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FIORE v. ALIBERT, A-4805-14T4. (2016)

Court: Superior Court of New Jersey Number: innjco20160822243 Visitors: 16
Filed: Aug. 22, 2016
Latest Update: Aug. 22, 2016
Summary: NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION PER CURIAM . Defendant Delores Alibert appeals from a May 21, 2015 order granting a $3718 judgment, plus court costs, in favor of plaintiff Gregory P. Fiore, following a bench trial in the Special Civil Part. We affirm. Both parties represented themselves at the trial. Plaintiff, a home improvement contractor, sought payment for "fiberglassing" the back, side, and rooftop decks on defendant's home. Plaintiff admitted that de
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Defendant Delores Alibert appeals from a May 21, 2015 order granting a $3718 judgment, plus court costs, in favor of plaintiff Gregory P. Fiore, following a bench trial in the Special Civil Part. We affirm.

Both parties represented themselves at the trial. Plaintiff, a home improvement contractor, sought payment for "fiberglassing" the back, side, and rooftop decks on defendant's home. Plaintiff admitted that defendant paid him a $2000 deposit, but testified that she stopped payment on two other checks — one for $3250 and one for $468 — which she later gave him to pay for the work. He also testified that defendant owed him $1800 for additional work he performed on the decks.

Defendant asserted that she stopped payment on the two checks because the work was not completed and was unsatisfactory. She testified that the fiberglass work on the deck was visibly defective. She also testified that due to the defective work, water leaked into the house and caused damage. Defendant further testified that a carpentry contractor named Trevor performed shoddy work on the house and left a hole in the roof. She testified that the leaks caused "$270,000" in damage to the house. She contended that Trevor worked for plaintiff and plaintiff was liable for Trevor's defective work.

Plaintiff testified that defendant, who was a friend of his mother, hired him to repair the decks, using fiberglass, because her house had pre-existing leaks and water damage. Plaintiff also testified that some additional damage to the house was caused by Trevor's poor workmanship. However, plaintiff testified that Trevor did not work for him, and that defendant had a separate contract with Trevor. According to plaintiff, his own work on the house was not defective in any way.1

In an oral opinion placed on the record on May 21, 2015, the trial judge found that defendant's testimony concerning alleged defects in plaintiff's work was not credible. He noted that defendant admitted inspecting the work before she gave plaintiff the two checks, and inferred that she would not have paid plaintiff if the work was visibly defective as she claimed it was. The judge did not find either party credible as to any of their other claims and counterclaims and thus concluded neither of them had borne their respective burden of proof as to those claims.

On this appeal, we will not disturb the trial judge's factual findings, so long as they are supported by substantial credible evidence. Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974). We owe particular deference to the judge's evaluation of witness credibility. Ibid. We review the judge's evidentiary rulings for abuse of discretion. Estate of Hanges v. Metro. Prop. & Cas. Ins. Co., 202 N.J. 369, 382 (2010). We review the judge's legal rulings de novo. Manalapan Realty, L.P., v. Manalapan Twp. Comm., 140 N.J. 366, 378 (1995).

On this appeal, defendant argues that "[p]laintiff failed to submit evidence of [c]ompliance with [the] New Jersey Home Improvement Act," by failing to produce evidence of a written contract. Defendant did not raise the issue in the trial court, and her appellate brief candidly admits that plaintiff proffered to the court a copy of the contract. Ordinarily, we will not consider issues that a party failed to raise in the trial court, and we find no reason to make an exception here. See Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973).

For the same reason, we decline to consider defendant's second point, alleging that plaintiff was not the proper party because the contract was with a corporation. Because defendant did not raise the issue in the trial court, plaintiff had no opportunity to address it. We do not know, for example, whether plaintiff may have been doing business individually under a company name, or whether the corporation, if there was one, may have been a sole proprietorship. See R. 1:21-1(c). Since the issue is raised for the first time on appeal, we will not address it further.2

We find no merit in defendant's final point, asserting that the judge "failed to review evidence of [i]nferior work." To the contrary, the judge considered defendant's testimony, but found it less than credible. We find no basis to second-guess his decision.

Affirmed.

FootNotes


1. No exhibits were introduced in evidence at the hearing. The judge declined to permit either party to introduce hearsay evidence, such as letters from persons who were not called as witnesses.
2. In violation of Rule 2:6-2(a)(1), defendant's point headings do not identify issues not raised in the trial court.
Source:  Leagle

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