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Rivera v. Javed

August 6, 2009


On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, L-1225-07.

Per curiam.


Submitted July 22, 2009

Before Judges Reisner and Sapp-Peterson.

Defendant Iftikhar A. Javed appeals from a June 10, 2008 judgment for $11,306.83, entered in favor of plaintiffs Israel Rivera and his construction company, IRV Construction, L.L.C. (hereafter, Rivera). We affirm.


While neither party has filed a proper brief in this appeal,*fn1 we draw the following facts from the trial transcript and so much of the record as the parties have provided to us. There is no dispute that Javed hired Rivera to construct a rear and second floor addition on a house Javed owned at 74 Edgar Street in Carteret, New Jersey. Both parties signed a written work "proposal" dated July 24, 2006, in which Javed agreed to pay $52,000 for the job, in four $13,000 installments.

There is no dispute that Rivera did not finish the job. Rivera filed a complaint on January 26, 2007, alleging that Javed breached the contract by preventing Rivera from completing the work and by refusing to pay for work Rivera had already performed. Rivera also contended that Javed breached the contract "by submitting fake documents or fake signatures to the City of Carteret." Rivera's complaint claimed $40,000 in damages. Javed filed an answer contending that Rivera did not perform the work properly, causing Javed to have some of the work re-done. Javed counterclaimed for $50,000; he did not demand a jury trial on the complaint or on his counterclaim.

Due to Javed's failure to provide discovery, his answer was stricken. On June 10, 2008, the matter proceeded to a bench trial before Judge Mathias E. Rodriguez. Because Javed's answer had been stricken, the judge treated the proceeding as a proof hearing with respect to Rivera's claim and a plenary trial with respect to Javed's counterclaim.*fn2 At the trial, the parties agreed that Javed had prepared the construction plans himself, had acted as the prime contractor on the construction job, and hired Rivera to perform the labor as a subcontractor. In turn, Rivera arranged for several other construction professionals to perform some of the work.

Rivera testified, and Javed admitted, that although Javed is not an engineer, he falsely signed the plans as an engineer when he submitted them to Carteret for approval. When the municipality discovered this deception, the local subcode official issued a stop work order until Javed had new plans prepared by a licensed engineer. The official later ordered work stopped again after it was discovered that the structure was slightly higher than the local zoning ordinance permitted, necessitating alterations to lower the roofline.

Javed blamed Rivera for the latter problem and testified that he incurred additional expense to fix this and other mistakes Rivera made. However, Rivera testified that he followed Javed's plans in constructing the additions, and that any problems in the construction were attributable to Javed's mistakes in drawing up the plans. According to Rivera, at some point after the stop-work orders were issued, Javed refused to let him continue with the work. As an accommodation, however, Rivera agreed that Javed could deal directly with, and pay directly, the electrical and plumbing subcontractors working on the job. Accordingly, Rivera gave Javed a credit of $11,500 for payments to be made directly to those subcontractors. In total, at the hearing Rivera admitted that Javed paid him $23,000 on the contract and was entitled to an additional $11,500 credit against the $52,000 total price of the work. However, Rivera also claimed that he paid approximately $2500 to a waste disposal company to rent dumpsters, an amount for which Javed never reimbursed him.

Rivera also presented testimony from a carpenter, Leonardo Lopez. According to Lopez, he was hired, with Javed's and Rivera's agreement, to perform some carpentry work on the house. Javed was supposed to pay Lopez the $5000 price for the work, but refused to pay due to a disagreement with Rivera over the construction job. Eventually, Rivera paid Lopez the $5000 for the work.

Following the bench trial on June 10, 2008, Judge Rodriguez placed an oral opinion on the record. As the judge had previously stated on the record during the hearing, he treated Javed's breach of the contract as established by Javed's default, and treated the hearing on Rivera's affirmative claim as a proof hearing to establish Rivera's damages. Based on his evaluation of the credibility of the witnesses, he made the following findings of fact.

He found that the $52,000 contract was solely for labor, and not materials. He accepted the testimony of both parties that Javed was entitled to an $11,500 credit for payments to the plumber and the electrician. He credited Rivera's testimony that Javed paid him $23,000 toward the contract price. The judge rejected Rivera's $2000 claim for additional work done, beyond that set forth in the contract, because it was not documented in writing. However, the judge credited Rivera's testimony that he paid $2,510.80 to a carting company on Javed's behalf, and found that Rivera was ...

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