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J. Ricciardella & Sons Quality Homes, Inc. v. Mamary

Superior Court of New Jersey, Appellate Division

August 23, 2013

J. RICCIARDELLA & SONS QUALITY HOMES, INC., Plaintiff-Respondent,
v.
BASSAM MAMARY and GEORGINA MAMARY, Defendants-Appellants.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued April 17, 2013

On appeal from Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-3559-08.

John R. Edwards, Jr., argued the cause for appellants (Price, Meese, Shulman & D'Arminio, P.C., attorneys; Mr. Edwards, on the brief).

Elaine Berkenwald argued the cause for respondent (Law Offices of Giblin & Giblin, attorneys; Ms. Berkenwald, of counsel and on the brief).

Before Judges Grall, Simonelli and Accurso.

PER CURIAM

Plaintiff J. Ricciardella & Sons Quality Homes, Inc. and defendants Bassam and Georgina Mamary entered into a $1.4 million contract for the construction of a new home in Franklin Lakes. Plaintiff declared breach when defendants refused to pay the sixth of twelve scheduled payments, each but the first due as benchmarks in the project were met.

A jury trial was held on their competing claims. In addition to claiming breach based on defendants' failure to make the sixth payment, plaintiff alleged that defendants had not paid for work done out of order prior to the breach. Defendants' claims were that plaintiff terminated the contract without cause, failed to properly perform the work done and violated the Consumer Fraud Act, N.J.S.A. 56:8-1 to -20. At the close of plaintiff's case, the trial court denied defendants' motion for judgment pursuant to Rule 4:40-1.

The jurors found that plaintiff established a breach based upon defendants' failure to make the sixth payment, and for that reason did not wrongfully terminate the contract. They further found that plaintiff was entitled to $350, 000 for work done over and above the $430, 000 it had been paid. The $350, 000 amount included $183, 603 for the sixth payment. The jurors resolved defendants' claims against them, concluding that plaintiff had neither breached the contract nor violated the Consumer Fraud Act.

The trial court subsequently denied defendants' motion for judgment notwithstanding the verdict and entered a $350, 000 judgment in favor of plaintiff plus pre-judgment interest in the amount of $26, 053.42 and $315 for costs.

Defendants appeal and raise eight issues for our consideration:

I. THE TRIAL COURT ERRED IN DENYING [DEFENDANTS'] MOTIONS FOR JUDGMENT.
II. THE INTERPRETATION OF A CONTRACT IS AN ISSUE OF LAW FOR THE COURT TO DECIDE AND THE SIXTH PAYMENT WAS NOT DUE AS A MATTER OF LAW.
III. THE BUILDER'S UNLAWFUL TERMINATION OF THE CONTRACT RELEASED [DEFENDANTS] FROM FURTHER PERFORMANCE.
IV. THE PLAINTIFF FAILED TO PROVE AN ECONOMIC LOSS.
V. THE QUOTIENT VERDICT REQUIRES A NEW TRIAL.
VI. THE GROSSLY EXCESSIVE VERDICT REQUIRES A NEW TRIAL.
VII.NUMEROUS EVIDENTIARY RULINGS REQUIRE A NEW TRIAL.
VIII. THE BUILDER'S MISREPRESENTED CORPORATE STATUS (STILL EXTANT) BARS RECOVERY.

Plaintiff's evidence at the lengthy trial primarily consisted of the testimony of plaintiff's principal, James Ricciardella, Ricciardella's partner, his son, and the contractors and lawyer who worked for plaintiff on the project. Defendants' witnesses were the Mamarys and a friend of theirs who is a civil engineer. The witnesses for each side gave competing descriptions of the cause and severity of problems ranging from the installation of cracked bricks and different colored mortar on the home's exterior to structural flaws and the adequacy of efforts made to correct them.

Although resolution of the parties' competing allegations on proper performance largely turned upon an assessment of credibility, the evidence pertinent to the question whether the sixth payment was due under the terms of the contract was undisputed. Defendants claimed that the payment was not due because the basement staircase had not been installed and could not be installed until the basement floor was poured. Plaintiff did not dispute that the basement floor was not poured. Plaintiff ...


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