MICHAEL MARINI v. QUALITY REMODELING CO., INC.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5511-04T35511-04T3

MICHAEL MARINI,

Plaintiff-Appellant,

v.

QUALITY REMODELING CO., INC.,

A Corporation of the State

of New Jersey,

Defendant/Third Party

Plaintiff-Respondent,

v.

KAREN MARINI,

Third Party Defendant/

Counterclaimant-Appellant.

_______________________________________

 

Submitted January 25, 2006 - Decided February 10, 2006

Before Judges Fall and Yannotti.

On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Docket No. PAS-L-2714-03.

Robert B. Cherry, attorney for appellant Michael Marini.

Edward G. O'Byrne, attorney for appellant Karen Marini.

G. Dolph Corradino, attorney for respondent (Michael J. Evans, on the brief).

PER CURIAM

Michael Marini (Michael) and Karen Marini (Karen) appeal from a final judgment dismissing the matter and directing the parties to proceed to arbitration. We affirm.

This dispute arises from a "home repair contract" dated August 2, 2002 for the construction of a two-story addition to the Marini home in Kinnelon, New Jersey. The contract states that the agreement is between Quality Remodeling Co., Inc. (Quality) as "seller" and Michael and Karen Marini as "purchaser." Jim Cupo signed the agreement for Quality and Michael initialed the agreement on the line for "purchaser." The first page of the agreement details the work to be performed and sets forth a "total contract price" of $137,500.

At the bottom of the first page of the agreement, the following statement appears directly above the lines for the signatures of the parties: "This contract includes the terms and provisions as set forth herein, please read and sign." The second page of the agreement contains twelve numbered paragraphs with "terms and provisions." Paragraph 12 states the following:

The seller agrees that it will perform this contract in conformity with customary industry practices. The purchaser agrees that any claim for adjustment shall not be reason or cause for failure to make payment of the purchase price in full. Any unresolved controversy or claim arising from or under this contract shall be settled by arbitration and judgement upon the award rendered may be entered in any court of competent jurisdiction. The arbitration shall be held under the rules of the American Arbitration Association.

The second page of the agreement also has two lines for the signature of "purchaser." It is undisputed that neither Michael nor Karen initialed or signed the second page of the agreement.

Quality commenced construction on or about August 14, 2002 and, from that date through December 28, 2002, the Marinis paid Quality $113,683.68. However, because of a dispute as to the progress of the work and Quality's workmanship, the Marinis made no further payments.

On or about March 6, 2003, Quality filed with the American Arbitration Association a demand to arbitrate its construction lien claim. The arbitrator entered an ex parte order dated April 3, 2003, which permitted Quality to file a construction lien claim in the amount of $23,822.32. In May 2003, Karen applied to the Law Division for issuance of an order requiring Quality to show cause why the arbitrator's award should not be vacated and the arbitration proceeding dismissed. The judge denied the application.

On June 18, 2003, Michael filed a complaint against Quality, alleging in count one that Quality failed to construct the addition to the Marini home in a workmanlike manner and certain damage had been caused by the negligence and careless work of Quality and its agents, servants and employees. In count two, Michael alleged that Quality had claimed that he had agreed to submit his claims to arbitration but Michael asserted that he "did not agree to such arbitration." Michael demanded judgment against Quality, together with attorneys' fees and costs of suit.

On May 19, 2004, Quality filed an answer in which it denied Michael's allegations and asserted by way of an affirmative defense that Michael's complaint "is barred by the terms of the agreement between the parties which requires all issues to be submitted to binding arbitration." Quality also filed a counterclaim against Michael and a third-party complaint against Karen seeking among other things full payment under the agreement.

Karen filed an answer and counterclaim against Quality, in which she asserted a claim for damages arising from Quality's alleged failure to construct the addition in a workmanlike manner. Karen also claimed that Quality violated the Consumer Fraud Act (CFA), N.J.S.A. 56:8-1 to -156, and certain regulations adopted under the CFA, by engaging in certain "unlawful practices." Karen alleged that Quality violated the CFA and the regulations because the "home repair contract" did not specify the date when the work was to be completed and Quality failed to give timely notice of the reasons for the delay in performance.

Quality moved for dismissal of the complaint on the ground that Michael's and Karen's claims were subject to arbitration pursuant to paragraph 12 of the contract. Michael did not oppose the motion. Karen filed a certification dated May 5, 2005 in which she asserted that she never signed the "home repair contract" and never agreed to arbitrate any dispute arising under the agreement.

In response to Karen's certification, Quality submitted to the motion judge a copy of a complaint filed by Michael and Karen with the Passaic County Department of Consumer Protection. That complaint states in pertinent part, "We, Michael and Karen Marini, contracted [with] James Cupo of Quality Remodeling Co. on August 14, 2002 for a two-story addition and Trex deck on our home . . . in Kinnelon, N.J." In that complaint, the Marinis set forth their complaints with the manner in which Quality had performed the work. They complained of delays. They detailed what they believed were the deficiencies in the work including: uneven cuts in the wood used to construct the deck, incomplete siding, gaps in the siding, missing gutters, holes in the roof, damaged screens, and a defective cement pad for the deck.

The judge heard argument on the motion on May 13, 2005 and placed his decision on the record. The judge determined that the matter should be dismissed and the claims referred to arbitration. The judge noted that, although Karen did not sign the "home repair contract," Karen had asserted in her complaint to the Passaic County consumer agency that she was a party to the agreement. The judge concluded that the dispute "belong[s] in arbitration." The judge thereupon entered an order dismissing the action and this appeal followed.

The Marinis argue that they never agreed to arbitrate the dispute and their lawsuits should not have been dismissed. They further contend that the "home repair contract" is unlawful because it violates N.J.A.C. 13:45A-16.2 and enforcement of the arbitration provision contravenes the CFA and public policy. The Marinis additionally argue that they should not be judicially estopped from claiming that they never agreed to arbitrate claims arising under the agreement.

We have carefully considered these contentions and thoroughly reviewed the record before us on this appeal. We are satisfied that the judge correctly determined that the claims arising from the "home repair contract" must be submitted to arbitration. In our view, the Marinis' arguments are not of sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). However, we add the following comments.

The Marinis concede that they both entered into the subject "home repair contract." They argue, however, that they never agreed to paragraph 12 of the agreement, which is one of the "terms and provisions" that appear on the second page of the contract. We disagree.

The record shows that the contract was between Quality, on the one hand, and Michael and Karen, on the other. It is undisputed that Michael initialed the first page of the contract and did so on behalf of himself and Karen. It also is undisputed that Michael did not sign or initial the second page of the contract. However, as we pointed out previously, on the first page of the agreement, directly above the line where Michael wrote his initials, is the statement that the agreement includes additional "terms and provisions as set forth herein, please read and sign." Michael has never asserted that he did not see the "terms and provisions" that appear on the second page of the agreement. Michael and Karen maintain that they are not bound by those "terms and provisions" because Michael did not place his initials on the second page of the contract.

We are convinced, however, that the judge correctly found that both Michael and Karen are bound by the "terms and provisions" that appear on the second page of the agreement, including paragraph 12 which requires arbitration of any claim arising under the contract. In our view, Michael's initials on page one, directly below the reference to "additional terms and provisions as set forth herein" bind both Michael and Karen to those "additional terms and provisions."

The Marinis argue that they cannot be judicially estopped from asserting that they did not agree to paragraph 12, which requires that they arbitrate claims arising under the contract. But the judge merely noted that the Marinis had filed a complaint with the Passaic County consumer agency and in that complaint asserted that they were parties to a "home repair contract" with Quality. As we pointed out previously, the Marinis concede they entered into the agreement with Quality. The judge found that Michael and Karen were bound by paragraph 12 because they admitted that they were parties to the agreement and because paragraph 12 was a part of that agreement. The judge's decision does not turn upon an application of judicial estoppel.

The Marinis further contend that the "home repair contract" violates certain administrative regulations adopted by the Division of Consumer Affairs pursuant to the CFA, N.J.S.A. 56:8-4. The Marinis also assert that enforcement of the arbitration clause violates the CFA and public policy.

"To violate the [CFA], a person must commit an 'unlawful practice' as defined in the legislation. 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 CFA imposes strict liability for violations of regulations. Id. at 18 (citing Fenwick v. Kay Am. Jeep, Inc., 72 N.J. 372, 376 (1977)). "The parties subject to the regulations 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.

The Marinis argue before us that the "home repair contract" violates N.J.A.C. 13:45A-16.2(a)(12), which provides in part that home improvement contracts, with a price greater than $500, shall be in writing and "signed by all parties thereto." The Marinis also contend that the agreement violates N.J.A.C. 13:45A-16.2(a)(12)(iv), which requires that certain home improvement contracts include the time period within which the work is to begin and to be completed.

As we pointed out previously, Michael never filed opposition to Quality's motion to dismiss. Karen opposed the motion to dismiss but never raised these alleged regulatory violations as grounds for denial of Quality's motion to dismiss. In addition, Karen did not assert that enforcement of the arbitration clause contravenes the CFA and violates public policy. Because these issues were not raised in the trial court, Quality did not have an opportunity to respond to these contentions and the judge did not address them.

We will not consider a contention that was not raised in the trial court unless the issue goes either to the jurisdiction of the court or concerns a matter of public importance. Hallion v. Liberty Mutual Ins. Co., 337 N.J. Super. 360, 367 (App. Div. 2001)(citing Brown v. Township of Old Bridge, 319 N.J. Super. 476, 501 (App. Div.), certif. denied, 162 N.J. 131 (1999)). The Marinis' contentions regarding the CFA are not issues that go to the jurisdiction of the trial court. Moreover, the issues do not involve a matter of general public importance. We therefore decline to consider these contentions.

 
Affirmed.

(continued)

(continued)

10

A-5511-04T3

February 10, 2006