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Dorcant v. Osprey Construction

November 4, 2009

HUBERT DORCANT, PLAINTIFF-APPELLANT,
v.
OSPREY CONSTRUCTION, INC., DEFENDANT-RESPONDENT.



On appeal from the Superior Court of New Jersey, Law Division, Somerset County, L-1280-06.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted December 15, 2008

Before Judges R. B. Coleman and Sabatino.

Plaintiff, Hubert Dorcant, appeals from a judgment in the amount of $9,995 awarded to defendant, Osprey Construction, Inc., and from the judge's denial of his motion for reconsideration. Plaintiff appeals this judgment on three grounds: first, that defendant defrauded him under N.J.S.A. 56:8-2; second, that the motion for reconsideration should have been granted; and third, that the judge below erred in his findings of fact and conclusions of law. While we agree with the trial judge's findings of fact and legal conclusions, we question his calculation of damages. For the reasons that follow, we affirm in part, modify in part, and remand for correction of the judgment.

On June 12, 2003, plaintiff and Frank Garaffa, Sr., the sales manager of defendant, negotiated a contract for an addition to plaintiff's home. The form contract listed ten line items detailing the agreed-upon construction. The total price was quoted at $45,000, to be paid by plaintiff in six installments.*fn1

Line item 8 was of particular concern in this case. It provided that the "above project includes a bathroom with 3 fixtures" and a closet; however, line item 8 was crossed off and initialed by Garaffa, on the original and yellow carbon copies of the contract, while there was no trace of the alteration on plaintiff's pink carbon copy. The trial judge remarked that "the marking on the original on Item 8 is in a different color ballpoint pen[,]" and, "[i]t's as if there was perhaps a sheet of paper in between the yellow and pink copy for nothing to show up on [plaintiff's] pink copy." Defendant claims that both defendant and plaintiff agreed to remove line item 8 and the $45,000 quote did not include line item 8. The architectural plans shown to plaintiff before the start of the job did not include a bathroom. Nonetheless, plaintiff maintained at trial that he expected a bathroom installation.

After receiving most of the first two payments - $8,505 as opposed to $9,000 - defendant began construction in December 2003. Soon after, weather conditions brought the construction to a halt. Defendant commenced work once again in March 2004. Plaintiff made a third payment of $9,295 upon completion of the footing.

While sandblasting plaintiff's front steps, the steps began to crumble. New steps were completed absent a written agreement. Plaintiff paid a fourth installment of $9,200 in June 2004.

Defendant told plaintiff that the shell was complete and the fifth installment was due. Plaintiff then told Frank Garaffa, Jr. that he wanted to make changes to the addition. These changes included adding a Sealomatic door. Garaffa, Jr. memorialized these changes in a signed "Extra Work Order" dated July 21, 2004, quoting the changes at an additional $2,750. Plaintiff told Garaffa, Jr. that once the changes were complete he would pay the fifth installment, plus the additional $2,750 for the changes. Defendant completed all additional work except the installation of the $800 Sealomatic door that day.

Also on July 21, 2004, after defendant completed additional work, plaintiff informed Garaffa, Jr. that his business was being investigated by Homeland Security. Plaintiff claimed that he never told defendant that he would be unable to pay. Conversely, defendant stated that plaintiff represented that because of the investigation, his accounts were frozen and he could not pay defendant. In any case, the upshot of the conversation was that defendant ceased work on the addition. Garaffa, Jr. testified that he told plaintiff that he wanted $1,975 for the extra work order (the $2,750 minus the cost of the unordered Sealomatic door) and $9,200 (the fifth installment) for the completion of the shell. Defendant then weatherproofed the construction site to protect the unfinished addition from the elements. Plaintiff did not pay the requested amounts.

In a letter dated September 15, 2004, plaintiff demanded that defendant return the fourth installment payment of $9,200.

Defendant did not comply with this request, and in a letter dated September 17, 2004, stated that plaintiff did not perform as he promised on July 21, 2004, and concluded by stating that defendant had "every intention of finishing [plaintiff's] project" upon payment.

There was no further contact between the parties until May 26, 2006, when plaintiff filed a complaint in the Superior Court of New Jersey, Law Division, Special Civil Part, Somerset County. This complaint alleged that defendant "failed to perform [construction] work as ...


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