On appeal from the Superior Court of New Jersey, Law Division, Special Civil Part, Bergen County, Docket No. DC-13368-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Lihtoz and Messano.
We consider this matter for the second time. In Unique Custom Landscaping v. Sterman, A-3450-06 (App. Div. February 6, 2008), we reversed judgment in favor of plaintiff Unique Custom Landscaping and vacated dismissal of defendant Dalit Sterman's counterclaim. We remanded the matter for a new trial on all issues. Following a second non-jury trial, the judge dismissed both the complaint and the counterclaim. Defendant now appeals from the dismissal of her counterclaim. We affirm.
Plaintiff provided landscape supplies and services to defendant's residence over a two-year period. When a number of its outstanding invoices remained unpaid, it commenced suit in the Special Civil Part seeking $2,999.70 in damages. Defendant filed an answer that denied liability, asserted a number of statutory affirmative defenses, and counterclaimed, seeking damages under the Consumer Fraud Act, N.J.S.A. 56:8-1 to -167 (the CFA).
At the trial on remand, plaintiff's owner, Visilio "Billy" Vamvakidis, testified that in June 2003, he was referred to defendant by one of her friends, his client, and asked to come to defendant's home in Teaneck and submit a proposal for landscaping the property. Defendant was just moving into the house with her family, and "needed to get [the work] done right away." The first proposal for $68,855 was rejected by defendant as too expensive. Vamvakidis submitted several other written proposals, ultimately leading to a written contract for various work to be performed at a price of $20,000. An additional $2800 was added to the price for the planting of various "side trees." The agreement was signed by Vamvakidis and defendant in September 2003 (the contract).
Plaintiff was to fully landscape defendant's front yard, install "a retaining wall" and blocks around the window wells, install a sprinkler system, and repair areas with necessary soil, mulch, and sod. It also agreed to "prep" and "ready" other bed areas for "the following year." The contract contained a one-year "warranty" on "[a]ll plant material" as to any "defects" or "any improper installation." The warranty specifically did not cover "dehydration." Defendant hand-wrote on the contract that she wanted "peat moss & gypsum," as well as "arbs," which Vamvakidis testified meant arborvitae, of a certain size, and "Douglas fir[s]" of a certain size as the additional "side trees" to be installed. The parties handwrote "$2800" as an additional cost for the planting of the side trees. No other specific types of plants or trees were listed in the contract. It is undisputed that the total contract amount, therefore, was $22,800.
Vamvakidis testified plaintiff performed all the services specified in the contract, including the planting of arborvitae along the rear of defendant's property for privacy, and two hydrangeas. These hydrangeas were not listed in the contract, but Vamvakidis claimed to have provided them as a gift. Defendant paid the full price of the contract.
Plaintiff subcontracted the installation of the sprinkler system to Quench Irrigation (QI).*fn1 Vamvakidis told defendant this work was going to be done by a subcontractor before she signed the contract, and she met with QI's employees before they performed the work.
During cross-examination, Vamvakidis acknowledged that the contract provided for "a complete and full landscape design with all focal points and small plantings and some Dakota [b]oulders[,]" at the front of the property. He admitted the boulders were never delivered, and he agreed the contract did not specify the type of small plants to be used, or the quantity or type of focal point trees to be planted.
In October, plaintiff delivered and planted six additional arborvitae because defendant wanted more privacy from her neighbors. There was no signed proposal for this additional work, though plaintiff introduced in evidence a bill for $1023.28 for the work and supplies (the change order). In April 2004, plaintiff and defendant entered into an agreement for the ongoing monthly maintenance of the property. Since a number of Douglas fir trees plaintiff planted died within one year of installation, they were replaced at no cost to defendant.
Vamvakidis could not remember the exact number of trees he dug out, and how may he re-planted with new ones. In April 2005, another monthly maintenance agreement was executed by the parties. Defendant inserted a handwritten notation requiring plaintiff to "get [her] O.K. for any optional [and] additional work" as reflected in the agreement.
During 2005, problems arose. Plaintiff replanted three Norway spruce trees intended to replace three initially planted as part of the 2003 contract. After specific discussions with defendant, plaintiff also planted some additional flowers and spread mulch on the property, resulting in an invoice for $2120 (the invoice). Defendant called Vamvakidis to express her dissatisfaction, telling him the flowers were not the colors she wanted and that she had not ordered any mulch. The parties continued to dispute payment for these items, but plaintiff, nevertheless, continued to perform services under its monthly maintenance agreement. More Douglas fir trees installed in 2003 died, and plaintiff, attempting to assuage defendant's ire, replaced them even though Vamvakidis claimed it was now well beyond the warranty period. Altogether, plaintiff replaced a total of nine, but not all of the trees, and Vamvakidis opined that they died because they had not been properly cared for by defendant.
Defendant's payment of plaintiff's monthly bills became sporadic. In November 2005, plaintiff sent defendant a letter terminating their relationship because the outstanding balance of $2,999.70 had not been paid. In June 2006, it filed its complaint.
Defendant also testified at trial. She claimed that in spite of regular watering, the Douglas fir trees installed as part of the contract began to die by spring 2004. She contacted Bartlett Tree Service in an attempt to rectify the situation, but by the fall, most of the trees were dead. When she brought this to Vamvakidis' attention, he replaced three of the firs in early 2005. According to defendant, Vamvakidis promised to replace the other dead trees as well, but instead just stopped taking her phone calls in September 2005. Defendant claimed she never saw the irrigation contract that allegedly existed between plaintiff and QI and was unaware that the work was being performed by a subcontractor. Defendant claimed that the change order for additional arborvitae was a mistake because they should have been included in the 2003 contract.
Defendant further acknowledged that during 2005, she requested that plaintiff plant ten annual flower beds in specific colors and also ordered topsoil to even out a slope in her yard. However, she arrived home one day and discovered that plaintiff had mulched and planted flowers in colors she did not want. She spoke to Vamvakidis for the last time in September 2005. He admitted he made a mistake regarding the mulch, though defendant agreed to pay for it anyway. She also told Vamvakidis that one of the hydrangeas had died, but ...