DURAMIX CONCRETE CORP v. TONY GOMES CONSTRUCTION CO., INC

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

DURAMIX CONCRETE CORP.,

Plaintiff-Respondent,

v.

TONY GOMES CONSTRUCTION

CO., INC.,

Defendant-Appellant,

and

TONY GOMES,

Defendant.

_____________________________

August 28, 2014

Submitted April 8, 2014 Decided

Before Judges Hayden and Rothstadt.

On appeal from Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-4248-11.

Terence J. Wronko, attorney for appellant.

Clark Guldin, attorneys for respondent (Jonathan T. Guldin, of counsel and on the brief; Adriane E. Price, on the brief).

PER CURIAM

Defendant Tony Gomes Construction, Co., Inc. appeals from the Law Division's January 9, 2013 final judgment entered after a bench trial that awarded plaintiff Duramix Concrete Corp. damages in the amount of $17,048.95 based on a breach of contract, and dismissed the complaint against defendant's principle Tony Gomes individually.1 On appeal, defendant argues that the trial court erred in its entry of that judgment because plaintiff "failed to establish [the agreement] was signed by defendant and the court has determined that the plaintiff[']s president[']s testimony regarding the contract was false." We have considered this contention in light of the record and applicable law, and we now affirm.

Plaintiff is a manufacturer and supplier of concrete mix and related products and services. Defendant is a construction company specializing in the construction, restoration and repair of public buildings. In or about January 1998, defendant signed plaintiff's "Credit Application and Personal Guarantee" form for plaintiff to supply defendant with concrete. The "Credit Application" portion stated that

[w]e certify that the above information is true and correct and we agree to pay this account in accordance with your credit terms. . . . We understand that all past due balances will be subject to a 1 1/2% per m[onth] service charge. We further agree to pay 25% collection charge, in the event of default, if the account is placed with an attorney or bonded collection agency.

Underneath this statement, there appeared two signature lines. One contained the signature of defendant's office manager, "Valerie," and the other had Gomes' printed name and his designation as "Pres." Underneath Gomes' printed name was a signature. Beneath that portion of the document, there was a personal guarantee that was followed by a signature line bearing Gomes' printed name.

From 1998 until 2007, plaintiff supplied defendant with concrete mix until defendant began to experience financial difficulties and could no longer pay. Defendant later filed for bankruptcy on March 5, 2010, and listed plaintiff as a creditor for the amount of $10,000. That petition was subsequently dismissed.

On August 12, 2011, plaintiff filed a complaint in the Law Division alleging breach of contract by defendant, breach of the personal guarantee by Gomes individually, unjust enrichment and account stated by both defendant and Gomes. The complaint claimed defendant owed plaintiff "at least" $5164; service charges of one and one-half percent per month on the overdue balance; and counsel fees and related collection costs.

The court conducted a one-day bench trial during which plaintiff presented testimony from Vincent Alessi, plaintiff's owner and principal, and defendant presented testimony from Gomes. A copy (as opposed to the original) of the Credit Application and Personal Guarantee was moved into evidence, in addition to the five unpaid invoices in dispute and a certification by Gomes.

Alessi testified that he personally witnessed Gomes sign the Credit Application. He identified the five unpaid invoices, and said that he had had "[a] number of discussions" with Gomes after they were past due. He also said that over the course of their business relationship, Gomes had never objected to Duramix's "trucking charges."

Gomes testified that he had made personal guarantees on loans up until 1985, when his business became more successful. Gomes claimed he did not remember signing the Credit Application. Referring to the script signature on the credit application, he also said, "That is a portion of my signature. It's not my full signature." When pressed by the court for clarification, he said it was a "partial signature." The court compared the script signatures on the Credit Application and Gomes' certification, and determined that they appeared "substantially similar," although the judge conceded that he was not an expert.

After considering the testimony and the exhibits, the court found that plaintiff had met its burden of proof in establishing that it had delivered the concrete as evidenced by the invoices. It also found Gomes' testimony, that he did not sign the Credit Application, not credible, as the script signature on the application appeared identical to his signature on his bankruptcy application. The court made that finding even though it rejected Alessi's testimony that Gomes signed the personal guaranty as well. The court then entered judgment in favor of Duramix, awarding $5164 in principal; $8475.16 in service charges accrued from August 1, 2007 to December 10, 2013 at the rate of one and one-half percent per month; and $3409.79 in attorneys' fees as of December 10, 2012, calculated as twenty-five percent of the overdue amount, which amounted to a total of $17,048.95. This appeal followed.

At issue in this case is the adequacy of the trial court's factual findings and determinations of credibility, rather than the interpretation of the contract. Therefore, we are bound to uphold the trial court's determinations that are supported by adequate, substantial credible evidence in the record, Potomac Ins. Co. of Ill. v. Pa. Mfrs.' Ass'n Ins. Co., 215 N.J. 409, 421 (2013) (citing Cesare v. Cesare, 154 N.J. 394, 411-12 (1998)), in light of its opportunity to observe and hear witness testimony firsthand, and to develop a "feel" of the case. Twp. of W. Windsor in the Cnty. Of Mercer v. Nierenberg, 150 N.J. 111, 132 (1997) (citing State v. Whitaker, 9 N.J. 503, 515-16 (1979)). Only where the trial court's decision "went so wide of the mark that a mistake must have been made," will we "appraise the record as if . . . deciding the matter at inception and make [our] own factual findings and conclusions." C.B. Snyder Realty, Inc. v. BMW of N. Am. Inc., 233 N.J. Super. 65, 69 (citing Pioneer Nat'l Title Ins. Co. v. Lucas, 155 N.J. Super. 332, 382 (App. Div. 1978)).

We are satisfied that there was substantial, credible evidence in the record to support the trial court's finding that Gomes signed the credit application on behalf of defendant but did not sign the personal guaranty. First, thereis nosignature in the area of the personal guaranty. Therefore, regardless of Alessi's testimony that Gomes signed both parts of the agreement, the document did not support plaintiff's position. Second, there is nothing in the record that refuted that the script signature that appeared below Gomes' printed name on the contract looked very much like the signature on the bankruptcy petition, or that he in fact signed the form on behalf of defendant. Gomes did not deny signing that portion of the document but stated that he didn't remember signing it and that it was at least a portion of his signature. Finally, as the trial court also found, there was no evidence that defendant ever challenged any of the invoices or claimed that it did not order the material that plaintiff delivered to defendant.

Defendant also argues that the credit agreement's fees and interest were excessive a claim that it did not raise at trial. Defendant cannot raise that claim now, Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973) (citing Reynolds Offset Co., Inc. v. Summer, 58 N.J. Super. 542, 548 (App. Div. 1959), certif. denied, 31 N.J. 554 (1960)).

Affirmed.

1 The dismissal of the complaint against Gomes individually is not the subject of this appeal.