On appeal from Superior Court of New Jersey, Special Civil Part, Camden County, Docket No. DC-024269-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Payne and C.L. Miniman.
Defendants Angel Remodeling and Steven Carpineta appeal from a final judgment in the Special Civil Part awarding plaintiffs David Della Valle and Jennifer Della Valle $15,000 for breach of a home-improvement contract into which the parties entered for work to be performed on plaintiffs' home; $45,000 for treble damages under the Consumer Fraud Act (CFA), N.J.S.A. 56:8-1 to -184; and $2091 as a CFA counsel-fee award. We reverse.
This action was instituted on November 24, 2008. In their complaint, plaintiffs alleged in the First Count that they entered into a contract with defendants on July 20, 2008. The scope of work included remodeling a front bedroom, a living room area, and the kitchen and doing some patio, electrical, and siding work. The contract price was $24,500. They alleged that prior to the commencement of the work they paid defendants $18,375. Thereafter, defendants commenced work without obtaining proper permits from the municipality, which plaintiffs alleged was a violation of the CFA. Additionally, defendant worked for only two days, left the job, and never returned, leaving the work substantially incomplete and with numerous deficiencies in the workmanship. They sought damages of $150,000.*fn1
In the Second Count of their complaint, plaintiffs alleged that "[d]efendants engaged in unconscionable commercial practices, deception and false promises and/or misrepresentations" contrary to the CFA and violated administrative regulations, including the Home Improvement Practices regulations promulgated under N.J.S.A. 56:8-4. They sought an award of $150,000 treble damages, attorney's fees, and costs.
Angel Remodeling filed its own complaint on December 11, 2008, apparently before it had been served with plaintiffs' complaint. In it, Angel Remodeling alleged that David Della Valle had interfered with the issuance of a permit for the work, causing a permanent hold on the job, and thus breaching their home-improvement contract. Additionally, Angel Remodeling alleged that David Della Valle was holding tools belonging to it worth $4000 and it sought $10,125 in damages for breach of contract and conversion. Defendants filed an answer to plaintiffs' complaint on January 20, 2009, and David Della Valle filed an answer to Angel Remodeling's complaint on February 10, 2009. These two actions were never consolidated. Defendants sought no discovery from plaintiffs in their action.
The matter reached trial on March 3, 2009, at which point the judge announced that the case would be backlogged as of March 20, 2009, and asked, "What's the problem?" Plaintiffs' counsel stated they were ready to proceed, but defendants pro se stated that they were not. Plaintiffs' counsel advised the court that there was a similar case filed by Angel Remodeling in the Special Civil Part involving the exact same facts and contract, which had been scheduled for trial on April 6, 2009, and that the two cases should be consolidated. The judge replied, "Okay. The case is scheduled for today." Defendants protested that they did not have all their documentation. The judge replied, "Sir, that's not my problem. The case was scheduled for today." Defendant Carpineta then said, "I have it for today's case, but for my complaint I don't have my documentation---." The judge interrupted to say, "Sir, I don't know anything about another complaint. All I know is there is a case scheduled for today called Della Valle versus Angel Remodeling and that's the case I'm going to hear. All right. Let's proceed." At that point, plaintiffs' counsel called his first witness and the case was tried to a conclusion, with the judge entering the judgment described above. This appeal followed. On March 31, 2009, the judge dismissed the complaint filed by Angel Remodeling without any further proceedings. No appeal has been taken from that dismissal.
Defendants allege that the judge mistakenly exercised his discretion when he denied defendants' request for a continuance to give defendant sufficient time to seek counsel, schedule witnesses, and review an expert report produced during the trial. Unfortunately, defendants did not request a continuance for those reasons, but only to secure documentation relevant to their affirmative claim.
It is a well-settled principle that our appellate courts will decline to consider questions or issues not properly presented to the trial court when an opportunity for such presentation is available "unless the questions so raised on appeal go to the jurisdiction of the trial court or concern matters of great public interest." [Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973) (citation omitted).]
We, thus, confine our review to whether the judge mistakenly exercised his discretion in denying the continuance where the plaintiffs' attorney advised the judge that there were two cases involving the identical facts and contract that ought to be consolidated for trial and defendants stated they were not prepared to try the case that had not been listed for trial.
"[J]udicial discretion" is the option which a judge may exercise between the doing and the not doing of a thing which cannot be demanded as an absolute legal right, guided by the spirit, principles and analogies of the law, and founded upon the reason and conscience of the judge, to a just result in the light of the particular circumstances of the case. [Smith v. Smith, 17 N.J. Super. 128, 132 (App. Div. 1951) (citations omitted), certif. denied, 9 N.J. 178 (1952).]
The exercise of judicial discretion "is not unbounded and it is not the personal predilection of the particular judge." State v. Madan, 366 ...