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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,
v.
TONY GOMES CONSTRUCTION COMPANY, INC., Defendant-Appellant.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

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.

PER CURIAM

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On July 27, 2006, the NHA rescinded approval of the project and instructed defendant to stop work.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 ...


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