                        NOT FOR PUBLICATION WITHOUT THE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-4785-16T2

RONALD HALAL,

        Plaintiff-Respondent/Cross-
        Appellant,

v.

DAN SPIRO, AL MARINO,1 LISA MARIE
KRYSTOPIK,2

        Defendants,

and

ALBERT SALMORIN, A&M POWER WASHING,
and A&M MAINTENANCE,

     Defendants-Appellants/Cross-
     Respondents.
__________________________

              Submitted June 6, 2018 — Decided July 12, 2018

              Before Judges Currier and Geiger.

              On appeal from Superior Court of New Jersey,
              Law Division, Special Civil Part, Middlesex
              County, Docket No. DC-10656-16.



1
     Albert Salmorin was incorrectly pled as Al Marino.
2
   Plaintiff voluntarily dismissed defendant Lisa Krystopik after
a review of her discovery responses.
            Beninato   &   Matrafajlo,   attorneys              for
            appellants/cross-respondents     (Dan                T.
            Matrafajlo, on the briefs).

            Skolnick Legal Group, PC, attorneys for
            respondent/cross-appellant    (Martin    P.
            Skolnick and John E. Icklan, of counsel and
            on the brief).

PER CURIAM

     In this appeal and cross-appeal arising out of a contract for

home improvement work, we are asked to review the judge's rulings

following    a   bench    trial   in   the   Special   Civil   Part.      Having

considered all parties' contentions in light of the record and

applicable principles of law, we affirm.

     We   derive    our    factual     summary   from    the   trial     record.

Plaintiff Ronald Halal decided to sell his house in April 2016 as

he was relocating to California for his employment.                    The house

needed substantial renovations before it could be listed for sale,

and plaintiff asked his friend and realtor Carlo Flores to find a

contractor.      Flores' first choice as a contractor was unable to

do the work.      He was then approached by defendant Dan Spiro who

advised he could do the work.3

     Flores emailed a proposal to plaintiff that detailed home

improvement work in the amount of $16,000.             The proposal was from



3
   Spiro did not answer the complaint and default was entered
against him.

                                        2                                A-4785-16T2
Dan   Spiro    on    the   letterhead    of    defendant       A&M     Maintenance.

Plaintiff testified he made the initial payment of $7500 via check

to Flores, because he "didn't have the bank account [information]

of Dan Spiro at the time."            Plaintiff instructed Flores to give

the check to Spiro "or whoever [was] in charge of the renovations."

The   check    was   endorsed    by   both    Flores     and    defendant       Albert

Salmorin, and deposited at TD Bank into the account of defendant

A&M Power Washing.         A second payment of $5225 was made via wire

transfer after Spiro texted plaintiff the account information for

A&M   Power    Washing.       Plaintiff's      payments        therefore       totaled

$12,725.

      Following      these   payments,       plaintiff    testified       he     began

"having trouble getting in touch with Dan [Spiro]."                    His family,

who was still in New Jersey, told him nobody was coming to the

house to make repairs, and when he returned to New Jersey himself,

neighbors told him "there was barely anyone coming in other than

[his] family to check on the house."

      Flores    advised      plaintiff   that     Salmorin       and    Spiro      were

partners and he gave plaintiff Salmorin's phone number.                     In mid-

August, plaintiff called Salmorin, who told plaintiff "he was

going to get involved in this and he [would] try to get this fixed

and he was disappointed with Dan [Spiro]."                 Plaintiff testified

further that Salmorin told him that he and Spiro had been working

                                         3                                     A-4785-16T2
together for some time.      Salmorin was aware of both the proposal

submitted by Spiro and the specific work to be done on plaintiff's

home.   Shortly thereafter, plaintiff stated Salmorin was not

returning his phone calls so he texted him instead.          There was one

response to his texts in which Salmorin advised the house was

being painted.    The painting was never completed.

     Because     neither   Spiro,    Salmorin    nor   the   A&M   entities

completed the work set forth in the proposal, plaintiff was forced

to hire another company and paid $7000 to complete the work.

Plaintiff added he was unable to sell the property until much

later, as the work was not completed as scheduled.

     Salmorin testified that he was the sole proprietor of both

A&M Power Washing and A&M Maintenance.          He performs power washing

services but denied doing home improvement work.         Salmorin advised

he had known Spiro for many years and was aware that Spiro was

working on plaintiff's home.        He was unaware, however, that Spiro

had listed A&M Maintenance on his proposal.

     Salmorin denied ever representing himself as being partners

with Spiro.    He stated that when contacted by plaintiff, he became

the "middleman" and reached out to Spiro only to find out the

status of the work so that he might advise plaintiff.

     When asked how plaintiff's checks were deposited into his

account, Salmorin claimed he deposited the money as a favor to

                                      4                             A-4785-16T2
Flores, hoping to get power washing jobs on homes referred to him

by Flores.   He stated Flores was in the process of refinancing his

home and could not deposit the check in his own account because

he did not want the funds revealed to his lender.   Spiro could not

deposit the check as he did not have a bank account.

     Salmorin contends he gave the $12,725 deposited into his

account to Spiro in cash as payment for the work.         Although

plaintiff had requested Salmorin's bank records during discovery,

they had not been produced.   Therefore, there was no record before

the court to reflect a withdrawal of plaintiff's funds from

Salmorin's account.

     Flores testified he had been friends with plaintiff for ten

years and served as his real estate broker in the sale of his New

Jersey home.    He said Spiro was working for a contractor who was

doing renovations on his own home and overheard Flores's inquiries

to that contractor about undertaking work at plaintiff's home.

Flores stated Spiro told him he had a partner named Al, and they

had a licensed home improvement business – A&M Maintenance —

together.      Spiro provided a business card to Flores for A&M

Maintenance.    Thereafter, Flores recommended Spiro to plaintiff.

     Flores met Salmorin for the first time at the bank when he

gave Salmorin plaintiff's check to deposit.     He testified Spiro

told him he was not available so Flores should meet with his

                                 5                          A-4785-16T2
partner Al to make the deposit in their business account.                   Flores

stated   Salmorin    talked   to   him       at   the    bank   about   prior   home

improvement and commercial work he had done.

     Flores also testified he did not know Spiro did not have a

bank account.       He was just told by Spiro to give the check to

Salmorin.

     In his complaint, plaintiff alleged against all defendants a

violation of the New Jersey Consumer Fraud Act (CFA), N.J.S.A.

56:8-1 to -20, breach of contract, negligent construction, breach

of the covenant of good faith and fair dealing, equitable and

common law fraud, negligent misrepresentation, breach of warranty,

and a claim for punitive damages. Prior to trial, default judgment

was entered against Spiro in the amount of $15,492.4

     At the completion of the bench trial, Judge J. Randall Corman

issued an oral decision on June 12, 2017.                  Because he concluded

there was no contract between plaintiff and Salmorin, the latter

could not be liable under the CFA.                      However, the judge also

concluded that Salmorin's failure to produce his bank records to

corroborate his contention he had withdrawn monies from his account

following plaintiff's deposits and paid Spiro in cash, required

an adverse inference that the withdrawals had not occurred.                      The


4
  Judge Corman also awarded plaintiff reasonable attorney's fees,
filing fees, and costs of suit against Spiro.

                                         6                                 A-4785-16T2
court found plaintiff had proven his claim of unjust enrichment.

Judgment was entered against Salmorin and the A&M entities for

$12,725.

       On appeal, Salmorin argues the trial court erred by assessing

an adverse inference against him for his failure to produce bank

statements.    He contends that plaintiff had the burden to produce

those records affirmatively and should have done so through a

subpoena to the bank.    Salmorin also contends the judge erred in

granting judgment for unjust enrichment.              Plaintiff asserts in his

cross-appeal the trial judge erred in not finding Salmorin violated

the CFA.

       "Final determinations made by the trial court sitting in a

non-jury case are subject to a limited and well-established scope

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

(quoting Seidman v. Clifton Sav. Bank, SLA, 205 N.J. 150, 169

(2011)).    Although our review of legal determinations made by the

trial court is de novo, we will not disturb the factual findings

of the trial court 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. (quoting Seidman, 205

N.J.   at   169).   Additionally,    we       defer    to   the   trial   court's

credibility determinations because it "'hears the case, sees and

                                     7                                    A-4785-16T2
observes the witnesses, and hears them testify,' affording it 'a

better   perspective   than   a    reviewing   court   in   evaluating   the

veracity of a witness.'"      Gnall v. Gnall, 222 N.J. 414, 428 (2015)

(quoting Cesare v. Cesare, 154 N.J. 394, 412 (1998)).

     Judge Corman noted Flores and Salmorin gave similar versions

of what occurred at the bank when they met to deposit plaintiff's

check.    Salmorin confirmed a second transaction occurred – a

deposit of monies wired from plaintiff's account to him.

     Salmorin's bank records were in his control.              He had easy

access to these documents.        It seems unquestionable if the records

corroborated Salmorin's version of events, he would have produced

them.    A record evidencing the withdrawal of all funds deposited

by plaintiff into Salmorin's account would have ended plaintiff's

claim of unjust enrichment.         Salmorin did not produce documents

requested in interrogatories and document requests, nor did he

present those records at trial.            Given that evidence, Judge

Corman's conclusion that the records would not have supported

Salmorin's contentions is supported by the credible evidence in

the record.

     Plaintiff met his burden of proving Salmorin received funds

to which he was not entitled as he did not perform any work on

plaintiff's home.      "A cause of action for unjust enrichment

requires proof that 'defendant[s] received a benefit and that

                                      8                             A-4785-16T2
retention of that benefit without payment would be unjust.'"          Cty.

of Essex v. First Union Nat'l Bank, 373 N.J. Super. 543, 549-50

(App. Div. 2004) (quoting VRG Corp. v. GKN Realty Corp., 135 N.J.

539, 554 (1994)).

     We briefly address the cross-appeal as we discern plaintiff's

arguments to be meritless.    See R. 2:11-3(e)(1)(E).      Judge Corman

found plaintiff failed to establish a contractual relationship

between him and Salmorin.         Furthermore, plaintiff did not show

there was an agreement with Salmorin to perform work at plaintiff's

home. Plaintiff testified he did not speak to Salmorin until

several months after he agreed to Spiro's proposal, and then he

was only asking Salmorin to intercede with Spiro to get the

promised work finished.

     Without an agreement to perform work, Salmorin was not liable

under the CFA for failing to perform the renovations on plaintiff's

home.   Plaintiff's argument that Salmorin and Spiro acted as a

joint   venture   to    perform     the   home   improvement   work    is

unsubstantiated by the evidence in the record.        Rather, plaintiff

is entitled, as discussed, to recovery under the equitable theory

of unjust enrichment.

     Affirmed.




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