JOE WALKER v. QUICK PICK SERVICE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

JOE WALKER and JO-ANN

WALKER,

Plaintiffs-Respondents,

v.

QUICK PICK SERVICE,

Defendant-Appellant.

___________________________________________

May 25, 2016

Submitted April 4, 2016 Decided

Before Judges Messano and Carroll.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. DC-13577-14.

Margaret Kleinman, attorney for appellant.

Darren L. Kirton, attorney for respondents.

PER CURIAM

Plaintiffs Joe and Jo-Ann Walker filed suit in the Special Civil Part against defendant, Quick Pick Service, alleging breach of an oral contract to repair plaintiffs' car, a 2004 Dodge Intrepid.1 Plaintiffs sought $3339 in damages, consisting of their initial deposit, insurance costs while their vehicle was under repair and other charges incurred in ultimately having the car towed to and evaluated by a Dodge dealer. Defendant filed an answer and counterclaim, acknowledging an oral agreement to replace the car's engine with a used one for $2500. Defendant claimed that plaintiffs removed the car from his facility without his knowledge and before the work was complete, and he sought $2798.18, reflecting the costs of parts, labor and storage fees in excess of the deposit.

The case was tried without a jury. Ms. Walker and defendant's principal, Zulfigar Ahmed, were the only witnesses. Plaintiff testified that Ahmed towed her car to his station in June 2012, advising her that it needed a new engine and that he would attempt to locate a used one with little mileage on it. She charged the deposit to her credit card.2 Over the ensuing months, plaintiffs kept asking about the car, which was visible on defendant's lot, and were told that defendant was still looking for an engine. After more than one year, plaintiffs had the car towed to a Dodge dealership that performed diagnostic tests on the vehicle. Those supposedly demonstrated that the car needed a new engine.

Ahmed testified that he initially explained to plaintiffs that a replacement engine would be difficult to find. He acknowledged receipt of plaintiffs' deposit, which he said was used to buy a replacement engine and additional, necessary parts. Ahmed also acknowledged that although he was able to get the car running, "it didn't have enough power." He testified that he performed the work agreed upon, i.e., replacement of the engine, but the car "had more problems," and plaintiffs never gave him a chance to finish because they removed the car from his lot.

The judge reserved decision and subsequently provided her oral opinion on the record several days later. The judge found there was an enforceable oral contract to replace the engine for $2500, and nothing in the record reflected that defendant advised plaintiffs that additional work or parts were necessary. She found that "plaintiff[s] did what the contract required [them] to do, and . . . there was a breach that ensued." The judge concluded plaintiffs were only entitled to the return of the deposit and not any other claimed damages.3 Specifically addressing defendant's counterclaim, the judge found there was no "credible evidence to support [Ahmed's] position," and any claims for "additional labor, parts, storage, et cetera are willfully beyond the oral agreement that ensued between these folks." The judge awarded plaintiffs $1500 in damages, and this appeal followed.

Defendant argues that plaintiffs failed to prove a breach because "they knew delivery could be late," and the agreement set no time for performance. Defendant cites numerous provisions of Article Two of New Jersey's version of the Uniform Commercial Code (UCC), N.J.S.A. 12A:2-101 to 725, claiming that any delay was excused because performance was "commercially impracticable"; plaintiffs failed to prove a material breach, accepted partial performance, gave no notice of the breach and refused further repairs; and plaintiffs frustrated performance.4 These arguments all rest on the basic premise, which defendant more specifically addresses in Points IV, V and VI of his brief, that there was inadequate support for the judge's factual findings, she disregarded defendant's credible testimony and she exhibited bias in favor of plaintiffs.

These contentions lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). It suffices to say that our review of the findings made by the judge in a non-jury trial is limited.

Final determinations made by the trial court sitting in a non-jury case are subject to a limited and well-established scope of review: "'we do 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[.]'"

[Seidman v. Clifton Sav. Bank, S.L.A., 205 N.J. 150, 169 (2011) (quoting In re Trust Created By Agreement Dated December 20, 1961, ex rel. Johnson, 194 N.J. 276, 284 (2008)).]

"'[W]e do not weigh the evidence, assess the credibility of witnesses, or make conclusions about the evidence.'" Mountain Hill, L.L.C. v. Twp. of Middletown, 399 N.J. Super. 486, 498 (App. Div. 2008) (quoting State v. Barone, 147 N.J. 599, 615 (1997)). In general, the judge's factual "findings . . . should not be disturbed unless they are so wholly insupportable as to result in a denial of justice." Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 483-84 (1974) (quotation omitted).

In this case, the judge's factual findings were amply supported by the evidence at trial and, in particular, her assessment of the credibility of the witnesses. Based upon those factual findings, the judge concluded there was an oral agreement, plaintiffs performed and defendant did not, and, as a result, defendant breached the contract. We see no reason to disturb those conclusions.

Affirmed.

1 The complaint was orally amended at trial to name the correct defendant.

2 The exhibits introduced at trial demonstrated that plaintiff's credit card was initially charged $535 in June and an additional $1070 in July. Ahmed explained this included the sales tax on the $1500 deposit.

3 The judge also rejected any claim of fraud.

4 While the UCC may apply, defendant did not raise any of its statutory provisions before the trial judge, including in defense counsel's summation, which comprised barely one page of the trial transcript and essentially argued defendant's version of the facts was credible and plaintiffs' version was not.