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November 29, 2010


On appeal from the Superior Court of New Jersey, Law Division, Special Civil Part, Gloucester County, Docket No. DC-5347-06.

Per curiam.


Submitted November 10, 2010

Before Judges Cuff and Simonelli.

Defendant F.E. Baker & Company, General Contractor and Builder appeals from a Special Civil Part judgment entered following a trial. We affirm in part, reverse in part and remand for further proceedings.

Plaintiff Timothy Merget and defendant's principal, Francis Baker, are relatives who have a history of working together on construction jobs pursuant to verbal contracts. In this case, defendant had a contract with a homeowner to extend a garage and build an addition on the second floor. Baker discussed the job with plaintiff. Plaintiff claimed he and defendant had two separate verbal contracts totaling $25,000: the first was for $9,000 to demolish and frame the garage; and the second was for $16,000 to demolish and rebuild the second floor, remove the old roof and install a new roof and siding.

At trial, Baker testified that the parties had only one contract for the demolition and framing of the garage. He also stated that without his authorization, plaintiff demolished the second floor and began constructing the addition, and that the contract price for this work and the garage work was $9,000. Baker asserted that without his authorization, plaintiff did the roof work. However, he admitted that (1) he and plaintiff discussed the possibility of plaintiff doing both the roof and siding work, for which plaintiff wanted an additional $13,000; (2) plaintiff completed all of the roof work, started the siding work, and completed all of the second floor work (except for some items and certain work for which Baker sought $1,271.29 by way of counterclaim); and (3) he paid plaintiff an additional $4,000 for the roof work.

Plaintiff admits he received $9,000 for the first contract and $4,000 for the roof work. Despite an apparent $12,000 balance, plaintiff only sought $10,500 in his complaint. At trial, however, he sought the $12,000 balance plus additional amounts he admitted he never originally intended to charge defendant; $3,000 for the garage and $3,500 for the roof, for total damages of $18,500.

The trial judge found Baker's testimony that he did not authorize plaintiff's work on the second floor not credible. The judge concluded that Baker authorized plaintiff to complete the framing and related work on the second floor, there was a second verbal contract for $16,000 for that work, and plaintiff completed the additional work. Despite Baker's admission that plaintiff had completed the roof work, the judge concluded plaintiff was not entitled to payment for that work because replacement of the entire roof was outside the terms of the second contract. In calculating the amount of the judgment, without explanation the judge began with the amount plaintiff sought in his complaint ($10,500), deducted $1,300 for the amount defendant sought on the counterclaim-and entered judgment for plaintiff in the amount of $9,200. This appeal followed.

On appeal, defendant contends plaintiff is not entitled to quantum meruit damages on the alleged second contract because defendant did not authorize the work or agree to a price, and the roof work was not part of defendant's contract with the homeowner.*fn1 Defendant also challenges the judge's findings on damages.

On appeal from a judgment entered in a non-jury case, "the findings on which it is based should not be disturbed unless '. . . they are so wholly insupportable as to result in a denial of justice,' and . . . the appellate court should exercise its original fact finding jurisdiction sparingly and in none but a clear case where there is no doubt about the matter." Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 483-84 (1974) (first alteration in original) (quoting Greenfield v. Dusseault, 60 N.J. Super. 436, 444 (App. Div.), aff'd o.b., 33 N.J. 78 (1960)). We should "not disturb the factual findings and legal conclusions of the trial judge unless we are convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice." Fagliarone v. Twp. of N. R. 2:5-3; R. 2:5-4(a). Even if we considered this contention, it lacks merit. The trial court never dismissed plaintiff's complaint with prejudice or entered final default judgment on the counterclaim.

Bergen, 78 N.J. Super. 154, 155 (App. Div.), certif. denied, 40 N.J. 221 (1963). Credibility determinations are included within the trial court's deferential factfinding authority. "However, '[a] trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference[,]'" and are subject to de novo review. Mountain Hill, L.L.C. v. Twp. Comm. of Middletown, 403 N.J. Super. 146, 193 (App. Div. 2008) (quoting Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)), certif. denied, 199 N.J. 129 (2009).

We are satisfied that the judge's finding that the parties had a second contract for the second floor work is amply supported by adequate, substantial, and credible evidence in the record. See Rova Farms, supra, 65 N.J. at 484. However, the record does not support the judge's finding that the second contract did not include the roof, nor does it support the judge's calculation of damages. The judge did not explain why she began with the $10,500 figure in calculating the judgment instead of the $18,500 plaintiff sought or the $16,000 she found to be the second contract price, nor did she mention the $4,000 defendant paid plaintiff for the roof. Accordingly, we remand for an explanation and recalculation of the judgment amount and for entry of an amended judgment.

Affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion. We ...

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