On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-3268-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 11, 2012
Before Judges Reisner and Harris.
Defendant Liberty View Construction Corp. appeals from a May 11, 2011 order, entered after a bench trial, granting a $115,775 judgment in favor of plaintiff Precision Mirror & Glass, Inc. and dismissing defendant's counterclaim. On this appeal, defendant contends that the verdict was against the weight of the evidence, the trial judge misapplied the Uniform Commercial Code (UCC), N.J.S.A. 12A:1-101 to 2-725, and the judge misconstrued the New Jersey Consumer Fraud Act (CFA), N.J.S.A. 56:8-1 to -20. Having reviewed the record, we find no merit in any of these contentions, and we affirm.
Plaintiff sued defendant, a general contractor, on a book account for the delivery and installation of mirrors and glass shower enclosures in a newly-constructed residential complex on the Jersey City waterfront. Defendant filed a counter-claim for breach of contract and violation of the CFA.*fn1 In his opening statement, plaintiff's counsel asserted that the case involved a "classic textbook UCC case" involving a "business to business transaction." He also asserted that defendant did not conform to the UCC's notice provisions. Defense counsel did not disagree that the UCC governed the case.*fn2
According to defense counsel, the CFA claim was based on allegations that defendant was "billed for items that were not received" and that "some of the items received did not conform to the . . . proposal or the invoice." Specifically, defendant claimed that plaintiff sent defendant $68,000 worth of invoices for items that were not delivered, and either caused damage or installed goods in a defective manner, which cost defendant $13,000 to repair or correct. Liberty also claimed a $27,000 credit for defective work for which Liberty already paid plaintiff.
This was the most pertinent trial evidence. Plaintiff presented testimony from its president, Thomas Basile. He testified that his company manufactured "frameless glass shower enclosures and custom mirrors and glass." Plaintiff was the only company in the industry that made frameless glass doors, and was able to produce them to order and install them within short time frames. Basile described the parties' course of dealing as follows. In 2007, defendant solicited a preliminary quote for glass doors and mirrors for its project. Plaintiff sent a proposal for "only the units that were ready at the time," and defendant accepted it. Thereafter, the parties proceeded on the basis of phone calls with documents to follow. "They would call us up and say we need units, Building 3, units 5 through 12." After its employee took measurements in those units, plaintiff would send defendant a written proposal. On acceptance, defendant would "produce a purchase order for each of those units . . . accepting the price and the product that we described." According to Basile, "[w]e have a purchase order for everything that was ever sent to them." Plaintiff would then manufacture the required doors and mirrors, install them, and send defendant a bill. The work primarily involved installing one shower door and several mirrors in each unit. Each door and mirror was custom made, specifically for the job for which it was ordered, and was cut to fit the measurements of the unit in which it would be installed.
The arrangement proceeded without incident, with defendant making timely payments, until late December 2007, when Basile received a phone call from someone at Liberty telling him that the payment check would be delayed but "not to worry." When a handwritten check arrived, instead of the usual computer-generated check, Basile worried that perhaps Liberty was running short of funds. Defendant sent one more computer-generated check for $56,794, on March 19, 2008, and then stopped making payments.
Between December 2007 and March 2008, the job site became "chaotic," after defendant replaced all of its staff on the project. In "early 2008," defendant's president Peter Moccia told Basile that defendant was having some financial problems and asked for a discount on the price defendant had already agreed to pay, for mirrors defendant had already ordered. In an attempt to preserve the parties' ongoing business relationship, Basile agreed to the discount. During his testimony Basile identified a summary his office had prepared from its computerized records, showing the proposals submitted, the invoices sent, and payments received. He also identified the invoices that defendant had not paid.
According to Basile, in March 2008, defendant became delinquent in paying the invoices and Basile demanded payment. In response, for the first time, defendant's new project manager notified Basile that items were "missing." Basile testified that on a large job site, it was not unusual for mirrors to be missing from individual units; sometimes they were stolen from the job site or installation might be delayed due to ongoing work by other construction professionals. However, he and the project manager reached an agreement on a payment plan, in return for which plaintiff would supply or replace mirrors defendant claimed were missing from certain units.
However, defendant failed to pay the outstanding invoices and, apart from the one phone call about some missing mirrors, defendant never gave plaintiff notice as to any items that were nonconforming or work that was substandard. Defendant never provided a "punch list" of work that needed to be corrected.
Basile also testified that although plaintiff's proposals included the cost of installation in the price of the goods, even if defendant decided not to accept delivery, defendant was still obligated to pay for the items once they were manufactured because the mirrors and doors were custom-made. Plaintiff introduced in evidence its invoices and the signed packing slips documenting defendant's receipt of the goods for which it failed to pay.
Defendant's first witness, Don Leenig of Anthony's Custom Closets (Anthony's), provided glass shower doors and mirrors to the project starting in March 2008. His company followed the same business practice as plaintiff, i.e., providing and installing the product based on a written proposal that defendant had accepted. However, unlike plaintiff, Anthony's did not manufacture the products but instead bought them from a manufacturer. Like Basile, Leenig confirmed that once a shower door was custom-made, he would expect the client to pay the entire price quoted in the proposal, even if the client refused to accept delivery or permit installation. Although his company essentially replaced plaintiff on the project, Leenig did not testify that his company was asked to cure any deficiencies in plaintiff's work or even that he noticed any such problems while his company was working on the job.
Defendant next called Brian Murray, who was hired to replace defendant's prior project manager in mid-February 2008. Murray testified that when he took over the job, he reviewed invoices and concluded that plaintiff's prices were too high. His staff also reported to him that there were some problems with plaintiff's work, such as too much caulking around some of the mirrors and some mirrors being smaller than the proposals called for. He testified that he back-charged plaintiff for these defects. However, he admitted on cross-examination that he never notified plaintiff in writing of these alleged problems or gave plaintiff an opportunity to cure the deficiencies. He claimed he made a couple of phone calls to plaintiff, but did not describe any problems "in specificity." He admitted that "[w]e never had a face to face or a ...