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Mitigation Services, Inc. v. McErlean


May 18, 2009


On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Docket No. L-2414-06.

Per curiam.


Submitted November 18, 2008

Before Judges Gilroy and Chambers.

Plaintiff is the owner of a Servpro cleaning and restoration franchise. Defendants Joseph and Margaret McErlean are owners of a single-family residence in Moorestown. Plaintiff appeals from: 1) the October 23, 2006 order granting partial summary judgment dismissing its complaint; 2) the April 27, 2007 order granting partial summary judgment dismissing its amended complaint; 3) the August 24, 2007 order denying its motion for reconsideration; and 4) that part of the February 1, 2008 order awarding defendants $39,535 in attorneys' fees and $1,713 in costs of litigation. For reasons that follow, we affirm.


Plaintiff is "an international franchiser which specializes in mitigating damage after a fire or flood has occurred." Specifically, its trademarked motto is "clean up and restoration," and it is "often asked to work on an emergency basis to remove water and damaged materials as quickly as possible to alleviate further damage."

On October 10, 2005, the sump pump in defendants' home failed, causing their 1,700 square-foot finished basement to flood. Defendants telephoned plaintiff inquiring about its cleaning services. The discussion that ensued among defendants and plaintiff's representative, Elisabeth Adams, pertaining to plaintiff's pricing structure, is in dispute.

Adams contends she explained to defendants that: "there are several ways customers are charged depending on the type of tasks to be performed and the equipment needed to perform those tasks"; "some work, like extractions and chemical sprays, is charged by the square foot, while other work is charged by the amount of time spent"; the "use of equipment is charged by the day for each piece used"; "simple manual labor, like removing furniture before cleaning a stained carpet, would cost the then[-]going rate of $33.50 per hour during normal business hours"; and that "costs will be [a]ffected by the time of day the work is done, in that work done on evenings or [weekends] is charged at a higher rate." In addition, Adams asserts that, because defendants were unsure whether their homeowner's insurance policy would cover the services, they said they "would look into that," and at defendants' request, plaintiff faxed them the Authorization to Perform Services and Direction of Payment (the agreement).

Conversely, defendants contend "that they were told the price for [p]laintiff's services would be $33.50 per hour, nothing more." Based on that representation, defendants entered into the agreement for plaintiff "to perform any and all necessary cleaning and/or restoration services" at their residence.

The agreement was silent as to the amount the services would cost defendants, either in the total amount charged or on a time-and-material basis. However, the agreement authorized First Trenton Insurance Company, defendants' homeowners' insurance carrier, to pay plaintiff for any services performed at defendants' residence. As to defendants' obligation to pay for services rendered, the agreement provided: "It is fully understood that [defendants] . . . are personally responsible for any and all . . . costs not covered by insurance. Any and all charges for services not reimbursed by the [i]nsurance [c]ompany are the responsibility of the [defendants] and are to be paid upon the completion of work."

Beginning on the evening of October 11, 2005, and for several days thereafter, plaintiff performed the requested services at defendants' residence. Specifically, plaintiff properly cleaned defendants' exercise room, family room, piano room, and laundry room. After its completion of services, plaintiff submitted an invoice to First Trenton, but after "several weeks," plaintiff was informed that defendants "had never turned in a claim for this loss and thus [it] needed to bill [defendants] directly." Accordingly, on December 5, 2005, plaintiff forwarded defendants an invoice in the amount of $8,242.72. Although the invoice indicated the nature of the services rendered, it did not provide an itemized charge for each service. On January 3, 2006, based on defendants' request for a more detailed invoice, plaintiff faxed defendants an itemized bill that included a charge for each service performed. The invoice evidences that plaintiff charged defendants in excess of $33.50 per hour.

Defendants refused to pay the amount requested. On May 8, 2006, plaintiff filed a complaint in the Special Civil Part, alleging that defendants breached the agreement by failing to pay for the services performed. Defendants counterclaimed, asserting that plaintiff had violated the Consumer Fraud Act (CFA), N.J.S.A. 56:8-1 to -20, by making affirmative misrepresentations and by charging in excess of the agreed-upon price of $33.50 per hour.

On June 27, 2006, defendants moved to transfer the action to the Law Division, contending that if successful on their counterclaim, their recovery would exceed the monetary jurisdiction of the Special Civil Part. After the matter was transferred to the Law Division, defendants moved for partial summary judgment, seeking dismissal of plaintiff's complaint, contending that the agreement was unenforceable because plaintiff, as a home improvement contractor, failed to disclose the amount charged for its services in the agreement. Plaintiff countered that its cleaning services did not qualify as a home improvement contract under the Home Improvement Practices (HIP) regulations, N.J.A.C. 13:45A-16.1 and -16.2.

Prior to the return date of the motion, plaintiff filed a motion seeking leave to file an amended complaint to assert claims of unjust enrichment, and negligent and intentional misrepresentation. On October 23, 2006, supported by an oral opinion of October 6, 2006, the trial court entered an order granting defendants' motion for partial summary judgment ("summary judgment I"). The court reasoned that "[t]he services provided by the [p]laintiff to the [d]efendants constitute[d] a home improvement as that term is defined in N.J.A.C. 13:45A-16.1A"; and that the agreement "is void for [p]laintiff's failure to comply with the price disclosure requirements of N.J.A.C. [13:45A-16.2(a)12]." The court also granted plaintiff leave to file its amended complaint.

On March 23, 2007, defendants filed a second motion for partial summary judgment, seeking dismissal of plaintiff's amended complaint, asserting that if a party is found to have violated the CFA, that party is prohibited from recovering damages for services rendered, regardless of the cause of action asserted. On April 27, 2007, the court entered an order granting the motion ("summary judgment II").

Plaintiff moved for reconsideration of the order of April 27, 2007 that dismissed its amended complaint. The court denied the motion on August 24, 2007. In the interim, on June 25, 2007, plaintiff filed a second motion for reconsideration, that time of the October 23, 2006 order dismissing its original complaint. The court denied the second motion on September 28, 2007.

On July 27, 2007, defendants moved to amend their counterclaim, asserting that plaintiff violated the HIP regulations, specifically, N.J.A.C. 13:45A-16.2(a)12, and the Truth-in-Consumer Contract, Warranty and Notice Act (TCCNWA), N.J.S.A. 56:12-14 to -18. The court granted defendants' motion on August 24, 2007. The amended counterclaim alleged: violation of N.J.A.C. 13:45A-16.2(a)12 by failing to include pricing terms in the agreement (Count One); affirmative misrepresentations (Count Two); breach of contract by charging in excess of an agreed-upon price (Count Three); violation of the TCCNWA by failing to include pricing terms in the agreement (Count Four); and violation of the CFA based on plaintiff's failure to comply with the TCCNWA (Count Five).

On September 7, 2007, plaintiff filed a motion for leave to file a second amended complaint; on September 20, 2007, defendants filed a motion for summary judgment on their amended counterclaim. On October 19, 2007, as the court had previously determined that plaintiff "violated the price disclosure requirements of . . . N.J.A.C. 13:45A-16.[2(a)12]", and thus the CFA, it denied plaintiff's motion and granted defendants' partial summary judgment on Counts One and Four of their counterclaim. The court set a proof hearing on the counterclaim for December 7, 2007.

At the proof hearing, the trial court determined: to the extent that the law was violated, . . . [plaintiff] has no right of action against [defendants]. [Plaintiff] violated the statute. [Plaintiff is] barred by the statute from seeking any remedy for quantum meruit or any other cognizable action to be compensated for [its] actions. [Defendants] are asking this [c]court to use that same statute to provide them a means to pay their attorneys and to have [plaintiff], who already provided [defendants] a great benefit, to now pay their legal fee because of the violation of this law.

Before the [c]court gets to that juncture, it must first determine whether or not there was any ascertainable loss at [defendants']. The [c]court has no hesitation in declaring that there was no ascertainable loss. That -- to the contrary . . . the defendant[s] received an enormous benefit[.]

Because issues pertaining to defendants' damage claim remained unresolved at the hearing, the court reserved decision pending receipt of additional documents from the parties.

Before the parties could again be heard on the issue of damages, the matter was transferred to a second judge, the first judge having been transferred to a different division of the trial court. At the continued proof hearing of February 1, 2008, plaintiff acknowledged that "defendants are entitled to attorneys' fees," but argued that the fees should be limited to "a dollar" because defendants' conduct exacerbated the litigation. The court disagreed, determining that defendants were entitled to a $100 penalty from plaintiff.*fn1 In addition, the judge accepted defendants' affidavit as to the amount of attorneys' fees incurred by them, noting that plaintiff was the party filing the numerous motions and "[t]hose motions had to be fought or resisted in court, and [defendants] . . . came out the winner in all of the motions." Accordingly, the court awarded defendants a total of $41,348: $39,535 in attorney's fees, $1,713 in costs, and the $100 penalty pursuant to N.J.S.A. 56:12-17.

On appeal, plaintiff argues that the trial court erred in determining that it was a home improvement contractor subject to the CFA.


A trial court will grant summary judgment to the moving party if "there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law." R. 4:46-2(c); see also Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 523 (1995). On appeal, "the propriety of the trial court's order is a legal, not a factual, question." Pressler, Current N.J. Court Rules, comment 3.2.1 on R. 2:10-2 (2009). We employ the same standard when reviewing summary judgment orders. Block 268, LLC v. City of Hoboken Rent Leveling & Stabilization Bd., 401 N.J. Super. 563, 567 (App. Div. 2008).

The CFA is "one of the strongest consumer protection laws in the nation." Cox v. Sears Roebuck & Co., 138 N.J. 2, 15 (1994). The primary purpose of the CFA is "to protect the consumer against imposition and loss as a result of fraud and fraudulent practice by persons engaged in the sale of goods and services." Scibek v. Longette, 339 N.J. Super. 72, 77 (App. Div. 2001) (internal quotations and citations omitted). "Courts have emphasized that like most remedial legislation, the [CFA] should be construed liberally in favor of consumers." Cox, supra, 138 N.J. at 15. Accordingly, courts "construe the [CFA] broadly, not in a crabbed fashion." New Mea Constr. Corp. v. Harper, 203 N.J. Super. 486, 502 (App. Div. 1985).

"Unlawful practices [under the CFA] fall into three general categories: affirmative acts, knowing omissions, and regulation violations." Cox, supra, 138 N.J. at 17. "When the alleged consumer-fraud violation consists of an affirmative act, intent is not an essential element[,] and the plaintiff need not prove that the defendant intended to commit an unlawful act." Id. at 17-18. "However, when the alleged consumer fraud consists of an omission, the plaintiff must show that the defendant acted with knowledge, and intent is an essential element of the fraud." Id. at 18. When the unlawful act consists of a violation of a regulation promulgated under the CFA, "intent is not an element of the unlawful practice, and the regulations impose strict liability for such violations." Ibid.

A private party may bring a cause of action under the CFA. N.J.S.A. 56:8-19. To prove a private cause of action, a "plaintiff must [establish] each of three elements: (1) unlawful conduct by the defendant[]; (2) an ascertainable loss on the part of the plaintiff; and (3) a causal relationship between the defendant['s] unlawful conduct and the plaintiff's ascertainable loss." N.J. Citizen Action v. Schering-Plough Corp., 367 N.J. Super. 8, 12-13 (App. Div.), certif. denied, 178 N.J. 249 (2003).

On proving an ascertainable loss caused by a defendant's unlawful practices, a plaintiff is entitled to treble damages and to an "award [of] reasonable attorneys' fees, filing fees and reasonable costs of suit." N.J.S.A. 56:8-19. Although for the plaintiff to recover treble damages under the statute, he or she must establish a causal relationship between the defendant's acts or omissions and the damages, not so for attorneys' fees or costs of suit. The provision for treble damages and attorneys' fees under the CFA are independent of each other. Attorneys' fees and costs are mandated where the "plaintiff can prove that the defendant committed an unlawful practice, even if the victim cannot show any ascertainable loss and thus cannot recover treble damages." Cox, supra, 138 N.J. at 24; Scibek, supra, 339 N.J. Super. at 86.

Pursuant to N.J.S.A. 56:8-4, the Attorney General may fashion rules and regulations "[t]o accomplish the objectives and to carry out the duties prescribed" by the CFA. See Scibek, supra, 339 N.J. Super. at 78. Accordingly, the HIP regulations, N.J.A.C. 13:45A-16.1 and -16.2, were promulgated under the CFA. N.J.A.C. 13:45A-16.1(a) provides that "[t]he purpose of the rules in this subchapter is to implement the provisions of the [CFA] . . . by providing procedures for the regulation and content of home improvement contracts and establishing standards to facilitate enforcement of the requirements of the [CFA]." Subsection (b) provides that the HIP regulations apply to all sellers as defined in N.J.A.C. 13:45A-16.1A and to all home improvement contracts as defined in the Home Improvement Contractor Registration regulations, N.J.A.C. 13:45A-17.1 to -17.14.*fn2

N.J.A.C. 13:45A-16.1A defines "a seller," and N.J.A.C. 13:45A-17.2 defines a "home improvement contractor" the same: as "a person engaged in the business of making or selling home improvements." Furthermore, both subsections "used sweeping language in [their] definition[s] of 'home improvements,'" Czar, supra, (slip op. at 11), when they defined the term as: the remodeling, altering, painting, repairing, renovating, restoring, moving, demolishing, or modernizing of residential or noncommercial property or the making of additions thereto, and includes, but is not limited to, the construction, installation, replacement, improvement, or repair of . . . basements and basement waterproofing, . . . wall-to-wall carpeting or attached or inlaid floor coverings, and other changes, repairs, or improvements made in or on, attached to or forming a part of the residential or noncommercial property[.] The term . . . includes any of the above activities performed under emergency conditions. [N.J.A.C. 13:45A-16.1A; N.J.A.C. 13:45A-17.2 (emphasis added).]

In addition, N.J.A.C. 13:45A-16.2(a) contains a list of unlawful acts and practices by a seller. Subsection 16.2(a)12, entitled "[h]ome improvement contract requirements" provides that:

[a]ll home improvement contracts for a purchase price in excess of $500.00 . . . shall be in writing[,] . . . signed by all parties thereto, and shall clearly and accurately set forth in legible form and in understandable language all terms and conditions of the contract, including, but not limited to the following:

iii. The total price or other consideration to be paid by the buyer[.] If the contract is one for time and materials, the hourly rate for labor and all other terms and conditions of the contract affecting price shall clearly be stated[.]

Plaintiff first argues that, because a statute should be given its plain meaning, Town of Morristown v. Woman's Club, 124 N.J. 605, 610 (1991), and because N.J.A.C. 13:45A-16.1A does not include the word "cleaning", the trial court erred in determining that the agreement constituted a "home improvement" contract under the CFA. Plaintiff contends that the word "improvement" in the regulation "implies some type of alteration to the premises," not the mere cleaning of the premises. We are satisfied that the services performed by plaintiff fall under the umbrella of the HIP regulations.

Three facts are undisputed: plaintiff failed to include pricing terms in the agreement; the agreement exceeded the $500 threshold of N.J.A.C. 13:45A-16.2; and the agreement authorized plaintiff "to perform any and all necessary cleaning and/or restoration services" on defendants' property. In fact, plaintiff's trademarked motto is "clean up and restoration." "Restoration" is defined as "a putting or bringing back into a former, normal, or unimpaired state or condition". Webster's New World College Dictionary 1144 (3d ed. 1996). Similarly, to "clean" means to "free from dirt, contamination, or impurities." Id. at 260.

Although plaintiff contends that it merely cleaned defendants' basement, rather than having restored it, the record reflects differently. Initially, plaintiff's invoice indicated that it provided the following services: furniture manipulation; carpet extraction, lift and removal; pad extraction and removal; floor extraction; trim removal; and dehumidification. Moreover, plaintiff's original complaint characterizes the services it performed as "water damage remediation", not mere cleaning.

Therefore, inasmuch as plaintiff argues that "improvement" in N.J.A.C. 13:45A-16.1A presumes an "alteration to the premises[,]" it is correct; yet, here, plaintiff altered defendants' premises, bringing it back into an "unimpaired state or condition" when it extracted and removed wall-to-wall carpeting and sections of the basement floor and trim, Webster's New World College Dictionary 1144. Thus, plaintiff did not merely provide "cleaning services."

In this regard, plaintiff's reliance on Sands v. Bd. of Exam'rs of Elec. Contractors, 90 N.J. Super. 82 (App. Div. 1966), aff'd, 54 N.J. 484 (1969), is misplaced. Plaintiff asserts that, as in Sands, "assigning the words of the [HIP] regulations their ordinary and well understood meaning requires the inescapable conclusion that the [agreement] was not a home improvement contract." However, Sands considered "whether, by personally performing the electrical work incident to the construction of homes intended for resale, on lots owned by him, [a builder] engaged in the business of electrical contracting" without a license in violation of N.J.S.A. 45:5A-2. Id. at 85. In declining to consider the builder as "an electrical contractor for hire," the only type of contractor the statute concerned, we found that "[i]t would require an extraordinary exercise in logic, and considerable disregard of the ordinary meaning of language, to equate the eventual entry into a contract for the sale of a house with engaging in the business of electrical contracting for hire." Id. at 86. We concluded that "[t]o hold otherwise would require [the court] to accord a strained construction to language deliberately selected by the Legislature as evidential of its intention." Ibid.

Conversely, determining the agreement as one for "home improvement" requires no such "strained construction," ibid., as N.J.A.C. 13:45A-16.1A already includes "restoring" in the definition of "home improvement." Moreover, even if the term "restoring" was not contained in the regulation, the same definition includes "altering" of "wall-to-wall carpeting or attached or inlaid floor coverings." N.J.S.A. 13:45A-16.1A.

As previously discussed, plaintiff's own invoice characterizes several of the services performed as "extraction," "lift[ing]," and "remov[ing]" of the carpet and pads, flooring and trim in defendants' basement. The removal of such items certainly qualifies as an alteration or a "change." Webster's New World College Dictionary 40. Because the agreement falls within the ambit of a "home improvement" as defined in N.J.A.C. 13:45A-16.1A, no material issue of fact existed, and the trial court properly granted partial summary to defendants. Brill, supra, 142 N.J. at 523.

Alternatively, plaintiff argues that the definition of "home improvement" is ambiguous, and "the legislative history proves that these [regulations] were not intended to apply to a situation like the one before the court." Specifically, plaintiff cites to a 2004 legislative commentary regarding the registration of home improvement contractors which provided that "power washing," "steam cleaning of carpets, [and] washing of windows" would not be considered "home improvements" under the Home Improvement Contractor Registration regulations, "since the activity is not an improvement but is a cleaning activity." 36 N.J.R. 4984(a). We reject this argument.

The record establishes that the services plaintiff performed were more than just power washing, steam cleaning of carpets, and washing windows. Furthermore, the Division of Consumer Affairs (Division) has addressed the issue of emergency services under the HIP regulations; in 1995, the Division readopted N.J.A.C. 13:45A as the regulations were scheduled to expire on November 9, 1995. 27 N.J.R. 3566(a). The proposal initially noted that "[t]hese rules enforce the [CFA], . . . and enable the Division to have in place procedures which serve and protect the public's best interests." Ibid. The Division then provided the proposed amendment:

The definition of 'home improvement' [under subchapter 16] has been amended to specifically identify[,] as within the scope of this subchapter[,] home improvements performed under emergency conditions. The Division believes this clarification is important because it serves to put the industry on notice that repairs performed under emergency conditions fall within the scope of the [CFA]. It may also deter unscrupulous companies [that] may seek to take advantage of disasters or extreme weather conditions to charge unconscionable prices for repairs. [Id. at § 3567.]

Accordingly, N.J.S.A. 13:45A-16.1A, as adopted, includes within the definition of home improvement services "performed under emergency conditions."

Plaintiff also argues that finding the agreement a home improvement contract "would be contrary to public policy." In particular, plaintiff contends that N.J.S.A. 56:8-151b would require it "to allow three business days for a customer to choose to rescind [a] contract before beginning work." Plaintiff asserts that, because water remediation should occur "as quickly as possible to avoid the growth of mold," it "would be contrary to public policy to subject contracts to clean up water to a three business day rescission period[.]"

We reject this argument because the statute does not provide an exemption from the three-day right of rescission for home improvement services performed under emergency conditions. N.J.S.A. 56:8-151b. In 1995, the Division adopted the current definition of "[h]ome improvement" providing that the term "includes any of the [defined] activities performed under emergency conditions" in 1995. The Legislature adopted the Contractor's Registration Act containing the three-day right of rescission in N.J.S.A. 56:8-151b in 2004, effective December 31, 2005. L. 2004, c. 16; amended by L. 2004 C. 155. Because the "Legislature is presumed to know the law," David v. Gov't Employees Ins. Co., 360 N.J. Super. 127, 143 (App. Div.), certif. denied, 178 N.J. 251 (2003), and it did not exempt home improvement contracts performed under emergency conditions from the three-day right of rescission, it is reasonable to conclude that the Legislature intended to subject all home improvement contracts to the right of rescission.


Plaintiff argues next that, because "defendants 'received an enormous benefit' and used the [CFA] as a 'weapon,' not a shield," it should have been permitted to recover for its services under the theories of unjust enrichment and misrepresentation. Not so.

In Huffmaster v. Robinson, 221 N.J. Super. 315, 322 (Law Div. 1987), cited with approval by the Supreme Court in Cox, supra, 138 N.J. at 19, the court held that a party who violates the CFA may not recover any damages for services performed, regardless of its good faith in the transaction. Although the court found that an automobile repairman's failure to provide a written price estimate or obtain a signed authorization was "not deliberate" and that the repairman "acted in good faith at all times[,]" id. at 318, it concluded that the CFA, "while silent as to its effect upon the contract, must be read as depriving a technically violating repairman of any enforcement capacity[,]" id. at 322. Otherwise, it noted, "the [A]ct would make no sense." Ibid.

Following Huffmaster, we decided D'Egidio Landscaping, Inc. v. Apicella, 337 N.J. Super. 252 (App. Div. 2001). In D'Egidio, the plaintiff, a landscaper, prepared a contract for services and presented it to the defendant for his signature. Id. at 256. The defendant refused to sign the contract, contending he was insulted at the proposition of a formal contract since "he had known [the landscaper] from the time that he [] was eight years old and that they were related through marriage." Id. at 255-56. The plaintiff performed the services without a contract, but after a dispute arose between the parties, the defendant refused to pay the balance owed, and the plaintiff sued. Id. at 256. The defendant counterclaimed for damages. Ibid. Although the plaintiff's failure to obtain a contract violated the CFA, we invoked the doctrine of equitable estoppel to prevent the defendant from recovering damages under the CFA, concluding that "one who induces the alleged wrongdoing should not benefit as a result of it." Id. at 257-58.

Thereafter, we decided Scibek, supra, 339 N.J. Super. at 72. As in Huffmaster, an automobile repair shop owner failed to provide the defendant customer with a written estimate or obtain written authorization before completing automobile restoration repairs on defendant's two automobiles, contrary to N.J.A.C. 13:21-21.10 and -21.11. Id. at 76. After the plaintiff automobile shop owner sued for the value of his services, the defendant counterclaimed, asserting violations of the CFA. Id. at 77. In finding for the plaintiff, the trial court noted that the "defendant waived the protection of the [CFA,]" as he had previously owned an automobile repair shop, and therefore, was aware of the CFA requirements. Ibid.

On appeal, we noted in passing that "[i]t is at least arguable that the somewhat mechanical and rigid approach adopted in Huffmaster should not be followed where the consumer has obtained the benefit of his bargain and attempts to use the Act as a sword rather than a shield." Id. at 82. However, in reversing, we did not address that issue, id. at 82; rather, we determined that, "[w]hile perhaps defendant's conduct was less than exemplary, [the court] perceive[s] no sound basis to deny him the benefit of the Act's protection." Id. at 85. We explained that "[t]he overriding fact is that plaintiff's violation of the Act created the climate for the dispute that ultimately developed. In other words, plaintiff's failure to provide a written estimate and obtain a written authorization placed the cost of his services in doubt." Id. at 82. So too here.

Plaintiff contends that the trial court's grant of partial summary judgment II should be reversed because it found that defendants "received a tremendous benefit" and "use[d] the law as a weapon rather than a shield." However, while the trial court did make that statement in discussing the issues, it held that, based on the law as previously described, it was "constrained" to grant defendants' motion for partial summary judgment.

Defendants telephoned plaintiff to inquire about its pricing for mitigation services, and plaintiff responded with a contract that violated the CFA by failing to include pricing for its services. Defendants signed the contract; the work was performed; and this dispute ensued. At no time did defendants decline to include a price in the contract or refuse to sign an agreement acknowledging plaintiff's prices.

Moreover, the "shield" versus "sword" concept referenced in Scibek was not intended to apply to this situation. The Scibek court provided the following clarification: "[w]here, for example, there is no dispute as to the work authorized to be done and the agreed upon price, it seems highly unfair to deny the repairman any affirmative right to recover merely because of a technical, inadvertent violation of the Act's prescriptions." Ibid. (Emphasis added). In the present action, the lack of agreed-upon price is the essence of the dispute.

Plaintiff contends that it is unfair for defendants to have received the benefit of a dry basement without having to pay for it. That may or may not be so. However, it is only when a consumer's conduct is "so egregious" that he or she can be estopped "from claiming the Act's protection." Id. at 83. "Stated simply, estoppel . . . involves conduct which precludes a person from alleging a default in consequence of his own act." Id. at 84 (internal quotations and citation omitted).

Here, as noted by the trial court, plaintiff did not present evidence that defendants' conduct was so egregious as to invoke the doctrine of equitable estoppel. As such, the trial court properly granted defendants' summary judgment II motion, precluding plaintiff from recovering under the voided agreement. Brill, supra, 142 N.J. at 523.

Because plaintiff's challenge to the award of attorneys' fees and costs under the February 1, 2008 order was contingent upon our reversing the prior grants of partial summary judgments I and II, we need not address the substance of plaintiff's argument on the issue of attorneys' fees and costs.


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