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Mastellone v. Bittner

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


December 13, 2007

ANTHONY J. MASTELLONE, PLAINTIFF-RESPONDENT,
v.
SHAWN BITTNER, DEFENDANT-APPELLANT, AND JACQUILYN BITTNER AND MARIA G. NERI, DEFENDANTS.

On appeal from the Superior Court of New Jersey, Law Division, Special Civil Part, Sussex County, DC-1738-06.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted December 4, 2007

Before Judge Skillman and Winkelstein.

Plaintiff, Anthony J. Mastellone, is a contractor who filed suit against Shawn Bittner, Jacquilyn Bittner and Maria G. Neri for sums allegedly due for work plaintiff had performed at 40 Park Avenue in Newton (the property). Neri is the owner of the property, Shawn Bittner is the tenant, and the record is unclear as to what interest, if any, Jacquilyn Bittner, Shawn Bittner's daughter, has in the property.

Following a bench trial, Shawn Bittner (Bittner) appeals from the court's August 21, 2006 order, entering judgment for $11,859.65, plus costs. The order specifically dismissed the complaint against Jacquilyn Bittner and Maria Neri. On appeal, Bittner raises the following four points for our consideration:

POINT I

THE TRIAL COURT ERRED IN MAKING A FINAL RULING WITHOUT RESOLVING ONE OF THE CENTRAL ISSUES OF THE CASE. THE DECISION BY THE TRIAL COURT AWARDS A MONETARY JUDGMENT TO THE PLAINTIFF, BUT DOES NOT ADDRESS WHO IS TO COMPLETE THE UNFINISHED WORK COVERED IN THE "CONTRACT" AGREED TO BY BOTH PARTIES. IN ADDITION IF THIS WORK IS TO BE COMPLETED BY OTHER THAN THE PLAINTIFF, HOW AND TO WHAT EXTENT DOES IT AFFECT THE JUDGMENT AMOUNT.

POINT II

THE PLAINTIFF PERJURED HIMSELF IN STATEMENTS AND THROUGH FALSE REPRESENTATION, CAUSING THE TRIAL COURT TO ERR IN MAKING ITS DECISION WITHOUT THE TRUE FACTS OF THE CASE. IN ITS DECISION THE COURT REPEATEDLY CITES CREDIBILITY, YET THE FACTS OF THE CASE WERE NOT OPEN TO BIAS OR INTERPRETATION. BASING ITS DECISION ON THE CREDIBIILTY OF A PARTY FOUND TO HAVE PERJURED THEMSELVES CASTS DOUBT ON THE DECISION AS A WHOLE.

POINT III

THE TRIAL COURT ERRED IN FAILING TO RECOGNIZE THAT THE CONTRACT PROPOSED BY THE PLAINTIFF IS INVALID AND IS IN FACT DEEMED INAPPROPRIATE AND ITS USE ILLEGAL BY THE NEW JERSEY OFFICE OF THE ATTORNEY GENERAL, DIVISION OF CONSUMER AFFAIRS.

POINT IV

THE TRIAL COURT ERRED IN NOT RECONCILING THE DIFFERENCE IN THE AMOUNTS REQUESTED BY THE PLAINTIFF. THE PLAINTIFF SERVED PAPERS DEMANDING THE AMOUNT OF $11,859.65, YET IN TESTIMONY STATED THAT HE WAS ACTUALLY ONLY OWED $9749.65. WHICH AMOUNT IS CORRECT, IF EITHER? WHAT IS THE DIFFERENCE? WHY IS THERE NO CLEAR ACCOUNTING OR DOCUMENTATION FROM THE PLAINTIFF TO CLARIFY EXACTLY THE AMOUNT OWED, IF ANYTHING? THE COURT IN ITS DECISION STATED THAT THE DEFENDANT IS RESPONSIBLE FOR LEGAL FEES, IS THIS INCLUDED OR NOT.

Having carefully considered the arguments in light of the record and the applicable law, we reverse the August 21, 2006 order, and remand for further proceedings.

A Special Civil Part trial was held on August 21, 2006.

According to plaintiff, he entered into a contract with Bittner dated January 11, 2006, to perform renovations at the property.

The contract price for the renovations was $19,119.32. Defendants paid plaintiff $16,600 on account. Plaintiff testified that he did additional work, orally authorized by Bittner, in addition to the work listed in the contract, and the balance due to him was $11,859.65. When questioned by the judge as to the balance due, however, plaintiff claimed the correct amount owed was $9749.65.

During the course of his testimony, plaintiff did not clearly indicate how much money was due. When asked by the court if he had receipts for the materials that he used, plaintiff responded, "I don't even know where to start on the receipts. I mean, you want all the files? I mean, to add them up is almost impossible."

Bittner alleged plaintiff never completed the work.

Plaintiff testified he spent more than one year doing the work, but when asked by the court when he finished, he was unable to recall. On May 18, 2006, plaintiff recorded a construction lien against the property,*fn1 in which he claimed $11,859.65 was unpaid.

Near the close of the proceedings, the court commented upon the construction lien and plaintiff's claim against Jacquelyn Bittner and Marie Neri.

[PLAINTIFF]: As far as the mechanic's lien on the house, may that stay?

THE COURT: Well, it's there now. It's not going anywhere until I decide this case, but . . . both of these ladies are dismissed as parties to this action.

Following the trial, the judge attached a written statement of reasons to his order entering judgment for plaintiff in the amount of $11,859.65, plus costs. The order does not say against whom the judgment was entered; but it does say that the "case against Jacquil[y]n Bittner and Marie Neri is dismissed."

Presumably, it was the intent of the court to enter judgment against Bittner, as is more fully set forth in the court's statement of reasons accompanying the judgment, which states as follows:

The Court has considered all of the evidence submitted, and the testimony and arguments of the parties involved and the Court finds the plaintiff has proven his case by a preponderance of the evidence. The Court finds the testimony of the plaintiff to be credible, and accordingly, judgment is entered in favor of the plaintiff, Anthony J. Mastellone, in the amount of $11,859.65 plus costs of suit.

The circumstances regarding this home renovation project are very strange. The defendant, Shawn Bittner is not the record owner of the property, yet there is no dispute that he engaged the contractor and negotiated all modifications to the contract issues agreed upon.

The plaintiff appears to be the more credible of the two versions presented. The work was performed by the plaintiff as negotiated, payments were made and the balance is due and owing for work performed. Judgment is against defendant, Shawn Bittner only.

In reviewing the factual findings of the trial judge, our scope of review is limited. "Findings by the trial judge are considered binding on appeal when supported by adequate, substantial and credible evidence." Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974).

Nevertheless, when a civil action is tried without a jury, a trial court must make findings of fact and state its conclusions of law. R. 1:7-4(a). The failure to make such findings renders appellate review difficult for the litigants, as well as for the appellate court. Bennett v. Lugo, 368 N.J. Super. 466, 478 (App. Div.), certif. denied, 180 N.J. 457 (2004).

Here, the court's findings are insufficient and, in some respects, inconsistent with the evidence. The original contract price was $19,119.32. Defendants paid $16,600 on account. At one point during his testimony, plaintiff claimed $11,859.65 was outstanding. He later testified that $9749.65 remained due and owing. The judge entered judgment for the former amount without explanation.

Many of the renovations plaintiff claims to have made were made without a written change order. The judge did not address whether the contractor is entitled to payment for those oral change orders. See N.J.A.C. 13:45A-16.2(a)12 (changes in terms of home improvement contracts to be in writing). In addition, in our review of the record, we have been unable to determine how the judgment amount accounted for those change orders.

The judge also failed to address the construction lien against Neri's property. The court dismissed the complaint against her, but did not indicate what was to become of the lien.

Accordingly, we vacate the August 21, 2006 order and remand to the trial court to determine the amount due, if any, from Bittner to plaintiff, and to provide appropriate findings of fact and conclusions of law to support the amount of the judgment. The trial court should also address the disposition of the construction lien.

Reversed and remanded. We do not retain jurisdiction.


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