On appeal from the Superior Court of New Jersey, Special Civil Part, Bergen County, Docket No. DC-016248-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 29, 2009
Before Judges Parrillo and Messano.
Defendant, Intercounty Enterprises, LLC d/b/a Jose O'Reilly's, appeals from a judgment entered in favor of plaintiff, Saxony Ice Co., Division of Springdale Ice Co., Inc. (Saxony), following a bench trial in the Special Civil Part. We affirm.
Defendant operates a restaurant and bar in Norwood, New Jersey, and in August 2006 contracted with plaintiff for the installation of a beverage cooling system and beer taps at a cost of $15,515. Installation of the beer delivery system was completed in four or five days, in time for the tavern's September 12, 2006 opening, and consisted of three beverage lines running to certain bar locations, the furthest of which was about 150 feet from the beer barrels, servicing twelve taps.
Defendant made partial payment, but withheld the balance of $5465, complaining that the 150-foot line never worked properly and that the tap at the end of this line would discharge foam instead of cold beer. According to Finten Seely, who owned the restaurant/bar, every day the tap discharged two to three pints of foam from each keg before the tap would run correctly, totaling about twenty-four to thirty pints of foam daily. Based on a 38-day sampling of defendant's inventory control records (spill sheets), it was estimated that beer spill damage to date was in excess of $50,000. Despite the amount of the claimed loss, however, defendant never remedied the alleged problem, which, by his own estimate, would have cost only $4700.
Plaintiff denied any defect in the system it installed. In response to defendant's complaints, plaintiff's representatives returned several times only to find, according to Richard Dietz, plaintiff's mechanical beer installer, that the GLICO units he installed were running at the ideal temperature of 28/30°, and that foam is produced when beer rises above 38/39°. As Dietz explained:
It means the GLICO is running through the lines at 30 degrees. This is a return temperature. So that's when the GLICO comes back to the unit, it's at 30 degrees.
[GLICO is] like an anti-freeze. What it does is it keeps the beer cold inside the beer trunk line. So from when the beer leaves the walk-in box it's refrigerated all the way to the towers.
Dietz also checked the walk-in box, which was running at 40°. On each of his inspections, Dietz found the system problem-free and the beer was "pouring great." He did find, however, that on several occasions, the regulator box, which controls the temperature and is routinely adjusted by bartenders and others, was "out of adjustment." He opined that other reasons for pouring warm beer might be maintaining the walk-in box at a higher temperature, and the fact that the "keg just being delivered and not being cold." According to Dietz, the length of the line would not affect the temperature of the beer.
As noted, plaintiff sued defendant on a book account claim, seeking the unpaid balance of $5,612.55. Defendant counterclaimed, alleging common law fraud, statutory consumer fraud, breach of contract and unjust enrichment. At the close of evidence, the trial judge dismissed the counterclaims "in their entirety," finding no evidence of fraud or plaintiff's breach of the parties' contract. As to the latter, the judge concluded:
I find that the plaintiffs [sic] did fulfill the terms of their contract. They did exactly what they were -- what they're engaged to do in the contract. And . . . as an alternative matter, I don't find that there's been any proof in front of me ...