DAVID DELLA VALLE v. ANGEL REMODELING

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3855-08T33855-08T3

DAVID DELLA VALLE and JENNIFER DELLA VALLE,

Plaintiffs-Respondents,

v.

ANGEL REMODELING and STEVEN CARPINETA,

Defendants-Appellants.

________________________________

 

Argued: December 9, 2009 - Decided:

Before Judges Payne and C.L. Miniman.

On appeal from Superior Court of New Jersey, Special Civil Part, Camden County, Docket No. DC-024269-08.

Mario J. D'Alfonso argued the cause for appellants.

Donald S. Ryan argued the cause for respondents (Ryan and Thorndike, attorneys; Mr. Ryan on the brief).

PER CURIAM

Defendants Angel Remodeling and Steven Carpineta appeal from a final judgment in the Special Civil Part awarding plaintiffs David Della Valle and Jennifer Della Valle $15,000 for breach of a home-improvement contract into which the parties entered for work to be performed on plaintiffs' home; $45,000 for treble damages under the Consumer Fraud Act (CFA), N.J.S.A. 56:8-1 to -184; and $2091 as a CFA counsel-fee award. We reverse.

This action was instituted on November 24, 2008. In their complaint, plaintiffs alleged in the First Count that they entered into a contract with defendants on July 20, 2008. The scope of work included remodeling a front bedroom, a living room area, and the kitchen and doing some patio, electrical, and siding work. The contract price was $24,500. They alleged that prior to the commencement of the work they paid defendants $18,375. Thereafter, defendants commenced work without obtaining proper permits from the municipality, which plaintiffs alleged was a violation of the CFA. Additionally, defendant worked for only two days, left the job, and never returned, leaving the work substantially incomplete and with numerous deficiencies in the workmanship. They sought damages of $150,000.

In the Second Count of their complaint, plaintiffs alleged that "[d]efendants engaged in unconscionable commercial practices, deception and false promises and/or misrepresentations" contrary to the CFA and violated administrative regulations, including the Home Improvement Practices regulations promulgated under N.J.S.A. 56:8-4. They sought an award of $150,000 treble damages, attorney's fees, and costs.

Angel Remodeling filed its own complaint on December 11, 2008, apparently before it had been served with plaintiffs' complaint. In it, Angel Remodeling alleged that David Della Valle had interfered with the issuance of a permit for the work, causing a permanent hold on the job, and thus breaching their home-improvement contract. Additionally, Angel Remodeling alleged that David Della Valle was holding tools belonging to it worth $4000 and it sought $10,125 in damages for breach of contract and conversion. Defendants filed an answer to plaintiffs' complaint on January 20, 2009, and David Della Valle filed an answer to Angel Remodeling's complaint on February 10, 2009. These two actions were never consolidated. Defendants sought no discovery from plaintiffs in their action.

The matter reached trial on March 3, 2009, at which point the judge announced that the case would be backlogged as of March 20, 2009, and asked, "What's the problem?" Plaintiffs' counsel stated they were ready to proceed, but defendants pro se stated that they were not. Plaintiffs' counsel advised the court that there was a similar case filed by Angel Remodeling in the Special Civil Part involving the exact same facts and contract, which had been scheduled for trial on April 6, 2009, and that the two cases should be consolidated. The judge replied, "Okay. The case is scheduled for today." Defendants protested that they did not have all their documentation. The judge replied, "Sir, that's not my problem. The case was scheduled for today." Defendant Carpineta then said, "I have it for today's case, but for my complaint I don't have my documentation---." The judge interrupted to say, "Sir, I don't know anything about another complaint. All I know is there is a case scheduled for today called Della Valle versus Angel Remodeling and that's the case I'm going to hear. All right. Let's proceed." At that point, plaintiffs' counsel called his first witness and the case was tried to a conclusion, with the judge entering the judgment described above. This appeal followed. On March 31, 2009, the judge dismissed the complaint filed by Angel Remodeling without any further proceedings. No appeal has been taken from that dismissal.

Defendants allege that the judge mistakenly exercised his discretion when he denied defendants' request for a continuance to give defendant sufficient time to seek counsel, schedule witnesses, and review an expert report produced during the trial. Unfortunately, defendants did not request a continuance for those reasons, but only to secure documentation relevant to their affirmative claim.

It is a well-settled principle that our appellate courts will decline to consider questions or issues not properly presented to the trial court when an opportunity for such presentation is available "unless the questions so raised on appeal go to the jurisdiction of the trial court or concern matters of great public interest."

[Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973) (citation omitted).]

We, thus, confine our review to whether the judge mistakenly exercised his discretion in denying the continuance where the plaintiffs' attorney advised the judge that there were two cases involving the identical facts and contract that ought to be consolidated for trial and defendants stated they were not prepared to try the case that had not been listed for trial.

"[J]udicial discretion" is the option which a judge may exercise between the doing and the not doing of a thing which cannot be demanded as an absolute legal right, guided by the spirit, principles and analogies of the law, and founded upon the reason and conscience of the judge, to a just result in the light of the particular circumstances of the case.

[Smith v. Smith, 17 N.J. Super. 128, 132 (App. Div. 1951) (citations omitted), certif. denied, 9 N.J. 178 (1952).]

The exercise of judicial discretion "is not unbounded and it is not the personal predilection of the particular judge." State v. Madan, 366 N.J. Super. 98, 109 (App. Div. 2004).

Moreover, the exercise of judicial discretion must have a factual underpinning and legal basis. Id. at 110. Applying these principles, we have explained:

"Judicial discretion, sound discretion guided by law so as to accomplish substantial justice and equity, is a magisterial, not a personal discretion. It is legal discretion, in which the judge must take account of the applicable law and be governed accordingly. If the judge misconceives or misapplies the law, his discretion lacks a foundation and becomes an arbitrary act. When that occurs, the reviewing court should adjudicate the matter in light of applicable law to avoid a manifest denial of justice."

[Cosme v. Borough of E. Newark Twp. Comm., 304 N.J. Super. 191, 202 (App. Div. 1997) (quoting In re Presentment of Bergen County Grand Jury, 193 N.J. Super. 2, 9 (App. Div. 1984)), certif. denied, 156 N.J. 381 (1998).]

Where the trial court makes a discretionary ruling, that decision will not be reversed on appeal absent a showing of a mistaken exercise of discretion. In re Estate of Howard C. Hope, Sr., 390 N.J. Super. 533, 541 (App. Div.), certif. denied, 191 N.J. 316 (2007); Schweizer v. MacPhee, 130 N.J. Super. 123, 127 (App. Div. 1974). A trial court decision will constitute a mistaken exercise of discretion where "the 'decision [was] made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis.'" United States v. Scurry, 193 N.J. 492, 504 (2008) (quoting Flagg v. Essex County Prosecutor, 171 N.J. 561, 571 (2002)).

Rule 6:5-2(c) provides in pertinent part that "[i]f common issues of law or fact are involved in 2 or more actions pending in the Special Civil Part, all such actions shall be assigned for hearing or trial to the same judge." Furthermore, the time for discovery in the Special Civil Part begins to run on the date the defendant serves an answer and expires ninety days later. R. 6:4-5. Thus, discovery would not have expired here until April 18, 2009. Because the Special Civil Part has an early calendaring program, Rule 6:4-7(b) provides:

If a case in which discovery is permitted is listed for . . . trial before the expiration of the time allowed by these rules or court order for discovery, an adjournment to complete discovery shall routinely be granted without necessity of an appearance or the consent of the adversary if the request is made within the discovery period and discovery was timely commenced, as required by these rules. . . .

The judge failed to consider the policies sought to be vindicated by these rules: a fair opportunity to be heard and disposition of an entire controversy in one proceeding. As inartful as the pro se defendants' petition for an adjournment may have been, they were clearly seeking an opportunity to gather their proofs and submit them on all parties' claims. It was a mistaken exercise of discretion to deny defendants that opportunity.

Even if the denial of an adjournment was not a mistaken exercise of discretion, the judgment before us is problematic. Only "[c]ivil actions seeking legal relief when the amount in controversy does not exceed $15,000" are cognizable in the Special Civil Part. R. 6:1-2(a)(1). Furthermore, Rule 6:1-2(c) provides:

Where the amount recoverable on a claim exceeds the monetary limit of the Special Civil Part . . ., the party asserting the claim shall not recover a sum exceeding the limit plus costs and on the entry of judgment shall be deemed to have waived the excess over the applicable limit.

Costs are customarily not included for purposes of calculating the monetary limit. Pressler, Current N.J. Court Rules, comment 2.1.3 on R. 6:4-1 (2010).

Here, the judge awarded $15,000 in damages, $45,000 in treble damages, and $2091 in counsel fees and costs. The latter amounts were allowed under the CFA, which provides:

Any person who suffers any ascertainable loss of moneys or property . . . as a result of the use or employment by another person of any method, act, or practice declared unlawful under this act . . . may bring an action . . . in any court of competent jurisdiction. In any action under this section the court shall, in addition to any other appropriate legal or equitable relief, award threefold the damages sustained by any person in interest. In all actions under this section, including those brought by the Attorney General, the court shall also award reasonable attorneys' fees, filing fees and reasonable costs of suit.

[N.J.S.A. 56:8-19.]

In a Special Civil Part action, our Supreme Court considered whether counsel fees were subject to the limit of Rule 6:1-2(a)(1) on cognizable claims:

Structurally, [the CFA] provides clues about the appropriate characterization of [CFA] counsel fees. It broadly distinguishes between damages on the one hand and non-damages on the other. The damages are the "ascertainable loss" . . ., which is to be trebled . . . . The non-damages are reasonable attorneys fees, filing fees and reasonable costs of suit. In fact, those are the costs that a litigant incurs in suing for a [CFA] violation. Thus, while the Legislature did not specifically state that counsel fees are costs, it implicitly recognized counsel fees as outside the class of damages and as a component of fees and costs by lumping counsel fees, filing fees and costs together. See Maday v. Elview-Stewart Systems, Co., 324 N.W.2d 467 (Iowa 1982) (examining structure of statute allowing counsel fees and concluding that, because such fees were grouped with costs, they were costs).

 
[Lettenmaier v. Lube Connection, Inc., 162 N.J. 134, 140 (1999).]

In concluding that counsel fees were not subject to the limitations of Rule 6:1-2(a)(1), the Court analogized to one of our decisions:

The only New Jersey case decided under a similar scheme has reached the same conclusion. In Nieves v. Baran, 164 N.J. Super. [86,] 89 ([App. Div.] 1978), the Appellate Division determined that a calculation of the then jurisdictional limit of the County District Court of $3000 (under N.J.S.A. 2A:6-34(a)) included the treble damages provided in the [CFA] but did not include [CFA] counsel fees. At the time Nieves was decided, the County District Court statute provided for the award of a nominal counsel fee. N.J.S.A. 22A:2-42. Although not expressly stated, Nieves likely viewed that statute, which denominated counsel fees as part of taxed costs, as dispositive of the treatment the Legislature intended to accord statutory counsel fees relative to the jurisdictional limit.

 
[Id. at 141 (emphasis added and footnote omitted).]

The judgment that was entered by the judge was prepared by plaintiffs' counsel and acknowledged the $15,000 limit on cognizable claims. Nonetheless, the judge allowed $45,000 in treble damages as though such damages were outside the $15,000 limit and entered the judgment without modification.

In light of the judge's failure to adjourn this case at such an early stage and in light of the error in the judgment itself, the judgment is reversed and this matter is remanded for trial. Defendants shall be given an opportunity to amend their answer to state a counterclaim.

 
Reversed and remanded for further proceedings consistent with this opinion.

This amount obviously exceeds the maximum amount cognizable in the Special Civil Part of $15,000. R. 6:1-2(a)(1).

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A-3855-08T3

March 4, 2010