Opinion
DOCKET NO. A-0081-13T1
01-22-2015
CRA SITE LAWN & LAND DEVELOPMENT, INC., Plaintiff-Respondent, v. CEDAR GREENS and RICHARD SCHOFEL, Defendant-Appellants.
John J. Hopkins, III, attorney for appellants. George Cieri, attorney for respondent.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Reisner and Higbee. On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. SC-3651-12. John J. Hopkins, III, attorney for appellants. George Cieri, attorney for respondent. PER CURIAM
Defendants, Cedar Greens and Richard Schofel, a condominium association and its manager respectively, appeal from a judgment entered against them for non-payment of landscaping services provided by plaintiff, CRA Site Lawn & Land Development, Inc. Defendants argue the small claims court wrongfully excluded two letters sent by the Department of Environmental Protection (DEP) in response to defendant's request for information about plaintiff's status with the DEP. Specifically, defendants contend the letters, which state that plaintiff was not licensed to apply certain chemicals at the time they contracted for landscaping services, should have been admitted into evidence.
We find that the trial judge failed to apply the relaxed standard for admission of hearsay evidence in small claims cases, and therefore remand for a new trial. See N.J.R.E. 101(a)(2)(A).
The facts of this case are as follows. Plaintiff and defendants orally agreed that plaintiff would provide landscaping services for defendant, Cedar Greens. Plaintiff's owner, Christopher Alderelli, testified that he had prepared a written contract, but that it was never signed by the parties. Defendant testified that proof of insurance was required prior to signing the contract, and that proof was never provided by plaintiff.
Notwithstanding the absence of a signed contract, services were rendered by plaintiff. The exact time period and quantity of those services is not clear, as all invoices were not provided on appeal. However, it appears that work was performed at various times in 2011 and 2012, Some of the invoices were paid by defendants. According to Mr. Schofel, plaintiff initially provided quality service, but then did shoddy work and overbilled. As a result, plaintiff was fired, prompting the present action in the small claims court, where plaintiff alleged that more than two thousand dollars were outstanding for services rendered.
In defense of that claim, Cedar Greens contended the contract was unenforceable because plaintiff failed to comply with DEP regulations. Specifically, plaintiff was unlicensed to apply pesticides, but applied a "[c]hemical application" to defendants' lawn. In that regard, plaintiff's owner claimed the chemicals applied were organic, and that no license was required. Although there were invoices identifying some of the above referenced chemicals by name, the court made no finding as to what chemicals were applied. The plaintiff, while denying application of non-organic pesticides, admitted that he was cited by the DEP for applying Treflan, a chemical weed killer without a license.
During the course of trial, defendant attempted to impeach plaintiff's credibility using a letter dated February 27, 2013, obtained from the DEP, and signed by a DEP Environmental Specialist. The letter was drafted on DEP stationary, and stated that plaintiff had not been licensed to apply pesticides for the last three years as required under N.J.A.C. 7:30-7.1(a). The letter further stated that Chris and Lauran Alderelli had previously been licensed to apply pesticides, but their licenses had expired October 31, 2000.
A second DEP letter dated May 7, 2013, which was also marked for identification as a defense exhibit, stated that violations were issued to plaintiff based on specific invoices provided by defendant. This letter also stated that the DEP was privy to pesticide purchase records for CRA from 2010-2012, and that the amount of purchases compared with invoices sent to defendant "prove the business was applying pesticides" for hire without a license.
When defendant requested the court mark the two letters into evidence, plaintiff objected on hearsay grounds. Sustaining the objections, the court noted that part of the May 7, 2013, letter included an opinion, but failed to consider whether the other factual statements in the two letters could be deemed reliable and trustworthy enough to allow for admission under the relaxed evidence standards applicable in small claims cases. Thus, the court barred both letters in their entirety, stating they could not be admitted because the author was not appearing as a witness at trial, was not subject to cross examination, and that the letters went to the "crux of the case."
The trial court's decision does not reflect the analysis required when deciding whether a hearsay document can be admitted in a small claims case. Instead, we note "the rules of evidence may be relaxed 'to admit relevant and trustworthy evidence in the interest of justice' in actions within the cognizance of the Small Claims Section of the Special Civil Part." Penbara v. Straczynski, 347 N.J. Super. 155, 162-63 (App. Div. 2002) (citing N.J.R.E. 101(a)(2)(A)). "Hence, the fact that evidence is hearsay does not automatically require its exclusion. The test is relevance and trustworthiness." Ibid. It is usually not cost effective to subpoena witnesses or take depositions in small claim cases, which is why the rule of evidence on hearsay is relaxed.
Because this was a small claims action, we conclude that the judge erred in rejecting the offered documents in their entirety without the proper analysis. The judge should have considered the letters individually, and made a determination of their admissibility based on "trustworthiness and probative value." Id. at 163; see Biunno, Current N.J. Rules of Evidence, comment 2 on N.J.R.E. 101(a)(2)(A) (2013). We do not rule on the admissibility of the evidence, but remand the case for a new trial where the judge can make a decision applying the relaxed standards that govern small claim cases.
Additionally, since this case will be remanded for a new trial, we note that both plaintiff and defendant acknowledged that some landscaping services were provided in the absence of a written contract between the parties. At trial, defendant elicited this testimony and urged the court to find the contract unenforceable. However, no reference was made to the administrative code section requiring written contracts for home improvement contracts, including landscaping services in excess of $500, to be in writing. See N.J.A.C. 13:45A-16.2(a)(12). On remand, the trial court may need to consider whether there was non-compliance by plaintiff with consumer affair regulations, which might render the contract unenforceable. See Scibek v. Longette, 339 N.J. Super. 72, 80 (App Div. 2001) (citing Huffmaster v Robinson, 221 N.J. Super. 315 (Law Div. 1986)); see also Artistic Lawn & Landscape Co., Inc. v. Smith, 381 N.J. Super. 75, 88 (Law Div. 2005).
Reversed and remanded.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION