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Patricia Czmyr v. Avalanche Heating and Air Conditioning


February 16, 2011


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

Per curiam.


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.


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


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 PROPOSAL MAY BE WITHDRAWN IF NOT ACCEPTED IN 30 DAYS."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."


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 fabricated specifically for her project once the contract had been signed.

Although Czmyr acknowledged that she knew Avalanche would have to fabricate the ductwork for her house in advance, rather than on the job, she testified that Lebedinsky told her his prices were low because he already had the heating and air-conditioning units in stock. Lebedinsky testified that he described the units as being held by the supplier on consignment, not at Avalanche's own warehouse. Moreover, Lebedinsky stated that he "clearly explained twice prior to [Czmyr] signing the contract that every single piece of the duct in her house was custom made, specifically built, and would have to be fabricated in the shop." Lebedinsky further testified that Czmyr was aware that her deposit would finance the preparatory work and purchases.

According to Lebedinsky, Avalanche began purchasing the heating and air-conditioning units and related material from its suppliers, including a furnace, air-conditioning coil, air-conditioning condensing unit, and raw materials to fabricate the ductwork, within days of Czmyr's acceptance of the contract. He testified that assembly of the ducts began on October 9, 2008.

In an oral decision delivered November 13, 2009, the trial judge found that Avalanche's contract was deficient with respect to the applicable CFA and CRA requirements. However, the judge found both witnesses to be credible and determined that "no one intended to mislead or tell an untruth." Apart from the statutory and regulatory violations, the judge characterized the contract as relatively detailed and complete.

The judge further found that Czmyr breached the contract when she terminated it. He rejected her assertion that there was a thirty-day right of termination, finding that the language at issue referred only to Avalanche's right to withdraw the proposal after the thirty days if it had not been accepted by her. He found that Czmyr's testimony evidenced "a clear intent . . . to be bound by the contract, to go ahead with the deal, and to have the furnace and air conditioner installed on October 24, 2008." Consequently, the judge concluded that, "even if the [three-day opt-out] language . . . were in the contract, it would not have been exercised" within the required period.

Because the judge found that Czmyr had breached the contract, he concluded that Avalanche was entitled to damages for the expenses incurred in anticipation of performing the work and for lost profits, after deducting the deposit.

The trial judge calculated the costs incurred by Avalanche as follows: $1,013.05 to re-stock the purchased equipment and $1,528.08 for the custom ductwork, a total of $2,541.13. To this sum the court added $1500 in lost profits, an amount based on considerations inferred from trial testimony, for a total of $4,041.13 in damages. Subtracting the $3500 deposit already received by Avalanche, the court entered a judgment for Avalanche of $541.13.

Finally, the judge determined that Czmyr was not entitled to attorney's fees because she had not suffered an "ascertainable loss," citing New Jerseyans for Death Penalty Moratorium v. New Jersey Department of Corrections, 185 N.J. 137 (2005). This appeal followed.


On appeal, Czmyr contends that the trial judge erred in basing his decision on the finding that Lebedinsky acted in good faith, arguing that good or bad faith is not relevant when there has been a per se violation of the CFA, the CRA, or their implementing regulations. She also contends that, because the contract between the parties contained per se violations, Avalanche was barred from recovering for any breach of the contract. Finally, she contends that the withheld deposit constituted an "ascertainable loss" entitling her to treble damages and that, in any event, she was entitled to recover counsel fees on the basis of the per se violations.


On this appeal, we review a decision reached by the trial judge following a bench trial. "The general rule is that [factual] findings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998) (citing Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974)). We do not disturb the factual findings of the trial judge unless we are convinced that "'they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice.'" Id. at 412 (quoting Rova Farms, supra, 65 N.J. at 484); see also Beck v. Beck, 86 N.J. 480, 496 (1981).

However, "[w]hether the facts found by the trial court are sufficient to satisfy the applicable legal standard is a question of law subject to plenary review on appeal." State v. Cleveland, 371 N.J. Super. 286, 295 (App. Div.), certif. denied, 182 N.J. 148 (2004). Our review of the judge's legal conclusions is plenary. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).


The CFA was enacted to protect consumers against predatory merchants by imposing a broad array of prohibitions and requirements on sellers, advertisers, and contractors. According to the Supreme Court:

The Consumer Fraud Act has three main purposes: to compensate the victim for his or her actual loss; to punish the wrongdoer through the award of treble damages; and, by way of the counsel fee provision, to attract competent counsel to counteract the community scourge of fraud by providing an incentive for an attorney to take a case involving a minor loss to the individual. [Lettenmaier v. Lube Connection, Inc., 162 N.J. 134, 139 (1999) (citation omitted).]

Moreover, "[b]ecause [the CFA] is a remedial statute, its provisions are construed liberally in favor of the consumer to accomplish its deterrent and protective purposes." Ibid.; see also Gennari v. Weichert Co. Realtors, 148 N.J. 582, 604 (1997) ("The history of the [Consumer Fraud] Act is one of constant expansion of consumer protection."); Cox ex rel. Estate of CoX

v. Sears Roebuck & Co., 138 N.J. 2, 15-16 (1994).

While the CFA originally provided only for enforcement by the Attorney General, see L. 1960, c. 39, § 3, it now provides a private cause of action:

Any person who suffers any ascertainable loss of moneys or property, real or personal, as a result of the use or employment by another person of any method, act, or practice declared unlawful under [the CFA] may bring an action or assert a counterclaim therefor in any court of competent jurisdiction. In any action under this section the court shall, in addition to any other appropriate legal or equitable relief, award threefold the damages sustained by any person in interest. In all actions under this section, including those brought by the Attorney General, the court shall also award reasonable attorneys' fees, filing fees and reasonable costs of suit. [N.J.S.A. 56:8-19.]

In addition to treble damages for any "ascertainable loss," the CFA renders infringing contractors liable for "a refund of all moneys acquired by means of" their violations. N.J.S.A. 56:8-2.11.

Enacted in 2004, the CRA supplements the CFA by imposing a number of disclosure obligations on contractors in order to guarantee that even the most inexperienced consumer is informed of his or her rights. See L. 2004, c. 16 (codified at N.J.S.A. 56:8-136 to -152). Many of the CRA's provisions are enforced through administrative regulations applicable to home improvement practices, N.J.A.C. 13:45A-16.1 to -16.2, and home improvement contractor registration, N.J.A.C. 13:45A-17.1 to -17.14. Of particular importance to this case, failure to comply with the CRA's provisions and implementing regulations also constitutes a violation of the CFA. N.J.S.A. 56:8-146(a).

A contractor's actual intent is irrelevant under the CFA. As the Supreme Court stated in Fenwick v. Kay American Jeep, Inc.:

The capacity to mislead is the prime ingredient of deception or an unconscionable commercial practice. Intent is not an essential element. Since consumer protection is the ultimate goal, the standards of conduct established by the [CFA] and implementing regulations must be met regardless of intent except when the Act specifically provides otherwise.

[72 N.J. 372, 378 (1977) (emphasis added).]

Within this strict liability framework, contractors are presumed to be familiar with the CFA and its regulations. Cox, supra, 138 N.J. at 18-19. Moreover, liability under the CFA does not require that the consumer actually be misled or defrauded by a merchant; any violation is enough to create liability. Skeer v. EMK Motors, Inc., 187 N.J. Super. 465, 470 (App. Div. 1982), quoted in Sprenger v. Trout, 375 N.J. Super. 120, 131 (App. Div. 2005).

It is undisputed that Avalanche is a contractor subject to the CFA and CRA, and that it failed to comply with the statutory and regulatory requirements at issue. The trial judge's finding that Avalanche "clearly" did not intend to violate the CFA has no bearing on liability with respect to the per se violations.

The question is whether Czmyr has suffered an "ascertainable loss" entitling her to treble damages. In order to demonstrate "ascertainable loss," a consumer claiming misrepresentation must show "either out-of-pocket loss or a demonstration of loss in value." Thiedemann v. Mercedes-Benz U.S., LLC, 183 N.J. 234, 248 (2005). The Supreme Court has held that "[t]he limiting nature of the requirement allows a private cause of action only to those who can demonstrate a loss attributable to conduct made unlawful by the CFA." Id. at 246 (emphasis added) (citing Meshinsky v. Nichols Yacht Sales, Inc., 110 N.J. 464, 473 (1988)); see also N.J.S.A. 56:8-19 (stating that "ascertainable loss" must occur "as a result" of the claimed violation); Bosland v. Warnock Dodge, Inc., 197 N.J. 543, 560 (2009) ("[A] plaintiff who cannot prove the causal link between the asserted regulatory violation and his loss cannot find relief within the CFA."). An "ascertainable loss" is roughly equivalent to "any lost 'benefit of [the] bargain.'" Bosland, supra, 197 N.J. at 558 (alteration in original) (quoting Furst v. Einstein Moomjy, Inc., 182 N.J. 1, 11-13 (2004)).

With respect to counsel fees, the case law is extremely straightforward. According to the Supreme Court, "a consumer-fraud plaintiff can recover reasonable attorneys' fees, filing fees, and costs if that 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 (citing Performance Leasing Corp. v. Irwin Lincoln-Mercury, 262 N.J. Super. 23, 31, 34 (App. Div.), certif. denied, 133 N.J. 443 (1993)). That rule does not distinguish between "technical," "per se," or "substantive" violations of the CFA. BJM Insulation & Constr., Inc. v. Evans, 287 N.J. Super. 513, 517-18 (App. Div. 1996).

In Branigan v. Level on the Level, Inc., we emphasized this point:

Although we think the facts now before us demonstrate the lowest conceivable level of violation under the Consumer Fraud Act, and although we have difficulty seeing how the salutary goals of this Act are furthered by the award of fees, the statute nevertheless supports such an award. The Supreme Court has made it clear that the statute mandates an award of counsel fees and costs for any violation of the Act, even if that violation caused no harm to the consumer. [326 N.J. Super. 24, 30-31 (App. Div. 1999).]


We turn first to the issue of whether either party was entitled to affirmative relief. Czmyr argues that the trial judge should have required the return of her deposit because of the per se violations of the CFA and CRA, and because she never received any benefit from the contractual bargain. She further argues that the retained deposit was an "ascertainable loss," such that her damages should have been trebled. Finally, she argues that Avalanche should not have been entitled to any affirmative or offsetting recovery because of the CFA and CRA violations.

Avalanche counters by arguing that Czmyr failed to prove that any of the violations of the CFA and CRA caused damage to her. While tacitly admitting that there were per se violations, Avalanche places emphasis on the fact that Czmyr canceled the contract for financial reasons after she had rescheduled the work date and with knowledge that Avalanche would expend funds in anticipation of performing the work.

We agree with Avalanche that Czmyr suffered no "ascertainable loss" attributable to the CFA and CRA violations. Czmyr argued that she believed the language in the proposal concerning a right to withdraw the proposal if not accepted within thirty days accorded her a right to cancel within that time frame. The trial judge determined, and we agree, that her interpretation was not supported by the language of the document and was not reasonable. The language at issue is not ambiguous.

In addition, Czmyr never testified that she formed her belief at the time the contract was signed and relied on the language in waiting until November 6, 2008, to terminate the contract. As the trial judge determined, Czmyr evidenced an intention to go forward with the work when she changed the installation date from October to November to suit her schedule. She knew that Avalanche was already taking steps to prepare for the installation at that time. Her decision to terminate was based upon a change of mind concerning the wisdom of incurring the expense in light of her financial position. Consequently, it cannot be said that Czmyr was actually harmed by the failure to include notice of the right to rescind the contract within three days of signing. Czmyr's reliance on N.J.S.A. 56:8-2.11 and Artistic Lawn & Landscape Co. v. Smith, 381 N.J. Super. 75 (Law Div. 2005) is misplaced. The statute requires "a refund of all moneys acquired by means of any practice declared to be unlawful [by the CFA]." N.J.S.A. 56:8-2.11. In Artistic Lawn, the contractor was unlicensed, and the trial judge concluded that the refund provision of N.J.S.A. 56:8-2.11 was applicable for that reason.*fn2 Here, Avalanche was duly registered. Although Avalanche neglected to disclose its registration number and other required information, we conclude that the deposit was not "acquired by means of" any unlawful act under the CFA or the CRA. Consequently, there was no "ascertainable loss" and no right of recovery under N.J.S.A. 56:8-2.11.

As the trial judge correctly determined, Czmyr breached the contract by canceling it. Avalanche was harmed by the breach because of its expenditures in anticipation of its performance, expenditures which Czmyr had anticipated would take place. The trial judge determined that the damages incurred by Avalanche exceeded the amount of the retained deposit, and awarded additional damages. Czmyr challenges that decision, relying on the principle that a merchant who has violated the CFA cannot obtain damages even if the violation was innocent. See Scibek v. Longette, 339 N.J. Super. 72, 80 (App. Div. 2001) ("[A] plaintiff who has violated the act may not obtain damages even though his failure to abide by the regulations was innocent, technical and committed in good faith." (quoting Huffmaster v. Robinson, 221 N.J. Super. 315, 322 (Law Div. 1986))).

In Scibek, supra, 339 N.J. Super. at 82, we questioned the wisdom of that rule when the consumer had actually received the benefit of the bargain. Here, of course, Czmyr did not receive the benefit of the bargain. Nevertheless, her breach of contract caused damages to Avalanche. We have concluded that the best approach to reconciling those competing interests is to limit Avalanche's damages to retention of the deposit, which we have concluded was not unlawfully retained. We decline to permit any affirmative relief. The result is not inconsistent with the holding of Huffmaster, which was decided in the context of a vendor-plaintiff seeking affirmative relief.

Finally, we turn to the issue of counsel fees. Czmyr argues that the trial judge erred in refusing to award counsel fees, and that his reliance on New Jerseyans, supra, 185 N.J. 137, was misplaced. We agree.

The Supreme Court's decision in Cox makes it clear that the court erred by holding that the assessment of counsel fees under the CFA requires proof of an ascertainable loss. Cox, supra, 138 N.J. at 24 ("[A] consumer-fraud plaintiff can recover reasonable attorneys' fees, filing fees, and costs if that 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."). See also Sema v. Automall 46, Inc., 384 N.J. Super. 145, 151 (App. Div. 2005). New Jerseyans is not a CFA case, and does not overrule the clear holding of Cox with respect to CFA cases.

In summary, we reverse the judgment on appeal to the extent it (1) awarded affirmative relief to Avalanche by way of damages for breach of contract above the amount of the retained deposit and (2) denied Czmyr's application for counsel fees. We affirm the denial of Czmyr's claim for damages and the return of her deposit. We remand for correction of the judgment and for the calculation of counsel fees covering both the trial and this appeal, in a manner consistent with applicable law.

Affirmed in part, reversed in part, and remanded.

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