WINKS/KRUG LANDSCAPING SERVICES, LLC VS. STONEBRIDGE AT WAYNE HOMEOWNERS ASSOCIATION, INC.(L-10111-14, BERGEN COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-3220-15T3

WINKS/KRUG LANDSCAPING
SERVICES, LLC,

Plaintiff-Respondent,

v.

STONEBRIDGE AT WAYNE
HOMEOWNERS ASSOCIATION,
INC., improperly pled as
Stonebridge at Wayne Home
Owners Association, LLC,

Defendant-Appellant.
___________________________________

Argued May 31, 2017 – Decided August 23, 2017

Before Judges Rothstadt and Sumners.

On appeal from the Superior Court of New
Jersey, Law Division, Bergen County, Docket
No. L-10111-14.

Jessica A. Tracy argued the cause for
appellant (Curcio Mirzaian Sirot, LLC,
attorneys; Ms. Tracy and Daniel W. Heinkel,
on the briefs).

Harold P. Cook, III, argued the cause for
respondent (Harold P. Cook, III Esq. &
Associates, attorneys; Mr. Cook, on the
brief).

PER CURIAM
 Defendant Stone Bridge at Wayne Homeowners Association, Inc.

appeals from the Law Division's March 10, 2016 order entering a

judgment against it in the amount of $50,000 plus interest and

costs, in favor of its former snowplowing contractor, plaintiff

Winks/Krug Landscaping Services LLC. After a bench trial, the

judge found that defendant breached its contract with plaintiff,

including its implied covenant of good faith and fair dealing, by

unilaterally and unjustifiably cancelling the contract. She

awarded damages to plaintiff in an amount equal to the base amount

payable to plaintiff annually under its contract with defendant.

On appeal, defendant contends that there was insufficient evidence

to support the court’s conclusion that defendant breached either

its contract or the implied covenant of good faith and fair

dealing. Moreover, defendant argues that the court’s calculation

of plaintiff’s damages was incorrect. We disagree as to liability

and affirm the trial judge's determination that defendant breached

its contract, but we are constrained to remand for reconsideration

of plaintiff's damages.

Plaintiff's two principals and defendant's property manager

testified on plaintiff's behalf at trial. Defendant's general

counsel and a representative from its board testified on behalf

of defendant. In addition to that testimony, various documents

were admitted into evidence, including the parties' agreement and

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various emails that were exchanged between them. The salient

facts as found by the trial judge are summarized as follows.

The parties entered into a three-year agreement on October

15, 2012, under which plaintiff agreed to provide plowing services

to defendant's townhouse development, as it had done for many

years. Under the contract, plaintiff was to remove snow and ice

from the roadways from curb to curb. Moreover, plaintiff was to

provide all necessary equipment. However, that equipment

expressly excluded a "bucket loader or trucks for loading"

accumulated piles of snow and removing them to designated sites

within the complex.

In exchange for plaintiff's services, defendant agreed to pay

plaintiff a rate of $50,000 per year for three years. According

to the contract, the base amount would include all charges needed

to remove up to a total of fifty-five inches of snow during each

snow season. The contract provided for additional charges for

removal of snow in excess of fifty-five inches.

The agreement also addressed each party's right to cancel.

In one paragraph, it provided that defendant could cancel the

contract if, after giving plaintiff twenty-four hours' notice of

its deficient performance, plaintiff failed to remedy a specific

problem brought to its attention. In another section of the

contract, defendant reserved the right to cancel the contract upon

3 A-3220-15T3
thirty days' notice if "performance by the [c]ontractor is not

satisfactory." Likewise, plaintiff had a right to cancel the

agreement upon thirty days' notice if it did not receive payment

as provided for in the agreement.

Pursuant to the parties' agreement, plaintiff provided

plowing services during the winters of 2012-13 and 2013-14 seasons,

the latter of which involved periods of very heavy snowfall.

According to plaintiff, it was the "seventh snowiest year on

record" and required plaintiff to use heavier equipment at

increased costs. In February, defendant's property manager wrote

an email to plaintiff requesting certain insurance information and

thanking plaintiff "for all [it had] done this year."

In September 2014, in anticipation of the upcoming snow

season, plaintiff's principals attended a meeting with members of

the defendant's board, its attorney, and property manager. At the

September 3, 2014 meeting, the parties discussed issues that were

caused by the past year's heavy snowfall. There was no discussion,

however, of either party wanting to cancel the agreement.

Addressing the issue of accumulated snow during the heavy

snowfall, plaintiff's representatives proposed that plaintiff

purchase, at defendant's expense of approximately $10,000, a

"Bobcat" front loader so large piles of snow could be removed from

street intersections, allowing plaintiff to provide defendant with

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"curb-to-curb" clearing of the snow and ice during the heavy

snowfalls. The equipment would be used by plaintiff and stored

on defendant's property. According to plaintiff’s

representatives, all indications were that defendant had agreed

to accept the proposal for the additional equipment. Subsequent

emails exchanged between the parties, however, did not confirm or

dispute plaintiff's understanding of defendant’s acceptance of the

proposal to purchase the additional equipment. Rather, they

addressed the additional work that plaintiff proposed to perform

with the front-loader once purchased. Plaintiff, in reliance upon

its principal's understanding of what had occurred at the meeting,

purchased the Bobcat front loader for defendant.

Approximately thirty days after the meeting, defendant’s

attorney sent plaintiff a letter cancelling the parties'

agreement. The letter stated, "I am writing to advise that the

Board has voted to cancel the snow removal agreement with this 30

day notice." No reason was communicated to plaintiff as to why

the board took the action as alleged by counsel.1 According to

defendant's attorney, the cancellation was based upon complaints

received from homeowners about plaintiff’s performance during the

1
There were no minutes of any meetings or resolutions issued by
defendant's board admitted into evidence that confirmed counsel's
representations.

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prior year and defendant's concern about plaintiff being able to

handle the snowfall during the upcoming season. It was undisputed,

however, that there were no documents giving notice to plaintiff

of any unsatisfactory performance or defendant's intention to

cancel the contract or proving the board authorized its counsel

to cancel the contract for any reason.

Plaintiff’s representatives testified as to its damages

arising from plaintiff's cancellation of the contract. According

to one of its principal's calculations, plaintiff was entitled to

gross damages of $98,900, based upon its prior years' billings to

defendant, as adjusted for extraordinary snowfall, and upon its

billing to similar townhouse developments in the area. After

plaintiff's loss, including deductions for savings on the cost of

materials and fuel for its trucks not expended due to the

cancellation, its estimated net profit would have been $78,529.

After considering the testimony and other evidence, the trial

judge issued an order entering judgment in favor of plaintiff and

a twenty-one page written decision setting forth her findings of

facts and conclusions of law. In her decision, the judge found

that defendant breached its contract because there was no prior

notice of any kind at any time that there were problems with

plaintiff's performance or that defendant wanted to cancel the

contract. Rather, the judge found from the emails sent in February

6 A-3220-15T3
and September 2014 that defendant intended to continue using

plaintiff for snowplowing during the upcoming season. The judge

rejected defendant's reliance on its contractual right to cancel,

finding that it was a "pretext [and] a fiction," as demonstrated

by the fact that there were no complaints about plaintiff's

performance during the 2013-14 season or afterward that proved

"the performance was not satisfactory to the point of

cancellation."

Citing to the testimony of defendant's board member, the

judge observed that what came out of the September 3 meeting was

that the board wanted a proposal for the additional costs and

needed time "to think about it." She further noted that contrary

to the cancellation letter, there was no corroborating evidence

that defendant's board voted to cancel the contract because it was

dissatisfied with plaintiff's performance or otherwise.

Similarly, the judge cited to defendant's counsel's testimony that

the "board reached no agreement at that meeting" and there was no

"evidence at all of any official board decision to terminate."

Relying upon the Court's opinion in Brunswick Hills Racquet

Club, Inc. v. Route 18 Shopping Center Assoc., 182 N.J. 210, 230-

31 (2005), the judge concluded that the meeting exemplified the

"collaborative" relationship that existed before the meeting and

continued after, the ensuing cancellation was without any

7 A-3220-15T3
"legitimate purpose," and therefore breached plaintiff's implied

covenant of good faith and fair dealing. The judge rejected,

however, plaintiff's additional claim that defendant acted

fraudulently as she found that defendant did not misrepresent any

intention to authorize the purchase of the Bobcat or otherwise

induced plaintiff to make the purchase.

Turning to plaintiff's entitlement to damages, and citing to

Van Dusen Aircraft Supplies, Inc. v. Terminal Construction, Corp.,

3 N.J. 321 (1949) and Interchemical Corp. v. Uncas Printing &

Finishing Co., Inc., 39 N.J. Super. 318, 329 (App. Div. 1956), the

judge observed, "[p]laintiff is entitled to be awarded damages for

such loss of profits as is capable of determination with reasonable

certainty" and the fact that they cannot be precisely fixed did

not prevent her from awarding them. The judge then observed that

plaintiff's billings to defendant for the two prior years varied

greatly based upon undefined amounts of snowfall. As a result,

they could not be relied upon to determine damages except for the

purpose of establishing that plaintiff would have received in

2014-15 at the very least the base annual amount provided for in

the contract. She found there was no evidence that plaintiff

would have recovered more than that amount for additional snowfall

in accordance with the schedule for those charges in the contract.

8 A-3220-15T3
 The scope of our review of a judgment entered in a non-jury

case is limited. Seidman v. Clifton Sav. Bank, S.L.A., 205 N.J.

150, 169 (2011). "[I]n reviewing the factual findings and

conclusions of a trial judge, we are obliged to accord deference

to the trial court's credibility determination[s] and the judge's

'feel of the case' based upon his or her opportunity to see and

hear the witnesses." N.J. Div. of Youth & Family Servs. v. R.L.,

388 N.J. Super. 81, 88 (App. Div. 2006) (quoting Cesare v. Cesare,

154 N.J. 394, 411-13 (1998)), certif. denied, 190 N.J. 257 (2007).

"Findings by the trial judge are considered binding on appeal when

supported by adequate, substantial and credible evidence," and

"should not be disturbed unless . . . they are so wholly

insupportable as to result in a denial of justice." Rova Farms

Resort, Inc. v. Inv'rs Ins. Co. of Am., 65 N.J. 474, 483-84 (1974)

(alteration in original). However, we owe no special deference

to the judge's legal conclusions. Manalapan Realty, L.P. v. Twp.

Comm. of Manalapan, 140 N.J. 366, 378 (1995). "When deciding a

purely legal issue, review is de novo." Kaye v. Rosefielde, 223

N.J. 218, 229 (2015) (quoting Fair Share Hous. Ctr., Inc. v. N.J.

State League of Municipalities, 207 N.J. 489, 493 n.1 (2011)).

Applying these guiding principles, we turn first to the trial

judge's finding that defendant breached its implied covenant of

good faith and fair dealing and conclude that it was unsupported

9 A-3220-15T3
by the evidence. "[W]e start from the premise that 'every contract

in New Jersey contains an implied covenant of good faith and fair

dealing.'" Kalogeras v. 239 Broad Ave., LLC, 202 N.J. 349, 366

(2010) (quoting Sons of Thunder v. Borden, Inc., 148 N.J. 396, 420

(1997)). "Good faith" entails adherence to "community standards

of decency, fairness or reasonableness." Iliadis v. Wal-Mart

Stores, Inc., 191 N.J. 88, 109-10 (2007) (quoting Wilson v. Amerada

Hess Corp., 168 N.J. 236, 245 (2001)). "[N]either party shall do

anything which will have the effect of destroying or injuring the

right of the other party to receive the fruits of the contract[.]"

Kalogeras, supra, 202 N.J. at 366 (second alteration in original)

(quoting Palisades Props., Inc. v. Brunetti, 44 N.J. 117, 130

(1965)).

"The obligation to perform in good faith exists in every

contract, including those contracts that contain express and

unambiguous provisions permitting either party to terminate the

contract without cause." Sons of Thunder, supra, 148 N.J. at 421.

"[A] party to a contract may breach the implied covenant of good

faith and fair dealing in performing its obligations even when it

exercises an express and unconditional right to terminate." Id.

at 422.

"'[P]roof of bad motive or intention' is vital to an action

for breach of good faith." Badiali v. N.J. Mfrs. Ins. Grp., 220

10 A-3220-15T3
N.J. 544, 554 (2015) (quoting Brunswick Hills Racquet Club, Inc.,

supra, 182 N.J. at 225). A plaintiff must prove the defendant's

"bad motive or intention." Brunswick Hills Racquet Club, Inc.,

supra, 182 N.J. at 225.

Plaintiff here did not satisfy its burden of proof. It

offered no proof that defendant's decision to terminate the

contract was an act of a "bad motive or intention." There was no

finding by the trial judge based on the evidence that defendant

terminated the contract for any particular reason. She only found

that the purported reason – dissatisfaction with plaintiff's

performance – was unsupported by defendant's proofs.

We do find, however, that the trial judge's conclusion that

defendant breached the contract was supported by the evidence at

trial. Unlike a situation where a party to a contract has a right

to terminate a contract without cause, see Sons of Thunder, supra,

148 N.J. at 421; see also Karl's Sales & Serv. v. Gimbel Bros.,

249 N.J. Super. 487, 495 (App. Div.) ("where the right to terminate

a contract is absolute under the wording in an agreement, the

motive of a party in terminating such an agreement is irrelevant

to the question of whether the termination is effective"), certif.

denied, 127 N.J. 548 (1991), defendant's right to cancel was

conditioned upon plaintiff's unsatisfactory performance. The

trial judge found that there was no evidence that plaintiff

11 A-3220-15T3
performed unsatisfactorily to the point that defendant decided to

terminate the contract for that reason. We have no reason to

abandon our deference to those findings, as we do not find "they

are so wholly insupportable as to result in a denial of justice."

Rova Farms Resort, Inc., supra, 65 N.J. at 483-84.

Having concluded the trial judge properly determined that

defendant breached its contract with plaintiff, we turn to the

issue of damages. Defendant argues that the trial judge

incorrectly relied on the gross revenue plaintiff would have

received under the contract as the basis for her award without

deducting from that amount plaintiff's related costs that it did

not incur by not having to perform plowing services in 2014-15.

We agree.

The trial judge correctly determined that plaintiff was

entitled to recover its lost profits. See V.A.L. Floors, Inc. v.

Westminster Cmtys., Inc., 355 N.J. Super. 416, 422 (App. Div.

2002) ("where the plaintiff is a . . . contractor who has been

prevented by the defendant from completing his contract, the

plaintiff is entitled to the profit that would have been realized

if performance had been completed"). Similarly, the judge found

that the contract amount was the correct basis for determining the

gross amount plaintiff would be entitled to under the contract.

The judge omitted, however, the second step – calculating "the

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difference between the contract price and the cost of performance

or production." Ibid. (quoting J.L. Davis & Assocs. v. Heidler,

263 N.J. Super. 264, 276 (App. Div. 1993)); see also Cromartie v.

Carteret Sav. & Loan, 277 N.J. Super. 88, 103 (App. Div. 1994).

"Proof of the relevant costs or expenses is not a matter of

mitigation. It is part of the damage case of the party seeking

recovery for lost profits." Cromartie, supra, 277 N.J. Super. at

103. That said, we do not require specificity or exactness in

calculating lost profits. "Profits lost by reason of breach of

contract may be recovered 'if there are any criteria by which

probable profits can be estimated with reasonable certainty.'"

V.A.L. Floors, Inc., supra, 355 N.J. Super. at 425 (quoting Feldman

v. Jacob Branfman & Son, Inc., 111 N.J.L. 37, 42 (E & A 1933)).

For example, a plaintiff's historical profit margin in business,

rather than exact dollar amounts attributable to the specific

contract, can provide a suitable basis to calculate lost profits.

See id. at 425-26.

The judge incorrectly awarded plaintiff the full $50,000 even

though there was testimony adduced from plaintiff's witness that

there would have been costs associated with performance that would

not have been incurred, such as fuel charges and the cost of other

material. We are therefore constrained to remand the matter to

the trial judge for reconsideration of damages.

13 A-3220-15T3
 Affirmed in part; reversed and remanded in part for further

proceedings consistent with our opinion. We do not retain

jurisdiction.

14 A-3220-15T3