VINCENT GAMBA v. TOWNSHIP OF BRICK

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1777-07T31777-07T3

VINCENT GAMBA,

Plaintiff-Appellant,

v.

TOWNSHIP OF BRICK,

Defendant-Respondent.

____________________________________

 

Argued April 21, 2009 - Decided

Before Judges Skillman, Graves and Grall.

On appeal from Superior Court of New

Jersey, Law Division, Ocean County,

Docket No. L-1497-01.

Kenneth L. Thomson argued the cause for

appellant (Manning, Caliendo & Thomson,

attorneys; Mr. Thomson, on the brief).

Scott W. Kenneally argued the cause for

respondent (Starkey, Kelly, Bauer, Kenneally

& Cunningham, attorneys; Mr. Kenneally,

of counsel; Dina R. Khajezadeh, on the

brief).

PER CURIAM

Plaintiff Vincent Gamba is the owner of a residential lot located in the Township of Brick. Purporting to act under the authority of N.J.S.A. 40:48-2.3 to -2.12, the Township demolished the house on that lot to eliminate conditions dangerous or detrimental to health or safety or inimical to the welfare of the Township's residents. N.J.S.A. 40:48-2.3. In response, Gamba filed a complaint in which he sought damages for alleged violations of his statutory right to notice and a hearing prior to the demolition and his federal and state constitutional rights to due process. On a prior appeal, we concluded that the Township did not comply, or substantially comply, with its obligation to afford Gamba the opportunity to contest the need for the demolition or, if unsuccessful, to make his own arrangements for removal of the structure. Gamba v. Twp. of Brick, 395 N.J. Super. 143, 148-55 (App. Div. 2007). Accordingly, the case was remanded for a trial to assess damages for injuries Gamba sustained as a consequence of the Township's actions, which was to be conducted in accordance with Hepner v. Twp. Comm. of Lawrence, 115 N.J. Super. 155, 161-64 (App. Div.), certif. denied, 59 N.J. 270 (1971), and for further proceedings on his claim for relief pursuant to 42 U.S.C.A. 1983.

Prior to that trial on damages, the court dismissed Gamba's claim under 42 U.S.C.A. 1983. The court concluded that Section 1983 did not apply because a post-deprivation trial on damages would adequately address any violation of the Due Process Clause. See Rivkin v. Dover Twp. Rent Leveling Bd., 143 N.J. 352, 373-74, cert. denied, 519 U.S. 911, 117 S. Ct. 275, 136 L. Ed. 2d 198 (1996). The question of damages was tried to a jury, and the jurors awarded Gamba $15,000. Gamba appeals from that final judgment.

I

Gamba has owned the property in Brick since the 1970s. In 1981, he moved from that house to a home in a nearby community, but he retained ownership of this property. When he moved, Gamba left behind furniture, appliances, canned food, cleaning products, books, records and other personal belongings, including some antiques, depression era glassware, silver flatware, a crystal chandelier, artwork, a World War II Japanese bayonet and an above-ground swimming pool. Although he has not lived in Brick since 1981, Gamba visited his house and stayed there overnight on rare occasions prior to its demolition.

The Township demolished the house on January 20, 1999. In 1991, the assessed value of the improvements on Gamba's property was $41,000, but Gamba acknowledged that the house fell into disrepair after he moved. The roof had holes, its broken windows had been boarded, the lock on the door did not work, the steps were in need of repair and the yard was overgrown. By Gamba's estimate, the roof and windows had been in need of replacement for about ten years before the demolition. He had placed a tarp on the roof of the house at one point, but the tarp had also deteriorated with time. A neighbor saw a raccoon leave the house through a hole in the roof. All utility service to the house was discontinued in 1993 and was never restored. The house was burglarized and vandalized on "numerous" occasions, and unregistered vehicles Gamba left on the property were set afire. Weeds, flowers and a tree had taken root inside the house and a tree was growing in the above-ground pool. In addition to the furniture and other belongings kept in the house, there were newspapers and bags that appeared to hold trash. A ceiling had either collapsed or been removed.

Before the house was bulldozed, the Township's agents were instructed to remove anything with apparent value. The objects that were removed were placed in a forty-foot container, which the Township stored for an unspecified period of time before discarding the contents. If an inventory was prepared, it was not introduced at trial.

Gamba acknowledged that he knew the Township had stored his personal property and that he had inquired about his belongings. Beyond that inquiry, and a subsequent one made by his attorney at a later date not specified, Gamba did not make any effort to regain possession of that property.

At trial, Gamba testified about the value of the various items of personal property left in the house. He described the process he used to compile the inventory and estimate the value of the individual items. With the assistance of his ex-wife, who had not been in the home on more than one occasion since 1989, Gamba prepared a list of what they recalled leaving in the house. The belongings were acquired during the 1970s and '80s. Based on their recollection of what was paid at the time of acquisition and Gamba's recent visits to stores and shops "to price what some of these things would be worth at the present time," Gamba stated a value for each item on his list. The total value he derived was $122,998.

After the demolition, the Township placed a lien on the property in the amount of $23,578.78, which was the cost of demolition, asbestos removal, labor and per-ton charges for disposal of concrete and debris. Gamba paid the amount due.

The jurors awarded Gamba $15,000 of the $23,578.78 he paid the Township to discharge the demolition lien, but no damages for the demolished house or his personal property.

II

On appeal Gamba claims that reversal is required due to error in the dismissal of his Section 1983 claim (Point I), a jury instruction on the duty to mitigate damages (Point II), admission of cumulative and prejudicial evidence (Point V) and prejudiced comments made by the judge when the jurors were not present that they might have overheard (Point III). In addition, he contends that he was entitled to judgment notwithstanding the verdict on damages (Point IV).

After review of the record in light of the issues raised in Points III and V, we conclude that the arguments presented in support of those claims lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

For the reasons stated in the remainder of this decision, we determine that the damage award must be adjusted to provide compensation in the full amount of the demolition lien but otherwise reject Gamaba's claims and affirm.

III

The dismissal of plaintiff's Section 1983 claim was proper. "Section 1983 'is not itself a source of substantive rights,' but merely provides 'a method of vindicating federal rights elsewhere conferred . . . .'" Rivkin, supra, 143 N.J. at 363 (quoting Baker v. McCollan, 443 U.S. 137, 144 n.3, 99 S. Ct. 2689, 2694 n.3, 61 L. Ed. 2d 433, 442 n.3 (1979)).

The essence of Gamba's federal claim is a deprivation of property without the opportunity to be heard "at a meaningful time and in a meaningful manner," and the source of the federal right to be so heard is the constitutional guarantee of procedural due process provided by the Fourteenth Amendment. Id. at 372 (internal quotations omitted). But "the Supreme Court has 'rejected the proposition that "at a meaningful time and in a meaningful manner" always requires the State to provide a hearing prior to the initial deprivation of property.'" Id. at 372 (quoting Parratt v. Taylor, 451 U.S. 527, 540, 101 S. Ct. 1908, 1915, 68 L. Ed. 2d 420, 432 (1981), overruled in part on other grounds by Daniels v. Williams, 474 U.S. 327, 330-31, 106 S. Ct. 662, 664, 88 L. Ed. 2d 662, 668 (1986) (footnote omitted)).

When a meaningful hearing cannot be provided prior to a deprivation because the officials who took or destroyed the property acted in an unpredictable, random and unauthorized manner, then a hearing prior to the deprivation is not constitutionally required. Id. at 372-74; see Hudson v. Palmer, 468 U.S. 517, 533, 104 S. Ct. 3194, 3203, 82 L. Ed. 2d 393, 407 (1984); Parratt, supra, 451 U.S. at 541, 101 S. Ct. at 1916, 68 L. Ed. 2d at 432. In that circumstance, post-deprivation tort remedies provide "all the process that is due, simply because they are the only remedies the State could be expected to provide." Zinermon v. Burch, 494 U.S. 113, 128, 110 S. Ct. 975, 985, 108 L. Ed. 2d 100, 116 (1990); see Rivkin, supra, 143 N.J. at 373-74.

We recognize that post-deprivation hearings are inadequate and will not defeat a Section 1983 claim when the denial of a prior hearing required as a matter of due process is authorized or required by state law or attributable to a state's failure to anticipate and address a clear need for a prior hearing in the circumstance. Rivkin, supra, 134 N.J. at 374-75 (discussing Logan v. Zimmerman Brush Co., 455 U.S. 422, 102 S. Ct. 1148, 71 L. Ed. 2d 265 (1982) and Zinermon). But in this case, the lack of adequate notice and hearing was not attributable to such a systemic, structural defect in this State's procedures. The deprivation occurred prior to a hearing because of a series of unpredictable and unauthorized deviations from the statutory procedures. See Gamba, supra, 395 N.J. Super. at 148-54 (discussing the violations of the statutes governing the exercise of the municipal authority in this case). It was despite, not because of our State law, that a hearing was not had. See Parratt, supra, 451 U.S. at 543, 101 S. Ct. at 1917, 68 L. Ed. 2d at 434 (finding no violation of procedural due process where the "deprivation occurred as a result of the unauthorized failure of agents of the State to follow established state procedure"). In this circumstance, the post-termination common law remedy recognized in Hepner, supra, 115 N.J. Super. at 161-64, was all that was required by the Due Process Clause. The Hepner remedy gave Gamba an "opportunity sometime for a full hearing and judicial determination." Gen. Motors Corp. v. City of Linden, 143 N.J. 336, 346-47 (internal quotations omitted), cert. denied, 519 U.S. 816, 117 S. Ct. 66, 136 L. Ed. 2d 27 (1996). And, for that reason, the trial court properly dismissed Gamba's Section 1983 claim. See Hudson, supra, 468 U.S. at 534-36, 104 S. Ct. at 3204-05, 82 L. Ed. 2d at 408-09 (considering intentional acts by state officials and concluding that state tort law "provided an adequate postdeprivation remedy for the alleged destruction of property").

IV

Gamba claims that the jury instruction on his duty to mitigate damages misidentified the period during which his actions were relevant. We agree that the instruction was not sufficiently clear on that point but conclude that the error was not capable of producing an unjust result. R. 2:10-2.

The instruction given was as follows:

Now the defendant, Township of Brick, has the burden of establishing by a preponderance of the evidence all of the facts necessary to prove the following issue: That the plaintiff, Vincent Gamba, acted unreasonably by either failing to remove his contents or personal property from his house prior to the demolition or after some contents had been placed in storage by the defendant, Township of Brick, or sell such contents in order to minimize damage.

. . . .

Now I'm going to talk to you about duty to mitigate damages, and this is as to personal property or the contents in the house.

If you decide that the plaintiff is entitled to damages for personal property or contents damage, you should then determine whether any of the plaintiff's contents damages could have been avoided or alleviated by plaintiff's exercise of good faith attempts towards protecting his property.

A plaintiff caused to sustain damages by another's actions has a duty to exercise reasonable care to negate and/or minimize damages. Failure or refusal to do so bars recovery for the consequences which could have been avoided by the exercise of such care. In other words, damages that could have been prevented by the plaintiff's exercising reasonable care are not the responsibility of the defendant.

In this case the defendant introduced evidence by which it seeks to reduce or avoid responsibility for plaintiff's damages. The defendant must prove by a preponderance of the evidence, after its actions occurred, the plaintiff acted unreasonably by failing to protect his property. The defendant is liable only for that portion of damages attributable to the defendant's actions.

If you find that the plaintiff did not act reasonably to avoid or alleviate damages, you shall reduce plaintiff's contents damages by the amount of the damages which were the result of plaintiff's own unreasonable failure to minimize or avoid further damage.

This charge did not adequately explain what the jurors were required to find in order to reduce damages based on Gamba's conduct. A plaintiff may not recover damages for injuries to property that the plaintiff could have avoided. Russo Farms, Inc. v. Vineland Bd. of Educ., 144 N.J. 84, 108 (1996). Through this doctrine of avoidable consequences, the plaintiff may recover for injury to property caused by the defendant but not for additional subsequent injury that the plaintiff could have avoided through the exercise of reasonable care, that is, damage beyond that caused by the defendant's wrongful act. Ibid. Thus, the focus is on the plaintiff's action or failure to act after the initial harm. Id. at 109; see Ostrowski v. Azzara, 111 N.J. 429, 438 (1988); Restatement (Second) of Torts 918(2) (1979) (recovery not prevented from a tortfeasor "unless the injured person with knowledge of the danger of the harm intentionally or heedlessly failed to protect his own interests"). Damages are curtailed only to the extent attributable to the plaintiff's "unreasonable" failure or refusal to take action to prevent loss beyond the harm caused by defendant. Covino v. Peck, 233 N.J. Super. 612, 617 (App. Div. 1989).

Because the Township did not give Gamba adequate and effective prior notice of the demolition, Gamba, supra, 395 N.J. Super. at 154-55, the judge should have directed the jurors to disregard evidence of Gamba's failure to remove his personal property from the house prior to the demolition and to consider only whether his efforts to regain possession of the belongings the Township had removed and stored were reasonable or unreasonable. The instruction given did not make that essential distinction clear.

We are, nonetheless, convinced that the error was clearly incapable of producing an unjust result, because Gamba's evidence on the value of the personal property he left in the house was not adequate to permit the jurors to award Gamba damages for its loss. Generally, the measure of damages for a tortious loss involving personal property is the difference between the property's fair market value before and after the damage occurred. Jones v. Lahn, 1 N.J. 358, 362 (1949); Premier XXI Claims Mgmt. v. Rigstad, 381 N.J. Super. 281, 283 (App. Div. 2005); Lane v. Oil Delivery, Inc., 216 N.J. Super. 413, 419 (App. Div. 1987). With respect to "household furnishings and wearing apparel and the like, where the market value cannot be ascertained, the better measure of damages . . . is the actual or intrinsic value of the property to the owner, excluding sentimental or fanciful value." Lane, supra, 216 N.J. Super. at 419. But a plaintiff is not entitled to full replacement cost, and "depreciation, age, wear and tear, condition, cost of replacement and cost of repair are all factors to be considered in assessing the damage sustained." Id. at 420.

Although "[d]amages need not be proved with precision where that is impractical or impossible," Borough of Fort Lee v. Banque Nat'l de Paris, 311 N.J. Super. 280, 291 (App. Div. 1998), they must be proven "with such certainty as the nature of the case may permit, laying a foundation which will enable the trier of the facts to make a fair and reasonable estimate," Lane, supra, 216 N.J. Super. at 420. The owner of such property can provide the essential evidence by stating his "opinion of worth," but the basis for the opinion cannot be "a matter of speculation" and the witness must "establish the grounds for any opinion given" in order to permit the jury to assess its probative value. Ibid.

Gamba's testimony on value did not have the requisite qualities. The foundation for his testimony about the personal property was a list of items that he believed were in the house on the date of demolition, but that list was based on his speculation about what remained in his house after numerous burglaries, acts of vandalism and an extended period during which the door to the house could not be locked. Moreover, to the extent that Gamba provided testimony on the value of the items on his list, he addressed replacement value and did not explain how he accounted for age, depreciation and condition of the belongings he had left in the dilapidated house for many years. Because Gamba's testimony was inadequate to permit the jurors to make a fair and reasonable estimate of the value of the personal property in the house on the day of the demolition, plaintiff was not entitled to damages for that property and the error in the jury instruction is immaterial. Gamba's additional claim of error in the jury charge that was promptly corrected does not have sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

V

Gamba contends that he is entitled to a judgment notwithstanding the verdict on each category of damages submitted to the jury the contents of the house, the house itself and the $23,758.78 demolition lien. A judgment on that ground cannot be entered unless an appropriate motion was filed during trial. Surkis v. Strelecki, 114 N.J. Super. 596, 600 (App. Div.), certif. denied, 59 N.J. 266 (1971). Although Gamba did not move for judgment on that basis with respect to damages for the loss of his house and personal property, he preserved his claim for an award in the full amount of the demolition lien. Before the case was submitted to the jury, Gamba claimed entitlement to damages in the full amount of the lien as a matter of law. See Logan v. Twp. of N. Brunswick, 129 N.J. Super. 105, 108-09 (App. Div.) (concluding that a motion to strike the defense of contributory negligence preserved the claim), certif. denied, 66 N.J. 328 (1974). Accordingly, we address that claim only.

This case was presented to the jury on the theory that the Township's demolition was wrongful. The jury was not asked to determine whether the demolition, although procedurally deficient, was done for valid reasons warranting a charge for all or a portion of the demolition cost against Gamba pursuant to N.J.S.A. 40:48-2.5. Thus, Gamba was entitled to damages in the full amount of the construction lien because, with respect to the demolition costs, the jurors were not given an adequate legal basis for awarding damages in an amount less than the entire cost.

We need not consider whether the jurors, if properly directed, could have found Gamba responsible for a portion of the costs of demolition. The Township has not filed a cross-appeal objecting to the absence of an instruction on that issue and does not raise any meritorious argument as an alternative ground for affirmance. Although this court's prior decision did not preclude the Township from establishing that Gamba could be properly charged with a portion of the demolition cost pursuant to N.J.S.A. 40:48-2.5, in order to recover that cost the Township was required to prove its entitlement and have its claim for reimbursement submitted to the jury for consideration in accordance with proper instructions.

Accordingly, we reverse and direct the trial court to enter judgment against the Township and in favor of Gamba in the amount of $23,578.78.

 
Affirmed in part, reversed in part and remanded for entry of judgment in the amount of $23,578.78 in favor of Gamba.

In addition, Gamba claimed violations of his rights under the Fourth and Sixth Amendments of the United States Constitution, but, because he did not pursue those claims in the trial court and has not addressed them on this appeal, we do not address them.

Gamba's complaint also included claims alleging violations of federal and state laws prohibiting discrimination on the basis of disability, but those claims were dismissed by the trial court and this court affirmed that order in 2003. Gamba v. Twp. of Brick, No. A-2313-01 (App. Div. Apr. 8, 2003) (slip op. at 16).

Gamba argues that the Hepner remedy is inadequate because that remedy is not required by statute and does not permit recovery of damages for pain and suffering. Those arguments lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E); see Parratt, supra, 451 U.S. at 544, 101 S. Ct. at 1917, 68 L. Ed. 2d at 434.

This objection to the charge was not raised below. The judge formulated the instruction to address the substantive objection raised by Gamba's attorney that the charge could not be applied to the structure. The attorney's procedural objection to the instruction was based on his misunderstanding of the Township's answer. Contrary to the lawyer's argument, defendant's answer asserted a defense based on avoidable consequences that preserved its right to seek a reduction in damages.

(continued)

(continued)

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A-1777-07T3

July 28, 2009