                                NOT FOR PUBLICATION WITHOUT THE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-0418-18T3

TERESA EDELGLASS,

          Plaintiff-Appellant,

v.

MICHAEL POGORZHELSKY
d/b/a GLOBAL CONCRETE
LIFTING,

     Defendant-Respondent.
____________________________

                   Submitted January 21, 2020 – Decided April 13, 2020

                   Before Judges Sumners and Geiger.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Ocean County, Docket No. SC-000801-18.

                   Teresa Edelglass, appellant pro se.

                   Respondent has not filed a brief.

PER CURIAM

          Plaintiff Teresa Edelglass appeals Special Civil Part orders dismissing her

small claims compliant against defendant Michael Pogorzhelsky d/b/a Global
Concrete Lifting following a bench trial and denying her motion for

reconsideration.1 After a thorough review of the record, we vacate the orders

and remand the matter for the trial court to make factual findings and legal

conclusions to support its rulings.

      For purposes of this opinion we need only provide a brief summary of the

trial and post-trial proceedings.         Plaintiff contacted defendant Michael

Pogorzhelsky d/b/a Global Concrete Lifting to remedy a sinking pool patio at

her home. After defendant inspected the patio and proposed a solution, the

parties entered into a terse one-page written agreement reciting plaintiff would




1
  Plaintiff's notice of appeal seeks review only of the trial court's July 27, 2018
order dismissing her complaint with prejudice following a bench trial, not the
court's September 5, 2018 order denying summary judgment. We could,
therefore, limit our review to the July order alone. See W.H. Indus., Inc. v.
Fundicao Balancins, Ltda, 397 N.J. Super. 455, 458 (App. Div. 2008) ("It is
clear that it is only the orders designated in the notice of appeal that are subject
to the appeal process and review."); Fusco v. Bd. of Educ. of City of Newark,
349 N.J. Super. 455, 461-62 (App. Div. 2002) (reviewing only denial of the
plaintiff's motion for reconsideration and refusing to review the original grant
of summary judgment because that order was not designated in the notice of
appeal). We choose to overlook that technical error and consider the merits of
plaintiff's appeal of the reconsideration order because "the substantive issues in
the case and the basis for the . . . judge's ruling [at trial] and [the] reconsideration
motion[] [were] the same." Id. at 461.



                                                                               A-0418-18T3
                                           2
pay defendant $1400 plus $98 in taxes and he would "[l]ift/mud jack, fill void

under [concrete] slabs on the pool patio at the half of perimeter of pool."

      Upon completion of the one-day job performed in the rain, defendant

asked plaintiff to assess the work. According to plaintiff, she complained that a

portion of the patio did not seem to be corrected to which defendant replied he

would fix it another day even though the area was not part of the job. Despite

concerns over the uncorrected problem, plaintiff gave defendant a personal

check for $1498 covering the full contract price.

      After defendant left, plaintiff claims she made a more thorough inspection

which showed: most of the patio had not been lifted; the patio, patio gate and

patio furniture were scratched; the patio was badly chipped by insertion holes;

landscape rocks were missing; her lawn had a huge deep divot caused when

defendant's truck got stuck due to the rain; branches of a shrub were broken; and

a trip hazard was created due to an uneven joint in the patio.

      Plaintiff contends that despite texts and e-mails to defendant thereafter,

she was unable to get him to fix his deficient work or get a one-half refund of

her payment that she proposed to resolve her concerns. Thus, she sought relief

by filing a small claims complaint against defendant to get a full refund of the

amount she paid. Her complaint did not seek to recover any alleged damage to

                                                                          A-0418-18T3
                                        3
her property, nor did it allege a violation of the Consumer Fraud Act, N.J.S.A.

56:8-1 to -20, after her investigation determined defendant was not a licensed

contractor in New Jersey.

      During trial, plaintiff presented photos and a video she contended depicted

the damage done by defendant and his poor workmanship.             However, the

exhibits, which were apparently admitted into evidence, were not marked for

identification as required by Rule 1:2-3.

      Defendant testified he performed quality work as evidenced by the fact

that after the work was done, he did a walk through with plaintiff, and she paid

him in full. He also asserted he and his company are registered contractors, but

no license was required for the work he performed.

      After reserving decision, the court entered an order the next day

dismissing plaintiff's complaint with prejudice. Below the court's signature at

the end of the order is typed "WRITTEN DECISION RENDERED," however,

there is no such decision in the record provided.2 In its order of dismissal, the



2
   In fact, other than the statement on the order there is nothing in the record
referencing a written decision by the court. Neither the court's comments at the
trial's conclusion nor its reconsideration order indicate a written decision being
issued regarding the bench trial.


                                                                          A-0418-18T3
                                        4
court stated what appears to be its reasoning for dismissing plaintiff's complaint.

The order provides:

            In determining what should be awarded to the [p]laintiff, the
            [c]ourt must look at what was proven by a preponderance of
            the evidence and whether there is a sufficient legal basis for
            the relief sought. After listening to the testimony given at
            trial, reviewing the exhibits,[3] and all papers presented in the
            case, the [c]ourt makes the following findings. The [c]ourt
            finds that [p]laintiff has not proven her case by a
            preponderance of the evidence. Here, it was clear that the
            contractor performed work and [p]laintiff paid for the work
            performed. Although, [p]laintiff maintains there was damage
            caused to her patio and/or property in the course of the work,
            the [c]ourt is not persuaded. Moreover, the [c]ourt finds that
            [d]efendant was reasonable under the circumstances. For
            these reasons, the [c]ourt finds that [p]laintiff has not proven
            her case by a preponderance of the evidence.

      Plaintiff thereafter filed a timely motion for reconsideration arguing the

court did not consider credible evidence; including a video taken by plaintiff

allegedly depicting the poor workmanship performed by defendant. Plaintiff's

moving papers argued the video was not presented because the court did not

request to view it.




3
  As noted above, none of plaintiff's exhibits were marked for identification,
thus it is not clear what exhibits were being referenced.
                                                                                A-0418-18T3
                                           5
      Plaintiff's merits brief indicates there was oral argument for the motion,

however, no transcript of the argument has been provided, nor does the order

entered on the motion's return date denying relief indicate oral argument

occurred.   In fact, the order's recitation, "[a]fter reviewing the [p]laintiff's

motion for reconsideration, the [C]ourt hereby denies the motion[,]" suggests

there was no argument. Again, the court did not render a written or oral decision,

but the order stated plaintiff failed to satisfy the standard for granting a

reconsideration motion as set forth in Rule 4:49-2 and D'Atria v. D'Atria, 242

N.J. Super. 392, 401 (Ch. Div. 1990) and "all evidence presented was properly

considered . . . . judgment entered against [p]laintiff for failing to prove her case

by a preponderance of the evidence."

      On appeal, plaintiff contends the court failed to consider the probative,

competent evidence she submitted, as well as the video that was not viewed, at

trial and in deciding her reconsideration motion. On the record before us it is

unclear on what basis the court made its rulings.

      Initially, we recognize it is well-established that "[f]inal determinations

made by the trial court sitting in a non-jury case are subject to a limited . . .

scope of review . . . ." D'Agostino v. Maldonado, 216 N.J. 168, 182 (2013)

(citations omitted). "[F]indings by the trial court are binding on appeal when

                                                                             A-0418-18T3
                                         6
supported by adequate, substantial, credible evidence. Deference is especially

appropriate when the evidence is largely testimonial and involves questions of

credibility." 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)). "[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[.]"   Ibid. (alteration in original) (quoting In re Tr. Created By

Agreement Dated Dec. 20, 1961, ex rel. Johnson, 194 N.J. 276, 284 (2008)). We

review the trial court’s interpretation of law de novo. Manalapan Realty, LP v.

Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

      In rendering a bench trial decision, Rule 1:7-4(a) requires the court must

in "an opinion or memorandum decision, either written or oral, find the facts and

state its conclusions of law[.]" To comply, the court must articulate factual

findings and correlate them with the principles of law. Curtis v. Finneran, 83

N.J. 563, 570 (1980). When that is not done, this court's review is impeded, and

a remand is necessary. Elrom v. Elrom, 439 N.J. Super. 424, 443 (App. Div.

2015). "Meaningful appellate review is inhibited unless the judge sets forth the

reasons for his or her opinion." Strahan v. Strahan, 402 N.J. Super. 298, 310

                                                                         A-0418-18T3
                                       7
(App. Div. 2008) (quoting Salch v. Salch, 240 N.J. Super. 441, 443 (App. Div.

1990)).

      The trial court here did not adequately explain its reasons for dismissing

plaintiff's complaint with prejudice and why it did not view, as the record

suggests, plaintiff's video.   The court, without specifically indicating its

credibility assessment of the parties' testimony or the significance of any

testimony and exhibits, merely made conclusory statements that plaintiff failed

to prove her case by a preponderance of the evidence and that defendant

performed his work. Our ability to resolve an appeal is largely dependent upon

the trial court's compliance with its obligation to state findings of fact and

conclusions of law as required by Rule 1:7-4(a). Hence, we are constrained to

vacate the court's two orders and remand the case to the trial court to make

findings of fact and conclusions of law consistent with this opinion and Rule

1:7–4(a).

      Reversed and remanded. We do not retain jurisdiction.




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