ST. LOUIS, L.L.C. v. ANTHONY & SYLVAN POOLS CORP.

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
 
 
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3754-04T3

ST. LOUIS, L.L.C.,

Plaintiff-Respondent/
Cross-Appellant,

v.

ANTHONY & SYLVAN POOLS CORP.,

Defendant/Third-Party
Plaintiff-Appellant/
Cross-Respondent,

v.

AURORA CONTRACTING, L.L.C.,

Third-Party Defendant.

Text Box
 
June 12, 2006

Argued May 3, 2006 - Decided

Before Judges Conley, Weissbard and Winkelstein.

On appeal from the Superior Court of New Jersey, Law Division, Somerset County, SOM-L-97-01.

Keith G. Von Glahn argued the cause for appellant/cross-respondent Anthony & Sylvan Pools Corp. (Wilson, Elser, Moskowitz, Edelman & Dicker, attorneys; Mr. Von Glahn, of counsel; Michael J. Slocum, on the brief).

James E. Mackevich argued the cause for respondent/cross-appellant St. Louis, L.L.C. (Mackevich Burke & Stanicki, attorneys; Mr. Mackevich, on the brief).

PER CURIAM
Plaintiff St. Louis, L.L.C. is a limited liability company formed by John Boulton and his wife Prudence Boulton See footnote 1 to purchase a forty-eight-acre parcel of land in Franklin Township upon which they constructed a two-story 36,000 square foot glass house. The house cost approximately $8.5 million to build and plaintiff sold it during the course of the litigation for $2.5 million. The house included a swimming pool and spa that was built by defendant Anthony & Sylvan Pools Corp. Plaintiff alleged Sylvan Pools was negligent in the construction of the pool, breached its contract with plaintiff, made fraudulent misrepresentations to plaintiff and committed consumer fraud. See footnote 2
In August 2004, a jury awarded plaintiff $35,000 in compensatory damages for breach of contract and $750,000 on its consumer fraud claim which, when trebled, totaled $2,250,000. Following post-verdict motions, the judge awarded plaintiff counsel fees of $117,453.85. Defendant appeals from the March 8, 2005 final judgment that memorialized those awards and plaintiff cross-appeals from a portion of the counsel fee award and from the court's determination not to award prejudgment interest.
On appeal, defendant raises the following issues:
I. The trial court erred in denying Defendant's motion for Judgment Notwithstanding the Verdict because Plaintiff failed to establish the necessary elements of Consumer Fraud.

II. The trial court erred in denying Defendant's motion for Judgment Notwithstanding the Verdict because as a matter of law Plaintiff was not entitled to trebled damages.

III. The trial court erred in denying Defendant's motion for a new trial because the jury's verdict was against the clear weight of the evidence and constituted a miscarriage of justice.

IV. The trial court erred in denying Defendant's motion for a new trial because the jury was not properly charged.

V. The trial court erred in denying Defendant's motion for a new trial because Plaintiff was improperly permitted to proffer the testimony of two experts whose reports had not been produced in discovery, and Defendant was thereby prejudiced and surprised.

VI. The trial court erred in denying Defendant's motion for a new trial because Plaintiff was improperly permitted to advance inconsistent theories of liability contrary to law.

VII. The trial court erred in denying Defendant's motion for a new trial because Plaintiff's summation was improper and prejudicial.
VIII. The trial court erred in denying Defendant's motion for a new trial because the trial court erred in suggesting a specific sum of damages to the jury and then failed to issue a curative instruction.

IX. The trial court erred in making its award of attorney's fees.

X. The trial court erred in awarding Plaintiff its expert witness fees.

 
We have carefully considered the arguments of both parties and the controlling law. We affirm the final judgment with the exception of the $28,746.44 portion of the counsel fee award for expert fees. We remand to the trial court to modify the final judgment accordingly. See footnote 3
I.
 
Boulton acted as general contractor for the construction of the house, which was to be used initially as a residence and then in connection with the Boultons's child advocacy foundation. Boulton's 1998 contract with Sylvan Pools called for a "commercial public pool" that would meet all applicable building codes. Sylvan Pools was to design a pool and spa and build it to specifications; it was to provide engineering and layout plans for Boulton's approval before construction began.
The house was two stories; one below ground and one above ground. Each floor was to be 18,000 square feet and had fourteen-foot-high walls. The pool was to be built in the master bedroom of the house, located on the above-ground floor.
Boulton claimed defendant constructed a defective swimming pool. He alleged that defendant: (1) failed to install code-mandated safety components; (2) created a residential pool rather than a commercial pool; (3) provided a different remote control system than the contract specified; (4) failed to repair the leaking, unsymmetrical, loose coping that its subcontractor installed; and (5) provided a different type of plaster than plaintiff contracted for and lied about the reason for doing so. Plaintiff claims the pool was structurally unstable and did not conform to the plans.
A number of plaintiff's witnesses testified that the pool as built differed from that required by the contract. Boulton testified that the pool did not match the agreed to design. See footnote 4 He testified that as a result of the pool defects, the value of the house was diminished by approximately $700,000. Harry Braich, an expert in structural engineering who examined the pool after it was completed, testified that the pool's support as built was "entirely different than the drawing." He described the structure as built as "totally inconceivable." He said the pool was not properly supported; the blocks that had been cemented together to support it had become loose and moved, making it "structurally unstable."
Plaintiff's counsel read the deposition of a Sylvan Pools employee, Leon Psykowsky, who testified that the pool as built deviated from the plans. Bernard Sopko, qualified by the court to testify as a structural engineer on behalf of plaintiff, testified that the stone and block, supporting structure of the pool, moved; he testified that the pool "has the potential for a complete collapse."
Defendant offered testimony that the pool was built correctly, including the testimony of Stephen Pany, a civil engineer. Pany rendered an opinion that the pool and spa "were built in substantial conformance" with the design drawings. He testified that the bulging corrugated metal surrounding the pool did not affect the pool's structural integrity. He opined that the pool had not shifted since it was constructed; it comported with the applicable building code in effect at the time it was built; it complied with industry standards; and it was well-constructed.
Defendant presented testimony to show that plaintiff refused to give defendant an opportunity to fix the alleged defects. After the parties exchanged correspondence concerning plaintiff's allegations that defendant had deviated from the contract specifications, Boulton notified defendant by letter of January 28, 2000, that he was going to use another contractor to complete the work at defendant's expense. When defendant subsequently sent another construction supervisor to the site, Boulton told him that another pool company would complete the work.
Boulton sold the house in October 2003, approximately ten months prior to trial. In Final Touch Glass, supra, we explained the actions Boulton took to market the house.
To assist with the sale, St. Louis first hired Douglas Elliman, a real estate broker for luxury residences, who set an initial listing price of $18 million. . . . Boulton met with many of the prospective buyers and disclosed the presence of the construction defects to them, including the problems associated with the windows and drain pipes, as well as with the indoor pool and the HVAC system. . . . It was Boulton's impression that the defects "spooked people." After approximately one year, Elliman failed to generate a "solid" offer for the property.

Boulton next engaged J.P. King to conduct a public auction of the property. . . . King spent nearly $250,000 advertising the property . . . . [A]lthough fifty or sixty people attended the auction, no bids were offered.

St. Louis then listed the property with a realtor . . . . More prospective buyers were generated, and Boulton participated in further conversations with them regarding the house and its construction defects. On October 7, 2003, the property sold for $2.5 million.

[___ N.J. Super. ___, ___ (slip op. at 10-11) (footnote omitted).]

II.
 
Against this summary of the facts, we address each of the parties' arguments in turn. We begin with defendant's first point on appeal, that its motion for judgment notwithstanding the verdict should have been granted because plaintiff failed to establish the necessary elements of consumer fraud. Put another way, defendant claims the testimony as to diminution of the house's value was insufficient as a matter of law to prove an ascertainable loss so as to qualify for consumer fraud damages. We are not convinced.
Plaintiff did not call a real estate appraiser to testify as to diminution in value of the property. Boulton gave his opinion relating to diminution in value, and plaintiff called James O'Donnell, a pool company executive, and Thomas Kelly, a construction consultant, to testify as to the cost to repair the damages caused by defendant's actions.
The court declined to allow Boulton to testify as an expert, but found that pursuant to N.J.R.E. 701 he had sufficient knowledge about this particular building to provide an opinion on value, which is what he did. Boulton claimed that the defective pool diminished the value of the house by approximately $700,000. When asked about how the pool affected the value of the house, Boulton stated, "when we thought we would get $18 million and subsequently we got two-and-a-half, you could say that was the difference or you could say that it was the cost of repairs." When pressed to put a dollar amount on the diminution in value, Boulton stated that "[i]t's somewhere around $700,000." Boulton testified that the house had three major defects, the pool, the HVAC system, and the glass walls, all of which he disclosed to prospective purchasers. He did not explain, however, how each defect affected the diminution in the house's value.
O'Donnell, an executive of a company that designed and built pools, testified that it would cost $108,000 to remedy the construction defects. And Kelly, the construction consultant, testified that to remove and replace the pool would cost $728,198.
To recover damages under the New Jersey Consumer Fraud Act (the CFA), N.J.S.A. 56:8-1 to -20, a plaintiff must prove an "ascertainable loss" that is causally related to an act that constitutes consumer fraud. The CFA reads in pertinent part:
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 supplements may bring an action or assert a counterclaim therefor in any court of competent jurisdiction.

[N.J.S.A. 56:8-19.]
 
To prove an "ascertainable loss," a plaintiff must "produce evidence from which a factfinder could find or infer that the plaintiff suffered an actual loss." Thiedemann v. Mercedes-Benz USA, LLC, 183 N.J. 234, 248 (2005). A plaintiff must demonstrate the loss with some certainty; that the loss is quantifiable or measurable. Ibid. Some "'estimate of damages, calculated within a reasonable degree of certainty' will suffice to demonstrate ascertainable loss." Id. at 249 (quoting Cox v. Sears Roebuck & Co., 138 N.J. 2, 22 (1994)). "In cases involving breach of contract or misrepresentation, either out-of-pocket loss or a demonstration of loss in value will suffice to meet the ascertainable loss hurdle and will set the stage for establishing the measure of damages." Id. at 248.
Defendant claims that cost of repair is not the proper measure of damages; and, if it is, that Boulton's testimony was not competent as to that issue. We addressed these same issues in Final Touch Glass, supra, and incorporate that analysis here.

The purpose of compensatory damages is to put the injured party in as good a position as he would have been in if performance were rendered as promised. 525 Main Street Corp. v. Eagle Roofing Co., 34 N.J. 251, 254 (1961). Specific rules or formulas are "subordinate to this broad purpose" and should not be invoked if they "defeat[] a common sense solution." Ibid.

[T]he general rule with respect to building contracts is that the disappointed owner may recover the costs of completing the promised performance or making necessary repairs, unless under the facts it is impossible to do so or the costs of completion or repairs would constitute unreasonable economic waste, in which event reference would be made to the difference in value formula.

[Id. at 255.]

Whether the cost of repair or diminution in value is the measure of damages "rests in good sense rather than in a mechanical application of a single formula." Ibid. We have in the past described the appropriate measure of damages for an injury to real property as a "complex subject" that requires a response "in a great variety of ways depending upon the evidence in the particular case." Velop, Inc. v. Kaplan, 301 N.J. Super. 32, 64 (App. Div. 1997), appeal dismissed, 153 N.J. 45 (1998).

Generally, either diminution in the value of the property or the reasonable cost of restoring or repairing the damage may be appropriate. Ibid.; see also Berg v. Reaction Motors Div., Thiokol Chem. Corp., 37 N.J. 396, 411 (1962) (recognizing that even in cases where diminution in value was found to be appropriate measure of damages, reasonable cost of repairs could be considered by jury); White v. Marshall, 83 S.W.3d 57, 62 (Mo. Ct. App. 2002) (particular facts of case determine measure of damages to be used); Hensic v. Afshari Enters., Inc., 99 S.W.2d 522, 524-25 (Mo. Ct. App. 1980). Damages for defective construction, whether those damages are the result of a breach of contract or negligence of the contractor, are often determined by using the reasonable cost of remedying the defects unless that cost is clearly disproportionate to the property's probable loss of value. See Chem. Waste Mgmt., Inc. v. Sims, 939 F. Supp. 599, 602 (N.D. Ill. 1996); Pennington v. Rhodes, 929 S.W.2d 169, 173, 175 (Ark. Ct. App. 1996); Williams v. Charles Sloan, Inc., 706 S.W.2d 405, 406 (Ark. Ct. App. 1986); Gen. Ins. Co. of Am. v. City of Colo. Springs, 638 P.2d 752, 759 (Colo. 1981); Willie's Constr. Co., Inc. v. Baker, 596 N.E.2d 958, 961-62 (Ind. Ct. App. 1992); City of Charlotte v. Skidmore, Owings & Merrill, 407 S.E.2d 571, 580-81 (N.C. Ct. App. 1991); Schmauch v. Johnston, 547 P.2d 119, 122 (Or. 1976); Oelschlegel, Jr. v. Mut. Real Estate Inv. Trust, 633 A.2d 181, 184 (Pa. Super. 1993); Panorama Vill. Homeowners Ass'n v. Golden Rule Roofing, Inc., 10 P.3d 417, 421-22 (Wash. Ct. App. 2000), rev. denied, 16 P.3d 1266 (Wash. 2001).

When a contractor breaches a construction agreement, the non-breaching party is entitled to be placed in as good a position as if the contract had been performed. 24 Williston on Contracts 66:17 (4th ed. 2002).

[U]sually this will be based on the cost to remedy any defect, rather than the diminution in value between the performance rendered and that promised. In part, this is because the former measure of recovery, in a construction contract setting, will make the owner whole that is, give the owner the benefit of the bargain that he or she made . . . . Thus, if a defect in the contractor's performance is repairable, the basic measure of the owner's damages is usually the cost of repair . . . .

[Id. (footnotes omitted).]

These principles are repeated in the Restatement of Contracts.

(2) If a breach results in defective or unfinished construction and the loss in value to the injured party is not proved with sufficient certainty, he may recover damages based on

(a) the diminution in the market price of the property caused by the breach, or
(b) the reasonable cost of completing performance or of remedying the defects if that cost is not clearly disproportionate to the probable loss in value to him.

[Restatement (Second) of Contracts: Alternatives to Loss in Value of Performance 348 (1981).]

The accompanying Restatement comment provides that:

c. Incomplete or defective performance. If the contract is one for construction . . . .

Sometimes, especially if the performance is defective as distinguished from incomplete, it may not be possible to prove the loss in value to the injured party with reasonable certainty. In that case he can usually recover damages based on the cost to remedy the defects. Even if this gives him a recovery somewhat in excess of the loss in value to him, it is better that he receive a small windfall than that he be undercompensated by being limited to the resulting diminution in the market price of his property.

[Id., comment c (citation omitted).]

The Restatement provides an illustration:

A contracts to build a house for B for $100,000. When it is completed, the foundations crack, leaving part of the building in a dangerous condition. To make it safe would require tearing down some of the walls and strengthening the foundation at a cost of $30,000 and would increase the market value of the house by $20,000. B's damages include the $30,000 cost to remedy the defects.

[Id., illustration 3.]

Against this legal and factual framework, defendant's position that plaintiff can only prove damages by showing a decrease in market value is unduly rigid. We conclude that cost of repairs is also an appropriate measure of damages in a case such as this. And, while the judge ruled that the measure of damages would be diminution in value, the judge ruled that the diminution in value could be established by cost of repairs. It is the evidence of those costs that we conclude proved plaintiff's damages.

[___ N.J. Super. ___, ___ (slip op. at 15-20).]

Here, we agree with defendant that Boulton's damages testimony was not sufficient to support the verdict. He essentially repeated what Kelly and others told him. Yet, Boulton did not provide the only damages evidence. Kelly offered competent testimony to support plaintiff's claim for damages. He was qualified as an expert in construction cost estimating; he testified that the cost to repair the damages caused by defendant would be $728,198. That evidence in itself was sufficient to support plaintiff's damages claim. To the extent that Boulton's testimony was speculative, hearsay, or otherwise inadmissible, in light of Kelly's testimony, Boulton's testimony was harmless and did not lead to an unjust result. See R. 2:10-2; State v. Macon, 57 N.J. 325, 337 (1971).
Defendant claims that because the house was sold prior to trial, plaintiff must prove damages by showing a diminution in market value. We are not persuaded. Damages standards should be flexible, so as to present a "common sense solution" that is "fair to the litigants." 525 Main Street, supra, 34 N.J. at 254, 258. Defendant's position is too rigid. It rests on a presumption that plaintiff, having sold the house, should not receive the cost to repair the damages because plaintiff is not in a position to have those repairs made. That position ignores the fundamental principle that in a claim for costs of repair as the result of faulty construction, a plaintiff is not required to spend the damages award to actually repair the property. See Greene v. Bearden Enters., Inc., 598 S.W.2d 649, 653 (Tex. App. 1980) (no requirement that damages awarded for cost of repair be spent to make the repairs); John P. Ludington, Annotation, Modern Status as to Whether Cost of Correction or Difference in Value of Structures is Proper Measure of Damages for Breach of Construction Contract, 41 A.L.R.4th 131 (2005) (same).
In addition, as we explained in Final Touch Glass, supra, defendant's argument
would have the practical effect of penalizing plaintiff and rewarding defendant. Resorting solely to the diminished market value standard would deny plaintiff adequate compensation for defendant's actions even though plaintiff suffered harm by those actions. Such a solution would be inequitable and contrary to common sense. Cf. Dixon v. City of Phoenix, 845 P.2d 1107, 1114, 1117 (Az. Ct. App. 1992) (City should not be permitted to breach contract without being required to pay for damages even if restoration costs of damaged property exceed diminution of market value); Mayfield v. Swafford, 435 N.E.2d 953, 957 (Ill. App. Ct. 1982) (measure of damages should not penalize innocent owner and reward contractor for faulty performance). Using the cost of repair here essentially gives plaintiff what it bargained for, and does not reward defendant for its faulty construction.

[___ N.J. Super. ___, ___ (slip op. at 24-25).]

Of course, had the cost of repairs exceeded the value of the house, defendant would have an argument that completion of repairs would constitute an unreasonable economic waste. See Velop, Inc. v. Kaplan, 301 N.J. Super. 32, 64-66 (App. Div. 1997), appeal dismissed, 153 N.J. 45 (1998); Correa v. Maggiore, 196 N.J. Super. 273, 285-86 (App. Div. 1984). That, however, is not what occurred. No evidence was presented during the trial to establish that the $750,000 the jury awarded to repair the swimming pool would have exceeded the value of the house. The house cost approximately $8.5 million to build. No bids for the house were received at public auction. The house sold for $2.5 million. The $750,000 cost of repair did not constitute a windfall to plaintiff.
III.
 
Next, we address point two of defendant's brief, its contention that plaintiff was not entitled to treble damages because Boulton did not provide defendant with an opportunity to alleviate the alleged damages before hiring another contractor to do the work. Treble damages are required under N.J.S.A. 56:8-19 if the plaintiff proves both an unlawful practice and an ascertainable loss. Cox, supra, 138 N.J. at 24. While in some cases a plaintiff may not be entitled to treble damages without a prior demand upon the defendant to be made whole, see Feinberg v. Red Bank Volvo, Inc., 331 N.J. Super. 506, 511 (App. Div. 2000), this is not such a case. Boulton testified that he had given defendant months to fix the problems. A series of letters were exchanged between Boulton and defendant before Boulton decided to hire another contractor. Boulton testified that defendant had been given multiple opportunities to fix the problem. If the jury believed Boulton's testimony, which it apparently did, the evidence demonstrated that defendant had an opportunity to remedy the problems, but failed to do so.
IV.
 
In point four of defendant's brief, it challenges the court's consumer fraud charge to the jury. The substance of the charge reads as follows:
There are three possible bases for responsibility under the consumer fraud act. The first and the only one that is relevant relates to that part of the act which states that any unconscionable commercial practice, deception, fraud, false pretense, false promise, or misrepresentation is an unlawful practice. These are considered affirmative acts.

The plaintiff claims in this case that defendant committed what is commonly known as consumer fraud when the defendant substituted or failed to supply certain contract items, did not build a pool in conformity with the design, did not meet certain code requirements, and did not build the pool in a workmanlike manner.

Specifically the defendant allegedly used by means of an affirmative act an unconscionable commercial practice, deception, fraud, false pretense, false promise, misrepresentation in connection with performance of the contract and construction of the pool.

The court then provided the jury with the appropriate definitions to be applied under the CFA.
We find no error in the court's charge. While in Cox, supra, the Supreme Court recommended that "trial courts frame special interrogatories to the jury" in such a case, which "might also ask whether the unlawful conduct involved an affirmative act, a knowing question, or a violation of a regulation," 138 N.J. at 20-21, the jury charge here, when read in context against the evidence presented, "clearly and correctly state[d] the principles of law pertinent to the issues . . . ." Kaplan v. Haines, 96 N.J. Super. 242, 251 (App. Div. 1967), aff d, 51 N.J. 404 (1968), overruled on other grounds, Largey v. Rothman, 110 N.J. 204, 206 (1988). The judge instructed the jury that defendant allegedly used affirmative acts in connection with the performance of its obligations under the contract. The jury was told that plaintiff claimed defendant substituted certain contract items for those called for by the contract, did not build the pool in conformity with the design, and did not meet certain building code requirements. In view of the extensive testimony on these issues, the charge was sufficient.
While not dispositive, it is also notable that the charge given was essentially the charge as requested by defense counsel during the charge conference. Counsel requested the following: "I would respectfully request that the wording for Question No. 4 simply be did the defendant commit an unconscionable commercial practice . . . rather than delineating and isolating the the various instances that make up a unconscionable commercial practice." Defense counsel went on to say: "Your Honor will . . . I anticipate during the course of [your] charge advise the jury . . . [that] any one of these things if they should so find would constitute an unconscionable commercial practice rather than spelling them all out in [the charge]." In other words, defendant invited the charge given. Under these circumstances, defendant may not now challenge the charge simply because it was disappointed in the result. See Brett v. Great Am. Recreation, Inc., 144 N.J. 479, 503 (1996).
V.
 
Defendant claims in point five of its brief that the court erred in denying its motion for a new trial because plaintiff improperly relied on the reports of experts that had not been provided in discovery. Specifically, defendant alleges that Sopko, one of plaintiff's testifying engineers, improperly relied on the report of other engineers in rendering his opinion during trial as to the construction defects caused by defendant. Defendant claims that as a result, Sopko's testimony should have been suppressed. We disagree.
First, while Sopko did rely, substantially, on Lindner's report, Lindner was an engineer in Sopko's office; and Sopko previously reviewed that report and approved it. Second, the trial judge gave defense counsel an opportunity to review all reports that Sopko would rely upon before cross-examining Sopko, but defense counsel declined to take that opportunity. And finally, Sopko's testimony was based on his own personal view of the pool, not simply on the observations and conclusions of others. Under these circumstances, we find no abuse of discretion by the trial court in permitting Sopko to testify with reference to the other reports. There was no evidence here of a design to mislead by plaintiff; and, significantly, defendant does not show that Sopko's trial testimony took defendant by surprise or was unduly prejudicial. See Skibinski v. Smith, 206 N.J. Super. 349, 354-55 (App. Div. 1985). Thus, we do not find the trial judge to have abused her discretion in allowing Sopko's testimony.
VI.
 
We next address point seven of defendant's brief, in which it claims that it is entitled to a new trial because of remarks plaintiff's counsel made during summation. Specifically, counsel said:
You know, if somebody ran me over with a car, I got up, my shoulder hurt a little bit, so what. I'm just going to put my briefcase on the other arm. You knock Derek Jeter over and he can't play ball anymore, big problem, big problem. Can't play ball now.
 
Needless to say, this case had nothing to do with a personal injury, an automobile accident, or Derek Jeter. Nonetheless, plaintiff's counsel did not misstate the evidence or distort the facts so as to warrant a new trial based on his closing remarks. Absent a showing of undue prejudice, the use of metaphors in summation is permissible. See Bell Atl. Network Servs., Inc. v. P.M. Video Corp., 322 N.J. Super. 74, 97 (App. Div.), certif. denied, 162 N.J. 130 (1999).
VII.
 
We next turn to the issue of counsel fees, points nine and ten of defendant's brief. Defendant claims that the counsel fee award should not have included the services performed by Frank Tunnero, Esquire, who represented plaintiff from January 2000 through May 2003. Defendant claims that because Tunnero failed to sign the certification of services, the fee application did not comply with Rule 4:42-9(b), which requires all applications for counsel fees to be supported by an affidavit of services.
While defendant is correct that the Tunnero certification presented in plaintiff's application for fees following the jury verdict did not contain a signed certification of the services he provided, the unsigned certification of services that was provided was identical to Tunnero's signed certification that was presented to the court earlier in the litigation. Because there were no changes between the earlier certification of services, which was signed, and the certification submitted at the end of the case, which was not signed, the court did not abuse its discretion by considering those services in arriving at its award. Defendant's arguments on this issue are, therefore, without merit.
As part of the counsel fee award, the judge awarded expert witness fees of $28,746.44 as a reasonable cost of suit. Subsequent to the final judgment, the court acknowledged it was "wrong when it awarded expert fees to plaintiff" and desired to correct the record. We agree.
Litigants must pay their own fees and costs, unless by statute, rule or agreement they are permitted to do otherwise. Josantos Constr. v. Bohrer, 326 N.J. Super. 42, 47-48 (App. Div. 1999). The CFA does not provide that a prevailing party may receive expert's fees. In the nearly six years since Josantos has been decided, the Legislature has amended the CFA several times, but has not included a provision that would permit a prevailing plaintiff to recover expert's fees. This failure to amend the CFA is evidence that a prevailing plaintiff, while entitled to counsel fees, is not statutorily entitled to expert's fees. See Mass. Mut. Life Ins. Co. v. Manzo, 122 N.J. 104, 116 (1991) (failure to modify judicial determination is evidence of legislative support for judicial construction of statute). Hence, plaintiff is not entitled to recover expert's fees.
Finally, the trial judge did not abuse her discretion when she reduced plaintiff's claim for counsel fees based upon the legal services provided by McCarter & English on plaintiff's behalf with regard to the interlocutory appeals taken in this case. The judge had a "real problem" with those fees, reducing them from $51,823.47 to $5600. The judge said she simply found "too many hours, too many people working on the file." Her decision was not an abuse of discretion.
VIII.
 
The remaining issues raised by defendant, and by plaintiff in its cross-appeal, do not warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed in part and reversed in part. We remand for amendment of the final judgment consistent with this opinion.
Text Box
 
 

 
Footnote: 1 References to "Boulton" in this opinion are to John Boulton.
Footnote: 2 Plaintiff abandoned its claims for negligence and fraudulent misrepresentation during trial.
Footnote: 3 Plaintiff also filed lawsuits against the glass installer and the finished floor contractor, obtaining a judgment against the glass installer in August 2004. In a companion appeal heard back-to-back with this appeal, we substantially affirmed that final judgment. See St. Louis, L.L.C. v. Final Touch Glass & Mirror, Inc., ___ N.J. Super. ___ (App. Div. 2006). Plaintiff's lawsuit against the finished floor contractor is not before us.
Because many of the underlying facts and legal arguments in this opinion are the same as those in the Final Touch Glass opinion, we quote extensively from that opinion.
Footnote: 4 Boulton was not qualified as an expert in construction; the court permitted him to testify about the physical components of the structure based on his prior experience.

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