Case Law Summaries

Keller v. Franchi

• Opinion Date: April 6, 2001
• Business Law
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CONSUMER FRAUD ACT—A breach of contract is not per se unfair or unconscionable and does not alone violate the Consumer Fraud Act.

A couple contacted a landscaping store to purchase “double-screened topsoil” for use with home gardening. What was delivered, however, was not of home gardening quality, and contained much debris. The landscapers said in their undisputed testimony that it was, in fact, double screened, but that one screen had “large openings” and it apparently failed to screen out unsuitable debris. The homeowners sought to have the landscapers come and see the soil; the landscapers made an appointment to do so, but failed to keep it. The homeowners then sought to have the landscapers remove the soil. They did not, and the homeowners finally paid another contractor to remove the soil, grade, rake, and seed their property. Alleging a violation of the Consumer Fraud Act, the homeowners filed suit. The lower court judge found for the homeowners and trebled their damages in accordance with the Act. On appeal, the Appellate Division reversed the lower court’s finding of consumer fraud, because “in consumer goods transactions such as those in this case, unconscionability must be equated with the concepts of deception, fraud, false pretense, misrepresentation, concealment and the like ... . A breach of warranty or breach of contract is not per se unfair or unconscionable and does not alone violate the Consumer Fraud Act.” If the landscapers had returned to inspect the soil, they could have remedied the issue. Further, the attitude of the landscapers towards the dissatisfied homeowners had been what could be considered “shoddy.” However, that did not rise to the level of a violation of the Act. Therefore, the Court reversed the judgment of treble damages and counsel fees and remanded the matter for a determination of damages based solely on breach of warranty.

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