JAMES CHARLES v. DAVID P. MARINO

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3896-08T33896-08T3

JAMES CHARLES AND PAMELA

CHARLES,

Plaintiffs-Appellants,

v.

DAVID P. MARINO,

Defendant-Respondent.

________________________________________________________________

 

Submitted February 1, 2010 - Decided

Before Judges Lisa and Alvarez.

On appeal from the Superior Court of New Jersey, Law Division, Gloucester County, Docket No. L-1983-07.

Jacob & Chiarello, L.L.C., attorneys for appellants (Frederick A. Jacob and Bohdan Zachariasevych, on the briefs).

Victoria S. Rand, attorney for respondent.

PER CURIAM

Plaintiffs, James and Pamela Charles, purchased a home from defendant, David P. Marino. More than four-and-one-half months after acquiring title and taking possession, plaintiffs experienced a clog in the plumbing system, which caused a back up and flood of the property. Although the damage to the home was compensated by their homeowners insurance company, plaintiffs subsequently upgraded their plumbing system. They contended that the costs incurred in that work were necessary remedial action because of the defective plumbing that existed in the home when they acquired it. They brought this complaint against defendant seeking compensatory and punitive damages for breach of warranty, common law fraud, and violation of the Consumer Fraud Act.

After the conclusion of discovery, the case was scheduled for trial. Defendant moved for summary judgment, which was made returnable on the date of trial. Plaintiffs had named no expert witness and produced no expert report to establish a defective plumbing condition in the home. They contended that they knew the plumbing was defective because their plumber told them so. Yet, they produced no report from that plumber or any other expert.

Plaintiffs contended that, in making renovations to the home, defendant did not obtain required plumbing permits. Defendant acknowledged that he performed the plumbing work himself and that he did not obtain plumbing permits. He certified, without contradiction, that when he went to the municipal construction office to obtain the necessary permits for renovation work he intended to perform or have performed, he was told he needed electrical permits, which he did obtain, but that he probably did not need plumbing permits for the work he contemplated. Defendant engaged a contractor to perform the electrical work. He performed the plumbing work, which included adding a bathroom to the attic area, which he converted into a master bedroom suite, and relocating the laundry facilities from their prior location to the new suite in the attic area.

Plaintiffs were aware that the attic area had been recently renovated. Plaintiffs obtained the services of a home inspector in connection with the purchase. Based upon the home inspector's report, plaintiffs requested that certain repairs be made, and defendant complied. A certificate of occupancy was obtained in connection with the sale and settlement was completed.

Judge McDonnell granted defendant's summary judgment motion. In a written decision, she concluded that the absence of an expert was fatal to plaintiffs' case. She reasoned that without expert opinion, lay jurors would be unable to determine whether the condition of the plumbing was defective and, if so, whether any such defect was a cause of the sewer back up and flood. The judge subsequently denied plaintiffs' reconsideration motion, and this appeal followed.

Plaintiffs present the following arguments:

POINT I

THE COURT ERRED IN FOCUSING ON THE CAUSE OF THE "FLOOD" RATHER THAN THE DEFECTIVE CONDITION OF THE PLUMBING INSTALLED BY DEFENDANT MANY MONTHS BEFORE THE "FLOOD."

POINT II

THE COURT ERRED IN INTERPRETING PLAINTIFF'S ALLEGATION OF A "DEFECTIVE CONDITION" IN THE PLUMBING AS A DESIGN DEFECT, AS DISTINGUISHED FROM AN INSTALLATION NON-COMPLIANT WITH THE PLUMBING CODE.

POINT III

THE COURT ERRED IN FINDING THAT THE DEFENDANT HAD MADE A PROPER DISCOVERY REQUEST OF PLAINTIFF TO NAME AN EXPERT WITNESS TO GIVE AN OPINION ON CAUSATION.

POINT IV

THE COURT ERRED IN FINDING THAT THE TOWNSHIP SUB-CODE INSPECTOR IS AN "EXPERT WITNESS" FOR PURPOSES OF TESTIMONY AT TRIAL.

POINT V

THE COURT ERRED IN FINDING THAT THE PLUMBING CODE IS A "LEARNED TREATISE" WHICH REQUIRES AN EXPERT FOR ADMISSION AS EVIDENCE AND PRESENTATION TO THE JURY.

POINT VI

THE COURT ERRED IN DISREGARDING THAT THE PLUMBING CODE WAS ADOPTED BY TOWNSHIP ORDINANCE, WITH STATUTORY AUTHORITY AND THEREBY THE ABSOLUTE STANDARD WITH THE WEIGHT OF LAW.

POINT VII

THE COURT ERRED IN DETERMINING THAT THE PLAINTIFFS ARE UNABLE TO MAINTAIN THEIR BURDEN OF PROOF FOR CAUSATION OF THE "FLOOD" WITHOUT THE PRESENTATION OF AN "EXPERT WITNESS" OR THE PLUMBING CODE AS A "LEARNED TREATISE" AND THEREFORE SUBJECT TO SUMMARY JUDGMENT IN FAVOR OF DEFENDANT.

POINT VIII

THE COURT ERRED IN DISREGARDING THE FACTORS FOR WILLFUL NON-DISCLOSURE, COMMON LAW FRAUD AND CONSUMER FRAUD, WHICH MAY BE MET WITHOUT PRESENTATION OF AN "EXPERT WITNESS" PROVIDING AN EXPERT OPINION ON THE CAUSE OF THE "FLOOD."

These arguments lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We agree with Judge McDonnell's analysis and conclusion. To prove any of the three causes of action plaintiffs asserted, expert testimony was required to prove the existence of a defect and causation. We affirm substantially for the reasons expressed in Judge McDonnell's written decision of January 21, 2009.

Affirmed.

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A-3896-08T3

March 1, 2010