WEATHERVANE FARMS, L.L.C. v. ALBERT KILPATRICK

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0719-04T50719-04T5

WEATHERVANE FARMS, L.L.C.,

Plaintiff-Appellant,

v.

ALBERT KILPATRICK,

Defendant-Respondent.

________________________________________________________________

 

Submitted September 14, 2005 - Decided January 12, 2006

Before Judges Weissbard and Winkelstein.

On appeal from Superior Court of New

Jersey, Chancery Division, Special Civil

Part, Gloucester County, C-89-02.

Norman W. Briggs, attorney for appellant

(Mr. Briggs and Michele L. Weckerly, on

the brief).

Jeffrey N. Kale, attorney for respondent.

PER CURIAM

After a one-day bench trial, Judge Rafferty found in favor of defendant Albert Kilpatrick on his counterclaim against plaintiff Weathervane Farms, LLC, and entered judgment in the amount of $14,599.

Weathervane is a builder that constructed a development of single family homes in East Greenwich Township. On December 18, 1998, Weathervane entered into an Agreement of Sale with defendant pursuant to which title was closed on November 29, 1999. On the day of closing, defendant noticed for the first time a drainage/culvert system in his backyard. Defendant moved into his house in January 2000. After taking up residence, drainage problems ensued which defendant claimed caused damage to his property. By letter of August 14, 2000, the Gloucester County Soil Conservation District directed plaintiff to "provide an engineered situation to correct the erosion and drainage problems located behind [defendant's home] that complies with the State standards for Erosion Control." As a result, in October 2000, plaintiff performed remediation work in the form of re-grading defendant's rear yard, but defendant was not satisfied.

Ultimately, plaintiff asked defendant to execute a Deed of Easement permitting access by Township personnel for maintenance of the drainage facility on defendant's property. Defendant refused to execute the Deed until he was compensated for the claimed loss in value and damage to his property. Thereupon, plaintiff instituted suit in November 2002 seeking to compel defendant to execute the Deed of Easement in favor of the Township and to estop him from demanding compensation as consideration for executing the deed. Defendant counterclaimed, contending that plaintiff "negligently and improperly graded [his property]," causing defendant damage.

The case was tried by Judge Rafferty on July 21, 2004. The parties stipulated to the admission of defendant's written damage estimates. Two witnesses testified for plaintiff, and defendant testified in his own behalf. After hearing the testimony and reviewing the exhibits, Judge Rafferty issued a letter opinion in which, after making findings of fact, he concluded that defendant was "entitled to $10,799.00 for the value of the easement as well as $3800.00 for remediation of water problems." Upon receiving those funds, defendant was directed to execute the proposed Deed of Easement. An order to that effect was entered on August 31, 2004.

On appeal, plaintiff presents the following issues for our consideration:

A. THE TRIAL COURT'S FACT FINDING IS MANIFESTLY UNSUPPORTED BY THE CREDIBLE EVIDENCE OFFERED AT TRIAL.

1. The trial court erred in awarding Kilpatrick damages for the value of the easement when Kilpatrick was aware of the drainage grate at the time of settlement and made no complaints of its existence until he was asked to sign an easement.

2. The trial court erred in holding that the drainage on Kilpatrick's property was a defect when Kilpatrick presented no credible proof that the drainage issue was not corrected.

B. DEFENDANT FAILED TO PRESENT EXPERT EVIDENCE IN SUPPORT OF HIS ALLEGATION WEATHERVANE WAS NEGLIGENT IN GRADING THE PROPERTY.

We reject plaintiff's contention that defendant waived his right to seek damages based on his taking title without complaining about drainage problems, although he was aware of a drainage grate on the property and allegedly failed to complain of a drainage problem for several years. First, we find nothing in the trial record to indicate that the waiver issue was raised before, or argued to, the trial judge. Nor have we been provided with any pre-trial or post-trial written submissions where the issue was raised. Not surprisingly, the judge made no mention of the issue in his written opinion. Accordingly, the issue has been waived. Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973). In any event, the argument is without merit. In fact, defendant could not have been aware of the drainage problems at the time of closing and did complain as soon as the problems began to appear. There was no waiver. See W. Jersey Title and Guar. Co. v. Indus. Trust, 27 N.J. 144, 152-53 (1958); Borough of Closter v. Abram Demaree Homestead, Inc., 365 N.J. Super. 338, 354 (App. Div. 2004). Plaintiff relies on Belfer v. Merling, 322 N.J. Super. 124 (App. Div. 1999), but that case is entirely distinguishable.

Similarly, we see nothing in the record to suggest that plaintiff raised in the trial court the issue of defendant's failure to present expert testimony. Although plaintiff claims in its brief that testimony given by defendant as to improper grading constituted "inadmissible lay testimony," plaintiff never moved to strike any such testimony by defendant. In any event, we are satisfied that expert testimony was not required in light of the reports received in evidence pursuant to stipulation.

 
Judge Rafferty's findings are supported by "adequate, substantial and credible evidence" in the record. Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974) (citing New Jersey Tpk. Auth. v. Sisselman, 106 N.J. Super. 358 (App. Div.), certif. denied, 54 N.J. 565 (1969). We affirm substantially for the reasons set forth in his letter opinion of August 11, 2004.

Affirmed.

(continued)

(continued)

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A-0719-04T5

January 12, 2006