On appeal from Superior Court of New Jersey, Law Division, Camden County, No. L-6407-03.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 3, 2009
Before Judges Wefing, Yannotti, and LeWinn.
Defendant Bonetti Enterprises, Inc., d/b/a Swim-Mor Pools and Spas ("Swim-Mor"), appeals from so much of the judgment entered by the trial court as found it liable to plaintiffs under the Consumer Fraud Act, N.J.S.A. 56:8-1 to -184. It does not contest that portion of the judgment which found it liable for negligence. After reviewing the record in light of the contentions advanced on appeal, we agree with Swim-Mor that the trial court erred when the court imposed liability against it under the consumer fraud statute.
Plaintiffs Mitchell and Jodi Ziets were constructing a new home in Cherry Hill and wished to have an in-ground pool installed at the same time. The Zeitses wanted their pool to be concrete and their search for a contractor who installed concrete pools led them to Swim-Mor. Mr. Zeits visited Swim-Mor and spoke with Jerry Brunetti. Mr. Zeits outlined what he wanted, including a walkway leading from the door of the finished basement to the pool. Brunetti explained how Swim-Mor worked and what it could do for the Zeitses. Mr. Zeits decided to select Swim-Mor to construct the pool.
Throughout the course of the proceedings below, Mr. Zeits was consistent in what led him to select Swim-Mor as the pool contractor--the fact that it installed concrete pools and that it performed all the work itself, that is, it did not subcontract out the job. He was asked on direct examination why he decided to select Swim-Mor. He responded with the following answer.
Well there [were] several reasons. I mean one was that we liked, we liked the shape of the pool. We liked the -- I mean everything about the pool it seemed to make sense. We liked what we heard in terms of the process.
You know they advertise in the promotional materials that they do everything themselves, they don't use subcontractors.
Kind of compared it to some of the other pool companies. So we liked all that 'cause obviously we just wanted to deal with one entity. That's how we built our house.
We dealt with a general contractor. We weren't dealing with all the individual subs so that was important to us. So all those things together is kind of what drove that decision.
In October 2000, the Zeitses and Swim-Mor signed a contract for Swim-Mor to construct a pool twenty-two feet wide and forty-five feet long in the rear of the Zeitses property for a price of $32,000. Item #5 of the construction specifications provided:
5. Excavation -- SWIM-MOR to layout and set elevation for pool on day of excavation for Owner[']s approval. SWIM-MOR will excavate, handshape, and remove soil on day of excavation.
When the time approached to begin construction of the pool, defendant Clark Bonetti, the principal of Swim-Mor, met with the Zeitses at the site to ...