Bruno Kearney Architects, LLP, Appellant,v.Lisa Rose, Respondent.BriefN.Y.September 4, 2013Sam Off ices of Wllllam R. Gsrbarino Milli 'am X 9 ar bar tn o 40 Main Street Andrew R. Garbarino Sayville, NY 11782 William F. Garbarino Fax (es<) Sea-4436 (631) 563-44'f f 0/ Go crease/ Dona1d R. Hamill July 19, 2013 Clerk of the Court of Appeals New York State Court of Appeals 20 Eagle Street Albany, New York 12207 Re: Bruno Kearney Architects LLP against Lisa Rose APL-2013-00092 New York County Clerk's Index No. 115773-08 Your Honors: This office represents Lisa Rose, the Defendant-Appellant in the Appellate Division, First Department, and the Respondent in this appeal. AS TO JURISDICTION AND REVIEW BY T&K COURT OF APPEALS CPLR 5501(b) states in pertinent part that "The court of appeals shall review questions of law only, except that it shall also review questions of fact wherePe appellate division, on reversing or modifying a final or interlocutory judgment, has expressly or impliedly found new facts and a final judgment pursuant thereto has been entered." The Appellate Division reversed the trial court and ordered a new trial. No final judgment has yet been entered in this action. The Court of Appeals can only consider questions of law on this appeal. CPLR 5615, titled "Disposition upon appeal from order granting new trial or hearing" states that: "When an appeal to the appellate division presented questions of fact and a further appeal is taken pursuant to subdivision (c) of section 5601, or subparagraph (iii) of paragraph two of subdivision (b) of section 5602, the court of appeals shall affirm the order appealed from and shall render judgement or order absolute against the appellant unless the order or opinion of the appellate division recites either that questions of fact have not been considered or that the court has considered questions of fact and has determined that it would not grant a new trial or hearing upon those facts." A primary issue in the this matter was whetber or not it was the intent of the appellant and the respondent to adopt the appellant's twenty one page unsigned proposal as a contract for the production of plans to be drafted for the construction of a new house which was to be built by the respondent, Lisa Rose. " ' And, while it is the responsibility of the court to interpret written instruments, "...where a finding of whether an intent to contract is dependent as well on other evidence irotn which differing inferences ntaybe drawn, a gnestion of fact arises.' " flores v. Lower East Side Service Center Inc., 4 NY3d 363, 795 NYS2d 491 (2005) quoting Brown Bros. Electrical Contractors Inc. . Beam Construction Co . 41 NY2d 397, 393 NYS2d 350 (1977) If a question of fact is present, the Court of Appeals must affirin the judgment of the Appellate Division, even if the Court of Appeals disagrees with the Appellate Division as to where the weight of the evidence lies. The court of Appeals may only review errors of law on this appeal. Cin.cio v. Cit of New York 275 NY 20 (1937) The order of the Appellate Division, First Department does not recite that questions of fact have not been considered. The appellant has argued in the appellate division and is still arguing questions of fact on this appeal (see page five of appellant's letter submission where appellant states(incorrectly) that ""Justice Tingling could only have come to this conclusion by weighing the credibility of the witnesses, accepting the statements of BKA, and discrediting the inconsistent assertions made by Ms. Rose, as was his almost unfettered right as the trier of both the facts and the law.) Pursuant to CPLR 5615 the order of the First Department must be affirmed. For the reasons set forth below no error of law exists. STATEMENT OF FACTS Lisa Rose wanted to renovate her single family home located on Fire Island Sandpiper Walk, Davis Park, New York. After having a dinner with her childhood frjend, Joseph Braccio, Ms. Rose placed a telephone call to discuss the renovation of her house (R. 94). Following that call she attended a meeting at the offices of Bruno Kearney Architects, LLP where she gave appellant a check for $3000.00, Only two writings exist that memorialize ar|y possible agreement of the parties: (1) an October 21, 2005 memorandum sent by Joseph Bruno to Lisa Rose wherein Mr. Bruno stated that appellant would produce plans for renovations to Ms. Rose's house that would cost $405,000.00 to construct, and that appellant would be entitled to a total fee of 15% of that amount (R. 389). (2) a March 31, 2006 memorandum from Joseph Bruno to Lisa Rose in which Mr. Bruno states that the only thing Lisause has to worry about-and that he would put it in the contract as such-was that th~ Scope of Work was to "Design Lisa an awesome beach house for here to enjoy with her family and friends for years to come." In this e-mail Mr. Bruno also states that the cost of construction will be $400,000.00 and the Lisa Rose would be charged a fee equal to 15% of that amount-the sum of $60,000.00 dollars broker| down into amounts for each phase of the project (R. 543). In October of 2005, some time after Lisa Rose had paid a $3000.00 deposit to appellant, the appellant sent Lisa Rose a twenty one page proposal for architectural services for a proposed $400,000.00 renovation. (R. 389, 329 through 349) This twenty one page proposal for a renovation was again forwarded to Lisa Rose in January of 2006. (R. pg. 116) Lisa Rose never ead this twenty one page proposal for plans for a renovation (R. pg. 265). There is not any evidence in the record that the parties ever conducted any negotiations over the terms of this proposal. Neither party signed this twenty one page proposal. Although appellant claimed to have produced plans for a renovation (R. 201), no plans for any renovation were entered into evidence. These renovation plans did not confo~ni to the requirements of the Town of Brookhaven (R. 141, 305, 306). Joseph Bruno admitted that these plans could not have been used to renovate Lisa Rose's house(R. 203). Joseph Bruno admitted that the existing house had to be demolished and a new house designed &om the structural system on up.(R. 121, 141, 142, 202) Any renovation plans produced by the plaintiff were, and are, useless. As is shown by invoices entered into evidence by the appellant, during the course of the design work on these useless renovation plans, Lisa Rose was billed and she paid the smIn of $54,973,00 for those renovation plans, pursuant to the terms of appellants e mail of March 21, 2006.(R. 390 through 402). Lisa Rose did not make any payments for architectural services after the initial invoices relating to plans for a $400,000.00 renovation to her house. When the renovation plans allegedly produced did not conform to Brookhaven Toom.'s requirements the parties agreed that the appellant would design an entirely new house for Lisa Rose(R. 141, 142) As the trial court correctly found (R. 17), Lisa Rose set a construction budget for the cost of building a new house of $600,000.00 to $800,000.00 (R. 205, 259, 260, 261) The appellant eventually produced plans for the construction of a new house which the appellant claimed would cost a million dollars to build (R. 178, 179). Bids received by Lisa Rose to construct the new liouse designed by appellant ranged from $900,000.00 to 1,000,000.00 (R. 309), The appellant wrote to Lisa Rose that "I hope you didn't throw up last night after seeing the 'preliminary' pricing...." The appellant admitted that the bids received by Lisa Rose were fair (R. 580) and that attempting to reduce the cost of constructing the new house designed by appellant to fjt with the budget set by Lisa Rose "...would have required redesign and cutting the scope." (R. 580) AAer leaining that the house designed by the appellant could not be constructed within the budget that she had set Lisa Rose terininated her beach house project. After the Ms. Rose terminated her beach house project the appellant sent Lisa Rose an invoice claiming to be owed 15/o of $100,000.00 (a balance of $64,500.00). The parties had a contentious disagreement over this bill. (R. 192) When Lisa Rose refused to pay the appellaxft $64,500.00 this action ensued. POINT ONE THE APPELLATE DIVISION REVIEWS BOTH QUESTIONS OF LAW AND OF FACT The trial court did not make any findings as to the credibility of the witnesses. Contrary to the position of the appellant, the trial court found that Lisa Rose set a budget for the construction of a new house of $600,000.00 to $800,000.00. (R. 17). The Appellate Division reviews both questions of law and questions of fact and discretion. CPLR 5501(c). The scope of the appellate Division s review of a nonjury trial is as broad as that of the trial court (No em Westchester Professional Park Associates v. Town of Bedford $0 NY2d 492, 470 NYS2d 350 (1983)) and peri+its the Appellate Division to substitute their ovt n judgment where the evidence fails to support an element of the trial court's findings. Jossel v. Filicori 235 AD2d 205, 652 NYS2d 12 (1st Dept. 1997); M h v. Vivian Real Co. 199 AD2d 192 (1st Dept. 1993) Unlike the Court af Appeals, the Appellate division has jurisdiction to review unpreserved issues in the interests of justice. Bin am v. New York ci Transit Authori 99 NY2d 355, 756 NYS2d 129 (2003). If there is any question of fact from which opposing inferences can be drawn, the Appellate Division is &ee, in the exercise of its discretion, to order a new trial. World Exchan e B v. Commercial Cas 1 Insurance Com an 255 NY 1 (1930) The appellant's complaint regarding the Appellate Division's supposed failure to give deference to the trial court s determination is without merit. The Appellate Division's finding that the parties had riot adopted the appellant's unsigned proposal was not based on a error of law in the standard of review applied. POINT TWO THE PLAINTIFF'S UNSIGNED TWENTY ONE PAGE PROPOSAL IS NOT A CONTRACT Generally, where the parties contemplate that a signed writing is required, there is no contract until one is delivered. Munici al Consultants & Publishers Inc. v. Town of Ram o 47 NY2d 144, 417 NYS2$ 218 (1979); Scheck v. Francis 26 NY2d 466, 311 NYS2d 841 (1970) This rule otily yields where the parties have agreed on all contractual terms and there is nothing leA to future settlement and have only to commit them to a writing. Munici al Consult ts & Publishers Inc. v. Town of Rain o, supra, at 148-149; 219, 220. The appellant's twenty one page proposal states that it is for the ROSE BEACH HOUSE-ENLARGEMENT AND RENOVATION (R.pg. 329). There is no evidence in the record that the appellant's proposal "..is a long used AIA form agreement." as the appellant asserts on page 7 of its letter submission, nor would it be relevant or material if it was. This proposal states, directly above thesignaturelines that "This proposal shall remain valid, for acceptance by the orner, for a period of not more than (30) days." (R. pg. 349) Appellant's proposal also states that above the signature line "This agreement entered into as to the day and year firstwritten above." (R. pg. 349) The appellant's proposal for plans for renovation plans, by its own terms provided that it would not be binding unless signed. The appellant sent the appellant's twenty os page proposal for renovation plans to Lisa Rose several times.(R. 389, 542, 543 ) The appellant would not have done this if he did not want her to sign it. The appellant told Lisa Rose that he wanted her to sign the appellant's proposal. (R, 266) The appellant's proposal states in paragraph 9.6 thereof that "This agreement may be amended only by an instrument signed by both Owner and Architect" (R. pg. 343) By it's own terms, appellant's proposal could not be changed or amended to provide for plans for a new house except by a writing signed by both parties. The uncontradicted evidence at trial was that Lisa Rose never read the appellant's 21 page proposal for plans for a renovation. (R. 256) There is no evidence in the record that the parties ever discussed or negotiated the terms of the appellant's twenty one page proposal for renovation plans. The appellant claimed at trial that he and Ljsa Rose reviewed some other unknown architect's document (a document not in evidence, the contents of which are unknown) and that he said it was "similar" to /is proposal (R. 116). Lisa Rose testified that only Joseph Bruno "reviewed" that other architects agreement.(R. 273). There is not any evidence in the record that the terms of the appellant's 10 proposal were discussed at that meeting. Joseph Bruno did not testify (nor did anyone else) that Lisa Rose agreed that the terms of that other architects agreement, whatever those teens might have beep, were agreed to by Lisa Rose as the basis of any agreement with appellant. The evidence is clear. The parties did not intend to be bound to the appellant's twenty one page proposal unless and until that proposal was signed by the parties. There is no evidence in the record that the parties discussed or negotiated the terms of the appellant's twenty one page proposal. Lisa Rose never even read the appellants twenty one page proposal. The parties never agreed on the terms of the appellant's twenty one page propos/. Pursuant to the standard laid down in Munici al Consultants & Publishers Inc. v. own of Ram o, supra, at 148-149; 219, 220, the Appellate Division correctly found that the parties were not bound by the toms of the appellant's twenty one page proposal. In support of it's claim that the parties intended to be bound by the appellant's twenty one page proposal, the appellant relies on case such as God' s Battalion of Pra er Pentecostal Church k'v. Miele Associates LLP, 6 NY3d 371, 845 N.E. 1265 (2006), a case where the court held that the plaintiff, having relied on and acknowledged an unsigned written contract in its complaint, could not later disclaim an arbitration provision in that same contract; Smith v.21 W. LL Ltd. 11 Liab. Co., 29 AD3d 360, 816 NYS2d 23 (1st Dept. 2006), a matter where the court held that an unsigned construction contract was binding because both parties had negotiated the teens and had commenced performanceof the construction project; Mentesana v. Bernard Janowitz Const. Co . 36 AD3d 769; 828 NYS2d 522 (2d Dept. 2007), where the court (relying on Ka -Bee To s Co . v. Winston S orts 214 AD2d 457, 625 NYS2d 208 (1st Dept. 1995) 4vhich involved a prior course of dealing between the parties and actions pursuant to the purchase order) held that an unsigned purchase order might be held to be a valid contract if the facts at trial justified doing so. None of facts of the cases cited by the appellant have any similarity to the facts of this matter. While the Court of Appeals has held that an unsigned contract may be enforceable, provided that there is objective evidetice establishing that the parties intended to be bound (Flores v Lower East Side Service Center Inc., supra, at 369,495 citing Munici al Consultants 8'c Publishers Inc. v. Toys of Ram o, supra.) in this matter there is no such objective evidence. In this matter the standard the Court of Appeals set forth in M~unioi al Consultants & Publishers Inc. v. Tovrn of Ram o, supra, has not been met. The appellant's proposal provided that the parties would not be bound until 12 it was executed. The appellant's proposal provided that it could not be altered &om a proposal for an enlargement and renovation to a proposal for a new house except by a writing signed by both the architect atid owner. The actions of the appellant in repeatedly sending the proposal to Lisa Rose and requesting that she sign the proposal establishes that the parties believed that the proposal was not binding unless signed. There is no evidence in the record that the parties ever discussed or negotiated the appellant's vrritten proposal. Lisa Rose never even read the appellant's proposal. The trial court correctly found that the parties met and Lisa Rose set a budget for the cost of constructing a new house of $600,000.00 to $800,000.00 (R 17). However, the appellant repeatedly testified at trial Pat the appellant was not bound by the budget set by Lisa Rose for the cost of constructing a new house and that the appellant could design a new house without regard for the cost of construction (R. 207, 209, 338). If the appellant were correct, the appellant could have designed a house that would cost $10,000,000.00 to construct and Lisa Rose would have had to accept those plans and pay to pppe)lant 15% of $10,000,000.00. The appellant claimed that under the terms of his written proposal that the appellant alleges was adopted by the parties, Lisp Rose was to pay the appellant 13 15% of the cost of constructing any house that the appellant designed, plus "reimbursable expenses", regardless of the cost of construction (R. 207). Lisa Rose testified that under the teiTns of her oral agreement with appellant she was to pay the respondent 15% of the cost of constructing a new house that the appellant designed and that house was to cost no more than $800,000.00(pg. 272) and that the appellant was to pay expenses such as engineering fees(R. 265, 319) While Lisa Rose did pay a $3000.00 deposit to the appellant, as is admitted by the appellant on page 3 of appellant's letter, this deposit was made prior to the time that the appellant's proposal was first forwarded to Lisa Rose. This deposit can not be viewed as objective evidence that Lisa Rase was acting pursuant to the terms of an unsigned proposal that had not even been provided to her at that time. The appellant's twenty one page proposal required that the appellant bill Lisa Rose monthly on the fiAeenth of each month(R,. 344, 345) and that Lisa Rose pay monthly (344). While the appellant did bill monthly for its services in designing a renovation (although not on the Meenth of each month) once the appellant's renovation plans were found to be unusable the appellant never billed Lisa Rose for the appellant's services until after Lisa Rose terminated her project. Section 9.6 of appellant's proposal required that in order to change the scope of appellant's work &om drafting plans for an enlargement and renovation 14 to drafting plans for a new house the parties had to execute a writing amending the appellant's proposal (R. 343). The parties to this action never executed a writing changing the scope of the appellant's work. If eider party to this action had believed that they had adopted the terms of the appellant's proposal they would have executed theunitingmandated by that proposal. The appellant's twenty one page proposal required that in the event that a dispute arose the parties would 6rst submit that d spute to mediation and in the event that no agreement was reached thereafter arbitrate that dispute (R. 340, 341) The parties did not mediate or arbitrate this dispu e. If the appellant had believed that his twenty one page proposal was binding on the parties the appellant would have instituted arbitration proceedings or brought a proceeding to compel arbitration pursuant to CPLR 7503(a). The evidence is clear. As the appellate division found, the appellant fail to demonstrate that the parties intended to be bound by the teens of the appellant's written proposal without signing that proposal. THE APPELLANT DIVISION CORRECTLY FOUND AN ORAL AGREEMENT BETWEEN APPELLANT AND LISA ROSE FOR PLANS FOR A NEW HOUSE THAT WAS TO COST $600,000.00 TO $800,000.00 TO CONSTRUCT The only written agreement the parties made for plans for a renovation to 15 Lisa Rose's house is that agreement embodied in Joseph Bruno's e mail of March 31, 2006, to wit: appellant's work would be to "Design Lisa an awesome beach house for her to enjoy with family and fiends for many years to come."; and that the renovation would cost $400,000.00 to construct; and that the appellant would receive a fee of 15% of that amount, the sum of $60,000.00. At trial the appellant admitted that the appellant never produced any plans that could used to renovate Lisa Rose's house(R. 203}. The Appellate Division found that the parties then made a verbal agreement that the appellant would provide plans for a new house. As the trial court and the Appellate Division both found, Lisa Rose set a budget for the cost of constructing a new house af the sujjn of $600,000.00 to $800,000.00. The definition of the word "budget" as fo®d in Black's Law Dictionary, 176 (5th Edition 1979) is "The amount of money that is available for, required for, or assigned to a particular purpose." The word "budget" is complete in and of itself - Lisa Rose did not have to add any qualifier or ask appellant to "guarantee" that budget or to make it a "firm" or 'fixed" budget. Ms. Rose testified that it was her understaliding that the house to be designed by appellant was to cost no more than $800,000.00 to construct, all 16 inclusive (R. 260, 261) and that there were to be no additional costs (R. 261). Lisa Rose believed that the house that the appellant was to design was to be constructed within the budget she had set(R. 278). "(W)here a contract does not have such essential teims as the time or m anner of perfonnance or price to be paid, the coTnined(15% of the cost of a house that woul cost no more than $600,000.00 to $800,000.00 to construct) Because the terms of the verbal agreement for the plans for the construction of a new house could be determjmed by reference to something certain - the budget for a new house set by Lisa Rose - the Appellate Division correctly found that the parties had entered into an enforceable verbal contract for the drafting of plans for a new house pursuant to the standard set forth in Metro-Gold -Ma er Inc. v. Scheider, supra. AS TO QUANTUMMERUIT As the appellant did not address or reserve any argument regarding quantum meruit in it's letter submission to the Court of Appeals, the appellant must be deemed to have abandoned any argunent based on quantum meruit. 22 NYCRR 500. 11(f). The Appellate Division correctly found, in reliance on Clark-Fi atrick Inc. v. Lon Island Rail Road Com an 70 NY2d 382, 521 NYS2d 653(1987), that the existence of the express oral agreement between the appellant and the respondent that the appellant could not recover in quantum meruit. In addition, Lisa Rose never accepted the appellant's work product as the house the appellant designed could not be built within her budget, precluding any cause of action in 19 quantun meruit Martin H. Baum Associates Inc. v. H & M International Trans ort Inc. 171 AD2d 479, 567 NYS2d 404 (1st Dept. 1991). However, assuming arguendo, that the appellant had a cause of action for quantum meruit, the lack of any evidence in the record to support that cause of action, such as testimony as to the market value of any product produced by the appellant or the normal market hourly rate charged by an architect the would preclude any award in quantum meruit. AS TO AN ACCOUNT STATED As the appellant did not address or reserve