Perez v. Professionally Green, LLC
215 N.J. 388
| N.J. | 2013Background
- Plaintiffs contracted with Swim-Well to build a pool and with other contractors for related work; plaintiffs allege multiple construction defects and municipal inspection failures that left the pool unusable.
- Plaintiffs sued multiple defendants asserting breach of contract, negligence, warranty, professional malpractice and violations of the New Jersey Consumer Fraud Act (CFA) and related regulations.
- In an amended complaint plaintiffs alleged Swim-Well’s pool contract lacked start/end dates, a warranty, and a cancellation provision in violation of N.J.A.C. 13:45A-16.2, and claimed an "ascertainable loss" under N.J.S.A. 56:8-19.
- Plaintiffs moved for partial summary judgment; the trial court found a CFA "technical violation" as to the missing start/end dates but denied summary judgment on ascertainable loss, leaving that issue for trial. The court dismissed warranty and cancellation-based CFA claims on cross-motion.
- At the close of plaintiffs’ case at trial the judge granted Swim-Well’s involuntary dismissal motion (Rule 4:37-2(b)), finding plaintiffs had not made a prima facie showing of ascertainable loss; the trial court then denied plaintiffs’ CFA attorneys’ fees application. Plaintiffs appealed only the denial of attorneys’ fees.
- The Appellate Division reversed and reinstated the fee claim; the Supreme Court granted certification and reversed the Appellate Division, holding plaintiffs were not entitled to fees because their ascertainable-loss claim did not survive the defendant’s Rule 4:37-2(b) dismissal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a CFA plaintiff may recover attorneys' fees under N.J.S.A. 56:8-19 after denial of plaintiff's summary judgment on ascertainable loss but grant of defendant's involuntary dismissal at trial | Perez: A plaintiff need not win both pretrial summary judgment and survive a trial dismissal to recover fees; requiring that discourages counsel and undermines CFA's remedial aims | Swim-Well: To obtain fees plaintiff must present a bona fide ascertainable-loss claim that survives dispositive testing — either a defense summary judgment or an involuntary dismissal at trial; dismissal means no bona fide claim | Held: Under Weinberg, a plaintiff must present a bona fide ascertainable-loss claim that would survive dispositive testing; the trial court’s grant of involuntary dismissal (analogous to summary judgment) shows no bona fide claim, so fees were properly denied. |
Key Cases Cited
- Weinberg v. Sprint Corp., 173 N.J. 233 (clarifies that a private CFA plaintiff must plead an ascertainable loss capable of surviving summary judgment to be eligible for attorneys' fees)
- Cox v. Sears Roebuck & Co., 138 N.J. 2 (explains CFA remedial purpose and earlier view on attorneys' fees when unlawful practice is proven)
- Pron v. Carlton Pools, Inc., 373 N.J. Super. 103 (App. Div.) (applies Weinberg reasoning to involuntary dismissal and finds dismissal equivalent to no prima facie ascertainable loss)
- Thiedemann v. Mercedes-Benz USA, LLC, 183 N.J. 234 (discusses ascertainable loss as standing safeguard under the CFA)
- Schneider v. Simonini, 163 N.J. 336 (notes analytical similarity between summary judgment and involuntary dismissal standards)