DIMITER MIHOV v. MAIN TOWING CO

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4977-09T4

DIMITER MIHOV,

Plaintiff-Respondent,

v.

MAIN TOWING CO.,

Defendant-Appellant.

________________________________________________________________

May 25, 2011

Submitted March 22, 2011 - Decided

Before Judges Baxter and Koblitz.

On appeal from Superior Court of New Jersey, Law Division, Special Civil Part, Hudson County, Docket No. SC-001454-10.

John Appello, attorney for appellant.

Dimiter Mihov, respondent pro se.

PER CURIAM

Main Towing Co. (Main Towing) appeals from a June 18, 2010 judgment of $3937.30 awarded by the trial court after a bench trial. Main Towing is in the business of providing towing and emergency services for much of Hudson County. Plaintiff Dimiter Mihov was involved in a serious motor vehicle accident that left his car damaged beyond repair. Mihov maintained that Main Towing, which towed his car after the accident, did not allow him the opportunity to remove his piano tools and his wife's wheelchair when he signed over title to his damaged car for resale to a junkyard to avoid further storage fees. After reviewing the record in light of the contentions advanced on appeal, we affirm.

Mihov testified to the following facts. The accident occurred on November 4, 2009. When defendant was paid by his insurance company, Mihov's friend, Henry Bianco, took Mihov to sign over the title to the car and retrieve his possessions. The two men were sent up the road to a lot where his car could not be located. Mihov returned to the office of Main Towing where he was told to call the next day for the location of his damaged car. The following day Mihov was told that the car was in a garage and the only person with a key was in Florida. A few days later, on December 9, 2009, Main Towing attempted to drop off a wheelchair in exchange for a complete release of liability as to all property in the car. Mihov refused and went to the police who would not take a report. He then contacted the local newspaper.

The next day the police agreed to allow a report to be filed, which plaintiff introduced into evidence. The North Bergen Incident Report No. 9066635, completed on December 15, 2009, is generally consistent with plaintiff's testimony and reflects the missing property to be license plates, a wheelchair, an EZ Pass tag, a parking garage access tag, a cell phone, "piano tech tools" and "misc. personal items." Mihov also introduced into evidence a retail catalog of piano tools in which he had put a mark next to the tools left in the car.

Bianco testified in accord with Mihov, that they had waited many hours and were sent to another parking lot, but were unable to locate Mihov's car. On cross-examination, Bianco could not describe the waiting room at Main Towing in any detail.

Patricia Davis, a supervisor at Main Towing, testified for defendant to the following facts. She sent Mihov to the lot where his car was located to retrieve his belongings. She sent a driver with Mihov to go up the street to locate his car. The driver did not report back to her. A few days later, Mihov called to report that he had forgotten to take the wheelchair. Other people in her office answer the phone so she cannot say with certainty what conversations Mihov might have had with Main Towing personnel.

The court found that Mihov's version of the events was more credible than that presented by Main Towing. The court stated:

the Plaintiff's testimony is more credible than [Davis'] testimony. She claims that the Plaintiff was able to get to his car, went with a driver, although she doesn't know who the driver is and that person's not here to testify. You would think that [in] a case . . . [that] is an important case to both parties - - that the witness would be here if someone saw him go to his car and remove all these items.

As far as the testimony of [Bianco], I have no reason to doubt that he was there. Because he can't describe the waiting room, does not mean he wasn't there.

. . . .

I just find that [Mihov's] story makes more sense and is more credible than [Davis'] story.

On appeal, Main Towing raises the following issues,

POINT I

ALLOWING CERTAIN EVIDENCE AND TESTIMONY AT TRIAL BY PLAINTIFF WAS AN ABUSE OF DISCRETION

A. Standard of Review

B. It was Improper to Allow Plaintiff to Enter the Catalog into Evidence to Prove Actual Damages

(not raised below)

C. It was Improper to Allow Plaintiff to Offer Testimony Made in Furtherance of Settlement

POINT II

THE COURT NEVER ASSERTED A RATIONALE FOR DETERMINING PLAINTIFF'S WITNESS WAS MORE CREDIBLE THAN DEFENDANT'S WITNESS

As Main Towing acknowledges, our standard of review for evidentiary determinations is "palpable abuse of discretion." Brenman v. Demello, 191 N.J. 18, 31 (2007). Recognizing our limited scope of review, Main Towing nonetheless seeks a finding that the use of the catalog to value the piano tools was plain error. Mihov testified that he did not have receipts for his tools, which he had accumulated over the thirty-five years that he tuned and repaired pianos. Main Towing argues that Mihov should have brought to trial the receipts he must have obtained when he replaced these items after the car accident. Main Towing also argues that replacement value is not the correct standard for damages.

The court properly considered the amounts in the catalog when valuing the lost piano tools and awarding damages. Generally, the measure of damages for personal property that has been destroyed is "the difference between its market value before and after the injury." Hyland v. Borras, 316 N.J. Super. 22, 24-25 (App. Div. 1998). The Supreme Court has recognized, however, 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.'" N.J. Power & Light Co. v. Mabee, 41 N.J. 439, 441 (1964) (quoting 525 Main St. Corp. v. Eagle Roofing Co., 34 N.J. 251, 255 (1961)). In Mabee, the 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. 41 N.J. at 442. Particularly because defendant did not proffer any alternative method of calculating damages, the replacement cost of the tools was a reasonable measure of damages here.

Main Towing did not object at trial to the introduction of the catalog as a means to value the tools nor make the arguments with regard to valuation made now on appeal. The admission and use of the catalog was certainly not "clearly capable of producing an unjust result," and thus, the appeal on this issue is unavailing. See Campo v. Tama, 133 N.J. 123, 132 (1993); see also R. 2:10-2.

Main Towing also argues that Mihov should not have been allowed to testify, over a defense objection, that Main Towing brought a wheelchair as an offer of full settlement of the claim of lost belongings. N.J.R.E. 408; N.J.R.E. 409. The court did not rely on this testimony in its decision, and the fact finder here was not a jury, which might be improperly swayed by such an offer. The error in allowing this testimony was therefore harmless. R. 2:10-2.

Finally, Main Towing objects to what it perceives as the lack of rationale for the trial court's finding that Mihov and Bianco were credible and Davis was not. The trial court explained that it believed both witnesses for plaintiff, finding their version of the facts made "more sense." The court expected that if an employee of Main Towing had seen Mihov retrieve his belongings, that person would have been called to testify. SeeASHI-GTO Assocs. v. Irvington Pediatrics, P.A., 414 N.J. Super. 351, 361 (App. Div. 2010) (explaining that an adverse inference may be appropriate where "'a party fails to call a witness whose testimony would have been superior' to that presented and who 'was within the power of the party to produce.'" (quoting Witter by Witter v. Leo, 269 N.J. Super. 380, 391-92 (App. Div.), certif. denied, 135 N.J.469 (1994))).

We defer to credibility findings by the court where, as here, they are based on sufficient evidence in the record. Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974). "Appellate courts should defer to trial courts' credibility findings that are often influenced by matters such as observations of the character and demeanor of witnesses and common human experience that are not transmitted by the record." State v. Locurto, 157 N.J. 463, 474 (1999).

The trial court believed Mihov and found that he had met his burden of proof. The court articulated the reasons for its decision and calculated damages based on the evidence presented.