CKR SERVICES, INC v. COMMERCE GROUP CONSTRUCTION, INC

(NOTE: The status of this decision is .)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1147-08T31147-08T3

CKR SERVICES, INC.,

Plaintiff-Respondent,

v.

COMMERCE GROUP CONSTRUCTION, INC.,

Defendant-Appellant.

_____________________________________________

 

Argued May 27, 2009 - Decided

Before Judges Gilroy and Chambers.

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Docket No. L-173-07.

Eric H. Lubin argued the cause for appellant (Jacobs & Barbone, P.A., attorneys; Mr. Lubin, on the brief).

James R. Swift argued the cause for respondent.

PER CURIAM

After a jury trial, the trial judge entered judgment in the sum of $20,753.53, inclusive of interest and costs, in favor of plaintiff CKR Services, Inc. and against defendant Commerce Group Construction, Inc. Thereafter, defendant moved for a judgment notwithstanding the verdict, pursuant to Rule 4:40-1, and for a new trial, pursuant to Rule 4:49-1. Defendant appeals from the denial of both motions. We affirm.

Plaintiff's sole claim against defendant was for breach of contract. Defendant was the general contractor renovating the home of the wife of Martin E. O'Boyle, its president and principal shareholder. Defendant subcontracted the electrical work on the renovation to plaintiff. The written contract dated November 5, 2005, required plaintiff to perform certain specified electrical work to the O'Boyle home in exchange for $27,575. Due to subsequent verbal changes to the scope of the work, plaintiff assessed defendant with additional charges. In all, defendant paid plaintiff $36,628.38, which is more than $9,000 above the original contract price. Before the job was completed, disputes arose, and this litigation followed.

The sole witnesses at trial were Christopher K. Reynolds, the principal of plaintiff, and O'Boyle. Reynolds testified that he stopped working on the job, because defendant owed him an additional $17,821.66, which defendant did not pay. O'Boyle testified that plaintiff began to send invoices that did not make sense and that included items already paid. He also stated that the work was not completed and that plaintiff failed to respond to his requests to finish the job. He denied that he owed plaintiff additional monies. The jury reached a verdict for plaintiff in the full sum of plaintiff's claim.

On appeal, defendant contends that the trial court abused its discretion when it refused to extend the discovery end date in order to allow defendant to obtain an expert witness; that the verdict is unsupported by the evidence and could only be the result of plaintiff counsel's inadmissible and improper comments; that the jury interrogatories were misleading; and that portions of the court's charge to the jury suggested that defendant was liable.

After a careful review of the record, we conclude that the issues raised in this appeal are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

We add only the following comment.

Defendant contends that plaintiff's counsel improperly argued in his opening and summation that defendant was a "bully" and a "billionaire." Plaintiff's counsel made these statements in the context of arguing that this case is about a little guy versus a big guy. Defense counsel did not object to these statements. We agree that reference to defendant's wealth was improper. See Purpura v. Pub. Serv. Elec. & Gas Co., 53 N.J. Super. 475, 479 (App. Div.) (stating that plaintiff's counsel's statement to a jury in a personal injury action that the defendant "is a big corporation worth a lot of money" was improper), certif. denied, 29 N.J. 278 (1959). However, the comment does not require reversal because defendant failed to object.

"When summation commentary transgresses the boundaries of the broad latitude otherwise afforded to counsel, a trial court must grant a party's motion for a new trial if the comments are so prejudicial that 'it clearly and convincingly appears that there was a miscarriage of justice under the law.'" Bender v. Adelson, 187 N.J. 411, 431 (2006) (quoting R. 4:49-1(a)). The plain error standard applies when a party's initial objection to an attorney's comments is made in a motion for a new trial. Bell Atl. Network Servs., Inc. v. P.M. Video Corp., 322 N.J. Super. 74, 97 (App. Div.) (stating that "[i]nasmuch as plaintiffs' motion for a new trial expressed their first objection to the defense attorney's summation remarks, we will consider the present appeal under the plain error standard" (quoting Nisivoccia v. Ademhill Assocs., 286 N.J. Super. 419, 424 (App. Div. 1996))), certif. denied, 162 N.J. 130 (1999).

Under the plain error standard, we will overturn the verdict only where the error was "clearly capable of producing an unjust result." R. 2:10-2.

We find no plain error here. We note that plaintiff was suing for a finite and relatively modest amount of money, unlike the circumstances in the Purpura case where damages were unliquidated. See Purpura v. Pub. Serv. Elec. & Gas Co., supra, 53 N.J. Super. at 477. Further, defense counsel countered the comments in his opening and summation; and the trial judge instructed the jurors that they "took an oath to decide the case fairly and impartially without sympathy, passion, bias or prejudice of any kind." The trial judge has the opportunity to observe the witnesses and the attorneys and "has a first-hand opportunity to access their believability and their effect on the jury." Jastram v. Kruse, 197 N.J. 216, 230 (2008). Therefore, the appellate court must defer to the views of the trial court in regards to determinations of "witness credibility, 'demeanor', 'feel of the case', or other criteria which are not transmitted by the written record." Dolson v. Anastasia, 55 N.J. 2, 7 (1969). With this in mind and looking at the record as a whole, we are not convinced that these remarks were clearly capable of producing an unjust result.

Affirmed.

 

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A-1147-08T3

June 23, 2009