VARGO LAND SURVEYING, INC. VS. MONICA MALONE (DC-008439-18, CAMDEN COUNTY AND STATEWIDE) ( 2019 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2033-18T2
VARGO LAND SURVEYING,
INC., d/b/a VARGO ASSOCIATES,
Plaintiff-Respondent,
v.
MONICA MALONE,
Defendant-Appellant.
_______________________________
Argued November 7, 2019 – Decided November 18, 2019
Before Judges Haas and Mayer.
On appeal from the Superior Court of New Jersey,
Law Division, Camden County, Docket No. DC-008439-18.
Jennifer L. Gottschalk argued the cause for appellant.
Tara Lynn Vargo argued the cause for respondent.
PER CURIAM
Defendant appeals from a November 5, 2018 judgment entered in favor of
plaintiff after a bench trial. The judge found defendant owed $9,900,
representing the unpaid balance for surveying work performed by plaintiff. We
affirm.
The facts are straightforward. Defendant hired plaintiff to survey property
she owned in Brigantine City. The survey was to be incorporated into a site plan
for development of defendant's property.
Plaintiff performed three tasks for defendant: (1) title review services, (2)
property and topographical surveys for Tax Lot 25, Block 5305 (Lot A), and (3)
a property survey for Tax Lot 1, Block 5402 (Lot B). Defendant refused to pay
for the title review services and surveys for Lot A, contending she "could not
use any of the material for [submission to] the planning board," which was her
"purpose in hiring [plaintiff]." Defendant claimed plaintiff's survey lines for
Lot A differed from the boundary lines shown on the City's maps. According to
plaintiff's survey, the State of New Jersey owned the portion of Lot A from the
high waterline. This survey finding significantly reduced the available land that
could be developed by defendant. Regarding her refusal to pay for the survey
work related to Lot B, defendant claimed she never received the survey.
Dissatisfied with plaintiff's survey findings related to Lot A, defendant
retained another surveying company because "things were getting very
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suspicious and very uncomfortable" and she claimed plaintiff's "survey was not
consistent with the other surveys . . . and . . . the [c]ity's block and lot division."
Despite defendant's dissatisfaction with plaintiff's survey findings,
defendant's engineer wanted to use some of plaintiff's work in support of
defendant's application to the planning board. However, plaintiff would not
allow its work to be used until defendant paid in full.
Based on the strained relationship between the parties, due in part to
defendant's nonpayment and her hiring another survey firm, plaintiff would only
accept payment from defendant by certified check. Defendant was unable to
timely obtain a certified check to pay the outstanding balance. Thus, defendant's
engineer was unable to use plaintiff's work related to Lot A as part of the
planning board submission.
Plaintiff filed a complaint against defendant in the Special Civil Part in
Camden County seeking payment for its work. The matter proceeded as a bench
trial. Defendant represented herself. Plaintiff was represented by counsel.
After hearing testimony, reviewing the exhibits, and making credibility
determinations, the trial judge ruled for plaintiff and awarded the sum of $9,900.
The judge found the work done by Vargo Associates "consistent with the
proposal for surveying services." In addressing defendant's contention that she
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did not receive the survey for Lot B, the judge found "it not credible . . . from
the proofs that there was a – at a minimum, an invoice [sent] out, and then also
discussions . . . about these two separate jobs . . . it seems inherently
unreasonable that [defendant] would get the invoice for that and not . . . raise
bloody murder that, well, you know, you're charging me, where is the survey?"
The judge explained defendant's testimony did not make sense and concluded
the "survey [for Lot B] was . . . done, and the [c]ourt is satisfied that it was
conveyed."
In rejecting defendant's contention that plaintiff wrongfully withheld the
survey work, the judge found plaintiff's refusal to turn over work "knowing that
a substitute surveyor [had] been retained, knowing that there was a
dissatisfaction with some of the professional determinations made by [plaintiff],
it seems entirely reasonable and justified from a business standpoint to say hey,
you know, I need to get paid before I let you use my work." Having determined
that defendant's testimony was not credible, the judge concluded "the work was
done consistent with the proposal for surveying services, and I'm satisfied that
the plaintiff is entitled to get full payment for this work accomplished."
On appeal, defendant contends the trial was unfair because the trial judge
prevented her from cross-examining plaintiff's witness, aided in establishing
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plaintiff's case, allowed plaintiff's counsel to testify, and permitted plaintiff's
attorney to ask leading questions on direct examination. Defendant also claims
venue was improper, and the case should have been venued in Atlantic County
where she resides.
Our scope of review after a bench trial is limited. Final determinations of
a trial court "premised on the testimony of witnesses and written evidence at a
bench trial" are deferentially reviewed. D'Agostino v. Maldonado, 216 N.J. 168,
182 (2013). "Findings by the trial judge are considered binding on appeal when
supported by adequate, substantial and credible evidence." Rova Farms Resort,
Inc. v. Inv'rs Ins. Co. of Am., 65 N.J. 474, 484 (1974). "[W]e do not disturb the
factual findings and legal conclusions of the trial judge unless we are convinced
that they are so manifestly unsupported by or inconsistent with the competent,
relevant and reasonably credible evidence as to offend the interests of justice[.]"
Seidman v. Clifton Sav. Bank, S.L.A., 205 N.J. 150, 169 (2011) (second
alteration in original) (quoting In re Tr. Created By Agreement Dated Dec. 20,
1961, 194 N.J. 276, 284 (2008)). We also defer to a trial judge's credibility
determinations. In re Return of Weapons to J.W.D., 149 N.J. 108, 117 (1997).
Self-represented litigants "must understand that they are required to
follow accepted rules of procedure promulgated by the Supreme Court to
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guarantee an orderly process. Such litigants are also presumed to know, and are
required to follow, the statutory law of this State." Tuckey v. Harleysville Ins.
Co., 236 N.J. Super. 221, 224 (App. Div. 1989). Litigants who elect to represent
themselves are not entitled to greater rights than parties represented by counsel.
Rubin v. Rubin, 188 N.J. Super. 155, 159 (App. Div. 1982).
Detailed information regarding the judicial process for all litigants,
particularly self-represented litigants, is posted on the New Jersey Courts
website. See Things to Think About Before You Try to Represent Yourself in
Court, https://njcourts.gov/forms/11218_things_to_think_about_eng.pdf.
Because information regarding court proceedings was readily available to
defendant, she was on notice that the Rules of Court applied despite her self-
represented status.
Based on our review of the record, defendant was not denied the
opportunity to cross-examine plaintiff's witness. Nor did the trial judge
improperly question plaintiff's witness. Because this was a bench trial, the judge
had the right ask questions directed to both parties to ascertain information
necessary to render his decision. See State v. Medina, 349 N.J. Super. 108, 131
(App. Div. 2002) ("Trial judges are vested with the authority to propound
questions to qualify a witness's testimony and to elicit material facts on their
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own initiative and within their sound discretion."). Questioning by a trial judge
is appropriate where necessary to "clarify the issues and ascertain the truth." Id.
at 132.
We also reject defendant's claim that plaintiff's counsel testified and asked
inappropriate leading questions. The judge conducted the trial in a fair and
impartial manner. Defendant had the opportunity to present her evidence and
cross-examine plaintiff's witness. The fact that defendant elected to proceed
without legal counsel and failed to present relevant and admissible evidence in
her defense does not render the trial fundamentally unfair.
Having reviewed the record, the trial judge made findings, based on
sufficient credible evidence, to support the award of $9,900 to plaintiff.
Defendant did not deny she retained plaintiff to perform survey work. Nor did
defendant deny failing to pay plaintiff for its survey work.
We next consider defendant's argument that venue was improper. Rule
4:3-3(a) states a change of venue can be ordered for various reasons, including
"substantial doubt" that a fair trial may be had in a given location. Defendant
does not argue that the matter could not be tried fairly in Camden. Motions for
change of venue are required to be made no later than ten days after the last
responsive pleading. R. 4:3-3(b). If a motion to change venue is not timely
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made, the right to raise the issue is waived absent substantial doubt that a fair
trial can be conducted. Ibid.
A challenge to venue was required to be raised well before trial. Here,
defendant never claimed venue was improper until she filed her appeal. Because
defendant failed to make a motion for a change of venue before the trial judge,
we reject defendant's argument that the judge erred in proceeding with the trial
in Camden County.
Even on the merits, defendant's belated claim that venue should have been
in Atlantic County, where the surveyed property was located, must fail.
According to Rule 6:1-3(a), venue is proper in Camden County if one defendant
resides there. Here, defendant owned property in Camden County, had personal
checks listing defendant's address in Camden County, and accepted service of
plaintiff's summons and complaint in Camden County.
Having reviewed the record, the trial judge's decision is consistent with
the relevant, credible evidence. The judge carefully reviewed the evidence, and
made detailed findings of fact supported by the evidence. We decline to disturb
those findings.
Affirmed.
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