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Stephen Costalos/Scape-Abilities, Inc. v. Cetlin

February 26, 2010

STEPHEN COSTALOS/SCAPE-ABILITIES, INC., PLAINTIFF-RESPONDENT,
v.
RICHARD CETLIN, DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Law Division, Special Civil Part, Union County, Docket No. DC-009362-08.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued December 1, 2009

Before Judges Lihotz and Ashrafi.

Defendant appeals a judgment in a breach of contract lawsuit awarding plaintiff $4,389 in damages plus $57 costs. We affirm.

Plaintiff Scape-Abilities, Inc. is a landscaping contractor. Stephen Costalos is the founder, sole shareholder, and president of Scape-Abilities. Defendant Richard Cetlin and his wife own a home in Westfield, New Jersey.

Costalos and Scape-Abilities filed a complaint against Cetlin in the Law Division, Special Civil Part, alleging that Cetlin owed $4,414 for breach of a landscaping contract. Cetlin filed an answer contending that the contract was not completed and the goods and services were defective. He also filed a counterclaim against plaintiffs demanding $6,000 for his expenses in correcting the allegedly defective landscaping.

The following evidence was developed at a two-day trial heard by a judge without a jury.

On June 15, 2007, Cetlin paid plaintiffs $1,000 to prepare a landscape design plan for his home. Plaintiffs prepared a top-view drawing of Cetlin's property, designating where selected plants would be installed and other landscaping features. After discussions with Cetlin, plaintiffs made revisions and resubmitted the plan to Cetlin on September 4, 2007. Cetlin approved the revised design plan.

On September 15, 2007, plaintiffs sent a proposal to Cetlin for work totaling $66,687. Under the heading "Description," the proposal stated: "Installation of the landscape according to the plan revised September 4, 2007." In addition to installation of plants, the proposal included building a patio, walkway, steps, sitting wall, and fire pit; drainage, grading, and sod; a sprinkler system; fencing; and other items. Written on the proposal next to the heading "Plantings" was "(see attached sheet)" and the price $16,491. A separate page entitled "Plant Legend" contained a list of plants by name, size, and quantity totaling $16,491 in price. Cetlin did not accept plaintiffs' September 15 proposal and, according to his testimony at trial, did not pay attention to the plant legend.

The plant legend had three variations from the plants and quantities detailed on the September 4 design plan. First, the design plan called for English laurel to be planted along a corner of the property, but the plant legend listed Schip laurel instead. The design plan also called for three Anthony Waterer spirea, but the spirea were excluded from the plant legend. Finally, the design plan called for two purple leaf sand cherry bushes, but the plant legend listed only one.

Over the next several weeks, Cetlin and Costalos discussed by telephone the scope of the proposal and the time when the work would be done since colder weather was coming. On November 13, 2007, plaintiffs faxed a new proposal to Cetlin. Under the heading "Description," the revised proposal stated:

"Installation of plantings according to the plan revised September 4, 2007." The proposal then listed two other headings for work to be performed. The heading "Plantings" again made reference to an "attached sheet" in the same way as the previous proposal and again was priced at $16,491. Lesser amounts totaling $1,585 in price were listed under that heading for particular work described, and last, the proposal contained a heading for "Deep Root Feed 2 shade trees" at a price of $450. Subtracting a $400 discount, the priced items on the revised proposal totaled $18,126.

On November 15, 2007, Cetlin made handwritten revisions on the proposal, signed it, and faxed it back to plaintiffs. Relevant to the parties' dispute, under the heading "Terms & Conditions," the pre-printed form contract stated that "Scape-Abilities reserves the right to change a specified plant(s) due to the unavailability of a certain color or species at the nurseries. The closest match will be made at Scape-Abilities discretion." With regard to that provision, Cetlin handwrote: "Only minor changes or we should wait until Spring for better selection." ...


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