DANIEL GRAVES et al. v. CONSOLIDATED CONTRACTING

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6170-04T56170-04T5

DANIEL GRAVES and JENNIE

GRAVES, his wife,

Plaintiffs-Appellants,

v.

CONSOLIDATED CONTRACTING

CORP., a New Jersey Corporation,

Defendant-Respondent.

___________________________________

 

Argued April 5, 2006 - Decided July 31, 2006

Before Judges Wefing, Wecker and Fuentes.

On appeal from Superior Court of New

Jersey, Chancery Division, Morris

County, No. C-83-04.

Peter E. Moran argued the cause for

appellants (Dillon, Bitar & Luther,

attorneys; Robert W. Delventhal, of

counsel; Mr. Moran, on the brief).

Jeffrey M. Master argued the cause for

respondent (Hirsch & Master, attorneys;

Mr. Master, on the brief).

PER CURIAM

Plaintiffs appeal from a trial court order entered June 13, 2005, denying their motion to modify an arbitration award and granting defendant's motion to confirm that award. After reviewing the record in light of the contentions advanced on appeal, we affirm.

The parties entered a contract dated November 17, 2000, in which defendant agreed to perform certain renovations and construct an addition to plaintiffs' home located at 71

Western Drive in Short Hills. The budget for the project was $1,013,021.00, but the contract stated "No guaranteed maximum price." Plaintiffs paid a deposit of $253,255.25, and defendant submitted periodic invoices. The project was estimated to take ten months to complete.

The project did not go smoothly, however, and the relationship between the parties deteriorated. Defendant asserted that it encountered unexpected difficulties in the course of the work; plaintiffs responded that those situations should have been anticipated in light of the fact that defendant knew that plaintiffs' home had been built circa 1883 and was considered historically significant to the area. Defendant asserted that many of the delays were due to plaintiffs' failure to make final selections in a timely manner. Plaintiffs denied this assertion. Eventually, defendant contended that plaintiffs were behind more than $100,000 in their payment obligations, while plaintiffs asserted that defendant had overbilled and had performed inferior work that had to be corrected.

Article 15.8 of the contract provided in pertinent part

All claims or disputes between the Contractor and the Owner arising out of or relating to the Contract Documents, or the breach thereof, shall be decided by arbitration in accordance with the Construction Industry Arbitration Rules of the American Arbitration Association currently in effect . . . . The award rendered by the arbitrator or arbitrators shall be final, and judgment may be entered upon it in accordance with applicable law in any court having jurisdiction thereof.

Defendant invoked this clause and requested arbitration. Plaintiffs filed an answer and counterclaim in which they asserted, among other issues, that defendant had committed consumer fraud. Both parties were satisfied with the qualifications and background of the arbitrator selected, Thomas G. Johnson, and four days of hearings were held. The parties agree that during the course of those hearings, plaintiffs presented their consumer fraud claim. At the conclusion of those hearings, Johnson issued an award on April, 16, 2004, which directed plaintiffs to pay a net amount of $24,990. The award contained the following breakdown:

Description Amounts

Completed Work -Unpaid $ 62,016.00

Retainage 50,279.00 Subtotal 112,295.00

Less: Prev. Paid Markup on Extra Work (@ 14%) -18,985.00

Less: Overbillings/Poor Quality Work -16,002.00

Less: Cost to Correct Deficiencies -52,318.00

Total Net Amount $ 24,990.00

It also stated, "[t]his Award is in full settlement of all claims and counterclaims submitted to this Arbitration. All claims not expressly granted herein are hereby, denied."

Plaintiffs filed a complaint seeking to vacate or modify the award, arguing that the arbitrator had taken jurisdiction over their consumer fraud claims but that the award he had issued failed to take into account the ascertainable losses they had established during the course of the hearings. Plaintiffs asserted that they were entitled to treble damages and attorneys' fees in accordance with the consumer fraud statute, N.J.S.A. 56:8-19. Defendant answered, seeking confirmation of the award.

Thereafter, both counsel, at the suggestion of the trial court, wrote to the American Arbitration Association, requesting that the arbitrator "prepare and submit a written explanation of the Award setting forth his findings of fact and conclusions of law . . . ." The arbitrator responded, declining to do so. He referred to Rule 42(b) of the rules of the American Arbitration Association, which provided that the arbitrator need not render an explanation of the award unless the parties request in advance that he do so or unless the arbitrator decides that an explanation is appropriate. According to the arbitrator, neither of these conditions existed.

Faced with that declination, the parties returned to the trial court and argued their respective applications. The trial court granted defendant's and denied plaintiffs'. This appeal followed.

We have considered plaintiffs' arguments and reviewed the record. We are satisfied the order under review should be affirmed for the reasons set forth by Judge MacKenzie in his thorough written statement attached to the order of June 13, 2005.

Affirmed.

 

It appears that this response contains a typographical error; it is Rule 43(b) which deals with this subject.

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A-6170-04T5

July 31, 2006