BRUCE CALLIGARO v. RAMAPO VALLEY POOL SERVICE OF OAKLAND, N.J.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

BRUCE CALLIGARO AND

DIANA CALLIGARO,

Plaintiffs-Appellants/

Cross-Respondents,

v.

RAMAPO VALLEY POOL

SERVICE OF OAKLAND, N.J.,

Defendant-Respondent/

Cross-Appellant,

__________________________________

RAMAPO VALLEY POOL SERVICE,

INC.,

Plaintiff,

v.

SOLANA STONE, INC., AND

JOEL LEIFER,

Defendants.

___________________________________

October 7, 2013

 

Argued September 23, 2013 Decided

 

Before Judges Parrillo, Harris, and Guadagno.

 

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket Nos. L-2685-10 and L-9662-09.

 

Richard T. Garofalo argued the cause for appellants/cross-respondents (Garrity, Graham, Murphy, Garofalo & Flinn, P.C., attorneys; Mr. Garofalo, of counsel; Jane Garrity Glass, on the brief).

 

Yolanda L. Ayala argued the cause for respondent/cross-appellant (Gallo, Vitucci & Klar, LLP, attorneys; Ms. Ayala, on the brief).

PER CURIAM

This appeal and cross-appeal stem from a failed home improvement contract that was supposed to guide the renovation of plaintiffs' back yard and outdoor swimming pool. After a two-day bench trial, a modest monetary award was entered in favor of plaintiff-homeowners. Plaintiffs primarily appeal from that award, citing its meagerness, and further challenge other aspects of the proceedings. Defendant appeals from the entry of the judgment in toto. We affirm in part, and remand in part.

I.

A.

Plaintiffs Bruce and Diana Calligaro own a home in Ringwood. In 2007, they decided to re-landscape their entire backyard and renovate the in-ground swimming pool. They contacted the owners of defendant Ramapo Valley Pool Service, Inc. (Ramapo)1 about doing the swimming pool renovations. The Calligaros had been friends with Ramapo's owners for more than fifteen years, and had used Ramapo for swimming pool maintenance.

Plaintiffs negotiated an agreement for Ramapo to perform the renovations. Ramapo agreed to install new tile, replace the coping, re-plaster the inside of the pool, and move the plumbing lines. Plaintiffs never received a written contract encompassing all of the parties' agreements, despite Ramapo's proposals that provided written estimates for the tile and coping work.

Plaintiffs also discussed replacing the decking around the pool, which resulted in Ramapo supplying the stone to accomplish the work. Ramapo's showroom displayed a stone sample of "Ocean Deep," which was imported and distributed by Solana Stone, Inc. (Solana). After being assured that the Solana stone could withstand the freeze and thaw cycles of a northern New Jersey winter, plaintiffs agreed to acquire it from Ramapo, at cost, for approximately $18,000.

The Solana stone was ultimately incorporated into plaintiffs' renovation by another contractor, landscaper Alan J. Federici, who performed many of plaintiffs' other backyard renovations in 2008. Solana stone was used for both the coping and decking, but the coping material was twice as thick as the decking material.

Plaintiffs did not observe any defects in the stone when it was delivered, other than some cracks in certain pieces that were not used in the installation. The renovation project began in November 2007 and was substantially completed in late summer 2008. Ramapo gave plaintiffs a document entitled "Calligaro Renovation," which itemized the cost of all of the work done and materials supplied. This itemization contained an entry for "Solana Stone Coping and Deck Stone" at a cost of $18,216.62. The total cost of the work done and materials supplied by Ramapo was $37,886.89, which was paid in full by plaintiffs.

In March 2009, plaintiffs noticed that decking stones were cracking and breaking apart in pieces. According to the trial testimony, it has continued to deteriorate. One of Ramapo's owners, Douglas Gornall, testified that he observed flaking, spalling, and cracking in the stone decking. At trial, Ramapo stipulated that the stone used for the decking, but not the coping stone, was not suitable for its intended use.

Ramapo initially tried to contact Solana to rectify the situation, but to no avail. Solana went out of business sometime in 2009, which led to plaintiffs instituting the current action against Ramapo.

At trial, plaintiffs did not submit any expert testimony in support of their claims, but did submit various estimates, and the testimony of Federici (who had been in the landscaping business for thirty-four years) as a fact witness. Federici testified that he gave plaintiffs an estimate of $37,800 to remove the existing stone decking; re-grade areas to receive new stone pavers, which would have a greater thickness than the original stones; install pavers; and fill in joints with polymeric sand. Federici testified that removal of the stone decking alone would cost about $10,000. He estimated that the re-grading would cost between $5000 and $7000, and installation of new decking stones would cost about $18,000.

Plaintiffs also obtained a proposal for $15,693.69 to drain the swimming pool, remove the existing coping, and install new coping. The coping is not attached to the decking, and Gornall testified that replacing the decking would not require removing the coping. However, plaintiffs sought to replace the coping, which is not damaged, for aesthetic reasons so that it matches the new decking, as it did after the 2008 renovations. Plaintiffs also supplied a separate estimate for replacement pool water, which amounted to $1,975.2

B.

The litigation spawned by the stone decking commenced in November 2009, when Ramapo sued Solana and its owner Joel Leifer in the Law Division for breach of contract and misrepresentation.

In May 2010, Ramapo filed a second amended complaint against Solana and Leifer, adding claims of breach of implied warranty and negligence.

In March 2010, plaintiffs filed a four-count complaint in the Law Division against Ramapo, alleging breach of contract, breach of implied warranty, negligence, and violation of the Consumer Fraud Act (CFA), N.J.S.A. 56:8-1 to -20. In July 2010, Ramapo filed a third-party complaint against Federici. Federici did not file an answer, and default, see Rule 4:43-1, was entered against him.3

In August 2010 the two lawsuits were consolidated.

Prior to trial, Ramapo moved for summary judgment against plaintiffs, Solana, and Leifer. Its motions against Solana and Leifer were denied, but the Law Division dismissed all of plaintiffs' claims except for breach of contract, memorializing its decision in a May 11, 2012 order.

A two-day bench trial was conducted in June 2012. During trial, Ramapo released its claims against Solana and Leifer on the condition that if a judgment were entered against Ramapo, a judgment for the same amount would be entered against Solana in favor of Ramapo.

On July 20, 2012, the trial court entered a final judgment, and issued a written opinion awarding plaintiffs $28,216.62. The appeal and cross-appeal followed.

II.

Our standard of review is highly deferential. All that is required is that the facts, as discerned by the judge, be supported by adequate competent evidence in the record. Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 483-84 (1974). So long as the trial judge's findings are "supported by adequate, substantial and credible evidence," they will be affirmed. Id. at 484. Our appellate function is, therefore, limited. We will not "'engage in an independent assessment of the evidence as if [we] were the court of first instance.'" N.J. Div. of Youth & Family Servs. v. Z.P.R., 351 N.J. Super. 427, 433 (App. Div. 2002) (quoting State v. Locurto, 157 N.J. 463, 471 (1999)). Therefore, "'we do not disturb the factual findings and legal conclusions . . . 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.'" Ibid. (quoting Fagliarone v. Twp. of N. Bergen, 78 N.J. Super. 154, 155 (App. Div. 1963)).

We accord particular deference to findings of credibility. Even when a trial judge does not expand upon credibility determinations, those determinations are entitled to deference if supportable by the evidence presented. These findings "are often influenced by circumstances such as observations of the character and demeanor of witnesses and common human experience that are not transmitted by the record." Locurto, supra, 157 N.J. at 474 (citation omitted).

However, where our review addresses questions of law, a trial judge's findings "are not entitled to that same degree of deference if they are based upon a misunderstanding of the applicable legal principles." Z.P.R., supra, 351 N.J. Super. at 434 (citing Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)).

In ordinary breach of contract cases, the function of damages is to make the injured party whole. Furst v. Einstein Moomjy, Inc., 182 N.J. 1, 13 (2004). However, at times, in order to make a party whole, "the innocent party must be given the 'benefit of his bargain' and placed in 'as good a position as he would have been in had the contract been performed.'" Ibid. (quoting Scully v. US WATS, Inc., 238 F.3d 497, 512 (3d Cir. 2001)). Nevertheless, sufficient evidence must exist to determine the proper value of being made whole.

The trial judge addressed conventional breach of contract issues, and arguably resuscitated plaintiff's breach of implied warranty claim that had earlier been dismissed pursuant to summary judgment.4 He concluded that an enforceable contract part of Ramapo's overall service arrangement with plaintiffs existed and was breached by the delivery of unsuitable decking stones. The record amply supports these conclusions.

Ramapo suggests that it is not responsible to plaintiffs because it never delivered "defective" materials. To the contrary, it failed to fulfill its promise albeit unwritten to provide decking stones that were appropriate to the climate in which they were being installed.5 Ramapo's representative harbored no reservations about the stones' suitability for the intended purpose, and readily encouraged such use in plaintiffs' backyard. The trial judge's conclusions that there was a binding oral agreement between the parties and that it was breached by Ramapo are unexceptionable.

Plaintiffs take issue with the trial judge's calculation of damages. As noted, the judge awarded plaintiffs only $28,216.62, which was comprised of what they paid for the Solana stone ($18,216.62) and Federici's estimate to remove that stone as part of the decking remediation ($10,000). The judge expressly declined to award the cost of purchasing and installing replacement decking stone. The judge never directly addressed, as elements of damage, the $15,693.69 estimate to remove and replace the swimming pool's coping, and the $1975 estimate for replacement water.

The judge limited the magnitude of damages because of plaintiffs' failure of proof. He concluded that since the replacement they presented two-inch-thick stone was never demonstrated to be equivalent to the one-inch-thick Solana stone, there was a lack of evidence to support restitutionary damages. Since the evidence of replacement stone was both inapposite and unpersuasive, plaintiffs failed to shoulder their burden of proof beyond the components of damage found in their favor by the trial judge.

The judge assessed the non-expert testimony of Federici,6 and then explained why he was distrustful of the witness's statements. The judge explicated his skepticism as being born of Federici's pro-plaintiffs' bias due to Federici's "ongoing business relationship with [plaintiffs] as their landscaper." Consequently, because of this credibility assessment, the judge marginalized Federici's stone removal estimate. Nevertheless, because Ramapo failed to contradict the $10,000, the judge incorporated that amount into his calculus of damages.

We are fully in accord with the findings and conclusions reached by the trial judge in this respect. They are supported by competent evidence in the record, and are informed by the judge's observation of the witnesses. We have no basis to disturb the express findings so made.

We are further convinced that all of Ramapo's arguments are entirely meritless, R. 2:11-3(e)(1)(A) and (E). Similarly, we view plaintiffs' remaining arguments, and in particular, the dismissal of their CFA theories of liability, as equally without merit.

Notwithstanding the foregoing, we are at a loss to understand the failure of the trial judge to address as possible elements of damage plaintiffs' coping and replacement water claims. These potential species of damages, which could be logically linked to the necessary decking replacement, may have been rejected because they were not foreseeable at the time the oral contract between the parties was forged, or for other reasons. We just do not know.

Accordingly, we remand these two claims to the Law Division for reconsideration. In so doing, we express no opinion whether they must or must not be added to plaintiffs' compensable damages. We do expect, of course, that the remand court will fully explain its decision, whatever that may entail. R. 1:7-4.

Affirmed in part; remanded in part. We do not retain jurisdiction.

1 Ramapo appears in plaintiffs' complaint as "Ramapo Valley Pool Service of Oakland, N.J., Inc.," but in Ramapo's separate complaint, it refers to itself as "Ramapo Valley Pool Service, Inc." We assume the differences in nomenclature are immaterial.

2 Plaintiffs claimed that if they used their own water to re-fill the swimming pool, it might damage their well.

3 The final judgment entered in this case dismissed "the Complaint [sic] against Defendant, Al Federici . . . with prejudice." We believe that this entry reflected the dismissal of Ramapo's third-party complaint against Federici.

4 We conclude that there was no abuse of discretion in the trial judge's sub silentio reconsideration of the warranty claim, particularly since it resulted in no additional prejudice to Ramapo. See Lombardi v. Masso, 207 N.J. 517 (2011).

5 There is no contention in this case that the decking stones failed due to improper installation, which may explain the dismissal of Ramapo's third-party complaint against Federici.

6 It was not a mistaken exercise of discretion to allow Federici, a defaulting third-party defendant, to testify.