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Hayden v. D'Amico

September 17, 2009

CHRISTOPHER HAYDEN AND ELIZABETH HAYDEN, PLAINTIFFS-APPELLANTS,
v.
ANTHONY E. D'AMICO, INDIVIDUALLY, ANTHONY E. D'AMICO, T/A D'AMICO CONSTRUCTION, INDIVIDUALLY, DEFENDANTS-RESPONDENTS.



On appeal from Superior Court of New Jersey, Law Division, Civil Part, Morris County, Docket No. L-2327-06.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued September 2, 2009

Before Judges Payne and Waugh.

Plaintiffs Christopher and Elizabeth Hayden appeal from the trial court's affirmance of an arbitration award entered in their favor against defendant D'Amico Construction, L.L.C. (D.C.). On appeal, plaintiffs argue that the trial court erred by not amending the award to entitle them to treble damages as well as making Anthony D'Amico personally liable for the award. We affirm.

I.

We glean the following facts from the record.

In April 2004, plaintiffs were seeking a contractor to renovate their home. They had worked with an architect and had blueprints available for prospective contractors to look at in order to prepare their bids. It is unclear from the record, but it appears that plaintiffs were referred to D'Amico by their architect, Michael V. Testa.

After only speaking on the phone, plaintiffs forwarded D'Amico a copy of the blueprints for the proposed renovations. D'Amico inspected plaintiffs' home, when they were not present, and prepared a contract for their review on April 26, 2004. The contract listed the price of the proposed renovations as $78,255, and contained a payment schedule requiring $15,000 in total before the start of the work and then additional payments tied to different milestones in the construction process. The contract was signed by D'Amico and also by Elizabeth Hayden. The name as it appears on the letter head of the contract is "D'Amico Construction." Nowhere in the contract is there a reference to D'Amico Construction operating as a limited liability corporation or other type of business entity.

By August 4, 2004, plaintiffs had written two checks to "D'Amico Construction" totaling $15,000. The checks were endorsed by "Anthony E. D'Amico" as well as "D'Amico Construction." Plaintiffs concede that, in July 2004, they began receiving invoices from "D'Amico Construction, LLC."

Work began on the plaintiffs' home in the fall of 2004 and progressed such that plaintiffs paid an additional $43,450. In early December 2004, plaintiffs approached D'Amico to discuss their concern about a pitch in the garage roof. According to D'Amico, he offered to reconstruct the roof and share the costs with the plaintiffs, but they declined his offer.

On December 8, 2004, plaintiffs' then attorney sent a letter to D'Amico informing him that he had advised plaintiffs to "have a home inspection performed by a licensed structural engineer/home inspector and a report prepared so that the work completed [] to date c[ould] be reviewed and assessed by an independent professional."

On December 10, 2004, the Washington Township Police Department responded to a call at plaintiffs' residence. Elizabeth Hayden reported that D'Amico had "sent a crew to the location to retrieve items he believed belonged to him." She was informed by the police that since the "true ownership of the items was not discernible," she would need to proceed with a civil action if she wished to pursue the matter.

The professional engineer hired by the plaintiffs to inspect D'Amico's work issued his report on December 14, 2004. He found seven items not in compliance with the original plans or building permits, including the pitch of the garage roof. The report was forwarded to D'Amico, and several letters from plaintiffs' counsel seeking to discuss the matter followed.

In April 2005, an architect retained by D'Amico issued a report stating that the blueprints were incomplete, specifically with respect to the roof line. In response, Testa prepared a report refuting these statements.

In June 2005, plaintiffs obtained a bid of $57,000 to make any necessary corrections to the work already completed on their home and to finish the renovations.

Plaintiffs' complaint was filed in the Law Division on August 18, 2006. They alleged among other things: breach of contract; general negligence; fraud; and violation of the Consumer Fraud Act, N.J.S.A. 56:8-1 to -181. The matter was scheduled for trial in December 2007. Shortly before the trial date, the parties consented, off the record, to having the matter resolved through arbitration. A letter prepared by plaintiffs' counsel, on December 28, 2007, stated that the parties had agreed "to submit the [] matter to binding arbitration." (Emphasis added). This categorization was again used by plaintiffs' counsel in a letter dated ...


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