On appeal from the Superior Court of New Jersey, Law Division, Special Civil Part, Bergen County, Docket No. DC-26023-10.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted August 29, 2011
Before Judges Alvarez and Nugent.
Defendant, Landscape Stone Sauna Design Co., appeals from the November 15, 2010 order entering a $2,720 judgment in favor of plaintiffs, Natalie and Robert Hulik, at the conclusion of a non-jury trial. We affirm.
At trial, plaintiffs testified they paid defendant $7,500 to install a pond and waterfall on their property. When Aleh Zheliazouski, defendant's principal, excavated for the pond, he dumped the excavated soil behind a retaining wall, and was supposed to replace it around the pond and waterfall when the job was complete so that it did not run into the pond. He never replaced it. As a result, the soil eventually washed into the pond and contaminated it. Decorative rocks were covered with mud, and dirt caused the waterfall feature to leak.
Plaintiffs also testified Zheliazouski did not perform the landscaping required by the contract, including planting nine evergreens. Finally, they testified Zheliazouski installed an electrical receptacle in violation of the electrical code. Plaintiffs retained another contractor to remedy the problems.
The other contractor, Marek Pernis, testified that plaintiffs called him to repair the pond and waterfall. When he first inspected them, he immediately saw that the wrong filter system had been used. The filter system had an above-ground pump that would never pull underground water, instead of an underground pump below the water level. Pernis also testified that the electrical wiring for the pond was "piggy-tailed to the outdoor outlet" instead of being connected directly to the main breaker. Additionally, the electrical wire for the pond was only three inches below ground level and the electrical code required it to be eighteen inches beneath the surface. Finally, Pernis testified that the soil behind the retaining wall eventually ran into the pond.
To remedy the problems, Pernis installed a French drain to prevent water running down and causing the pond to overflow. He also sealed the plumbing on the back of the water feature to prevent it from leaking. Plaintiffs had paid Pernis $2,720 as of the date of trial. Additional work was still required.
Zheliazouski and his witness, Zhanna Jolamanova, disputed the testimony of plaintiffs and Pernis. Zheliazouski testified that he deposited the soil where plaintiffs told him to put it. Although the written contract indicated that electrical work was included in the project's price, he told plaintiffs they had to get an electrician to install the electric. Zheliazouski claimed plaintiffs had run out of money and asked him to install a temporary electrical connection, which he did, even though he did not have an electrician's license. He denied installing the wrong pump and filtration system. Jolamanova corroborated his testimony.
The trial court found that the parties' contract required defendant to perform the electrical work and landscaping, including the planting of nine evergreens. Finding the testimony of plaintiffs and Pernis credible, the court determined that there was a difference between an above-ground and underground pump, and that defendant installed the wrong pump and improperly installed the temporary electrical fixture. The court also found that defendant failed to perform the landscaping required by the contract. The court awarded plaintiffs damages of $2,720, the sum they had paid to Pernis to perform remedial work as of the date of the trial.
Our scope of appellate review of a judgment entered in a non-jury case is limited. Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974). The findings of fact on which the judgment is based "should not be disturbed unless 'they are so wholly [u]nsupportable as to result in a denial of justice[.]'" Id. at 483-84 (quoting Greenfield v. Dusseault, 60 N.J. Super. 436, 444 (App. Div.), aff'd o.b., 33 N.J. 78 (1960)). "Thus, '[w]e do not weigh the evidence, assess the credibility of witnesses, or make conclusions about the evidence.'" Mountain Hill, L.L.C. v. Twp. of Middletown, 399 N.J. Super. 486, 498 (App. Div. 2008) (quoting State v. Barone, 147 N.J. 599, 615 (1997)). "Because a trial court 'hears the case, sees and observes the witnesses, [and] hears them testify,' it has a better perspective than a reviewing court in evaluating the veracity of witnesses." Pascale v. Pascale, 113 N.J. 20, 33 (1988) (quoting Gallo v. Gallo, 66 N.J. Super. 1, 5 (App. Div. 1961)).
Here, the testimony was conflicting. The trial court resolved the conflicting testimony against defendant after finding that plaintiffs and Pernis were credible, and that defendant breached its contract by not replacing the excavated soil, by not completing the landscaping, and by installing the wrong pump and a deficient electrical system.
Having considered the record we find no reason to disturb the judge's findings, which are supported by sufficient credible evidence in the record. Rova ...