JACQUELINE GRENDYSA v. ROSEWORTH CONSTRUCTION COMPANY

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0131-07T20131-07T2

JACQUELINE GRENDYSA,

Plaintiff-Appellant,

v.

ROSEWORTH CONSTRUCTION COMPANY

and JAMES ROBERTS,

Defendants-Respondents.

__________________________________________________

 

Argued October 8, 2008 - Decided

Before Judges Cuff, Fisher and Baxter.

On appeal from the Superior Court of New Jersey, Law Division, Cape May County, Docket No. L-84-05.

Mitchell Waldman argued the cause for appellant (Hurvitz & Waldman, attorneys; Mr. Waldman, of counsel and on the brief).

Chad M. Sherwood argued the cause for respondents (Youngblood, Corcoran, Lafferty & Hyberg, attorneys; Mr. Sherwood, on the brief).

PER CURIAM

In the wake of one contractor leaving the job site, plaintiff Jacqueline Grendysa contracted with defendant Roseworth Construction for the completion of construction of two residential townhouse units on her property in Wildwood Crest. Roseworth began work in March 2004, but left the job site on June 24, 2004, when plaintiff failed to make certain interim payments required by the contract, and later filed a construction lien on the property.

On November 17, 2004, plaintiff commenced this action in the Chancery Division against Roseworth and defendant James Roberts, whom she alleged was Roseworth's "owner, operator and/or proprietor." Her complaint sought the discharge of Roseworth's lien; she also pled negligence and breach of contract claims. Defendants filed a counterclaim, alleging plaintiff's breach of the construction contract and plaintiff's alleged "intentional and outrageous conduct" in entering into a contract she had no intention to perform.

The Chancery judge discharged the lien by order entered on January 28, 2005, finding that Roseworth had failed to take the necessary steps to perfect it. In his written decision, the Chancery judge indicated "that the discharge of the lien claim is, of course, without prejudice to [Roseworth's] ability to seek recovery of any sums claimed to be due from [p]laintiff." The action was transferred to the Law Division on February 10, 2005.

The parties thereafter engaged in discovery on the remaining claims. Interrogatories were exchanged and answered; depositions were taken.

On December 6, 2006 -- after the case had marked its second anniversary, after discovery was completed and after a date for mandatory arbitration had been fixed -- plaintiff's attorney withdrew from the action. Plaintiff, through her new attorney, then moved for leave to file an amended complaint, which, for the first time, would assert new claims, including claims based on the Consumer Fraud Act, N.J.S.A. 56:8-1 to -20, against Roseworth, Roberts and a proposed new party, Sturdy Savings Bank. That motion was denied on January 5, 2007.

The action was later tried to a jury over the course of four days. At its conclusion, the jury rendered a verdict in favor of Roseworth on its breach of contract claim, and awarded Roseworth $100,000. The judge denied plaintiff's subsequent motion for a new trial, but reduced the damage award to the amount of damages actually incurred by Roseworth, $66,372.40. While pressing the contention that a new trial was warranted, plaintiff's counsel also conceded that the reduction of the award was preferable to a retrial, saying at the time: "I don't want to try the case again. I think that a remittitur is a fine way to dispense with having to try the case again . . . ."

Plaintiff appealed, arguing that the trial judge: (1) erred in denying the motion to amend the complaint both prior to and at the conclusion of the trial; (2) mistakenly denied plaintiff's motion for a new trial; and (3) made erroneous rulings during trial, including, among others, (a) permitting Roseworth's claim of lost profits, (b) barring admission of evidence of Roseworth's debt to a non-party, and (c) limiting the scope of plaintiff's expert's testimony.

In her first point, plaintiff asserts that the trial judge abused his discretion in refusing to permit an amendment of the complaint. In arguing that the judge erred, plaintiff invokes the standard applicable to such motions, i.e., that leave "shall be freely given in the interest of justice." R. 4:9-1. Despite this liberal standard, amendments are not to be permitted merely upon request. The matter ultimately rests with the trial judge's sound discretion, Kernan v. One Washington Park Urban Renewal Assocs., 154 N.J. 437, 456-57 (1998); Balthazar v. Atlantic City Med. Ctr., 358 N.J. Super. 13, 27 (App. Div.), certif. denied, 177 N.J. 221 (2003), and tardy applications should be denied when they visit undue prejudice on the parties or hamper the efficient administration of justice, Notte v. Merchants Mut. Ins. Co., 185 N.J. 490, 500-01 (2006); Zacharias v. Whatman PLC, 345 N.J. Super. 218, 226 (App. Div. 2001), certif. denied, 171 N.J. 444 (2002). On review, the trial judge's determination will not be disturbed unless it constitutes a "clear abuse of discretion." Salitan v. Magnus, 28 N.J. 20, 26 (1958).

Here, although plaintiff has not included in her appendix copies of the papers submitted in support of the motion to amend the complaint, we assume, as stated by the trial judge in his written opinion, that plaintiff claimed the amendment was based upon facts not known when the complaint was originally filed but which came to light during discovery. To convince us that the judge's decision to deny the amendment at that late date was an abuse of discretion, it was incumbent upon plaintiff to demonstrate what she learned for the first time in discovery and when she learned it. The record on appeal, however, provides no illumination of these important considerations. As we have observed, plaintiff not only failed to include in her appendix her moving papers, but she also failed to include the proposed amended complaint, which might have revealed some information on these points or the nature of these new claims. As a result, we cannot gauge the significance of the new information that plaintiff sought to utilize in asserting her consumer fraud claims, nor can we ascertain the true extent to which she was late in asserting those claims. In short, we cannot conclude that plaintiff's tardy attempt to assert these claims resulted from anything other than her own lassitude and indifference to our pleading rules. Having failed to persuade us otherwise, we must reject plaintiff's claim that the judge abused his discretion in denying the motion to amend.

Our procedures are designed to ensure the disposition of disputes in a fair and efficient manner. R. 1:1-2. These procedures have repeatedly been revamped, most notably with the adoption of the rule amendments known as "Best Practices," which were intended to prevent delay and promote certainty in scheduled arbitration and trial dates. Leitner v. Toms River Reg'l Sch., 392 N.J. Super. 80, 90-91 (App. Div. 2007); Ponden v. Ponden, 374 N.J. Super. 1, 8-9 (App. Div. 2004), certif. denied, 183 N.J. 212 (2005). When plaintiff moved for leave to amend her complaint, discovery was complete, the case was more than two years old, and an arbitration date had been fixed, with a trial date soon to follow. In those circumstances, we can find no abuse of discretion in the judge's decision to reject the eleventh-hour amendment because it would have required the reopening of discovery and compelled a substantial delay in the trial of this matter.

We lastly consider the denial of plaintiff's motion for a new trial. Plaintiff chiefly argues that a new trial was warranted because the jury's verdict of $100,000 exceeded Roseworth's actual damages; she argues that this demonstrates the entire verdict was produced by passion, prejudice or partiality.

A new trial is required "if, having given due regard to the opportunity of the jury to pass upon the credibility of the witnesses, it clearly and convincingly appears that there was a miscarriage of justice under the law." R. 4:49-1(a). This standard requires that there be a "pervading sense of 'wrongness,'" demonstrating the jury "went so side of the mark" as to require the rejection of the jury's verdict. Baxter v. Fairmont Food Co., 74 N.J. 588, 599 (1977) (quoting State v. Johnson, 42 N.J. 146, 162 (1964)). We find insufficient merit in most of plaintiff's argument on this point to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). Instead, we focus solely on plaintiff's claim that "a pervading sense of wrongness" emanates from the jury's damage award.

Plaintiff is certainly correct that the jury's award exceeded the damages sought by Roseworth. She alludes to the fact that, during deliberations, the jury requested access to the display boards used by counsel during their summations. Roseworth's board clearly revealed that it claimed only $66,372.40 in actual damages, but the jury nevertheless exceeded Roseworth's demand, which, according to plaintiff, reveals the jury had departed from the judge's instructions and the evidence in rendering its verdict. In short, she claims the excessive award tainted the entire verdict.

We find no cause to second guess the judge's denial of the motion for a new trial. As Roseworth persuasively argues, the jury may have enhanced the actual damages in order to compensate Roseworth for other unrevealed expenses, such as counsel fees or interest or both. Although the jurors may have erred in increasing the amount of the award in a mistaken attempt to make Roseworth more whole than they thought would otherwise occur, we are convinced the jury's verdict cannot be deemed unjust and that it was correctable by the reduction in the award mandated by the judge. Indeed, even gross excessiveness in a damage award is not a basis for interfering with a verdict on liability. Fertile v. St. Michael's Med. Ctr., 169 N.J. 481, 496-98 (2001). Accordingly, although the excessive damage award warranted intervention, the judge's decision to reduce the award to the amount sought by Roseworth was entirely fair and appropriate.

We find insufficient merit in any of plaintiff's remaining arguments to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

Affirmed.

Plaintiff has also argued that the judge erred in refusing the amendment at the conclusion of the trial. Certainly, a trial judge is authorized to grant amendments that conform to the evidence at that late stage, but only "[w]hen issues not raised by the pleadings and pretrial order are tried by consent or without the objection of the parties." R. 4:9-2. Plaintiff has not demonstrated, through any reference to the record, that Roseworth consented to, or failed to object, to a trial of the consumer fraud claims. To the contrary, Roseworth consistently withheld consent and opposed all such applications.

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9

A-0131-07T2

October 23, 2008