty remedy extending to contractual obligation normally outside warranty protection is foreclosed from litigating that claim).

Although resort to the warranty is not an exclusive avenue for relief*fn2 under the New Home Warranty Act, the statute provides that the homeowner's decision to avail himself or herself of that avenue for relief is an affirmative election of remedies.

N.J.S.A. 46:3B-9. As a result, reliance on the warranty will also preclude suit based on a defect within the scope of the warranty that the homeowner knew or should have known about.

See Konieczny, supra, 305 N.J. Super. at 380. Even though the Legislature provided new home buyers with the ability to select either the warranty or traditional remedies, the New Home Warranty Act, by making the provision of a warranty its central focus, necessarily limits the meaning of the definition of contractors to whom the statute can apply.

By comparing these two statutes, the way in which they create a harmonious protective scheme is apparent. Each of the statutes imposes a registration requirement upon a defined group of contractors. The earlier enacted of the two, applicable to new homes, created a warranty program, coupled with a dispute resolution mechanism and a home buyer's right to elect remedies. It required the new home contractor or builder to include warranty information in the registration as a means for the Department of Community Affairs to ensure compliance and, by extension, to make the warranty an effective remedy, and included monetary penalties to ensure that new home builders would register as required. N.J.S.A. 46:3B-12.

The more recently enacted statute governing home improvement contractors, N.J.S.A. 56:8-136 to -152, which was codified as an amendment to the CFA, similarly includes a registration provision, see N.J.S.A. 56:8-138. In place of the warranty protections required of new home builders, however, this statute protects homeowners by requiring insurance, disclosures, and, through the implementing regulations, by specifying numerous practices that are defined to be unlawful, all specifically deemed to fall within the CFA and, therefore, made subject to its enforcement mechanisms and remedies. See N.J.S.A. 56:8-146.

Reading the two statutes together, we see the Legislature's plan to create a seamless web of protections for the homeowner. It is plain that the Legislature, by excluding contractors already subject to the New Home Warranty Act from the newer enactment, both relieved them from the additional registration requirement and, by extension, permitted them to make available and, to great extent, rely on the remedies available through that statute, including its warranty program. There is, however, no basis on which to conclude that the Legislature intended that its exemption from registration for contractors covered by the New Home Warranty Act would create a broad exemption from the requirements it was imposing on home improvement contractors in its CFA amendments.

III.

Viewed in light of the sequence in which these two statutes were enacted, and utilizing a comparison between the different approaches and remedies employed by the Legislature in each of them, the fallacy of plaintiff's position is apparent.

Plaintiff essentially argues that it cannot be liable to defendants under the CFA because it was involved in the building of a new home and therefore exempt because of the exclusion for new home builders set forth in the statute relating to home improvements that is codified within the CFA, see N.J.S.A. 56:8-140(a), and its implementing regulations, see N.J.A.C. 13:45A-16.1A; N.J.A.C. 13:45A-17.2; N.J.A.C. 13:45A-17.4(a)(1). Critical to plaintiff's assertion is its argument that the definitions found in the New Home Warranty Act, see N.J.S.A. 46:3B-2(d); N.J.S.A. 46:3B-2(f), and particularly in that statute's implementing regulations, see N.J.A.C. 5:25-1.3, are worded so as to apply broadly and generally to any business involved in new home construction. At the same time, however, plaintiff does not suggest that it registered as a new home builder pursuant to New Home Warranty Act, or that it made available to defendants the warranty that is so central to that statute's protections. Instead, plaintiff simply would have us read the definition of new home builders found in New Home Warranty Act and couple it with an expansive understanding of the statutory provision that excludes new home builders from the statute governing home improvement contractors, without regard to the obvious reason why the Legislature would have found it appropriate to relieve new home builders of the obligation to comply with the regulatory scheme created to regulate home improvers that it chose to include within the CFA.

We see in the position expressed by plaintiff the kind of "crabbed" approach to the CFA that the Appellate Division has criticized, New Mea Constr. Corp. v. Harper, 203 N.J. Super. 486, 502 (App. Div. 1985), and we have likewise eschewed in favor of a faithful adherence to the CFA's broad remedial purposes. See, e.g., Thiedemann, supra, 183 N.J. at 245; Gennari, supra, 148 N.J. at 604; Cox, supra, 138 N.J. at 21. In essence, plaintiff would have us conclude that it was both exempt from the remedies available to consumers under the home improvement statute and regulations and yet not obligated to provide the warranty remedy that the New Home Warranty Act requires. This analytical construct, however, would require us to read the two statutes in a manner that would leave some contractors, like plaintiff, subject to neither statute.

We decline to read the statutes as plaintiff suggests because it would provide less, rather than more, protection for the homeowner. In light of the expansive approach taken in the realm of homeowners' protections, there is no basis on which to conclude that the Legislature intended that a contractor engaged by a homeowner could escape registration and participation in the warranty program applicable to new home builders and also avoid registration and compliance with the applicable remedies available under the statute and regulations that govern home improvement contractors. However sparse the evidence of the Legislature's intent when it exempted new home builders from having to comply with the statute requiring home improvement contractors to register, it is abundantly clear that the Legislature did not choose to diminish means of oversight over contractors working on homes nor to decrease the remedies available to consumers who dealt with them.

These two statutes represent a carefully created series of obligations imposed on contractors, each providing the homeowner with certain protections. There is no place in them for a contractor to use the one with which it did not comply as a sword against the homeowner whose rights the Legislature intended to protect. That defendants hired plaintiff to build the kitchen and make other changes to the home not yet completed is of no moment. Instead, we look beyond the description and location of the work to be performed, and focus on whether the entity hired to perform it would have been required to, or could have adhered to, the New Home Warranty Act registration and warranty program. As plaintiff simply did not, we think it plain that its argument that it was engaged in the construction of a new home fails.

IV.

The judgment of the Appellate Division is affirmed as modified.

CHIEF JUSTICE RABNER and JUSTICES LONG, LaVECCHIA, ALBIN, and WALLACE join in JUSTICE HOENS's opinion. JUSTICE RIVERASOTO filed a separate, dissenting opinion.

JUSTICE RIVERA-SOTO, dissenting.

In order to shoehorn construction work on a new home that had not been completed, permitted, or even ever occupied into the Consumer Fraud Act (CFA), N.J.S.A. 56:8-1 to -20, the majority concludes that "plaintiff, which neither acted as the general contractor nor qualified as a builder of new homes, was engaged in the business of home improvements and subject to the remedies of the CFA." Ante at ___ (slip op. at 2). According to the majority, the CFA and the New Home Warranty and Builders' Registration Act (the New Homeowners Warranty or HOW Act), N.J.S.A. 46:3B-1 to -20, are "designed to be understood and applied as an integrated scheme of protections for homeowners[.]" Ibid. Because it concludes that failing to apply either statute in this setting "might leave these homeowners without the remedy that the Legislature intended be available to them[,]" ibid., the majority then holds that a contractor who performs work in a new, unfinished, and unoccupied residence that lacks a certificate of occupancy is somehow engaged in home improvements falling under the purview of the CFA.

That analysis is faulty. Simply because the Legislature sought to cure one set of ills under the CFA and yet another set of ills under the HOW Act does not somehow mean that all claims involving the construction of a new home must fall under one statutory scheme or the other. In its analysis, the majority ignores our common law, which is designed to fill the gaps that may exist between the coverage of dissimilar statutes. See, e.g., Richard A. Pulaski Constr. Co. v. Air Frame Hangars, Inc., 195 N.J. 457, 460 (2008) ("Assuming, without deciding, that our common law may admit of a cause of action for prima facie tort, it is solely a gap-filler."); Benjamin Moore & Co. v. Aetna Cas. & Sur. Co., 179 N.J. 87, 97 (2004) (explaining that, because general comprehensive liability policies of insurance "do not provide guidance on how to apportion liability for long-tail injury, common law must fill the gaps" (citing Rebecca M. Bratspies, Splitting the Baby: Apportioning Environmental Liability Among Triggered Insurance Policies, 1999 B.Y.U. L. Rev. 1215, 1218)); Negron v. Llarena, 156 N.J. 296, 315 (1998) (Handler, J., concurring) ("'When recognized, this common law right to recover for wrongful death has been utilized to fill in unintended gaps in present statutes or to allow ameliorating common law principles to apply.'" (quoting Restatement (Second) of Torts § 925 cmt. k (1979) (editing marks omitted)); Le Pore v. National Tool & Mfg. Co., 115 N.J. 226, 227 (1989) (noting that "[o]ur recognition of a common-law cause of action for covered employees merely closes a narrow gap between the protection granted by the statute and our earlier decision in Pierce v. Ortho Pharmaceutical Corp., 84 N.J. 58 (1980), which dealt with at-will employees"); Berkeley Twp. Zoning Bd. of Adjustment v. Rowe, 320 N.J. Super. 164, 171 (Law Div. 1999) (explaining, in land use context, that "[t]he common law principles described above fill in the gap"); cf. State v. Tate, 102 N.J. 64, 73 (1986) (explaining that, when considering a comprehensive statutory scheme, "[t]his Court's common-law gap-filling authority with regard to the criminal law should be exercised only when there is in fact a gap to be filled. There is none.").

In so doing, the majority also ignores that which even the homeowners in this case readily acknowledge: there is no gap to be filled here, as the homeowners still retain their already pled claims for breach of contract, negligence, fraud, negligent infliction of emotional distress, conversion, breach of the implied covenant of good faith and fair dealing, unjust enrichment, and unlawful possession of goods. Success on any one of these claims will provide the homeowners complete relief, although admittedly not the windfall of the additional penalties of treble damages and attorneys' fees recoverable under the CFA. N.J.S.A. 56:8-19.

The vice evident in the majority's conclusions arises from its reasoning. In order to reach the result it seeks, the majority must torture both the facts and the law to conclude that the work done by this contractor -- who was contracted directly by the owner to perform the installation of custom kitchen cabinets, interior doors, a front door, and certain moldings in a brand-new, never-occupied, never-completed, and never-permitted home -- somehow consists of a "home improvement" subject to the CFA's reach. It does so even though the regulatory definition of a "home improvement" specifically provides that it "does not include the construction of a new residence[,]" N.J.A.C. 13:45A-16.1A (emphasis supplied), and despite the fact that such interpretation flies in the face of a clear statutory injunction:

In the construction of the laws and statutes of this state, both civil and criminal, words and phrases shall be read and construed with their context, and shall, unless inconsistent with the manifest intent of the legislature or unless another or different meaning is expressly indicated, be given their generally accepted meaning, according to the approved usage of the language. [N.J.S.A. 1:1-1 (emphasis supplied).]

This Court consistently has hewed to that legislative mandate. See Bosland v. Warnock Dodge, Inc., ___ N.J. ___ (2009) (citing statute); Livsey v. Mercury Ins. Group, ___ N.J. ___ (2009) (same); In re Liquidation of Integrity Ins. Co., 193 N.J. 86, 94 (2007) (same); Soto v. Scaringelli, 189 N.J. 558, 570-71 (2007) (same); Mun. Council of the City of Newark v. James, 183 N.J. 361, 371 (2005) (same); DelaCruz v. Borough of Hillsdale, 183 N.J. 149, 163 (2005) (same); Cherry Hill Manor Assocs. v. Faugno, 182 N.J. 64, 75 (2004) (same); Carpenter Tech. Corp. v. Admiral Ins. Co., 172 N.J. 504, 513 (2002) (same); Munoz v. N.J. Auto. Full Ins. Underwriting Ass'n, 145 N.J. 377, 388 (1996) (same); Bd. of Educ. Of the City of Asbury Park v. Hoek, 38 N.J. 213, 231 (1962) (same); Prudential Ins. Co. v. Howell, 29 N.J. 116, 124 (1959) (same); Scatuorchio v. Jersey City Incinerator Auth., 14 N.J. 72, 87 (1953); General Pub. Loan Corp. v. Director, Division of Taxation, 13 N.J. 393, 400 (1953) (same); Fischer v. Fischer, 13 N.J. 162, 170 (1953) (same); Grogan v. De Sapio, 11 N.J. 308, 323 (1953); Leeds v. Harrison, 9 N.J. 202, 213 (1952). Yet, today, that is of cold comfort indeed.

Other than engaging in a purely metaphysical discourse, it is well nigh impossible to imagine any plain meaning of the term "home improvement" that includes original construction. If the home is still under construction, where, pray tell, is the home that is to be improved? More concretely, how is one to improve a home that is not yet there? Applied in the context of this case, the core notion advanced by the majority is internally and fatally contradictory.

In the end, the distinction the majority draws defies plain logic. According to the majority's construct, if a home owner contracts with a general contractor to build a home, that general contractor, and his subcontractors, are immune from the CFA's reach because the Legislature separately adopted the HOW Act, and the homeowner must look there for his remedies. However, if the homeowner chooses to forego paying premiums under the HOW Act and either acts as his own general contractor or instead hires a construction manager*fn3 who contracts, on behalf of the owner, with each of the discrete trades, each of those trade contractors -- although working on what is unquestionably the initial construction of a brand-new home -- will be deemed to have engaged in "home improvements" and, hence, will be liable under the CFA. Remarkably, the end result in either instance is the same -- the construction of a new home -- yet the exposure to liability varies wildly. In a different but similar setting, we have held that a party proposing to construct a residence cannot better its legal position merely by electing to act as its own general contractor instead of retaining a general contractor; we made clear that by "having chosen to purchase the design and construction services individually . . . [the homeowners] properly are bound by their choices: by electing to assume responsibility for their construction project [they] cannot be heard to complain as to the consequences of their choice." Daidone v. Buterick Bulkheading, 191 N.J. 557, 569 (2007). The same result must obtain here.

An illogically pliable legal methodology -- one that somehow metamorphoses what indisputably is the construction of new home into a home improvement -- is unsustainable and does nothing but violence to our ordered system of laws. That, however, is the practical result of the majority's reasoning. For those reasons, I respectfully dissent.

Chief Justice Rabner PRESIDING

DISSENTING OPINION BY Justice Rivera-Soto


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