Opinion
DOCKET NO. A-5374-12T3
08-11-2014
JASONTOWN APARTMENTS, LLC, and ST. JAMES APARTMENTS, LLC, Plaintiffs-Appellants, v. SNOW SOLUTION SERVICES, LLC, and JUNIO COSTA, Defendants-Respondents.
Piro, Zinna, Cifelli, Paris & Genitempo, P.C., attorneys for appellants (Daniel R. Bevere, on the brief). Respondents have not filed a brief.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Sapp-Peterson and Sabatino. On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-7896-11. Piro, Zinna, Cifelli, Paris & Genitempo, P.C., attorneys for appellants (Daniel R. Bevere, on the brief). Respondents have not filed a brief. PER CURIAM
After a two-day bench trial in this contract dispute, the Law Division entered a money judgment in favor of defendant Snow Solution Services, LLC ("Snow Solution") on its counterclaim against plaintiffs. On appeal, plaintiffs argue that the amount of the judgment is excessive. In particular, they assert that the trial court erred in rejecting their contention that the parties settled the contract dispute for a lower sum. After considering that argument in light of the record and the applicable law, we affirm.
Plaintiffs, Jasontown Apartments, LLC ("JA") and St. James Apartments, LLC ("SJA"), are affiliated entities owned by a common principal, James Nuckel. JA operates an apartment complex in Wallington. SJA operates an apartment complex in Bergenfield. JA and SJA are managed by the same company, VAP Management ("VAP").
Snow Solution is a company in Hackensack that provides snow removal and other related services. Co-defendant Junio Costa, along with David Picinich, are the joint owners of Snow Solution.
In November 2010, the parties entered into written service agreements under which Snow Solution provided snow removal services at the two apartment complexes for the 2010-11 winter season through April 30, 2011. The two respective agreements for JA and SJA specified different prices, but otherwise had comparable terms. Snow Solution periodically invoiced JA and SJA for the services rendered.
During the course of the contract period, plaintiffs became dissatisfied with the quality of defendants' services. Disputes also arose concerning the amounts that plaintiffs had been billed. To protect their financial interests, defendants filed a construction lien against plaintiffs.
Plaintiffs then filed a complaint and order to show cause against defendants in the Law Division seeking to dissolve the construction lien. Defendants responded with a counterclaim alleging that plaintiffs were in breach of their respective contracts for non-payment. The court dissolved the lien, concluding that the definition of an "improvement" covered by the lien statute, N.J.S.A. 2A:44A-2, does not encompass snow removal services.
The parties each waived their rights to jury trial. The bench trial took place in April 2013, with both sides being represented by counsel. In an effort to narrow the issues, the parties stipulated before trial that plaintiffs owed Snow Solution at least $8,678 for snow removal work done at SJA during the relevant period, and at least $15,734 for work done at JA. The trial therefore centered on the remaining amounts claimed by Snow Solution. Plaintiffs contended that the disputed work in question was deficient, and that they had been overcharged in various respects. Defendants refuted those allegations, contending that their company had fulfilled its obligations and had calculated the invoices in accordance with the terms of the contracts.
The trial judge, Hon. Lisa Perez Friscia, heard testimony from multiple witnesses for each side, and considered numerous invoices and other exhibits. After considering those proofs, the judge issued a detailed written opinion on May 10, 2013, awarding Snow Solution the full amount of its counterclaim except for a minor sum of $107 for bucket loading that had been charged at an incorrect rate. The judge's opinion was accompanied by a spreadsheet tabulating the invoices that she had approved.
In the course of her opinion, the judge made several important credibility findings. She specifically found that Picinich, the co-owner of Snow Solution, "testified credibly and that the evidence admitted supports his testimony and version as opposed to the plaintiff[s'] witnesses." The judge very favorably described Picinich's testimony as "direct, unambiguous, precise and unequivocal." She was impressed by his demeanor, noting that "he kept eye contact, calm composure and had fluid diction." She also noted that Picinich "did not have to search or guess as other witnesses did," and that he had "firm recollections" of the facts, in addition to his reliance on exhibits. The judge also found that defendants' other testifying witness, Kristina Giunta, was likewise credible in stating that the bills were sent to plaintiffs timely and accurately.
By contrast, the judge found that "the plaintiff[s'] witnesses were contradictory, lacking in personal knowledge, and unable to substantiate the plaintiff[s'] claims." In particular, the judge observed that plaintiffs' main witness, a representative of VAP, concerning the billing disagreements "did not appear to have personal knowledge specific to many of the primary issues disputed." The judge also noted discrepancies in plaintiffs' own records, and that the person employed by plaintiffs who obtained and recorded the information on those documents did not testify. On the whole, the judge found that "plaintiff[s'] witnesses [were] contradictory and as such cannot be found credible in demonstrating their allegations of incomplete work, lack of timeliness and equipment problems."
The judge accordingly entered a final judgment on May 29, 2013 in favor of Snow Solution on its counterclaim, in the sum of $59,668.55 against plaintiff JA, and a separate sum of $23,529.30 against plaintiff SJA. Both sums included the stipulated portions that had been agreed upon before trial. The judge denied counsel fees to both sides.
On appeal, plaintiffs do not contest the judge's findings on the merits. Instead, they argue that the judge erred in rejecting their contention that the matter had settled long before trial, as the result of meetings between the parties' representatives that took place in the spring of 2011. According to plaintiffs, as a result of those meetings, the parties reached a resolution of their billing dispute, in which defendants agreed to accept a substantially lower payment than the invoiced amounts. They maintain that the judge, in rejecting their assertion that the billing disputes had been completely resolved by agreement, violated well-established case law and public policy favoring the voluntary settlement of civil disputes.
Plaintiffs' claim of a prior binding settlement was the subject of testimony at trial. The judge explicitly addressed the issue in her written decision. Both sides acknowledged that there were a series of meetings in the spring of 2011, during which time discussions took place in an effort to resolve the dispute. After one of those meetings in May 2011, Picinich sent a letter to plaintiffs' owner Nuckel dated May 28, 2011, which began as follows, "After meeting with you and some discussion amongst ourselves, we have decided to accept your offer of payment with the discounted amount you proposed at the meeting." Picinich's letter did not, however, specify the "discounted amount" that he believed plaintiffs had proposed. The letter went on to discuss Snow Solution's plans for the upcoming snow season. The plans included a commitment to place on site for plaintiffs a machine with a special attachment, which could deal more effectively with unusually heavy snowfalls above sixty inches.
Plaintiffs contended at trial that Picinich's letter was accepting the figures in Exhibit P-1, a so-called "snow log" that their office had prepared. P-1 reflects the amounts invoiced by Snow Solution for work at the two apartment complexes, posted by the dates of service. P-1 also has a separate column labeled "Amount Per Jim," which, according to plaintiffs, reflects the reduced payment amounts that Nuckel was willing to approve. According to that tabulation, Nuckel had authorized payment of $42,329.15, which was $17,590.85 less than what Snow Solutions had charged the two complexes for the relevant time frame.
As the trial judge noted in her opinion, Nuckel did not testify at trial.
However, when Picinich testified, he emphatically denied ever seeing P-1 or agreeing to the substantially-reduced amounts shown on that document. He recalled that there was a subsequent meeting with plaintiffs' representatives in June 2011, at which plaintiffs communicated a payment figure that was "not even close" to what Picinich had understood had been proposed earlier at the May meeting. According to Picinich's testimony, he had been led to believe at the May meeting that the discounted payment amount was "approximately around $70,000," and that plaintiffs also intended to renew Snow Solution's contract for the following season. As it turned out, plaintiffs did not thereafter tender a check to Snow Solution for the amount set forth in P-1.
Picinich may have been implicitly including in that $70,000 approximation the undisputed $23,802.15 portion that was the subject of the parties' ultimate pretrial stipulation. In any event, the $70,000 approximate sum that Picinich believed plaintiffs had offered was significantly greater than the $42,329.15 that Nuckel had allegedly authorized.
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After considering the proofs, the trial judge concluded, by a preponderance of the evidence, that "there was clearly no settlement, as there was no meeting of the minds with the material terms, also evidenced by the fact that there was no performance [by plaintiffs] under the alleged [settlement] agreement." The judge further noted that there was no memorialization of the alleged oral settlement in a written mutually executed agreement.
In rejecting the claim of settlement, the judge accepted Picinich's adamant testimony that he never saw or agreed to the discounted figures shown on P-1. The judge also pointed out that the so-called "snow removal" sheets supposedly supporting the figures in the snow log in P-1 were never produced by plaintiffs at trial. The judge further noted that the credibility of the figures in P-1 was called into question by another exhibit admitted into evidence, D-8, which was a different and more comprehensive snow log. Finally, the judge noted that plaintiffs' key witness on the billing dispute was not clear about which log, i.e., P-1 or D-8, was discussed in the parties' negotiations, and that the witness wavered as to the amounts set forth in P-1, its creation, and its contents.
The judge's reasons for rejecting plaintiffs' claim of settlement are sound, and are amply supported by the record. We acknowledge plaintiffs' generic argument that the law encourages voluntary settlements as a matter of public policy. Nolan v. Lee Ho, 120 N.J. 465, 472 (1990). However, a settlement is not enforceable unless the parties have agreed on all essential terms. Mosley v. Femina Fashions, Inc., 356 N.J. Super. 118, 126 (App. Div. 2002), certif. denied, 176 N.J. 279 (2003). The actual amount of a monetary settlement is indisputably a material term. Here, the trial judge had more than a sufficient basis to support her finding that no such meeting of the minds took place, including the testimony of Picinich, who she found to be an exceptionally credible witness. We defer to her credibility assessment. Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974). Although Picinich's letter, at first blush, seems to indicate that the parties' dispute was resolved, plaintiffs failed to demonstrate that the figures in P-1 — a document which was not cross-referenced in the letter — were ever assented to by defendants as an acceptable compromise.
We therefore affirm the final judgment, substantially for the cogent and well-supported reasons set forth in Judge Perez Friscia's written opinion.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION