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Soliman v. Katchko

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


March 24, 2010

THOMAS SOLIMAN, PLAINTIFF-RESPONDENT,
v.
MICHAEL KATCHKO AND BORIS KATCHKO, DEFENDANTS-APPELLANTS.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. SC-2820-08.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted January 5, 2010

Before Judges Grall and LeWinn.

Defendants, Michael Katchko and his son Boris Katchko, appeal from the January 20, 2009 order of the Special Civil Part, entering judgment in favor of plaintiff, Thomas Soliman, and dismissing defendants' counterclaim, following a trial. We affirm.

The pertinent evidence may be summarized as follows. Defendants hired plaintiff, a licensed general contractor, to repair damage caused by a leaking toilet in the apartment leased by Michael Katchko and his wife. Defendants claimed that Soliman verbally agreed to charge them $800 for the job. Plaintiff, however, produced a written contract, signed by Michael Katchko stating that the price was $1,596.52. Michael Katchko claimed that he signed that contract in blank and in response to pressure from plaintiff. Both defendants denied agreeing to the contract price.*fn1

When defendants refused to pay the contract price, plaintiff filed a complaint in the Special Civil Part. Defendants filed a counterclaim for $2,827.52 for "enormous stress to Mr[.] and Mrs. Katchko, who have serious medical conditions."

Michael Katchko also testified that English was not his native language and that his wife, whom he described as "sort of competent in English[,]" interpreted during his conversation with plaintiff at the time the repairs were made. However, Michael also stated that the contract price was not discussed in that conversation.

In his decision rendered from the bench immediately following trial, Judge Melvin L. Gelade found plaintiff's evidence credible. The judge noted that the written contract was signed on November 21, 2008, the first day Soliman was on the job at the Katchko's apartment; the work was completed the following day, "at which point the defendant refused to pay."

The judge found Michael's testimony that plaintiff "filled out the [c]ontract after it had been signed," to be "totally incredible...." Michael had testified that the police were called to his apartment when he refused to pay, and that a police officer compelled him to sign the contract. The judge found that "a police officer would never have a homeowner sign a [c]ontract in blank without at least giving the homeowner a copy. It makes no sense whatsoever. I don't believe it."

The judge also disbelieved Boris's testimony that he had a telephone conversation with plaintiff, before the work was done, in which plaintiff agreed to the price of $800. The judge noted that "on the 2lst [plaintiff] arrived, filled out a [c]ontract, and gave the [c]ontract to the defendant... who signed." The judge further found that Michael signed [the contract] after it was filled out. It makes absolutely no sense that someone would come into a house, agree to redo a sub-floor and tile the floor, go to the Home Depot and pick[]up the materials, which both sides agree was done on Friday, the 21st, then come in and begin the installation process with two people, then come back the next morning, and it was... Michael Katchko, not the plaintiff[,] who said he came back the next [day] and worked with another person for two and a half hours and then spent all day arguing about the price.

The judge found that the contract was "filled out in its entirety, [and] the price is fair."

The judge concluded that Michael signed the contract, "that he knew what the [c]ontract was, his wife speaks English, she's not present,... she did the interpreting, and the [c]ontract was signed knowingly and voluntarily, and... provides for payment of $1,596.52." Therefore the judge entered judgment for the plaintiff in that amount plus costs, and dismissed the counterclaim.

Defendants raise one argument on appeal:

THE TRIAL COURT ERRED BY FINDING THAT MICHAEL KATCHKO LACKED CREDIBILITY CONCERNING WHETHER THE CONTRACT WAS BLANK WHEN HE SIGNED IT INSOFAR AS THE COST OF THE JOB WAS CONCERNED.

Having reviewed this contention in light of the record and the controlling legal principles, we conclude it is without merit. We affirm substantially for the reasons stated by Judge Gelade in his decision rendered from the bench, which we find "is based on findings of fact which are adequately supported by the evidence...." R. 2:11-3(e)(1)(A). We add on the following brief comments.

As defendants themselves acknowledge, "credibility determinations made after a bench trial are entitled to 'great weight' on appeal." Pursuant to that principle, when a party contends that the trial court erred in its determination of the facts,... [t]he

[a]ppellate [t]ribunal's obligation is... [to] review the record in light of the contention, but not initially from the point of view of how it would decide the matter if it were the court of first instance. It should give deference to those findings of the trial judge which are substantially influenced by his opportunity to hear and see the witnesses and to have the "feel" of the case, which a reviewing court cannot enjoy. [State v. Locurto, 157 N.J. 463, 471-72 (1999) (quotation omitted).]

The "scope of our appellate review of a judgment entered in a non-jury case," requires that we not disturb "the findings on which it is based... unless... 'they are so wholly insupportable as to result in a denial of justice....'" Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 483-84 (1974) (quoting Greenfield v. Dusseault, 60 N.J. Super. 436, 444 (App. Div.), aff'd o.b., 33 N.J. 78 (1960)). "Findings by the trial judge are considered binding on appeal when supported by adequate, substantial and credible evidence." Id. at 484.

Defendants have failed to convince us that Judge Gelade's "'factual findings and legal conclusions... are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice....'" Ibid. (quoting Fagliarone v. Twp. of No. Bergen, 78 N.J. Super. 154, 155 (App. Div.) certif. denied, 40 N.J. 221 (1963). We find no basis to disturb those findings and conclusions on appeal.

Affirmed.


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