February 23, 2009
SAXONY ICE CO., DIVISION OF SPRINGDALE ICE CO., INC., PLAINTIFF-RESPONDENT,
INTERCOUNTY ENTERPRISES, LLC, D/B/A JOSE O'REILLY'S, DEFENDANT-APPELLANT.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 sufficient to establish damages on the part of the defendants.
Crediting plaintiff's testimony, the judge found:
When the Court balances the testimony of the plaintiffs' expertise against the testimony of the defendants, I find that the defendants' testimony is severely lacking in terms of expertise which would negate the plaintiff's position that, in fact, the system was installed and the system was working properly according to their contractual obligation. They came back several times. . . . But obviously I accept the testimony of the [plaintiff's] installer, Mr. Dietz, who indicated that he was back there at least seven or eight times. And he indicated he personally tested it when it was first installed in August 2006.
He found that the temperature was acceptable within the normal range on both . . . the particular occasions [evidenced by job work orders.] I find that this testimony certainly in the area of expertise is more credible than that of the defendants in this case.
And finally, in contrast, the judge found defendant's version not credible and frankly, implausible:
Probably one of the biggest issues that compels me to find against the defendant in favor of the plaintiff is the fact that this system was installed in 2006 and we're here now in February -- in January of 2008 and the system still has not been corrected. If I would accept the . . . documentation that the system can be corrected for $4700, why am I faced with . . . testimony that there's been a loss of over $50,000 in terms of beer spillage since the time this . . . happened. Certainly there's got to be a mitigation of damage on the part of the . . . defendant. That . . . still has not been corrected to this day.
Accordingly, the judge entered judgment in favor of plaintiff in the amount of $5465, from which this appeal is now taken. On appeal, defendant raises the following issues:
I. A. THE TRIAL COURT ERRED IN IGNORING DEFENDANT'S TESTIMONY.
B. THE COURT INCORRECTLY INFERRED THAT REPRESENTATIVES OF THE DEFENDANT'S BUSINESS ADJUSTED THE REGULATORS.
C. THE COURT INCORRECTLY DENIED DEFENDANT'S INTRODUCTION OF RELEVANT AND PROBATIVE EVIDENCE.
D. THE COURT ERRED IN FINDING THE DEFENDANT'S DAMAGES TOO SPECULATIVE.
II. THE TRIAL COURT ERRED NOT FINDING THAT THE PLAINTIFF MATERIALLY BREACHED THE CONTRACT.
We have considered these issues in light of the record and argument of counsel and are satisfied that none of them is of sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(A) and (E). Accordingly, we affirm substantially for the reasons stated by the trial judge in his oral decision of January 24, 2008, and his written opinion of April 7, 2008.
Suffice it to say, considering the limited scope of our review in a non-jury case, we are satisfied that the findings of the trial judge, in which matters of credibility were clearly involved, are supported by adequate, substantial and credible evidence. Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 483-84 (1974).
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