TERESA EDELGLASS v. MICHAEL POGORZHELSKY
Annotate this CaseNOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0418-18T3
TERESA EDELGLASS,
Plaintiff-Appellant,
v.
MICHAEL POGORZHELSKY
d/b/a GLOBAL CONCRETE
LIFTING,
Defendant-Respondent.
____________________________
Submitted January 21, 2020 – Decided April 13, 2020
Before Judges Sumners and Geiger.
On appeal from the Superior Court of New Jersey, Law
Division, Ocean County, Docket No. SC-000801-18.
Teresa Edelglass, appellant pro se.
Respondent has not filed a brief.
PER CURIAM
Plaintiff Teresa Edelglass appeals Special Civil Part orders dismissing her
small claims compliant against defendant Michael Pogorzhelsky d/b/a Global
Concrete Lifting following a bench trial and denying her motion for
reconsideration.1 After a thorough review of the record, we vacate the orders
and remand the matter for the trial court to make factual findings and legal
conclusions to support its rulings.
For purposes of this opinion we need only provide a brief summary of the
trial and post-trial proceedings. Plaintiff contacted defendant Michael
Pogorzhelsky d/b/a Global Concrete Lifting to remedy a sinking pool patio at
her home. After defendant inspected the patio and proposed a solution, the
parties entered into a terse one-page written agreement reciting plaintiff would
1
Plaintiff's notice of appeal seeks review only of the trial court's July 27, 2018
order dismissing her complaint with prejudice following a bench trial, not the
court's September 5, 2018 order denying summary judgment. We could,
therefore, limit our review to the July order alone. See W.H. Indus., Inc. v.
Fundicao Balancins, Ltda, 397 N.J. Super. 455, 458 (App. Div. 2008) ("It is
clear that it is only the orders designated in the notice of appeal that are subject
to the appeal process and review."); Fusco v. Bd. of Educ. of City of Newark,
349 N.J. Super. 455, 461-62 (App. Div. 2002) (reviewing only denial of the
plaintiff's motion for reconsideration and refusing to review the original grant
of summary judgment because that order was not designated in the notice of
appeal). We choose to overlook that technical error and consider the merits of
plaintiff's appeal of the reconsideration order because "the substantive issues in
the case and the basis for the . . . judge's ruling [at trial] and [the] reconsideration
motion[] [were] the same." Id. at 461.
A-0418-18T3
2
pay defendant $1400 plus $98 in taxes and he would "[l]ift/mud jack, fill void
under [concrete] slabs on the pool patio at the half of perimeter of pool."
Upon completion of the one-day job performed in the rain, defendant
asked plaintiff to assess the work. According to plaintiff, she complained that a
portion of the patio did not seem to be corrected to which defendant replied he
would fix it another day even though the area was not part of the job. Despite
concerns over the uncorrected problem, plaintiff gave defendant a personal
check for $1498 covering the full contract price.
After defendant left, plaintiff claims she made a more thorough inspection
which showed: most of the patio had not been lifted; the patio, patio gate and
patio furniture were scratched; the patio was badly chipped by insertion holes;
landscape rocks were missing; her lawn had a huge deep divot caused when
defendant's truck got stuck due to the rain; branches of a shrub were broken; and
a trip hazard was created due to an uneven joint in the patio.
Plaintiff contends that despite texts and e-mails to defendant thereafter,
she was unable to get him to fix his deficient work or get a one-half refund of
her payment that she proposed to resolve her concerns. Thus, she sought relief
by filing a small claims complaint against defendant to get a full refund of the
amount she paid. Her complaint did not seek to recover any alleged damage to
A-0418-18T3
3
her property, nor did it allege a violation of the Consumer Fraud Act, N.J.S.A.
56:8-1 to -20, after her investigation determined defendant was not a licensed
contractor in New Jersey.
During trial, plaintiff presented photos and a video she contended depicted
the damage done by defendant and his poor workmanship. However, the
exhibits, which were apparently admitted into evidence, were not marked for
identification as required by Rule 1:2-3.
Defendant testified he performed quality work as evidenced by the fact
that after the work was done, he did a walk through with plaintiff, and she paid
him in full. He also asserted he and his company are registered contractors, but
no license was required for the work he performed.
After reserving decision, the court entered an order the next day
dismissing plaintiff's complaint with prejudice. Below the court's signature at
the end of the order is typed "WRITTEN DECISION RENDERED," however,
there is no such decision in the record provided.2 In its order of dismissal, the
2
In fact, other than the statement on the order there is nothing in the record
referencing a written decision by the court. Neither the court's comments at the
trial's conclusion nor its reconsideration order indicate a written decision being
issued regarding the bench trial.
A-0418-18T3
4
court stated what appears to be its reasoning for dismissing plaintiff's complaint.
The order provides:
In determining what should be awarded to the [p]laintiff, the
[c]ourt must look at what was proven by a preponderance of
the evidence and whether there is a sufficient legal basis for
the relief sought. After listening to the testimony given at
trial, reviewing the exhibits,[3] and all papers presented in the
case, the [c]ourt makes the following findings. The [c]ourt
finds that [p]laintiff has not proven her case by a
preponderance of the evidence. Here, it was clear that the
contractor performed work and [p]laintiff paid for the work
performed. Although, [p]laintiff maintains there was damage
caused to her patio and/or property in the course of the work,
the [c]ourt is not persuaded. Moreover, the [c]ourt finds that
[d]efendant was reasonable under the circumstances. For
these reasons, the [c]ourt finds that [p]laintiff has not proven
her case by a preponderance of the evidence.
Plaintiff thereafter filed a timely motion for reconsideration arguing the
court did not consider credible evidence; including a video taken by plaintiff
allegedly depicting the poor workmanship performed by defendant. Plaintiff's
moving papers argued the video was not presented because the court did not
request to view it.
3
As noted above, none of plaintiff's exhibits were marked for identification,
thus it is not clear what exhibits were being referenced.
A-0418-18T3
5
Plaintiff's merits brief indicates there was oral argument for the motion,
however, no transcript of the argument has been provided, nor does the order
entered on the motion's return date denying relief indicate oral argument
occurred. In fact, the order's recitation, "[a]fter reviewing the [p]laintiff's
motion for reconsideration, the [C]ourt hereby denies the motion[,]" suggests
there was no argument. Again, the court did not render a written or oral decision,
but the order stated plaintiff failed to satisfy the standard for granting a
reconsideration motion as set forth in Rule 4:49-2 and D'Atria v. D'Atria, 242 N.J. Super. 392, 401 (Ch. Div. 1990) and "all evidence presented was properly
considered . . . . judgment entered against [p]laintiff for failing to prove her case
by a preponderance of the evidence."
On appeal, plaintiff contends the court failed to consider the probative,
competent evidence she submitted, as well as the video that was not viewed, at
trial and in deciding her reconsideration motion. On the record before us it is
unclear on what basis the court made its rulings.
Initially, we recognize it is well-established that "[f]inal determinations
made by the trial court sitting in a non-jury case are subject to a limited . . .
scope of review . . . ." D'Agostino v. Maldonado, 216 N.J. 168, 182 (2013)
(citations omitted). "[F]indings by the trial court are binding on appeal when
A-0418-18T3
6
supported by adequate, substantial, credible evidence. Deference is especially
appropriate when the evidence is largely testimonial and involves questions of
credibility." Seidman v. Clifton Sav. Bank, S.L.A., 205 N.J. 150, 169 (2011)
(quoting Cesare v. Cesare, 154 N.J. 394, 411-12 (1998)). "[W]e 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[.]" Ibid. (alteration in original) (quoting In re Tr. Created By
Agreement Dated Dec. 20, 1961, ex rel. Johnson, 194 N.J. 276, 284 (2008)). We
review the trial court’s interpretation of law de novo. Manalapan Realty, LP v.
Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).
In rendering a bench trial decision, Rule 1:7-4(a) requires the court must
in "an opinion or memorandum decision, either written or oral, find the facts and
state its conclusions of law[.]" To comply, the court must articulate factual
findings and correlate them with the principles of law. Curtis v. Finneran, 83 N.J. 563, 570 (1980). When that is not done, this court's review is impeded, and
a remand is necessary. Elrom v. Elrom, 439 N.J. Super. 424, 443 (App. Div.
2015). "Meaningful appellate review is inhibited unless the judge sets forth the
reasons for his or her opinion." Strahan v. Strahan, 402 N.J. Super. 298, 310
A-0418-18T3
7
(App. Div. 2008) (quoting Salch v. Salch, 240 N.J. Super. 441, 443 (App. Div.
1990)).
The trial court here did not adequately explain its reasons for dismissing
plaintiff's complaint with prejudice and why it did not view, as the record
suggests, plaintiff's video. The court, without specifically indicating its
credibility assessment of the parties' testimony or the significance of any
testimony and exhibits, merely made conclusory statements that plaintiff failed
to prove her case by a preponderance of the evidence and that defendant
performed his work. Our ability to resolve an appeal is largely dependent upon
the trial court's compliance with its obligation to state findings of fact and
conclusions of law as required by Rule 1:7-4(a). Hence, we are constrained to
vacate the court's two orders and remand the case to the trial court to make
findings of fact and conclusions of law consistent with this opinion and Rule
1:7–4(a).
Reversed and remanded. We do not retain jurisdiction.
A-0418-18T3
8
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
