SYNTHETIC SURFACES, INC. v. SOUTHWEST SYNTHETIC TURF, INC., a Corporation doing business in the State of New Jersey

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3027-04T13027-04T1

SYNTHETIC SURFACES, INC., a

Corporation of the State of

New Jersey,

Plaintiff-Respondent/

Cross-Appellant,

v.

SOUTHWEST SYNTHETIC TURF, INC.,

a Corporation doing business in

the State of New Jersey,

Defendant-Appellant/

Cross-Respondent.

_______________________________________

 

Submitted September 12, 2006 - Decided October 27, 2006

Before Judges Lisa and Grall.

On appeal from Superior Court of New Jersey,

Law Division, Union County, L-1180-98.

Nadine Maleski, attorney for appellant/ cross-respondent.

Lindabury, McCormick & Estabrook, attorneys for respondent/cross-appellant (Anthony J. LaRusso, on the brief).

PER CURIAM

This matter returns to us on cross-appeals filed following a limited remand. See Synthetic Surfaces, Inc. v. Southwest Synthetic Turf, Inc., No. A-3192-02 (App. Div. Oct. 27, 2004) (slip op. at 2). Because the judge's decision on remand is supported by sufficient credible evidence in the record, we affirm. Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 483-84 (1974).

Plaintiff Synthetic Surfaces, Inc. (Synthetic) developed and marketed urethane adhesives, and defendant Southwest Synthetic Turf, Inc. (Southwest) assembled golf mats using Synthetic's adhesives to bond component parts it purchased from others. Synthetic, supra, slip op. at 2. Synthetic filed a complaint alleging that Southwest breached its contract and seeking damages. Southwest counterclaimed, alleging that Synthetic breached express and implied warranties.

Following a bench trial, the judge awarded Southwest $287,699.00, plus post-judgment interest, on its warranty claims and Synthetic $18,927.12 on its contract claim. Synthetic appealed. We affirmed but remanded for the limited purpose of permitting the judge to reconsider the amount of damages in light of evidence of mitigation.

On remand, the judge resolved conflicts in Southwest's evidence about the number of mats it was able to refurbish. The judge accepted Southwest's testimony that it was able to salvage most of the mats and rejected Southwest's claim that this testimony related to only one batch of mats. In the absence of evidence establishing the number of mats that were a total loss, the judge recalculated total damages and reduced the amount from $287,699.00 to $133,434.90. The judge denied Southwest's application for prejudgment interest and granted its application for post-judgment interest from the date of the court's initial decision following trial.

Southwest raises two arguments on appeal:

I. THE TRIAL COURT ERRED ON REMAND IN REDUCING THE AWARD OF DAMAGES TO DEFENDANT FROM $287,699.00 TO $133,434.90.

A. This Appellate Court is Empowered to

Make Initial Findings of Fact Where

the Trial Court's Finding on Damages

Was Clearly Mistaken and Plainly

Unwarranted Such That They are so

Wholly Insupportable as to Result in

a Denial of Justice.

B. The Trial Court's Finding on Damages

Was Clearly Mistaken and So Plainly

Unwarranted That the Interests of

Justice Demand Intervention and

Correction.

II. THE TRIAL COURT ERRED ON REMAND IN NOT

AWARDING PREJUDGMENT INTEREST TO

DEFENDANT.

Synthetic responds and presents three additional arguments on its cross-appeal:

I. THE TRIAL COURT'S REDUCTION OF THE

DAMAGE AWARD IS SUPPORTED BY CREDIBLE EVIDENCE AT TRIAL AND ON REMAND.

A. THE REDUCTION OF THE DAMAGE

AWARD FROM $287,966 TO

$133,434.90, IN AND OF ITSELF,

IS SUPPORTED BY CREDIBLE

EVIDENCE AT TRIAL AND ON

REMAND.

B. THE "DAMAGE AWARD" SHOULD BE

REDUCED FURTHER BY THE NUMBER OF

GOLF MATS WHICH SOUTHWEST MADE

AFTER SYNTHETIC WARNED SOUTHWEST

IN EARLY 1997 NOT TO USE

SYNTHETIC'S ADHESIVE WITH THE

FOAM PAD IT WAS USING.

II. SOUTHWEST IS NOT ENTITLED TO

PREJUDGMENT INTEREST.

A. THE TRIAL COURT CORRECTLY

DETERMINED THAT SOUTHWEST

WAS NOT ENTITLED TO

PREJUDGMENT INTEREST.

B. THE TRIAL COURT ERRED IN IMPOSING

"RETROACTIVE" INTEREST AS OF

DECEMBER 13, 2002.

III. SOUTHWEST'S COUNTERCLAIM SHOULD BE

DISMISSED, AND THE JUDGMENTS AGAINST

SYNTHETIC SHOULD BE DISCHARGED FOR

FAILURE TO PROVE DAMAGES.

None of the arguments have sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We add the following explanation.

Our remand was limited, and the trial judge properly restricted his decision in accordance with our directive. See, e.g., Summit Trust Co. v. Baxt, 333 N.J. Super. 439, 448 (App. Div.), certif. denied, 165 N.J. 678 (2000); Jersey City Redev. Agency v. Mack Prop. Co., 280 N.J. Super. 553, 562-63 (App. Div. 1995). We decline to consider or reconsider any issue unrelated to that remand. See State v. Cusick, 116 N.J. Super. 482, 485 (App. Div. 1971) (holding that issues decided on the merits in a prior appeal may not be relitigated on a subsequent appeal). Southwest had a duty to make reasonable efforts to minimize its losses. Stark v. Nat'l Research & Design Corp., 33 N.J. Super. 315, 323 (App. Div. 1954). The judge's findings on remand are not wholly unsupported and his order is not manifestly unjust. Rova Farms, supra, 65 N.J. at 483-84.

The judge's rulings on prejudgment and post-judgment interest do not constitute an abuse of discretion that would warrant our interference. See Meshinsky v. Nichols Yacht Sales, Inc., 110 N.J. 464, 478 (1988) (applying that standard of review); DialAmerica Mktg., Inc. v. KeySpan Energy Corp., 374 N.J. Super. 502, 508 (App. Div.) (discussing the equitable principles governing an award of prejudgment interest in contract actions), certif. denied, 184 N.J. 212 (2005); Baker v. Nat'l State Bank, 353 N.J. Super. 145, 173-74 (App. Div. 2002) (recognizing that R. 4:42-11 affords discretion to deviate from the general rule in the interest of equity and award post-judgment interest from a date other than the date of judgment). Synthetic's deposit of the judgment amount with the court as a condition of stay pending appeal was not the "functional equivalent of paying the claimant," so as to require calculation of interest from the date of deposit. DiBenedetto v. Estate of DiBenedetto, 219 N.J. Super. 444, 444-45 (App. Div. 1987); see R. 2:9-6(a) (requiring a bond in an amount adequate to cover interest that accrues after filing of the appeal).

Affirmed.

 

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A-3027-04T1

 

October 27, 2006