HARRIS SANITATION, INC. v. JOSEPH L. CIUZIO et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5959-04T55959-04T5

HARRIS SANITATION, INC.

Plaintiff-Respondent,

v.

JOSEPH L. CIUZIO and

KATHLEEN CIUZIO,

Defendants-Appellants.

_____________________________

 

Argued March 21, 2006 - Decided April 20, 2006

Before Judges Coburn, Collester and Lisa.

On appeal from Superior Court of New Jersey,

Law Division, Morris County, DC-152-05.

Jack Dashosh argued the cause for appellants.

Edward G. Engelhart argued the cause for

Respondent (Sommer and Englehart, attorneys;

Mr. Engelhart, of counsel and on the brief).

PER CURIAM

Following a bench trial, Judge Catherine M. Langlois granted judgment to plaintiff Harris Sanitation, Inc. for $1,733.50 against defendants Joseph L. Ciuzio and Kathleen Ciuzio and dismissed defendants' counterclaim. We affirm.

Defendants entered into a contract with Billie and Kathleen Duncan for purchase of a home at 54 Loy Avenue in Riverdale. A pre-closing property inspection disclosed the need to replace the existing septic system. The Duncans retained an engineer, Gerald Gardner Associates, Inc., to prepare a wastewater treatment system plan. The plan submitted included a three-foot high retaining wall surrounding the septic field. Todd Mabey, owner of plaintiff Harris Sanitation, submitted a bid proposal of $17,300 for "installation of new septic system per engineer's drawing" including "all labor and materials for installation of septic system, pumping of the existing system, as well as top soil on all disturbed areas."

Mabey's bid made no mention of the retaining wall. He testified that he told the Duncans that, "I don't do walls." Mabey said that Mr. Duncan understood and agreed that the proposal was limited to the installation of a septic system and did not include the retaining wall. Jeff Houser, an engineer with Gardner Associates testified that he prepared the plans and reviewed the bids. He said the retaining wall was not a necessary part of the septic system plan but was rather "an aesthetic feature" for landscaping purposes. He said he would install a new septic system according to the engineer's plan and would grade the area. The Duncans accepted plaintiff's bid. Mabey installed a new septic system according to the engineer's drawing with only one major change. Following approval by the engineer, Mabey added a 1,000-volume tank to the existing 1,000-volume tank in lieu of widening the area and dig site to accommodate a 1,500-volume tank as per the engineer's drawing. The change resulted in an increase in capacity and minimized the cost and time of the project. After installation of the system, Mabey graded the slope, laid down top soil and, subsequently, corrected grading and slope problems to comply with the municipal code.

The Duncans and defendants entered into an agreement entitled "Post-Closing Septic Escrow Agreement" which specified that each party had agreed to contribute one-half of the contract price with Harris Sanitation, to wit, $8,650, and that each party was to be responsible for one-half of any additional costs. This agreement made no reference to the retaining wall in the engineer's drawing.

The closing on the property took place on July 28, 2004. After defendants moved into the house, Mr. Ciuzio contacted Mabey and complained that the wall was not built as on the engineer's plans. Mabey responded that he was not responsible for the wall under his proposal and he had agreed with the Duncans to slope the area but not to build a retaining wall. Mr. Ciuzio admitted that he did not review the engineering plans or the bids of Harris Sanitation before entering into the escrow agreement to share the costs of the project with the Duncans.

Plaintiff submitted a bill for additional costs in the amount of $3,547. The Duncans paid one-half pursuant to the escrow agreement, but defendants refused to make any payment. As a result, plaintiff instituted suit for $1,773.50. Defendants counterclaimed for breach of contract and damages of $11,050, which included the cost of a retaining wall (Count One); fraud (Count Two); violation of the Consumer Fraud Act, N.J.S.A. 56:8-1 to 166 (Count Three); unjust enrichment of $8,267 (Count Four); and breach of warranty (Count Five).

Following the bench trial, Judge Langlois issued a written decision on May 6, 2005, granting judgment in favor of plaintiff and against defendants in the amount of $1,773.50 on the complaint and dismissing defendants' counterclaim in its entirety. After consideration of the record and the arguments of counsel, we affirm substantially for the reasons set forth by Judge Langlois in her written opinion. See also Chattin v. Cape May Greene, Inc., 216 N.J. Super. 618, 641 (App. Div. 1987) aff'd, 124 N.J. 520 (1991).

 
Affirmed.

(continued)

(continued)

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A-5959-04T5

April 20, 2006