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Alex Perez and Cathy Perez v. Professionally Green

October 13, 2011

ALEX PEREZ AND CATHY PEREZ, PLAINTIFF-APPELLANTS,
v.
PROFESSIONALLY GREEN, LLC, BRIAN HERE, INDIVIDUALLY, NORMAN TARANTO, INDIVIDUALLY, WEISSMAN ENGINEERING CO., P.C., ROBERT J. WEISSMAN, INDIVIDUALLY, VCA SONS, INC., T/A FREEDOM FENCE, INC., AND VINCENZO ANELLO, INDIVIDUALLY, DEFENDANTS, AND SWIM-WELL POOLS, INC., DEFENDANT-RESPONDENT.



On appeal from the Superior Court of New Jersey, Law Division, Bergen County, L-880-07.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued December 1, 2010

Before Judges Gilroy and Nugent.

Plaintiffs Alex Perez and Cathy Perez appeal from a January 13, 2010 Law Division order that denied their application for an award of attorneys' fees and costs under the Consumer Fraud Act (CFA), N.J.S.A. 56:8-1 to -20, against defendant Swim-Well Pools, Inc. (Swim-Well). We reverse. *fn1

The combined statement of facts and procedural history is as follows. Plaintiffs own a residence in Franklin Lakes, New Jersey. On March 8, 2004, they contracted with defendant Weissman Engineering Co., P.C., to prepare plans for the installation of an in-ground swimming pool, and on March 15, 2004, they contracted with Swim-Well to install the pool. Plaintiffs subsequently contracted with defendant Professionally Green, LLC, to perform paving and landscaping around the pool, and defendant VCA Sons, Inc., to construct a fence to enclose the pool.

After construction disputes arose among the parties, plaintiffs filed a complaint against defendants. They amended the complaint on March 2, 2009, and alleged causes of action for breach of contract, negligence, breach of warranty, breach of implied warranty of fitness for a particular use, and consumer fraud.*fn2 The consumer fraud claims against Swim-Well were based on the following allegations: (1) Swim-Well's contract with plaintiffs did not include the start and end dates for construction of the pool; (2) the contract did not include a statement of guarantee or warranty with respect to labor and services provided and a provision allowing plaintiffs to cancel the contract (the warranty allegations); and (3) the contract did not include a mandatory cancellation warning (the cancellation allegation). Plaintiffs alleged they suffered an ascertainable loss by losing the use of the pool for the summer.

On May 27, 2009, plaintiffs moved for partial summary judgment against Swim-Well, Professionally Green, VCA, and their principals, seeking a judgment that those defendants violated the CFA and that plaintiffs suffered an ascertainable loss caused by the violations. Swim-Well opposed the motion on the ground that plaintiffs failed to establish a prima facie showing of an ascertainable loss, or, alternatively, that the ascertainable loss issue "must be determined at trial." Swim-Well also filed a cross-motion for partial summary judgment seeking dismissal of the consumer fraud claims based on the warranty and cancellation allegations. Swim-Well did not move to dismiss the CFA claim based on the absence of a start and end date in the contract.

On July 21, 2009, the trial judge granted partial summary judgment to plaintiffs on the CFA claim that alleged Swim-Well and Professionally Green did not include start and end dates in their contracts. The judge ruled that N.J.A.C. 13:45A-16.2(a)(12) required that the contracts "clearly and accurately set forth in legible form and in understandable language . . .

[t]he dates or time period on or within which the work is to begin and be completed by the seller . . . ." Finding the Swim-Well and Professionally Green contracts contained no such dates, the judge explained that the omissions "constitute[d] technical violations of the [CFA]" and that plaintiffs were "entitled to recover attorneys' fees and costs in accordance with the holding in Cox[v. Sears Roebuck & Co., 138 N.J. 2 (1994)]." The judge stated that Cox required an award of treble damages and attorneys' fees if a CFA plaintiff proved both an unlawful practice and an ascertainable loss. The judge explained:

In the instant matter, Plaintiff[s] claim that they suffered an ascertainable loss because by not knowing when Defendants were going to complete their work, the Plaintiff[s] could not use their patio and/or pool during the summer of 2004, which was the time period in which the Plaintiff[s] expected the patio to be complete. Defendants contend that the Plaintiff[s] failed to prove that the failure to include start and completion dates in the contract were either material to the contract or proximately caused Plaintiffs' alleged damages. Defendants further argue that because the Plaintiffs' pool plan was not approved until July 1, 2004, and the work did not commence until after the permits were issued on July 16, 2004, a jury could conclude that Plaintiffs' expectation of enjoying the pool in the summer of 2004 was unrealistic and therefore does not amount to an ascertainable loss. Consequently, a question of fact remains as to whether the Defendants' failure to include start and completion dates in the contracts caused an ascertainable loss by the Plaintiff[s]. Therefore, whether Plaintiff[s] suffered an ascertainable loss and are entitled to treble damages is a question that should be decided by the jury at trial.*fn3

On July 22, 2009, the trial judge entered an order that granted Swim-Well's cross-motion for partial summary judgment and dismissed with prejudice plaintiffs' consumer fraud claims based on the warranty and cancellation allegations. Plaintiffs' remaining consumer fraud and negligence claims against Swim-Well proceeded to trial.

Following the close of plaintiffs' proofs at trial, Swim-Well moved for an involuntary dismissal of the CFA claim pursuant to Rule 4:37-2(b), arguing that plaintiffs failed to establish they suffered an "ascertainable loss" caused by the "technical violation" of failing to include start and end dates in the contract. The trial judge granted the motion, finding that plaintiffs failed to establish a prima facie showing of an ascertainable loss. The jury subsequently returned a no cause for action verdict in favor of Swim-Well on plaintiffs' negligence claim.*fn4

Plaintiffs filed a post-trial motion seeking counsel fees and costs pursuant to the CFA. The trial judge denied their application in an order dated January 13, 2010, supported by a statement of reasons. The judge rejected plaintiffs' argument that Weinberg v. Sprint Corp., 173 N.J. 233 (2002), permits recovery of attorneys' fees and costs when the issue of ascertainable loss is dismissed as a matter of law. The judge ruled that Pron v. Carlton Pools, Inc., 373 ...


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