JOANN RIPLEY v. SEARS ROEBUCK & CO

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5407-11T1

JOANN RIPLEY,

Plaintiff-Appellant,

v.

SEARS ROEBUCK & CO. and

LG ELECTRONICS,

Defendants-Respondents.

________________________________________________________________

July 3, 2013

Submitted May 15, 2013 Decided

Before Judges Simonelli and Koblitz.

On appeal from Superior Court of New Jersey, Law Division, Special Civil Part, Passaic County, Docket No. DC-20085-11.

Joann Ripley, appellant pro se.

Sisselman & Schwartz, L.L.P., attorneys for respondent Sears Roebuck & Co. (Douglas S. Schwartz and Peter J. Baker, on the brief).

Marshall, Dennehey, Warner, Coleman & Goggin, attorneys for respondent LG Electronics (Paul A. Lefebvre and Walter F. Kawalec, III, on the brief).

PER CURIAM

Plaintiff Joann Ripley appeals from the May 23, 2012 judgment of $2,492.40 entered in her favor against defendant Sears Roebuck & Co. (Sears) due to the negligent installation of an LG Electronics (LG) refrigerator.1 Ripley argues that the trial judge should have allowed her a brief adjournment to present testimony to substantiate the written estimate of damage to her home that she had not yet repaired. Because the judge misapplied his discretion in preventing this additional expert testimony in this non-jury Special Civil Part case, we reverse and remand for a retrial on the issue of damages only.

Ripley purchased an LG refrigerator from Sears. Sears delivered and installed it in October 2008. After Ripley found water leaking from the new appliance, on two occasions, a Sears repairman responded to her service requests. Initially, the damage to her property was minimal, and for the most part, limited to the areas behind and next to the refrigerator. In November 2009, due to a leaky connector between the refrigerator's icemaker and water hookup, a flood occurred in her condominium in which water entered her kitchen, bathroom and living room. The water caused damage to her flooring, cabinets and walls.

Ripley represented herself. Before trial began, the judge explained that Ripley would need an expert to prove causation. At trial, Ripley presented an expert witness who testified that the connector between the water supply and refrigerator was not properly installed as required by the instructions outlined in LG's manual. Specifically, the expert testified that the tubes were not properly mounted to the refrigerator. Sears also presented an expert, the Sears repairman who worked on Ripley's appliance, who claimed that LG's manual did not need to be followed in this regard.

Ripley testified that her out-of-pocket expenses totaled $2,492.40, which included: $100 (mold remediation), $1,795.26 (flooring costs exceeding that which she recovered from her homeowner's insurance), $126.40 (paint), and $470.74 (specialty tile and flooring supplies). Her homeowner's insurance covered only part of her flooring expenses.

Ripley attempted to present an estimate to remediate the damage caused by the flood in her condominium. The judge told her she could not present the estimate without an expert to testify about the damages. He explained that he would reserve decision as to whether she would be able to bring in a damage expert on a later date, depending on how the case progressed.

At the conclusion of trial, the judge said he would issue his oral decision approximately one week later.

Before issuing his decision, the judge received a letter from Ripley stating that she had secured an expert witness as to damages. Nevertheless, the judge issued his decision, deciding not to extend the case any further. The judge found Ripley's causation expert witness to be credible, and determined that the improper installation of the refrigerator was the proximate cause of the damage caused to Ripley's home.

In his written opinion the judge stated that

there is no question [p]laintiff's home suffered serious and substantial damage. However, [p]laintiff produced no witness to testify as to proper remediation and the cost for same. This Court could not permit the mere production of a written estimate without a witness to testify since it would effectively deprive [d]efendants of the right to cross[-]examine the witness on this very point.

The judge also stated in his opinion:

It is to be noted that [p]laintiff did FAX to [c]hambers on May 21, 2012 at [4:23 p.m.] a written request that she be allowed to produce a witness on the issue of damages. I had already delayed this case to allow her the opportunity to procure an expert. The Court made it very clear that the case would proceed once she had an expert. The Court cannot give [p]laintiff favorable treatment because she is a self-represented litigant. She has had every reasonable opportunity to present her proofs.

The Court will not re-open this case six days after the close of testimony to allow [p]laintiff to present her proofs. This case had originally been scheduled for trial on April 5, 2012. The case was carried to May 15, 2012 to afford [p]laintiff the opportunity to get her necessary proofs.[2] Had the case proceeded on April 5, it would have had to have been dismissed. This Court is not inclined to accommodate [p]laintiff any further than has already been done.

The judge entered judgment in Ripley's favor for her out-of-pocket expenses only.

In reviewing the trial judge's failure to provide Ripley with an opportunity to present a damage expert, the abuse of discretion standard of review applies. See Parish v. Parish, 412 N.J. Super. 39, 74 (App. Div. 2010).

Accordingly, "[t]he right of a trial court to manage the orderly progression of cases before it has been recognized as inherent in its function." Casino Reinv. Dev. Auth. v. Lustgarten, 332 N.J. Super. 472, 488 (App. Div.), certif. denied, 165 N.J. 607 (2000). "While the expedition of business and the full utilization of [the court's] time is highly to be desired, the duty of administering justice in each individual case must not be lost sight of as [its] paramount objective." Waters v. Island Transp. Corp., 229 N.J. Super. 541, 552 (App. Div. 1989) (quoting Allegro v. Afton Vill. Corp., 9 N.J. 156, 161 (1952)).

Pro se litigants are expected to follow the Court Rules. See, e.g., Trocki Plastic Surgery Ctr. v. Bartkowski, 344 N.J. Super. 399, 405 (App. Div. 2001) (pro se litigants are regarded as lawyers for the purposes of frivolous litigation under Rule 1:4-8(f)), certif. denied, 171 N.J. 338 (2002); Venner v. Allstate, 306 N.J. Super. 106, 110 (App. Div. 1997) (noting that a "plaintiff's status as a pro se litigant in no way relieves her of her obligation to comply with the court rules"); City of Clifton v. Cresthaven Cemetery Ass'n, 17 N.J. Super. 362, 364 (App. Div. 1952) (observing that compliance with a particular court rule should not be dispensed with when a non-lawyer appears pro se). Here, however, the judge's guidance may have led Ripley astray. The judge's instructions before trial suggested that Ripley only needed one expert witness, an expert to prove that Sears caused the damages through a defect in the product or improper installation of it. At trial, the judge repeatedly said on the record that he would revisit the issue of whether Ripley would be able to bring in a damage expert at a later date.

We recognize the difficulty in managing a busy calendar where parties frequently represent themselves. The trial judge went out of his way in many respects to assist Ripley, including helping her to question witnesses. However, by suggesting prior to trial that she would need an expert to prove causation, the judge may have led her to believe that she did not need a second expert to prove damages. The judge acknowledged that Ripley suffered "serious and substantial damage" to her home for which she was not compensated.

We reverse and remand for a new trial as to damages only. We do not retain jurisdiction.

1 Defendant LG was dismissed with prejudice. Judgment for Sears against LG in the amount of $4,818.18 on a cross-claim based on LG's duty to defend and indemnify Sears is not at issue in this appeal.

2 We note that the record reveals that the trial against Sears was originally scheduled for March 23, however, LG made an application to vacate a default and adjourn the case. The judge determined that Ripley did not have a necessary expert as to causation and the case was unlikely to be reached that day. He therefore vacated the default and adjourned the case. On April 12, Ripley brought her causation expert and his report, which she said she had received that morning. The judge adjourned the case a second time to give defendants a chance to review the report.