NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-0853-19
SHARON S. PARK,
Plaintiff-Respondent,
v.
THE KUKEN, LLC, KEUKEN, LLC, CHANG KI PARK, a/k/a MICHAEL PARK, and SAE JUNG LEE, a/k/a JENNIFER LEE,
Defendants-Appellants. _____________________________
Argued November 1, 2021 – Decided January 21, 2022
Before Judges Rothstadt and Natali.
On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-7637-17
Matthew Jeon argued the cause for appellant.
Jason L. Bittiger argued the cause for respondent (Bittiger Elias & Triolo, PC, attorneys; Jason L. Bittiger, of counsel and on the brief).
PER CURIAM In this Consumer Fraud Act (CFA), N.J.S.A. 56:8-1 to -20, action arising
from a proposed home improvement project, defendants The Kuken, LLC,
(Kuken), Keuken, LLC (Keuken) (collectively, the corporate defendants),
Chang Ki Park (Park), and Sae Jung Lee (Lee), (collectively, the individual
defendants), appeal from the Law Division's October 4, 2019 Final Judgment in
favor of plaintiff, Sharon Park and against all defendants, awarding damages of
$72,569, including treble damages, attorney's fees and costs. On appeal,
defendants argue that Judge John D. O'Dwyer erred when he entered an August
14, 2019 order granting partial summary judgment to plaintiff against the
corporate defendants on the issue of liability because there was no "meeting of
the minds" between the parties and, thus, no contract for home improvement
renovations.
Defendants also contend that a different judge, who was scheduled to try
the matter, improperly, sua sponte, entered an order in limine on September 19,
2019, which in effect granted plaintiff summary judgment against the individual
defendants, after the trial judge found that plaintiff suffered an ascertainable loss
under the CFA and that the individual defendants were liable for the corporate
defendants' violation of the CFA. According to defendants, these issues required
a trial.
A-0853-19 2 We affirm Judge O'Dwyer's order granting plaintiff's partial summary
judgment based on the corporate defendants' violations of the CFA. However,
we are constrained to vacate the final judgment because the trial judge
improperly entered summary judgment as to the issues of ascertainable loss and
the individual defendants' liability when he decided those issues in limine
without any prior notice to defendants.
I.
A.
The facts leading to the entry of the challenged orders viewed in the light
most favorable to defendants are summarized as follows. According to
defendants, Park is the president and owner of Kuken. Kuken is a registered
home improvement contractor with the State of New Jersey and has a business
address in Palisades Park. Lee, Park's wife, is the owner of Keuken, which
according to defendants was intended to serve as the design arm of Kuken.
Defendants advertised home improvements under the Keuken name, holding
Keuken out as a "design/remodeling company" on Park's business card, and
advertised all of their services on Keuken's website.
In July 2017, plaintiff was living in Illinois and anticipated moving to
New Jersey with her parents. To that end, she and her father purchased a
A-0853-19 3 condominium unit in Cresskill. Shortly after the closing on the purchase,
plaintiff met with Park to discuss hiring him to do work at the unit. Plaintiff had
been referred to Park by a relative. Park identified himself to plaintiff as
President of Keuken.
After conducting an inspection of the unit, Park recommended the
following work: replacement of the hardwood flooring, replacement of the
kitchen cabinets, repair of the bathroom vanity, a remodel of the master
bathroom, and painting throughout the unit. Plaintiff asked if the work would
be completed by November 2017, and Park assured her it would not be an issue.
Park encouraged plaintiff to review the Keuken website and visit defendants'
showroom to look at sample materials.
On August 10, 2017, plaintiff met with Park and a former employee at the
showroom to review sample cabinets, flooring, and paints. During the meeting,
Park represented that they were a "'one stop' shop" and could handle all of
plaintiff's requested improvements. Park also told plaintiff that they would take
care of the renovations if plaintiff gave them a key and that they would provide
an estimate to her by the following week, which they failed to do. Two weeks
later, plaintiff returned to the showroom to discuss cabinet samples.
A-0853-19 4 The parties met for a third time, a week after their last meeting, at the
showroom during which Park presented plaintiff with an estimate that described
the scope of the proposed work and a total cost of $34,380. Although plaintiff
later contended that the estimate did not comport with the parties' discussions,
plaintiff informed defendants that she wanted to move forward with replacing
the cabinet doors in the kitchen and guest bathroom, replacing the flooring
throughout the unit with hardwood, and painting the unit's interior.
At the end of the meeting, plaintiff gave Park keys to the unit and, offered
to pay a deposit to expedite the process. At Park's direction, plaintiff issued two
checks that omitted the payees names: One check, numbered 118, was written
for $9,523 for "cabinets [1]" and included "Kuken" in the memo line and the other,
numbered 119, was written in the amount of $9,000 to cover the costs of labor
and as a deposit for the work to begin. After receiving the checks, and without
plaintiff's knowledge, each individual defendant filled in their names: Lee's
name as the payee on check number 118, and Park as the payee on check number
119. The individual defendants each deposited the checks in their respective
1 The memo line on check 118 indicates the $9,523 was for "cabinets" and what appears to say "refurb." A-0853-19 5 personal bank accounts on September 5, 2017. They did so without having
entered into a written contract with plaintiff.
Despite the fact that no written agreement existed, a few days after
depositing plaintiff's checks, defendants also entered the plaintiff's unit,
removed several cabinet doors from the cabinets, and took one of the removed
cabinet doors from the unit.
Days later, on September 12, 2017, plaintiff emailed Park requesting a
revised estimate for the work and expressing concern with defendants' delay in
sending a revised estimate. She also stated that "[i]f the bathroom remodel is
going to take several months then I would rather just replace the vanity in that
bathroom . . . and just get kitchen cabinets, floors, and paint done." Thereafter,
on September 19, 2017, defendants provided plaintiff with a revised estimate on
behalf of Keuken (September 19 Estimate). Four days later, the parties met
again at the showroom to review plaintiff's proposed amendments to the
September 19 Estimate. At the meeting, Park assured plaintiff he would send a
revised estimate, omitting mistakes identified by plaintiff, and that the work
would be completed by the end of October 2017.
In order to be allowed to have the anticipated work done in her unit,
plaintiff had to secure permission from the condominium's homeowner
A-0853-19 6 association, which plaintiff requested in writing on September 25, 2017. The
application plaintiff submitted had already been completed in part by Park.
Those portions included details about the contemplated work and identified
Keuken as the general contractor for the job. Defendants also indicated on the
form that the start date for the job was to be "ASAP," and the completion date
was to be approximately "[four] weeks from start." Defendants also provided a
certificate of liability insurance for "Kuken, LLC." The next day, the
homeowner's association approved the alteration request, whereupon plaintiff
informed Park of the acceptance and again requested a finalized revised
estimate.
Two days after plaintiff's inquiry, Park emailed plaintiff a revised estimate
(September 28 Estimate), on behalf of "Kuken Design & Remodeling
Company," and stated that defendants would try to finish the project by the end
of October 2017. On September 30, 2017, plaintiff, her mother, and Park had a
conference call to discuss certain inaccuracies in the September 28 Estimate,
including the exclusion of the costs of paint and primer, despite the fact that the
estimate expressly included the costs of materials. At the conclusion of the call,
Park informed plaintiff that the inaccuracies would be corrected, that the work
A-0853-19 7 would commence by the following week, and that the work would be completed
by the end of October. Plaintiff never signed the September 28 Estimate.
Two days after the call, defendants informed plaintiff that they would be
unable to complete the flooring work until the end of November. Plaintiff
responded that, given the delays, she was inclined to cancel the project and seek
a refund of the $18,523 she had paid to defendants. In response, Park informed
plaintiff that they had already ordered the requested cabinet doors that would
arrive by October 6, 2017 and could be installed by October 11, 2017. Plaintiff
responded in an October 2, 2017 email that the proposed timeline for installation
of cabinet doors was acceptable, but that she required a refund in the amount of
$7,194.70, representing the value of the flooring and painting work that was no
longer necessary. She also explained that she would be traveling to New Jersey
from Illinois to inspect the completed cabinet work, pick up her refund, and
recover her keys on October 12, 2017.
On October 3, 2017, defendants provided plaintiff with a revised estimate
on behalf of Kuken, which was still inaccurate according to plaintiff. Plaintiff
sent Park several emails regarding the apparent inaccuracies and, on October 4,
2017, requested a revised corrected estimate for the cabinet door work only.
A-0853-19 8 Defendants responded to plaintiff's email suggesting to plaintiff two
different options for moving forward. Under the first, defendants would install
the cabinet doors for $1,500, including the cost of the cabinet doors and labor,
and would issue plaintiff a refund in the amount of $7,310.83. Under the second
option, defendants would deliver the cabinet doors and handles to plaintiff, and
plaintiff would make her own arrangements for having them installed. If
plaintiff were to have selected this arrangement, defendants represented that
$8,810.63 of plaintiff's deposit for labor would be refunded, which represented
$9,000 less $189.17 to pay for the cost of the cabinet handles. Defendants' email
advised plaintiff that once she selected one of the two options, she could sign a
revised estimate and defendants would then notify her of a date for the
completion of the work.
In response, plaintiff advised defendants that she would prefer to have
defendants install the cabinets and handles provided that defendants could
complete the work by October 13, 2017. Plaintiff also requested that defendants
include in any revised estimate, a timeframe for completion and specified hours
for working at her unit. She also informed defendants that, due to their delays,
she would not sign any documents that did "not have [that] level of detail."
A-0853-19 9 On October 5, 2017, defendants sent plaintiff yet another revised estimate
(October 5 Estimate) on behalf of Kuken that included, among other things,
language indicating a "[p]ossibility of delay depending on the manufacturer."
Plaintiff emailed defendants with a marked-up, signed copy of the estimate that
deleted the caveat to the timetable relating to the manufacturer. Defendants did
not respond that day. The next day, plaintiff emailed Park requesting defendants
send her a countersigned copy of the revised October 5 Estimate and confirm
the dates for completion of work. Defendants never signed the revised estimate,
nor did they return plaintiff's money, keys, or cabinet door.
When defendants refused to countersign the revised October 5 Estimate,
on October 12, 2017, plaintiff's attorney sent defendants a letter demanding a
refund of the $18,523 plaintiff paid and a return of all personal property removed
from her unit, including the keys and a kitchen cabinet door. Defendants
responded, stating that they had been advised by their attorney to limit contact
with plaintiff and to "not release any and all items" they had received from her.
Plaintiff then changed the locks to her unit and ultimately contracted with
Home Depot to replace the kitchen cabinet doors at a cost of $12,231. She also
hired another contractor to replace the flooring at a cost of $13,609.63.
A-0853-19 10 B.
On November 8, 2017, plaintiff filed a nine-count complaint against the
individual defendants and Kuken. Thereafter, on February 2, 2018, plaintiff
filed an amended complaint naming Keuken as an additional defendant and
asserting only two counts in place of the original nine: a cause of action under
the CFA and a claim for breach of contract against all defendants. Defendants
filed an answer to the first amended complaint with a counterclaim for quantum
meruit and for a declaratory judgment that no contract existed between the
parties.
On July 5, 2019, plaintiff filed a motion for partial summary judgment, as
to the first count in her amended complaint alleging violations of the CFA and
as to defendants' counterclaims for quantum meruit and declaratory judgment.
On August 14, 2019, Judge O'Dwyer granted plaintiff's motion in part and
entered partial summary judgment in plaintiff's favor against the corporate
defendants on the first count of plaintiff's amended complaint. According to the
judge's twelve-page written decision, he found that after the July 17, 2017
meeting, the parties agreed to the essential terms of the work to be performed
but that agreement was never reduced to a written agreement before defendants
accepted money from the plaintiff or entered her unit to begin work. Under
A-0853-19 11 those circumstances, the judge concluded that the corporate defendants' actions
were per se violations of the CFA because those defendants failed to comply
with the Contractors' Registration Act (CRA), N.J.S.A. 56:8-136 to –152,2 and
the relevant regulations, Home Improvement Practice, N.J.A.C. 13:45A-16.1 to
-16.2 and Home Improvement Contractor Registration, N.J.A.C. 13:45A-17.1 to
-17.14, promulgated thereunder, which renders any violation an unlawful
practice under the CFA. The judge did not address whether plaintiff established
an ascertainable loss but concluded the "quantum of damages" owed plaintiff,
and the individual defendants' liability were to be determined at trial. The judge
also denied, without prejudice, plaintiff's motion for summary judgment as to
defendants' counterclaim.
On September 18, 2019, the day before the scheduled trial date, plaintiff
filed a motion in limine seeking "an Order barring the introduction of any
evidence during [t]rial by [d]efendants in support of [d]efendants'
[c]ounterclaim for [q]uantum [m]eruit due to [d]efendants' willful and deliberate
failure to provide any discovery in support of that claim." She did not seek
summary judgment as to any other issues that Judge O'Dwyer left for trial.
2 Of particular importance to this case, failure to comply with the CRA's provisions and implementing regulations also constitutes a violation of the CFA. N.J.S.A. 56:8-146(a). A-0853-19 12 The next day, the trial judge first dismissed defendants' counterclaim
seeking a declaratory judgment that the parties had not entered into any contract
for renovations of the unit. He explained that Judge O'Dwyer had previously
denied plaintiff's motion to dismiss the counterclaim without prejudice but
nevertheless, based on Judge O'Dwyer's finding that a contract existed, albeit
not written, the trial judge dismissed defendants' counterclaim for declaratory
judgment with prejudice.
The judge then granted plaintiff's motion in limine prohibiting defendants
from introducing evidence at trial in support of their counterclaim for quantum
meruit. He explained that any counterclaim for quantum meruit in a consumer
fraud action must be supported by evidence indicating a reasonable value of
services performed. The judge found that, despite having an obligation to
produce such evidence in discovery, defendants had not produced any evidence
of services performed or the reasonable value of any services performed. He
also noted that although Park had stated at his deposition that he had documents
evidencing an amount paid for cabinets, Park had explicitly refused to produce
them. Accordingly, the judge granted plaintiff's motion in limine and, as a
consequence, dismissed defendants' quantum meruit claim with prejudice for
lack of "evidence that can go before any fact finder . . . to support such a claim."
A-0853-19 13 As defendants had no quantum meruit claim to offset the loss plaintiff accrued
by virtue of defendants' violation of the CFA, the judge then sua sponte entered
judgment against the corporate defendants, finding $18,523 as plaintiff's
ascertainable loss caused by the corporate defendants' violation of the CFA.
Although plaintiff's motion in limine did not seek further relief, the trial
judge then determined that the uncontroverted facts before him demonstrated
that the individual defendants' participation in the corporate defendants'
violation of the CFA was sufficient to hold them each liable under the CFA. As
to Park, the judge explained that he "participated in this relationship with the
plaintiff from the beginning, had countless dealings with her, and was the
primary source of information in reaching whatever end point was reached under
these negotiations or arrangements up until the plaintiff asked for the return of
the money." As to Lee, he found that she had participated to a lesser extent than
Park but, like Park, had nonetheless taken money given by plaintiff, deposited
it into her personal account, and did not return plaintiff's funds upon her request.
Accordingly, based on the evidence in the record as to the corporate
defendants' conduct violating the CFA, the loss sustained by plaintiff at the time
of and as a result of that violation, and the individual defendants' participatio n
in the conduct constituting the violation was uncontroverted, the trial judge
A-0853-19 14 determined there were no factual issues to be determined at trial and entered
final judgment in plaintiff's favor against all defendants. In doing so, the judge
found that plaintiff's damage award in the amount of her deposit, $18,523, was
to be trebled under the CFA. He also requested that plaintiff's counsel submit a
certification detailing plaintiff's reasonable counsel fees for an award of
attorney's fees as well. In light of the judge's ruling, plaintiff agreed to
voluntarily dismiss her remaining claim for breach of contract without prejudice.
On October 4, 2019, the trial judge entered the final judgment, awarding
plaintiff $72,569. Shortly thereafter, on October 23, 2019, plaintiff filed a
motion to amend the attorney's fees award established in the final judgment and
sought a writ of execution to enforce the final judgment. 3 This appeal followed.
II.
We begin our review by addressing defendants' challenge to Judge
O'Dwyer's order granting partial summary judgment. 4 Defendants argue that the
3 On December 6, 2019, the trial judge granted plaintiff's motion to amend the judgment pursuant to Rule 4:49-2, increasing the amount of the judgment to $76,194 to reflect the award of treble damages, counsel fees, and costs, plus prejudgment interest in accordance with Rule 4:58-2(b). 4 We note that defendants' Notice of Appeal only identifies the final judgment as the only challenged order or judgment. Campagna ex rel. Greco v. Am. Cyanamid Co., 337 N.J. Super. 530, 550 (App. Div. 2001) (refusing to consider
A-0853-19 15 judge erred in determining that the corporate defendants had violated the CFA
because he erroneously concluded there was a "meeting of the minds" between
the parties on the essential terms of a purported contract. They contend that
because entry of summary judgment in plaintiff's favor was premised upon the
assumption that the parties had failed to memorialize their contract in a signed ,
written document, Judge O'Dwyer's order must be vacated as no contract existed
between the parties to be memorialized in the first place.
To this end, defendants cite to the parties' various communications sent
between September 12 and October 6, 2017, in which the parties discussed
changing the scope of the desired work, shifting deadlines, and exchanged
revised estimates numerous times, to argue that no meeting of the minds
occurred, as the parties "failed to reach an agreement on one of the most essential
terms of the contract . . . the deadline to complete the project."
order not listed in notice of appeal). Generally, we will not consider challenges to orders not identified in the Notice of Appeal. However, their Case Information Statement identifies Judge O'Dwyer's order as well, and the parties have briefed the issues arising from defendants' challenge to it. For that reason, we consider both orders properly before us. See Silviera-Francisco v. Bd. of Educ. of City of Elizabeth, 224 N.J. 126, 142 (2016) (stating an order "clearly identified [in a] Case Information Statement submitted with [a] Notice of Appeal" is deemed properly before the court for review). A-0853-19 16 We conclude defendants' argument is without any merit because the
contention is belied by the parties' undisputed conduct, especially defendants'
refusal to return plaintiff's money, keys, or cabinet door.
We review a trial court's grant of summary judgment de novo, "applying
the same standard as the trial court." State v. Anderson, 248 N.J. 53, 67 (2021)
(quoting Woytas v. Greenwood Tree Experts, Inc., 237 N.J. 501, 511 (2019)).
"By that standard, summary judgment should be granted 'when "the pleadings,
depositions, answers to interrogatories and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any material fact
challenged and that the moving party is entitled to judgment or order as a matter
of law.'"" Woytas, 237 N.J. at 511 (quoting Brill v. Guardian Life Ins. Co. of
Am., 142 N.J. 520, 528-29 (1995)). In doing so, we consider "whether the
competent evidential materials presented, when viewed in the light most
favorable to the non-moving party, are sufficient to permit a rational factfinder
to resolve the alleged disputed issue in favor of the non-moving party." Davis
v. Brickman Landscaping, Ltd., 219 N.J. 395, 406 (2014) (quoting Brill, 142
N.J. at 540). If "the evidence 'is so one-sided that one party must prevail as a
A-0853-19 17 matter of law,'" summary judgment is appropriate. Ibid. (quoting Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 259 (1986)).
B.
With those guiding principles in mind, we turn to the CFA and a home
improvement contractor's obligation under the CRA and its related regulations.
The CFA defines a violation as the following:
The act, use or employment by any person of any unconscionable commercial practice, deception, fraud, false pretense, false promise, misrepresentation, or the knowing[] concealment, suppression, or omission of any material fact with intent that others rely upon such concealment, suppression or omission, in connection with the sale or advertisement of any merchandise or real estate, or with the subsequent performance of such person as aforesaid, whether or not any person has in fact been misled, deceived or damaged thereby, is declared to be an unlawful practice.
[N.J.S.A. 56:8-2.]
Courts interpreting this language have divided unlawful practices "for
analytical purposes, into three categories." Bosland v. Warnock Dodge, Inc.,
197 N.J. 543, 556 (2009) (citing Cox v. Sears Roebuck & Co., 138 N.J. 2, 17
(1994)). Unlawful practices can be "affirmative acts, claims asserting knowing
omissions, and claims based on regulatory violations." Ibid. See also Dugan v.
TGI Fridays, Inc., 231 N.J. 24, 51 (2017). Moreover, "the [CFA] makes no
A-0853-19 18 distinction between 'technical' violations and more 'substantive' ones." BJM
Insulation & Constr. v. Evans, 287 N.J. Super. 513, 518 (App. Div. 1996).
Where the alleged unlawful practice is based upon a regulatory violation,
"[a] showing of intent is not essential," Dugan, 231 N.J. at 51, and "the
regulations impose strict liability for such violations," Cox, 138 N.J. at 18.
Similarly, where the unlawful practice is based upon an affirmative act, a
showing of intent is not essential to the success of plaintiff's claim. Dugan, 231
N.J. at 51. Rather, in the area of home improvement contracts, the CFA's "focus
is to compel those who sell consumer goods and services to the public to develop
practices that will minimize consumer fraud. Foremost among such practices is
the requirement of written agreements." Marascio v. Campanella, 298 N.J.
Super. 491, 501 (App. Div. 1997) (applying the CFA to a contract for electrical
work and services specific to the premises in question).
Enacted in 2004 as an amendment to the CFA, the CRA and the relevant
regulations5 promulgated thereunder outline several statutory criteria home
improvement contractors are required to comply with in order to do business in
New Jersey. N.J.S.A. 56:8-136. Importantly, the CRA expressly provides that
5 See N.J.A.C. 13:45A-16.1 to -16.2, as to home improvement practices, and N.J.A.C. 13:45A-17.1 to -17.14 as to home improvement contractor registration. A-0853-19 19 any violation of any provision of the CRA is an "unlawful practice" within the
meaning of the CFA. N.J.S.A. 56:8-146.
The CRA defines a "[c]ontractor" as "a person engaged in the business of
making or selling home improvements and includes a corporation, partnership,
association and any other form of business organization or entity, and its
officers, representatives, agents and employees." N.J.S.A. 56:8-137; N.J.A.C.
13:45A-17.2. The statute also defines a "[h]ome improvement contract" as any
"oral or written agreement for the performance of a home improvement between
a contractor and an owner . . . of a residential or noncommercial property, and
includes all agreements under which the contractor is to perform labor or render
services for home improvements, or furnish materials in connection therewith."
N.J.S.A. 56:8-137; N.J.A.C. 13:45A-17.2.
The CRA expressly provides several limitations on contractors'
operations, including the form and procedure for contractors' contracts,
advertising materials, and business documents. N.J.S.A. 56:8-151. It also
requires that every registered contractor engaged in home improvement in New
Jersey must maintain a commercial general liability insurance policy and to file
proof with the director. N.J.S.A. 56:8-142; N.J.A.C. 13:45A-17.12.
As to home improvement contracts, the CRA requires that
A-0853-19 20 every home improvement contract for a purchase price in excess of $500, and all changes in the terms and conditions of the contract, shall be in writing. The contract shall be signed by all parties thereto, and shall clearly and accurately set forth in legible form and in understandable language all terms and conditions of the contract, including but not limited to:
(1) The legal name, business address, and registration number of the contractor;
(2) A copy of the certificate of commercial general liability insurance required of a contractor pursuant to section 7 of this act and the telephone number of the insurance company issuing the certificate; and
(3) The total price or other consideration to be paid by the owner, including the finance charges.
[N.J.S.A. 56:8-151(a) (emphasis added) (footnote omitted); see also N.J.A.C. 13:45A-16.2.]
The CRA also outlines specific requirements for informing consumers of
their cancellation rights under home improvement contracts. N.J.S.A. 56:8 -
151(b) provides that "a home improvement contract may be cancelled by a
consumer for any reason at any time before midnight of the third business day
after the consumer receives a copy of it," and that home improvement contracts
include notice of the right to rescind in conspicuous language, "in at least 10-
point bold-faced type." Ibid. In the event a consumer cancels a contract, "[a]ll
A-0853-19 21 moneys paid pursuant to the cancelled contract shall be fully refunded within 30
days of receipt of the notice of cancellation." Ibid.
The CRA also requires home improvement contractors to register with the
Division of Consumer Affairs, N.J.S.A. 56:8-138; N.J.A.C. 13:45A-17.3, and to
"prominently display their registration number within their places of business,
in all advertisements . . ., on business documents, contracts and correspondence
with consumers," N.J.S.A. 56:8-144(a). Contractors are also required to include
in "[a]ny invoice, contract or correspondence," N.J.S.A. 56:8-144(b), a toll-free
telephone number for "consumers making inquiries regarding contractors ,"
N.J.S.A. 56:8-149(b). Defendants here failed to comply with many of these
requirements starting with the requirement that any agreement be in writing and
signed by the parties.
Contrary to defendants' arguments on appeal, Judge O'Dwyer properly
found defendants had failed to enter into a written contract before accepting
plaintiff's deposit or beginning work for which they sought compensation , and
therefore properly found defendants had violated the CRA. According to the
judge, that finding did not mean there was no contract. Quoting from Weichert
Co. Realtors v. Ryan, 128 N.J. 427, 435 (1992), Judge O'Dwyer stated that a
contract exists where the "parties agree on essential terms and manifest an
A-0853-19 22 intention to be bound by those terms." He concluded that the parties had agreed
on the necessary essential terms, because it was "undisputed that . . .
[d]efendants accepted over $18,000 in funds from [p]laintiff, deposited same
into their individual accounts, ordered cabinets, and sought entry to the premises
to commence work." We agree.
"A contract arises from offer and acceptance, and must be sufficiently
definite 'that the performance to be rendered by each party can be ascertained
with reasonable certainty.'" Ibid. (quoting West Caldwell v. Caldwell, 26 N.J.
9, 24-25 (1958)). "As a general principle of contract law, there must be a
meeting of the minds for an agreement to exist." Kernahan v. Home Warranty
Adm'r of Fla., Inc., 236 N.J. 301, 319 (2019) (citing Johnson & Johnson v.
Charmley Drug Co., 11 N.J. 526, 538 (1953)). In addition, the parties must
agree "to the essential terms" of the agreement. Cumberland Farms, Inc. v. N.J.
Dep't of Env't Prot., 447 N.J. Super. 423, 438-39 (App. Div. 2016) (quoting
Mosley v. Femina Fashions, Inc., 356 N.J. Super. 118, 126 (App. Div. 2002)).
Essential terms are those that go to the "heart of the alleged agreement."
Satellite Ent. Ctr., Inc. v. Keaton, 347 N.J. Super. 268, 277 (App. Div. 2002).
"Where the parties do not agree to one or more essential terms, however, courts
generally hold that the agreement is unenforceable." Weichert, 128 N.J. at 435.
A-0853-19 23 Among their arguments to the contrary, defendants contend that Judge
O'Dwyer erred in finding that the parties had a contract, as they had failed to
come to "an agreement on one of the most essential terms of the contract . . . the
deadline to complete the project." This assertion is belied by the record, which
demonstrates that Park met with plaintiff at the unit to discuss the project on
July 29, 2017, and that, during that meeting, plaintiff and Park agreed that the
renovations would be completed by November 2017. Moreover, as of the
conclusion of the parties' September 1, 2017 meeting at defendants' showroom,
the record demonstrates that the parties had negotiated the scope of the work to
be performed, a November 2017 deadline for the completion of the work, a total
price of $34,380 for the project as a whole, and defendants accepted $18,523 as
a deposit to commence performance. Accordingly, the record demonstrates that
there was a "meeting of the minds" as to all essential terms of the contract and
that, as a consequence, defendants were in violation of the CRA in declining to
reduce that agreement to writing before accepting payment and beginning work.
Kernahan, 236 N.J. at 319.
Nevertheless, as noted by Judge O'Dwyer, even disregarding that
deficiency, defendants were still in violation of the CRA as none of their
business documents or numerous communications with plaintiff included the
A-0853-19 24 required home improvement contractor registration number required by N.J.S.A.
56:8-144(a) or the toll-free telephone number required on any "invoice, contract
or correspondence" with a consumer by N.J.S.A. 56:8-144(b) and N.J.S.A. 56:8-
149.
Each of defendants' CRA violations are expressly made "unlawful
practices" by the clear terms of the CRA. N.J.S.A. 56:8-146. Accordingly,
Judge O'Dwyer did not err in finding that the corporate defendants committed
an unlawful practice within the meaning of the CFA by virtue of their violations
of the plain language requirements for home improvement contractors under the
CRA.
Even if those CRA violations were not sufficient to give rise to an
unlawful practice under the CFA, we conclude from our de novo review that
defendants' conduct throughout the transaction gave rise to other prohibited
practices. Although not addressed by Judge O'Dwyer, in response to plaintiff's
motion for summary judgment, plaintiff argued that defendants should be held
liable under the CFA because, in addition to violating the clear language of the
CRA in several respects, defendants' dealings with plaintiff constituted
"unconscionable commercial practice[s]" for the purposes of finding an
unlawful practice under the CFA. N.J.S.A. 56:8-2. We agree and affirm Judge
A-0853-19 25 O'Dwyer's order for those reasons as well. See Do-Wop Corp. v. City of
Rahway, 168 N.J. 191, 199 (2001) (appeals are taken from orders and
judgments, not opinions or oral decisions); Triffin v. SHS Grp., LLC, 466 N.J.
Super. 460, 463-64 (App. Div. 2021) (affirming a trial judge's conclusions for
reasons different than that of the trial judge).
"There is no precise formulation for an 'unconscionable' act that satisfies
the statutory standard for an unlawful practice. The statute establishes 'a broad
business ethic' applied 'to balance the interests of the consumer public and those
of the sellers.'" D'Agostino v. Maldonado, 216 N.J. 168, 184 (2013) (quoting
Kugler v. Romain, 58 N.J. 522, 543-44 (1971)). However, "[a]n unconscionable
practice under the CFA 'necessarily entails a lack of good faith, fair dealing, and
honesty.'" Id. at 189 (quoting Van Holt v. Liberty Mut. Fire Ins. Co., 163 F.3d
161, 168 (3d Cir. 1998)). In construing the CFA, courts are to interpret
unconscionability "liberally" in favor of consumers "so as to effectuate the
public purpose" of the act and must evaluate whether a defendant's conduct rises
to the level of unconscionability on "a case-by-case basis." Kugler, 58 N.J. 543.
And, as noted above, "intent is not a required element" where an affirmative act
proscribed by the CFA has occurred; such an act "may be established by showing
A-0853-19 26 that a defendant's actions constituted one of the stated prohibited practices."
Thiedemann v. Mercedez-Benz USA, LLC, 183 N.J. 234, 245 (2005).
The undisputed facts in the record demonstrate that defendants accepted
$18,523 from plaintiff without memorializing their agreement in a signed,
written contract; a course of conduct made less palatable when considering
defendants' repeated argument throughout this litigation that no contract existed
between the parties at the time. If that were true, defendants had no basis to
argue that their refusal to return plaintiff's money, keys, and cabinet door was in
any way justified.
The record further demonstrates that is undisputed that the individual
defendants deposited plaintiff's funds into their personal bank accounts with the
express intent, according to Park, to avoid taxes that might be incurred if the
funds were deposited into the corporate defendants' accounts. It is similarly
undisputed that defendants then refused to provide plaintiff with a refund upon
her request, despite the fact that defendants had not performed any work on the
property over the course of the previous months aside from removing a cabinet
door, and despite that plaintiff was entitled to a refund until three days after the
signing of a written contract per the cancellation language required on—albeit
A-0853-19 27 absent from—any agreement sent to plaintiff by defendants. See N.J.S.A. 56:8-
151(b).
The undisputed facts in the record similarly demonstrate that defendants
misrepresented which corporate defendant plaintiff would be dealing with
regarding the work, as early estimates were sent on behalf of Keuken—a
company that was uninsured and not a registered home improvement
contractor—and the promotional materials provided to plaintiff during her
discussions with Park represented that he was president of Keuken, not Kuken.
The record also demonstrates that defendants repeatedly failed to provide
plaintiff with a certificate of commercial general liability insurance despite their
obligation to provide one under all home improvement contracts under N.J.S.A.
56:8-142, and that, when they did eventually provide a certificate, they
attempted to charge plaintiff $500 for same.
For the foregoing reasons, the uncontroverted facts in the record
demonstrate that defendants' business practices throughout their deali ngs with
plaintiff fail to meet acceptable standards of "good faith, fair dealing, and
honesty" expected under the CFA and constituted unlawful acts within the
meaning of the CFA. N.J.S.A. 56:8-2.
A-0853-19 28 C.
As already noted, Judge O'Dwyer denied plaintiff's summary judgment as
to the remaining elements of her CFA claims and as to the issue of the individual
defendants' liability for the corporate defendants' CFA violations. The
additional elements of a CFA claim required plaintiff to prove at trial that she
suffered an "'an ascertainable loss by plaintiff' and 'a causal relationship between
the unlawful conduct and the ascertainable loss.'" Dugan, 231 N.J. at 52
(quoting D'Agostino, 216 N.J. at 184).
In order to impose individual liability, plaintiff had to prove the employee
or corporate officer had personally "engaged in conduct prohibited by the CFA."
Allen v. V&A Bros., Inc., 208 N.J. 114, 132 (2011). The individual's own
affirmative acts or knowing omissions must have been part of the violation. Id.
at 130-33 (citing N.J.S.A. 56:8-2).
Here, the record indicates, and as plaintiff's counsel confirmed before us
at oral argument, plaintiff never sought summary judgment before the trial judge
on those remaining issues. The record here therefore convinces us that the trial
judge improperly used plaintiff's motion in limine, which only addressed
defendants' lack of documents to establish any offset or relief under their
counterclaim, to short cut the process by avoiding trial and sua sponte granting
A-0853-19 29 summary judgment as to these remaining issues, without any advance notice to
defendants.
The procedure followed by the trial judge here cannot be sustained. As
we stated in Seoung Ouk Cho v. Trinitas Regional Medical Center, 443 N.J.
Super. 461, 475 (App. Div. 2015), "absent extraordinary circumstances or the
opposing party's consent, the consideration of an untimely summary judgment
motion [when one is filed] at trial and resulting dismissal of a complaint deprives
a plaintiff of due process of law. [6]" This is especially true where, as here, not
only was the opposing party not put on notice that such relief may be awarded
by the trial judge, but the awarding of that relief was a surprise to all parties and
only the result of the trial judge's sua sponte actions. At a minimum, the
procedure followed by the trial judge was simply unfair.
Under these circumstances we are constrained to vacate the final judgment
and remand for further proceedings before a different judge. See Graziano v.
Grant, 326 N.J. Super. 328, 349-50 (App. Div. 1999) (explaining our authority
6 Cho's bar against dispositive summary judgment motions being decided in limine has been incorporated into our Court Rules, effective September 1, 2020. See R. 4:25-28 ("a motion in limine is defined as an application returnable at trial for a ruling regarding the conduct of the trial, including admissibility of evidence, which motion, if granted, would not have a dispositive impact on a litigant’s case"). A-0853-19 30 to do so when it is necessary where "there is a concern that the trial judge has a
potential commitment to his or her prior findings"); see also Pressler & Verniero,
Current N.J. Court Rules, cmt. 4 on R. 1:12-1 (2021) (remand to a different
judge is appropriate "to preserve the appearance of a fair and unprejudiced
hearing").
By vacating the final judgment, we do not disturb Judge O'Dwyer's order
or the trial judge's order as to the dismissal of defendants' counterclaim as it was
entered after plaintiff filed her motion on notice to defendants. Moreover, the
reasons for those orders are unassailable in light of defendants' conduct both in
the underlying transaction and in the course of the litigation. It is only the
determinations made by the trial judge about plaintiff's proving an ascertainable,
causally related loss and the individual defendants' liability that shall be the
subject of the remand, which may be completed through the determination of a
properly filed summary judgment motion or by trial. Whichever way the matter
is resolved, by our remand, we are not suggesting any specific outcome.
The parties shall conduct a case management conference within thirty
days to schedule another round of summary judgment motions as to the
remaining issues if any of them choose to file such motions. If not, or if filed
and unsuccessful, the matter shall be relisted for trial as to the remaining issues.
A-0853-19 31 Affirmed in part; vacated and remanded in part for further proceedings
consistent with this opinion.
A-0853-19 32