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Nejmeh v. Forbes

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


November 10, 2008

MARK NEJMEH, PLAINTIFF-APPELLANT,
v.
DOUG FORBES AND ELENA MATYAS, A/K/A ELENA FORBES, DEFENDANTS-RESPONDENTS.

On appeal from the Superior Court of New Jersey, Law Division, Special Civil Part, Monmouth County, Docket No. L-1192-06.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted: August 20, 2008

Before Judges A.A. Rodríguez and C.L. Miniman.

Plaintiff Mark Nejmeh appeals from a judgment entered in favor of defendants Doug Forbes and Elena Matyas dismissing his complaint for money due and owing for home repairs and awarding defendants $22,146.14 as trebled damages, attorney's fees, and costs pursuant to the Consumer Fraud Act (CFA), N.J.S.A. 56:8-1 to -181. We affirm.

Plaintiff, in a complaint filed on October 28, 2005, in the Special Civil Part, sought to recover $8,419.32 for labor and materials supplied to defendants for renovations and repairs made to their newly acquired, unoccupied home in Asbury Park. On December 12, 2005, defendants answered the complaint and counterclaimed, alleging that plaintiff failed to comply with N.J.A.C. 13:45A-16.2 requiring a written contract for home repairs, an unlawful practice under the CFA. They also alleged negligent performance of the work, breach of contract, and assault, seeking an award of punitive damages. Defendants' motion to transfer the case to the Law Division was granted on February 3, 2006, and on May 3, 2006, they requested entry of default on the counterclaim. Default was entered on the next day. Plaintiff did not answer the counterclaim until October 6, 2006. A bench trial was conducted on October 9, 10, 11, and 12, 2007, and the judge placed his decision on the record on October 31, 2007, entering a final judgment that day.

Initially, the judge addressed the credibility of the witnesses. In assessing the credibility of plaintiff and his secretary, the judge found that their recollections were uncertain in many respects and that this uncertainty was compounded by the lack of documentation respecting the nature and scope of work, materials to be utilized, and the schedule for performance and completion. Additionally, plaintiff's lack of recollection was evidenced sometimes by contradictory statements. As a result, the judge found that the affirmative value of plaintiff's testimony was negatively affected. The judge found defendant Forbes, on the other hand, to be honest and direct, and his "recollection of critical events [was] more precise and his statements [were] documented by the exhibits submitted."

The parties entered into an agreement in August 2004 to have plaintiff perform certain home improvement services. Plaintiff did not prepare or submit a written contract for the services. Plaintiff was to build a four-by-five-foot extension of defendants' kitchen into the porch by adding a header and connect the support beams, enclosing two exterior walls; inserting French doors in the south wall, reinsulating, and installing sheet rock on the interior. The price for the work was $750 for demolition, $250 to remove the siding from the original kitchen wall, and $7000 for the kitchen construction, including installation of ceramic flooring.

The kitchen demolition began sometime before September 15, 2004, when Asbury Park issued a stop-construction order for failure to obtain a construction permit. After the initial work began, the parties agreed to expand the scope of work to other areas in the home. Plaintiff agreed to renovate the upstairs bath and charged $650 for demolition, $6500 for installation of basic fixtures, sheet rock, and paint as well as $700 for a skylight, $450 for a cathedral ceiling, $475 for a new exterior window, $600 for a glass-block window, and $600 for a pocket door. The parties also agreed to the following additional work to be done by plaintiff for which plaintiff charged the following sums: $3000 for basement structural work, $200 to block up the basement window, $1200 to upgrade the passage to the basement, $400 for patching walls, $300 for sealing gas-light-fixture lines, $1500 for a new dining room wall, $1200 for installing an archway from the kitchen to the dining room, $2400 for miscellaneous plumbing work, and $4000 for painting the house.

Plaintiff did not provide defendants with any written contract for the home-improvement work or any written change orders. As a consequence, the materials to be used, the scope of work to be done, the timetable for completion, and any responsibilities of defendants were never established. He did not give defendants a written notice of the reasons for any delay in performance, stating when the work would be completed. He began the work without a construction permit and did not secure required inspections, thus evading inspection of the footings for the structural work in the basement. He did improper work in the dining room, which had been damaged by the kitchen demolition and renovations. Although defendants did not ask him to perform any work on the heating system, he dismantled ducts in the basement without any permit and without being a licensed plumber. He did not provide defendants with copies of the inspection certificates before demanding payment of the balance due.

When the project was nearly complete, defendants were cited by Asbury Park on November 1, 2004, for failing to remove the debris in a timely manner, leading to an argument between the parties. Defendants were also angry over delays in the progress of the work and dissatisfied with its quality. As a result, defendants ordered plaintiff off the job and hired other contractors to complete the work.

The total sum for the work to be done by plaintiff was $32,175. Plaintiff admitted that he did not install the ceramic floor in the kitchen and that defendants were entitled to a credit of $2300. The parties stipulated that defendants paid plaintiff a total of $21,430. However, defendants refused to pay plaintiff the balance of the agreed price--$8445.

Some of the materials used by plaintiff were different than defendants expected or more expensive; others were substandard. Some work was done by plaintiff that was not requested by defendants. Because plaintiff failed to obtain required permits and inspections, his structural and plumbing work had to be repaired to meet code requirements. When plaintiff was removed from the project, the shower and heat were not operational and defendants were forced to stay at a Days Inn in Neptune for four days, which cost $325.51, because the lease on their apartment had expired. They also had to board their pet at a cost of $291.36. They expended $350.46 for removal of construction debris and $215 to reconnect duct work that plaintiff removed and did not properly reinstall. Additional remedial work on the ducts cost $1175. Repair of the basement footings cost $600. Remedial work in the kitchen cost $3000. Remediation and completion of the plumbing work cost $1458. Defendants also could not use a custom cabinet over the refrigerator costing $434.60 because the ceiling height constructed by plaintiff had to be lowered to comply with code requirements. They also incurred $250 for materials to repaint areas in the home that plaintiff improperly painted.

The judge concluded the plaintiff was entitled to be paid for the work he completed and found that $8445 was due and owing plaintiff because he performed a substantial amount of the work, which was nearly complete when defendants ordered him off the job. The judge also determined that plaintiff violated N.J.A.C. 13:45A-16.2(7)(iii), -16.2(10), -16.2(11), and -16.2(12), which violations constituted unfair practices in violation of N.J.S.A. 56:8-2, for which defendants were entitled to recover their ascertainable losses under Cox v. Sears Roebuck & Co., 138 N.J. 2, 18-19 (1994).

The judge then found that the total amount expended by defendants to correct and complete the work was $8139.63 plus $200 for damage done by plaintiff to a glass table top. Although no affidavit of counsel was submitted as part of defendants' proofs as required by Rule 4:42-9(b), the judge relaxed that rule under Rule 1:1-2 and found that, before defendants filed a substitution pro se, they expended $8017.25 on counsel fees and costs, the quantum of which plaintiff had not disputed during the proceedings. The judge determined under a lodestar analysis that defendants' reasonable counsel fees and costs were $5,972.25. The judge then trebled the $8139.63 figure, deducted the amount due plaintiff, and added the $5,972.95 in counsel fees and costs together with $200 for the damage to the glass table top for a net judgment of $22,146.14. This appeal followed.

Plaintiff contends that expert testimony was required to establish much of defendants' damages and that defendant Forbes's testimony is insufficient to sustain the award. He specifically contends that expert testimony was required respecting the awards of $600 for repairs to the basement footings and $1458 for remediation and completion of the plumbing work. He urges that the judge relied on inadmissible hearsay in making those awards and in awarding $1175 for remedial work on the ducts. Plaintiff contends that the award of damages is inherently inconsistent because the judge found that he was entitled to be paid for the work he did, yet found that his work was defective and incomplete. He argues that the trial was rife with plain error because the judge allowed a substantial amount of hearsay testimony, did not require expert testimony, and "was leading the defendants." Finally, he urges that the judge erred in waiving the requirement for an affidavit of services and costs by the attorney who initially represented defendants.

Our appellate review is limited by well settled, controlling principles. Sebring Assocs. v. Coyle, 347 N.J. Super. 414, 424 (App. Div.), certif. denied, 172 N.J. 355 (2002). "We are not to review the record from the point of view of how we would have decided the matter if we were the court of first instance." Ibid. (citation omitted). "Findings by the trial judge are considered binding on appeal when supported by adequate, substantial and credible evidence." Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974) (citation omitted); see also Sager v. O.A. Peterson Constr. Co., 182 N.J. 156, 163-64 (2004).

"[W]e do not disturb the factual findings and legal conclusions of the trial judge unless we are convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice." Fagliarone v. Twp. of No. Bergen, 78 N.J. Super. 154, 155 (App. Div.) (citation omitted), certif. denied, 40 N.J. 221 (1963); see also Metuchen Sav. Bank v. Pierini, 377 N.J. Super. 154, 161 (App. Div. 2005). It is not our function to weigh the evidence. Cintrone v. Hertz Truck Leasing & Rental Serv., 45 N.J. 434, 440 (1965). Neither do we "determine the credibility of witnesses, draw inferences and conclusions from the evidence, or resolve conflicts therein." Penpac, Inc. v. Passaic County Utils. Auth., 367 N.J. Super. 487, 507 (App. Div. 2004) (quotation omitted), certif. denied, 180 N.J. 457 (2004). This is so because we are not in a good position to judge credibility and ordinarily should not make new credibility findings. Trusky v. Ford Motor Co., 19 N.J. Super. 100, 104 (1952); Dolson v. Anastasia, 55 N.J. 2, 7 (1969). "Rather, our aim is to determine whether the findings made could reasonably have been reached on sufficient credible evidence present in the record." Sebring Assocs., supra, 347 N.J. Super. at 424 (quotation omitted). Indeed, we exercise our original fact-finding jurisdiction sparingly and only in a clear case where there is no doubt about the matter. Greenfield v. Dusseault, 60 N.J. Super. 436, 444 (App. Div. 1960), aff'd o.b. 33 N.J. 78 (1960).

"While we will defer to the trial court's factual findings so long as they are supported by sufficient, credible evidence in the record, our review of the trial court's legal conclusions is de novo." 30 River Court East Urban Renewal Co. v. Capograsso, 383 N.J. Super. 470, 476 (App. Div. 2006) (citing Rova Farms, supra, 65 N.J. at 483-84; Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

After carefully reviewing the record in the light of the written arguments advanced by the parties, we conclude that the issues presented by plaintiff are without sufficient merit to warrant extensive discussion in this opinion, R. 2:11-3(e)(1)(A), (E), and we affirm substantially for the reasons expressed by the trial judge in his oral opinion delivered on October 31, 2007. The findings and conclusions of the judge are supported by substantial, credible evidence in the record. See Rova Farms, supra, 65 N.J. at 483-84.

In addition, we note that plaintiff does not assert any error in the judge's conclusion that plaintiff violated N.J.A.C. 13:45A-16.2(7)(iii), -16.2(10), -16.2(11), and -16.2(12), that these violations constituted unfair practices in violation of N.J.S.A. 56:8-2, and that defendants are entitled to recover their ascertainable losses under Cox, supra, 138 N.J. at 18-19.

The cases on which plaintiff relies in contending that expert testimony was required are inapposite. In Kelly v. Berlin, 300 N.J. Super. 256, 264-66 (App. Div. 1997), we discussed the need for expert testimony in the ordinary malpractice case. In Giantonnio v. Taccard, 291 N.J. Super. 31, 42-43 (App. Div. 1996), we concluded that expert testimony was required to establish the standard of care applicable to a funeral home with respect to the issue of the alleged failure to procure a police escort for the funeral procession. We stated that test for deciding whether an expert was required as follows:

The test for determining whether expert testimony is required is whether the matter under consideration is so esoteric or specialized that jurors of common judgment and experience cannot form a valid conclusion. The facts of a given case may be such that a layperson's common knowledge is sufficient to permit a jury to find that the duty of care has been breached without the aid of an expert's opinion. [Id. at 43 (citations omitted).]

We find no error here in relying on the lay testimony of defendant Forbes, especially because much of the expense they incurred was a result of plaintiff's failures to secure permits and periodic inspections. Those failures prevented defendants from occupying the home until all repairs mandated by Asbury Park were completed to its satisfaction. This evidence was more than sufficient to support the elements of damages raised by plaintiff.

With respect to the award of attorney's fees and costs, plaintiff does not dispute the mandate of N.J.S.A. 56:8-19 that, in addition to ascertainable losses, "the court shall also award reasonable attorneys' fees, filing fees and reasonable costs of suit." An award of counsel fees permitted by statute is subject to Rule 4:42-9(a)(8). As such, "all applications for the allowance of fees shall be supported by an affidavit of services." R. 4:42-9(b). We have held that an affidavit is ordinarily a prerequisite to an allowance of fees. See Glen v. June, 344 N.J. Super. 371, 381-82 (App. Div. 2001). Yet, we have affirmed an award of fees were the affidavit was technically defective. Elizabeth Bd. of Educ. v. N.J. Transit Corp., 342 N.J. Super. 262, 272-73 (App. Div. 2001).

The affidavit requirement of Rule 4:42-9(b) was relaxed by the judge pursuant to Rule 1:1-2. That rule provides in perti- nent part: "Unless otherwise stated, any rule may be relaxed or dispensed with by the court in which the action is pending, if adherence to it would result in an injustice," because the overriding purpose of the rules is "to secure a just determination, simplicity in procedure, fairness in administration and the elimination of unjustifiable expense and delays." Ibid.; see also Ragusa v. Lau, 119 N.J. 276, 283-84 (1990). We have cautioned that Rule 1:1-2 should be used sparingly, "particularly in an area where the rule-makers have already spoken." Stewart Title Guar. Co. v. Lewis, 347 N.J. Super. 127, 137 (App. Div. 2001) (citing Oliviero v. Porter Hayden Co., 241 N.J. Super. 381, 387 (App. Div. 1990). This is so because "frequent or freewheeling use of R[ule] 1:1-2 would lead to a sublimation of all other rules, allowing decisions to be rendered on nothing more than a gestalt-like methodology." Stewart, supra, 347 N.J. Super. at 137.

The relaxation of a rule is committed to the sound discretion of the trial judge and we review the exercise of that discretion only for an abuse. See Schweizer v. Phee, 130 N.J. Super. 123, 126-27 (App. Div. 1974) ("Since [Rule 1:1-2] relaxation is discretionary with the trial judge . . ., we have reviewed the matter to the end of examining the exercise of discretion below . . . ."). We will not interfere unless the judge has "pursue[d] a manifestly unjust course." Gillman v. Bally Mfg. Corp., 286 N.J. Super. 523, 528 (App. Div.) (quoting Gittleman v. Cent. Jersey Bank & Trust Co., 103 N.J. Super. 175, 179 (App. Div. 1967), rev'd on other grounds, 52 N.J. 503 (1968)), certif. denied, 144 N.J. 174 (1996). Stated otherwise, we will defer to all but mistaken exercises of discretion that prejudice the substantial rights of a party. Pressler, Current N.J. Court Rules, comment 4 on R. 1:1-2 (2009).

We are satisfied that there was no prejudice to any substantial rights of plaintiff. He did not dispute the reasonableness of the fees charged by defendants' counsel at the time of trial and does not raise such an issue on appeal. Rather, he merely asserts that an affidavit of services should have been required. Had the judge required such an affidavit, it would have increased the expense to plaintiff as counsel is entitled to be compensated for the time spent in preparation of an affidavit of services. Courier News v. Hunterdon, 378 N.J. Super. 539, 547 (App. Div. 2005) (citations omitted). Such an expense would have been completely unjustified where no dispute about the reasonableness of the fees was raised and, thus, enforcement of Rule 4:42-9(b) would have been to plaintiff's prejudice. Furthermore, the judge conducted a careful and thorough lodestar analysis pursuant to Furst v. Einstein Moomjy, Inc., 182 N.J. 1, 22-23 (2004) (discussing calculation of lodestar in a CFA action), and Rendine v. Pantzer, 141 N.J. 292, 332-37 (1995) (discussing calculation of lodestar in a discrimination action). He excluded well over $1000 from the fees charged by defendants' counsel and considered each of the factors delineated in Rule of Professional Conduct 1.5(a), incorporated by reference in Rule 4:42-9(b). We find no error in his allowance of fees.

Affirmed.

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