April 16, 2009
DESANTIS RENOVATIONS, INC. D/B/A REAL CONSTRUCTION, PLAINTIFF-RESPONDENT,
JANICE M. FRETZ AND GERALD W. FRETZ, JR., DEFENDANTS-APPELLANTS.
On appeal from the Superior Court of New Jersey, Law Division, Special Civil Part, Camden County, Docket No. DC-018994-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 4, 2009
Before Judges Rodríguez and Lyons.
DeSantis Renovations, Inc. (DeSantis), a building contractor, sued Gerald Fretz and Janice Fretz (defendants) in the Special Civil Part for breach of contract. This obligation stemmed from repairs undertaken on defendants' property, as a result of a burst water pipe. Defendants answered pro se. Subsequently, they retained counsel.
On the day of trial, defendants sought to file a counterclaim alleging a cause of action pursuant to the New Jersey Consumer Fraud Act. N.J.S.A. 56:8-1 to -20 (CFA). Judge Anthony Pugliese would not permit an amendment to raise an affirmative CFA claim, but permitted defendants to raise the CFA as a defense.
At trial, Rusty DeSantis testified for DeSantis. Robert Schooler, the Construction Official for Camden City, Mark J. Willis, who sold the property to defendants, and Gerald Fretz, testified for the defendants.
Defendants argued at trial that the work performed by DeSantis was shoddy and did not conform to the contract. Moreover, the major portion of their defense was that DeSantis violated the CFA by not obtaining a building permit commencing with the work. The judge held that obtaining a permit was actually the responsibility of defendants. The judge awarded $4,184.73 to DeSantis on its breach of contract claim. This was a $1,100 reduction from the amount DeSantis claimed.
Defendants appeal, contending that the judge erred as a matter of law in rejecting their defense pursuant to the CFA.
Specifically, DeSantis "violated numerous regulations and therefore the trial court was required to dismiss the complaint and award judgment to the defendants." We reject this contention.
We note that defendants argue that, in addition to the permit violations, there were other violations of the CFA. However, these violations were not raised at trial. Therefore, because these disputes were not properly raised at trial, they cannot be argued for first time on appeal. We will not consider evidence presented for the first time on appeal. Middle Dep't Insp. Agency v. Home Ins. Co., 154 N.J. Super. 49, 56 (App. Div. 1977), certif. denied, 76 N.J. 234 (1978). Nor we will consider these new issues where they are not jurisdictional in nature and do not implicate a matter of significant public interest. Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973); R. 2:6-2.
Moreover, as to the issues presented to the trial court, our scope of review on appeal is clearly established. If there is sufficient evidence in the record as a whole to sustain the trial judge's findings, we are bound by those findings. Bonnco Petrol, Inc. v. Epstein, 115 N.J. 599, 607 (1989) (citing Rova Farms Resort v. Investors Ins. Co., 65 N.J. 474, 484 (1974)). "This is particularly so when, . . . the significant evidence is largely testimonial rather than documentary, and the trial court has had the opportunity to observe the witnesses and determine their credibility." Ibid.
Here, the judge's findings are adequately supported by credible evidence in the record. Therefore, defendants have not satisfied their burden of showing that Judge Pugliese's finding "is clearly a mistaken one and so plainly unwarranted that the interests of justice demand intervention and correction." State v. Johnson, 42 N.J. 162 (1964).
Accordingly, we affirm the judgment under review essentially for the reasons stated by Judge Pugliese in his oral opinion of June 30, 2008.
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