YARON ASHER v. ALMA-GPNJ, LLC

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0148-09T10148-09T1

YARON ASHER,

Plaintiff-Respondent,

v.

ALMA-GPNJ, LLC, MINAS STYPONIAS

METROPOLIS TOWERS APT. CORP.,

ALMA-GPNJ LLC C/O STATE CAPITAL

TITLE & ABSTRACT CO.,

Defendants-Appellants.

 

Submitted May 25, 2010 - Decided July 15, 2010

Before Judges Carchman and Parrillo.

On appeal from Superior Court of New Jersey, Law Division, Hudson County, Docket No. DC-6928-09.

Constantine Bardis, attorney for appellants.

Yaron Asher, respondent pro se.

PER CURIAM

Defendants Alma-GPNJ LLC., Minas Styponias, Metropolis Towers Apartment Corporation and Alma-GPNJ LLC C/O State Capital Title and Abstract Company (Alma-GPNJ), appeal from a judgment of the Special Civil Part in favor of plaintiff Yaron Asher in the amount of $14,057.60. Defendants raise the following issues:

I. DEFENDANTS WERE ENTITLED TO A TRIAL BY JURY AS PER THE COURT RULES.

II. THE TRIAL COURT ERRED IN FINDING NEGLIGENCE AGAINST DEFENDANTS SINCE NEGLIGENCE WAS NOT FILED BY THE PLAINTIFF AGAINST THE DEFENDANTS HAD NO REASON OF KNOWING THAT THE GOODS IN QUESTION BELONGED TO PLAINTIFF.

III. IN THE EVENT THAT THE TRIAL COURT IS AFFIRMED AS TO ITS HOLDING, THE TRIAL COURT'S ASSESSMENT OF DAMAGES WAS EXCESSIVE AND ARBITRARY.

IV. APPELLANT LANDLORD OWED NO DUTY TO RESPONDENT AS THERE IS NO CONTRACTUAL RELATIONSHIP BETWEEN THE PARTIES AND WAS NOT EVEN AWARE OR ON NOTICE THAT RESPONDENT MAY HAVE RESIDED IN UNIT 8N, HAVING ALREADY LEASED THE PREMISES IMMEDIATELY AFTER EXPIRATION OF THE PREVIOUS LEASE.

We have considered the arguments presented in light of the record and the applicable law, and we affirm.

Some background is in order. Plaintiff occupied an apartment/condominium owned and managed by defendant Alma-GPNJ during the month of March 2008. Plaintiff was subletting the unit from Tenant A, whose lease was to expire that month. Tenant B was to begin a lease for the apartment in April. Plaintiff entered into an arrangement with both these tenants that allowed him to occupy the unit for the months of March, April and May 2008. Under the terms of the separate leases signed by Tenant A and Tenant B, however, assigning the lease or subletting the unit was prohibited without the consent of the landlord. No arrangement existed between plaintiff and Alma-GPNJ and rent was paid by plaintiff directly to the tenants.

On April 1, 2008, while preparing for the transition between tenants, defendants' employees entered the apartment and removed plaintiff's personal property, apparently mistakenly believing the items to have been abandoned by Tenant A. According to plaintiff, in the process of cleaning out the apartment, many of his belongings, including personal documents, checkbooks and a Social Security card, were discarded or destroyed by defendants' agents. This, despite the fact that throughout his brief occupancy of the apartment, plaintiff interacted with a doorman, security guard and the building superintendent, who visited the apartment, with plaintiff present, to repair a plumbing problem. Moreover, according to plaintiff, prior to cleaning the apartment, the outgoing tenants met with building management and instructed that nothing in the apartment was to be disturbed during its inspection. In fact, after plaintiff's property was removed, the building manager apologized for the mistake, acknowledging that "the apartment shouldn't have been on the cleaning list." In the ensuing days, plaintiff cancelled his credit cards, closed bank accounts and arranged for hotel lodgings, causing him to miss work.

On March 16, 2009, plaintiff pro se filed a complaint against defendants in the Special Civil Part, alleging burglary, theft, vandalism, destruction of property and "identity info theft." Defendants filed an answer, affirmative defenses and counterclaims, which included a demand for a jury trial. On April 23, 2009, the Special Civil Part issued notice of Jury Trial for June 3, 2009. Defendants filed an amended answer and counterclaim on June 1, 2009, which again included a demand for trial by jury. According to plaintiff, on July 22, 2009, at defendants' request that the matter proceed expediously, the case was assigned to a judge and tried as a bench trial. At the time of trial, defendants did not request a jury trial.

At trial, plaintiff provided an itemized list, enumerating his claimed losses and expenses. Supporting documents were also provided, detailing "the cost of those items if you [would] need to purchase them" and "receipts of the items and [the] expenses [that plaintiff] incurred." Related expenses included the cost of hotel accommodations after plaintiff was forced to leave the apartment, lost wages for the days in which plaintiff was arranging his affairs following the event and air travel for court dates, plaintiff having moved to San Francisco between the time of the incident and trial.

At the close of evidence, the court entered judgment in favor of plaintiff in the amount of $14,057.60, finding that although no contractual relationship existed, defendants owed a duty to plaintiff, which they breached by acting negligently. A duty was inferred because defendants' agents and/or employees were aware that plaintiff occupied the premises and therefore, defendants acted unreasonably in removing plaintiff's personalty from the apartment. The total claim for damages was reduced by eliminating claimed expenses relating to travel between California and New Jersey, lodging, missed work, general household cleaning items and by adjusting the replacement costs for items lost or destroyed by a factor of thirty-five percent for depreciation.

I.

Defendants first contend they were improperly denied a jury trial. We disagree.

Rule 6:5-3 governs trial by jury in the Special Civil Part. Under Rule 6:5-3(a), a written demand for a jury trial must be filed and served upon the opposing party within ten days of the time provided for the defendant to file an answer to the complaint. Absent a formal withdrawal, a demand for a jury trial will be recognized and the action tried before a jury. R. 6:5-3(d).

However, there are circumstances where a less than formal withdrawal of the jury trial demand will be considered to constitute a waiver thereof. Thus, for instance, in Van Note-Harvey Assocs., P.C. v. Twp of East Hanover, 175 N.J. 535, 537-39 (2003), a contractor sued a municipality for unpaid engineering services and in its answer to the complaint, the defendant township included a demand for a jury trial on all issues. At trial the jury was instructed not to consider one of the issues asserted by the plaintiff, namely the contractor's entitlement to prejudgment interest on accumulating overdue accounts receivable. Id. at 539. The trial judge made multiple assertions to indicate that he would decide the remaining issue in a post-judgment motion. Id. at 539-40. At no point did the parties object to the manner in which the court was to consider the issue and, during deliberations, actually suggested that the jury be told that the issue "was in the domain of the court." Ibid. Although no formal waiver was made by either party, on appeal, the Court held that their actions in failing to object during the trial, when it was apparent that the prejudgment interest issue was to be decided by the judge, constituted a waiver of the previous demand. Id. at 541.

So, too, here. Although defendants' answer demanded a jury trial, and the record discloses no formal waiver thereof, the circumstances nevertheless persuade us to conclude that defendants' omissions at time of trial constitute a waiver of their previous demand. When the matter was assigned to a Special Civil Part judge to be heard as a bench trial, defendants failed to make known their prior jury trial demand and never objected to the case proceeding before the judge without a jury. Indeed, in his closing argument, defendants' counsel acknowledged "the sacrosanct job that a judge always has being a neutral and detached magistrate." By voluntarily choosing to proceed with a bench trial, defendants essentially withdrew their jury trial demand and cannot now be heard to complain otherwise.

II.

Defendants also argue that the trial court erred in finding them negligent when a negligence cause of action was not pled in the original complaint and because defendants owed no legal duty to plaintiff. We disagree with both contentions.

As to the former, a general principle of civil law limits questions submitted to the jury to those issues raised in the pleadings. Young v. Crescente, 132 N.J.L. 223, 228 (E. & A. 1944) (citing Garibaldi v. Rubenstein, 99 N.J.L. 223, 224 (E. & A. 1923)); see also Borelli v. Frollani, 98 N.J. Super. 203, 206-07 (App. Div. 1967) (plaintiff was not allowed to assert a defense of contributory negligence because the defendant's wanton and willful misconduct was not raised in the pleadings). "Pleadings must fairly apprise the adverse party of the claims and issues to be raised at trial and they are required to set forth a statement of facts on which the claim is based." Jardine Estates, Inc. v. Koppel, 24 N.J. 536, 542 (1957) (internal quotations and citations omitted); see Melone v. Jersey Central Power & Light Co., 18 N.J. 163, 174 (1955); Hulbert v. Collins, 22 N.J. Super. 217, 219 (App. Div. 1952); see also Davidson v. Slater, 189 N.J. 166, 188 (2007). ("At the very least, plaintiff will be forced to address causation before the fact-finder and properly may be held to the theory of the case as pled."); Rothman Realty Corp. v. Bereck, 73 N.J. 590, 598 (1977) (parties are limited in their proofs at trial to the issues outlined in the pleadings and pretrial orders and expressing disfavor for the plaintiff's subsequent attempt to add a different theory not previously asserted).

It is, however, within the authority of the judge to substitute a correct theory of recovery not advanced in the complaint, if it does not create prejudice against the defendant. Witter by Witter v. Leo, 269 N.J. Super. 380, 394 (App. Div.) (citing Farese v. McGarry, 237 N.J. Super. 385, 390-91 (App. Div. 1989)), certif. denied, 135 N.J. 469 (1994)). In Witter by Witter, we acknowledged the authority of the judge to apply an alternative recovery not advanced in the complaint if it is not prejudicial to the defendant. Ibid. There, the plaintiff brought a personal-injury action on behalf of herself and her son, Eric, based on a claim that the defendant was negligent in providing inadequate supervision by allowing her son, Jeffery, to hold a party while she away. Id. at 384. During the party, Eric injured himself while attempting to jump from a roof into defendant's pool. Ibid. At trial, the judge permitted an instruction, requested by the defendant and objected to by the plaintiff, that allowed for recovery on an alternate theory, recognizing that the defendant owed Eric a lower standard of care as a trespasser. Id. at 393-94. Though we recognized the ability of the judge to substitute a more appropriate theory of recovery, we noted that it would be inappropriate for the court to "force upon a plaintiff an alternative theory of recovery that the plaintiff chooses to forgo." Id. at 394.

Here, we perceive no prejudice to defendants for having to defend a negligence claim. Although defendants contend they had no such notice and were prepared only to defend a breach of contract action, the summons attached to plaintiff's complaint clearly and expressly identifies the cause of action as a matter of tort, not contract. And although negligence was not specifically pled in the complaint, defendants asserted in their answer and amended answer an affirmative defense of comparative negligence, making clear they were on notice that the essence of plaintiff's complaint concerned alleged unreasonable conduct on their part. Under the circumstances, plaintiff's negligence claim could be inferred from the facts and theories of liability actually pled. Defendants were on notice thereof.

Defendants' alternative contention that they owed no duty to plaintiff in the absence of a contractual relationship also fails. Under the lease, the landlord is absolved of all liability for damage to tenant's personal property unless caused by an intentional act or negligence of the landlord. While plaintiff as a subtenant does not have privity with defendants as landlord, Cifelli v. Santamaria, 79 N.J.L. 354, 356 (Sup. Ct. 1910), the absence of a contractual relationship, however, does not absolve the property owner of any and all duties owed to an individual on his premises. A landowner even owes a duty, albeit limited, to trespassers, especially when their presence is foreseeable. Brett v. Great Am. Recreation, Inc., 144 N.J. 479, 508-09 (1996); see also Snyder v. I. Jay Realty Co., 30 N.J. 303, 312 (1959); Renz v. Penn Cent. Corp., 87 N.J. 437, 461-62 (1981); Restatement (Second) of Torts 337 (1965). The law of premises liability has evolved from the rigid, traditional classifications of the common law to focus instead on "whether 'in light of the actual relationship between the parties under all of the surrounding circumstances,' the imposition of a duty on the landowner is 'fair and just.'" Brett, supra, 144 N.J. at 529 (quoting Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 438 (1993)).

In finding the existence of a duty in this case, the trial judge reasoned:

At the outset, I want to say that the plaintiff has not established that there was a contractual relationship between him and the defendant. And the proofs are consistent with that. However, the plaintiff has established by a preponderance of the evidence that the defendant is liable to him for the losses - some of the losses in question which I'm going to specify.

Basically, although there was not a contract[] the defendant was aware of the plaintiff's occupancy of the apartment or should have been aware of the plaintiff's occupancy of the apartment. And I - I find that the plaintiff came into the apartment through an agreement with one of the tenants that was about to [be] evict[ed from] the apartment and that he did take possession of the apartment; that he brought certain items of personal property into the apartment.

I find that the [defendant's] employees such as the security person or persons, the doorman and the superintendent of the building were aware of plaintiff's occupancy of the apartment. In particular, the superintendent who came to do some plumbing work in the apartment. And I . . . find that as a result of the plaintiff's occupancy of that apartment the defendant had a duty to reasonably make sure that the occupancy was free from any acts that could damage the plaintiff or his property.

We agree.

As noted, the lack of contractual relationship does not preclude the existence of a duty between the parties. On the contrary, we find, as did the trial judge, that the interactions between plaintiff and defendants' agents/employees were sufficient to create an awareness on defendants' part of plaintiff's occupancy and a duty to use reasonable care with respect to plaintiff's personalty.

III.

Lastly, defendants complain that the trial judge's damage award was arbitrary and excessive. Again, we disagree.

The court rejected plaintiff's damages claims for hotel accommodations, flight expenses, missed work, "general house cleaning items," "general bathroom cleaning items" and "home office items." The remaining claim for loss of personal property, $21,627.08, was reduced by thirty-five percent to account for depreciation in value. Defendants' essential contention is that the thirty-five percent reduction rate was devoid of factual basis.

In general, the typical measure of damages to personal property "is the difference between the market value of the personal property before and the market value after the damage occurred." Model Jury Charge (Civil), 8.44; see also Hyland v. Borras, 316 N.J. Super. 22, 24-25 (App. Div. 1998); Associated Metals & Minerals Corp. v. Dixon Chem. & Research, Inc., 82 N.J. Super. 281, 314 (App. Div. 1963), certif. denied, 42 N.J. 501 (1964); accord Jones v. Lahn, 1 N.J. 358, 362 (1949); Douches v. Royal, 1 N.J. Super. 45, 47 (App. Div. 1948). However, when the personalty has been destroyed by the tortfeasor, and no market value exists, the market value at the time of the loss is the appropriate award. Lane v. Oil Delivery, Inc., 216 N.J. Super. 413, 419 (App. Div. 1987). When the market value cannot be ascertained, the "actual or intrinsic value of the property to the owner, excluding sentimental or fanciful value[]" should be used as the appropriate measure. Ibid. Claims in which the damaged personalty is household furnishings or clothing are subject to this standard. Ibid.

In Lane, the issue on appeal was property damage caused by a fire, where the plaintiffs and their insurance company alleged negligence, breach of contract and strict liability in tort against the defendant. Id. at 415-16. Both the plaintiff and defendant appealed the trial court's damages determination. In considering the issues presented to it, we acknowledged the difficulties inherent to assigning value to items such as household furnishings and clothing. Id. at 419. We reasoned that value placed upon the items by the individual owner would likely be greater than the market value, and if lost, the average owner would be required to purchase new replacements, rather than cheaper second-hand substitutes. Id. at 419-420. We identified other factors relevant to determining the value of lost property, including "depreciation, age, wear and tear, condition, cost of replacement and cost of repair. . . ." Id. at 420. The burden rests on the plaintiff to prove damages "with such certainty as the nature of the case may permit[.]" Ibid.

In cases in which the market value is difficult or impossible to ascertain, the mechanical rules of damage calculation must be abandoned in order to allow for the paramount goal of making the injured party whole. The Court has recognized that "the sundry rules for measuring damages are subordinate to the ultimate aim of making good the injury done or loss suffered and hence '[t]he answer rests in good sense rather than in a mechanical application of a single formula.'" New Jersey Power & Light Co. v. Mabee, 41 N.J. 439, 441 (1964) (quoting 525 Main St. Corp. v. Eagle Roofing Co., Inc., 34 N.J. 251, 255 (1961)). In fact, the Mabee Court permitted the plaintiff to use the replacement cost of its damaged utility pole as a measure of its damages, rejecting the defendant's argument that depreciation was a necessary variable to reduce any damage award. Id. at 442.

Here, there is difficulty in assigning a market value to some of the items claimed by plaintiff. Nevertheless, the judge relied on the only evidence of value adduced, namely plaintiff's documentation as to the replacement cost of the lost or destroyed items, which we deem sufficient competent proof of plaintiff's damages claim. Recognizing the age of the items, the court made an appropriate adjustment for depreciation. The court rejected a number of plaintiff's expense claims as too detached, causation-wise. Although admittedly not an exact science, the court's valuation in this matter was entirely reasonable and comported with good sense. The judge certainly did not accept plaintiff's claims carte blanche, but rather awarded him significantly less than the amount requested. We find no basis to reverse the judge's award of damages.

 
Affirmed.

Paragraph 19 of the lease thus provides in part:

19. No Assignment or Subletting: The tenant is prohibited from assigning this lease or subletting the apartment without the landlord's written consent. The landlord may withhold its consent for any reason or for no reason.

In this regard, the lease also provided:

24. Abandoned Premises and Property: If the premises become vacant or abandoned as a result of eviction proceedings or otherwise, the tenant hereby authorizes the landlord or the landlord's agent to re-enter the premises and relet the premises.

If after the tenant has abandoned the premises or the tenant has been evicted or after the tenant has given written notice that the tenant intends to vacate the apartment and personal property remains in the premises, the landlord may remove and dispose of all of the tenant's personal property and charge the tenant all of the costs associated with its removal and disposal in accordance with New Jersey Law.

Documents P-3 through P-21 were not receipts but rather reflected the current cost of replacing the items removed from the apartment or destroyed. P-22 through P-26 were invoices from the Robert Treat Hotel. P-27 through P-31 were copies of plaintiff's credit card statements that showed charges for hotel stays totaling $973. Documents P-30, P-31 and P-33 through P-41 related to the costs of flying between San Francisco and New Jersey for trial. Claims for general bathroom and office items were not supported by additional documents.

Although defendants' counsel referred to the documents as "estimates after the fact," he did not object to their admission in evidence.

Plaintiff made adjustments to the lists during trial. One flight, costing $379.20, was removed from the list. Two hotel costs, totaling $438.06, and $1200 in lost work were also removed from the list. Of the remaining items, plaintiff identified $4200 in lost wages and $1508.19 in hotel costs incurred as a result of defendants' actions. These costs account for the lodging and actions taken by plaintiff following the removal of his property from the apartment while still residing in New Jersey. The costs are distinguished from those associated with travel from San Francisco to attend trial.

Paragraph 25 of the lease thus provides in part:

25. Damages to Tenant's Property

The landlord does not carry insurance to cover damage to the tenant's personal property. The tenant shall secure rental insurance for the tenant's personal property. Unless caused by an intentional act or the negligence of the landlord, the landlord, its agents and employees are not responsible for any damage to the tenant's or occupant's personal property or to the personal property belonging to any other person.

Plaintiff claimed "general house cleaning" items totaling $700, "general bathroom cleaning items" totaling $700 and "home office items" totaling $800. The amount claimed for lost personal property was $23,827.08. Costs for general cleaning and office supplies, totaling $2200, were subtracted from the original amount by the court.

(continued)

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