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KS Engineers, P.C. v. Tony Gomes Construction Co., Inc.

Superior Court of New Jersey, Appellate Division

July 2, 2013

KS ENGINEERS, P.C., Plaintiff-Respondent,


Submitted February 5, 2013

On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. L-7481-10.

Terence J. Wronko, attorney for appellant.

Law Offices of Robert C. Hess, attorneys for respondent (Robert C. Hess, on the brief).

Before Judges Fisher and St. John.


Defendant, Tony Gomes Construction Company, Inc., appeals from the February 8, 2012, judgment entered after a bench trial by the Law Division awarding $23, 000 to plaintiff KS Engineers, P.C. For the reasons that follow, we affirm.

The record discloses the following facts and procedural history.

On February 16, 2006, plaintiff, entered into a contract with defendant to provide engineering services with respect to defendant's construction of eighty-eight dwelling units for the Newark City Housing Authority (NHA).

The contract provided for the completion of three milestones. Upon the completion of each milestone defendant agreed to pay plaintiff the sum of $23, 000. The three milestones were: (1) plaintiff's submission to defendant and the NHA of site drawings and specifications; (2) submission of the plans approved by defendant and the NHA to the City of Newark Planning Board and plaintiff's attendance at Planning Board meetings and provision of expert testimony; and (3) plaintiff's revision of the plans based upon the comments of the Planning Board, and completion of the final plans, documents, specifications and permits, and commencement of construction.

On July 27, 2006, the NHA rescinded approval of the project and instructed defendant to stop work. On July 31, 2006, defendant instructed plaintiff to immediately halt work on the project. On August 31, 2006, plaintiff submitted an invoice to defendant in the amount of $53, 500. Although plaintiff conceded that the plans were never submitted to the Planning Board, plaintiff had made many revisions to the plans and had prepared them for submission to the Planning Board.

The parties disputed how much of the contract plaintiff had actually completed. On the one hand, defendant's project manager alleged that plaintiff had never submitted the site plans or the specifications. Notwithstanding this statement, the project manager conceded that he used the site plans when he later tried to revive the project with the NHA. Plaintiff's representative stated that the site plans had been completed and were ready for submission to the Planning Board. Although at trial, plaintiff's witness could not produce the specifications, he believed that they were submitted to defendant and that the parties had met to discuss them.

After a bench trial, the judge concluded that plaintiff had completed the first milestone of the contract and was therefore entitled to a payment of $23, 000. The court made a finding, based on certain credibility determinations, that the plaintiff had proven by a preponderance of the evidence that the site plans and specifications had been prepared by the plaintiff and submitted to defendant. The judge noted "[t]here was a discussion conceded by Mr. Gomes about using plans that already existed[, ]" in connection with rebidding the project. The judge entered an order on February 8, 2012 in favor of plaintiff in the amount of $23, 000. It is from that judgment that defendant appeals.

On appeal, defendant claims that plaintiff provided no proof that it had submitted specifications. As such, defendant believes that the court erred by awarding plaintiff $23, 000 because the first prong of the contract required site plans as well as specifications, and according to defendant this was never completed.

"'The scope of appellate review of a trial court's fact-finding function is limited.'" Seidman v. Clifton Sav. Bank, S.L.A., 205 N.J. 150, 169 (2011) (quoting Cesare v. Cesare, 154 N.J. 394, 411-12 (1998)). "'[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.'" Ibid. (quoting In re Trust Created By Agreement Dated Dec. 20, 1961, ex rel. Johnson, 194 N.J. 276, 284 (2008)). "Deference is especially appropriate when the evidence is largely testimonial and involves questions of credibility." Ibid. (quoting Cesare, supra, 154 N.J. at 411-12). "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." Ibid. (quoting Cesare, supra, 154 N.J. at 411-12). However, we owe no deference to a trial court's interpretation of the law, and review issues of law de novo. State v. Parker, 212 N.J. 269, 278 (2012); Mountain Hill, L.L.C. v. Twp. Comm. of Middletown, 403 N.J.Super. 146, 193 (App. Div. 2008), certif. denied, 199 N.J. 129 (2009). We also review mixed questions of law and fact de novo. In re Malone, 381 N.J.Super. 344, 349 (App. Div. 2005). Applying these well-established standards of review here, we discern no basis to set aside the final judgment.

Here, the court made a determination that Mr. Gomes' testimony was not credible when he stated that he had not received the plans and specifications. The judge found that the plaintiff had completed the first milestone of the contract and was entitled to be paid for its services. There is substantial credible evidence in the record to support the judge's factual findings, and we are in agreement with his application of the law to those factual findings. We discern no basis to disturb his decision.


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