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Nejmeh v. Forbes

A-1714-07T2 (N.J. Super. App. Div. 2008) (Unpublished)

CONTRACTS; DAMAGES; ATTORNEYS FEES; PROOFS — Where to do otherwise would result in an injustice, a court may relax the rules of evidence to permit lay testimony as to expenses incurred by the damaged party arising out of a contract breach, even as a substitute for an affidavit as to legal fees.

Two homeowners entered into an agreement with a contractor to expand the kitchen in their newly acquired house. The entire job was to cost about $8,000, but the contractor never presented the homeowners with a written contract. After the work began, the parties agreed to a number of additional renovations at a cost amounting to nearly $25,000. Again, there was no written contract or change order. The contractor began working without any construction permits or required inspections. The dining room was damaged as a result of the kitchen demolition and the contractor performed unauthorized work on the heating ducts. The duct work was beyond the contractor’s qualifications. Near the end of the project’s completion, the homeowners were cited for failure to remove debris in a timely manner and as a result of being dissatisfied with the contractor’s work, they ordered him off the job and hired new contractors to complete the project. It was later found out that some of the materials used by the first contractor were more expensive than expected and some were substandard. The structural and plumbing work performed by the first contractor had to be redone because they did not meet code requirements, nor did the work done on the heating ducts.

The homeowners, who were planning to move into the house after the project was completed, had to spend four nights in a hotel and had to board their pet because their apartment lease expired before they could move into the house. The homeowner paid approximately $21,000 to the first contractor, but refused to pay him the remaining balance of $8,445. In the suit brought by the contractor for the amount due to him, the lower court found that the contractor had already performed a substantial amount of work when he was ordered off the job and that he was entitled to the $8,445 owed to him by the homeowners. The lower court, however, found that the contractor had violated a number of consumer fraud statutes and that the homeowners were entitled to a net judgment of roughly $22,000, representing their counsel fees and a trebling of the roughly $8,100 they had paid for the job’s completion.

On appeal, the contractor argued that the lower court improperly failed to require the homeowners to provide expert testimony in establishing their claims. This argument was rejected. The Appellate Division found that since much of the additional expense incurred by the homeowners resulted from the contractor’s failure to obtain permits and inspections, lay testimony by one of the homeowners was adequate to support the lower court’s award of damages to them. It also found that the lower court properly invoked a court rule allowing relaxation of rules of evidence where adhering to them would result in an injustice. The Court pointed out that the contractor had not disputed the reasonableness of the homeowners’ legal fees at trial and that this issue therefore could not be raised on appeal. It rejected the contractor’s argument that the absence of an affidavit as to legal fees precluded such an award. Additionally, it pointed out that requiring an affidavit would have prejudiced the contractor by causing it to incur yet additional expenses for the accounting. Based on its findings and conclusions, the Court affirmed the lower court’s award to the homeowners for damages and attorneys’ fees.


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