ROBERT HENRY, JR., et al. v. SOMERTIME POOL & SPA SERVICE, INC.

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
 
 
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1179-05T2

ROBERT HENRY, JR. and
LINDA HENRY, husband and
wife,

Plaintiffs-Appellants,

v.

SOMERTIME POOL & SPA
SERVICE, INC.,

Defendant- Respondent.

________________________________________________________________

Text Box
 
July 27, 2006

Submitted July 5, 2006 Decided

Before Judges Lefelt and Axelrad.

On appeal from the Superior Court of
New Jersey, Law Division, Cumberland
County, Docket No. CUM-L-986-03.

Jacob & Chiarello, attorneys for
appellants (Joseph M. Chiarello,
of counsel and on the brief).

James R. Swift, attorney for
respondent.

PER CURIAM

Plaintiffs, Robert Henry and Linda Henry, sued defendant, Somertime Pool & Spa Service, Inc., for consumer fraud. Plaintiffs asserted that defendant failed to build plaintiffs an in-ground pool suitable for diving and concealed the pool's unsuitability long after full payment was received. A jury found consumer fraud and returned a verdict in favor of plaintiffs for $1,500, which the trial court trebled under the Consumer Fraud Act, N.J.S.A. 56:8-1 to -20. N.J.S.A. 56:8-19. In post-trial motions, Judge Michael Brooke Fisher awarded plaintiffs' counsel an attorney's fee of $7,009.50 and denied plaintiffs' application, pursuant to N.J.S.A. 56:8-2.11, for a refund of the $18,224 swimming pool purchase price. Plaintiffs appeal, challenging the amount of damages and attorney fee award. We affirm.
After plaintiffs began their consumer fraud suit, defendant, with plaintiffs' consent, repaired the pool in question, at its cost, rendering the pool suitable for diving and fully compliant with all applicable building codes. Prior to this repair, plaintiffs did not contend that the pool was completely unusable. Throughout the litigation and in this appeal, plaintiffs nevertheless persisted in their belief that the ascertainable loss suffered was the full price of the pool.
Plaintiffs contend "the jury should have been free to assess damages as they saw fit to compensate plaintiff for their ascertainable loss." Plaintiffs further argue that they were entitled, under N.J.S.A. 56:8-2.11, to a refund of the full pool purchase price. Finally, plaintiffs also contend that the trial judge erred in essentially restricting the attorney fee award to legal work done up until the pool was reconstructed. Plaintiffs argue that, because the jury found consumer fraud, the judge should have awarded a counsel fee of approximately $20,000, which was the fee actually billed by plaintiffs' attorneys in this matter.
We address each of plaintiffs' contentions in turn and begin by stating that "ascertainable loss" has been defined as including more than monetary loss and encompasses situations where the consumer receives less than what had been promised. Union Ink Co., Inc. v. AT&T Corp., 352 N.J. Super. 617, 646 (App. Div.), certif. denied, 174 N.J. 547 (2002). The Supreme Court in Gennari v. Weichert Co. Realtors, 148 N.J. 582, 612-13 (1997), however, construed consumer fraud "damages" that must be trebled as limited to "ascertainable loss." N.J.S.A. 56:8-19.
Here, defendant has not appealed and is not challenging the trial judge's instruction that the jury could award damages "equal to the loss of the use of the enjoyment of the pool, due to it being out of code for diving from the time it was constructed in May 2002 until the day it was corrected in September 2004." In addition, plaintiffs apparently concede that the jury award for this loss was acceptable. Therefore, this part of the judgment need not be reviewed in this appeal.
Instead, plaintiffs contend "that the jury should [have been] free to craft a damage award as they [saw] fit once they [had] found that an act of Consumer Fraud [had] occurred." In effect, therefore, plaintiffs challenge the judge's instruction that "[t]he jury is not to award damages for any other claimed deficiency alleged by the plaintiff."
We agree with the judge's restriction on damages. By the time of trial, plaintiffs had received all they had bargained for at the cost they had agreed to pay. At trial, plaintiffs failed to establish that the reconstructed pool had any less value than the pool would have had if it were initially constructed as required by the contract. The only conceivable damages, at the time of trial, related to plaintiffs' inability to dive in the pool from the date the pool was constructed until the date this defect was repaired.
We need not determine definitively whether Judge Fisher correctly concluded that N.J.S.A. 56:8-2.11 relates solely to the misrepresentation of identity of food because we believe that even if the section pertains, it should not be applied in this case. The section at issue appears to have been originally enacted as 3 of L. 1979, c. 347. The section provides for "a refund of all moneys acquired by means of any practice declared herein to be unlawful," and was intended to supplement the 1960 Consumer Fraud Act. Ibid. See N.J.S.A. 56:8-2.9 to -2.13.
By 1979 when this supplemental act was passed, the Legislature had already, as of 1971, amended the Consumer Fraud Act to authorize "private causes of action, with an award of treble damages, attorneys' fees and costs." Cox v. Sears Roebuck & Co., 138 N.J. 2, 15 (1994) (citing Governor's Press Release for Assembly Bill No. 2402, at 1 (Apr. 19, 1971)). If the supplemental act was intended to apply to consumer fraud proceedings generally, as argued by plaintiffs in this case, it would not have been necessary for the Legislature to provide specifically for a private action to collect the refund. N.J.S.A. 56:8-2.12, nevertheless, provides that the refund "may be recovered in a private action or by such persons authorized to initiate actions pursuant to P.L. 1975, c. 376 (C. 40:23-6.47 et seq.)," the law establishing offices of consumer affairs. See 49 Prospect St. Tenants Assoc. v. Sheva Gardens, Inc., 227 N.J. Super. 449, 478 (App. Div. 1988) (recognizing that the supplemental act dealt "with eating establishments"); but see Artistic Lawn & Landscape Co., Inc. v. Smith, 381 N.J. Super. 75, 88-89 (Law Div. 2005)(applying N.J.S.A. 56:8-2.11 to sprinkler installation contract), and In re Fleet, 95 BR 319, 337 (Bankr. E.D. Pa. 1989) (applying N.J.S.A. 56:8-2.11 to contract for consumer financial help services).
In any event, the provision in question requires a refund only of moneys acquired "by means of any [unlawful consumer fraud]." N.J.S.A. 56:8-2.11. The fraud in this case related to building a pool that was unsuitable for diving and to concealing this defect from plaintiffs. Defendant corrected the diving defect at its own cost without any additional expense to plaintiffs. The jury awarded plaintiffs the sum it believed fully compensated for the loss. Under these circumstances, even assuming that N.J.S.A. 56:8-2.11 applies, it would constitute an unnecessary windfall to plaintiffs for defendant to refund the full contract price of the pool.
Finally, it is true that a defendant who commits consumer fraud must pay the defrauded plaintiff "reasonable attorneys' fees, filing fees and reasonable costs of suit." N.J.S.A. 56:8-19. But a court may award only those attorneys' fees that are reasonable. Furst v. Einstein Moomjy, Inc., 182 N.J. 1, 22 (2004).
In this case, Judge Fisher correctly pointed out that once plaintiffs' suit convinced defendant to repair the pool, the case's monetary value significantly declined. Thereafter, according to the judge, the plaintiffs unsuccessfully pursued "treble damages for the full value of the pool, plus a last minute argument for the refund." Accordingly, the judge awarded plaintiffs the attorney fees expended "for every bit of work performed by [plaintiffs'] law firm" up until the pool was repaired. Thereafter, because plaintiffs' law firm pursued "bad legal theories," the court awarded "a nominal additional sum of $500 for that time expended." Within the context of this case, we cannot fault the reasonableness of Judge Fisher's limitation of attorneys' fees.
Affirmed.

Text Box
 
 


A-