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Lawn Doctor of Flemington v. Sharol Lewis

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


July 6, 2011

LAWN DOCTOR OF FLEMINGTON, PLAINTIFF-RESPONDENT,
v.
SHAROL LEWIS, DEFENDANT-APPELLANT.

On appeal from Superior Court of New Jersey, Law Division, Hunterdon County, Docket No. DC-3184-09.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted March 9, 2011

Before Judges Fuentes and Ashrafi.

In this breach of contract/book account case, defendant Sharol Lewis appeals from the judgment of the Law Division, Special Civil Part, finding her liable to plaintiff Lawn Doctor. We affirm. We derive the following facts from the evidence presented at trial.

Plaintiff is in the business of providing lawn maintenance services in the form of fertilizers and other chemical processes. Beginning in 2004, defendant retained plaintiff to provide lawn services for her house in Lebanon. Plaintiff's office manager Keith Seery testified he sent defendant a letter in 2007 concerning the scope of services to be provided in 2008, including the rate and method of payment. Specifically, defendant was given the choice of making one lump sum payment with a corresponding savings incentive, or making eight monthly payments with coupons to be provided. According to Seery, in a telephone call on January 19, 2008, defendant agreed to renew the contract for 2008 and opted for the eight month payment plan.

Plaintiff provided lawn maintenance services for April, June, August, October, and November 2008. Consistent with company policy, Seery testified that each time service was provided a "service flag" was placed on defendant's lawn and a bulletin was left on her door. According to company billing records, which are kept and maintained in the ordinary course of business, the value of the services defendant received in 2008 was $2,261.92. Defendant did not make any payments on this account.

Christopher Kotalic, the owner/operator of this particular Lawn Doctor franchise, testified that he is involved in the dayto-day operations of the business. In this capacity, Kotalic had three or four conversations with defendant concerning her delinquent account. He recalled one specific conversation that took place in the spring of 2009, after defendant received a collections letter. According to Kotalic, defendant agreed to pay the entire balance due for 2008 and prepay for services to be provided in 2009 if he would agree to "take her out of collections." Kotalic agreed. However, when he sent a staff person to defendant's home to get the check, "she was nowhere to be found." Subsequent attempts to reach defendant by telephone were unsuccessful.

Defendant, a non-practicing physician, testified she was in rehabilitation during most of 2008 and as a result the house was not occupied during most of that year. She stated she was unaware of any lawn services plaintiff allegedly provided until October 2008, when she first received a collections letter. She also stated she could not have retained plaintiff in 2008 because she was battling severe physical problems during this time and made a decision to prioritize her physical recovery over household related expenses.

As a practical matter, defendant also argued plaintiff should have been aware of her decision not to renew the contract for 2008 based on the condition of her lawn. According to defendant, the "chemical" lawn services provided by plaintiff required coordination with the lawn maintenance provided by the individual who trimmed or mowed her lawn. Thus, plaintiff should have been aware of her decision not to renew the contract based on the neglected condition of her lawn, which grew high and wild during 2008, and on a lack of any response from her for over a ten-month period of time.

Against this record, the trial judge found in plaintiff's favor based primarily on credibility grounds. The judge accepted as credible the testimony of Seery and Kotalic and rejected defendant's account of events. The court entered judgment against defendant in the amount of $2,221.92, and denied plaintiff's application for interest and late fees.

In reviewing the factual findings and legal conclusions of a trial court, our role as an appellate court is carefully circumscribed: "'[W]e do 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[.]'" In re Trust Created By Agreement Dated December 20, 1961, ex rel. Johnson, 194 N.J. 276, 284 (2008) (quoting Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974) (internal quotation marks and citations omitted)).

Applying this standard of review to the record developed before the trial court, we discern no legal basis to interfere with its ruling. We thus uphold the trial court judgment substantially for the reasons expressed by Judge Hany Mawla in his oral opinion of April 5, 2010.

Affirmed.

20110706

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