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Patricia Czmyr v. Avalanche Heating and Air Conditioning

February 16, 2011

PATRICIA CZMYR, PLAINTIFF-APPELLANT,
v.
AVALANCHE HEATING AND AIR CONDITIONING, INC., AND LEONARD LEBEDINSKY, DEFENDANTS-RESPONDENTS.



On appeal from Superior Court of New Jersey, Law Division, Special Civil Part, Middlesex County, Docket No. DC-17106-09.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued October 12, 2010 - Decided Before Judges Graves and Waugh.

Plaintiff Patricia Czmyr appeals from the dismissal of her complaint alleging that defendant Avalanche Heating and Air Conditioning, Inc. (Avalanche), violated the Consumer Fraud Act (CFA), N.J.S.A. 56:8-1 to -195, and the Contractors' Registration Act (CRA), N.J.S.A. 56:8-136 to -152, in connection with a contract for replacement of her residential heating and air-conditioning system. She also appeals from the judgment entered against her on Avalanche's counterclaim for breach of that contract. We affirm in part and reverse in part.

I.

We discern the following facts and procedural history from the record on appeal.

A.

In the summer of 2008, Czmyr contacted defendant Leonard Lebedinsky, one of Avalanche's job managers, about replacing her home's heating and air-conditioning system. On August 23, 2008, Lebedinsky responded with a detailed written proposal, which set forth the proposed work and products involved, the costs, and the applicable warranties. The parties eventually agreed upon a price of $7000, with a $3500 deposit to be paid on signing. Czmyr accepted Avalanche's revised proposal by signing it and paying the required deposit on October 8, 2008.

The proposal document accepted by Czmyr contained the following language: "This proposal becomes a contractual agreement on signing by both parties. PROPOSAL MAY BE WITHDRAWN IF NOT ACCEPTED IN 30 DAYS." Czmyr argued at trial that she understood the quoted language to mean the she could cancel the contract within thirty days of signing. Avalanche maintained that the language merely provided that, if the proposal was not accepted within thirty days, Avalanche could withdraw it.

At the time of contracting, neither party was aware that N.J.S.A. 56:8-151(b) provided that "a home improvement contract may be cancelled by a consumer for any reason at any time before midnight of the third business day after the consumer receives a copy of it," and that the statute required applicable contracts to provide notice of that right on the contract in 10-point bold-faced type. In addition to omitting the required notice, Avalanche failed to include three other mandated items: its home improvement registration number, a copy of its certificate of general liability insurance, and the toll-free phone number for the Division of Community Affairs. N.J.S.A. 56:8-144 and -151; N.J.A.C. 13:45A-17.11.

Because Czmyr had been unemployed for several weeks, the parties set a "tentative" installation date of October 24, 2008. On October 16, after she had found employment, Czmyr contacted Avalanche to reschedule the installation for sometime in November to accommodate her uncertain work schedule.*fn1 According to Lebedinsky, Czmyr was aware that plans were already in place for the October 24 installation because she apologized for the inconvenience. The change of date was never reduced to writing, although Avalanche was required to do so by N.J.A.C. 13:45A-16.2(a)(12).

On November 6, 2008, Czmyr called Lebedinsky to cancel the contract, but he was unavailable. When Lebedinsky returned Czmyr's call the next day, she informed him that she "didn't feel comfortable" spending the money in light of her recent period of unemployment. In response, Lebedinsky told her it was too late to cancel the contract because Avalanche had already purchased the equipment and related materials required for the project.

According to Czmyr, Lebedinsky told her he would refund her deposit if he was able to sell the equipment and other materials Avalanche had purchased. Lebedinsky, on the other hand, related that he "offered [to allow Czmyr] to keep her [heating and air conditioning] equipment the second she decided to cancel, and she did not want to proceed with that."

B.

On July 13, 2009, Czmyr filed a complaint alleging that defendants breached the contract and violated the CFA and the CRA, as well as certain regulations implementing those acts. Czmyr claimed that defendants failed to include the required information in the contract, failed to memorialize in writing the change of the installation date, and failed to abide by the terms of the contract with respect to cancellation. She also alleged violation of the implied covenant of good faith and fair dealing. Czmyr demanded damages, equitable relief, court costs, and counsel fees.

On August 17, 2009, defendants filed an answer denying Czmyr's allegations. Avalanche counterclaimed for breach of contract, claiming that Czmyr owed the $3500 balance remaining on the contract, plus costs and counsel fees.

The case was tried on November 9 and 13, 2009, with Czmyr and Lebedinsky as the only witnesses. In addition to the factual background set forth above, there was testimony concerning the issue of whether Czmyr understood that the required equipment and materials would be purchased and ...


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