MICHAEL J. KELSEY v. BARBARA PAPAROZZI

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6267-05T56267-05T5

MICHAEL J. KELSEY, t/a KELSEY LAWN

MAINTENANCE, t/a SUNSCAPES,

Plaintiff-Appellant,

v.

BARBARA PAPAROZZI,

Defendant-Respondent.

 

Argued September 18, 2007 - Decided

Before Judges Coburn, Fuentes and Grall.

On appeal from Superior Court of New Jersey,

Law Division, Morris County, Docket No.

DC-7746-05.

Michael J. Kelsey, appellant, argued the

cause pro se.

William G. Johnson argued the cause for

respondent (Johnson & Johnson, attorneys;

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

PER CURIAM

Plaintiff Michael J. Kelsey appeals from the order of the Law Division, Special Civil Part, dismissing his book-account cause of action against defendant Barbara Paparozzi. The trial court held that plaintiff's claims were barred as a matter of law because he filed his complaint beyond the six-year limitations period provided in N.J.S.A. 2A:14-1. We affirm.

Plaintiff operates a "full services" landscape business, providing lawn care and maintenance by way of cutting, spring cleaning, fall cleaning, and snow removal. His standard contracts for these services commence on March 1st and end on February 28th of the following year.

Plaintiff provided defendant with lawn maintenance services for the 1997-1998 and 1998-1999 seasons. On March 15, 1999, the parties entered into a contract through which plaintiff agreed to provide lawn maintenance services for the 1999-2000 lawn maintenance season. According to a hand-written note at the top of this contract, the total amount due on March 1, 2000 was $5,013.80. The payment terms of the contract are as follows:

Billing is done once a month. The lawn application program monthly payment, lawn cutting service, clean-up services and/or any optional services will be billed on the first of each month . . . The amount billed each month for the lawn application program is a portion of the program's annual cost, divided into equal monthly payments . . . Payments must be received within 30 days from the billing date . . . If not paid within 45 days, interest at a rate of 2% per month will be added as well. Service may be postponed and/or terminated, at our option, due to lack of payment exceeding 15 days from due date, unless we are notified in writing of extenuating circumstances before the payment due date. If services are postponed due to lack of payment it may resume upon our receipt of full payment, to date, of all services rendered up to that point . . . . (Emphasis added.)

According to plaintiff, he offered a special promotion for the 1999-2000 season, and defendant decided to take advantage of the "no payment/no interest for one year" feature. The exact terms of this promotion are not stated on the March 15, 1999 contract. There is a separate agreement (also signed March 15, 1999) which includes a handwritten notation indicating that there would be no payment or interest due until March 1, 2000; bills would be mailed for "record keeping only," and any payment made before the due date would be subtracted from the total amount owed.

On October 9, 1999, plaintiff wrote a memorandum to defendant informing her that, as of October 1, 1999, she was being placed on a "Suspension List" due to her failure to make any payments for over eight months. The memorandum also advised defendant that, as of September 1999, her account balance was approximately $2,880.01. A $2,000 payment was required in order for defendant's account to be removed from the "suspension list." Plaintiff did not produce any evidence before the trial court indicating that he performed any work after the mailing of the October 9, 1999 memorandum.

By letter dated October 24, 1999, defendant requested that plaintiff refrain from continuing further services on her property. Defendant also disputed the amount claimed, and demanded that plaintiff provide her with a written itemized bill detailing the services provided and the dates involved.

On November 2, 1999, plaintiff sent defendant a second collection memo attaching a statement of account. This memo acknowledged receipt of defendant's letter of October 24, 1999; informed defendant that the total amount due "immediately" was $2,541.32; and informed defendant that her account would remain on the "suspension list" until further notice.

On November 16, 1999, plaintiff filed a small claims complaint against defendant asserting $2,000 in damages for "Breach of 1999 Contract" and "Lack of Payment(s)." After requesting several adjournments of the trial date, (due in part to attempts to settle the case with defendant), plaintiff wrote a letter to the Administration and Records Office of the Morris County Court on April 5, 2000, requesting a voluntarily dismissal of his case.

Based on these facts, the trial court found that plaintiff's cause of action accrued as of October 1, 1999. Plaintiff's cause of action here was not filed until October 21, 2005, or twenty days beyond the applicable six-year limitation period. We agree with the trial court's conclusion. A book-account cause of action for services provided under a contract arises immediately upon the completion of those services. Metromedia Co. v. Hartz Mountain Assoc., 139 N.J. 532, 535 (1995). We thus affirm substantially for the reasons expressed by Judge Rand in his oral opinion delivered from the bench on April 7, 2006.

Affirmed.

(continued)

(continued)

5

A-6267-05T5

October 11, 2007