February 6, 2008
UNIQUE CUSTOM LANDSCAPING, PLAINTIFF-RESPONDENT,
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.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 to show any legitimate damages arising therefrom, it is the opinion of this Court that the issue of the boulders is moot.
Finally, this Court does not find a violation of the [CFA] on the facts presented. This Court finds that the contract was sufficient, that the delegation of the irrigation-system work to a subcontractor was reasonable and permitted, and that the installation of same was satisfactory.
Based on the forgoing, this Court sees fit to credit $2,560.00 to [d]efendant. As [p]laintiff's claim was for a total of $2997.70, judgment is entered in favor of [p]laintiff in the amount of $439.70.
Though he never explicitly stated it to be the case, we assume the judge dismissed defendant's counterclaim for violation of the CFA.
On appeal, defendant argues two points. First, she contends the judge's conclusion that plaintiff did not violate the CFA was erroneous as a matter of law. Second, she argues that the judge's determination of damages was confused and inconsistent with the evidence adduced.
Defendant introduced evidence that the original contract violated certain regulations promulgated under the CFA regarding home improvement contracts. N.J.A.C. 13:45A-16.1 and 16.2. Yet, the judge failed to set forth any factual determinations in this regard, and furthermore failed to explain his reasoning, other than to say, "the contract was sufficient." However, violations of the regulations promulgated under the CFA are themselves unlawful practices and provide an independent basis for liability under the statute. Cox v. Sears Roebuck & Co., 138 N.J. 2, 18 (1994). In such circumstances, "[i]intent is not an element of the unlawful practice, and the regulations impose strict liability for such violations." Ibid. However, since the judge made no specific finding whether the regulations applied and whether they were violated, we have no way to evaluate the merits of defendant's claim.
Moreover, the judge may have concluded, at least to some extent, that defendant had not suffered an "ascertainable loss" as a result of plaintiff's alleged violations of the CFA. N.J.S.A. 56:8-19. At least with respect to the sprinkler installation issue, he noted, "the installation of [the system] was satisfactory." Unfortunately, we cannot discern whether the judge was extending that conclusion to the balance of defendant's CFA claims.
Defendant's second point on appeal serves to highlight even further the inadequacy of the judge's "findings" and conclusions of law. She notes the judge determined that she was entitled to a credit of $2560 based upon "the cost of the [six] trees that were lost prior to the expiration of the warranty," and "one-half of the costs of the flowers at issue." Yet, this calculation is hard to square with any of the testimony in the case. As defendant notes, she claimed eight or ten trees subject to warranty died, while plaintiff claimed, according to the judge's recitation of the testimony, only three died during warranty. Defendant also notes that the cost per tree was testified by plaintiff to be $800, yet, if the judge was crediting her with six trees, her total credits would have exceeded the amount the judge awarded. In short, the calculations that led to the judge's bottom-line amount of credits due defendant were never adequately explained.
We think it is clear that the judge did not make factual findings based upon his assessment of the witnesses' credibility or the evidence as a whole. Rather, his written opinion is a recitation of each party's contentions and the proofs they marshaled in support of those positions. The Supreme Court long ago noted,
In a non jury civil action, the role of the trial court at the conclusion of the trial is to find the facts and state conclusions of law. R. 1:7-4. Failure to perform that duty "constitutes a disservice to the litigants, the attorneys and the appellate court." Kenwood Assocs. v. Bd. of Adj. Englewood, 141 N.J. Super. 1, 4 (App. Div. 1976). Naked conclusions do not satisfy the purpose of R. 1:7-4. Rather, the trial court must state clearly its factual findings and correlate them with the relevant legal conclusions. [Curtis v. Finneran, 83 N.J. 563, 569-70 (1980).]
While we will not disturb the findings and conclusions of the trial judge if they are supported by substantial, credible evidence in the record, Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 483-84 (1974), we cannot on this record determine what those findings were and we cannot determine what findings support the legal conclusions the judge reached.
The record presents clear factual disputes that largely turn on credibility determinations. Although determinations of credibility necessarily rest upon intangible qualities, such as demeanor, and do not translate easily into descriptive phrases, the judge nonetheless must decide and state, in general terms, what testimony is worthy of his belief. See State v. Locurto, 157 N.J. 463, 474-75 (1999) (holding general statements as to credibility findings are sufficient).
If the issues presented were primarily legal in nature, we might attempt to resolve the merits of defendant's appeal on the record that exists. See Gothic Const. Group, Inc. v. Port Authority Trans-Hudson Corp., 312 N.J. Super. 1, 8 (App. Div. 1998) (eschewing remand and proceeding to appellate review of the merits despite the lack of adequate factual findings because the issue was "largely one of law"). The factual disputes here, however, are at the core of this litigation. Even defendant's CFA claim, though largely dependent upon documentary proof, is not capable of resolution on this record because it too necessitated factual determinations dependent upon credibility findings. Moreover, as we have already mentioned, we cannot discern why the judge determined plaintiff had not violated the CFA, and whether that determination is justified based upon his assessment of the evidence. In short, we are unable to resolve the factual disputes on appellate review and therefore remand the matter.
We reverse the judgment entered in favor of plaintiff, vacate the dismissal of defendant's counterclaim alleging violations of the CFA, and remand the matter for a new trial. We do not retain jurisdiction.
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