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Blake Construction v. Pavlick

Decided: June 2, 1989.

BLAKE CONSTRUCTION, PLAINTIFF,
v.
RAYMOND W. PAVLICK AND CAROL PAVLICK, DEFENDANTS



Harris, J.s.c.

Harris

[236 NJSuper Page 75] This case picks up where Huffmaster v. Robinson, 221 N.J. Super. 315 (Law Div.1986) ends. It involves a claim by a home improvement contractor against owners of residential real property seeking contract damages for failure to pay for construction work allegedly completed. Defendants had filed a counterclaim alleging their entitlement for overpayments made to the contractor. The answer and counterclaim neither sought affirmative damages under the Consumer Fraud Act, N.J.S.A. 56:8-1 et seq., (the "act") nor contained any consumer, fraud-related affirmative defenses such as set-off or recoupment. At the conclusion of defendants' case, they withdrew their counter-claim in its entirety. Nevertheless, the court shall deny plaintiff any enforcement capacity and the complaint shall be dismissed, notwithstanding what may be characterized as substantial good-faith performance by plaintiff.*fn1

Findings of Fact.

Defendants own real property in Garfield, New Jersey consisting of a brick and frame 2 1/2-story structure. The first floor is improved with a tavern and liquor store. The second and third floors are occupied by defendants and their family as a dwelling. Defendants own and operate the tavern and liquor store below their living quarters. Defendants suffered catastrophic damage as a result of a fire on the third floor which caused substantial water and smoke damage to the other floors of the building.

Plaintiff is a local home-improvement contractor which is owned and operated by a former friend of defendants. Plaintiff and defendants entered into a written construction contract in March 1986, consisting of two pages, with a third page being unsigned addendum for the complete renovation and restoration of the second and third floors of defendants' building. Some incidental construction work was supposed to be performed by plaintiff on the first floor, but the lion's share of reconstruction in the tavern and liquor store was to be done by others. In an effort to keep costs under control, and given the then-warm relationship between plaintiff's owner and defendants, defendants were permitted to contribute a substantial amount of sweat-equity, and toiled alongside plaintiff's workers in the renovation and restoration process.

During the construction, "extras" in the amount of $7,509.31 were allegedly ordered and authorized by defendants, and installed or otherwise performed by plaintiff. These included extra demolition, doors, trim, and scavenger service. Disputes arose between the parties during the construction concerning the ability of defendants to make progress payments towards the contract, and the timeliness of plaintiff's performance. Plaintiff claims that defendants were woefully underinsured for

the fire loss*fn2 and their scrimping made plaintiff an involuntary unsecured debtor to the point where plaintiff claims it could not pay its subcontractors. This, according to plaintiff, constituted a breach by defendants which permitted plaintiff to walk off the job. Cf. Vinen Corp. v. Alan W. Nau Contracting, 232 N.J. Super. 589 (App.Div.1989).

Defendants contend that plaintiff abandoned the job voluntarily by simply refusing to appear to complete the work. This, defendants claim, was due to other more pressing jobs and concerns of plaintiff.

The total written contract (including the addendum) which was signed by both parties amounted to $59,146.46, exclusive of extras. There was neither a contemporaneous memorialization of the extras, nor any other written authorization or contract signed by defendants to enable plaintiff to proceed with the extras.

Plaintiff claims that defendants paid it $59,112.22, and after giving defendants various credits for certain incomplete work, plaintiff claims entitlement to $4,444.07.

Plaintiff produced the construction code official of the City of Garfield as one of its witnesses. He testified, among other things, that the nature of the damage to the building required that it be treated, under the Uniform ...


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