Opinion
DOCKET NO. A-0543-12T3
07-09-2014
CYNTHIA LIZZIE, HAMDY SLIMAN, and MARTIN GREENBLATT, Plaintiffs-Appellants, v. APEX ENGINEERING CO. and LEONARD GOLDBLATT, Defendants-Respondents.
Cynthia Lizzie, Hamdy Sliman, and Martin Greenblatt, appellants pro se. Law Offices of Joseph Carolan, attorneys for respondents (Renard Barnes and George H. Sly, Jr., on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Lihotz and Maven.
On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Docket No. L-1380-11.
Cynthia Lizzie, Hamdy Sliman, and Martin Greenblatt, appellants pro se.
Law Offices of Joseph Carolan, attorneys for respondents (Renard Barnes and George H. Sly, Jr., on the brief). PER CURIAM
Plaintiffs Cynthia Lizzie, Hamdy Sliman, and Martin Greenblatt appeal from the July 31, 2012 order dismissing their complaint, which alleged breach of contract, unjust enrichment, and a violation of the Consumer Fraud Act (CFA), N.J.S.A. 56:8-1 to -20, against defendants Leonard Goldblatt and Apex Engineering Co. (defendant). Plaintiff hired defendant to provide engineering services in aid of their separate action for damages against their property. The motion judge concluded plaintiffs failed to state an actionable claim. Following our review, we conclude that in light of our order in the underlying case reinstating the complaint and permitting the expert to testify and present the engineering report, this appeal is dismissed as moot.
Because Leonard Goldblatt, PE owns Apex Engineering Co. we will refer to defendants in the singular.
We begin by providing as additional background, the circumstances causing plaintiffs to employ defendant. Plaintiffs Lizzie and Sliman filed a complaint against Fletcher Creamer, Inc., the City of Plainfield, and others, alleging damage to their real and personal property caused by the negligent or defective construction work in the public street abutting plaintiffs' property. Lizzie v. Creamer (Lizzie I), No. A-0478-11 (App. Div. April 18, 2013) (slip op. at 2). Plaintiffs retained Leonard Goldblatt, P.E., and Apex Engineering Company as their expert to prepare an engineering report.
Plaintiff alleged Fletcher Creamer had been hired by New Jersey American Water to repair a buried water main in Plainfield, and while undertaking that work, it had installed a temporary water bypass line along the curb, in front of the premises in order to provide water to the plaintiffs' premises while the main was repaired. Lizzie I, supra, slip op. at 4.
On the first day of trial, the court addressed defendant's in limine motion to bar plaintiffs' expert report because it was a net opinion. The court granted the motion and thereafter dismissed the case with prejudice, concluding that in the absence of an expert report the case could not go forward. Lizzie I, supra, slip op. at 5 n.3. Plaintiffs filed an appeal of the dismissal.
During the pendency of that appeal, plaintiffs pursued the instant action against defendant (Lizzie II). Defendant answered the complaint, denied the allegations, and argued plaintiffs' claims required support by an Affidavit of Merit (AOM) pursuant to N.J.S.A. 2A:53A-26 to -29. Plaintiff filed a letter in lieu of a formal AOM, within time, stating, in part:
Plaintiff's [sic] hired defendant[] to prepare a valid opinion document for use in a trial against Fletcher Creamer Inc. for damages incurred by their negligence. Prior to trial, the [c]ourt viewed the above named defendants [sic] document and deemed it [f]aulty pursuant to the [N.J.R.E.] 703, and dismissed that case. Plaintiff's [sic] have suffered further damages by the fraud perpetrated upon them [b]y the above named defendants as they have enriched themselves with the money paid them by plaintiffs.
The judge held a Ferreira conference to address plaintiffs' compliance with the AOM requirements. Plaintiff refused the judge's offer of a sixty-day extension to file an adequate AOM, insisting they had already complied with the AOM statute. The judge then instructed defendant to file a "formal motion to ascertain the adequacy of the [AOM] at issue." On May 11, 2012, the judge denied defendant's motion for summary judgment finding that the preparation of an expert report is "separate and apart from performing engineering services." The judge ruled the expert report fell outside the purview of the AOM statute, rendering an AOM unnecessary.
See Ferreira v. Rancocas Orthopedic Assocs., 178 N.J. 144, 154 (2003).
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On reconsideration, the judge denied defendant's motion with respect to the necessity of an AOM, but granted the motion to dismiss the complaint. The judge ruled "[a] defendant cannot be held liable because his report is deemed inadmissible by a judge. It is not something that can be a claim under the [CFA]." The decision was memorialized in a written order on July 31, 2012, dismissing the complaint, with prejudice, in its entirety.
On April 18, 2013, we rendered our decision in the appeal of Lizzie I. We determined "the procedures employed by [the] defendants [raising an unexpected motion for summary judgment on the morning of trial, based on the inadequacy of plaintiffs' expert report,] not only violated court rule, but unfairly deprived plaintiffs of the opportunity to more thoughtfully respond to [the defendants'] motions in limine." Lizzie I, supra, slip op. at 13. We found the "trial judge mistakenly adopted a procedure that denied plaintiffs the full and fair opportunity to present their case," and we reversed both the dismissal of plaintiffs' complaint and the exclusion of testimony from their liability expert, and remanded for the reinstatement of the complaint and further proceedings, including the allowance of expert testimony by Leonard Goldblatt. Id. at 13-14.
In the instant appeal regarding Lizzie II, plaintiffs argue the court erred in dismissing the complaint with respect to the CFA claim. Plaintiffs further contend the judge failed to recognize the sufficiency of the two other causes of action raised in the complaint, namely the breach of contract and unjust enrichment claims. Defendant argues there is no merit to plaintiff's statutory and common law claims for a number of reasons, noting the opinion reversing Lizzie I removes any cause of action by plaintiffs. We agree with defendant.
The CFA, breach of contract and unjust enrichment claims, as alleged, were grounded on the trial court decision in Lizzie I excluding defendant's expert report as a net opinion and precluding defendant from testifying at that trial. Given our remand in Lizzie I reinstating the complaint and permitting the expert to testify, all of the claims should be dismissed as moot.
Dismissal of an appeal is fully consonant with the long standing principle that courts do not attempt to resolve legal issues in the abstract. Lockley v. Turner, 344 N.J. Super. 1, 31 (App. Div. 2001). We will occasionally decide matters where the issue is of substantial importance. See, e.g., Mistrick v. Div. of Med. Assistance & Health Servs., 154 N.J. 158, 165 (1998). We need not do so here as the issue in this case, is not "of significant public importance." Ibid.
By our remand in Lizzie I, plaintiffs were given the opportunity to fully present their case, including defendant's testimony on liability and damages, which we specifically ordered to occur. As for the breach of contract and unjust enrichment claims, plaintiffs' claim of damages relied on the dismissal entered in Lizzie I. Our remand altered that result, making the claims raised here moot. Therefore, the appeal as to these claims is dismissed, without prejudice.
We turn now to plaintiffs' consumer fraud claim. The motion judge dismissed the complaint concluding plaintiffs' claims were not cognizable under the CFA. We agree the claim should be dismissed, but for different reasons.
The CFA provides in pertinent part:
The act, use or employment by any person of any unconscionable commercial practice, deception, fraud, false pretense, false promise, misrepresentation, or the knowing concealment, suppression, or omission of any material fact with intent that others rely upon such concealment, suppression or omission, in connection with the sale or advertisement of any merchandise or real estate . . . is declared to be an unlawful practice . . . .
[N.J.S.A. 56:8-2.]
The CFA requires that a plaintiff prove three elements: (1) unlawful conduct by the defendant, (2) an ascertainable loss by the plaintiff, and (3) a causal relationship between the unlawful conduct and the ascertainable loss. D'Agostino v. Maldonado, 216 N.J. 168, 184 (2013). Each element "of the prima facie case is found within the plain language of the statute itself; each is, without any question, a prerequisite to suit." Bosland v. Warnock Dodge, Inc., 197 N.J. 543, 557 (2009).
N.J.S.A. 56:8-19 provides that "[a]ny 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." Our Supreme Court has defined an "ascertainable loss," within the meaning of the CFA, to mean one that "is quantifiable or measurable" and that "[a]n 'estimate of damages, calculated within a reasonable degree of certainty' will suffice to demonstrate an ascertainable loss." Thiedemann v. Mercedes-Benz USA, LLC, 183 N.J. 234, 248-49 (2005) (internal citations and quotation marks omitted.)
Here, the CFA claim, like the contract claims, relied on the initial order dismissing Goldblatt's report as a net opinion. Plaintiffs alleged in their complaint defendant committed fraud by making misleading representations that the engineer's report would assist plaintiffs in their suit against Fletcher Creamer, and claim damages of $100,000. The reversal and remand for trial of Lizzie I moots the CFA claim as framed, because plaintiffs are permitted on remand to present the report and expert. The appeal as to this claim is also dismissed, without prejudice.
We are entitled to affirm orders or judgments for reasons other than those expressed by a trial court. See Isko v. Planning Bd. of Livingston, 51 N.J. 162, 175 (1968); Voellinger v. Dow, 420 N.J. Super. 480, 483 (App. Div.), certif. denied 208 N.J. 599 (2011).
Dismissed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPEALATE DIVISION