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Jacobsen v. Iavarone


July 27, 2009


On appeal from the Superior Court of New Jersey, Law Division, Civil Part, Ocean County, Docket No. L-31910-06.

Per curiam.


Submitted May 6, 2009

Before Judges Rodríguez and Payne.

Plaintiffs Robert Jacobsen and Carol Jacobsen appeal from the August 27, 2007 judgment, following a bench trial, in favor of defendant Dominic Iavarone. We affirm.

These are the salient facts. The Jacobsens purchased real and personal property from Iavarone for $616,000. After the closing, the Jacobsens became aware of various defects. The problems were not remedied to the Jacobsens satisfaction.

Therefore, the Jacobsens sued Iavarone for breach of contract.*fn1 Iavarone counterclaimed seeking release of $5,500 being held in escrow in connection with a dock.

There was a bench trial before Judge Joseph Foster. Two witnesses testified: Robert Jacobsen and Iavarone. Jacobsen testified that: the roof leaked, causing a six to nine square foot area in the dining room ceiling to collapse; the living room ceiling became stained and dripped onto the furniture; the basement flooded; an air conditioning unit malfunctioned; the heating unit needed replacement; the refrigerator was switched; the ski lifts attached to the dock did not work; the spa was nonfunctional; and a well turned out to be nonexistent.

According to Iavarone, the roof was eight years old and remained under warranty. At the time of the closing, it did not leak.

The judge made the following findings of fact:

First of all the Court found the testimony of Mr. Iavarone to be entirety [sic] credible and reliable. He was not at all defensive. He appeared to this Court to be entirely matter of fact, forthright and truthful in recounting the condition of this home when the premises were sold. The Court finds his testimony as to the replacement of this roof as recently as 1997 to be entirely credible and reliable. The Court accepts that testimony as true and accepts his testimony that if there were any problems at all with the roof, it might have been an isolated leak, nothing more than that . . . and the Court accepts his testimony that he was [not] aware of any condition of the roof which would require a full replacement at the time of closing.

He also testified that the air-conditioning system was in working order when the premises were sold or when the title was transferred as was the heating system and the Court finds his testimony to be entirely credible and reliable. He didn't appear to this Court to be in any way making excuses, hedging or that he was in any way defensive. He responded to questions put to him in a timely matter of fact and forthright manner. It may be that the plaintiffs have a quarrel with the efficiency of this system, but the Court is satisfied based on Mr. Iavarone's testimony that the air-conditioning and heating systems were in good working order at the time of closing.

The Court furthermore accepts Mr. Iavarone's testimony that the refrigerators were not switched. I found his testimony as to the history of the refrigerators to be credible and reliable and reject any claim that the refrigerators were switched.

I find that his testimony with respect to these davits, the davits which were referred to as Ski-Doos to be entirely credible and reliable and the Court rejects any claim that they were not operating, in operating condition at the time of closing and finds his testimony as to the need just for a recharging or replacement of batteries to be plausible and reliable. The same is true with respect to the spa and the Court found his testimony, his explanation as to the history of this well and his explanation that the local municipal utilities authority would not have this well recorded as an operating well to be plausible, credible and reliable. The fact that it was not registered as a well with the Brick Township MUA does not mean that the well was not in operating condition and could not have been operated by the plaintiff.

So far as the plaintiff is concerned, the Court did not find Mr. Jacobsen to be a credible . . . and reliable witness. Initially he stated that the air-conditioning system didn't operate and then later modified his testimony to indicate that the air-conditioning system did in fact operate, but then his complaints seemed to go to the efficiency of the air-conditioning system and the Court found his testimony to be overstated and really unsupported by any credible or reliable evidence.

He appeared to this Court to be defensive. When questions were put to him by the Court, he seemed to be searching for answers, for explanations. He seemed to hedge on the meaning of the language in the contract particularly as it related to the tidelands grant. I found that to be less than credible and reliable.

On that basis and for those reasons the Court accepts Mr. Iavarone's testimony as to the condition of this home at the time of closing in all the respects as mentioned and rejects on its merits the plaintiffs' claims that this home was anything other than the condition as represented by the seller at the time of closing.

The Court also found that the plaintiff failed to produce competent, admissible evidence as to any damages the plaintiffs might have suffered as a result of these alleged defects. Any testimony that was proffered was hearsay. Neither plaintiff qualified as for expert witness competent to testify as to any damages or more importantly I find that neither plaintiff qualified themselves to testify for example as to the need to replace the entire roof. There was no evidence to support that claim. The Court accepts Mr. Iavarone's point that whatever caused these problems, leaks in the home, could have been the result of an isolated leak. There was no evidence to contradict that in any way.

The Court has a hard time accepting the plaintiffs' position that they had the opportunity to have their own expert evaluate the condition of this home prior to closing and chose not to do so. They can't now come forward and claim that there were conditions of the home which might not have been readily apparent and which would constitute defects and that they're entitled to compensation for same, so based on all of those findings and observations the Court rejects the plaintiffs' claims for damages to the extent that they're based on any alleged misrepresentation or defect in the home.

The judge also rejected Robert Jacobsen's explanation as to why he had not yet received a tidelands grant or license. The judge found that the Jacobsens failed to comply with instructions from the Department of Environmental Protection.

On the counterclaim for the release of $5,500 from escrow, the judge found that it was implicit in the contract "that the plaintiffs would have a reasonable time to apply for the tidelands grant or license as the case might be," and that after two years, the Jacobsens had not exercised their option "to pay the $130,000 plus and obtain the grant or license."

On appeal, Jacobsen contends that:


We disagree.

At the outset, we note that there is no basis whatsoever to "discipline/reprimand" the judges who handled this lawsuit at the trial level. Nor is a new trial warranted. From our careful review of the record, we conclude that all findings made by Judge Foster could reasonably have been reached on sufficient or substantial evidence present in the record, considering the proofs as a whole. Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974). We must give due regard to the ability of the factfinder to judge credibility. Ferdinand v. Agric. Ins. Co. of Watertown, N.Y., 22 N.J. 482, 494 (1956).

It is not the function of the reviewing court to substitute its independent judgment on the facts for that of the trier of fact. In re Tenure Hearing of Grossman, 127 N.J. Super. 13, 23 (App. Div.), certif. denied, 65 N.J. 292 (1974).


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