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Kousmine v. Bostic

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


May 1, 2008

LAURA KOUSMINE T/A TANIMENT CONSTRUCTION, PLAINTIFF-APPELLANT,
v.
LARRY BOSTIC T/A LA CONSTRUCTION, DEFENDANT-RESPONDENT.

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

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

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 awarded defendant the balance of the contracted sum of $500.

Prior to the trial judge's determination of plaintiff's asserted claims, pursuant to the Consumer Fraud Act (CFA), N.J.S.A. 56:8-1 to -184, counsel stated: "It's not an issue anymore, Your Honor." In essence, plaintiff stated any CFA issue was rendered moot by the judge's conclusion that plaintiff suffered no ascertainable loss. Nevertheless the trial judge afforded plaintiff the opportunity to brief the issue reserving final determination for seven days. Plaintiff then filed a motion for reconsideration regarding the CFA claim and other issues, which the trial judge denied.

When reviewing judicial factfinding in a non-jury trial, our scope of review is limited. Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974). We determine whether the findings made are reasonably supported by adequate, substantial, credible evidence present in the record. Ibid.; Fanarjian v. Moskowitz, 237 N.J. Super. 395, 406 (App. Div. 1989). A trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference. Manalapan Realty v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

In this matter, the trial evidence, which includes the trial judge's credibility determinations, well supports his factual determinations. Plaintiff sued for breach of contract yet her conduct of banning defendant from the job site rendered him unable to complete the contract. "'[One] who prevents a thing from being done may not avail himself of the non-performance which he himself has occasioned.'" Gaines v. Monroe Calculating Mach. Co., 78 N.J. Super. 168, 179 (App. Div. 1963) (quoting Abeles v. Adams Eng'g Co., 64 N.J. Super. 167, 178 (App. Div. 1960), modified on other grounds, 35 N.J. 411 (1961)); Ward v. Merrimack Mut. Fire Ins. Co., 332 N.J. Super. 515, 522 (App. Div. 2000).

Plaintiff's prevention of continued performance by defendant allows him to request damages resulting from her breach. The covenant of good faith and fair dealing mandates that one party shall not act to destroy or injure the right of the other party to receive the fruits of the contract. Sons of Thunder, Inc. v. Borden, Inc., 148 N.J. 396, 420 (1997). Based upon our review, we discern no basis to disturb the trial judge's factual findings or legal conclusions resulting therefrom.

We find plaintiff's remaining arguments are without sufficient merit to warrant discussion in a written opinion, Rule 2:11-3(e)(1)(E), except to add this brief comment regarding plaintiff's claimed technical violation of the CFA.

At trial, plaintiff was given full opportunity to present this issue and afforded one week to provide a brief on the legal claim to assist the trial judge in making his determination. Plaintiff's counsel failed to do so and then raised the issue on reconsideration. Moreover, in the reconsideration motion, plaintiff raised additional CFA issues not simply the initially asserted violation of N.J.S.A. 56:8-151. Procedurally this is improper. "Reconsideration cannot be used to expand the record and reargue a motion. Reconsideration is only to point out 'the matters or controlling decisions which counsel believes the court has overlooked or as to which it has erred.'" Capital Fin. Co. of Del. Valley, Inc. v. Asterbadi, 398 N.J. Super. 299, 310 (App. Div. 2008) (quoting R. 4:49-2).

Here, plaintiff's failure to comply as directed by the trial judge to submit a brief addressing the CFA allegations amounts to a waiver of the claim. Contrary to the assertion made on reconsideration, the trial court did not incorrectly rule on this issue. The judge was denied that opportunity because plaintiff declined to present the matter. Reconsideration is a matter to be exercised in the trial court's sound discretion. Johnson v. Cyklop Strapping Corp., 220 N.J. Super. 250, 257 (App. Div. 1987), certif. denied, 110 N.J. 196 (1988). Under the circumstances presented, we do not discern an abuse of discretion in the trial judge's denial of plaintiff's motion for reconsideration.

Affirmed.


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