NOT FOR PUBLICATION
PER CURIAM.
Defendant Paul Martinelli appeals from a judgment awarding plaintiff Spagnuolo Builders, LLC $125,429.73, and dismissing defendant's claims against plaintiff and Peter Spagnuolo (Spagnuolo).1 We affirm.
I.
This appeal arises from the following facts. Defendant decided to construct a new home in Alpine, New Jersey, and retained architect James Paragano (Paragano) to prepare the necessary plans and specifications. After a general contractor submitted a bid to construct the home for $5.5 million, Paragano suggested that defendant act as his own general contractor and hire a construction manager to oversee the project. Paragano recommended Spagnuolo because he had worked with him on other projects.
The parties accordingly entered into a construction management agreement dated May 17, 2006 (CMA). The CMA detailed the scope of work to be performed. Among other things, the CMA required plaintiff to prepare a preliminary budget, solicit bids for "major" contracts, supervise and coordinate construction, ensure that all materials and workmanship were of the highest quality available in the industry, and supervise completion of all agreed-upon punch list items. The CMA stated that the parties would use their best efforts to complete the project within fourteen to eighteen months after issuance of the building permit.
The CMA additionally provided that plaintiff would be paid $375,000 for its services at specified stages of the project. The CMA also stated that, in the event the scope of work changed, plaintiff would receive an "additional fee agreed upon by both parties before changes are made." In addition, the CMA permitted plaintiff to match bids for work on the project, and to perform any work that was not covered by a contract between defendant and any other contractor. Plaintiff was required to provide defendant "in advance with either a cost estimate . . . or per man/hour charge and estimated number of man/hours" for such work.
Plaintiff prepared a preliminary budget for the project totaling $2,823,300, which did not include the $375,000 construction management fees. Plaintiff also prepared the timeline for the project, which called for completion of the home by June 2007. After reviewing the preliminary budget, defendant elected to proceed with the project. The building permit was issued on July 26, 2006, and construction commenced at that time.
During the course of construction, sixty-five modifications were made to the plans and specifications. In addition, the project experienced numerous delays. Defendant paid plaintiff construction management fees of $330,000; however, after a disagreement arose about the amount that plaintiff was charging for work performed by its employees, defendant refused to pay $45,000 in fees remaining due under the CMA. Defendant also refused to pay invoices of $9,014.53 and $11,415.20 for work performed by plaintiff's employees and materials.
On September 1, 2009, plaintiff filed a complaint asserting claims against defendant for breach of contract, breach of the implied covenant of good faith and fair dealing, unjust enrichment, and fraud. Plaintiff claimed that defendant owed it $65,429.73 for labor, materials and management fees. Plaintiff also claimed that it was entitled to additional construction management fees in the amount of $60,000.
Defendant filed an answer denying liability. He also asserted counterclaims against plaintiff for breach of contract, breach of the covenant of good faith and fair dealing, breach of fiduciary duties, and violations of the Consumer Fraud Act (CFA), N.J.S.A. 56:8-1 to-20. Defendant additionally asserted third-party claims against Spagnuolo for breach of fiduciary duties and violations of the CFA.
The matter was tried before the court, sitting without a jury and on August 2, 2011, the trial judge issued a lengthy written opinion in which he concluded that plaintiff was entitled to be paid the remaining $45,000 in fees due under the CMA. In his opinion, the judge stated that
the [CMA] and the testimony of the parties and witnesses at trial as to the conduct of the parties during the pendency of their agreement leaves no doubt that [plaintiff] is due its final payment of $45,000 for construction management services. [Defendant] made all construction management fee payments when due under the agreement until the [very] end of the parties' relationship. Up to that point the parties had an extremely cordial relationship which included the [parties'] families vacationing together.
The court also found that plaintiff was entitled to payment of the invoices totaling $20,429,73. The judge stated that the CMA
provided for [plaintiff's] employees to work on [defendant's] job, but is not specific as to the amounts allowed or claimed for [such work]. Spagnuolo testified that there was a specific pay rate verbally agreed to in 2006, but [defendant] denied it. However, during the construction period [plaintiff] regularly submitted invoices for its employees' services on the job and [defendant] promptly paid them, with the exception of the final two invoices. The contents of those last two unpaid invoices is entirely consistent with that of the numerous invoices for [plaintiff's] employees' services that [defendant] had paid previously. At trial [defendant] raised as a defense to the demand for payment of these employee invoices that he was being charged more than [plaintiff] was paying the employees. [Defendant] presented no evidence that he was being overcharged for the employees, or that the hourly rate ascribed to or time charged for a particular employee was inappropriate, or that [plaintiff] agreed to charge only its costs for its employees. While the [CMA] did not contain hourly rates or other specifics on the subject, the conduct of the parties for the vast majority of the contract period fully supports the unpaid employee invoices submitted by [plaintiff].
The judge further found that plaintiff was entitled to additional construction management fees of $60,000. The judge stated that the CMA "clearly and specifically" required defendant to pay additional construction fees in the event the scope of work changed. The judge found that, while the scope of work had not changed, the time in which plaintiff was required to provide the services had changed greatly, extending the time to complete the work from fourteen to eighteen months to thirty-one months. The judge found that an additional fee of $60,000 would be "just and appropriate" and "in keeping with" the parties' agreement.
The judge additionally determined that defendant had not presented sufficient evidence to support his claims of fraud and violation of the covenants of good faith and fair dealing against plaintiff and Spagnuolo. The judge also determined that defendant's claim under the CFA failed because the home improvement regulations adopted pursuant to the CFA did not apply to plaintiff and because defendant did not suffer an ascertainable loss. The judge accordingly entered a judgment awarding plaintiff $125,429.73, and dismissing defendant's counterclaims and third-party claims. Defendant thereafter filed a motion for reconsideration. The judge denied the motion. This appeal followed.
II.
Defendant argues that the trial judge erred by awarding plaintiff $45,000, which represented the final payment for the construction management fees due under the CMA. Defendant maintains that the judge erred in awarding these fees to plaintiff because it failed to perform all of the services required by that agreement. We do not agree.
Here, the trial judge found that, after they executed the CMA and secured the building permit, the parties conducted themselves in a haphazard manner in carrying out their respective obligations under the agreement. The judge noted that the parties "paid scant" attention to the terms of the CMA, which resulted in a situation the judge likened to having "two cooks in the kitchen or two kings in the castle." The judge stated that defendant ran the project with regard to design selections and also chose vendors and subcontractors. Spagnuolo managed the job and made suggestions regarding vendors and subcontractors.
The judge pointed out that, while plaintiff did not perform certain services within the scope of work, defendant did not object. The judge noted that the parties generally had "an extremely cordial" relationship for most of the time the home was under construction. Moreover, defendant paid plaintiff $330,000 of the construction management fees due under the CMA, along with the invoices for work that plaintiff's employees performed.
Contracts are typically "given their plain and ordinary meaning." M.J. Paquet v. N.J. Dept. of Transp., 171 N.J. 378, 396 (2002). Nevertheless, "`[e]ven when the contract on its face is free from ambiguity, evidence of the situation of the parties and the surrounding circumstances and conditions is admissible in aid of interpretation.'" Great Atl. & Pac. Tea Co. v. Checchio, 335 N.J.Super. 495, 501 (App. Div. 2001) (quoting Atlantic Northern Airlines, Inc. v. Schwimmer, 12 N.J. 293, 296 (1953)).
The terms of the CMA were relatively clear. However, the trial judge found that by their course of conduct, the parties had modified the terms of the contract and relieved plaintiff from its obligation to perform certain services within the scope of the work. We are convinced that there is sufficient credible evidence in the record to support that finding, which is therefore binding on appeal. Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974).
Thus, the fact that plaintiff did not perform all of the services outlined in the scope of services did not relieve defendant of his obligation to pay plaintiff the $375,000 due under the agreement. Moreover, defendant presented no evidence showing that plaintiff agreed to accept less than $375,000 for the services provided. We therefore conclude that the record supports the judge's determination that plaintiff was entitled to the remaining $45,000 due to it under the CMA.
III.
Next, defendant argues that the trial judge erred by awarding plaintiff $60,000 in additional construction management fees. Again, we disagree.
As we have explained, the CMA provided that, in the event the scope of work of the project changed, plaintiff would be paid an additional fee as "agreed upon by both parties before the changes are made." The judge found that the scope of work under the contract did not change but the time required to complete the work "changed greatly due to delays" for which plaintiff was not responsible.
The judge stated that the delays resulted in about a fifty percent increase in the time required to perform the services, which warranted the award of additional construction management fees to plaintiff. The judge explained the manner in which he calculated the award:
The construction management fee of $375,000 is 13.4% of the $2.8 Million construction estimate. The final cost of construction exclusive of the construction management fee and pool based on [defendant's] records was $3,555,470, $755,470 more than the $2.8 Million estimate. Multiplying $755,470 by 13.4% yields an additional construction management fee of $101,233.
Looking at it another way, $375,000 for 14-18 months of work equates to between $26,800 and $20,800 per month. The job actually took from July 26, 2006, to February 2009, or 31 months. That is either 17 or 13 months longer than the parties anticipated it taking. Using a median dollar per month figure ($23,800 per month for 15 months) yields $357,000. However, there was no testimony as to the intensity of the devotion of [plaintiff] during that time to the [defendant's] project among the other projects with which it was involved. It reasonably can be inferred that it waxed and waned over the entirety of the span of time. To apply the "per month" formula would unjustly enrich and unjustly penalize the parties.
[Plaintiff] demands an additional construction management fee of $60,000, equivalent to 20% of $300,000 which it asserts is the amount of "extras" over and above the budget. That sum is found to be just and appropriate under and in keeping with the terms of the parties' agreement.
We are convinced that plaintiff was not entitled to the award of additional construction management fees under the CMA. The agreement stated that plaintiff would be entitled to additional fees in the event the scope of work changed and the parties agreed to the payment of the additional fees at the time of the change. Here, the judge found that the scope of work did not change. Furthermore, the parties never agreed to the payment of any additional fees, as required by the CMA.
We are nevertheless convinced that the award of additional fees to plaintiff was warranted as an equitable remedy to avoid unjust enrichment. This remedy may be employed when, as in this case, a contract does not expressly provide for remuneration. Caputo v. Nice-Pak Prods., Inc., 300 N.J.Super. 498, 507 (App. Div.), certif. denied, 151 N.J. 463 (1997).
To recover on the basis of unjust enrichment, a party must show that the other party "received a benefit and that retention of that benefit without payment would be unjust." VRG Corp. v. GKN Realty Corp., 135 N.J. 539, 554 (1994). The party seeking remuneration must show that it expected to be paid "at the time it performed or conferred a benefit on [the other party] and that the failure of remuneration enriched [the other party] beyond its contractual rights." Ibid.
Here, the evidence established that the time in which plaintiff was required to perform the services changed substantially due to circumstances beyond plaintiff's control. Those circumstances included defendants' many change orders during the construction, resulting in delays. The CMA made no provision to compensate plaintiff for the additional time he was required to devote to the project, but defendant benefited by plaintiff's continued involvement with the project and it would be unjust for defendant to retain that benefit without compensating plaintiff.
The CMA provided that plaintiff would receive $375,000 for his services, which were to be provided over a period of fourteen-to-eighteen months. Plaintiff was required to provide services over an additional fourteen months. The judge explained that plaintiff was arguably entitled to additional fees of about $100,000 to $350,000 but determined that $60,000 would be "just and appropriate[.]" The record supports that determination.
IV.
Defendant further argues that the trial judge erred by dismissing his claims against plaintiff and Spagnuolo for breach of fiduciary duties.2 Again, we disagree.
Here, the CMA provided that plaintiff "shall, at all times, act in a fiduciary relationship of trust and confidence" with defendant. Defendant alleged that plaintiff breached its fiduciary duties because it: (1) failed to solicit competitive bids for major contracts; (2) improperly reserved work for itself without seeking competitive bids; (3) did not prepare the revised budget as required by the CMA; (4) did not perform certain construction management services required by the CMA; (5) improperly installed a water line; and (6) exceeded the amount allocated in the estimated budget for "direct overhead" including the amounts paid to its workers.
The trial judge found that defendant had not presented sufficient evidence to support this claim. We are convinced that there is sufficient credible evidence in the record to support the judge's finding. Rova Farms, supra, 65 N.J. at 484.
The evidence shows that plaintiff obtained bids for major contracts, except when defendant chose to seek his own vendors or contractors. Although plaintiff did not prepare a revised budget as required by the CMA, defendant never demanded that he do so and presented no evidence showing that he suffered any loss due to the lack of a revised budget. Moreover, the water line was not properly installed, but plaintiff offered to fix the problem and defendant rejected the offer.
Furthermore, while the CMA expressly permitted plaintiff to match any bid for work to be performed on the project and perform the work itself, plaintiff did not reserve any work for work slated for bidding. In addition, plaintiff never agreed that it would only charge defendant its cost for labor, and there is no evidence that the amount plaintiff charged was commercially unreasonable.
We are therefore satisfied that the trial judge did not err by rejecting defendant's claim that plaintiff breached its fiduciary duties.
V.
Defendant also contends that the trial judge erred by drawing an adverse inference against him because he did not call his wife, Katie Martinelli, as a witness. Defendant says that the inference irreparably tainted the judge's decision. This argument is without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). Nevertheless, we add the following brief comments.
A court may draw a negative inference when a party "does not call [an available] witness that the party reasonably might have been expected to call." Witter by Witter v. Leo, 269 N.J.Super. 380, 391 (App. Div.), certif. denied, 135 N.J. 469 (1994). Such a witness is considered "available" if the witness could have been produced. Id. at 391-92 (citing State v. Clawans, 38 N.J. 162, 171 (1962)). However, the inference should not be drawn "if the witness is available to both parties[.]" Wild v. Roman, 91 N.J.Super. 410, 414 (App. Div. 1966) (citing Clawans, supra, 38 N.J. at 171).
We are convinced that the judge erred by drawing an adverse inference from defendant's failure to call Ms. Martinelli as a witness because she could have been called by either party. We are not convinced, however, that the error tainted the judge's decision, as defendant claims. There is no indication that the adverse inference was a significant or determining factor in any of the judge's findings.
Affirmed.
