Jacobs v. Mark Lindsay & Son Plumbing & Heating, Inc., DOCKET NO. A-3854-16T1

• Decision Date: 20 February 2019
• Docket Number: DOCKET NO. A-3854-16T1
• Citation: 203 A.3d 952,458 N.J.Super. 194
• Parties: Jeffrey S. JACOBS, Plaintiff-Appellant/Cross-Respondent, v. MARK LINDSAY AND SON PLUMBING & HEATING, INC., John Stretavski, individually, and Mark D. Lindsay, individually, Defendants-Respondents/Cross-Appellants.
• Court: New Jersey Superior Court — Appellate Division

458 N.J.Super. 194
203 A.3d 952

Jeffrey S. JACOBS, Plaintiff-Appellant/Cross-Respondent,
v.
MARK LINDSAY AND SON PLUMBING & HEATING, INC., John Stretavski, individually, and Mark D. Lindsay, individually, Defendants-Respondents/Cross-Appellants.

DOCKET NO. A-3854-16T1

Superior Court of New Jersey, Appellate Division.

Argued September 13, 2018
Decided February 20, 2019

Anthony M. Rainone, Roseland, argued the cause for appellant/cross-respondent (Brach Eichler, LLC, attorneys; Anthony M. Rainone, of counsel and on the briefs; David J. Klein and Kent D. Anderson, Roseland, on the briefs).

Steven K. Parness, Warren, argued the cause for respondents/cross-appellants (Methfessel & Werbel, attorneys; Steven K. Parness, of counsel and on the briefs; Boris Shapiro, Philadelphia, on the brief).

Before Judges Fuentes, Accurso and Moynihan.

The opinion of the court was delivered by

FUENTES, P.J.A.D.

458 N.J.Super. 198

Plaintiff Jeffrey S. Jacobs hired defendant Mark Lindsay and Son Plumbing & Heating, Inc. (MLSP) to repair his home air conditioning unit. Defendant made three service calls to repair the unit but was unable to correct the problem. After each service call, defendant provided plaintiff with an invoice that described the services performed and the parts installed. Plaintiff issued checks for the first two service calls. After defendant's third unsuccessful attempt to repair the unit, plaintiff refused to pay for this service call and placed a stop-payment order¹ on the two previously issued checks.

Instead of filing a civil action against plaintiff to recover the value of the services rendered, John Stretavski, an employee of MLSP, and defendant Mark Lindsay, owner of MLSP, filed an incident report with the Borough of Caldwell Police Department and accused plaintiff of theft of services.² After investigating defendant's allegation, the Caldwell Police Department formally charged plaintiff with the criminal offense of theft of services. Plaintiff retained an attorney to represent him in this criminal matter. The Caldwell Municipal Court dismissed the complaint against plaintiff for lack of probable cause.

458 N.J.Super. 199

Plaintiff thereafter filed a civil action against defendants alleging violations of the Consumer Fraud Act, N.J.S.A. 56:8-1 to -210 (CFA), malicious prosecution, defamation, and tortious interference with economic relationship.³ After joinder of issue and exchange of discovery, the parties filed cross-motions for summary judgment. The Law Division Judge assigned to the case at the time granted plaintiff's motion for summary judgment on the CFA claims and denied defendants' cross-motion seeking the dismissal of plaintiff's complaint in its entirety. The judge found defendants violated the consumer protection provisions in N.J.S.A. 56:8-151 and

203 A.3d 955

N.J.A.C. 13:45A-10.2 when they failed to provide plaintiff with a written contract describing the services they agreed to provide and the methods used to determine the total charges for labor and parts. She found defendants engaged in an unconscionable commercial practice under N.J.S.A. 56:8-2, when they filed a criminal complaint against plaintiff as means of collecting a consumer debt. Finally, the judge found the attorneys' fees and related costs plaintiff incurred in the defense of the criminal charges constituted an "ascertainable loss" under N.J.S.A. 56:8-19 as an "out-of-pocket loss." See Thiedemann v. Mercedes-Benz USA, LLC, 183 N.J. 234, 248, 872 A.2d 783 (2005).

The judge held that the quantum of damages plaintiff was entitled to receive on the CFA claim and the viability of his common law claim of malicious prosecution were matters to be decided by a jury. The case was thereafter assigned to a different judge. On April 28, 2016, the parties appeared before this new judge and announced that they had reached a settlement agreement. As described by the judge, defendants agreed to pay plaintiff $45,000 "for any violation of the Consumer Fraud Act, except attorneys' fees ... incurred by the plaintiff in prosecuting the consumer fraud action." In exchange, plaintiff agreed to dismiss the remaining common law claims of malicious prosecution,

458 N.J.Super. 200

tortious interference, and defamation. On April 13, 2017, the judge awarded plaintiff $19,800 in attorneys' fees. On June 15, 2016, the parties executed an eighteen-page Settlement Agreement and General Release that comprehensively describes the terms of the settlement.

Against this procedural backdrop, plaintiff appeals the April 18, 2017 order awarding only $19,800 in counsel fees and costs. Defendants cross-appeal the December 18, 2015 order granting plaintiff's motion for summary judgment on his CFA claim. After reviewing de novo the record developed before the Law Division, Davis v. Brickman Landscaping, Ltd., 219 N.J. 395, 405, 98 A.3d 1173 (2014), and applying the standards codified in Rule 4:46-2(c), we conclude defendants knowingly and voluntarily bargained away their right to challenge the Law Division's December 18, 2015 order and dismiss their cross-appeal accordingly. With respect to plaintiff's direct appeal, we reverse the April 18, 2017 order and remand for the court to apply the standards established by our Supreme Court to determine anew the amount of counsel fees plaintiff is entitled to receive as a prevailing party under N.J.S.A. 56:8-19. Rendine v. Pantzer, 141 N.J. 292, 316-45, 661 A.2d 1202 (1995).

I

At all times relevant to this case, plaintiff worked as a financial advisor. On July 15, 2013, plaintiff went to the home of his client Ed Kohler. During this encounter, plaintiff told Kohler that his air conditioning unit had malfunctioned and he could not get anyone to come fix it. Kohler contacted his friend, defendant John Stretavski, general manager of defendant MLSP, a home improvement contractor that services residential air conditioning units. Stretavski agreed to go to plaintiff's home that night to attempt to repair the unit. Stretavski also contacted his boss, defendant Mark Lindsay, for permission to go on this service call. According to Stretavski, he told plaintiff that he would have to charge him for

458 N.J.Super. 201

the service call. Thereafter, Stretavski met plaintiff at Kohler's home and the three drove to plaintiff's home in separate vehicles.

Stretavski replaced the air conditioner unit's capacitor with a new one he had in his truck. Although he told plaintiff the unit most likely needed a new motor, he

203 A.3d 956

believed he may be able to get the old motor working with a new capacitor. According to Stretavski's deposition testimony, plaintiff approved this attempted repair. The "blower motor" started running after Stretavski replaced the capacitor. Stretavski testified that he explained to plaintiff that "based upon the noise [he] heard [he] was not sure if the blower motor would last five minutes or five months."

At this point, the three men (plaintiff, Stretavski, and Kohler) went outside to check "the charge of the unit." Stretavski also checked the amount of refrigerant available and found the pressure was low. Stretavski testified he told plaintiff the unit needed more refrigerant. Once again, Stretavski testified plaintiff approved adding more refrigerant after Stretavski told him the price. As soon as Stretavski added the refrigerant, he heard a loud noise from the basement. In Stretavski's words: "[s]o that was indicative that I lost air flow and the motor went."

Stretavski told plaintiff that the unit required a new motor. Because he did not have a replacement motor in his truck, he would have to return the next day to install it. According to Stretavski, he told plaintiff the price of a motor was between $500 and $800. He also provided him with a handwritten invoice for the work he had done that night, which amounted to $596.06. Plaintiff wrote a check for this amount but did not sign the invoice. When asked about plaintiff's failure to sign the invoice, Stretavski explained: "I felt comfortable with him as far as being an acquaintance of Ed Kohler."

Stretavski returned to plaintiff's home the next day and installed the new blower motor. However, when Stretavski started the system, he noticed "once again that large line that we typically see condensation forming after a little bit of time was not present yet again." Stretavski went outside and determined "that the system

458 N.J.Super. 202

had absolutely no Freon. There was zero. No Freon." Stretavski acknowledged: (1) he had added Freon the previous day; (2) there was a leak; and (3) he did not check if there was a leak before installing a new blower motor because he needed air flow. Stretavski testified that plaintiff "started to get a little bit annoyed" when he told him that he would need to perform a nitrogen test to determine where the leak in the system was located. Stretavski provided plaintiff with an invoice for the new motor, which plaintiff paid with a check. On the invoice for the new...