On appeal from the Superior Court of New Jersey, Law Division, Special Civil Part, Monmouth County, Docket No. DC-012510-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 9, 2007
Before Judges Parrillo and Alvarez.
Plaintiff John Roddy appeals from an order of the Law Division, following a bench trial, awarding defendant Lynne Clemons $3141 on her counterclaim against plaintiff. We affirm.
The facts, for the most part, are not in serious dispute. On July 10, 2005, the parties executed two home improvement contracts, one for the renovation of the first floor of defendant's home for $87,500, and the second for a two-story addition to the existing dwelling for $80,000, for a total contract price of $167,500.*fn1 The contracts provided for a schedule of payments upon completion of designated work phases, with the remaining balance due on each contract to be paid after completion of the project. After construction on the home commenced in July 2005, the parties agreed upon "extras" to the original contracts, although the agreement was never reduced to a formal writing. Plaintiff estimated the cost of the additional work amounted to $13,200, while defendant estimated the total to be $12,100.
In any event, sometime thereafter, in August 2005, construction came to a halt because defendant ran out of funds. However, she was able to secure a construction loan and, consequently, plaintiff resumed work in January 2006. Defendant's loan provided that interim payments to the home contractor would not be made until completion of designated phases of the project. Plaintiff operated under the terms of the loan agreement until June 2006 when he ceased work because defendant refused to advance monies to him ahead of the loan's payment schedule. Plaintiff claims the monies were necessary for him to continue the work. By then, plaintiff had completed the "roughing" work on the house, but not the "finish" work, and defendant had already paid plaintiff $169,900 of the contract price.*fn2 Despite her requests, plaintiff never returned to complete the project, requiring defendant to hire outside contractors to finish the job at a cost of $12,841.
Plaintiff filed a breach of contract action against defendant in the Special Civil Part seeking damages for the unpaid work he performed for defendant. Defendant answered and counterclaimed for reimbursement of monies she expended to complete the construction work that plaintiff had agreed to perform. Following a bench trial, the judge dismissed plaintiff's complaint and awarded defendant $3141 on her counterclaim. The trial judge reasoned:
And I find that the original contract price, this is clear, between the plaintiff and the defendant, was $167,500. Both sides agree that there were extras on that. The plaintiff says that there were $13,200 in extras. The defendant says there's was [sic] $12,100 in extras. I don't find that there's been any particular proof as to what the amount in extras was, so I'll have to go with the lower figure.
I have established the contract price at $179,600. Of that amount, 169,900 was paid, according to the receipts and the checks. That would leave a balance due of $9,700. I do find though that the defendant needed to pay third parties in order to get the work completed. And that she paid those third parties $12,841.
And that the, if you subtract $9,700 from $12,841, that would leave a balance due to her of $3,141. So, I'll enter a judgment for the defendant in the amount of $3,141.
On appeal, plaintiff raises the following issues for our consideration:
I. CLAIMANT STOPPED PRODUCTION AT WORK SITE OF DEFENDANT AFTER SHE BREACHED THE CONTRACT'S PAYMENT SCHEDULE, THEREFORE HE SHOULD NOT HAVE BEEN HELD LIABLE FOR EXPENSES [ACCRUED] BY THE DEFENDANT [AFTER THIS BREACH].
II. JUDGMENT [sic] OF $3,141 TO DEFENDANT RESULTED FROM A MISCALCULATION OF MONEY TRULY OWED AND RESULTED FROM FRAUDULENT ...