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Elias Kort and Antonella Kort v. Renier Van Aswegen

November 1, 2011

ELIAS KORT AND ANTONELLA KORT, PLAINTIFFS-APPELLANTS,
v.
RENIER VAN ASWEGEN, INDIVIDUALLY, CLARA VAN ASWEGEN, INDIVIDUALLY AND CREATIVE SOLUTIONS AND SERVICES, LLC, DEFENDANTS-RESPONDENTS.



On appeal from Superior Court of New Jersey, Law Division, Somerset County, Docket No. L-1104-10.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted September 26, 2011

Before Judges Sabatino and Ashrafi.

Plaintiffs appeal from a default judgment on their claims of breach of contract and Consumer Fraud violations on a home improvement contract. The Law Division granted plaintiffs judgment for a total of $201,361.21, which included attorneys' fees and costs, but only against the corporate defendant and only on plaintiffs' claim for breach of contract. The court dismissed plaintiffs' claims against the individual defendants and made no award on their claims of Consumer Fraud violations.

We affirm the judgment in part and reverse in part. We remand to the Law Division for entry of a modified judgment and order of dismissal.

I.

Plaintiffs filed their complaint on June 25, 2010, and served all three defendants. Defendants did not file an answer or otherwise respond to the complaint. Default was entered as to all defendants on August 16, 2010. Plaintiffs then moved for entry of final judgment, submitting certifications, documentary evidence, and photographs to prove their claims.

According to plaintiff Elias Kort's certification, "[d]efendants held themselves out as being experienced contractors." Defendant Renier van Aswegen told plaintiffs that he, defendant Clara van Aswegen, and his stepson were involved in the business. According to Elias Kort, Renier van Aswegen referred to "a 'family business' in order to reassure [plaintiffs] of the establishment of the Company and that the Company's operations did not hinge on one person alone." Plaintiffs submitted a document titled New Jersey State Business Gateway Service, Corporate and Business Information Reporting, which identified Renier and Clara van Aswegen as the officers, directors, or members of Creative Solutions and Services, LLC.

Plaintiffs' proofs showed that they entered into a six-page contract with Creative Solutions on October 14, 2009, for an addition to their house in Hillsborough. Creative Solutions agreed to construct a second floor and to renovate parts of the existing first floor, setting out in detail the work to be done. Plaintiffs agreed to pay $215,000 in ten installments. Renier van Aswegen signed the contract as president of Creative Solutions. The contract made no reference to Clara van Aswegen.

The contract deviated in several respects from statutory and regulatory provisions applicable to home improvement contracts of more than $500. It did not contain the registration number of Creative Solutions as the contractor, or a copy of its commercial general liability insurance policy, as required by N.J.S.A. 56:8-151(a). It did not designate a start or end date for the construction work, as required by N.J.A.C. 13:45A-16.2(12)(iv). It did not identify the products and materials that would be used in the remodeling project and did not include product guarantees and warranties, as required by N.J.A.C. 13:45A-16.2(12)(ii) and (vi).

Elias Kort's certification stated that workers came only intermittently to plaintiffs' house to work after the first few weeks, and the work ceased entirely in April 2010 before the job was completed. In April, Creative Solutions removed equipment from the job site, and subcontractors informed plaintiffs they would cease work because they had not been paid. At that time, plaintiffs had paid $160,000 toward the contract price. Plaintiffs made all payments by check payable to Creative Solutions, and the checks were deposited into a checking account at Fleet Bank in the name of Creative Solutions.

Plaintiffs were compelled to hire other contractors to complete the work and to fix deficient work that had been done by Creative Solutions. The other contractors estimated the cost to complete the job and make repairs to be an additional $260,000. At the time of their proofs on default judgment, plaintiffs had paid new contractors more than $75,000 of the additional estimated cost. As of November 2010, the project was still not completed, and plaintiffs were unable to occupy most of the house.

Plaintiffs' complaint charged breach of contract, faulty workmanship, breach of warranties, other common law causes of action, and violations of the Consumer Fraud Act, N.J.S.A. 56:8-1 to -20. Plaintiffs sought trebling of their losses and reimbursement of their attorneys' fees under the Consumer Fraud Act. See N.J.S.A. 56:8-19. They had paid a retainer of $5,000 for the services of their attorneys as well as other fees and ...


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