April 9, 2012
DMS FARM, L.L.C., PLAINTIFF-RESPONDENT,
PATRICK NELSON, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Docket No. L-1694-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 20, 2011 -
Before Judges Messano and Kennedy.
Following a non-jury trial, the judge entered final judgment in favor of plaintiff, DMS Farm LLC, against defendant Patrick Nelson in the amount of $89,495.33. Defendant appeals and we affirm.
On May 15, 2009, plaintiff filed its complaint alleging that defendant breached a contract entered into for the boarding of defendant's horses at plaintiff's facility. Plaintiff alleged defendant owed more than $29,000 at the time the complaint was filed and reserved the right to add additional charges that might accrue until trial or defendant's vacation of the premises.
Defendant filed a pro se answer. Although specifically not pleading a counterclaim, defendant alleged that he fed and supplied services to plaintiff and its horses, and plaintiff's failure to repair the property resulted in "harm and health problems" to defendant's animals.
The following evidence was adduced at trial held on September 27, 2010. Plaintiff breeds, trains and boards horses at its farm in Jobstown, New Jersey. The business is owned and operated by Dominick Schina. On May 15, 2007, plaintiff entered into a lease with defendant whereby he agreed to rent grazing ground and stable space at a monthly price of $100 per female horse ("broodmare"). According to Schina, the parties also orally agreed to individual rates of $150 and $200 per month for a pair of male horses ("stallions"), and $100 per month for additional yearlings and two-year-old horses from time to time. The written agreement provided that the month-to-month lease could be terminated by either party upon thirty days notice, and it did not provide for late fees or interest charges.
The parties operated under this agreement until July 25, 2008, when they executed a second, hand-written agreement. Pursuant to its terms, defendant agreed to pay $9000 in accumulated unpaid rental fees, late charges and repair costs in five weekly installments of $1800, terminating on August 19. Schina testified that $9000 was considered a settlement for all previous debts owed by defendant. The agreement contained no express provisions for payment after August 19, 2008.
Defendant made a total of $4100 in payments during August, leaving a balance of $4900. Schina testified that he then added back all "the late fees, interest, and . . . expenses" that defendant owed and which plaintiff waived under the August agreement. Schina further explained that plaintiff assessed a ten percent late fee whenever defendant failed to pay his rent in a timely fashion. Thereafter, rental fees, interest charges, and late fees accumulated over the following months until the parties attempted another settlement in December 2008.
Plaintiff agreed to waive approximately $3,500 in late fees and charges in exchange for defendant's payment by January 31, 2009 of a reduced sum -- $12,600 on a $12,948.16 balance. Defendant failed to make the payment, and Schina reinstated the charges and continued to bill defendant thereafter until trial. Schina testified that defendant presently owed $98,586.50 and had not made any payments during the previous year. He identified from detailed billing statements how the amount was calculated.
Defendant testified regarding the physical conditions of the premises, including poor fencing, a leaky roof, and harmful weeds in the grazing pasture. During cross-examination, Schina acknowledged much of this was true. Defendant also disputed the number of horses for which he was billed under the lease. He testified, for example, that he never kept thirty horses on the premises as claimed by plaintiff. Defendant disputed the accuracy of an investigative report prepared by the New Jersey Department of Agriculture (DOA), dated August 28, 2008, that stated he was the owner of thirty-one horses on the premises. Defendant claimed that the original 2007 agreement permitted him to board only fourteen broodmares, and he should be billed for only that number of horses.
Defendant further testified that plaintiff refused to permit him to remove his horses, even though "there was toxin in the field," a claim he said was supported by the DOA report. As a result, defendant believed he was entitled to a $28,000 credit for feed he was required to purchase to keep his animals healthy.
Lastly, defendant contended that any agreement was invalid because Schina and the police forbade him from removing the animals at a time when he was not in arrears. Defendant claimed that he continued to board his horses with plaintiff "under duress."
Schina testified that he informed defendant the horses were being held pursuant to state statute because of arrears. The DOA report indicated that defendant was "under investigation by SPCA since February 2008," and DOA had documented that defendant's "husbandry and management practices [were] less than adequate." The report also notes that a "stop movement was placed on the farm" in August 2008, and lifted in September.
In rendering his oral decision, the judge concluded there was a "contract written and oral." He noted that in May 2008, defendant owed plaintiff certain fees, and, as of July 2008, the parties attempted to work out an agreement by which defendant could "satisfy his obligation to plaintiff." Citing the "Livery Stable[s], and Boarding and Exchange Stable Keeper's Act," the judge found that plaintiff had a valid lien on the horses, and was permitted to retain them until the debt was paid. The judge further found that defendant gave plaintiff notice of termination in May 2008, citing a letter to that effect.*fn1
Regarding defendant's claim for a credit for feed he supplied, the judge noted that "[h]ow that food was allocated from horse to horse, I don't know. . . . And I don't think there's any proof in all the documents one way [or] the other [that] will say how many bales of hay each horse received during that period of time."*fn2
Reviewing plaintiff's billing records, the judge concluded that "on average there were [nineteen] mares on this property," "[t]wo stallions," and other yearlings and three-year-old horses. The judge ordered plaintiff's counsel to furnish "an accounting" based on these findings. He also would "not allow late charges because the written contract provides nothing for late charges." The judge granted plaintiff interest on the amount at "1.5 percent per month." He then directed plaintiff's counsel to subtract all [monies] paid by [defendant] and . . . give him credit for all the feed which he provided for the horses, . . . and as I stated before, I cannot allow credit for other items of feed, et cetera, [be]cause I don't know what was paid and what was allocated to [defendant's] horses or to Schina's horses.
The record contains the accounting plaintiff submitted that reflected a final balance as of September 2010 in the amount of $89,495.33.
Defendant apparently objected to the accounting since the order under review reflects in the judge's hand writing that "[d]efendant's objection received and noted." Whatever objection defendant forwarded to the judge is not in the record.
As we can best discern, defendant contends that the judge erred by failing to give him a $28,000 credit for feed he supplied and by failing to limit his liability to charges associated with fourteen horses, the number contained in the May 2007 agreement. He argues "there [was] no evidence or proof on record to support th[e] judgment." Additionally, defendant contends that he terminated the lease and was forced to continue to board his horses at plaintiff's facility under duress.
Our review of the factual findings made by the trial judge in a non-jury trial is quite limited. Estate of Ostlund v. Ostlund, 391 N.J. Super. 390, 400 (App. Div. 2007). "[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) (internal quotation marks omitted)). In general, the judge's factual "findings . . . should not be disturbed unless they are so wholly insupportable as to result in a denial of justice." Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 483-84 (1974) (citation and internal quotation marks omitted).
Here, the judge based his ultimate calculation on the post-trial submission of plaintiff after considering defendant's objection. The judge clearly indicated that while defendant was entitled to some credit for feed he supplied, he was not entitled to the full amount claimed. The accounting submitted provided defendant with some of these credits. It is also clear that the judge discounted some of the claims plaintiff made regarding the number of horses defendant boarded, and calculated an amount of damages that reflected fewer horses actually boarded by defendant. Because the judge's award was supported by adequate, substantial and credible evidence in the record, id. at 484, we find no basis to disturb the judgment.
We also reject defendant's assertion that the judgment was invalid because he continued to stable his horses at plaintiff's facility under duress. The Livery Stables and Boarding and Exchange Stable Keepers Act, N.J.S.A. 2A:44-51 to -52, provided plaintiff with "a lien on all animals left with him in livery, for board, sale or exchange . . . for the amount due" and plaintiff had the right "to retain the same until the amount of such indebtedness is discharged." N.J.S.A. 2A:44-51. "It is not duress to enforce a legal right under a valid artisan's or mechanic's lien or other similar lien against property that permits the detention of property as an appropriate method of enforcement of the lien." 28 Williston on Contracts § 71:28 (4th ed. 2003).