ONLINE CONTRACTING, INC. v. TODD TRIPUCKA et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2622-06T22622-06T2

ONLINE CONTRACTING, INC.,

Plaintiff-Appellant,

v.

TODD TRIPUCKA and MICHELLE TRIPUCKA,

Defendants-Respondents.

___________________________________

 

Submitted October 1, 2007 Decided

Before Judges Graves and Alvarez.

On appeal from the Superior Court of New Jersey, Morris County, Law Division, L-3147-04.

McHugh & Brancato, attorneys for appellant (Mark J. Brancato, on the brief).

Fein, Such, Kahn & Shepard, attorneys for respondents (Gregg P. Tabakin, on the brief).

PER CURIAM

Plaintiff Online Contracting, Inc., (Online) appeals from an order of summary judgment granted to defendants Todd and Michelle Tripucka. For the reasons set forth below, we affirm.

Defendants hired Online to complete landscaping at their home at a cost of $54,000 pursuant to a written contract. Joseph Venito II is the president of Online. The contract provides:

Any alteration or deviation from the description of work listed above will be executed upon a written change order issued by the contractor and signed by the owner. The change order, whether it be verbal or in writing, will become an extra and will be billed to the owner at the daily rate provided in the equipment and labor price list.

The contract includes a description of the work to be performed and an equipment price list and daily labor rate. Defendants paid Online the $54,000 contract price, plus $6,000 towards extras not reduced to writing. Because of a dispute between the parties as to additional work and payment claimed thereon, Online was barred from the job site and defendants hired another contractor to complete a portion of the original work. Online filed suit for the remaining cost of extras performed on defendants' verbal instruction, a balance of $32,994. Defendants counterclaimed for treble damages and attorneys' fees under the New Jersey Consumer Fraud Act (CFA), N.J.S.A. 56:8-1 to -116.

In addition to granting summary judgment to defendants, the motion judge required Online to refund the $6,000 paid over the contract price. He also awarded attorneys' fees in accord with the CFA. N.J.S.A. 56:8-19.

The motion judge concluded that the contract, the CFA, and N.J.A.C. 13:45A-16.2(a)(12), all precluded payment for additional work not agreed to in writing. N.J.A.C. 13:45A-16.2(a)(12), a regulatory provision adopted under the CFA, requires all home improvement agreements in excess of $500 to be in writing signed by the parties, to specify work to be performed and materials to be used, and to identify a start and end date. Landscaping is considered a home improvement. See generally Joe D'Egidio Landscaping, Inc. v. Apicella, 337 N.J. Super. 252 (App. Div. 2001). The motion judge also concluded that since defendants could not prove an "ascertainable loss," they should not be awarded treble damages as requested. N.J.S.A. 56:8-19. He awarded attorneys' fees to promote the CFA's remedial purpose. Attorneys' fees are in fact mandated where the consumer can prove the other party "committed an unlawful practice" that violated the CFA. Cox v. Sears Roebuck & Co., 138 N.J. 2, 24 (1993) (citing Perf. Leasing Corp. v. Irwin Lincoln-Mercury, 262 N.J. Super. 23, 31, 34 (App. Div.) certif. denied, 133 N.J. 443 (1993)). The motion judge reasoned defendants were estopped from recovering damages against Online for the cost of hiring another landscaper to complete the work because they barred plaintiff from the job site.

Online's appeal followed.

A movant is entitled to summary judgment when "there is no genuine issue as to any material fact challenged." R. 4:46-2(c). In this case, there are no genuine issues of material fact and the outcome is compelled by the terms of the CFA and the regulations which implement it. Because the CFA is remedial legislation, its provisions "should be construed liberally in favor of consumers." Cox, supra, 138 N.J. at 15. The CFA was intended to be "one of the strongest consumer protection laws in the nation." Ibid. (quoting Governor's Press Release for Assembly Bill No. 2402, at 1 (Apr. 19, 1971)).

Online contends the language of the contract itself authorized verbal change orders. It maintains that the contract clause doing so does not conflict with the CFA because the daily rates are spelled out in the document. Furthermore, Online alleges that when Venito attempted to discuss the cost of extras with defendants, Todd Tripucka would respond: "Whatever it is, just do it. I want it done." This extra work included, among other things, the installation of a graded area at which the homeowner could "chip" golf balls and an adjoining patio, bench, and stone wall.

Citing Scibek v. Longette, 339 N.J. Super. 72 (App. Div. 2001), defendants counter that neither the language in the contract nor their conduct waived their statutory entitlement to a writing as to any extra work performed. Scibek involved a dispute over automotive repairs completed in the absence of any written authorization whatsoever. Id. at 76. In Scibek, the plaintiff argued that the defendant should not be allowed to avoid payment for the repairs and use the CFA as a "sword rather than a shield." Id. at 82. That plaintiff, like the one in this case, asserted that the defendant was estopped from refusing to pay by his own conduct. The Scibek plaintiff argued that by verbally ordering the repairs, defendant effectively waived his right to a written estimate. Id. at 83. Scibek distinguished D'Egidio Landscaping, supra, 337 N.J. Super. at 255, where the defendant actually "beseeched the plaintiff" to forego a written contract because of their familial relationship. Scibek, supra, 339 N.J. Super. at 85. Since the defendants cannot be said to have induced the completion of the extras without a writing, estoppel does not apply.

The Scibek panel strictly construed the CFA regulations as to automotive repairs, which require any waiver of a person's rights thereunder to be in writing. Id. at 83; N.J.A.C.

13:45A-26C.2(a)(3)(i)(5). Unlike the automotive repair regulations, the home improvement regulations do not explain how a waiver of a written estimate or agreement is accomplished. N.J.A.C. 13:45A-16.2(a)(12). "Waiver involves the intentional relinquishment of a known right and must be evidenced by a clear, unequivocal and decisive act from which an intention to relinquish the right can be based." Scibek, supra, 337 N.J. Super. at 82 (citing Country Chevrolet, Inc. v. Twp. of N. Brunswick Plan. Bd., 190 N.J. Super. 376, 380 (App. Div. 1983)). Defendants' verbal directions to Venito to get the extras "done" cannot be fairly characterized as "the intentional relinquishment of a known right," or a clear unequivocal "act from which an intention to relinquish" a right can be drawn. Ibid.

Online also contends that this situation is akin to that presented in Marascio v. Campanella, 298 N.J. Super. 491 (App. Div. 1997) and Barfield v. Manley, No. A-2264-04 (App. Div. Feb. 3, 2006). Marascio, supra, 298 N.J. Super. at 494-95, involved a claim by a subcontractor against a shareholder owner of a property being renovated. The subcontractor alleged that in the past, he had performed work on other job sites for the owner without a writing, and that the work had been paid for directly by the individual owner. Id. at 495. Because of this history between the parties, quantum meruit recovery was allowed. Id. at 503-04. In Barfield, supra, slip op. at 2, two proposed versions of a contract for home repairs were at issue, one a proposal prepared by plaintiff, the other a proposal by plaintiff revised by defendant. While the parties continued to quibble over the terms of the agreement, the work was completed. Ibid. No agreement was ever reached. Id. at 9. Because of the ongoing jockeying between them, while the work was being completed, both parties were equally responsible for creating the problem. Quantum meruit recovery was permissible under those circumstances. Id. at 10-11.

Here, the dispute is the immediate result of Online's violation of N.J.A.C. 13:45A-16.2(a)(12). Its failure to provide defendants with a written estimate and to obtain written authorizations placed his recovery of the cost of services in doubt. Had Online complied with the regulatory provisions there could not have been a "viable dispute" as to the amount due. Scibek, supra, 339 N.J. Super. at 82.

Therefore, we affirm.

(continued)

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A-2622-06T2

December 6, 2007