VERONICA G. OGDEN v. ANTHONY F. TRUFOLO JR.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4202-10T3

VERONICA G. OGDEN,

Plaintiff-Respondent/

Cross-Appellant,

v.

ANTHONY F. TRUFOLO, JR., t/a

LITTLE SILVER MAINTENANCE,

Defendant-Appellant/

Cross-Respondent.

_________________________________

SubmittedApril 8, 2013 DecidedMay 9, 2013

 

Before Judges Parrillo, Sabatino and Carroll.

 

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-4156-06.

 

Anthony F. Trufolo, Jr., appellant/cross-respondent pro se.

 

Klatsky Sciarrabone & DeFillippo, attorneys for respondent/cross-appellant (Thomas C. Sciarrabone, on the brief).

PER CURIAM

This case arises out of proven misrepresentations and deficiencies in workmanship by a defendant contractor, in connection with a basement renovation project he undertook for a plaintiff homeowner. After a five-day bench trial, the court found defendant Anthony Trufolo, Jr., trading as Little Silver Maintenance, liable to plaintiff Veronica G. Ogden for numerous violations of the Consumer Fraud Act ("CFA"), N.J.S.A. 56:8-1 to -20. The court awarded plaintiff $50,175 as treble damages for her ascertainable losses under the CFA, plus $27,024.51 in counsel fees and expert costs.

Defendant appeals the trial court's rulings on liability and damages, arguing that the evidence does not fairly support those determinations. Defendant also contends that the court should have disqualified plaintiff's trial attorney because that attorney's law firm had represented defendant's parents in planning their estate in 1993. Plaintiff cross-appeals the sufficiency of the counsel fee award, which the court had substantially reduced from her $97,471.16 fee request. We reject both the appeal and cross-appeal, and affirm the trial court's determinations with one modification respecting the award of expert fees.

The extensive proofs at trial, in which the parties were each represented by counsel,1 established the following core facts. Plaintiff owns a home in Rumson. Defendant operates a sole proprietorship in the home renovation and repair business. In December 2005, the parties entered into a written contract for $14,320, in which defendant agreed to convert her unfinished basement into a children's playroom. The project included the installation of cabinets, walls, a stair railing, ceiling lights, light switches, and other electrical and non-electrical work. At the time the project began, defendant did not yet have a home improvement contractor's license. Defendant also did not possess, nor did he thereafter obtain, an electrician's license.

Defendant performed certain work on plaintiff's premises from January 2006 through April 2006. According to the testimony of plaintiff's expert Patrick Porzio, a licensed home inspector and electrician, the work was deficient in numerous respects, including but not limited to the stairway, sheetrock, ceiling, doors, and electrical components. Plaintiff also presented a then-retired municipal subcode official, who testified that he had issued citations to defendant for doing home construction on plaintiff's house without a permit and electrical work there without an electrician's license. Defendant, who did not present a competing expert at trial, denied that the work was deficient, contending that plaintiff had expressed to him multiple times that she was satisfied with it.

Upon considering the testimony, various photographs of the work, and other proofs, the trial judge, Hon. Honora O'Brien Kilgallen, J.S.C., concluded that defendant violated the CFA, and associated regulations under that statute, in various respects. Among other things, Judge Kilgallen found that defendant violated: N.J.A.C. 13:45A-16.2(a)(12), by failing to list with specificity in the contract the actual products or materials to be used, and also by performing additional work not set forth in the written agreement; N.J.A.C. 13:45A-16.2(a)(8), by misrepresenting to plaintiff that he was able to perform the renovations in a workmanlike fashion; and N.J.A.C. 13:45A-16.2(a)(10)(i), by commencing work before all required permits were issued.

The judge rejected defendant's unsubstantiated assertion that plaintiff had elected to proceed with the project without the required permits in order to evade a higher real estate tax assessment. In addition, the judge found unpersuasive defendant's claim that another electrical contractor was responsible for the allegedly deficient electrical work. Instead, the judge adopted plaintiff's assertion that defendant had illegally performed that work himself without having an electrician's license.

As a result of defendant's failures, the judge concluded that plaintiff sustained $5,625 in damages for sums she paid to an electrician to correct the electrical work, and an additional $11,100 that she paid to another contractor to rebuild the stairway, repair the ceiling and sheetrock, and perform other corrective measures. Pursuant to the CFA, the judge trebled those proven losses, resulting in total damages of $50,175. The judge also awarded plaintiff a reduced sum of $20,000 in counsel fees, plus $2,624.51 in costs and $4,400 in expert fees.

Our scope of review of the determinations from this bench trial is limited. An appellate court shall "not disturb the factual findings and legal conclusions of the trial judge unless [it is] convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice[.]" Seidman v. Clifton Sav. Bank, S.L.A., 205 N.J. 150, 169 (2011) (quoting In re Trust Created by Agreement Dated December 20, 1961, 194 N.J. 276, 284 (2008)); see also Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J 474, 484 (1974); Anderson v. City of Bessemer City, 470 U.S. 564, 574, 105 S. Ct. 1504, 1512, 84 L. Ed. 2d 518, 529 (1985) (noting the trial court's "major role is the determination of fact"). We only review de novo the trial court's legal determinations. 30 River Court E. Urban Renewal Co. v. Capograsso, 383 N.J. Super. 470, 476 (App. Div. 2006) (citing Rova Farms, supra, 65 N.J. at 483-84).

As a threshold matter, we sustain Judge Kilgallen's denial of defendant's motion to disqualify plaintiff's trial attorney because of his law firm's prior estate planning services for defendant's parents in 1993. The judge properly rejected defendant's arguments that plaintiff's attorney was disqualified under Rules 1.7, 1.8, and 1.9 of the Rules of Professional Conduct.

The 1993 estate planning matter was clearly not "the same or a substantially related matter" to the present civil litigation. R.P.C. 1.9(a). Moreover, defendant was not the client in that estate matter. The fact that defendant might be a beneficiary of his parents' estate is far too attenuated a basis to conclude that plaintiff's attorney, who had not participated in the 1993 estate planning, would be "materially limited" in his representation of defendant's adversary almost two decades later. R.P.C. 1.7(a)(2). Under the circumstances, the judge sensibly upheld plaintiff's right as a client to select counsel of her own choosing. Dewey v. R.J. Reynolds Tobacco Co., 109 N.J. 201, 205 (1988); see also Cavallaro v. Jamco Prop. Mgmt., 334 N.J. Super. 557, 572 (App. Div. 2000) (noting that disqualification of counsel is a harsh measure that should only be granted "sparingly").

We likewise find a sound basis for the trial judge's determination of liability under the CFA and her award of treble damages for plaintiff's ascertainable losses. The CFA is remedial legislation, which is to be construed liberally in favor of consumers. Allen v. V & A Bros., Inc., 208 N.J. 114, 128 (2011). The statute authorizes a private remedy where a plaintiff can "'allege each of three elements: (1) unlawful conduct by the defendants; (2) an ascertainable loss on the part of the plaintiff; and (3) a causal relationship between the defendant's unlawful conduct and the plaintiff's ascertainable loss.'" Dabush v. Mercedes-Benz U.S.A., LLC, 378 N.J. Super. 105, 114 (App. Div.) (quoting New Jersey Citizen Action v. Schering-Plough Corp., 367 N.J. Super. 8, 12-13 (App. Div.), certif. denied, 178 N.J. 249 (2003)), certif. denied, 185 N.J. 265 (2005). There is substantial credible evidence in the record to support these elements here.

Although defendant quarrels on appeal with various aspects of the trial court's findings, there is ample proof that he violated applicable CFA regulations in numerous respects. Those violations proximately caused damages to plaintiff, specifically prompting her to engage licensed contractors to remediate defendant's defective work. See Allen, supra, 208 N.J. at 129 (noting that violations of the home improvement regulations promulgated by the Division of Consumer Affairs may support civil liability by a defendant contractor to the affected consumer). We do, however, vacate the award of expert fees because they are not recoverable under the CFA. Josantos Constr. v. Bohrer, 326 N.J. Super. 42, 48 (App. Div. 1999).

Although we need not reach the issue because it was not raised below, see Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973), we reject defendant's contention that plaintiff's attorney violated R.P.C. 8.4(a), (b), (c), and (d) by engaging in allegedly wrongful conduct in the prosecution of this litigation. The claims brought to trial were amply based in law and in fact, and plaintiff's counsel did nothing unethical in zealously advocating his client's interests.

Lastly, we reject plaintiff's cross-appeal contending that the counsel fee award was insufficient. An award of counsel fees will be disturbed "'only on the rarest of occasions, and then only because of a clear abuse of discretion.'" Packard-Bamberger & Co. v. Collier, 167 N.J. 427, 444 (2001) (quoting Rendine v. Pantzer, 141 N.J. 292, 317 (1995)). The trial judge acted within her discretion in finding that plaintiff's fee request was unreasonably high, in light of the nature of the issues contested in this litigation and the sums that were at stake. The modified fee award in this context was not unfair, nor was it so meager as to warrant our appellate intervention.

Affirmed, as modified. The trial court shall issue an amended judgment vacating the expert fees within thirty days of this opinion.

1 Defendant is now self-represented on appeal.