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Unique Custom Landscaping v. Sterman

February 6, 2008

UNIQUE CUSTOM LANDSCAPING, PLAINTIFF-RESPONDENT,
v.
DALIT STERMAN, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Divison, Special Civil Part, Bergen County, Docket No. DC-13368-06.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted December 5, 2007

Before Judges Sapp-Peterson and Messano.

Defendant Dalit Sherman appeals from the trial court's judgment in favor of plaintiff Unique Custom Landscaping in the amount of $439.70, and the court's dismissal of her counterclaim brought under the Consumer Fraud Act, N.J.S.A. 56:8-1 through -20 (the CFA). Because of the inadequate findings of fact and unexplained conclusions of law reached by the trial judge, we reverse and remand the matter for a new trial.

We initially note the appeal is technically deficient and jurisdictionally defective. Defendant has apparently appealed from the trial judge's written decision of January 31, 2007, but if an order was ever executed, it is not part of defendant's notice of appeal, case information statement, or otherwise in the record. It is axiomatic that "[a]ppeals may be taken only from judgment or orders and not from opinions or decisions." Matter of Berkeley, 311 N.J. Super. 99, 101 (App. Div. 1998) (citing Heffner v. Jacobson, 100 N.J. 550, 553 (1985)); Pressler, Current N.J. Court Rules, comment 2.2.1 on R. 2:2-3 (2008). However, since plaintiff has not objected, each party briefed the substantive issues presented, and because a remand is required, we choose to ignore the technical defect and explain why the merits of the appeal cannot be reached on this record.

Plaintiff is a landscaping service that brought this action in the Law Division-Special Civil Part seeking to collect $2999.70 on a book account for services rendered and material it allegedly supplied to defendant. Defendant filed an answer denying the allegations, asserting certain affirmative defenses, and counterclaiming that plaintiff violated the CFA.

The matter was tried without a jury over two days. At the conclusion of the trial, the judge gave each side "an opportunity to submit in writing [their] summations . . . and brief as to the case law." Those materials are not part of the appellate record.

In his written decision, the judge adequately and with great detail summarized the evidence presented and the contentions of the parties. For example, regarding plaintiff's bill for services, the judge recounted the testimony of plaintiff's principal and his assistant. Since one of the disputed issues at trial was whether defendant should receive a credit for trees plaintiff planted that allegedly died within a one-year "warranty" period, the judge recounted the testimony of plaintiff and his expert regarding when and why the trees had died.

The judge then recounted defendant's version of the facts surrounding the trees, the original contract, and subsequent invoices for services that were at the heart of the dispute. He also recounted the testimony of defendant's expert. Noting defendant's contention that some of the services on the invoice were not authorized, the judge noted "[t]he difference between the . . . charges . . . and the [] authorized charges totals $2105.90. This would result in an outstanding balance in favor of the [p]laintiff in the sum of $893.80."

The judge then summarized defendant's allegations regarding "[eight] areas of liability" under the CFA, which included, among other things, a claim that the original contract was vague, was not signed by both parties, and otherwise violated the regulations promulgated under the CFA. He noted another of defendant's CFA claims related to plaintiff's decision to subcontract the sprinkler installation. The judge then summarized defendant's claims for damages as $7,200 for at least nine dead trees ($800/tree as [p]laintiff quoted their cost); $125[] for the hydrangea; $1,023.28 for the Arborvitaes and retaining wall, which [d]efendant argues should have been costs contained in the vague initial contract; and $300.00 for the missing decorative boulders.

Even though the first six and one-half pages of the judge's written decision are entitled, "Factual Findings and Parties' Contentions," it is clear to us that the judge failed to make any factual findings whatsoever. Rather, he simply recounted the testimony of both sides which, at many points, was directly contradictory.

The judge then concluded the opinion with his "Conclusions of Law," which, because of their brevity we quote in their entirety.

In light of the evidence presented at trial, and the arguments submitted by the parties in their post trial briefs, this Court finds as follows. [Plaintiff] shall reimburse [defendant] for the cost of the [six] trees that were lost prior to the expiration of the warranty. Additionally, [plaintiff] shall reimburse [defendant] for one-half of the cost of the flowers at issue. As the evidence presented regarding the decorative boulders was inconclusive, and neither party was able ...


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