J.W. INDUSTRIES, INC. v. JIM SCHNELLER

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3741-04T13741-04T1

J.W. INDUSTRIES, INC.,

Plaintiff-Respondent,

v.

JIM SCHNELLER,

d/b/a JIM'S FLASHLIGHT,

d/b/a WATERREST,

Defendant-Appellant.

______________________________

 

Argued May 1, 2006 - Decided June 23, 2006

Before Judges Cuff, Lintner and Gilroy.

On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Docket No. L-487-04.

James Schneller argued pro se.

John Scott Boyer argued the cause for respondent.

PER CURIAM

This is a book account action. Defendant, Jim Schneller, individually and d/b/a Jim's Flashlight, appeals from the final order of judgment entered in the Law Division on January 26, 2005, in the amount of $44,841.84, together with post-judgment interest and costs, after a two-day bench trial, and from an order entered on March 4, 2005, denying his motion for a new trial. We affirm.

On February 19, 2004, plaintiff, J.W. Industries, Inc., having a place of business located in Burlington County, filed its complaint in the Law Division of that county against defendant asserting a cause of action for breach of contract by failing to pay for goods that were sold to defendant. On April 8, 2004, defendant filed his answer, and asserted a counterclaim alleging causes of action sounding in fraud, breach of contract, loss of business reputation, and loss of business profits.

On April 30, 2004, defendant filed a motion for change of venue to Camden County for the convenience of the parties and witnesses. The motion was denied by order of May 28, 2004, and defendant's motion for reconsideration was denied by order of August 6, 2004. Defendant filed a motion for leave to appeal from the denial of his motion for change of venue. On August 23, 2004, defendant filed a motion for stay of proceedings in the Law Division pending this court's determination on his motion for leave to appeal. Defendant also filed a second motion that date seeking an extension of the discovery period. Because the motion for extension of the discovery period was not returnable until five days after the discovery end date, the motion was denied by order of September 28, 2004, with the motion judge determining that defendant had failed to establish "exceptional circumstances," Rule 4:24-1(c).

After this court denied defendant's motion for leave to appeal by order of October 19, 2004, the Law Division denied his motion for a stay of proceedings by order of October 27, 2004. With trial scheduled for January 13, 2005, defendant filed multiple motions in late December 2004, requesting postponement of the trial, trial by jury, and leave to amend his counterclaim. All motions were denied by the trial judge on January 13, 2005. Following a bench trial on January 13, and January 14, 2005, Judge Wellerson rendered an oral opinion awarding plaintiff $44,841.84, together with costs, and dismissed defendant's counterclaim with prejudice. A confirming order of judgment was entered on January 26, 2005. Defendant's motion for a new trial was denied by order of March 4, 2005.

These are the relevant facts. Plaintiff is an importer of industrial rubber molded and die cast products. Joseph Bott (Bott) is plaintiff's Chief Executive Officer and President. Sometime prior to February 2002, defendant and Bott discussed the possibility of plaintiff supplying defendant with molded pool and spa mats. In correspondence dated February 5, 2002, Bott provided price quotes for manufacturing the mats from the rubber compound Ethylene Propylene Diene Monomer (EPDM) per quantity ordered; tooling and mold costs; and die charges. Plaintiff supplied defendant with a mat sample made of EPDM. On March 11, 2002, defendant sent a responsive letter to Bott, stating:

The rubber must be as un-reactive as possible, but not an oil resistant variety which will be more resistant to paint. EPDM also seems more difficult to coat and is out of the picture.

The rubber for the molded mats cannot be colored anything other than white/off-white because they will eventually deteriorate a bit and colors will mark the pool interior.

I have found two painting firms nearby who will do the work. . . .

[(emphasis added).]

In a letter dated March 19, 2002, Bott provided price quotes for different types, thicknesses, and "durometers" of EDPM, and indicated that "[s]ilk screening is possible if it is done on flat area only without tapered area." The letter also indicated that plaintiff was willing to obtain costs from a silk screen company for painting the mats as required by defendant. At or about this time, Bott and defendant engaged in conversations concerning the appropriateness of manufacturing the mats out of EPDM because defendant stated "the paint will not adhere to it." By letter dated April 2, 2002, Bott provided prices on EPDM oval mats, and stated, "I asked about EPDM [and] silk screen effect to chlorine water, sunlight [and] ozone, [and] they said it is fine." In sending the letter, Bott relied on a telefax sent to plaintiff from its manufacturer, Daehun, Inc., on April 1, 2002, stating: "EPDM and silk screen are [okay] for chlorine in the water, sunlight or ozone."

Because defendant continued to question the appropriateness of manufacturing the mats out of EPDM, defendant requested and plaintiff supplied, mat samples made from Buna-N, another rubber compound. Defendant obtained a test of the mats made from both materials in order to ascertain which rubber compound was best for paint adhesion, knowing that the mats would be placed into chlorine water and exposed to sunlight. Defendant responded to plaintiff's offer by letter of April 9, 2002, stating that after consultation with a heat transfer company, "[the paint] stuck to my rubber samples depending on the type: epdm fair, buna good . . . . I took home samples [with paint applied to our rubber] to soak in chlorine water. I am glad to submit a deposit for three molds, for the molding of the WaterRest Aqua Mats and Spa Mats[.]" Defendant ordered three cavity molds, one each in the shapes of an oval, a small dolphin, and a large dolphin. On April 11, 2002, plaintiff issued an invoice for the three molds in the amount of $16,352.50, of which $5,000 was received as partial payment, leaving a balance due on the invoice of $11,362.50. The balance was payable on or before May 11, 2002.

By letter of May 10, 2002, defendant advised plaintiff that while he "[would] like to stick to a total of 500" small dolphins, he desired them to be both left and right facing. Defendant also stated in the letter that "I test-painted the sample last night, and it appears to be EPDM, as the paint did not adhere very well, similar to other EPDM's I have seen," and defendant requested the "durometer of the Buna-N you gave me." Daehun advised plaintiff by telefax dated May 10, 2002, that producing the mats on Buna-N would increase the price by 5%. On May 14, 2002, plaintiff, at request of defendant, provided defendant with quotes for manufacturing a "Baby Dolphin" mat from white EPDM, including the cost for manufacturing a cavity mold for the smaller mat.

Defendant ordered 250 oval mats; 100 small dolphin mats with edges tapered white; 100 dolphin mats with edges tapered blue; 100 large dolphin mats with edges tapered white; and 100 large dolphin mats with edges tapered blue. The order provided that all mats were to be made of Buna-N rubber compound, not EPDM rubber compound. Because Daehun had to buy a certain amount of Buna-N compound to give defendant a competitive price, defendant agreed to increase the quantity ordered of small and large white dolphins.

By telefax dated May 27, 2002, Daehun advised plaintiff that defendant "liked a sample of large dolphin," and the "large dolphin samples were made from 50 Duro White Buna-N." On June 13, 2002, the initial order of mats, all made from 50-Duro Buna-N, were shipped from Daehun to plaintiff. On July 12, 2002, Schneller picked up from plaintiff 130 mats for which he was invoiced $3,365.40, with a payment due date of August 14, 2002. On August 5, 2002, the second order of 620 additional mats was shipped from Daehun to plaintiff.

Sometime in late July or early August 2002, defendant received complaints from his customers that the mats were "chalky" and deteriorating in the bottom of the customers' pools. Defendant notified Bott of same, by delivering several of the mats to him. In a letter dated August 8, 2002, a representative of plaintiff wrote to Daehun stating, in pertinent part:

Mr. Bott [does] [not] think anybody is going to empty 35,000 gal[lons] [o]f water just so they could take a picture of the stain. No[,] we do not have a water resistant camera. He went today to look at the pool w[h]ere this is happening so he could get a better idea of what they are talking about. We will advise as soon as he calls me tomorrow.

On August 9, 2002, Daehun replied asking whether the dolphins were printed (painted) by the customer.

Notwithstanding the complaints, an internal memo of plaintiff indicates that "sometime during late summer or early fall of 2003" defendant came to the office of plaintiff to ascertain whether plaintiff "would release to him anymore dolphins, knowing that he had an outstanding past due balance of $15,727.90." Because of the balance due, plaintiff denied his request. Plaintiff's representatives stated in the internal memo that they "did not understand why at this point, mid to late 2003[,] [defendant] wanted to pick up more dolphins if he was claiming that they were defective."

On December 23, 2003, plaintiff issued a third invoice for the balance of the mats ordered by defendant and manufactured by Daehun at defendant's request in the amount of $30,113.94 with a payment due date of January 22, 2004. The amount of mats manufactured was less than the amount ordered because when using a mold there is no "overrun," instead there is often an "underrun." The total aggregate due on the three invoices was $44,841.84.

After making his findings of fact concerning the goods ordered by defendant, the amount of goods delivered by plaintiff, and the balance due on the three invoices, the trial judge entered judgment in favor of plaintiff, and dismissed the counterclaim determining:

The [c]ourt finds that the plaintiff's record in regards to the amount of money due and owing is credible and is reliable. The [c]ourt finds that these numbers were generated as a result of the regular bookkeeping records of J.W. Industries[,] and the [c]ourt finds that Mr. Bott is credible in that regard.

Mr. Schneller raises to the [c]ourt the issue that the product itself voids the contract, because of the fact that the product is not suitable for the intended use. And to that, he indicates that the product wears as a result of the exposure to chlorine or other elements, perhaps sunlight.

But certainly, when it [is] placed in the bottom of the swimming pool for a period even as short as one week in duration, that there is a deterioration or degradation of the material used and that it has a -- it appears somewhat white, because the blue dolphin has a whitish tint to it, it appears to be either flaking off or disintegrating.

Testimony, the [c]ourt finds, from Mr. Taylor is credible that when you place it in the bottom of the pool, that the material starts to disintegrate or dissolve, somehow comes off the dolphin and goes onto the feet of the people in the pool or otherwise rubs off. The [c]ourt finds that that testimony is credible and accurate.

The [c]ourt also focuses on the discussions regarding the material to be used between J.W. Industries and Mr. Schneller. Specifically, the [c]ourt focuses on P-6, which was introduced into evidence, which is a memo from Mr. Schneller. In the first paragraph, he indicates that the rubber must be un[-]reactive as possible, but not oil-resistant variety, which would be more resistant to paint.

Mr. Schneller indicates that EPDM also seems more difficult to coat and is out of the picture. Mr. Schneller indicates, at that time, that EPDM was not being considered as of that date, because he undertook certain testing procedures, which he did, where he applied paint to the various samples which were supplied by J.W. Industries and Mr. Bott and found that the adherence of the paint to the product[,] which was constructed out of EPDM[,] was unsatisfactory and would not be appropriate for use.

In response to that, Mr. Bott inquired from the manufacturers of the product and attached to the evidence -- the [c]ourt does [not] have it immediately in front of it, but there are, the [c]ourt recalls, in the evidence of a memorandum from Mr. Bott which indicated that, in fact, he had recommended EPDM and that EPDM was specifically discussed in regards to its ability to withstand chlorine and sunlight and was found to be appropriate for that use.

There have been no representations made by either J.W. Industries or Mr. Bott that the material[,] which was ultimately selected by Mr. Schneller[,] would be satisfactory for use in a pool. The Duro Buna-N, which ultimately was selected by Mr. Schneller because of its ability to accept paint, was not represented by J.W. Industries as being appropriate for use in chlorine and/or sunlight; that they were instructed by Mr. Schneller to make the molds from that product.

The [c]ourt also looks to the actions of the customer here, Jim's Flashlight or Mr. Schneller, that they undertook the painting of these products themselves[,] and would essentially be in charge of contracting out the product to his own silk screeners and/or other subcontractors, which would apply the paint to the product. He felt comfortable in his expertise in doing so.

J.W. Industries made no representations in regards to the ability of the paint to adhere to the product. There was a recommendation to use balloon paint, because of its ability to stretch and bend with the product[,] and [J.W. Industries] offered certain prices, which Mr. Schneller found to be objectionable because of the excessive cost.

Given that, Mr. Schneller undertook his own testing, that he felt he was competent to make decisions in that regard[,] and also the fact that he felt sufficiently expertise as -- sufficient expertise in the ability to contract out the painting.

The [c]ourt finds that there is -- that the plaintiff has more than satisfied its burden of proof that the defendant directed plaintiff in the type of material to be used[,] and also is fully aware of the price that would be applied to each of the units.

The [c]ourt finds that there was an acknowledgment of that at the time that Mr. Schneller accepted the initial one back in July. He indicated, certainly with his signature, that he accepted that price and testified in court that he was fully aware of the fact that additional product would be on its way.

Mr. Schneller also indicates, in regards to the construction of the same, that not only did he test the product samples for their ability to accept paint, but specifically through P-12, he indicates in his memo to Mr. Bott on April 9, 2002, that he can contract out for painting. He said the good part was they had small tooling fees and they can do the big dolphin mosaics for as little as $4 a shot and then indicates, significantly in the [c]ourt's mind, "I took home some samples applied to our rubber to soak in chlorine water." Immediately after that comment he says, "I am glad to submit a deposit for three molds[,]" and authorizes J.W. Industries to go ahead and commence the run.

He has indicated that he has undertaken his own evaluation of the product that, in fact, he did soak them in chlorine; that he was satisfied with the result; that he used the product that was supplied to him. He indicates that EPDM is not in the picture for consideration; that they should make the runs with Buna-N.

This was a product that was not recommended by J.W. Industries; that J.W. Industries had indicated on a prior date that, in fact, EPDM was the preferred product. And that is through Exhibit P-9 on April 2[], Mr. Bott indicates to Mr. Schneller, "I asked about EPDM and silkscreen effects to chlorine water, sunlight, ozone, they said it [is] fine. And then gives prices for the products if they are constructed out of EPDM.

The [c]ourt finds, as a result, that there was a contract between the parties; that they did enter into an agreement; that the agreement specifically called for the price on each of the products, which were delivered; that there was delivery of the product; that there was acknowledgment of the delivery; that the product was constructed as contracted for[;] and the [c]ourt finds that there was a meeting of the minds in regards to the product[,] which ultimately would be blue.

The [c]ourt is satisfied that the plaintiff has met its burden of proof[,] and has proved by demonstration by a preponderance of the evidence, that the amount due and owing from the customer here, James Schneller, doing business as Jim's Flashlight, is in the amount of $11,362[.50], in addition to the $[3,365.40] and $[30,113.94] -- for a total of $44,841.84.

The [c]ourt also has considered the issue as to whether or not the amount of product delivered was in excess of what the contract was. The [c]ourt is satisfied that there was a clear disclosure[;] that there would need to be a minimum of three runs, due to the amount of material which would have to be purchased in bulk; that there was a discussion in that regard.

And the [c]ourt is also satisfied that the amount of the product[,] which ultimately was produced[,] was certainly within the range of reasonableness; that there was an initial indication that the overall product would be as many as []1,500 units. The [c]ourt's recollection is that the total number of pieces[,] which were produced[,] were somewhere in the range of []1,100 units[,] and that is due to the exact nature of the estimating, due to the fact that the product has to be purchased in bulk and that runs will be produced at that time.

The [c]ourt is satisfied that it is appropriate at this juncture to enter judgment for J.W. Industries in the amount of $44,841[.84], plus cost of the suit.

On appeal, defendant raises the following restated issues for our consideration:

POINT I.

WHETHER THE COURT PREJUDICED DEFENDANT'S CASE THROUGH ITS DECISION REGARDING VENUE.

POINT II.

WHETHER THE COURT ERRED IN DENYING DEFENDANT'S MOTION TO STRIKE DEFENDANT WATERREST, INC. FROM THE CAPTION, WATERREST, INC. BEING A NON-ENTITY.

POINT III.

WHETHER THE COURT PREJUDICED DEFENDANT'S CASE THROUGH ITS PRE-TRIAL DECISION REGARDING DISCOVERY.

POINT IV.

WHETHER THE COURT PREJUDICED DEFENDANT'S CASE IN ITS PRE-TRIAL DECISION REGARDING A STAY PENDING DEFENDANT'S APPEALS REGARDING VENUE AND EXTENSION OF TIME FOR DISCOVERY.

POINT V.

WHETHER DEFENDANT'S CASE HAS BEEN DEEPLY AFFECTED BY ERROR OF THE CLERK.

POINT VI.

WHETHER THE COURT COMMITTED ERROR IN NOT PERMITTING A JURY TRIAL DESPITE ISSUES OF FACT.

POINT VII.

WHETHER THE COURT PREVENTED OR TACITLY ALLOWED PREVENTION OF A FULL AND FAIR TRIAL THROUGH LACK OF A PRE-TRIAL CONFERENCE AND OTHER PRE-TRIAL AND SEQUENCING ERROR.

POINT VIII.

WHETHER THE COURT ERRED IN STIFLING ARGUMENT ON DEFENDANT'S COUNTERCLAIM AND MOTION TO AMEND HIS COUNTERCLAIM AND PROCEEDING TO TRIAL ON PLAINTIFF'S CHARGES WHILE EXHIBITING AN OPEN BIAS TO DEFENDANT'S COUNTER-CHARGES AS RAISED DURING CROSS-EXAMINATION.

POINT IX.

WHETHER THE COURT ERRED IN DENYING DEFENDANT'S MOTION TO ADD CAUSES TO HIS COUNTERCLAIM.

POINT X.

WHETHER THE COURT HAS NOT FOUND A TRANSGRESSION OF THE PRINCIPLES OF GOOD FAITH AND FAIR DEALING DESPITE SUPPORTIVE FACT.

POINT XI.

WHETHER THERE WAS ERROR IN PLAINTIFF'S WITNESS TESTIFYING AS AN EXPERT.

POINT XII.

WHETHER THE COURT ERRED IN SUBJECTING DEFENDANT'S CAUSE OF ACTION FOR BREACH OF CONTRACT DUE TO UNACCEPTABLE PRODUCT TO THE STANDARD OF PRE-MANUFACTURE SAMPLING RATHER THAN THE STANDARD OF QUALITY OF THE MANUFACTURED LOT.

POINT XIII.

WHETHER THE COURT EGREGIOUSLY ERRED IN ACCEPTING MEMORANDA BETWEEN PLAINTIFF AND HIS SUPPLIER AS DISCLOSURES BETWEEN PLAINTIFF AND DEFENDANT.

POINT XIV.

WHETHER THE COURT ERRED IN FAILING TO ADMONISH A REFERENCE BY PLAINTIFF'S WITNESS TO A COMMONALITY BETWEEN HIMSELF AND A COURT OFFICER.

POINT XV.

WHETHER THE COURT ERRED IN FINDING THAT DELIVERY WAS MADE UPON DEFENDANT PRIOR TO DISCOVERY BY DEFENDANT OF THE DEFECTIVE NATURE OF THE GOODS.

POINT XVI.

WHETHER THE COURT OVERLOOKED STRONG EVIDENCE OF FRAUD.

POINT XVII.

WHETHER THE COURT MADE NO FINDING OF RECISSION NOR OF MODIFICATION DESPITE DEFENDANT'S SHOWING ON SAME.

POINT XVIII.

WHETHER THE COURT ERRED IN NOT FINDING A BREACH OF IMPLIED WARRANTY.

POINT XIX.

WHETHER THE COURT PREVENTED A FULL AND JUST RESOLUTION TO THE COMPLAINT BY FAILING TO FIND FACTS WHICH SUPPORT RECOUPMENT.

POINT XX.

WHETHER THE COURT, IN DISMISSING DEFENDANT'S CAUSES OF ACTION FOR BREACH OF CONTRACT, TORTIOUS INTERFERENCE, FRAUD, PRODUCT LIABILITY, AND SUCH, HAS NEGATED THE PAYMENT OF DAMAGES TO DEFENDANT.

POINT XXI.

WHETHER THE COURT ERRED IN NOT GRANTING A NEW TRIAL; WHETHER THE COURT ERRED IN FAILING TO FIND THAT DEFENDANT'S NOTIFICATION WAS TIMELY, THAT PLAINTIFF CONTRIBUTED TO THE BREACH, AND THAT PLAINTIFF WAS DECEITFUL; AND WHETHER THE COURT ERRED IN FAILING TO ADJUDICATE OF TITLE TO THE PRODUCTS.

A judgment in a non-jury case shall not be overturned, except where after a careful review of the record and weighing of the evidence, the appellate court determines that "continued viability of the judgment would constitute a manifest denial of justice." Baxter v. Fairmont Food Co., 74 N.J. 588, 597-98 (1977). An appellate court will not disturb the factual findings and legal conclusions of the trial judge unless they are "'so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice.'" Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974) (quoting Fagliarone v. Twp. of N. Bergen, 78 N.J. Super. 154, 155 (App. Div.), certif. denied, 40 N.J. 221 (1963)). "'That the case may be a close one or that the trial court decided all evidence or inference conflicts in favor of one side has no special effect.'" Czoch v. Freeman, 317 N.J. Super. 273, 283 (App. Div. 1998) (quoting State v. Johnson, 42 N.J. 146, 162 (1964)), certif. denied, 161 N.J. 149 (1999).

The rationale underlying this limited scope of appellate review is that "a trial judge's findings are substantially influenced by his or her opportunity to hear and see the witnesses and to get a 'feel' for the case that the reviewing court can not enjoy." Twp. of W. Windsor v. Nierenberg, 150 N.J. 111, 132 (1997). For this reason, credibility determinations are entitled to particular deference, because the trial judge has a superior perspective to evaluate the veracity of witnesses. Id. at 132-33.

We have carefully considered defendant's arguments in light of the record and applicable law. We conclude the issues presented are without sufficient merit to warrant extensive discussion in this opinion. R. 2:11-3(e)(1)(A) and (E). We affirm substantially for the reasons expressed by Judge Wellerson in his oral opinion of January 14, 2005.

Affirmed.

 

The complaint named "Waterrest, Inc., and Jim Schneller d/b/a Jim's Flashlight" as defendants. Plaintiff moved to enter default judgment against "Waterrest, Inc.," after no answer was filed on behalf of that party. On motion to set aside default judgment and "drop defendant Waterrest, Inc., from the complaint," plaintiff learned that "Waterrest, Inc.," is not a viable corporation, but only a second trade name used by defendant in the operation of his business. Although defendant successfully moved to vacate the default judgment that was entered against "Waterrest, Inc.," the court, by order of September 28, 2004, denied Schneller's motion to strike "Waterrest, Inc.," as a named defendant. Because no appeal has been taken from the court's order of September 28, 2004, and the final order of judgment appealed from designates defendant as "Jim Schneller d/b/a Jim's Flashlight d/b/a Waterrest," the term "defendant" as used in this opinion shall refer to "Jim Schneller d/b/a Jim's Flashlight, d/b/a Waterrest."

On January 25, 2005, this court entered an order denying defendant's motion for leave to appeal from the order of the Law Division that denied his motion for an extension of discovery.

A durometer is an instrument for measuring hardness, and a term used in the industry to refer to the actual hardness of a material, e.g., 50 Duro compared to 30 Duro.

(continued)

(continued)

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A-3741-04T1

June 23, 2006