CASTLE THE WINDOW PEOPLE v. WILLIAM J. BARRETT

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4880-07T14880-07T1

CASTLE THE WINDOW PEOPLE,

Plaintiff-Appellant,

v.

WILLIAM J. BARRETT,

Defendant-Respondent.

________________________________________________________________

 

Argued June 1, 2009 - Decided

Before Judges Lisa and Reisner.

On appeal from the Superior Court of New Jersey, Law Division, Special Civil Part, Small Claims, Camden County, Docket No. SC-000753-08.

Kenneth S. Goodkind argued the cause for appellant (Flaster Greenberg, attorneys; Mr. Goodkind, on the brief).

William J. Barrett, respondent, argued the cause pro se.

PER CURIAM

Plaintiff, Castle the Window People (Castle), appeals from a judgment entered against it in the amount of $2000 on the counterclaim of defendant, William J. Barrett, after a bench trial in the Special Civil Part, Small Claims Section. We affirm.

Castle is a manufacturer and installer of custom windows. It entered into a written contract with defendant in which it agreed to manufacture and install nine double-hung windows in defendant's home for a total price of $5900. As required by the contract, defendant paid a deposit of $2000.

The two sales representatives of Castle who met with defendant and his wife discussed the details of the design of the windows, particularly those that would replace the large picture window in the front of the house. The original picture window was a single unit. The sales representatives explained to defendant and his wife that Castle could not manufacture a single window to fill that space. However, they could manufacture three separate windows which would be installed in a manner to look like a single window. The sales representatives explained that a very narrow seam of about one-half inch would separate those windows. The windows were to have horizontal and vertical grids, and defendant and his wife were assured that the spacing of the grids would be such that the half inch seams would appear to be the grids. As a result, the combination of the three windows would have the appearance of a single window. This was extremely important to defendant and his wife because this window is the focal point of their home.

When the windows were delivered and the installers prepared to install them, defendant and his wife immediately observed that the three windows to be placed in the picture window opening were framed by casements that were about five inches wide. Thus, this would clearly give the appearance of three separate windows. This was completely contrary to the specifications agreed upon and was unacceptable to defendant and his wife.

Defendant suggested that the installers proceed to install the six other windows, which were in accordance with the contract terms and which were acceptable. Defendant suggested they would be happy to work along with Castle to have the other three windows correctly manufactured and installed at a later date. However, after calling someone at the office, the installers advised defendant and his wife that they would not install any windows. They took all nine windows and left the premises.

Defendant and his wife made numerous efforts to contact Castle and complete the arrangements under the contract in accordance with the specifications agreed upon. They were met with a complete lack of response. Finally, Castle sued defendant for the $3000 Small Claims Section jurisdictional limit, representing a portion of the $3900 it claimed was due on the contract price. Defendant filed a counterclaim for a return of the $2000 deposit, in which he spelled out in detail the basis of his claim. The counterclaim stated, in part:

While six of the windows were exactly what we had ordered, three windows (set to be placed where one window was currently located) were not even close to what we had ordered or been promised. I suggested that they install the six windows and we would work with the company to get the mistake straightened out.

Castle initiated the suit on a pro se basis. On the day of trial, only its operations manager, Edward Jones, appeared on its behalf. Jones presented the one-page contract to the judge. However, he had no personal knowledge of the representations made by the sales representatives and the agreements reached regarding the specific design of the three windows that were to fill the picture window opening. Defendant and his wife testified and described the discussions, representations, and agreement regarding those specifications in the manner we have described in this opinion.

The judge found defendant and his wife credible. The judge concluded that the windows that were delivered did not conform to the contract specifications, and that when Castle refused to install the six acceptable windows and left the premises with all nine windows it "terminated the contract at that point." The judge accordingly entered judgment in favor of defendant on the counterclaim in the amount of $2000, representing the deposit he had paid to Castle.

On appeal, Castle argues that the judge erred by (1) failing to grant a continuance to allow Castle to produce further witnesses to rebut the testimony of defendant and his wife regarding the specifications orally agreed upon, and (2) failing to consider material business records purportedly proffered by Jones and as to which he was competent to testify. Castle argues that it was surprised at trial, because "Castle did not anticipate the need for more than one witness, or that the Barretts would make this type claim, and accordingly did not have the sales representatives present as rebuttal witnesses."

Castle's arguments lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We add these brief comments.

Jones did not request a continuance. He was in court as the representative of a large commercial entity that had sued an individual who was its customer. The court was under no obligation to sua sponte order a continuance and explain to Jones what witnesses he should bring to court to prove his affirmative claim and defend the claim made against his company. Further, there was no surprise. In his counterclaim, defendant specified exactly the nature of his claim and did not deviate at trial from what he specified. Finally, the trial transcript makes clear that the judge reviewed the contract produced by Jones, and that was the only business record he proffered.

The judge's factual findings were well supported by the record evidence and we have no occasion to interfere with those findings. Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974). The manner in which the judge conducted the trial was eminently fair. She did not mistakenly exercise her discretion in failing to sua sponte order a continuance, and she did not reject any proffered evidence.

Affirmed.

 

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A-4880-07T1

June 24, 2009