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John & Al Construction Co., LLC v. McGhee

July 22, 2009

JOHN & AL CONSTRUCTION CO., LLC, PLAINTIFF-RESPONDENT,
v.
RINNETTA MCGHEE, DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Law Division, Special Civil Part, Monmouth County, DC-015901-07.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted April 1, 2009

Before Judges A. A. Rodríguez and Payne.

Plaintiff, John & Al Construction Co., Inc., entered into a written contract with defendant, Rinnetta McGhee, to remove an old porch and stairs and to rebuild new porches, replace a roof, and replace and enclose stairs to the porch, as well as perform other construction, at defendant's home in Asbury Park. The contract required payment of $34,600, pursuant to a specified schedule. Although the first two payments were made, the third and final payment of $10,000 was withheld on the ground that the work performed was shoddy, there were deficiencies in performance, and the work was not substantially completed. Plaintiff filed suit in the Special Civil Part for the $10,000, and a bench trial was held on March 31, 2009. At its conclusion, the judge held that the work was not complete and, after hearing plaintiff's estimate that completion would require material and services totaling $4,000, the judge found defendant liable for payment in the amount of $6,000.

Prior to entry of judgment, on April 3, 2008, the construction was inspected by an Asbury Park construction and building subcode official. In a notice of violation and order to terminate, issued on April 14, 2008, the official found that the construction was in violation of the State Uniform Construction Code Act and regulations. A prior certificate of approval was rescinded, plaintiff and defendant were ordered to correct the violations found to exist on or before July 8, 2008, and the parties were informed that no certificate of occupancy or approval would be issued unless the violations were corrected.*fn1 Defendant forwarded the inspection report to the judge, along with a letter dated April 14, 2008 that stated, in relevant part:

The "Judgment in Favor of the Plaintiff" was based on the fact that the Plaintiff passed all inspections and was granted a certificate of approval. However, the City of Asbury [Park] has revoked that pas[t] issued certificate of approval because of conditions discussed in the enclosed letter.

Therefore, I request that the "Judgment in Favor of the Plaintiff" be changed to a ruling in favor of the Defendant, and the Defendant be exempt from any judgment against the Defendant because of the conditions described in the enclosed letter and also because no certificate of approval was issued for the job.

By letter dated April 22, 2008, defendant again requested that the judgment in defendant's favor be "changed to a ruling in favor of the Defendant." However, on April 24, 2008, without responding to defendant's letters, the judge entered judgment in plaintiff's favor for $6,000. This appeal followed.

On appeal, defendant, raises the following issues for our consideration:

Point I

FINDINGS OF THE COURT BELOW, CONSIDERING THE PROOFS AS A WHOLE, WERE SO MANIFESTLY UNSUPPORTED BY OR INCONSISTENT WITH THE COMPETENT, RELEVANT AND REASONABLY CREDIBLE EVIDENCE THAT THE INTERESTS OF JUSTICE DEMANDS JUDGMENT FOR PLAINTIFF BE REVERSED AND JUDGMENT FOR DEFENDANT ENTERED.

Point II

THE COURT BELOW ERRED WHEN IT MISAPPLIED THE LAW OF SUBSTANTIAL PERFORMANCE AND INCORRECTLY DECIDED THE ...


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