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Mark W. Murnane v. Finch Landscaping

July 1, 2011

MARK W. MURNANE, PLAINTIFF-APPELLANT/ CROSS-RESPONDENT,
v.
FINCH LANDSCAPING, LLC, DEFENDANT-RESPONDENT/ CROSS-APPELLANT.



On appeal from Superior Court of New Jersey, Law Division, Warren County, Docket Nos. L-0336-09 and DC-0337-09.

The opinion of the court was delivered by: Skillman, J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Argued May 10, 2011

Before Judges Parrillo, Yannotti and Skillman.

The opinion of the court was delivered by SKILLMAN, J.A.D. (retired and temporarily assigned on recall).

The issue presented by this appeal is whether a homeowner who contracts directly with a building contractor to perform a home improvement, without engaging the services of a general contractor, may assert a claim against that contractor under the Consumer Fraud Act (CFA), N.J.S.A. 56:8-1 to -20, and the Contractor's Registration Act, N.J.S.A. 56:8-136 to -152. We conclude that such a contract is a home improvement contract subject to the CFA, the Contractor's Registration Act and the Home Improvement Practices regulations adopted by the Division of Consumer Affairs to implement these statutory provisions.

N.J.A.C. 13:45A-16.1 to -16.2. Therefore, we reverse the order of the trial court dismissing plaintiff's CFA claim and remand for a new trial.

Plaintiff contracted with defendant to lay a bluestone patio in the backyard of his home. Plaintiff also contracted with a patio designer to draft a plan for the patio and with other building contractors to perform other components of the project, specifically masons to do preparation work, build retaining walls, and apply stone veneer. Plaintiff referred to himself at one point as the "general contractor" for construction of his patio.

Defendant entered into a written contract with plaintiff to lay the bluestone for $26,300. The contract set forth the thickness of the bluestone and other specifications.

During construction of the patio, there were various changes made, including an increase in the size of the patio and installation in some locations of thinner bluestone than provided in the contract. None of these changes were reflected by change orders or other writings.

Plaintiff paid defendant the full contract price of $26,300. However, defendant subsequently sent plaintiff invoices for additional amounts, which according to defendant represented additional costs it incurred as a result of changes in the scope of the project, including the increase in the size of the patio. Plaintiff refused to pay those additional amounts. Plaintiff also claimed that the work defendant performed failed to conform in various respects to the parties' contract.

Plaintiff initially brought this action pro se in the Special Civil Part. His complaint asserted claims for both breach of contract and a violation of the CFA. Defendant filed a counterclaim for $5,940.43 for the additional work it allegedly performed for plaintiff.

After plaintiff retained counsel to represent him, he moved to transfer the action to the Law Division on the ground that the trebling of his damages under the CFA would be likely to result in a judgment in excess of the $15,000 jurisdictional limit of the Special Civil Part. Defendant responded by filing a cross-motion for a ...


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