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Romano v. Mechanical

March 5, 2009

MARK ROMANO, PLAINTIFF-RESPONDENT,
v.
EEJ MECHANICAL, DEFENDANT,
AND FREDERICK J. FRITZ KOEBERT, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Camden County, Docket No. SC-13-08.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued January 12, 2009

Before Judges Carchman and R. B. Coleman.

This is an appeal from a final judgment entered in the Law Division, Special Civil Part, Small Claims Section in favor of plaintiff Mark Romano and against defendant Frederick J. Fritz Koebert in the amount of $2,000. The judgment represented the return of a deposit for HVAC work to be performed by defendant. Following a bench trial, the judge found plaintiff more credible than defendant and entered judgment. Defendant appealed. We now reverse and remand for a new trial.

The facts are briefly stated. On October 23, 2007, Koebert provided an estimate to Romano for the installation of a heating and air conditioning unit, referred to at trial as a "92EFI unit and 14 sear AC unit." The estimate, which was provided for on Koebert's letterhead, also called for Koebert to move an existing condenser unit. Apparently, at some point in November 2007, the plans changed, and (1) the existing unit no longer had to be moved by Koebert and (2) Koebert agreed to run a "chase" from an existing HVAC unit through the second floor roof for $300.00. These changes were reflected on the left-hand side of the estimate, which indicated that $2,000 was paid to Koebert as well as "BA/ 800 Includes Stack." The "800" figure appears to represent a $500 reduction in the estimate, plus $300 for running the chase through the second floor roof, bringing the actual total of the project to $2,800.

At trial, Romano indicated that a friend had recommended Koebert, and at the time Koebert provided the estimate, the parties understood that the project had to be completed by November 20 because Romano had his "original inspection date" on that day. Koebert orally indicated that he would begin the work on November 17, in order to meet the November 20 deadline; however, Koebert did not begin work on that date and did not respond to Romano's inquiries until November 19. The following day, Koebert began to work on the project, and Romano "was very happy" as the inspector informed Romano that he would not be coming to the house until November 27.

Allegedly, in light of the change in circumstances, the parties amended their agreement (on the reverse side of the original agreement) on or about November 19*fn1 to reflect Koebert's obligation to complete the project by November 26 "or full refund will be issued by Dec. 1st."

Romano further indicated that during the next few days, he attempted, to no avail, to contact Koebert. Finally, on November 25, Koebert returned to the site with his nephew and "[t]hey put in three boots," which are "where the -- the air returns from." According to Romano, no duct work was done. To illustrate this point, Romano provided the trial judge with photographs from his home reflecting the lack of progress.

Following Romano, the trial judge heard from Edward Polaski, a principal of defendant EEJ Mechanical. Polaski indicated that Koebert was formerly an employee of EEJ and had been terminated, in part, because the company learned that Koebert used its truck when working on other independent projects, including Romano's house. Based on that testimony, EEJ was dismissed from the suit.

Although Koebert did not controvert Romano's testimony regarding Koebert's lack of communication, he did contend that Romano told him "if you cannot finish this job one hundred percent tonight [the 25th] . . . don't come to my house." Koebert contends that after this statement was made, he tried to explain to Romano that there was no way the project would pass inspection because walls were not even "drywalled" and the furnace had to be "fire rocked."

Following that testimony, the following colloquy occurred regarding the amendment to the agreement:

THE COURT: Then why in the world would you have, on November 19th, signed, and I quote, knowing that --

THE DEFENDANT: I never signed that paper.

THE COURT: -- all work to be completed by November 26th or a full refund will be ...


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