June 9, 2011
CHARLES HARRIS, PLAINTIFF-RESPONDENT,
ROBERT A. BLUM, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Warren County, Docket No. L-373-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 5, 2011
Before Judges Wefing and Payne.
Defendant appeals from a judgment for $6,888 plus costs entered in plaintiff's favor following a jury trial. After reviewing the record in light of the contentions advanced on appeal, we affirm.
Plaintiff and defendant had an oral contract in connection with defendant building a new home for himself and his family.
Plaintiff is a mason, and defendant hired plaintiff to complete certain masonry work in connection with that project. The parties disputed the nature of their contract. Plaintiff maintained that the contract was to construct the fireplace and chimney while defendant insisted that the contract encompassed not only the fireplace and chimney but additional exterior stone work around the front door, the second-story picture window and the garage.
Plaintiff said he submitted three proposals to defendant for the fireplace and chimney work, with prices varying depending upon the nature of the stone defendant selected. After reviewing these proposals, defendant selected plaintiff's quote of $16,000, which was based upon having the interior fireplace constructed of real stone and the exterior chimney finished in cultured stone. Defendant testified that he understood the $16,000 to represent the total price for the fireplace, chimney, and additional exterior stonework while plaintiff testified that the $16,000 referred solely to construction of the fireplace and chimney. Defendant made two separate payments of $4,000 each.
Plaintiff testified that he encountered various unexpected delays in completing the work. When he and his workers arrived on the site, they found a large beam spanning where they were to work. Plaintiff said his workers had to saw the beam to permit them access to the work site. He also said that a portion of the basement foundation had not been completed properly, and his workers had to lay additional concrete block. In addition, he said the masonry work was twice interrupted when he had to dismantle his scaffolding to permit other trades to have access.
Disputes erupted between the parties, and defendant was unhappy both with the progress and the quality of the work. He complained to plaintiff that the spacing between the stones was too large and as the cold weather set in, problems developed with the cement setting properly. Eventually, defendant terminated plaintiff from the job and retained another mason to complete it.
Plaintiff went to defendant's office to collect the balance he contended was due for the work he had completed. The two men got into an argument. Defendant said that plaintiff had raised his fist to him. As defendant, who was sitting in his chair, raised his feet to protect himself, plaintiff grabbed his feet and flipped him out of his chair. Plaintiff, on the other hand, said defendant tried to kick him and that he grabbed defendant's feet to protect himself.
Eventually, plaintiff filed suit, alleging he was owed $15,683.86. Defendant answered and filed a counterclaim, seeking damages for breach of contract and emotional distress. Defendant in his testimony said that it had cost him approximately $9,600 to have the work completed after he removed plaintiff from the job. The jury by its verdict indicated that it did not entirely accept the testimony of either party.
Defendant presents two arguments on appeal -- that plaintiff did not have standing to sue and that the jury's verdict was against the weight of the evidence. Our review of these two contentions is limited by the fact that defendant sought and obtained leave from the trial court to file an abbreviated transcript containing only the testimony of the parties. We thus do not know whether defendant ever made a motion to the trial court to dismiss plaintiff's complaint on the basis of standing. Nor do we know whether defendant ever filed a motion for a new trial on the ground that the verdict was against the weight of the evidence, a necessary predicate to defendant being permitted to present that argument on appeal. R. 2:10-1.
Defendant's argument with respect to standing rests on the fact that plaintiff sued as an individual while defendant asserted he contracted with a corporation, C.E.H. Construction. We note first that C.E.H. Construction's own invoices contain no indication that C.E.H. Construction is a corporation as opposed to a sole proprietorship. Plaintiff testified that he was the one hundred percent owner of C.E.H. Construction, and there was no proof to the contrary. Further, defendant in his answer did not raise a question with respect to standing and indeed filed a counterclaim seeking to recover from plaintiff individually. Even if we were to deem the question of standing to have merit (a proposition that on this record is dubious), defendant's answer and counterclaim constitute a waiver.
We have noted the procedural obstacle to defendant's second argument. Even in the absence of that roadblock, the argument lacks substantive merit. The jury was presented with significantly different versions of the parties' contractual relationship and was free to make its own determination.
The judgment under review is affirmed.
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