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Benjamin v. Lizarbe

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


July 23, 2009

RYAN BENJAMIN, PLAINTIFF-RESPONDENT,*FN1
v.
CARLOS L. LIZARBE, CARLOS LIZARBE GENERAL CONSTRUCTION, DEFENDANTS-APPELLANTS.

On appeal from the Superior Court of New Jersey, Law Division, Union County, Docket No. L-3701-04.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted: June 23, 2009

Before Judges Cuff and Fuentes.

Plaintiff Ryan Benjamin retained defendant Carlos Lizarbe to perform home improvements on a house owned by him in Newark. As the work proceeded, a dispute arose between the parties and defendant ceased work on the house. Following a bench trial, the judge awarded plaintiff damages in the amount of $19,523.30 plus interest. Defendant appeals arguing that the trial judge incorrectly assessed damages. We agree and affirm the judgment as modified.

The judge found that the parties entered a contract on June 6, 2004, for construction work to be performed at a house owned by plaintiff in Newark. The contract price was $18,250: forty percent payable as a down payment, thirty per cent when fifty per cent of the work was complete, and thirty per cent at completion.

The judge found that the parties had conversations about other work to be performed at the site but their agreements were not reduced to writing. Noting that neither party were "neophytes," the judge disregarded any claims for work allegedly performed and money paid pursuant to any oral agreements. He then found that plaintiff paid $18,516.40 to defendant and plaintiff paid $10,265.10 to complete the job. Then, finding that defendant only completed 50% of the job but was paid more than 100% of the contract price, the judge awarded plaintiff one-half of the sum paid, $9,258.20, in addition to the sum required to complete the contract, $10,265.10, for a judgment of $19,523.30. The judgment bears interest from February 7, 2005, the date default judgment had been entered.

Our review of the findings of fact of a judge sitting without a jury is limited. Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974). We are required to review the record in its entirety and determine whether the facts as found are supported by substantial credible evidence in the record. Ibid. Our job is not to conduct a de novo review or to substitute our view of the facts as gleaned from a cold record. Ibid. Thus, once we determine that the facts as found by the trial judge are supported by substantial credible evidence, our review is complete. Ibid.

Applying this standard to the trial record, we do not disturb the findings of fact concerning the existence and scope of the contract, the amount paid, and the amount required to complete the contract. Indeed, defendant does not contest either the existence of the contract or the amount required to complete the contract. We owe no deference, however, to the legal conclusions and analysis of the trial judge. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

In the context of breach of a building contract, the disappointed owner may recover the costs of completing the promised performance or making necessary repairs to the work done by the initially retained builder. 525 Main St. Corp. v. Eagle Roofing Co., 34 N.J. 251, 255 (1961) (citing Restatement Contracts, § 346(1)(a) (1932)). The difference-in-value formula is employed only when it is impossible to calculate the cost to complete the contract or to make necessary repairs or the cost of completion or repairs would constitute unreasonable economic waste. Id. at 254-55. Here, the trial judge used both measures of damages. The difference-in-value formula is not used when the cost to complete the contract is known. Moreover, use of both measures yielded an excessive damage award. Accordingly, the judgment is reduced to $10,265.10, the cost to complete the contract, plus interest from February 7, 2005.

Affirmed as modified.


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