Opinion
DOCKET NO. A-1583-13T2
12-30-2016
ALL RISK, INC., d/b/a ALL RISK RESTORATION AND DAMAGE CONTRACTORS, Plaintiff-Respondent/Cross-Appellant, v. MERION REALTY, LLC, and MERION INN MANAGEMENT, INC., Defendants-Appellants/Cross-Respondents, and VICTORIA WATSON, Defendant.
Daniel Posternock argued the cause for appellants/cross-respondents (McDowell Posternock Law, attorneys; Mr. Posternock and Diana R. Sever, on the brief). Thomas T. Booth, Jr., argued the cause for respondent/cross-appellant.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Nugent and Higbee. On appeal from the Superior Court of New Jersey, Law Division, Camden County, Docket No. L-6061-11. Daniel Posternock argued the cause for appellants/cross-respondents (McDowell Posternock Law, attorneys; Mr. Posternock and Diana R. Sever, on the brief). Thomas T. Booth, Jr., argued the cause for respondent/cross-appellant. The opinion of the court was delivered by Nugent, J.A.D.
This appeal involves claims for breach of contract and consumer fraud. In 2010, the building housing the Merion Inn restaurant and bar in Cape May was damaged by a fire. Plaintiff All Risk, Inc., d/b/a All Risk Restoration and Damage Contractors, contracted with the building's and restaurant's owners to provide emergency, demolition, and estimating services. Defendant Merion Realty, LLC owned the land and building, and defendant Merion Management, Inc. owned the restaurant and bar business operated on the building's ground floor. When defendants refused to pay plaintiff for their demolition and estimating services, plaintiff filed a breach of contract action and defendants counterclaimed for consumer fraud. During trial, the court dismissed defendants' consumer fraud action. The jury rendered a partial verdict in favor of plaintiff.
Plaintiff's complaint against Victoria Watson was dismissed on summary judgment. Because plaintiff has not appealed from the order entering summary judgment for Watson, we refer to Merion Realty, LLC, the owner of the land and building, and Merion Management, Inc., as "defendants" for ease of reference.
Defendants appeal from the jury's verdict in favor of plaintiff and from various trial court rulings, including the order dismissing their claim for counsel fees on their consumer fraud claim. Plaintiff cross-appeals from that part of the jury verdict denying it damages for preparing the estimate and from the denial of its motion for judgment notwithstanding the verdict on that claim. For the reasons that follow, we affirm the order denying defendants' motion for counsel fees as well as the jury's verdict on plaintiff's demolition claim. We reverse the court's denial of plaintiff's motion for judgment notwithstanding the verdict on plaintiff's estimating claim and remand that claim for a new trial.
I.
In December 2010, Merion Realty, LLC, had two members: Victoria Watson and her brother. The company owned the land and building in Cape May where the Merion Inn, a restaurant and bar, operated on the ground floor. Watson was the sole owner of defendant Merion Inn Management, Inc., the company that owned the restaurant and bar business.
Victoria Watson's brother has since passed away. His estate is now the second member of Merion Realty, LLC.
Built in 1885, the Inn's second and third floors had once operated as a boarding house. After Watson's parents bought the Inn in 1970, the family used the second and third floors for storage and as apartments. Only the second floor apartment had heat, but both floors had hot water. Neither floor had central air conditioning, and the only access to the second and third floors was an interior staircase.
After their father passed away in 1992, Watson's brother moved into the second floor apartment and Watson herself assumed responsibility for operating the restaurant. Watson initially lived on the third floor part-time while she worked in New York City. In 2001, she began living on the third floor full time, working at her New York job telephonically.
On December 23, 2010, Watson's brother fell asleep while smoking a cigarette. The cigarette started a fire that damaged the second and third floors. The restaurant was also damaged, though it appears much of the damage was caused by water. Following the fire, defendants retained plaintiff to perform emergency repair services, demolition, and provide estimates for permanent repairs. The parties' signed written agreements concerning the emergency and estimating services. The parties' discussions concerning demolition were verbal.
The parties signed the first written agreement, entitled "AGREEMENT FOR COMMERCIAL EMERGENCY AND/OR PROTECTIVE REPAIR SERVICES" (the contract or emergency services contract), the day after the fire. The contract generally called for emergency repairs to mitigate damages. The contract stated the work would begin on December 24, 2010, and end on a date "TBD." The contract included a clause informing defendants they could cancel the agreement within three business days. The contract further provided that payment would be made "on a time and material basis."
The contract also included the following clause concerning plaintiff's estimate of permanent repair costs: "If owners decide not to have Contractor perform permanent repairs after an estimate has been prepared at owners [sic] request, owners will pay Contractor an estimating fee of 2% of the repair estimate." The contract stated that defendants agreed to be responsible for all costs associated with the collection of any outstanding invoices, including reasonable attorney fees.
Plaintiff represented it maintained liability insurance in the amount of $1 million per occurrence and would attach a copy of its insurance certificate to the contract; however, none was attached. Watson maintained no personal insurance on the property, which was insured purely as a commercial enterprise. Scottsdale Insurance Company was identified as defendants' insurer.
The emergency services contract contained the following "PAYMENT AUTHORIZATION":
Owners authorize their insurance carrier(s) to pay Contractor directly for all services provided under this Agreement or to jointly include the Contractor on the face of the check. If Owners name(s) are included on the face of the check from the
insurer, Owners agree to grant permission for Contractor to endorse owners name on check or upon request promptly and fully endorse said check to Contractor. Owners shall request that the insurance carrier(s) withhold the deductible amount from the final payment on the loss and Owners agree to pay directly to the Contractor any such deductible.
Defendants paid plaintiff for the emergency services they performed. On February 2, 2011, plaintiff sent defendants an invoice for $26,194.17. The invoice itemized $9,612.85 for "Emergency services" and $16,581.32 for "Contents removal." Watson paid the invoice from a $50,000 advance from Scottsdale.
The same day the parties entered into the emergency services contract, they entered into a second written agreement entitled, "AGREEMENT FOR PERMANENT REPAIR ESTIMATING SERVICES" (the estimating agreement). The agreement required plaintiff "to provide necessary estimating for permanent repair services." The price was "[t]o be provided to Owners based upon preparation and agreed price of estimate." The time for performance was noted as "TBD," with a star highlighting the notation: "[r]estaurant opens March 17, 2011 and [r]estaurant needs to be open."
The estimating contract contained language identical to that in the emergency services contract concerning the 2% fee defendants would pay if they elected not to have plaintiff perform the repair work. The estimating contract also contained cancellation and contractor's insurance clauses identical to those in the emergency services contract.
Plaintiff did not complete the estimate of permanent repairs until April 11, 2011, nearly four months after the fire. The estimate was a sixty-eight-page document detailing costs for 1065 line items of repair. The total estimated cost for repairs was $377,461.90, with no depreciation value calculated.
Plaintiff's repair estimate was higher than an April 20, 2011 fifty-page estimate Scottsdale obtained from Mellon Restoration showing a replacement cost value of $351,309.19, less depreciation of $6,757.02. Plaintiff's estimate was also higher than a second estimate dated July 21, 2011 from Custard Insurance Adjusters. Custard's forty-eight page estimate included a total replacement cost of $338,301.93, less depreciation of $37,618.90. The Custard estimate included $29,069.75 for demolition and $14,300 for permits and fees. Defendants did not pay plaintiff for services performed pursuant to the estimating agreement.
The parties did not enter into a written contract for demolition services. Between December 24, 2010, and May 16, 2011, plaintiff performed demolition services, using professional architectural and engineering services in the process. Plaintiff performed these services based on discussions between its employees and either Watson or people it perceived were acting on Watson's behalf. Such individuals included Watson's insurance agent and long-time friend, Greg Coffey, and Jim Hennessey, her insurance carrier's adjuster.
Neither Watson's insurance agent, Coffey, nor Scottsdale's adjuster, Hennessey, testified at trial.
The email exchanges establish that plaintiff undertook the demolition work after receiving authorization to proceed. For example, in a January 26, 2011 email copied to Watson and Coffey, plaintiff's vice-president, Lou Crisci, informed his chief operating officer (COO) that Hennessy had approved plaintiff's engaging an architect, engineer, and environmental company. Crisci would arrange for these services and obtain an asbestos and lead survey. In the email, Crisci noted that Hennessy had requested "the expense of these services be included into our estimate." The same day, Coffey responded in an email copied to Watson: "I assume you'll have all three engaged and on the site as soon as possible?"
As another example, in a February 10, 2011 email to Hennessy, copied to Watson and Coffey, Crisci notified Hennessy that the environmental report was positive for lead paint and asbestos on the exterior. In the same email, Crisci wrote:
[I]t is my understanding that you are in agreement that the interior of both floors are to be gutted. While the estimates are being prepared and agreed upon, I would like to move forward with the demolition of the interior so the time frame for restoration is minimized. Also, the restaurant is scheduled to reopen in March so it would be best to complete as much of the demolition as possible.
Please advise if we have your agreement to proceed with the demolition.
The same day, Crisci sent the following email to Watson, copying Hennessy and Coffey:
Jim [Hennessy] has confirmed agreement for the demolition of the interior of both floor 2 and 3 and that demolition can start with your approval. Please confirm via email that we may move forward with this. We do understand that the agreed estimate price is pending but we can move forward with the demolition at this time.
Plaintiff removed the contents of the building in preparation for demolition. However, plaintiff's relationship with Watson became strained over time when plaintiff failed to provide an estimate of the total repair costs or the amount of costs incurred. In an email to Crisci dated February 18, 2011, Watson said Coffey told her that plaintiff wanted to begin demolition the following week. She also expressed her concerns about state and local building requirements and Scottsdale's willingness to pay for the project. Watson said she had not seen an estimate from plaintiff or the insurance company and was unaware of any discussions the architect had with the City or State regarding fire codes. She sought a meeting the following week because she needed to know whether there was enough money to complete the entire job, including contents removal and demolition.
In a March 8, 2011 email to Coffey, Watson described the configuration of rooms that she wanted for the restored second and third floors, which included "two rentable apartments" and a common laundry and utility room. Her email to Coffey concluded:
All Risk has an architect and engineer already. They need to submit plans to the city for the construction. I don't see why we need a separate architect to do what is outlined above. I think what I am asking for is a win-win: cheaper to build, safer, lower density and what I want. All Risk's architect/engineer should confirm this and get the plans ready. They wanted to wait for demolition so they have a tabla rosa [sic] to work from. I don't think they need this for what we are proposing, but then, I am not an architect.
[(Emphasis added).]
Watson approved the demolition, which began on March 29, 2011. In a lengthy email dated April 19, 2011, she told Crisci she was pleased with the demolition. However, she also expressed dissatisfaction with the delays and the use of a non-local architect with whom she had "no direct dialogue." Watson asked if they could "switch to a local architect." She added:
I don't think we need a second means of egress from the third floor and I would like to swap the location of the second floor bathroom and kitchen. I mentioned this to [plaintiff's COO], and the architect generated a new set of plans that still have notes about [the] second means of egress and leav[ing] the bathroom and kitchen where they were.
Plaintiff's COO replied by email the next day, copying Coffey and Hennessy, and explaining he had previously sought to meet with Watson to finalize the architectural portion of the job. However, he maintained Watson never replied to those requests. His email also informed Watson:
The renovation of switching bathroom and kitchen are not in the allowance (Architectural Fee) and that is why it is not addressed. This can be done as an update at any point during the permit process, and if Allrisk [sic] is retained to complete you[r] project I will do this Architectural work as a no charge for these [two] rooms.
On April 27, 2011, Watson wrote to plaintiff's COO, acknowledging his offer to meet with her and the architect, but declined because she did not want to incur any further expense before "hav[ing] a handle on [the status of] the budget process." She reiterated her displeasure with having "no idea what any aspect of this job has or will cost," other than the invoice she received for the work through the end of January. Consequently, she asked the COO for any budgetary correspondence that plaintiff had sent to Hennessy. In the email, Watson added:
I authorized All Risk to proceed with the demo work on faith before seeing the requested budget. The demo is not completed and I have not received an estimate for the work or an invoice. I would like to proceed with the cleaning and encapsulation but not before I know what this is going to cost and have assurances that the insurance company has approved the amount.She also told the COO to "submit a reasonably detailed bid" and timeline for the construction work if plaintiff wanted that job.
The same day, April 27, 2011, the COO responded that he would send the "completed" architectural and structural drawings and the invoice for that work. He also stated Crisci would generate a bill for all the services rendered up to that date and provide an estimate for the structural cleaning and encapsulation.
With respect to an estimate on the repairs, the COO said plaintiff had "provided a scope of repairs to the insurance company for their review and approval." The scope had been reviewed and approved by the carrier but, with respect to "repairs going forward," the COO told Watson: "[A]ny deviation from the restoration as submitted would need to be provided by you. Any work to be billed will be reflective of [sic] agreed price with the insurance carrier." (emphasis added).
Shortly thereafter, Watson responded, questioning plaintiff's decision to send any documents to the insurance carrier without first consulting her.
On May 16, 2011, Crisci called Hennessy to see if they could reach an agreed-upon price for the demolition. However, Watson had instructed Hennessy to cease communicating with Crisci, a directive Hennessy honored.
The next day, May 17, 2011, Crisci emailed Watson a final invoice for $60,981.82, with supporting documentation. The invoice for the completed work, including demolition, was based solely on the estimate because plaintiff was unable to negotiate a price with Hennessy. The email noted that Watson was already in possession of the estimate. In support of the documentation for the final invoice, plaintiff provided a twenty-five page list of the three hundred completed tasks including a description of each task, the total quantity of materials involved, the amount of material removed or replaced, and the total linear or square footage for each task.
In addition to demolition, the completed work included dumpster and general carting costs, $4560 for structural engineering costs, $7300 for architectural proposals, and $2329 for plumbing disconnects and line capping. To these costs, plaintiff added 10% for overhead, 10% for profit, and a 7% tax.
In an email dated July 29, 2011, Watson raised several objections to the bill. First, despite Hennessy's discussions regarding Scottsdale's ability to pay plaintiff, Hennessey had not yet agreed to pay any specific amount. Additionally, she objected to the costs associated with the structural and architectural plans she received at the end of May 2011. Watson complained the plans arrived a month after she had already told plaintiff's COO "[she] did not want to meet with the architect or incur any more expense until [they agreed on a budget]."
Watson also agreed that she had not approved the architect's preliminary plans, whose plans did not include an HVAC system, certain window replacements, and use of correct code references for the fire egress. She said she would pay the architect "for the field measurement[,] . . . drafting, and code study and meeting[.]" However, Watson contended the "schematics and mechanicals were ordered . . . and . . . prepared without [her] authorization after [she] told [plaintiff's COO] to stop everything."
In addition, Watson objected to the charge for the structural analysis because, she said:
The only structural analysis that was authorized by the insurance company was to determine whether the fire had caused structural damage. The engineer concluded that the damaged floor joists could be sistered. Insurance will pay for this and
nothing else. I have been told that the charge for this should have been around $1,000. Yet, apparently [plaintiff's COO] or someone asked the structural engineer to go ahead and perform a full structural analysis of the building, because at the end of May a UPS package appeared by the kitchen door showing crazy stuff, out of the blue, like installing a bearing wall from floor to roof bisecting the entire length of the third floor. No one asked for this, nor will these plans be used or the advice followed.Watson also objected to various items in the invoice as overcharges or taxes that she should not have to pay.
Three months later, on October 6, 2011, plaintiff sent defendants a $7,549.23 invoice for the estimating fee, which was 2% of the $377,461.90 total estimate plaintiff had prepared for defendants. Scottsdale sent defendants the following check advances on their damages claim: $50,000 on January 26, 2011; $50,000 on March 17, 2011; $50,000 on June 21, 2011; and a final check of $177,041.83 on July 22, 2011, for a total of $327,041.83. The final check withheld a deductible of $2500 and an additional "hold back" amount of $37,618.90. None of the checks included plaintiff as a payee.
Watson testified at trial she never received the October 6, 2011 invoice for the estimating fee; she said she saw it for the first time during discovery.
Watson refused to pay plaintiff's two final invoices and plaintiff commenced this action by filing a three-count complaint for breach of contract, quantum meruit, and unjust enrichment. Defendants counterclaimed for breach of contract, negligent misrepresentation, common law fraud, and consumer fraud under the Consumer Fraud Act (CFA), N.J.S.A. 56:8-1 to -195. Following discovery and considerable motion practice, the case proceeded to trial.
II.
Defendants filed three in limine motions seeking to bar plaintiff from introducing evidence of: insurance proceeds; the reasonable value of its damages; and the reasonable value of its services under a quantum meruit theory of recovery. The court denied these motions.
Watson testified when called as an adverse witness in plaintiff's case. She admitted she cashed the checks from Scottsdale but never paid plaintiff's final invoices for the estimating fee, demolition work, and architectural and engineering fees.
Although plaintiff's invoice for emergency services had been paid, Watson disputed its accuracy. She testified the only emergency services plaintiff provided were drying fans and dehumidifiers to dry out the restaurant's carpets where water from the fire hoses had leaked from the second floor into the dining room. Watson claimed the total cost of the emergency services was approximately $9000. Her testimony was consistent with plaintiff's invoice, which included $9,612.85 for emergency services. According to plaintiff's invoice, the emergency services involved the placement and monitoring of drying equipment in the restaurant.
Watson claimed never to have received the October 6, 2011 invoice of $7,549.23 for the estimating fee until discovery had commenced. She testified she did not pay the invoice because "it wasn't earned," and she did not hire plaintiff to do the repair work. She also insisted that because plaintiff had not bid on the permanent repairs, the estimate was only a draft.
In addition, Watson claimed she had not used the estimate. She also sent her copy of plaintiff's estimate to Custard at Scottsdale's request to determine if she received the same estimate.
Concerning plaintiff's invoice for the demolition work, Watson admitted she authorized plaintiff to do the work with no written contract, was satisfied with the quality of the work, and was aware plaintiff expected to be paid for that work. However, she gave somewhat inconsistent testimony concerning her refusal to pay for the demolition. She claimed other contractors completed parts of the demolition project without plaintiff, and plaintiff charged her more than Scottsdale had allocated in a line item for the total demolition costs. When questioned about whether she used the insurance money earmarked for demolition and other improvements, she replied, "I haven't received $50,000 or $60,000 yet. And . . . All Risk hasn't been paid [the money] because we've been in litigation." Yet, she also claimed to have offered plaintiff the $26,000 Mellon Restoration had allotted in its estimate for demolition. Watson further claimed the demolition invoice "was still an estimate" because it did not state how many workers or hours had been employed to do the work.
Watson acknowledged she had upgraded the second and third floor apartments by installing heating and air-conditioning and by having the kitchen moved to the second floor. She admitted, however, Scottsdale was not responsible for paying for any upgrades. She testified she received $300,000 in insurance proceeds and had spent $390,000 on renovations. Questioned why she did not pay plaintiff for the architect and engineering fees, Watson responded she had not authorized those expenditures. She admitted using the insurance money to pay the architect who provided the drawings for the reconfigured property. She also explained that had plaintiff provided her with an estimate for the architect and engineer, she never would have hired them.
With respect to her refusal to pay for the structural engineer, Watson said the insurance company had provided one at no charge. She insisted the fee for engineering services was for an unneeded structural analysis of the building, which was not covered by her insurance company. She based that conclusion on her understanding that the insurance company was not going to pay for any structural repairs, other than those necessitated by the fire damages.
Watson offered to pay plaintiff for its structural engineer's meeting with the insurance company's engineer because she knew such a meeting took place. However, she believed plaintiff, without her knowledge, sent their structural engineer back to do a complete structural analysis of the building. Nevertheless, she agreed plaintiff acted prudently by having an engineer determine whether the building was safe after the fire.
Plaintiff's witnesses contradicted Watson's testimony in several respects. Crisci, plaintiff's senior vice president, explained there are "two parts to a loss," the "emergency" and the "rebuild." Emergency services included building sanitation, removal and cleaning of contents, and demolition. Insurance carriers involved in a fire loss will assign adjusters, who negotiate with the contractor the amount the insurer will pay for damages. Insurers generally pay only what is reasonable and necessary under the policy to accomplish the repairs. According to Crisci, insurance adjusters use various computer programs to prepare estimates based on measurements and square footage, but they lack the contractors' knowledge of what is necessary "constructionwise." Crisci testified that for emergency services, plaintiff would present a bill to the carrier and accept whatever the carrier paid after negotiations. Crisci also testified he told Watson, in a telephone conversation, plaintiff would have accepted payment from the insurer under such circumstances for the cost of the demolition.
Thomas Messina, plaintiff's senior vice-president and estimator, prepared the estimate to "restore" the building "to pre-loss condition." He measured each room's dimensions while generating detailed notes, engaging subcontractors, and inputting the figures. When Messina learned plaintiff's services had been terminated, he broke out the demolition costs, but had not yet been able to negotiate that price with Scottsdale.
Messina said the "TBD" price provision in the estimating contract reflected that the basis for the 2% fee could not be determined until the insurance company decided what it would pay for the reconstruction. Plaintiff would not collect an estimating fee from its clients if it undertook reconstruction.
Plaintiff's COO testified the architect and engineer had been retained to assist plaintiff in preparing the estimate, because they could discover unforeseen issues related to building codes and construction that could be incorporated into the estimate. Older buildings often had "code issues" and structural defects and deflections. However, most insurance policies had provisions for code upgrades, which would be reflected in the estimate. In addition, the architectural and engineering plans provided clients a basis to begin construction.
The COO testified he was with Watson when the architect and engineer walked through the site to provide an estimate for their services. Before they began their work, plaintiff had forwarded those estimated charges to the insurance carrier, which had approved the costs. Contrary to Watson's testimony that she had no input into the architectural plans, the COO said he met with her on a few occasions to review and edit the plans. During those walkthroughs, he redlined the drawings and made notes on the changes that Watson wanted.
Following presentation of proofs, the court ultimately granted plaintiff's motion to dismiss defendants' CFA claim as to the estimating agreement but nonetheless decided to submit the claim to the jury. The court ruled that plaintiff could recover the fee for the estimating agreement only if the jury determined defendants used the estimation to negotiate with the insurance company. The court did not explain how Watson's decision whether to use the estimating agreement in her negotiations with her insurance company was relevant to whether defendants breached the estimating agreement by not paying it.
Although finding defendants suffered no ascertainable loss as a result of statutory and regulatory violations in the emergency services contract and oral demolition services agreement, the court denied plaintiff's motion to dismiss those claims. The court explained that defendants might be entitled to counsel fees and costs as a result of technical violations of the CFA, though it ultimately awarded no counsel fees. The court further explained that factual issues existed as to the terms of the oral demolition agreement.
The court also denied plaintiff's motion for a judgment on its claim for the architect's and engineer's fees. The court determined a jury question existed whether it was necessary to hire those professionals.
The jury determined the parties had not agreed the demolition price would be that allowed by the insurance company. The jury awarded plaintiff $46,350.74 as reasonable compensation for the demolition work. The jury also determined it was necessary for plaintiff to hire an architect and engineer to estimate the cost of repairs, but awarded only $3400 on that claim. Lastly, the jury determined defendants did not use plaintiff's permanent repairs estimate and therefore awarded nothing on that claim. The court subsequently entered judgment on the verdict. These appeals followed.
III.
A.
We first address the parties' claims concerning the applicability of the CFA. In its cross-appeal, plaintiff argues the trial court erred by finding, as a matter of law, the CFA applied to the parties' dealings. In their appeal, defendants argue the trial court twice erred in analyzing their CFA claims: first, by finding the CFA did not apply to the Emergency Services contract; second, by finding defendants proved no ascertainable loss with respect to any of the contracts.
The threshold issue — whether the CFA applies to the three contracts — presents a legal issue. We decide legal issues de novo. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995). In this case, we conclude the CFA applied to the three contracts.
The parties do not dispute the CFA encompasses the regulation of home improvement contractors through the Contractors' Registration Act (CRA), N.J.S.A. 56:8-136 to -152, and its implementing regulations contained in N.J.A.C. 13:45A-16.1 to -7.14. See Czar, Inc. v. Heath, 198 N.J. 195, 202 (2009). "Indeed, the seriousness with which the Legislature approached the perceived problems in [the home improvement] industry is reflected both in the expansive language of the statute's definitional reach and in the remedies that the statute authorizes." Ibid.
The CRA defines "Home Improvement" as:
the remodeling, altering, renovating, repairing, restoring, modernizing, moving, demolishing, or otherwise improving or modifying of the whole or any part of any residential or non-commercial property. Home improvement shall also include insulation installation, home elevation, and the conversion of existing commercial structures into residential or non-commercial property."Residential or non-commercial property" is defined as "any single or multi-unit structure used in whole or in part as a place of residence, and all structures appurtenant thereto, and any portion of the lot or site on which the structure is situated which is devoted to the residential use of the structure." Ibid. The definition of residential or non- commercial property differs somewhat in the CRA regulations, which define a residential or non-commercial property as
[N.J.S.A. 56:8-137.]
a structure used, in whole or in substantial part, as a home or place of residence by any natural person, whether or not it is part of a multi-unit structure, and including that part of the lot or site on which it is situated and which is devoted to the residential use of the structure.
[N. J.A.C. 13:45A-16.1A (emphasis added).]
Here, the fire-damaged building included a commercial use on the ground floor and residences on the second and third floors. In Marascio v. Campanella, 298 N.J. Super. 491 (App. Div. 1997), we held that a contract to renovate a three-story building, with an office on the first floor and apartments on the second and third floors, was subject to the CFA. Specifically, we held "a commercially owned, unoccupied, part residential, part commercial property qualifies as a residential, non-commercial property for purposes of the [CFA] and its regulations." Id. at 498. Marascio is controlling here.
Plaintiff argues the trial court erred by finding as a matter of law the CFA applied to the parties' dealings. Plaintiff contends the applicability of the CFA presented a factual issue the jury should have resolved. Plaintiff bases its argument on, among others, these factors: the building was owned by a limited liability company; the building was insured under a commercial insurance policy; the mercantile license listed the property as a boarding house; plaintiff's contracts were entered into with business entities, namely, a limited liability company and a corporation; and the emergency services contract was designated an agreement for commercial emergency and/or repair estimating services.
In Marascio, supra, 298 N.J. Super. at 499, we explained that a corporation's ownership of the subject property for investment purposes was not a determinative factor as to whether the CFA applied to a renovation contract, as the CFA protects corporate as well as private consumers. Thus, in this case, the ownership of the building and business by a limited liability company and corporation is of no consequence. Additionally, the building's coverage under a commercial policy is relatively meaningless under the CFA because underwriting requirements for insurance on the building likely had little or no relationship to either the CFA's broad policy underpinnings or the statutory and regulatory definitions of non-commercial property. Plaintiff has offered no evidence defendants' use of the property was inconsistent with its mercantile license. And merely titling a contract as commercial is, as a matter of policy, insufficient to enable a home improvement contractor to avoid the CFA's requirements. Rather, as a matter of public policy, such form is relegated to substance.
Equally unavailing are both plaintiff's arguments that defendants are estopped from asserting the CFA and that the work plaintiff performed did not constitute a "home improvement." Defendants did nothing to induce plaintiff to enter into the contracts in violation of the CFA, and the work plaintiff performed included "repairing, restoring, . . . moving, [and] demolishing." N.J.S.A. 56:8-137.
Plaintiffs also assert the estimating agreement did not fall within the CFA's definition of "home improvement." That may be so in the case of one who does nothing more than prepare such an estimate. Such is not the case here. In contrast, plaintiff incorporated the estimating agreement into the emergency services contract and prepared a separate estimating agreement as part of its undertaking to provide emergency and demolition services and obtain a funding commitment for restoration. Moreover, plaintiff's representation the estimating fee would be waived if defendants authorized plaintiff to restore the building was nothing less than an additional inducement to help plaintiff procure a contract for the building's restoration. Under these narrow circumstances, we conclude the estimating agreement fell within the CFA's broad scope. --------
B.
Although we have concluded the CFA applied to the three contracts, we further conclude the trial court correctly determined defendants were unable to establish they had suffered an ascertainable loss caused by plaintiff's CFA violations in the emergency service contract and oral demolition agreement.
The CFA's remedial provision requires a plaintiff to prove more than a CFA violation to recover damages; a plaintiff must prove the CFA violation resulted in an ascertainable loss:
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 this act or the act hereby amended and supplemented 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.Thus, there are three elements that must be satisfied for a plaintiff to prevail on a CFA claim: "1) unlawful conduct by a defendant; 2) an ascertainable loss by plaintiff; and 3) a causal relationship between the unlawful conduct and the ascertainable loss." Zaman v. Felton, 219 N.J. 199, 222 (2014) (quoting Bosland v. Warnock Dodge, Inc., 197 N.J. 543, 557 (2009)). An unconscionable commercial practice that has caused the plaintiff to lose money or other property satisfies the requirement to establish an "ascertainable loss" and may also provide the measure of damages. D'Agostino v. Maldonado, 216 N.J. 168, 192-93 (2013). An improperly incurred debt or lien may constitute an ascertainable loss. Cox v. Sears Roebuck & Co., 138 N.J. 2, 23 (1994).
[N. J.S.A. 56:8-19.]
It is now settled that "[a] trial court's grant of a defendant's summary judgment motion 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." Perez v. Prof'lly Green, LLC, 215 N.J. 388, 408 (2013). The Court in Perez made clear that "[u]nder 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." Ibid. (citations omitted). Here, viewed in the light most favorable to defendants, the evidence would not permit a rational factfinder to conclude defendants sustained an ascertainable loss as to the emergency services contract and demolition agreement.
Defendants claim the emergency services contract violated the CFA by omitting a date of completion and an hourly rate for labor, N.J.A.C. 13:45A-16.2(a)(12)(iii) and (iv), and by failing to attach an insurance certificate to the contract, N.J.S.A. 56:8-151(a)(2). Defendants have failed, however, to show any causal relationship between these violations and any ascertainable loss of money or property. In fact, they showed no ascertainable loss or damages at all related to the services provided pursuant to the emergency services contract.
Defendants contend they showed both an out-of-pocket loss and an improper debt. They assert the inclusion of the non-emergency services work in the initial invoice constituted an "overpayment" that was "caused by" the absence in the emergency services contract of pricing information or an hourly wage, and by the absence of a written contract for the non-emergency services work, which was part of the demolition. They do not say, however, how the lack of an hourly rate or a written contract "caused" the inclusion of non-emergency services, which were clearly marked as such in the attached billing detail. Nothing in the CFA precluded plaintiff from including services rendered under different contracts on the same invoice, particularly when the types of service invoiced were clearly identified.
Defendants also characterize as "overcharges" the billing for contents removal, storage containers and a port-a-potty, but the only basis for their claim is Watson's unsupported allegation in her testimony that she was billed too much for the port-a-potty and containers.
In short, defendants are unable to point to any losses sustained as the result of plaintiff's technical violations of the CFA in its execution of the emergency services contract. The trial court did not err by so finding.
We reach a similar conclusion with respect to the oral contract for demolition services. The contract violated the CFA because it was neither written nor signed by all parties. N.J.S.A. 56:8-151. The oral contract also suffered from the same deficiencies as the written contracts.
Defendants argue they suffered an ascertainable loss because plaintiff "substantially overcharged" them for demolition services. This allegation relies solely on defendants' comparison of plaintiff's twenty-five page bill, which contains 300 line items and a total cost of $54,127.80 for demolition services, with a single summary item in the Mellon Restoration estimate that shows an estimated cost of $28,044.18 for "GENERAL DEMOLITION." The other independent estimate that the insurer obtained from Custard contained a summary item, also designated as "GENERAL DEMOLITION," that showed an estimated cost of $29,079.75.
Defendants also contend plaintiff's demolition invoice total, which according to defendants "was supposed to have been an 'agreed-upon' (final) estimate," was nearly $20,000 more than plaintiff's own initial estimate. These assertions, however, provide no support for defendants' claim that they suffered an ascertainable loss as a result of the oral demolition contract. First, it is not possible to determine which of the hundreds of line items in the Mellon Restoration or Custard estimates are included in their estimates' "general demolition" summary item, or whether that item in the Mellon Restoration and Custard estimates covered services as comprehensive as the demolition services plaintiff actually provided. Second, unlike plaintiff's invoice total, the general demolition summary item in the Mellon and Custard estimates does not include overhead or profit. Third, defendants ignore the fact that it was Watson who prevented plaintiff from reaching an agreed upon final amount with Hennessy when she refused to allow him any continued contact with plaintiff's representatives. Plaintiff was compelled to issue its invoice for work it had already completed with no knowledge of what the insurer would approve.
Lastly, we address the estimating agreement. We are constrained to remand for retrial the issues concerning that agreement. The trial court ultimately determined the estimating contract was not subject to the CFA. With barely any explanation, the court submitted this question to the jury: "Did Defendant use Plaintiff's estimate of repairs to the pre-fire state to negotiate with the insurance company?" We fail to discern why this was a relevant inquiry. Moreover, the evidence was undisputed that Watson used the estimate, though whether she did so to negotiate with the insurance company was a debatable issue.
In any event, the trial court did not submit to the jury the conflicting issues under the CFA as to this issue. Accordingly, we remand this issue for trial. Plaintiff may present proofs on its quantum meruit claim as to the estimating agreement. Defendants may present proofs as to how, if at all, the estimating agreement's technical violation's caused them to suffer an ascertainable loss, and in what amount. Our opinion should not be construed as prohibiting pre-trial motion practice to either narrow or dispose of these issues.
C.
Defendants next contend the trial court erred in allowing plaintiff to pursue its claims under a quantum meruit theory. We disagree.
Quantum meruit is a common law remedy that sets forth the conditions under which a party may recover damages for benefits bestowed to another in an unenforceable contract. Starkey, Kelly, Blaney & White v. Estate of Nicolaysen, 172 N.J. 60, 67-68 (2002). As a form of quasi-contractual recovery rooted in equitable principles, it may be available to a party whose performance of services has conferred a contractual-type benefit on another who would be unjustly enriched if no recovery were allowed. Id. at 68; Schepisi & McLaughlin, P.A. v. Lofaro, 430 N.J. Super. 347, 360 (App. Div.), certif. denied, 215 N.J. 486 (2013). To recover money under a theory of quantum meruit for services rendered, a plaintiff must establish: (1) its performance of services in good faith, (2) the acceptance of the services by the person to whom they were rendered, (3) that plaintiff expected compensation, and (4) the reasonable value of the services. Starkey, supra, 172 N.J. at 68.
In Marascio, supra, 298 N.J. Super. at 503, the court noted a plaintiff who had sought recovery under an unenforceable oral contract that violated the CFA "[was] limited to quantum meruit." Such was the case with plaintiff here. We find no error in the trial court's permitting plaintiff to seek recovery under quantum meruit.
IV.
We have carefully considered defendants' remaining claims on their appeal, as well as plaintiff's remaining claims on its cross-appeal, and found all remaining claims to be without sufficient merit to warrant further discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION