NORRIS WILLIAMS v. DOROTHY MAYER

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6044-04T16044-04T1

NORRIS WILLIAMS,

Plaintiff-Respondent,

v.

DOROTHY MEYER,

Defendant-Appellant.

_______________________________________

 

Argued August 8, 2006 - Decided August 23, 2006

Before Judges Skillman and Sabatino.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, DC-2574-05.

Scott Montgomery Kelly argued the cause for appellant.

Respondent did not file a brief.

PER CURIAM

Defendant Dorothy Meyer, a homeowner, appeals the Special Civil Part's June 1, 2005 entry of judgment for $1,350 against her in favor of plaintiff Norris Williams, a home repair contractor. Although we sustain the trial judge's evidentiary rulings challenged on this appeal, we nonetheless vacate the judgment on substantive grounds and remand this matter for further proceedings.

Both parties were self-represented at the trial. The relevant proofs reflect that plaintiff was hired by defendant to perform certain work on a bathroom at her residence. According to the plaintiff's trial testimony, the work included installing tile on the bathroom walls and floor, painting the bathroom, and trim work on two doors. The parties signed a contract agreeing to a price of $2,650 for the work. Over the course of the work, defendant paid plaintiff two installments totaling $1,300, leaving a balance due on the contract of $1,350.

It is undisputed that defendant requested that plaintiff make use of spare floor tiles already in defendant's possession to tile the bathroom walls. Plaintiff testified that, given the differences in size between wall tiles and floor tiles, he discouraged defendant from going forward with the job in this fashion. Nonetheless, plaintiff accepted the job on that basis, and proceeded with the work, cutting down the floor tiles when necessary in order to fit them into the bathroom wall spaces.

Defendant was dissatisfied with plaintiff's work. Among other things, she noted that the tiles were uneven, protruded over the tub and bulged in other spots. There were gaps left in the corners, and the grout was spread too thinly and was cracked. In addition, the window work was incomplete, the doorway was left with cut marks and the door saddle was cut too short, electrical outlets were painted over, the new tub was scratched, the Jacuzzi switch and jet sprays in the tub were cemented shut, and two light fixtures were painted over. Apart from these various defects, defendant also complained that plaintiff had left the premises in a messy condition, spreading glue on the cabinets, shelves and doors, leaving broken tiles in the driveway, and the floors covered with dirt. Defendant refused to pay plaintiff the balance due under the contract, and arranged to have another contractor redress the apparent defects.

Plaintiff sought the contract balance of $1,350 from defendant in the Special Civil Part. After hearing the testimony of the two principals and of the referral agent who initially had recommended plaintiff to defendant, the trial judge awarded plaintiff the full amount he demanded, with no offsets for defendants' counterclaims of poor workmanship. Defendant retained counsel and filed this appeal; plaintiff failed to file a brief and thus forfeited his opportunity for oral argument.

As part of her appeal, defendant raises two evidentiary points, neither of which justifies relief. First, defendant contends that the trial judge should not have allowed plaintiff to allude in his testimony that a local police officer had allegedly characterized defendant as an unstable person. Likewise, the trial judge allowed plaintiff to testify that the police officer also allegedly had been told by defendant that she would pay the balance on the contract if plaintiff returned to her home and finished the grout, a conversation which defendant denied in her own testimony. Defendant did not object to this testimony at the trial. Although we agree with defendant that these alleged out-of-court statements by the police officer were inadmissible hearsay, pursuant to N.J.R.E. 801(c), we discern no plain error in their admission. R. 1:7-2; R. 2:10-2; see also State v. Macon, 57 N.J. 325, 336 (1971). The trial judge did not rely on either alleged statement by the police officer in his analysis of the parties' contractual dealings, and we are confident that the judge would have disregarded as irrelevant any second-hand pejorative comments made about defendant or her alleged reputation.

Second, defendant argues that the trial judge improperly excluded testimony about comments the replacement contractor allegedly made to her about the poor quality of plaintiff's work, as well as two letters from the replacement contractor which she asserts would have corroborated her contentions. We sustain the exclusion of these proofs, as they were plainly hearsay communications offered for their truth and not just to prove the undisputed fact that defendant hired a substitute contractor to rectify the perceived shortcomings with plaintiff's work. See Spragg v. Shore Care, 293 N.J. Super. 33, 55-59 (App. Div. 1996)(excluding third-party affidavits as hearsay, despite proponent's characterization that they were not offered for their truth). We also reject defendant's argument that the hearsay rules should have been relaxed because of her status as a self-represented litigant; the Rules of Evidence expressly apply to all Special Civil Part actions above the jurisdictional limits of the Small Claims Division, see N.J.R.E. 101(a)(2)(A), regardless of whether a litigant retains or does not retain counsel.

Apart from these evidentiary contentions, defendant also contends that the trial judge improperly granted plaintiff the full balance due under the contract without affording due consideration to the numerous defects apparent in plaintiff's work. Specifically, defendant points to at least eleven defects that had nothing to do with the use of floor tiles on the wall.

In assessing the proofs, the trial judge did specifically find that plaintiff's work was indeed defective:

Now, granted there are a lot of defects in the work. Granted, there were defects in the work. I'm not surprised it was ultimately taken down because the workmanship, pursuant to the contract, was defective. It was taken down because the defendant asked the plaintiff to do totally unreasonable things with the products. And as a result there were a lot of defects.

We agree with the trial judge that, by having floor tiles installed on a wall surface, defendant is in part responsible for her own disappointment with the work on her bathroom because she "asked the plaintiff to do totally unreasonable things with the product." Hence, the uneven and irregular shape of the tiles, as installed on the wall, was not plaintiff's fault and should not warrant any offset from his contract price.

However, not all of the remaining defects identified by defendant stem from her improvident tile selection. By way of example and not limitation, the cut marks left by plaintiff on the doorway, the damages to the cabinets, tub and Jacuzzi, the painted-over electrical outlets, and the unclean condition of the premises all would appear to have nothing to do with the fact that plaintiff was working with floor tile instead of wall tile. We have examined the photographs moved into evidence by defendant, and they corroborate the trial judge's repeated finding that plaintiff's work was defective. We simply differ with the trial judge in his conclusion that all of those defects were attributable to the tile selection.

Plaintiff, as a licensed contractor, had an implied duty to perform the work on defendant's bathroom in "a reasonably good and workmanlike manner." Aronsohn v. Mandara, 98 N.J. 92, 98 (1984)(applying that principle to a contract to install a residential patio). Defendant was entitled to an offset on the contract price to the extent that duty was breached for reasons unrelated to defendant's tile selection. Accordingly, we remand this matter for further proceedings to enable an informed calculation of an appropriate offset. In those proceedings, we stress that defendant shall not be entitled to any offset for the uneven and irregular shape of the floor tiles installed on her bathroom walls. Although we recognize that such a remand will involve some additional time and expense, we decline to exercise our original jurisdiction because the trial judge will be in a far better position to determine from the proofs a fair sum to be offset from the amount of plaintiff's demand for the contract balance. We leave it to the discretion of the trial judge to decide if additional testimony or other supplementary proofs are warranted to determine the amount of the offset.

The judgment for plaintiff is vacated, and the matter is remanded for further proceedings consistent with this opinion.

 

A copy of the contract was not supplied with the record on appeal.

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A-6044-04T1

 

August 23, 2006