WAYNE BARFIELD v. WANDA MANLEY

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NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2264-04T52264-04T5

WAYNE BARFIELD,

Plaintiff-Respondent,

v.

WANDA MANLEY,

Defendant-Appellant.

_________________________________________________________


Submitted October 18, 2005 - Decided February 3, 2006

Before Judges R. B. Coleman and Seltzer.

On appeal from the Superior Court of New Jersey, Law Division, Special Civil Part, Burlington County, DC-9124-04.

Wanda Manley, appellant pro se.

Wayne Barfield, respondent pro se.

PER CURIAM

Defendant, Wanda Manley, appeals from an order entered in Special Civil Part, Burlington County, awarding damages to plaintiff, Wayne Barfield, a contractor. We reverse.

Plaintiff is the sole proprietor of T.N.T. Home Improvement. He was hired by defendant to enclose an existing open porch attached to her residence, to install four windows, a new door, sheetrock insulation and plywood and to paint. No written contract between the parties was ever executed. Plaintiff alleges that he presented defendant with a proposed contract on various occasions, but defendant would not sign it; nor would she give plaintiff the $100 deposit required by his proposed contract before work was to commence. Plaintiff, nevertheless, began the work because, he alleges, defendant continued to reassure him that she had the money and would review the contract.

Defendant testified that she altered the proposal given to her by plaintiff and prepared a new one because she wanted her specific requests noted. Her version of the agreement likewise was never signed by the parties.

According to plaintiff, his proposed contract contemplated that the homeowner would pay $3,900, which included a $100 deposit and $900 designated for the purchase of a door. That price also included replacement windows and the labor involved to install them. Defendant decided to purchase the door herself and she chose to have more labor-intensive new construction windows installed instead of replacement windows. Thus, plaintiff adjusted the contract price. He testified he deducted $900 from the original contract relating to the door, but since that sum included a charge for labor, he added the cost of his labor back into the contract balance. In addition, he added the cost of special materials he needed to install the new construction windows chosen by defendant. Taking into account the initial deductions and the stated additions, plaintiff asserted the amount due for the home improvement project totaled $4,123.

Without a signed contract and without having received a deposit, plaintiff completed the work on the project within several weeks after all applicable permits and authorizations had been issued. During that period, plaintiff testified he repeatedly asked defendant whether his work was satisfactory and whether she had any concerns regarding the progress. According to plaintiff, defendant always expressed satisfaction.

Defendant claims, to the contrary, that throughout the project, she voiced her dissatisfaction with the job. Defendant testified she notified plaintiff of her concern about water leakage and damage, as well as her concern about the paint and cracks in the walls. In addition, defendant recalled an incident that allegedly occurred in September 2004, when plaintiff showed up at her home and roughly pulled out the inner framework where the door latch is supposed to connect to the frame of the door. Defendant contends that as a result of that act, plaintiff caused damage and the entire door must now be replaced. Plaintiff denied this incident in its entirety.

Regarding the seepage of water onto the porch, plaintiff maintains he advised defendant at the outset that the porch was constructed on a concrete pad that was level with the ground and that if the dirt was not graded away from the structure, water seepage onto the porch was likely. According to plaintiff, defendant told him that she would have a landscaper grade the area.

After plaintiff completed his work, he demanded payment from defendant. Defendant refused. She disputed the price and indicated she was not pleased with plaintiff's work. Plaintiff filed a complaint in the Special Civil Part in Burlington County, alleging defendant owed him $4,123 for the home improvements he had completed pursuant to the parties' oral agreement. Defendant defended and apparently counterclaimed, alleging that plaintiff misrepresented the price for his services as $3,000 and that he failed to take adequate steps to guard against future water damage to the enclosed porch. At trial, counsel for defendant raised in his closing argument that plaintiff had violated the New Jersey Home Improvement Act, an apparent reference to the home improvement practices regulations, N.J.A.C. 13:45A-16.1 and -16.2, promulgated pursuant to authority conferred upon the Attorney General by the Consumer Fraud Act (CFA). N.J.S.A. 56:8-1 et seq.

The applicable law may be summarized as follows: "Unlawful practices fall into three general categories: affirmative acts, knowing omissions, and regulation violations." Cox v. Sears Roebuck & Co., 138 N.J. 2, 17 (1994). "The parties subject to the regulation are assumed to be familiar with them, so that any violation of the regulations, regardless of intent or moral culpability, constitutes a violation of the Act." Id. at 18-19. "A private plaintiff victimized by any unlawful practice under the Act is entitled to 'threefold the damages sustained' by way of 'any ascertainable loss of moneys or property, real or personal ***.'" Id. at 21. N.J.S.A. 56:8-19. However, treble damages are not awarded unless the private plaintiff can show that he or she suffered an ascertainable loss as a result of the unlawful conduct. Weinberg v. Sprint Corp., 173 N.J. 233, 250-51 (2002); Cox, supra, 138 N.J. at 21; Meshinsky v. Nichols Yacht Sales, Inc., 110 N.J. 464, 473 (1988); Branigan v. Level on the Level, 326 N.J. Super. 24, 30 (App. Div. 1999); Josantos Constr. v. Bohrer, 326 N.J. Super. 42, 47 (App. Div. 1999). There must be a causal connection between any alleged construction defect and any ascertainable loss alleged under the Act.

Here, the trial court found that the contractor's "paperwork, probably does not meet the standards of the Act." Actually, a violation of regulations promulgated under the CFA is obvious. For example, among the unlawful practices listed in N.J.A.C. 13:45A-16.2 are the following:

(a) Without limiting any other practices which may be unlawful under the Consumer Fraud Act, N.J.S.A. 56:8-1 et seq., utilization by a seller of the following acts and practices involving the sale, attempted sale, advertisement or performance of home improvements shall be unlawful hereunder:

. . . .

12. Home improvement contract requirements writing requirement: All home improvement contracts for a purchase price in excess of $500.00, and all changes in the terms and conditions thereof shall be in writing. Home improvement contracts which are required by the subsection to be in writing, and all changes in the terms and conditions thereof, shall be signed by all parties thereto, and shall clearly and accurately set forth in legible form and in understandable language all terms and conditions of the contract, including, but not limited to, the following:

i. The legal name and business address of the seller, including the legal name and business address of the sales representative or agent who solicited or negotiated the contract for the seller;

ii. A description of the work to be done and the principal products and materials to be used or installed in performance of the contract. . . . Where specific representations are made that certain types of products or materials will be used, or the buyer has specified that certain types of products are to be used, a description of such products or materials shall be clearly set forth in the contract;

iii. The total price or other consideration to be paid by the buyer, including all finance charges. If the contract is one for time and materials, the hourly rate for labor and all other terms and conditions of the contract affecting price shall be clearly stated;

iv. The dates or time period on or within which the work is to begin and be completed by the seller;

v. A description of any mortgage or security interest to be taken in connection with the financing or sale of the home improvement; and

vi. A statement of any guarantee or warranty with respect to any products, materials, labor or services made by the seller.

We have previously recognized that "[t]he Act's focus is to compel those who sell consumer goods and services to the public to develop practices that will minimize consumer fraud. Foremost among such practices is the requirement of written agreements." Marascio v. Companella, 298 N.J. Super. 491, 501 (App. Div. 1997).

Still, there must be a causal connection between any alleged construction defect and any ascertainable loss alleged under the Act. Josantos Constr., supra, 326 N.J. Super. at 47. The judge concluded in this case that the homeowner had failed to provide any expert testimony to establish the validity of her claim that the job had not been completed in a workman-like fashion.

"Findings of fact by a trial judge 'are considered binding on appeal when supported by adequate, substantial and credible evidence.'" Sager v. O.A. Peterson Constr. Co., 182 N.J. 156, 164 (2004) (quoting Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)). But, "[a] trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Manalapan Realty v. Twp. Committee, 140 N.J. 366, 378 (1995) (citations omitted). "[W]here the focus of the dispute is not on credibility but, rather, alleged error in the [fact finder's] evaluation of the underlying fact and the implications to be drawn therefrom, our function broadens somewhat." Alderiso v. Med. Ctr., 167 N.J. 191, 198-99 (2001) (alterations in original) (quoting Manzo v. Amalgamated Indus. Union Local 76B, 241 N.J. Super. 604, 609 (App. Div.), certif. denied, 122 N.J. 372 (1990)). "Moreover, an appellate court is always free 'to resolve purely legal questions[.]'" Alderiso, supra, 167 N.J. at 199 (alterations in original) (quoting Greenwood v. State Police Training Ctr., 127 N.J. 500, 513 (1992)).

In the present matter, the court did not expressly address the implications of plaintiff's violation of the regulations promulgated under the CFA that require a written contract. See N.J.A.C. 13:45A-16.2(a)12. He ruled plaintiff was limited to quantum meruit because there was no meeting of the minds:

And this was really the problem with both parties that neither of them had really come to a meeting of the minds. That this work shouldn't have proceeded. Either the plaintiff shouldn't have commenced work without a written contract, and certainly, the defendant, once she made a counter offer, that was a contract - attempted contract, she shouldn't have let him proceed without her counter offer being signed if it was important to her.

Plainly, the onus to comply with the law is upon the contractor. Cox, supra, 138 N.J. at 18-19. Nonetheless, the judge found that "there's nothing in the record to suggest that defendant didn't want [the work] to proceed" and he concluded "to suggest that plaintiff . . . should go uncompensated would be highly unfair[,]". On balance, the court awarded damages to plaintiff for the work he performed.

Such damage award was not based upon the existence of a contract, but rather it was based on a quasi-contractual theory of "quantum meruit." Quantum meruit is measured by the reasonable value of the services actually rendered. Weichert Co. Realtors v. Ryan, 128 N.J. 427, 438 (1992); Shapiro v. Solomon, 42 N.J. Super. 377, 383 (1956); Rabinowitz v. Massachusetts Bonding & Ins. Co., 119 N.J.L. 552, 556 (E. & A. 1938).

The trial court concluded that the reasonable value of plaintiff's services in the construction or renovation of the enclosed porch at defendant's premises was $4,123. Against that sum, the court set off $500, representing the cost of modifications to the siding not properly installed around the windows. Hence, the total net award to the contractor was $3,623.

We note that even if there had been a meeting of the minds, an oral contract would not have been enforceable because the CFA required that the agreement be in writing and signed by the homeowner. In an opinion written by Judge Petrella for this court in Marascio, supra, 298 N.J. Super. at 503, we held that where the Consumer Fraud Act and the regulations thereunder render an oral contract unenforceable, the person committing the unlawful practice as defined by the Act or by the regulations is limited to quantum meruit. "Courts generally allow recovery in quasi-contract when one party has conferred a benefit on another, and the circumstances are such that to deny recovery would be unjust." Weichert Co. Realtors, supra, 128 N.J. at 437.

In any event, the trial court properly determined that plaintiff is limited to the reasonable value of services rendered. He is precluded from recovering any profit for the services rendered.

Applying that limitation to the facts of this case, we are not satisfied that the court did limit plaintiff's recovery to the actual value of the services rendered and materials furnished. Marascio, supra, 298 N.J. Super. at 505. Where a defendant challenges the value of services plaintiff rendered, as defendant does here, plaintiff cannot solely rely on the books of account or a quote of the price to be charged as evidence of the reasonable value of services. Hackensack Hosp. v. Tiajoloff, 85 N.J. Super. 417, 419-20 (App. Div. 1964); See also McElroy v. Ludlum, 32 N.J.Eq. 828, 838 (E. & A. 1880) (holding that where a contract for services was invalid under the statute of frauds, and plaintiff sued on a quantum meruit, the special contract was inadmissible as evidence of the value of the services rendered). To hold otherwise would give plaintiff the benefit of the invalid contract. McElroy, supra, 32 N.J.Eq. at 837.

Plaintiff did not provide a breakdown of the cost of the materials he supplied, or of the cost of the labor to perform the job or of the profit he stood to earn from his original proposal. Plaintiff described generally to the court below what he did, for example, installing four windows, a door and sheetrock insulation. Yet, he did not itemize the reasonable monetary value for the various tasks performed. Instead, plaintiff appears to have relied solely on the quotation in his proposed contract that was never signed.

In our view, the trial court's findings on damages are simply not sufficient to satisfy R. 1:7-4. The court accepted plaintiff's testimony that the contract price should be adjusted and, ultimately, increased above plaintiff's asserted original quote of $3,900. Defendant explained, and the court accepted, that because defendant purchased the door herself, the project entailed more labor, not otherwise specified, than the proposed contract originally anticipated. The court observed that plaintiff "adjusted his figures and that figure came to $4,123. The defendant says that all this work was to be done for $3,000." Given that conflict, the court decided to "take the $4,123 and reduce it by $500 to cover those costs [claimed to be necessary to modify the windows]." Without further elaboration by the trial judge, we find that analysis insufficient as an explanation of the award.

We affirm the entry of judgment in favor of plaintiff. Implicit in that judgment is the finding that the homeowner sustained no ascertainable loss. She has paid nothing for the work performed and there is no evidence that her credit has been impaired by an improper debt or lien as a result of that non-payment. Compare Cox, supra, 138 N.J. at 23. We remand the matter to the Special Civil Part to determine the reasonable value of plaintiff's services or in the alternative, to state more clearly the basis for the award.

Remanded. We do not retain jurisdiction.


Neither the version of the contract tendered by plaintiff nor the version revised by defendant is included in the record on appeal.

The appendices of the parties' do not contain a copy of the parties' pleadings. Our statements describing the form and nature of pleadings filed by the parties are based on statements and arguments contained in their respective briefs.

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A-2264-04T5

February 3, 2006