HUBERT DORCANT v. OSPREY CONSTRUCTION, INC

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3515-07T23515-07T2

HUBERT DORCANT,

Plaintiff-Appellant,

v.

OSPREY CONSTRUCTION, INC.,

Defendant-Respondent.

_____________________________________________________

 

Submitted December 15, 2008 - Decided

Before Judges R. B. Coleman and Sabatino.

On appeal from the Superior Court of New Jersey, Law Division, Somerset County, L-1280-06.

Hubert Dorcant, appellant pro se.

Miller, Miller & Tucker, P.A., attorneys for respondent (Darrin J. Behr, of counsel and on the brief).

PER CURIAM

Plaintiff, Hubert Dorcant, appeals from a judgment in the amount of $9,995 awarded to defendant, Osprey Construction, Inc., and from the judge's denial of his motion for reconsideration. Plaintiff appeals this judgment on three grounds: first, that defendant defrauded him under N.J.S.A. 56:8-2; second, that the motion for reconsideration should have been granted; and third, that the judge below erred in his findings of fact and conclusions of law. While we agree with the trial judge's findings of fact and legal conclusions, we question his calculation of damages. For the reasons that follow, we affirm in part, modify in part, and remand for correction of the judgment.

On June 12, 2003, plaintiff and Frank Garaffa, Sr., the sales manager of defendant, negotiated a contract for an addition to plaintiff's home. The form contract listed ten line items detailing the agreed-upon construction. The total price was quoted at $45,000, to be paid by plaintiff in six installments.

Line item 8 was of particular concern in this case. It provided that the "above project includes a bathroom with 3 fixtures" and a closet; however, line item 8 was crossed off and initialed by Garaffa, on the original and yellow carbon copies of the contract, while there was no trace of the alteration on plaintiff's pink carbon copy. The trial judge remarked that "the marking on the original on Item 8 is in a different color ballpoint pen[,]" and, "[i]t's as if there was perhaps a sheet of paper in between the yellow and pink copy for nothing to show up on [plaintiff's] pink copy." Defendant claims that both defendant and plaintiff agreed to remove line item 8 and the $45,000 quote did not include line item 8. The architectural plans shown to plaintiff before the start of the job did not include a bathroom. Nonetheless, plaintiff maintained at trial that he expected a bathroom installation.

After receiving most of the first two payments $8,505 as opposed to $9,000 defendant began construction in December 2003. Soon after, weather conditions brought the construction to a halt. Defendant commenced work once again in March 2004. Plaintiff made a third payment of $9,295 upon completion of the footing.

While sandblasting plaintiff's front steps, the steps began to crumble. New steps were completed absent a written agreement. Plaintiff paid a fourth installment of $9,200 in June 2004.

Defendant told plaintiff that the shell was complete and the fifth installment was due. Plaintiff then told Frank Garaffa, Jr. that he wanted to make changes to the addition. These changes included adding a Sealomatic door. Garaffa, Jr. memorialized these changes in a signed "Extra Work Order" dated July 21, 2004, quoting the changes at an additional $2,750. Plaintiff told Garaffa, Jr. that once the changes were complete he would pay the fifth installment, plus the additional $2,750 for the changes. Defendant completed all additional work except the installation of the $800 Sealomatic door that day.

Also on July 21, 2004, after defendant completed additional work, plaintiff informed Garaffa, Jr. that his business was being investigated by Homeland Security. Plaintiff claimed that he never told defendant that he would be unable to pay. Conversely, defendant stated that plaintiff represented that because of the investigation, his accounts were frozen and he could not pay defendant. In any case, the upshot of the conversation was that defendant ceased work on the addition. Garaffa, Jr. testified that he told plaintiff that he wanted $1,975 for the extra work order (the $2,750 minus the cost of the unordered Sealomatic door) and $9,200 (the fifth installment) for the completion of the shell. Defendant then weatherproofed the construction site to protect the unfinished addition from the elements. Plaintiff did not pay the requested amounts.

In a letter dated September 15, 2004, plaintiff demanded that defendant return the fourth installment payment of $9,200. Defendant did not comply with this request, and in a letter dated September 17, 2004, stated that plaintiff did not perform as he promised on July 21, 2004, and concluded by stating that defendant had "every intention of finishing [plaintiff's] project" upon payment.

There was no further contact between the parties until May 26, 2006, when plaintiff filed a complaint in the Superior Court of New Jersey, Law Division, Special Civil Part, Somerset County. This complaint alleged that defendant "failed to perform [construction] work as agreed," and demanded judgment for $9,200, plus interest and court costs.

On July 24, 2006, defendant filed an answer and counterclaim for $18,995, alleging breach of contract. Thereafter, plaintiff filed an amended complaint and answer to Osprey's counterclaim, alleging material breach of contract in that plaintiff paid "in excess of $30,000" for defendant's incomplete performance and that this failure to perform caused plaintiff to spend an additional $23,000 to complete the agreed upon construction.

A bench trial was conducted on January 28 and January 29, 2008. On February 8, 2008, the judge entered an order dismissing plaintiff's complaint and granting defendant relief in the sum of $9,995 with interest accruing from January 29, 2008, together with costs to be taxed. In making his calculation, the judge gave plaintiff "the benefit of the doubt" regarding line item 8, and factored in the cost of a two-fixture bathroom in calculating defendant's award.

On February 4, 2008, plaintiff moved for reconsideration. The judge heard arguments on the matter on March 7, 2008, and denied the motion.

I.

Plaintiff argues for the first time on appeal that Osprey violated N.J.S.A. 56:8-2 by unilaterally changing their contract and by misleading him into believing that the Sealomatic door had been ordered, thus defrauding him. We find this argument to be procedurally barred and without merit.

The appellate court "will decline to consider questions or issues not properly presented to the trial court when an opportunity for such presentation is available 'unless the questions so raised on appeal go to the jurisdiction of the trial court or concern matters of great public interest.'" Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973) (citation omitted); see also State v. Churchdale Leasing Inc., 115 N.J. 83, 100-01 (1989). Plaintiff has made no such claim, nor is there evidence to suggest, that this issue goes to the jurisdiction of the trial court or the public interest.

Even without this procedural bar, there is undisputed evidence indicating that plaintiff knew defendant would not be ordering the door: namely, defendant's weatherproofing of the construction site to protect the unfinished addition from the elements after the discussion about the Homeland Security investigation. Regarding the cross-out of line item 8, the judge generally credited defendant on the issue, however, troubled by the lack of markings on plaintiff's contract copy, he resolved the issue in plaintiff's favor. Plaintiff did not sustain his allegation of fraud.

II.

We now address plaintiff's contention that the trial court erred in denying the motion for reconsideration. Rule 4:49-2 states that such a motion must "state with specificity the basis on which it is made, including a statement of the matters or controlling decisions which counsel believes the court has overlooked or as to which it has erred." Further, "[r]econsideration is a matter to be exercised in the trial court's sound discretion." Capital Fin. Co. of De. Valley, Inc. v. Asterbadi, 398 N.J. Super. 299, 310 (App. Div.), certif. denied, 195 N.J. 521 (2008). Reconsideration may not be used to expand the record. Ibid. It should be:

utilized only for those cases . . . that fall within that narrow corridor in which either 1) the [c]ourt has expressed its decision based upon a palpably incorrect or irrational basis, or 2) it is obvious that the [c]ourt either did not consider, or failed to appreciate the significance of probative, competent evidence.

[Ibid. (quoting D'Atria v. D'Atria, 242 N.J. Super. 392, 401 (Ch. Div. 1990)).]

Plaintiff does not argue that the judge's decision was "palpably incorrect" or that the judge did not consider "probative, competent evidence," but instead claims that he would have submitted additional evidence to support his case had the judge granted his motion. Plaintiff may not seek to expand the record through reconsideration. Asterbadi, supra, 398 N.J. Super. at 310. Plaintiff additionally expressed dissatisfaction with the judge's credibility findings; however, reconsideration should not be sought simply because of dissatisfaction with a court decision. Ibid. (quoting D'Atria, supra, 242 N.J. Super. at 401). In turn, the judge properly denied the motion for reconsideration.

III.

Finally, we consider whether the trial court erred in granting judgment in favor of defendant. Our review of a trial judge's findings of fact is limited by well settled, controlling principles. Sebring Assocs. v. Coyle, 347 N.J. Super. 414, 424 (App. Div.), certif. denied, 172 N.J. 355 (2002). "Findings by the trial judge are considered binding on appeal when supported by adequate, substantial and credible evidence." Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974) (citation omitted). See also Metuchen Sav. Bank v. Pierini, 377 N.J. Super. 154, 161 (App. Div. 2005) (citations omitted) (factual findings of a trial judge should not be disturbed unless "so manifestly unsupported by or inconsistent with competent, relevant and reasonably credible evidence as to offend the interests of justice"). Where the lower court has specifically articulated credibility determinations, the appellate court may not make its own credibility determinations. See State v. Locurto, 157 N.J. 463, 472-75 (1999). While the appellate court defers to the trial court's supported factual findings, "our review of the trial court's legal conclusions is de novo." 30 River Court E. Urban Renewal Co. v. Capograsso, 383 N.J. Super. 470, 476 (App. Div. 2006).

A party is in material breach of contract where he "fails to perform 'essential obligations under the contract,'" during the course of performance "and the other party may elect to terminate it." Ingrassia Constr. Co., Inc. v. Vernon Twp. Bd. of Educ., 345 N.J. Super. 130, 136-37 (App. Div. 2001) (quoting Medivox Prods., Inc. v. Hoffman-LaRoche, Inc., 107 N.J. Super. 47, 58-59 (Law Div. 1969)). Ordinarily, "the innocent party must be . . . placed in 'as good a position as he would have been in had the contract been performed.'" Furst v. Einstein Moomjy, Inc., 182 N.J. 1, 13 (2004) (quoting Scully v. US WATS, Inc., 238 F.3d 497, 512 (3d Cir. 2001)). Further, New Jersey courts have long recognized that where an owner prevents a contractor from completing the contracted work, the contractor's legal damages equal the fair cost of the work completed and the unrealized profits of work the contractor was prevented from completing. Wilson v. Borden, 68 N.J.L. 627, 630 (E. & A. 1903); see also Ingrassia, supra, 345 N.J. Super. at 141-42.

The judge found that the delay in construction was due to inclement weather and plaintiff's delay in obtaining architectural plans, rather than willful delay on the part of defendant. The judge reasonably relied on the testimony of the only expert witness, Pavlo Bobko, as to the value of the work completed and the work that remained, instead of the plaintiff's assessment. Further, the judge made his credibility determinations based on his observations of the witnesses during the trial. We must give deference to his findings. Locurto, supra, 157 N.J. at 471.

Finally, the judge found that defendant's cessation of work was lawful because they were "no longer assured of the mutual obligations of payment" when plaintiff informed them of the Homeland Security investigation which constituted anticipatory breach. The statements regarding the Homeland Security investigation in connection with plaintiff's inability to pay the installments and the lack of assurances, constituted material anticipatory breach because plaintiff's payment of installments upon completion of agreed upon work went to the essence of the agreement between defendant and plaintiff. Ross Systems v. Linden Dari-Delite, Inc., 35 N.J. 329, 340-41 (1961). In light of plaintiff's material anticipatory breach, defendant was no longer obligated to perform. Id. at 341. We find that the trial judge was within his discretion in making his findings of fact and conclusions of law, with one exception: the calculation of damages.

There are two problems with the damages calculation. First, the total amount paid by plaintiff to defendant does not add up to $26,955 as calculated by the judge, but rather to $27,000. Second, the judge, while giving the defendant the "benefit of the doubt" on the bathroom issue, did not justify why he subtracted the price of a two-fixture bathroom ($7,000) as opposed to that of a three-fixture bathroom ($8,000) when line item 8 of the original contract clearly calls for a three- fixture bathroom. While the judge did ultimately "resolve the issue against the builder," there is no substantial, credible evidence in the record to support the $7,000 credit instead of an $8,000 credit. Therefore, the award calculation should be the $45,000 original quote plus $2,750 for the changes, minus: the $27,000 paid by plaintiff, $800 for the unordered Sealomatic door, $3,000 for cost of completing construction, and $8,000 for a three-fixture bathroom. This calculation reaches a final damages calculation of $8,950.

We therefore affirm in part, modify in part, and remand for correction of judgment.

 

The installments were to be paid as the work progressed: ten percent deposit for materials ($4,500); ten percent upon completion of architectural plans ($4,500); twenty percent upon completion of the footing ($9,000); twenty percent upon completion of the shell ($9,000); twenty percent percent upon completion of the work in the front of the house (Line Items 1-3) ($9,000); and twenty percent upon completion of the entire project ($9,000).

Plaintiff paid: $8,505 for the first and second payments combined, plus $9,295 for the third payment, plus $9,200 for the fourth payment. The total equals $27,000.

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A-3515-07T2

November 4, 2009