On appeal from Superior Court of New Jersey, Law Division, Union County, Docket No. L-0164-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Lisa and Simonelli.
In this breach of contract case, defendant Tony Schiavone, d/b/a Seasonal World, appeals from the May 29, 2007 order entering judgment in the amount of $63,794.71 in favor of plaintiff ESPJ Construction Corporation (ESPJ). We affirm.
Giovanni Espejo (plaintiff) is a mason and the owner of ESPJ, a concrete installation service company. Defendant is the president of Seasonal World, which sold and installed in-ground swimming pools in private residences. There is no dispute the parties had an oral contract involving the pouring of three feet of cement around the pools defendant sold and installed; that plaintiff completed sixty-four jobs throughout the 2003 and 2004 "pool season" for which he was not paid; that defendant was paid by each homeowner $3000 for the three feet of cement plaintiff poured; and that plaintiff supplied the labor and materials for each job. The dispute here concerns the contract's terms.
Plaintiff claims the contract was for services, and the payment terms were as follows: (1) from the first $3000 defendant received from the homeowner, defendant would pay plaintiff $900 to pour and set the first three feet of regular concrete around each pool; (2) defendant would pay plaintiff an additional $500 for any cantilever edge work; and (3) if plaintiff obtained additional work directly from the homeowner, he would pay defendant a ten percent commission on contracts over $3000.*fn1 Defendant claims the contract was for the sale of concrete, pavers and blocks, and the payment terms were as follows: (1) he would pay plaintiff $800 per job only if plaintiff did not obtain a contract with a homeowner for additional work over $3000; and (2) plaintiff would pay defendant ten percent of the gross contract plaintiff obtained from the homeowners.
In support of his claim, plaintiff relied on summaries he prepared of the jobs completed in 2003 and 2004. He testified "[i]n great detail" about how he prepared summaries and calculated the amount defendant owed.*fn2 Plaintiff also testified that he prepared each summary in the regular course of his business during 2003 and 2004; sent them to defendant at the end of the pool season; discussed them with defendant, who said he gave them to his secretary to check if the charges were correct; repeatedly requested payment; and was never paid. The trial judge found plaintiff's testimony about the summaries credible, including his explanation about some mistakes they contained.
Defendant testified that he paid $11,400 to repair "several jobs that [plaintiff] screwed up while he was working for [defendant]," and made "several repairs" on completed jobs.*fn3
However, defendant admitted that he permitted plaintiff to complete the jobs, despite customer complaints, and to continue working until the end of their working relationship. Defendant also admitted that he never sought payment of his ten percent commission or the monies he expended to repair plaintiff's allegedly defective work.
The judge emphasized that "[t]he credibility and believability of all the witnesses was important in this"; that "Plaintiff's account of the terms of the contract [was] sincere and credible"; that plaintiff "testified, credibly"; and that "Plaintiff's testimony and Plaintiff['s] theory of the contract" and "Plaintiff's . . . rendition of the contract arrangement [was] more credible and plausible than Defendant's as to the first $900 owed." The judge found unbelievable defendant's claim that he only paid plaintiff if plaintiff did not get additional work from a homeowner over $3000 because:
First, it is undisputed that Plaintiff interacted with the homeowner. And it was up to Plaintiff to attempt to sell the extras over $3000.
If the Plaintiff was not paid for the first $3000, what would be his incentive to perform the work if he got no extras. The mere hope for additional work? The Court ...