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Welzel v. Cockerill

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


May 30, 2008

DANIEL A. WELZEL, SR., PLAINTIFF-APPELLANT,
v.
KENNETH AND JENNIFER COCKERILL, DEFENDANTS-RESPONDENTS.

On appeal from the Superior Court of New Jersey, Law Division, Gloucester County, Docket No. L-883-04.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted March 12, 2008

Before Judges Wefing and Parker.

Plaintiff Daniel A. Welzel, Sr., appeals from a judgment entered on July 9, 2007 in favor of defendants on the counterclaim. The judgment for treble damages, pursuant to the Consumer Fraud Act, N.J.S.A. 56:8-1 to -106, amounted to $5,430. The complaint was dismissed with prejudice.

This case arises out of a home improvement contract between plaintiff, a roofing and siding contractor, and defendants, Kenneth and Jennifer Cockerill, the homeowners who contracted for a new roof and siding after a storm had damaged their home. The parties entered into a contract on October 17, 2003.

Thereafter, plaintiff advised defendants that the contract was priced incorrectly and asked them to sign a new contract on November 29, 2003. The second contract was for the same price but specified substantially different work; specifically, the November 29, 2003 contract provided for a "nail over existing roof" instead of tearing off and replacing the roof, as specified in the original contract, and did not provide for the contractor to haul the debris away, which was included in the original contract. Defendants signed the new contract and paid one-half of the total contract price as a down payment.

When the job was completed and plaintiff sought final payment, defendants disputed what should have been included. Defendants maintained that plaintiff represented that fascia, soffets and gutters were to be included in the price. Plaintiff claimed they were not and provided defendants with a new contract for fascia, soffets and gutters. The defendants never signed that contract and the work was not performed. Defendants never paid the remainder on the contract price and plaintiff filed a complaint in Special Civil Part to collect $3,187.50 due and owing on the contract.

In their answer and counterclaim, defendants alleged breach of contract and consumer fraud. The case was ultimately transferred to the Law Division and the parties conducted discovery before the bench trial. After considering the evidence, the trial judge rendered her decision on the record, noting the differences between the first and second contract. The judge found that defendants were young, inexperienced homeowners, while plaintiff, who had forty-five years experience, underbid the job and changed the terms of a valid home improvement contract in violation of the Consumer Fraud Act. The judge stated, "If in fact a job is underbid, it is the bidder who bears that risk." The judge found that, "The [p]laintiff [has] not done a good job in proving damages." Plaintiff testified that he paid for a dumpster to haul the material away but he did not introduce any evidence as to the exact cost of the dumpster. There was testimony that a leak existed after the roof was replaced but defendants presented no evidence as to the cost to repair the leak.

The judge concluded that, "This is a horribly botched job, which begins with an underbidding and then continues with a . . . . lack of finishing or having an acceptance signed by the homeowners." This conduct by plaintiff justified defendants' withholding the balance of the payment.

In assessing damages, the judge determined that defendants had to hire other contractors to complete work on the soffets, fascia and gutters at a cost of $3,050. Defendants' insurance carrier reimbursed them $1,240, which when subtracted from the $3,050 defendants paid to other contractors to complete the work, left a remainder of $1,810, trebled under the Consumer Fraud Act, for a total of $5,430 in damages.

In this appeal, plaintiff argues that the trial court erred because defendants "failed to establish any proof of negligence or breach of contract."

We have carefully considered the record in light of plaintiff's argument and the applicable law and we are satisfied that it lacks sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). The judgment of the trial judge was based on findings of fact that were adequately supported by the evidence. R. 2:11-3(e)(1)(A); Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 483-84 (1974). We affirm substantially for the reasons set forth on the record of July 9, 2007 by Judge Anne McDonnell. Nevertheless, we add the following comment.

The evidence here clearly establishes that the job was poorly done and that the initial contract entered into by the parties on October 17, 2003 was not honored. We agree with the trial judge that if the contractor underbid the job, he bears the risk of the loss. See N.J.S.A. 56:8-22.

Moreover, defendants were not required to present expert testimony to demonstrate that plaintiff failed to honor the contract and complete the job as originally bid.

Affirmed.

20080530

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