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Branigan v. Level on the Level, Inc.

326 N.J. Super. 24, 740 A.2d 643 (App. Div. 1999)

CONSUMER FRAUD ACT; CONTRACTORS—Even if there are no damages flowing from a failure to include a starting and ending date in a home improvement contract, a homeowner is entitled to attorneys’ fees pursuant to the Consumer Fraud Act.

A homeowner contracted with a construction company for an extensive home improvement project designed to renovate portions of the existing home and add significant additional living space. The homeowner spent three years developing the design plans and specifications for the project. The contract was drafted by the construction company and specifically incorporated the drawings and specifications prepared by the homeowner. After completion, two problems became the impetus for litigation—an inadequate heating system and the occasional presence of water in the basement of the addition. Both the lower court and the Appellate Division held that the homeowner, not the contractor, was responsible for each of those conditions and that the homeowner expressly disregarded advice from the contractor with respect to water prevention or water removal devices and the need for an additional furnace.

Although there was no evidence that the contractor had done anything or failed to do anything that could be considered a negligent breach of contract, breach of warranty, or violation of the Consumer Fraud Act, the Appellate Division did find a technical violation of that Act by the contractor. Violation of the regulations promulgated under the Consumer Fraud Act may be the basis of an unlawful practice and such a violation may result in the imposition of liability. In this case, the home improvement contract did not set forth “the dates or time period on or within which the work is to begin and be completed by the seller.” There is evidence that the parties discussed the topic and, in fact, there was no contention between the parties about the timetable and the work ended amicably. Nonetheless, it was clear that the contractor’s failure to set forth the starting and completion dates was a violation of the Consumer Fraud regulations. On the other hand, it was clear that treble damages could not be awarded because there was no causal link between the violation and any damages. In essence, there was no evidence of damages flowing from the failure to specify starting and completion dates in the contract.

The homeowner, however, claimed that even if there were no damages, it should still be awarded attorneys’ fees and costs of suit. The Appellate Division agreed. “Although we think that facts now before us demonstrate the lowest conceivable level of violation under the Consumer Fraud Act, and although we have difficulty seeing how the salutary goals of this Act are furthered by the award of fees, the statute nevertheless supports such an award. The Supreme Court has made it clear that the statute mandates an award of counsel fees and costs for any violation of the Act even if that violation caused no harm to the consumer.” The amount of reasonable attorneys’ fees to be awarded is within the sound discretion of a trial court. The Court remanded the matter for the limited purpose of determining an appropriate award of reasonable attorneys’ fees, filing fees, and reasonable costs of suit to the homeowner.


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