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Builders v. Estate of Paton

May 14, 2010


On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-2972-07.

Per curiam.


Argued January 5, 2010

Before Judges Wefing, Grall and Messano.

Plaintiff Dream Builders appeals from the judgment entered in favor of defendants, the Estate of Todd Paton and Deborah Paton, following a jury trial.*fn1 Specifically, plaintiff contends that the judge erred in denying its motion for a new trial; that we should "exercise original jurisdiction" and enter judgment in its favor on defendants' Consumer Fraud Act claim, N.J.S.A. 56:8-1 to -184 (the CFA); and, that the award of counsel fees to defendants on their CFA claim was excessive. Defendants have cross-appealed. They contend that the judge erred in denying their request to enter judgment not only against plaintiff, but also against Tim Bainbridge, its principal.

We have considered the arguments raised in light of the record and applicable legal standards. We affirm in part, reverse in part, and remand the matter for further proceedings consistent with this opinion.


The salient evidence adduced at trial revealed that defendants hired plaintiff to construct a first-floor extension and second-floor addition to their home in Emerson. All of their dealings were with Bainbridge.

The parties signed a contract on September 5, 2006 in the amount of $139,200 that provided for installment payments to be made according to an attached schedule. Disputes arose during the later part of 2006 after a significant amount of the work was done and after defendants had paid all but $8700 of the total contract amount.

Bainbridge testified that Deborah Paton ultimately told him to leave the site and return the key; she could not specifically recall whether she gave such an order or whether Bainbridge simply stopped working. Bainbridge claimed that defendants owed plaintiff approximately $23,000, reflecting the final two payments under the contract, and an additional $15,000 in change orders that he claimed defendants had approved.*fn2

It was undisputed that defendants signed and paid several change orders Bainbridge presented to them during the course of the work. However, Bainbridge claimed that the unsigned change orders for which plaintiff sought payment were orally agreed to beforehand. He also acknowledged on cross-examination that the contract and most of the change orders did not contain his contractor's license number or the Division of Consumer Affairs' toll-free number that were both required by regulation to be on the documents.

Deborah Paton testified regarding a litany of problems that existed after plaintiff ceased working on the home. She did not pay the final two installments under the contract because she believed that plaintiff would never finish the work. She also indicated that plaintiff had damaged the wood floors in her home during construction.

Robert Costa, defendants' engineering and construction expert, testified that most of the problems were due to plaintiff's poor workmanship. He estimated the total costs of repairs to be $55,651. That was in contrast to the testimony of Douglas Radick, plaintiff's architectural expert, who testified that plaintiff's work complied with the plans supplied by defendants, and that many of the delays, change orders, and extra costs were the result of problems with the plans themselves.

The jury concluded that defendants had breached their contract with plaintiff and awarded damages of $8700. It rejected an alternative theory of recovery, i.e., that defendants had been unjustly enriched. As to defendants' counterclaim, the jury concluded that plaintiff had breached the contract and violated the CFA. It further decided that defendants' "ascertainable loss for plaintiff's violation of the [CFA]" was $15,000. The jury rejected defendants' claims for unjust enrichment, intentional or negligent infliction of emotional distress, and fraud in the inducement. In response to a specific interrogatory -- "What amount of money... will fairly and reasonably compensate defendants/counterclaimants" --the jury answered "$60,000."

Plaintiff moved for judgment notwithstanding the verdict (JNOV), or alternatively for a new trial, which the judge denied. The judge granted defendants' motion for counsel fees and costs under the CFA, awarding them the entire amount they sought; but, he denied their oral application to enter the judgment against both plaintiff and Bainbridge individually. The final order of judgment was entered against plaintiff and in favor of defendants for $161,964.63 which was comprised of the following: ...

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