Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Perez v. Professionally Green, LLC

Supreme Court of New Jersey

September 12, 2013

ALEX PEREZ and CATHY PEREZ, Plaintiffs-Respondents,
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-Appellant.

Argued January 14, 2013

On certification to the Superior Court, Appellate Division.

Jerald J. Howarth argued the cause for appellant (Howarth & Associates, attorneys; Mr. Howarth and Purnima D. Ramlakhan, on the briefs).

Edward R. Grossi argued the cause for respondent (Mr. Grossi and Anthony P. Ambrosio, attorneys; Mr. Ambrosio, on letter in lieu of brief).

PATTERSON, J., writing for a unanimous Court.

The issue in this appeal is whether plaintiffs, whose pretrial motion for partial summary judgment was granted on the issue of a technical violation of the New Jersey Consumer Fraud Act, N.J.S.A. 56:8-1 to -20 (CFA) but was denied on the issue of ascertainable loss, may recover attorneys' fees under N.J.S.A. 56:8-19 after their CFA claim was involuntarily dismissed under Rule 4:37-2(b) after the close of their proofs at trial.

Plaintiffs sued defendant Swim-Well Pools, Inc., and others alleging various claims arising out of the installation of a pool. Plaintiffs alleged that they retained Swim-Well to construct the pool in accordance with a plan prepared by another defendant, and that Swim-Well became aware of but refused to remedy design defects during the construction. Plaintiffs claimed that the contractors' errors resulted in an unstable pool and failed inspections, requiring them to hire new contractors to finish the job. In an amended complaint, plaintiffs added CFA claims against Swim-Well premised on three alleged deficiencies in the contract with Swim-Well, only one of which is at issue here: the absence of start and end dates for the project. Before trial, the plaintiffs moved for partial summary judgment under Rule 4:46. The court found there was no genuine issue of material fact with respect to the absence of start and end dates in the contract. Thus, the court found a "technical violation" of the CFA and granted partial summary judgment in favor of plaintiff on that issue. However, the court denied plaintiffs' motion with respect to the issue of ascertainable loss, determining there was a genuine issue of material fact as to whether defendants' failure to include the required start and end dates in the contract caused an ascertainable loss, which plaintiffs claimed was an inability to use their new pool during the summer of 2004, contrary to their expectations.

The only CFA claim tried against Swim-Well was plaintiffs' claim for ascertainable loss resulting from the lack of start and end dates in the contract. At the close of plaintiffs' proofs at trial, Swim-Well moved under Rule 4:37-2(b) for involuntary dismissal. Swim-Well argued that plaintiffs had failed to present evidence that would support a jury finding that the contract's absence of start and end dates gave rise to an ascertainable loss under N.J.S.A. 56:8-19. The court granted Swim-Well's motion, holding that plaintiffs had failed to make a prima facie showing that Swim-Well's technical violation of the CFA caused an ascertainable loss. Plaintiffs filed a post-trial motion for an award of attorneys' fees and costs under N.J.S.A. 56:8-19, which the trial court denied. Citing Weinberg v. Sprint Corp., 173 N.J. 233 (2002), and relying upon Pron v. Carlton Pools, Inc., 373 N.J.Super. 103 (App. Div. 2004), the court held that by virtue of the grant of Swim-Well's motion for involuntary dismissal, plaintiffs had failed to present sufficient evidence of an ascertainable loss and thus were not entitled to recover attorneys' fees under the CFA.

Plaintiffs appealed only the trial court's denial of their attorneys' fee application. The Appellate Division reversed. The panel held that in order to establish a bona fide claim of ascertainable loss that is a prerequisite to an attorneys' fee award, a CFA plaintiff need not prevail on both a summary judgment motion and a motion for involuntary dismissal at trial. The Supreme Court granted Swim-Well's petition for certification. 209 N.J. 99 (2012).

HELD: When a trial court grants a defendant's motion for involuntary dismissal of plaintiffs' CFA claim under Rule 4:37-2(b), no bona fide ascertainable loss claim exists within the meaning of N.J.S.A. 56:8-19, and thus plaintiffs are not entitled to attorneys' fees.

1. The Court's goal is to effectuate the Legislature's intent by examining the plain language of N.J.S.A. 56:8-19, giving the words their ordinary meaning. The Legislature enacted the CFA to permit the Attorney General to combat consumer deception. As part of a 1971 amendment, the Legislature authorized a private right of action. Pursuant to authority delegated in N.J.S.A. 56:8-4, the Division of Consumer Affairs enacted the "Home Improvement Practices" regulations, N.J.A.C. 13:45A-16.1 to -16.2, to provide "objective assurances" of the terms and criteria according to which home-improvement work should be done. N.J.A.C. 13:45A-16.2(a)(12) requires that home-improvement contracts include the dates on which the work is to begin and be completed. The omission of the required dates in Swim-Well's contract was the "technical violation" of the CFA found by the trial court. In addition to establishing a CFA violation, a private plaintiff must demonstrate that the violation resulted in an "ascertainable loss of moneys or property, real or personal." N.J.S.A. 56:8-19. If a plaintiff demonstrates both a violation and a resulting ascertainable loss, the CFA provides broad relief that may include an award of attorneys' fees. (pp. 12-17)

2. In Weinberg, supra, the Court held that, to be entitled to an award of attorneys' fees, a CFA plaintiff must plead a bona fide claim of ascertainable loss that is capable of surviving a motion for summary judgment. In Pron, supra, the Appellate Division held that where a trial court granted the defendant's motion for involuntary dismissal of the plaintiff's claim for ascertainable loss, no prima facie case of ascertainable loss has been presented to entitle the plaintiff to an award of attorneys' fees. (pp. 17-21)

3. By moving for summary judgment on ascertainable loss, plaintiffs invoked the standard of Rule 4:46-2, which compels the grant of summary judgment if the discovery and any affidavits "show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law." The test is whether a rational factfinder, drawing all legitimate inferences against the moving party, could resolve the alleged disputed issue in favor of the opposing party. Applying this standard to plaintiffs' partial summary judgment motion, the trial court ruled that no rational factfinder could conclude that the absence of start and end dates in Swim-Well's contract met the requirements of N.J.A.C. 13:45A-16.2(a)(12). As to ascertainable loss, however, the court determined that a rational factfinder could agree with defendant that plaintiffs sustained no ascertainable loss. Because Swim-Well did not file a motion for summary judgment on the ascertainable loss issue, the trial court was not called upon to decide a pretrial motion considering the facts in the light most favorable to plaintiffs. Thus, the summary judgment proceedings do not determine plaintiffs' right to attorneys' fees under the CFA. (pp. 22-24)

4. Here, Rule 4:37-2 provided the test under which the trial court evaluated plaintiffs' evidence in support of their ascertainable loss claim. After Swim-Well moved to dismiss plaintiffs' claim following plaintiffs' presentation of proofs to the jury, the trial court held that plaintiffs' claim fell short of the Rule 4:37-2 standard, which is similar to the summary judgment standard. A motion for involuntary dismissal requires the trial court to scrutinize the evidence presented and determine if it would support a verdict in the plaintiff's favor. The trial court considered plaintiffs' evidence and the legitimate inferences that could be drawn in their favor and determined that no rational jury could find ascertainable loss. The trial court's grant of involuntary dismissal of that claim, unchallenged on appeal, guides the resolution of the issue of attorneys' fees under the CFA. That determination is analogous to the trial court's grant of summary judgment in favor of the defendant in Weinberg. A trial court's grant of a defendant's motion for summary judgment under Rule 4:46-2 or a defendant's motion for involuntary dismissal under Rule 4:37-2(b) confirms that no bona fide ascertainable loss claim exists. Under either rule, a defendant will not prevail if the evidence, viewed in the light most favorable to the plaintiff, would permit a rational factfinder to conclude that the plaintiff has sustained an ascertainable loss. Plaintiffs' claim for ascertainable loss did not rise to the level of a bona fide claim within the meaning of N.J.S.A. 56:8-19, and thus a reward of attorneys' fees would directly contravene the CFA. (pp. 24-27).

The judgment of the Appellate Division is REVERSED.

CHIEF JUSTICE RABNER; JUSTICES LaVECCHIA, ALBIN, and HOENS; and JUDGES RODRÍGUEZ and CUFF (both temporarily assigned) join in JUSTICE PATTERSON's opinion.

OPINION

PATTERSON, JUSTICE

The New Jersey Consumer Fraud Act, N.J.S.A. 56:8-1 to -20 (CFA or Act), authorizes an award of attorneys' fees to a plaintiff who "suffers any ascertainable loss of moneys or property, real or personal, " as a result of a "method, act, or practice" prohibited by the Act. N.J.S.A. 56:8-19. This Court has held that "a plaintiff, who pleads but cannot survive a motion for summary judgment in respect of the issue of ascertainable loss, " may not assert a claim for attorneys' fees under the Act. Weinberg v. Sprint Corp., 173 N.J. 233, 253 (2002). In accordance with Weinberg, to be entitled to an award of attorneys' fees, a CFA plaintiff must raise a genuine issue of material fact with respect to the issue of ascertainable loss, sufficient to warrant denial of a summary judgment motion filed by a defendant pursuant to Rule 4:46-2.

This case requires us to construe the CFA and apply the principles of Weinberg in a procedural setting not previously addressed by this Court. Dissatisfied with swimming pool installation work performed by defendant, Swim-Well Pools, Inc. (Swim-Well), plaintiffs Alex and Cathy Perez filed a CFA claim against Swim-Well and moved for summary judgment prior to trial. The trial court granted plaintiffs' motion in part and denied it in part, holding that plaintiffs had demonstrated a technical violation of the CFA but that Swim-Well had raised a genuine issue of material fact as to whether plaintiffs had suffered an ascertainable loss under N.J.S.A. 56:8-2. The case proceeded to trial. At the close of plaintiffs' proofs, the trial judge held that plaintiffs had not made a prima facie showing on the issue of ascertainable loss and granted Swim-Well's motion for involuntary dismissal of plaintiffs' CFA claim under Rule 4:37-2(b). The trial court denied plaintiffs' post-trial motion for attorneys' fees under N.J.S.A. 56:8-19. Plaintiffs appealed, and the Appellate Division reversed, holding that plaintiffs were entitled to attorneys' fees, notwithstanding the denial of their motion for summary judgment and the grant of Swim-Well's motion for involuntary dismissal on the issue of ascertainable loss.

We reverse. The trial court never ruled that there was sufficient evidence for a rational factfinder to find in plaintiffs' favor but rather found, after plaintiffs' proofs at trial, that no rational factfinder could find an ascertainable loss. Thus, in the procedural setting here, plaintiffs did not present a "bona fide claim of ascertainable loss that raises a genuine issue of fact" within the meaning of Weinberg, supra, 173 N.J. at 253. Accordingly, we conclude that plaintiffs have not established a viable claim for attorneys' fees under N.J.S.A. 56:8-19 and that the trial court properly dismissed their CFA claim.

I.

For purposes of this appeal, we will draw upon the procedural history and the facts of the case as set forth in the parties' briefs and pleadings, as well as the trial court's statements of reasons.

According to plaintiffs, they decided to install a swimming pool, build a fence, patio, retaining walls and walkways, and enhance the landscaping at their home in Franklin Lakes in 2004.[1]Plaintiffs maintain that they signed a contract with Weissman Engineering Co. (Weissman) to prepare a plan for the pool. Plaintiffs assert that they selected Professionally Green, LLC (Professionally Green) to construct the patio, retaining walls and walkways, install a diving board, handle paving and drainage for the project, and provide landscaping. They also represent that they hired VCA Sons, Inc. (VCA) to build a fence around the pool. Plaintiffs maintain that they retained Swim-Well to construct the pool in accordance with Weissman's design. Plaintiffs' complaint alleges that plaintiffs and Swim-Well executed a contract on March 15, 2004.

According to plaintiffs, Weissman's design for the pool was defective and did not comply with municipal regulations. Swim-Well allegedly became aware of the design flaws while construction was underway. Plaintiffs assert that Swim-Well continued to accept payments from them notwithstanding its knowledge of the design defects and refused to remedy those defects in response to plaintiffs' demand. Plaintiffs also allege that Professionally Green made errors in the construction of the patio and the drainage system, resulting in flooding, and that VCA constructed the fence too close to a heater, prompting fire inspectors to withhold certification. Plaintiffs claim that errors by all four contractors resulted in an unusable pool, an unsightly condition on their property, and failed municipal inspections. Plaintiffs assert that they were compelled to retain new contractors to complete the work.

Plaintiffs sued Swim-Well and an individual alleged to be associated with Swim-Well, Norman Taranto (Taranto), as well as Professionally Green, Weissman and VCA, and individual defendants alleged to be connected with each contractor. In an amended complaint, filed in March 2009, plaintiffs asserted claims based upon breach of contract, negligence, breach of express and implied warranty, professional malpractice and violations of the CFA and N.J.A.C. 13:45A-16.[2] As pled against Swim-Well and Taranto in Count Fifteen of the Amended Complaint, these claims were premised on three alleged deficiencies in the March 15, 2004 contract between plaintiffs and Swim-Well: (1) the absence of "the dates or time period when the work was to begin and to be completed"; (2) the lack of a "guarantee or warranty with respect to the labor and services provided as well as the provision that allows [plaintiffs] to cancel the contract"; and (3) the "[f]ailure to provide mandatory cancellation/warning" to plaintiffs in the contract. Plaintiffs alleged that these violations of N.J.S.A. 56:8-2 "resulted in ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.