On appeal from the Superior Court of New Jersey, Law Division, Cape May County, Docket No. L-553-04.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Telephonically argued June 3, 2011
Before Judges R. B. Coleman, Lihotz and J. N. Harris.
Defendant Barbara Bednar appeals from a final judgment granting relief to plaintiff Michael A. Walter Builders, Inc. following a bench trial, and an order dismissing her counterclaim. On appeal, defendant argues the trial court's factual findings are not supported by the record and certain legal conclusions supporting the relief ordered in favor of plaintiff and in dismissing her counterclaim were reached in error.
These facts are contained in the trial record. Defendant owned the
Heritage Inn Motel in Cape May. Defendant had obtained architectural
and mechanical drawings for the motel's proposed modifications that
were prepared by architect Blane Steinman, mechanical engineer John
Schade, P.E., and structural engineer Tom Shepard. After reviewing
these materials, plaintiff's principal, Michael A. Walter, drafted
estimates for completion of the job and submitted his "Proposal" dated
November 20, 2003, which was accepted by defendant. In the contract,
plaintiff, designated as "the Builder," would construct a third-floor
addition to the motel and perform other renovations*fn1
for defendant, designated as "the Customer," for the agreed
sum of $1,037,300.
Certain provisions of the proposal as accepted by the parties as their
contract are relevant to our review. First,
the proposal expressly incorporated Steinman's architectural plans
that utilized Schade's mechanical specifications for thirty-three
Mitsubishi "heat pump systems at 14,500 BTUs cooling."*fn2
Also, the plans required each room to be equipped with
condenser and air handling units from the same manufacturer with the
same energy output of 14,500 BTUs.
Second, the agreement included a payment schedule to provide fourteen draws. Each draw was in a stated amount and was due upon completion of various stages of the project.
Third, all renovations and the addition were to be completed within six months from the date construction commenced, or by May 20, 2004. The agreement allowed a thirty-day extension for weather-related delays.
Fourth, additional general provisions: (1) mandated any changes were not effective "unless in writing, signed by both Builder and Customer"; (2) required builders' risk insurance be "provided by [the] Builder to [the] Customer for [the] new addition" and the Customer would provide home-owner's insurance "for [the] existing hotel"; (3) provided the "Builder will guarantee all workmanship of [the B]uilder and all of [the] Builder's Subcontractors, for one year from the day of settlement."
Two additional provisions listed under "Additional Clauses" must also be mentioned. Subsection (F) stated, in pertinent part:
Additional work may be performed on hotel. Cost for work will be priced by Builder and accepted by Customer. A spreadsheet for additional items will be provided and updated by Builder periodically. . . . Payments for work shall be made the beginning of each month, during construction. Ongoing cost for additional work shall not exceed 2% of the total house [sic] construction cost, as stated [i]n this [c]ontract.
Additional work performed will affect the time of [a]ddition/renovation completion. . . . and ...