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Pleasant Run, LLC v. Trigazis

A-958-03T3 (N.J. Super. App. Div. 2004) (Unpublished)

CONSUMER FRAUD ACT—Where no contract is reached for performance of home improvements, the Consumer Fraud Act does not apply to the proposed transaction.

A property owner was making renovations to a kitchen in his farmhouse. The owner went to a countertop store and selected slabs of stone. The store then recommended a countertop installer. The owner contacted the installer, and after describing the job with a hand-drawn sketch, the installer estimated the cost to be $2,450. The owner then sent a letter to the installer, enclosing a plan showing the outline of his countertop and asking whether his bid for $2,450 was still acceptable. After reviewing the plans, the installer contacted the owner and said he would consider the job for $3,200. The owner then sent a letter and a check to the installer for $500. The letter stated that the check was for the down payment for the kitchen countertop and that a $2,700 balance remained. The installer deposited or cashed the check, but, after seeing the job in person, refused to do the job. The owner demanded his deposit back. When the installer refused, the owner sued seeking treble damages and counsel fees under the Consumer Fraud Act (Act).

The installer testified that after his initial conversations with the owner and receipt of the plans, he called the countertop store and was told that they were holding stone slabs for use on the job. Although the installer had not yet received the deposit, the store sent the slabs to the installer. After he declined to take the job, he alleged that he offered to pay back $300, because it cost him $200 to have the slabs transported to and from his office. He testified that the owner refused and threatened to “break [his] bones.” Because the installer failed to provide any proof of this, the lower court refused to award him the $200. However, the lower court held that the owner failed to prove that the Act had been violated. Therefore, it denied the owner’s motion for treble damages and counsel fees.

The Appellate Division affirmed. A violation of the Home Improvement Practices regulations would create liability under the Act. To satisfy these regulations, there must be an oral or written agreement between a seller and a property owner. N.J.A.C. 13:45A-16.2(a)(12) requires that all home improvement contracts in excess of $200 be in writing, signed by all parties, and shall clearly set forth all terms and conditions of the contract. The Appellate Division agreed with the lower court’s determination that there was no contract in this case. Although the parties had agreed upon the price, the parties had not reached a final agreement on all contract terms. The only evidence regarding any type of contract were the phone calls and letters sent between the parties. However, there was never a contract signed by all parties clearly and accurately setting forth all the terms and conditions of the agreement. Therefore, the Act did not apply. For that reason, the Appellate Division affirmed the lower court’s decision, holding that the owner was not entitled to treble damages and counsel fees.

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