On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-434-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 5, 2010
Before Judges Grall, Messano and LeWinn.
Defendant Montclair Developers, LLC (Montclair), a general contractor, engaged plaintiff, Seashore Framing, LLC (Seashore), a construction company, as a subcontractor in the development of a community of townhouses. Numerous problems arose during the project, leading ultimately to litigation. Seashore now appeals from the March 19, 2009 order of the trial judge, entered following a non-jury trial, dismissing its complaint against Montclair for $72,205 allegedly due pursuant to an agreement between the parties.*fn1 We affirm.
The evidence adduced at trial may be summarized as follows. Seashore submitted a one-page proposal to Montclair for the completion of [f]raming to include rough frame, sheathing, install windows and exterior doors, set [L]ally columns*fn2 , sub-facia, install stairs and block-out for drywall where applicable and as required[,] . . . [and] basement framing all units . . . .
Payment was to be "50% on rough frame, 20% on sheathing, 20% on window installation, and 10% on block-out." The proposal did not specify either the time within which plaintiff's work was to be completed or which set of plans would be used for the project.
The proposal was approved by Montclair on February 21, 2006, and Seashore commenced work on the project shortly thereafter. Seashore hired subcontractors for all four phases of the proposed work. During the first week of construction, Brian Sullivan, a supervisor at Seashore, was on the work site daily. Upon his arrival, he discovered problems with the foundation laid by the masonry subcontractor. Sullivan discussed these problems with Tom May, Montclair's project manager, who instructed him to have Seashore proceed with its work and make adjustments as it went along. May acknowledged that the foundation was "built crooked, out of level, out of square[,]" and the floor trusses had to be adjusted.
William Sepe, a principal of Seashore, testified as to other problems; for example, the roof trusses provided by Montclair "were manufactured incorrectly[,]" and after installing them, Seashore had to "[p]ut them back down and then manufacture [its] own trusses in the field to make them work . . . ." Sepe stated that he advised Glen Zeek, Montclair's site manager, about these developments, and Zeek told him to "get a proposal over to the office and to make sure [Seashore was] keeping track of all the extra work . . . ."
Sepe testified that the first time Montclair expressed any dissatisfaction with Seashore's work was on May 19, 2006, when he met with Charles DiVine, Montclair's vice president of construction. During a site visit on that date, DiVine instructed Sepe to "rip th[e] roof off and make it perfect[,]" and threatened to terminate Seashore if it failed to comply. As a result of that meeting, Sepe created a "punch list" of items in need of completion.
To redo the roof, Seashore assembled twenty-two men, which was, according to Sepe, "three times as much as . . . should have been there." During Seashore's final week on the worksite, Sepe was on vacation, but Sullivan went through the site with Zeek and reviewed Sepe's punch list. Sullivan testified that all but a few items on the list were completed, and claimed that Seashore had no control over these items because Montclair had not provided the necessary materials.
Montclair officially terminated Seashore by letter dated June 2, 2006; the letter stated that the "workmanship thusfar [sic] has been inferior and there is no point to continue this business relationship." On that same date, Scott Roth, an architect retained by Montclair, sent the contractor a report describing his observations of the worksite as of May 9, 2006; Roth stated that there were "[n]oticeable 'excessive' gaps in the exterior sheeting[,] . . . [and] some bad sheets of plywood on the sub floor creating an uneven surface."
On June 27, 2006, Seashore sent Montclair a packet of twenty-eight invoices for work performed between April 26 and June 19, 2006, reflecting an outstanding balance of $72,205. Some of the invoices sought payment for "extra" work beyond the scope of the proposal, which Seashore claimed had been necessitated by problems beyond its control, such as the improperly poured foundation and the need to repair the trusses provided by Montclair.
On July 25, 2006, Montclair notified Seashore by letter that it would not pay any of the outstanding invoices. The letter stated that Seashore had failed to provide enough manpower on the job, did not supervise its workers, produced "sloppy and inconsistent[,] incorrect work[,]" and did not perform its job "in accordance with the plans." Montclair further asserted that Seashore "had not ...