Opinion
DOCKET NO. A-3682-10T4
09-05-2012
A&J FIREPLACES, Plaintiff-Respondent, v. NANCY MILLER, Defendant-Appellant.
Nancy Miller, appellant pro se. Respondent A&J Fireplaces has not filed a brief.
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Espinosa and Kennedy.
On appeal from Superior Court of New Jersey, Law Division, Special Civil Part, Morris County, Docket No. SC-295-11.
Nancy Miller, appellant pro se.
Respondent A&J Fireplaces has not filed a brief. PER CURIAM
Defendant Nancy Miller appeals from a judgment entered against her in the Special Civil Part. For the reasons that follow, we affirm the court's determination as to liability and reverse for a new trial on damages.
Miller entered into a contract, dated October 5, 2010, with plaintiff, A&J Fireplaces (A&J), for the purchase and installation of a gas vent fireplace insert for the amount of $3883.03. According to John Huerta, one of the owners of A&J, a 50% deposit of $1941.51 was due at the outset, $970.75 was due at the start of the job and the balance of $970.75 was due upon completion. After paying the deposit, Miller complained to her credit card company, American Express. Because the matter was considered disputed, American Express removed the amount of the deposit from A&J's account. Huerta believed the dispute was resolved when he received a check, dated November 26, 2010, for the next installment of $970.75. There were some issues between the parties regarding the installation and the need to order a different "shroud" for the unit, which was back-ordered. Approximately one week after the second payment, Miller called A&J and left a message that she did not want the unit; that they should come and take the unit back. At the time of trial, the fireplace remained in Miller's house. A&J sought the $1941.51 American Express withdrew from its account as a result of the dispute and the final payment of $970.75 that was not paid.
After hearing testimony from Huerta and Miller, the court found that A&J was not entitled to the full amount claimed. The court calculated the amount of the judgment as follows:
[T]he total amount of the claim is $2,912; the amount originally billed is $3,883. Half of that amount is $1,941.50, rounded - - 52 cents. Of which, Ms. Miller has paid $975 [sic]. If I'm right that means the balance is $970.77.With the addition of costs, judgment was entered for $992.77 on March 17, 2011.
In her appeal, defendant represents that, at the time of the trial, she believed that American Express would refund the disputed money to her. She states that, after the trial, she contacted American Express and was told that, based upon a letter dated February 10, 2011 that American Express received from A&J, the money would not be refunded to her. As she acknowledges, these facts were not presented to the trial court.
At trial, the court questioned Huerta about the disputed funds and he testified, "[W]e received the payment but then when it become [sic] a dispute, American Express took the money out of our account. . . . On hold. She doesn't have it, I don't have it. It's somewhere in the middle." Defendant made no argument and presented no testimony as to the disputed funds.
The scope of our review is "limited to whether the trial court's decision is supported by the record as it existed at the time of trial." N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 278 (2007) (citing R. 2:5-4). We will not, therefore, consider the substance of the factual assertions made by defendant in this appeal.
However, it is not entirely clear from the trial court's calculation of the amount awarded what, if any, consideration was given to the ultimate disposition of the funds being held by American Express. Those funds constituted half of the contract amount. The court's statement that A&J would get half of the contract amount followed by an award of $970 suggests that the court did not consider the disposition of the disputed funds in determining the appropriate award.
Therefore, we affirm the finding of liability but reverse for a new trial on damages. We do not retain jurisdiction.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION