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Ippolito v. Jeffrey Angelo Construction Co.

May 20, 2009


On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Docket No. L-1352-06.

Per curiam.


Argued April 27, 2009

Before Judges Lisa and Reisner.

Plaintiff, Iris G. Ippolito, sued Jeffrey Angelo Construction Company, Inc. (defendant) and its principal, Jeffrey Folino (Folino), in a dispute arising out of her contract with defendant for the construction of a home for her. Defendant counterclaimed. On April 11, 2008, after a bench trial, the court entered judgment against plaintiff in favor of defendant in the amount of $22,118.10. Plaintiff appeals. She argues that the judge erred in not enforcing the written contract terms and in awarding damages to defendant under principles of quantum meruit. We reject plaintiff's arguments and affirm.

Plaintiff hired defendant to construct a single-family home as her personal residence. Defendant prepared a proposal which specified a contract price for the construction, to include all material and labor, of $277,940. The proposal further provided that "[a]ny alteration or deviation from the following specifications involving extra costs will be executed only upon written orders, and will become an extra charge over and above the estimate."

Because the architect's plans did not identify the specific type or brand of certain items to be incorporated into the home (such as kitchen cabinets, plumbing and lighting fixtures, etc.), the contract set forth allowances for those items. Those allowances were based upon Folino's best estimates, using his experience and anticipating the use of builder's grade items. For example, for "Kitchen, Tops, Vanities & Hardware," the contract provided: "$15,000.00 allowance, owner to choose." If the actual cost of the items was less than the allowance, plaintiff would receive a corresponding credit, and if the actual cost exceeded the allowance, plaintiff would be charged for the overage. Plaintiff would make selections of the items for which allowances were made, and she would bear the consequences of the cost of her choices.

Construction progressed, and plaintiff made all installment payments as required, except for a balance due of $940. Construction was virtually complete, although a certificate of occupancy (CO) had not been obtained. During the course of construction, no written change orders were issued to show credits or charges with respect to allowance items. After the work was virtually complete, Folino presented plaintiff with a change order itemizing and documenting total charges for overages on allowance items of $31,392.10, and total credits of $9,164, resulting in net changes on those items in favor of defendant of $22,228.10. When the $940 balance due on the original contract price was added, Folino demanded a total balance of $23,168.10.

Plaintiff refused to pay. She contended the original contract price was her sole obligation. Because there had been no written change orders during the progress of the work, she denied owing any further amounts.

Plaintiff initiated this action in the Chancery Division, seeking to compel defendant to complete construction and obtain a CO. Defendant counterclaimed for the amount it claimed was due. The matter was eventually transferred to the Law Division, where it was tried by Judge Peterson.

Plaintiff contended throughout her testimony that, as the work progressed, Folino continually told her she would not owe any additional money and, although she made selections for some items that greatly exceeded the contract allowances, she would end up with a credit. Folino testified to the contrary. He said each time an allowance item was discussed, if it was going to result in an overage, he informed plaintiff of that, and she authorized the work.

The judge found Folino and his wife, Laura Folino (who works in the business with him, keeping records and dealing with customers), credible. The judge found plaintiff incredible. He found that she was well aware that she would owe additional money for the selections she made that exceeded the allowances. Based upon the book account entries that were itemized in the final change order, the judge entered judgment for the amount demanded, less a $950 deduction for an item that Folino had not properly documented or itemized.

At trial, plaintiff did not challenge the accuracy or reasonableness of the charges. Her contention was that she was entitled to rely on the literal terms of the contract and, in the absence of written change orders during the progress of the work, could not be charged anything above the contract price. She also relied upon her testimony that Folino continually assured her that she would not owe any additional money, which the judge found incredible.

We will not interfere with the factual findings of a trial judge sitting without a jury, especially with respect to credibility determinations, if those findings are supported by substantial credible evidence in the record. Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974). We have reviewed the complete record of the trial, and we are satisfied that the judge's findings are ...

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