ROBERT GREIFELD v. RETENTION RESOURCES, INC., d/b/a TOURS OF ENCHANTMENT

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1953-06T21953-06T2

ROBERT GREIFELD,

Plaintiff-Respondent,

v.

RETENTION RESOURCES, INC.,

d/b/a TOURS OF ENCHANTMENT,

Defendant-Appellant.

_______________________________________

JACK S. ANDERSON, TRUSTEE OF

THE ANDERSON FAMILY TRUST,

Plaintiff-Appellant,

v.

ROBERT GREIFELD,

Defendant-Respondent.

_______________________________________

 

Argued January 15, 2008 - Decided

Before Judges Skillman, Winkelstein and Yannotti.

On appeal from the Superior Court of New Jersey, Law Division, Union County, Docket Nos. L-3244-05 and L-0487-05.

Richard W. Mackiewicz, Jr., argued the cause for appellants (Mackiewicz & Associates, L.L.C., attorneys; Mr. Mackiewicz, on the brief).

Steven J. Cohen (Wachtel & Masyr, LLP) of the New York Bar, admitted pro hac vice, argued the cause for respondent (Riker Danzig Scherer Hyland & Perretti, LLP, and Mr. Cohen, attorneys; Julian W. Wells, of counsel; Mr. Cohen, on the brief).

PER CURIAM

Retention Resources, Inc. (Retention) and Jack S. Anderson (Anderson), Trustee of the Anderson Family Trust, appeal from a final judgment entered in these consolidated matters on October 25, 2006, which denied Retention and Anderson relief on their claims against respondent Robert Greifeld (Greifeld). For the reasons that follow, we affirm.

This dispute arose from an agreement between Retention and Greifeld under which Retention provided certain services in connection with a trip arranged for Greifeld and his family. Greifeld filed a complaint in the Law Division on February 7, 2005, alleging that Retention overcharged him by more than $70,000, and wrongfully failed to provide him with certain recordings of the event that were made pursuant to the agreement.

Retention filed an answer in which it asserted that Greifeld failed to comply fully with the agreement and therefore was not entitled to recover on any of his claims. Retention also filed a counterclaim alleging that Greifeld had not fully paid for its services. Retention claimed that $80,173.84 remained due and owing. Alternatively, Retention sought the reasonable value of its services.

On September 9, 2005, Anderson filed a complaint in which he alleged that in September 2004, he purchased from Retention the account receivable from Greifeld, and that $80,173.84 was due and owing. Greifeld filed an answer asserting, among other things, that the account receivable allegedly purchased by Anderson was invalid. Greifeld also asserted counterclaims against Anderson, seeking damages for the wrongful withholding of the recordings of the trip.

On October 7, 2005, the court entered an order consolidating the Greifeld matter with the Anderson case. The Greifeld matter was tried before Judge Ross R. Anzaldi, sitting without a jury, on June 19, 20, 21 and July 19 and 20, 2006. The parties agreed that the Anderson matter would not be tried unless necessary, depending upon the outcome of the Greifeld case.

Greifeld testified that in 2003, he decided to host a family trip to Ireland during the summer of 2004. Greifeld contacted Retention, and Gregory Patrick (Patrick), the principal of the company, sent Greifeld a promotional video. Greifeld and Patrick discussed the matter. Thereafter, Greifeld and Retention entered into a written agreement in which Greifeld appointed Retention as his agent to arrange the trip and provide related services.

Greifeld testified that the parties agreed that this would be a "cost plus contract," meaning that Greifeld would pay the costs of the trip plus an additional 38% of the costs. However, Patrick disputed Greifeld's understanding of the agreement and maintained that the parties had agreed that Retention would be paid 38% of its "gross profit margin." According to Greifeld, under this approach, Retention would receive payment for the costs of the trip plus 62% of the costs.

Greifeld stated that, before the trip, Patrick came to his home in Westfield, New Jersey, and presented him with cost sheets dated June 30, 2004, which detailed the anticipated costs of the trip. Greifeld said that he and Patrick reviewed "the vast majority of the services" detailed on the cost sheets. Greifeld asserted that the cost sheets did not include the total of the anticipated costs or the management fees for Retention's services.

However, Patrick testified that the cost sheets dated June 30, 2004, included the total of anticipated costs, including Retention's management fees in the amount of $173,720.05. The cost breakdown on Patrick's copy of the June 30, 2004 cost sheets stated that Retention's management fees include a "mark up" of 17.65% of total costs, along with certain additional management and servicing fees calculated by either the day or the hour.

Patrick additionally testified that before the trip, Retention provided Greifeld with cost sheets dated July 28, 2004 and July 30, 2004. Both of these cost breakdowns employed the same method of computing management fees as was set forth on Patrick's June 30, 2004 cost sheets, that is, a 17.65% "mark up" of costs, plus additional management and servicing fees computed on a daily or hourly basis. Patrick asserted that the calculations were "a wild ass guess" that were intended to arrive at a total management fee in line with Retention's "gross profit margin" pricing formula.

Retention's employee Milagro Aguinaga (Aguinaga) prepared the cost sheets. She testified that the daily and hourly calculations were estimates used to arrive at a fee totaling 38% "gross profit margin." Aguinaga stated that she spoke on the phone several times with Greifeld regarding the cost breakdowns. Aquinaga said that she explained to Greifeld that the computation of the fees on the cost sheets was just a means of "justifying [Retention's] overhead . . . at the rate of 38 percent [of] gross [profit] margin." Aguinaga conceded that there was no writing that specifically explained how 38% of "gross [profit] margin" would be calculated. However, Aguinaga said that she explained this verbally to Greifeld.

Judge Anzaldi placed his decision on the record on October 6, 2006. The judge found that Patrick was a "talented, inventive entrepreneur in the high end travel business" but he was "not a good business man." The judge stated that Patrick's testimony was "evasive, convoluted and self serving." He noted that Patrick "recalled with clarity" certain facts dealing with the trip and the services that had been provided. However, on the relevant business issues, Patrick either could not recall the facts or had not been responsible for preparing the cost sheets. The judge found that, on the key issues and matters in dispute, Patrick's testimony was not credible.

The judge further found that neither Greifeld nor Retention had established the actual price that Greifeld agreed to pay for Retention's services. The judge noted that there was no evidence of a 38% mark up as Greifeld maintained, nor was there any evidence that Retention would be paid 38% of "gross profit margin," as Patrick claimed. The judge also noted that the written agreement was "unclear and silent" on that issue. The judge found that the parties had agreed "that there would be payment [for Retention's services] but not [on] how the amount due would be computed."

The judge stated that although there was no agreement between the parties on the cost of Retention's services, pursuant to the doctrine of quantum meruit Retention would be entitled to the reasonable value of the work performed. On this issue, the judge made the following findings:

[Patrick] speaks of gross profit margin, speaks of it being a standard in the business. But the only document provided by [Retention] does not establish that, nor do the exhibits provided by both parties establish that fact.

. . . [Because] this court does not find [Patrick's] testimony . . . [to be] credible on this issue, the court cannot conclude that [Retention] has not already been compensated [the] fair and reasonable value of [its] services.

The judge additionally found that Greifeld failed to carry the burden of proof on his claim for monetary relief. The judge stated that before the trip, Greifeld anticipated that the total cost of the trip would be in excess of $500,000. Greifeld also acknowledged that additional services, fees and costs had been incurred and that reasonable compensation would be paid for the same. The judge concluded that Greifeld had paid Retention a fair and reasonable amount for the trip, and any allegation to the contrary was not supported by the proofs. The judge determined, however, that Greifeld was entitled to possession of the recordings of the trip made pursuant to the contract.

The judge entered an order on October 25, 2007, memorializing his findings of fact and conclusions of law. The order additionally provides that, based on the outcome of the Greifeld matter, the Anderson case is dismissed with prejudice. Retention and Anderson filed a notice of appeal on December 7, 2006. Greifeld has not cross-appealed from the judgment.

Appellants raise the following arguments for our consideration:

POINT I:

THE COURT BELOW ERRED BOTH MATHEMATICALLY AND LEGALLY.

A. The [c]ourt below erred by not doing a simple mathematical analysis. Greifeld admitted pre trip costs were approximately $300,000 and he expected a total bill of approximately $500,000. Greifeld's math was costs times 1.38 and [Retention's math was] costs times 1.62. Greifeld's calculation yields $414,000 and [Retention's calculation yields] $486,000. Greifeld's math is far off but [Retention's] dead on.

B. The [l]ower [c]ourt erred by ignoring the fact that Greifeld had the other spreadsheets and remained silent. As a matter of law [Greifeld's] silence is either proof he assented to the cost times 1.62 agreement or operates to bar him from disputing that proposition.

POINT II:

THE LOWER COURT'S QUANTUM MERUIT ANALYSIS IS LEGALLY FLAWED. THE FOCUS SHOULD BE THE BENEFIT CONFERRED NOT THE VALUE OF SERVICES. SINCE THIS WAS A HAND CRAFTED TRANSACTION - A UNIQUE AND UNREPLACEABLE TRIP - WHERE [RETENTION] UNIVERSALLY CHARGES COST TIMES 1.62[,] THE BENEFIT TO GREIFELD WAS ONE OF A KIND AND THE FULL BILL WAS OWED SO $71,558.29 SHOULD HAVE BEEN AWARDED.

POINT III:

ANY HESITANCY TO ENTER JUDGMENT FOR [RETENTION AND ANDERSON] CAN ONLY ARISE BECAUSE THE LOWER COURT FAILED TO MAKE CERTAIN MATERIAL FINDINGS OF FACT. THEREFORE IF THIS MATTER IS NOT REVERSED AND JUDGMENT ENTERED FOR [RETENTION AND ANDERSON], IT SHOULD NONETHELESS BE REVERSED AND REMANDED SO THAT THE RECORD CAN BE COMPLETED.

POINT IV:

IF THIS MATTER IS REMANDED, THEN THE LOWER COURT['S] EVIDENTIARY DECISIONS PRECLUDING [RETENTION AND ANDERSON] FROM PRESENTING VITAL PROOF MUST BE REVERSED AND A NEW TRIAL ORDERED.

We have carefully considered the record in light of the arguments raised by appellants. We are convinced that appellants' contentions are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(A) and (E). We therefore affirm substantially for the reasons stated by Judge Anzaldi in the thorough and comprehensive decision that he placed on the record on October 6, 2006. We add the following brief comments.

The scope of our review in this case is strictly limited. We will not disturb the "'factual findings and legal conclusions of the trial judge unless we are convinced that 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 No. Bergen, 78 N.J. Super. 154, 155 (App. Div. 1963)). Moreover, deference to the findings of the trial judge is particularly appropriate where, as in this case, the findings are "substantially influenced by [the judge's] opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy." State v. Johnson, 42 N.J. 146, 161 (1964). We are satisfied from our review of the record that Judge Anzaldi's findings of fact and conclusions of law are amply supported by substantial credible evidence.

Affirmed.

 

In the Law Division proceedings, Anderson was incorrectly identified as third-party plaintiff and Greifeld as third-party defendant.

(continued)

(continued)

10

A-1953-06T2

 

February 15, 2008