SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1089-18T4

JUAN PENA and MILAGROS

PENA,

Plaintiffs-Appellants,

v.

JOSE GOMEZ, t/a

JURGO CONSTRUCTION,

Defendant-Respondent.

____________________________

Submitted October 29, 2019 – Decided

Before Judges Messano and Susswein.

On appeal from the Superior Court of New Jersey,

Law Division, Union County, Docket No. DC-013546-

17.

Andril & Espinosa, LLC, attorneys for appellants 

(Antonio R. Espinosa, on the brief).

Respondent has not filed a brief. 

PER CURIAM

NOT FOR PUBLICATION WITHOUT THE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.

February 7, 2020
2

A-1089-18T4

This appeal arises from a civil action for breach of contract, consumer 

fraud, and common law fraud brought in the Special Civil Part against a home 

improvement contractor. After performing some work, the contractor 

abandoned the project, forcing plaintiffs, Juan and Milagros Pena, to hire 

replacement contractors to complete the work and repair damage the first 

contractor caused. The trial court entered default judgment against defendant, 

Jose Gomez, and, after convening a proof hearing, found breach of contract. 

However, for reasons not explained on the record, the trial court did not find 

consumer fraud. Similarly, the trial court denied plaintiffs' motion for 

reconsideration without elaborating on its conclusion that defendant did not 

commit consumer fraud. 

After reviewing the record in light of the applicable legal standards, we 

conclude that the Special Civil Part judge was clearly mistaken in refusing to 

reconsider whether defendant violated the Consumer Fraud Act (CFA), N.J.S.A. 

56:8-1 to -210. Exercising original jurisdiction, we further conclude plaintiffs 

have established that defendant committed a consumer-fraud violation. 

Accordingly, plaintiffs are entitled to attorneys' fees and treble damages in the 

amount of $15,000, which is the jurisdictional limit of the Special Civil Part. R.
3

A-1089-18T4

6:1-2(a)(1). We remand this matter to the trial court for the sole purpose of 

determining the amount of attorneys' fees in accordance with Rule 4:42-9(a)(8). 

I.

We derive the following facts from the record on appeal. In early June 

2013, plaintiffs hired defendant to replace their roof, remodel their front porch, 

fix the foundation, and make various other home improvements at a total cost of 

$20,000. The contract specified a payment schedule that provided plaintiffs 

would pay defendant an initial sum of $10,000 upon signing the contract. The 

contract clearly stated that the next installment of $5000 was not due until 

defendant completed work on the foundation and roof. The homeowners would 

next pay $4000 once defendant finished the basement and porch. The contract 

provided that the homeowners would tender the final $1000 installment only 

after defendant completed all remaining work. Defendant agreed to complete 

all work on the home by July 12, 2013. 

On June 5, 2013, plaintiffs made the first installment payment, and 

defendant began work on the roof and porch. Plaintiff testified that defendant 

performed poorly, leaving seams in the roof that permitted water to seep into the 

home. Plaintiff also testified that defendant demolished the porch but did not 

perform work to rebuild it. Instead, defendant refused to continue work on the 
4

A-1089-18T4

home unless he received additional payment. Plaintiffs refused to make any 

additional payments outside the agreed-upon installment schedule, and on July 

19, 2013, they sent defendant a letter notifying him that they intended to find a 

substitute contractor and seek damages. 

On September 23, 2013, plaintiffs contracted with a substitute contractor 

to replace the roof and repair the damage caused by defendant at a cost of 

$12,500. Plaintiffs paid a substitute porch contractor $3985.46 for labor and 

materials, and they paid $5600 to a painting contractor to address the water 

damage the roof leak caused. In total, plaintiffs paid $22,085.46 to three 

contractors to complete the improvements and to repair the damage defendant 

had caused. 

Defendant did not contest the suit filed by plaintiffs in the Special Civil 

Part, prompting the trial court to enter default judgment. Subsequently, the court 

conducted a proof hearing at which plaintiff, Milagros Pena, testified. The court 

admitted into evidence a copy of the contract between plaintiffs and defendant, 

plaintiffs' letter advising defendant of their intent to seek damages, and the 

contract with a substitute contractor. 

At the conclusion of the proof hearing, the trial court found that defendant 

breached the contract and ordered defendant to return the down payment of 
5

A-1089-18T4

$10,000. As to consumer fraud, the trial court noted only, "there is no consumer 

fraud, there's no case for consumer fraud." The court gave no further 

explanation for rejecting this part of plaintiffs' suit.

Plaintiffs filed a motion for reconsideration pursuant to Rule 4:49-2. The 

trial court denied plaintiffs' motion for reconsideration without holding a 

hearing or providing a statement of reasons. Plaintiffs now appeal from that 

ruling. 

II.

Plaintiffs present two matters for our consideration. First, plaintiffs 

contend that the trial court erred in denying their motion for reconsideration of 

the court's prior ruling at the proof hearing that plaintiffs had failed to present 

evidence establishing defendant violated the CFA. Second, plaintiffs argue the 

proofs they submitted at the proof hearing and through the reconsideration 

motion clearly establish defendant violated the CFA, warranting treble damages 

and attorneys' fees. We turn first to the plaintiffs' contentions regarding the 

motion for reconsideration before addressing the substance of plaintiffs' 

consumer-fraud claim. 
6

A-1089-18T4

III.

Rule 4:49-2 governs motions for reconsideration. The Rule serves a 

limited purpose aimed at permitting courts to correct their own mistakes: 

Reconsideration should be utilized only for those cases 

which fall into that narrow corridor in which either [(]l) 

the Court has expressed its decision based upon a 

palpably incorrect or irrational basis, or [(]2) it is 

obvious that the Court either did not consider, or failed 

to appreciate the significance of probative, competent 

evidence.

[D'Atria v. D'Atria, 242 N.J. Super. 392, 401 (Ch. Div. 

1990); accord Cummings v. Bahr, 295 N.J. Super. 374, 

384 (App. Div. 1996).]

"In short, a motion for reconsideration provides the court, and not the litigant, 

with an opportunity to take a second bite at the apple to correct errors inherent 

in a prior ruling." Medina v. Pitta, 442 N.J. Super. 1, 18 (App. Div. 2015); see 

also Lahue v. Pio Costa, 263 N.J. Super. 575, 598 (App. Div. 1993) ("The basis 

[for a motion for reconsideration], thus, focuses upon what was before the court 

in the first instance." (citing D'Atria, 242 N.J. Super. at 401)). 

"The decision to deny a motion for reconsideration falls 'within the sound 

discretion of the [trial court], to be exercised in the interest of justice.'" In re 

Belleville Educ. Ass'n, 455 N.J. Super. 387, 405 (App. Div. 2018) (alteration in 

original) (quoting Cummings, 295 N.J. Super. at 384). "An abuse of discretion 
7

A-1089-18T4

'arises when a decision is "made without a rational explanation, inexplicably 

departed from established policies, or rested on an impermissible basis."'" 

Pitney Bowes Bank, Inc. v. ABC Caging Fulfillment, 440 N.J. Super. 378, 382 

(App. Div. 2015) (quoting Flagg v. Essex Cty. Prosecutor, 171 N.J. 561, 571 

(2002)). 

In this instance, the trial court denied plaintiffs' motion for reconsideration 

without providing an explanation. Nor did the court provide an explanation for 

its earlier finding that plaintiffs had not established consumer fraud. We are 

therefore constrained to hold that the trial court was clearly mistaken in rejecting 

plaintiffs' motion for reconsideration of their consumer-fraud complaint, 

especially since the contract on its face reveals a regulatory violation of the CFA 

and evidence of CFA violations was uncontroverted at the proof hearing. 

Although we conclude plaintiffs' consumer-fraud claim warrants 

reconsideration, we do not find it necessary to remand this matter to the trial 

court to undertake that assessment. Rather, to avoid further delay and cost, and 

because the facts needed to establish a basis for relief under the CFA were 

adduced at the proof hearing, we exercise original jurisdiction to correct these 

errors. R. 2:10-5; Price v. Himeji, LLC, 214 N.J. 263, 294–96 (explaining that 

Rule 2:10-5 "allow[s an] appellate court to exercise original jurisdiction to 
8

A-1089-18T4

eliminate unnecessary further litigation but discourage[s] its use if factfinding 

is involved." (alteration in original) (quoting State v. Santos, 210 N.J. 129, 142 

(2012)). 

IV.

The CFA affords "relief to consumers from 'fraudulent practices in the 

market place.'" Lee v. Carter-Reed Co., 203 N.J. 496, 521 (2010) (quoting Furst 

v. Einstein Moomjy, Inc., 182 N.J. 1, 11 (2004)). The CFA provides: 

Any person who suffers any ascertainable loss of 

moneys or property, real or personal, as a result of the 

use or employment by another person of any method, 

act, or practice declared unlawful under this act . . . may 

bring an action . . . in any court of competent 

jurisdiction. 

[N.J.S.A. 56:8-19.] 

"Thus, to state a claim under the CFA, a plaintiff must allege each of three 

elements: (1) unlawful conduct by the defendants; (2) an ascertainable loss on 

the part of the plaintiff; and (3) a causal relationship between the defendants' 

unlawful conduct and the plaintiff's ascertainable loss." N.J. Citizen Action v. 

Schering-Plough Corp., 367 N.J. Super. 8, 12–13 (App. Div. 2003). Plaintiffs 

successfully alleging consumer-fraud violations are entitled to treble damages 

for losses resulting from the violations, as well as the "award [of] reasonable 

attorneys' fees, filing fees and reasonable costs of suit." N.J.S.A. 56:8-19. 
9

A-1089-18T4

"An 'unlawful practice' contravening the CFA may arise from (1) an 

affirmative act; (2) a knowing omission; or (3) a violation of an administrative 

regulation." Dugan v. TGI Fridays, Inc., 231 N.J. 24, 51 (2017). A plaintiff is 

not required to show intent where the claimed consumer-fraud violation is a 

regulatory violation. Ibid.

Turning to the facts of this case, plaintiffs contend that defendant 

committed an unlawful practice by violating several regulatory requirements of 

the CFA. We conclude from the record before us that plaintiffs have presented 

evidence establishing that defendant committed violations of the CFA, including 

violations of the regulatory provisions in N.J.A.C. 13:45A-16.2. 

Next, plaintiffs maintain they suffered an ascertainable loss from 

defendant's unlawful conduct. To establish an ascertainable loss, plaintiffs must

"demonstrate a loss attributable to conduct made unlawful by the CFA." 

Thiedemann v. Mercedes-Benz USA, LLC, 183 N.J. 234, 246 (2005) (citing 

Meshinsky v. Nichols Yacht Sales, Inc., 110 N.J. 464, 473 (1988)). The loss 

must be "'quantifiable or measurable,' not 'hypothetical or illusory.'" 

D'Agostino, 216 N.J. at 185 (quoting Thiedemann, 183 N.J. at 248). In a case 

involving a home-improvement contract, the cost of repairing damages resulting 

from a defendant's unlawful practices may constitute the appropriate measure of 
10 A-1089-18T4

a plaintiff's ascertainable loss. See, e.g., Cox v. Sears Roebuck & Co., 138 N.J. 

2, 22–24 (1994) (concluding that the plaintiff's loss "amounted to the cost of 

repairing" damages resulting from the defendant's unlawful practices). 

Here, plaintiffs presented uncontroverted evidence that they paid 

substitute contractors to complete the work and repair damage defendant caused. 

That is sufficient to establish an ascertainable loss within the meaning of the 

CFA. 

Finally, plaintiffs are required to demonstrate "a causal relationship 

between the [defendant's] unlawful conduct and [their] ascertainable loss." 

Schering-Plough Corp., 367 N.J. Super. at 12–13 (App. Div. 2003). Our review 

of the record leads us to conclude that there was a causal relationship between 

the violations of the CFA and the ascertainable loss. Had defendant complied 

with the CFA, plaintiffs would not have had to pay substitute contractors to 

repair the damage defendant caused. 

V.

We hold that plaintiffs have proven all the requisite elements of their 

consumer-fraud claim. Accordingly, we exercise our original jurisdiction to 

award treble damages of $15,000, which is the jurisdictional limit of the Special 

Civil Part. See Nieves v. Baran, 164 N.J. Super. 86, 91–92 (App. Div. 1978) 
11 A-1089-18T4

(holding that the jurisdictional limit under the predecessor to the Special Civil 

Part applies to treble damages under the CFA); R. 6:1-2(c) (deeming waived any 

amount recoverable on a claim in excess of the jurisdictional limit of the Special 

Civil Part). We also hold pursuant to the fee-shifting provision of the CFA 

(N.J.S.A. 56:8-19) that plaintiffs are entitled to reasonable attorney fees. See

Delta Funding Corp. v. Harris, 189 N.J. 28, 41 (2006) ("An award of attorney's 

fees and costs to prevailing plaintiffs is mandatory under [the CFA]."). That 

award is not subject to the $15,000 jurisdictional limit. See Lettenmaier v. Lube 

Connection, Inc., 162 N.J. 134, 144 (1999) ("[C]ounsel fees awarded under the 

[CFA] . . . are excluded from the calculation of the jurisdictional limit of the 

Special Civil Part."). 

We remand the matter to the trial court for entry of a judgment in favor of 

plaintiffs of $15,000 and a reasonable amount of attorneys' fees pursuant to Rule

4:42-9.

Reversed and remanded for proceedings consistent with this opinion. We 

do not retain jurisdiction.