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Kousmine v. Bostic

May 1, 2008


On appeal from Superior Court of New Jersey, Law Division, Cumberland County, Docket No. DC-2191-06.

Per curiam.


Argued February 27, 2008

Before Judges Lisa and Lihotz.

We review plaintiff's appeal from a bench decision dismissing her complaint and granting judgment to defendant on his counterclaim. Plaintiff argues the trial court misapplied the law and failed to make factual findings regarding her consumer fraud claims. We disagree and affirm.

Plaintiff Laura Kousmine t/a Taniment Construction contracted defendant Larry A. Bostic t/a LA Construction to perform various repair and renovation tasks to residential real property, which plaintiff purchased at Sheriff's sale. Plaintiff prepared a two-page document listing the items to be completed by defendant. Plaintiff would supply the necessary materials. The second page of the document concluded with this statement:

Taniment Construction LLC., has agreed to subcontract LA Construction to perform the work above on [plaintiff's property] for a total sum of $5000[]. Work will start immediately on February 15, 2006 and the estimated completion date is one month[]. A check for $1000[] has been given to LA construction to begin the project.

Thereafter, the parties dated the document and affixed their signatures. On the document, plaintiff signed on the line designated for LA Construction and defendant signed on the line designated for Taniment Construction. Also, a double-headed arrow was placed in the left margin adjacent to the signatures.

Defendant commenced performance of the work. He parked his truck and placed an LA Construction sign in front of the property. On approximately March 21, 2006, a disagreement arose between the parties regarding the quality of defendant's craftsmanship. Defendant ceased work. The following day, at an additional cost of $3,381, plaintiff hired her employee Andre, defendant's assistant, Herman Norwood, and others to complete the unfinished work and repair those areas she found unsatisfactory. The major uncompleted task was the renovation of the kitchen. The agreement provided that the rooms previously serving as the living room and kitchen would be switched. To make the new kitchen area viable, the gas, water and electric lines needed to be extended to that room.

In her amended Special Civil Part complaint, plaintiff asserted claims for breach of contract, fraud, and consumer fraud. Defendant filed a small claims complaint seeking $500 for payment due under the contract and $2,500 damages resulting from plaintiff's use of a racial epithet.*fn1 The two matters were consolidated.

Plaintiff's trial testimony elucidated the items she found unacceptable and in need of correction, as well as the completed work. Several photographs were introduced to illustrate her position. Also, she presented documentation verifying the expenses incurred to correct or complete the renovations.

Defendant offered Norwood as his witness. Norwood related that on the day of the parties' disagreement, plaintiff made a derogatory racial slur referring to defendant's work, "kicked [defendant] off the property" and defendant "didn't have a chance to finish." Plaintiff told defendant not to return. Norwood also opined that the work already completed by defendant was worth $10,000. Another worker, Mike Fleming, stated plaintiff told defendant to "get off her property before she called the police."

Defendant also testified on his own behalf. He narrated a videotape showing all the work he completed. Defendant challenged plaintiff's assertions regarding the quality of the work and expressed she exaggerated the identified imperfections, particularly in light of the scope of the entire project. Defendant was paid $4,500 by Taniment Construction in stages as plaintiff was satisfied with the work that he completed. Defendant insisted he told plaintiff he was unlicensed, which is why he signed the agreement on the line designated for Taniment Construction as plaintiff's employee.

The trial judge denied plaintiff's claim for damages, determining plaintiff "ordered [defendant] off the site," preventing his correction or completion of the contracted work. The court found defendant and Norwood credible and ...

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