Perez v. Professionally Green, LLC, A-66 September Term 2011; Supreme Court; opinion by Patterson, J.; decided September 12, 2013. On certification to the Appellate Division. [Sat below: Judges Gilroy and Nugent in the Appellate Division.] DDS No. 09-1-1304 [30 pp.]

The issue in this appeal is whether plaintiffs, whose pretrial motion for partial summary judgment was granted on the issue of a technical violation of the New Jersey Consumer Fraud Act (CFA) but was denied on the issue of ascertainable loss, may recover attorney fees under the CFA after their CFA claim was involuntarily dismissed under Rule 4:37-2(b).

Dissatisfied with swimming pool installation work performed by defendant, Swim-Well Pools Inc. (Swim-Well), plaintiffs 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 through the contract's lack of start and end dates for the project. However, the trial court found that Swim-Well had raised a genuine issue of material fact as to whether plaintiffs had suffered an ascertainable loss.

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. The court 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 attorney fees, holding that by virtue of the grant of Swim-Well's motion for involuntary dismissal, plaintiffs had failed to present sufficient evidence of an ascertainable loss and thus were not entitled to recover attorney fees under the CFA.

Plaintiffs appealed only the trial court's denial of their attorney fee application. The Appellate Division reversed, holding that plaintiffs were entitled to attorney 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.

The Supreme Court granted Swim-Well's petition for certification.

Held: When a trial court grants a defendant's motion for involuntary dismissal of plaintiffs' Consumer Fraud Act claim under Rule 4:37-2(b), no bona fide ascertainable-loss claim exists within the meaning of N.J.S.A. 56:8-19, and, thus, plaintiffs are not entitled to attorney fees.

Pursuant to authority delegated in the CFA, the Division of Consumer Affairs enacted the "Home Improvement Practices" regulations. N.J.A.C. 13:45A-16.2(a)(12) requires that home-improvement contracts include the dates on which the work is to begin and be completed. The omission of the required dates in Swim-Well's contract was the "technical violation" of the CFA found by the trial court. In addition to establishing a CFA violation, a private plaintiff must demonstrate that the violation resulted in an ascertainable loss. If a plaintiff demonstrates both a violation and a resulting ascertainable loss, the CFA provides broad relief that may include an award of attorney fees.

In Weinberg v. Sprint Corp., the court held that, to be entitled to an award of attorney fees, a CFA plaintiff must plead a bona fide claim of ascertainable loss that is capable of surviving a motion for summary judgment. By moving for summary judgment on ascertainable loss, plaintiffs invoked the standard of Rule 4:46-2. The test is whether a rational fact finder, drawing all legitimate inferences against the moving party, could resolve the alleged disputed issue in favor of the opposing party. Applying this standard to plaintiffs' partial summary judgment motion, the trial court ruled that no rational fact finder could conclude that the absence of start and end dates in Swim-Well's contract met the requirements of N.J.A.C. 13:45A-16.2(a)(12). As to ascertainable loss, however, the court determined that a rational fact finder could agree with defendant that plaintiffs sustained no ascertainable loss. Because Swim-Well did not file a motion for summary judgment on the ascertainable-loss issue, the trial court was not called on to decide the pretrial motion considering the facts in the light most favorable to plaintiffs. Thus, the summary judgment proceedings do not determine plaintiffs' right to attorney fees under the CFA.

Here, Rule 4:37-2 provided the test under which the trial court evaluated plaintiffs' evidence in support of their ascertainable-loss claim. After Swim-Well moved to dismiss plaintiffs' claim following plaintiffs' presentation of proofs to the jury, the trial court held that plaintiffs' claim fell short of the Rule 4:37-2 standard. A motion for involuntary dismissal requires the trial court to scrutinize the evidence presented and determine if it would support a verdict in the plaintiff's favor. The trial court considered plaintiffs' evidence and the legitimate inferences that could be drawn in their favor and determined that no rational jury could find ascertainable loss. The trial court's grant of involuntary dismissal of that claim, unchallenged on appeal, guides the resolution of the issue of attorney fees under the CFA.

A trial court's grant of a defendant's motion for summary judgment under Rule 4:46-2 or a defendant's motion for involuntary dismissal under Rule 4:37-2(b) confirms that no bona fide ascertainable-loss claim exists. Under either rule, a defendant will not prevail if the evidence, viewed in the light most favorable to the plaintiff, would permit a rational fact finder to conclude that the plaintiff has sustained an ascertainable loss.

In the procedural setting here, plaintiffs' claim for ascertainable loss did not rise to the level of a bona fide claim of ascertainable loss that raises a genuine issue of fact within the meaning of Weinberg. Plaintiffs have not established a viable claim for attorney fees under N.J.S.A. 56:8-19 and the trial court properly dismissed their CFA claim. The judgment of the Appellate Division is reversed.

Chief Justice Rabner; Justices LaVecchia, Albin, and Hoens; and Judges Rodríguez and Cuff, both temporarily assigned, join in Justice Patterson's opinion.

For appellant — Jerald J. Howarth (Howarth & Associates; Howarth and Purnima D. Ramlakhan on the briefs). For respondent — Edward R. Grossi (Grossi and Anthony P. Ambrosio; Ambrosio on letter in lieu of brief).