Perez v. Professionally Green, LLC

73 A.3d 452, 215 N.J. 388, 2013 WL 4836706, 2013 N.J. LEXIS 846
CourtSupreme Court of New Jersey
DecidedSeptember 12, 2013
StatusPublished
Cited by46 cases

This text of 73 A.3d 452 (Perez v. Professionally Green, LLC) is published on Counsel Stack Legal Research, covering Supreme Court of New Jersey primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Perez v. Professionally Green, LLC, 73 A.3d 452, 215 N.J. 388, 2013 WL 4836706, 2013 N.J. LEXIS 846 (N.J. 2013).

Opinion

Justice PATTERSON

delivered the opinion of the Court.

The New Jersey Consumer Fraud Act, N.J.S.A. 56:8-1 to -20 (CFA or Act), authorizes an award of attorneys’ fees to a plaintiff who “suffers any ascertainable loss of moneys or property, real or personal,” as a result of a “method, act, or practice” prohibited by the Act. N.J.S.A. 56:8-19. This Court has held that “a plaintiff, [392]*392who pleads but cannot survive a motion for summary judgment in respect of the issue of ascertainable loss,” may not assert a claim for attorneys’ fees under the Act. Weinberg v. Sprint Corp., 173 N.J. 233, 253, 801 A.2d 281 (2002). In accordance with Weinberg, to be entitled to an award of attorneys’ fees, a CFA plaintiff must raise a genuine issue of material fact with respect to the issue of ascertainable loss, sufficient to warrant denial of a summary judgment motion filed by a defendant pursuant to Rule 4:46-2.

This case requires us to construe the CFA and apply the principles of Weinberg in a procedural setting not previously addressed by this Court. Dissatisfied with swimming pool installation work performed by defendant, Swim-Well Pools, Inc. (Swim-Well), plaintiffs Alex and Cathy Perez filed a CFA claim against Swim-Well and moved for summary judgment prior to trial. The trial court granted plaintiffs’ motion in part and denied it in part, holding that plaintiffs had demonstrated a technical violation of the CFA but that Swim-Well had raised a genuine issue of material fact as to whether plaintiffs had suffered an ascertainable loss under N.J.S.A. 56:8-2. The case proceeded to trial. At the close of plaintiffs’ proofs, the trial judge held that plaintiffs had not made a prima facie showing on the issue of ascertainable loss and granted Swim-Well’s motion for involuntary dismissal of plaintiffs’ CFA claim under Rule 4:37-2(b). The trial court denied plaintiffs’ post-trial motion for attorneys’ fees under N.J.S.A. 56:8-19. Plaintiffs appealed, and the Appellate Division reversed, holding that plaintiffs were entitled to attorneys’ fees, notwithstanding the denial of their motion for summary judgment and the grant of Swim-Well’s motion for involuntary dismissal on the issue of ascertainable loss.

We reverse. The trial court never ruled that there was sufficient evidence for a rational factfinder to find in plaintiffs’ favor but rather found, after plaintiffs’ proofs at trial, that no rational factfinder could find an ascertainable loss. Thus, in the procedural setting here, plaintiffs did not present a “bona fide claim of ascertainable loss that raises a genuine issue of fact” within the

[393]*393meaning of Weinberg, supra, 173 N.J. at 253, 801 A.2d 281. Accordingly, we conclude that plaintiffs have not established a viable claim for attorneys’ fees under N.J.S.A. 56:8-19 and that the trial court properly dismissed their CFA claim.

I.

For purposes of this appeal, we will draw upon the procedural history and the facts of the ease as set forth in the parties’ briefs and pleadings, as well as the trial court’s statements of reasons.

According to plaintiffs, they decided to install a swimming pool, build a fence, patio, retaining walls and walkways, and enhance the landscaping at their home in Franklin Lakes in 2004.1 Plaintiffs maintain that they signed a contract with Weissman Engineering Co. (Weissman) to prepare a plan for the pool. Plaintiffs assert that they selected Professionally Green, LLC (Professionally Green) to construct the patio, retaining walls and walkways, install a diving board, handle paving and drainage for the project, and provide landscaping. They also represent that they hired VCA Sons, Inc. (VCA) to build a fence around the pool. Plaintiffs maintain that they retained Swim-Well to construct the pool in accordance with Weissman’s design. Plaintiffs’ complaint alleges that plaintiffs and Swim-Well executed a contract on March 15, 2004.

According to plaintiffs, Weissman’s design for the pool was defective and did not comply with municipal regulations. Swim-Well allegedly became aware of the design flaws while construction was underway. Plaintiffs assert that Swim-Well continued to accept payments from them notwithstanding its knowledge of the design defects and refused to remedy those defects in response to plaintiffs’ demand. Plaintiffs also allege that Professionally Green made errors in the construction of the patio and the drainage [394]*394system, resulting in flooding, and that VCA constructed the fence too close to a heater, prompting fire inspectors to withhold certification. Plaintiffs claim that errors by all four contractors resulted in an unusable pool, an unsightly condition on their property, and failed municipal inspections. Plaintiffs assert that they were compelled to retain new contractors to complete the work.

Plaintiffs sued Swim-Well and an individual alleged to be associated with Swim-Well, Norman Taranto (Taranto), as well as Professionally Green, Weissman and VCA, and individual defendants alleged to be connected with each contractor. In an amended complaint, filed in March 2009, plaintiffs asserted claims based upon breach of contract, negligence, breach of express and implied warranty, professional malpractice and violations of the CFA and N.J.A.C. 13:45A-16.2 As pled against Swim-Well and Taranto in Count Fifteen of the Amended Complaint, these claims were premised on three alleged deficiencies in the March 15, 2004 contract between plaintiffs and Swim-Well: (1) the absence of “the dates or time period when the work was to begin and to be completed”; (2) the lack of a “guarantee or warranty with respect to the labor and services provided as well as the provision that allows [plaintiffs] to cancel the contract”; and (3) the “[f]ailure to provide mandatory cancellation/warning” to plaintiffs in the contract. Plaintiffs alleged that these violations of N.J.S.A. 56:8-2 “resulted in the Plaintiffs having suffered an ascertainable loss of money.” In addition to damages, plaintiffs sought “interest and costs as provided by law, as well as all other relief deemed appropriate by the court or provided by statute.”

Two months after filing them amended complaint, plaintiffs moved before the trial court for partial summary judgment against Swim-Well, Professionally Green, VCA and the individual [395]*395defendants. As to each defendant, plaintiffs sought an order “dismissing [the defendant’s] Answer,” declaring that plaintiffs had suffered an ascertainable loss as defined by the CPA, and awarding unspecified attorneys’ fees. Although plaintiffs’ complete filing is not part of the record, their motion for partial summary judgment against Swim-Well and Professionally Green was evidently premised on the three CFA violations asserted in their amended complaint: the contract’s lack of start and end dates for the construction project, the absence of a guarantee or warranty, and the lack of a cancellation provision.

Swim-Well and Taranto responded that the issue of ascertainable loss and plaintiffs’ claim for attorneys’ fees should be resolved at trial, not at the summary judgment stage. They cross-moved for partial summary judgment on two of the three alleged violations of the CFA: the absence of warranty provisions and cancellation provisions in the contract.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Rosa Jovanovic, Etc. v. Estate of David Ravin
New Jersey Superior Court App Division, 2026
Amy Nielsen v. County of Cape May
New Jersey Superior Court App Division, 2026
Amherst Farms Homeowners Association, Inc. v. D.M. and L.S.
New Jersey Superior Court App Division, 2025
Gisela Vega v. Elizabeth Board of Education
New Jersey Superior Court App Division, 2025
Kayronna C. Benjamin-Carter v. John Fontanetta, M.D.
New Jersey Superior Court App Division, 2025
Michael Miller v. Ernest Zagranichny
New Jersey Superior Court App Division, 2025
Antonio Bell, Jr. v. Georgie M. Hardy
New Jersey Superior Court App Division, 2025
In the Matter of the Estate of Vincenzo A. Giorgio
New Jersey Superior Court App Division, 2024
Asap Realty, Inc. v. Yosef Birnboim
New Jersey Superior Court App Division, 2024
Caroline Donnelly, Etc. v. Our Lady of Lourdes Medical Center
New Jersey Superior Court App Division, 2024
Ejk Realty LLC v. Akr Contracting Inc.
New Jersey Superior Court App Division, 2024
J.M. v. K.A.K.
New Jersey Superior Court App Division, 2024
Sharon Gomez v. Intertek Testing Services, Na, Inc.
New Jersey Superior Court App Division, 2024
IMO Registrant R.H.: IMO Registrant T.L.
Supreme Court of New Jersey, 2024
Zulfigar Ahmed v. American Security Insurance Company
New Jersey Superior Court App Division, 2024
Mansour S. Mansour v. Gemini Restoration, Inc.
New Jersey Superior Court App Division, 2023
In the Matter of the Estate of Mark A. Rayner
New Jersey Superior Court App Division, 2023

Cite This Page — Counsel Stack

Bluebook (online)
73 A.3d 452, 215 N.J. 388, 2013 WL 4836706, 2013 N.J. LEXIS 846, Counsel Stack Legal Research, https://law.counselstack.com/opinion/perez-v-professionally-green-llc-nj-2013.