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Josantos Construction v. Bohrer

326 N.J. Super. 42, 740 A.2d 653 (App. Div. 1999)

CONSUMER FRAUD ACT; AWARDS—The award of “reasonable costs of suit” under the Consumer Fraud Act does not encompass an award of expert witness fees.

A contractor sued for money owed pursuant to a home improvement contract for the construction of a patio and walkway. The homeowner counterclaimed, alleging violations of the Consumer Fraud Act. The lower court found the contractor’s claim for the patio construction was not proper and that the homeowner’s counterclaim under the Act was appropriate. Essentially, the patio was to be constructed with steps. Before the steps were completed, but after all other work had been done, the homeowner signed a “Certificate of Completion” at the contractor’s request. This was a violation of the Consumer Fraud Act which specifically prohibits a seller from requesting a buyer to sign a Certificate of Completion before the home improvement is completed in accordance with the contract. In addition, when the steps were finally put in, they did not conform to the construction contract. Subsequently, other defects in the work became apparent. Under the Consumer Fraud Act, there must be a causal connection between the construction defects and the breach of the Act. The lower court found that there was sufficient causal linkage between the premature signing of the Certificate of Completion and the improperly built steps to support trebling of the $600 damage attributable to that defect. In addition, there were other deficiencies discovered subsequent to the signing of the Certificate of Completion. The lower court determined the cost to remedy those additional defects and then trebled that amount when entering judgment for the homeowner. It did not, however, articulate any connection between those other construction defects and the Act. For that reason, the Appellate Division was unable to ascertain the necessary relationship. “The fortuitous occurrence that the signing of the Certificate of Completion preceded the discovery of the deficiencies does not supply the causal connection to establish an ‘ascertainable loss.’ A Consumer Fraud Act violation, with its concomitant trebling of ascertainable loss requires more than the showing of a breach of contract.” The homeowner also claimed it should have been awarded expert witness fees. The Court disagreed, finding that expert witness fees are not encompassed within the phrase “reasonable costs of suit.”


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