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Peltier v. Barbera

Superior Court of New Jersey, Appellate Division

December 10, 2013

SONYA PELTIER, Plaintiff-Appellant,
JUSTIN BARBERA, Defendant-Respondent.


Argued December 3, 2013

On appeal from Superior Court of New Jersey, Law Division, Burlington County, Docket No. DC-5760-12.

Mark J. Molz argued the cause for appellant.

Respondent has not filed a brief.

Before Judges Fisher and Espinosa.


Plaintiff, a homeowner, filed a complaint in the Special Civil Part in which she alleged that defendant, a contractor, had breached his contract with her by failing to complete work for which he was paid by her homeowner's insurance carrier. Following a bench trial, the trial court found she had proven the defendant was liable for breach of contract but dismissed her complaint because, the court found, plaintiff had failed to prove she had suffered any damages as a result of the breach. Plaintiff appeals from that judgment.[1] We reverse.

The scope of our appellate review of judgment entered in a non-jury case is limited. We exercise our original fact-finding jurisdiction sparingly and will not disturb the findings on which the trial court's judgment is based "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) (internal quotation marks omitted); accord In re Trust Created by Agreement Dated Dec. 20, 1961, ex rel. Johnson, 194 N.J. 276, 284 (2008). "Findings by the trial judge are considered binding on appeal when supported by adequate, substantial and credible evidence." Rova Farms, supra, 65 N.J. at 484. Therefore, our first inquiry is to determine whether "there is substantial evidence in support of the trial judge's findings and conclusions." Ibid. In this case, we find that the record fails to support the trial court's conclusion that plaintiff failed to prove she suffered any damages as a result of defendant's breach.

Because the trial court's finding of liability is unchallenged on appeal, we need not engage in an extensive review of the facts.

After plaintiff's home sustained damage from a storm, defendant, a home improvement contractor, suggested she file a claim with her homeowner's insurance carrier. The parties entered into an "Insurance Restoration Contracting Services" agreement, dated June 19, 2011, in which defendant agreed to complete all repairs to plaintiff's property identified in the insurance carrier's worksheet. The agreement stated, "IF THE OWNER'S INSURANCE CLAIM IS DENIED, THIS CONTRACT IS VOID."

The carrier engaged United Storm Adjusters to assess the damage and estimate the cost of repairs for the scope of damages covered by the claim. The adjuster inspected the damage on August 12, 2011 and prepared an estimate, which identified the necessary repairs and concluded that plaintiff was entitled to receive $13, 558.17 to satisfy her claim, identified by the Claim Number 052600250426.

Thereafter, the parties entered into another written contract, dated September 16, 2011, that made explicit reference to Claim Number 0562600250426. The agreement stated in pertinent part:

• Justin R. Barbera LLC, is agreed [sic] to make all repairs to the above client in the manner stated in the insurance claim.
• Work on the home has started before the date on this contract and will continue until complete.
• Materials-Labor-Profit-Disposal-Permits are being paid thru this claim and no cost is incurred to the home owner.
• This contracts [sic] purpose is to clarify any existing questions or alleviate any doubt on the extent of Justin R. Barbera LLC obligation to this claim. Contract is a binding agreement between homeowner and contractor for services outlined in insurance claim and all payments from the insurance company are to be paid to Justin R. Barbera LLC for services rendered.

[Emphasis added.]

Defendant received payments from the carrier as follows: $5450 on August 17, 2011, for remediation; $11, 785.70 on September 9, 2011, as "final payment"; and, an additional, reduced payment of $1940 on an invoice dated September 22, 2011. Plaintiff testified that defendant did not complete the work for which he was paid by the carrier, specifically identifying the following work along with the amount paid by the insurance company for the completion of the work:

Roof & Exterior

Shingle Lift


General Demolition


R&R Gutter Downspout


Bedroom 1

Paint Walls & Ceilings


Floor Protection


Mask Walls


Content Manipulation


R&R Batt Insulation 6" R19


Batt Insulation 10" R30


Bedroom 2

R&R Acoustic Plaster


Paint Walls & Ceiling


Floor Protection


Mask Walls


Content Manipulation




Plaintiff relied upon these calculations, included within the insurance adjuster's estimate, to prove the damages caused by defendant's failure to perform the specified work. The trial court concluded that this evidence was insufficient to determine the loss suffered, stating:

The Court would need to have an estimate from a professional, another contractor, who had gone out to the property, inspected it, said . . . this work needs to be done and this is how much it cost. And that contractor would have had to have been called into court to testify at trial. I simply do not find that plaintiff has proven by a preponderance of the evidence ascertainable damages.

We disagree.

Here, it is undisputed that defendant breached the contract, and the evidence supports the conclusion that plaintiff suffered damages that were "a reasonably certain consequence of the breach." See Totaro, Duffy, Cannova and Co., L.L.C. v. Lane, Middleton & Co., L.L.C., 191 N.J. 1, 14 (2007) (quoting Donovan v. Bachstadt, 91 N.J. 434, 445 (1982)). Accordingly, "mere uncertainty as to the quantum of damages is an insufficient basis on which to deny the non-breaching party relief." Ibid. See Kozlowski v. Kozlowski, 80 N.J. 378, 388 (1979) ("Where a wrong has been committed, and it is certain that damages have resulted, mere uncertainty as to the amount will not preclude recovery--courts will fashion a remedy even though the proof on damages is inexact."). It is "sufficient that the plaintiff prove damages with such certainty as the nature of the case may permit, laying a foundation which will enable the trier of the facts to make a fair and reasonable estimate." Totaro, supra, 191 N.J. at 14. Because compensatory damages are designed to put the injured party in the position he or she would have been in if there had not been a breach, "[s]pecific rules or formulas are 'subordinate to this broad purpose' and should not be invoked if they 'defeat[] a common sense solution.'" St. Louis, LLC v. Final Touch Glass & Mirror, Inc., 386 N.J.Super. 177, 188 (App. Div. 2006)(quoting 525 Main Street Corp. v. Eagle Roofing Co., 34 N.J. 251, 254 (1961)). See 24 Samuel Williston & Richard A. Lord, A Treatise on the Law of Contracts § 66:17 (4th ed. 2002).

Defendant agreed to perform the services identified in the insurance claim for the amounts specified in the insurance estimate. Plaintiff, whose testimony the court found to be credible, testified that defendant failed to perform specific services for which he was paid by the carrier. It is doubtful that there could be evidence more persuasive as to the cost of the incomplete repairs than the amount that defendant agreed to and actually received for performing the services.

The judgment is reversed and remanded for entry of judgment in plaintiff's favor in the amount of $5425.37 plus costs.

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