Mancini v. Vanderlinden

A-2274-00T2 (N.J. Super. App. Div. 2001) (Unpublished)

Opinion Date: December 12, 2001
Business Law
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CONSUMER FRAUD ACT—Artistic restoration of an architectural element of a house is not home improvement; therefore, the Consumer Fraud Act as applied to home improvement contracts is inapplicable.

A homeowner engaged a craftsman to restore a marble mantle piece. The mantel had been removed prior to demolition and restoration of the owner’s home. Based upon a photograph shown to him, the craftsman gave an estimate of either $1,200 to $1,500 or $900 to $1,100, depending on which party’s testimony was credible. When the craftsman picked up the mantel from its place of storage, he realized that it was a much more complicated job than anticipated. Discussions ensued. It appears that the property owner told him to continue the job with a promise of full payment on completion. However, the property owner “testified that she anticipated that the cost would be no greater than $1,100” plus some small extra payments. When the bill arrived for $3,300, the owner offered $1,500 to cover all of the work and a lawsuit was filed. The craftsman filed a lawsuit to collect the full amount of his charges. The lower court heard testimony, and awarded the craftsman $1,500 plus costs. It also rejected the homeowner’s contention that counsel fees under the Consumer Fraud Act should have been awarded. The lower court’s finding was that “the Act did not apply to the work performed by [the craftsman] since it was artistic reconstruction as opposed to a home improvement contract.” The Appellate Division agreed, applying a number of theories. First, the Consumer Fraud Act provides for the award of attorney’s fees where a party has either brought an action or asserted a counterclaim. Here, no counterclaim was filed by the homeowner. Further, the Court believed that even if the homeowner’s responsive pleading “was sufficient to notice plaintiff of her demand for counsel fees under the Consumer Fraud Act, she was not the prevailing party… .” According to the Court, all the lower court did was to establish fair value of the work done by the craftsman.

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