PAUL OLIVEIRA VS. NJ ASPHALT SERVICES (DC-001863-19, WARREN COUNTY AND STATEWIDE)

P
                                NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
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                                                        SUPERIOR COURT OF NEW JERSEY
                                                        APPELLATE DIVISION
                                                        DOCKET NO. A-1831-19

PAUL OLIVEIRA and
ADRIANA OLIVEIRA,

          Plaintiffs-Appellants,

v.

NJ ASPHALT SERVICES and
HENRY COOPER,

     Defendants-Respondents.
__________________________

                   Submitted October 7, 2020 – Decided February 10, 2021

                   Before Judges Ostrer and Enright.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Warren County, Docket No. DC-001863-19.

                   Paul Oliveira and Adriana Oliveira, appellants pro se.

                   Respondents have not filed a brief.

PER CURIAM

          Plaintiffs Paul and Adriana Oliveira appeal from what they consider an

inadequate verdict in their Special Civil Part lawsuit over a defective driveway
paving job by defendant NJ Asphalt Services, LLC (Asphalt Services). We

reverse and remand for a new trial.

      We do so for several reasons. The trial court inappropriately overlooked

or undervalued crucial evidence describing the scope of Asphalt Services'

breach; the court sua sponte barred the Oliveiras' proof of monetary damage;

and the court did not afford the Oliveiras an opportunity to cross-examine Henry

Cooper, Asphalt Services' owner, regarding his damage estimate. 1

      The sole trial witnesses were the Oliveiras and Mr. Cooper. Under the

parties' one-page contract, the Oliveiras agreed to pay Asphalt Services $12,500

to pave their driveway (which, according to Mr. Cooper's testimony, was 6,700

square feet) with two to three inches of machine-laid, power-rolled asphalt.

Asphalt Services promised to dig out grass and provide a stone base, fine

grading, and a tack coating.

      After paying the full amount due, the Oliveiras complained to Mr. Cooper

that the work was defective. Mr. Cooper agreed that the asphalt was "too thin"

in one area, and that the Oliveiras "ha[d] a legitimate complaint" concerning that




1
 The court dismissed the Oliveiras' claim against Mr. Cooper as an individual.
They do not appeal from that aspect of the court's decision.
                                                                            A-1831-19
                                        2
area. But he rejected the Oliveiras' complaints of other defects. After the parties

could not resolve their differences, the Oliveiras sued.

      At trial, the court conducted the direct examination of the Oliveiras, who

appeared pro se, and of Mr. Cooper, who represented himself and his LLC. 2 Mr.

Oliveira testified that the driveway had only one inch of asphalt "in a lot of

spots." He also identified other defects in the work, illustrated by photographs

that he had taken about a week after Asphalt Services completed the work.

Specifically, Mr. Oliveira identified cracks in the pavement; a "bad joint" where

the pavement was "not rolled properly" and two areas did not meet correctly; a

puddle in front of the garage;3 "popcorned" pavement that was "not rolled, not

sealed"; a hole "in the middle of the driveway"; and a "three-inch lip" where the

driveway met the road. Ms. Oliveira also testified that the "whole driveway is

full of holes."4




2
  Because this trial occurred in the Special Civil Part, but not the Small Claims
Section, the trial court erred in permitting Mr. Cooper to defend on behalf of his
LLC. See R. 1:21–1(c); R. 6:11.
3
  We note that the contract stated: "Not guaranteed against puddles due to level
grades."
4
 The Oliveiras evidently brought more photos to the trial, but the judge directed
Mr. Oliveira to "pick out the best ones."
                                                                             A-1831-19
                                        3
       Mr. Oliveira asked the court to award monetary damages or to order

Asphalt Services to lay down more asphalt in the problematic areas. The court

responded that it could only award money damages. Mr. Oliveira, attempting to

quantify those damages, stated that another contractor had provided him an

estimate for "re-do[ing] the job": $15,000. Sua sponte, the court excluded the

written estimate, stating, "that's a hearsay document. I . . . can't cross-examine

the person who made that."

       The court did not offer Mr. Cooper an opportunity to cross-examine the

Oliveiras after their testimony.

       On direct examination, Mr. Cooper testified that, prior to the lawsuit, he

offered to add asphalt to a limited area of the driveway that lacked the specified

thickness. But he refused the Oliveiras' requests for more extensive repairs. Mr.

Cooper did not specifically address the other defects that the Oliveiras alleged

at trial.

       The judge asked Mr. Cooper how much a third party would charge to make

repairs. Mr. Cooper responded that $4,000 was at the high end of what would

be reasonable for "the one area in question that is not thick enough."         He

admitted the area also "ha[d] popcorn areas, meaning it's porous," but he




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                                        4
maintained that "[a]ll the main issues are in one particular area," and that except

for that area, his company had performed in a workmanlike fashion.

      Without offering the Oliveiras an opportunity to cross-examine Mr.

Cooper or to offer rebuttal, the court characterized plaintiffs' claim as one solely

for damages. On the one hand, the court stated, plaintiffs were "unable to

produce any dollar estimates as to . . . the cost of repairing" the driveway. On

the other hand, "the defendant . . . indicate[d] that the portion of the work which

could be re-done, that is the thin layer of the driveway, less than three inches,

would cost approximately $4,000."        The court then adopted $4,000 as the

measure of plaintiffs' damages and entered judgment for the amount plus costs.

      This appeal followed.

      We consider first the court's finding regarding the scope of defendant's

breach. In a non-jury case, we exercise limited review of a trial court's fact-

findings, which we generally must accept when "adequate, substantial, credible

evidence" supports them. Seidman v. Clifton Sav. Bank, S.L.A., 

205 N.J. 150

,

169 (2011) (quoting Cesare v. Cesare, 

154 N.J. 394

, 411–12 (1998)). And

"[d]eference is especially appropriate when the evidence is largely testimonial

and involves questions of credibility."

Ibid. (quoting Cesare, 154

N.J. at 412).

However, an appellate court may disturb a trial court's fact-findings that rest on


                                                                              A-1831-19
                                         5
an "obvious overlooking or underevaluation of crucial evidence."         State v.

Johnson, 

42 N.J. 146

, 162 (1964).

      As noted, Mr. Cooper admitted that he breached the contract by applying

less than the promised two-to-three inches of asphalt on one portion of the

driveway. However, the Oliveiras testified that there were additional flaws from

one end of the driveway (a puddle by the garage) to the other (a three-inch lip

by the road), including a bad joint, an unsealed area, "a lot of spots" with one

inch of asphalt, and multiple holes. They presented photographic corroboration

of most of these defects. Yet, without addressing the Oliveiras' proof, the court

concluded that the only breach pertained to the thin layer in one area. This

"overlooking or underevaluation of crucial evidence" warrants a remand to

reconsider the extent of the breach.

      We turn next to the issue of relief. The Oliveiras challenge the court's

decision to disregard an estimate, which they obtained and brought to the trial,

for redoing the driveway. "[W]e generously review a trial court's evidentiary

rulings." Manata v. Pereira, 

436 N.J. Super. 330

, 343 (App. Div. 2014). If

offered to establish that $15,000 was the reasonable cost of repairing the defects

in Asphalt Services' workmanship, the estimate was no doubt hearsay. See

N.J.R.E. 801(c) (defining hearsay). However, it conceivably may have been


                                                                            A-1831-19
                                        6
admissible as a business record, if the author prepared the document in the

regular course of its business, contemporaneously with its estimate, and not for

litigation; the business regularly made such estimates; and the "method, purpose

or circumstances of preparation" did not indicate it was "not trustworthy." See

N.J.R.E. 803(c)(6) (defining the exception for records of regularly-conducted

activity); see United States v. Pfeiffer, 

539 F.2d 668

, 670–71 (8th Cir. 1976)

(finding that invoices qualified as business records).

      The record does not indicate that the court examined the document to

assess whether it fit the prerequisites of the exception and was not otherwise

untrustworthy. Nor did the court question Mr. Oliveira to ascertain whether he

could lay a foundation for admitting the document into evidence. Rather, the

court immediately barred introduction of the estimate.         Based on those

omissions, the court's evidentiary determination does not command our

deference. See E & H Steel Corp. v. PSEG Fossil, LLC, 

455 N.J. Super. 12

, 25

(App. Div. 2018) ("[N]o deference is accorded when the court fails to properly

analyze the admissibility of the proffered evidence.").

      Although the Oliveiras do not expressly complain that the court failed to

afford them an opportunity to cross-examine Mr. Cooper, they contend that the

court unduly credited Mr. Cooper's assessment of the nature of the defects and


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                                        7
the appropriate quantum of damages. That contention implicates their right to

cross-examine.

      Although the court "in a pro se trial . . . often has to focus the testimony

and take over the questioning of the parties and witnesses," the court is obliged

to inform the parties of their right to cross-examine, and the failure to do so

deprives them of their procedural rights. See Franklin v. Sloskey, 385 N.J.

Super. 534, 543 (App. Div. 2006); Peterson v. Peterson, 

374 N.J. Super. 116

,

124 (App. Div. 2005). Had the court invited the Oliveiras to cross-examine Mr.

Cooper, they might have demonstrated that the scope of the breach and the

measure of damages were greater than Mr. Cooper claimed.

      Finally, although the Oliveiras do not raise the issue of specific

performance, we briefly address it, in case they wish to pursue it on remand.

We acknowledge that, as a "general rule," a court of equity will not order

specific performance of a construction contract. Lester's Home Furnishers, Inc.

v. Mod. Furniture Co., 

1 N.J. Super. 365

, 368 (Ch. Div. 1948). But that rule is

rooted in the court's disinclination to award relief that would entail extensive

court supervision, see William A. Dreier et al., Guidebook to Chancery Practice

in New Jersey, § II.G (2018); Fleischer v. James Drug Stores, Inc., 

1 N.J. 138

,

148 (1948) (stating that equity may decline to act where "specific performance


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                                        8
would entail continuing and constant superintendence over a considerable

period of time"), and is subject to exceptions and limitations, Lester's Home

Furnishers, 1 N.J. Super at 368.      Thus, where damages are inadequate or

inefficient and the court's supervisory responsibility is not great, specific

performance may be appropriate. Cf. 25 Williston on Contracts § 67:100 (4th

ed. 2020) (stating that "the tendency has been increasingly toward granting"

specific performance of construction contracts "where the inadequacy of

damages is great, and the difficulties of supervision not extreme") .

      In this case, a court could find that compelling Asphalt Services to repair

the inadequately-finished areas would be far more efficient than awarding

damages equal to the cost of third-party repairs. We do not minimize the

expertise required to pave a driveway properly; however, the court may

determine that specific performance, in this scenario (as opposed to, for

example, a whole building-construction project), needs no extensive

supervision.

      Finally, because the judge who initially decided this matter made

credibility determinations, we are constrained to direct that the remand be

assigned to a different judge. See R.L. v. Voytac, 

199 N.J. 285

, 306 (2009).

      Reversed and remanded for a new trial.


                                                                           A-1831-19
                                        9

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