JOSEPH GAUL v. MR. ROOTER PLUMBING

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3146-06T13146-06T1

JOSEPH GAUL,

Plaintiff-Respondent,

v.

MR. ROOTER PLUMBING,

Defendant/Third-Party

Plaintiff-Appellant,

v.

EMILY GAUL,

Third-Party Defendant.

________________________________________________________________

 

Submitted October 31, 2007 - Decided

Before Judges Parker and Lyons.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. DC-3333-06.

Law Offices of Michael C. Urciuoli, attorneys for appellant (Jeffrey S. Raefski, on the brief).

Joseph M. Gaul, Jr., plaintiff-respondent (Gaul, Baratta & Rosello, attorneys for plaintiff-respondent; Mr. Gaul, of counsel and on the brief).

PER CURIAM

In this Special Civil Part case, defendant/third-party plaintiff Mr. Rooter Plumbing appeals from a judgment entered on January 30, 2007 awarding him $704.83 from third-party defendant Emily Gaul, but ordering him to pay $1,500 to plaintiff Joseph Gaul. We affirm in part and reverse in part.

This action arose out of an accident that occurred on December 30, 2004. On that day, while third-party defendant Emily Gaul was driving a car purchased by her father, Joseph Gaul, and given to her as a gift, she hit the rear end of Mr. Rooter's "low boy" truck parked on the right side of a two-lane road. Although the truck extended into the lane of travel, there were no cones, reflectors or markings around the truck other than the reflectors on the truck itself. Emily's car was damaged on the left front side, however, rather than the right front as might be expected.

Emily, who was seventeen and driving "for at least a couple of weeks" at the time, left the scene and did not report the accident. She was subsequently charged with leaving the scene of an accident with property damage. N.J.S.A. 39:4-129(d). That charge was later amended to N.J.S.A. 39:4-97.2, operating a motor vehicle in an unsafe manner and Emily pled guilty to the offense in Chester Township Municipal Court.

At trial before the Special Civil Part, Joseph Gaul, who is an attorney and Emily's father, argued on her behalf. After hearing the testimony and the arguments, the trial court found that Mr. Rooter was thirty percent negligent because he failed to post cones, reflectors or any other device to warn that the vehicle, which was parked on the road overnight, extended into the lane of travel. Emily, as the driver who was principally responsible for making the required observations of things that were obviously in her path, was found seventy percent negligent.

The trial judge determined that Emily's vehicle was damaged to the extent of $5,000, and assessed seventy percent against Emily, requiring her to pay her father $3,500 for the damage to her vehicle, and thirty percent against Mr. Rooter, requiring him to pay $1,500 to Joseph for damage to Emily's vehicle. The court also rendered judgment in favor of Mr. Rooter against Emily for $704.83. Thus, Mr. Rooter, who was found only thirty percent negligent, must pay $796.17 and Emily, who was seventy percent negligent, benefited from the trial judge's award of damages to her father for the damage to her vehicle. In essence, the judgment rendered Emily whole albeit she was seventy percent negligent.

We are as confused by the outcome as we are by the pleadings and the "facts" of this case. The complaint was filed on February 23, 2006 by Emily's father, Joseph Gaul, who signed the complaint as Emily's attorney. The complaint was captioned with Emily as plaintiff and sought damages to "plaintiff's vehicle" for Mr. Rooter's alleged negligence.

Trial began on June 6, 2003 with Joseph appearing and representing Emily as plaintiff. During the trial, Joseph stated that he paid for the damage to Emily's car but the judge properly disallowed the statement because Joseph was Emily's attorney and could not testify as a witness. Thus, there was no evidence of the alleged damages. The judge then, at Joseph's suggestion and over defendant's objection, took the extraordinary step of calling the auto body mechanic on the telephone from the courtroom and having the mechanic testify telephonically as to the amount of damages.

Defendant represents in his brief that some time after the June 6 trial date, "it was learned that plaintiff, Emily Gaul, was not the 'registered' owner of the vehicle so the court permitted the pleadings to be amended." There is nothing in the record before us, however, to reflect a motion for leave to amend or an order granting that motion. On June 30, 2006, Mr. Rooter filed a third-party complaint captioned with Joseph as plaintiff and Emily as third-party defendant. Emily filed an answer to the third-party complaint on July 21, 2006 and signed it pro se.

On December 20, 2006, the trial continued with Joseph as plaintiff and Emily as third-party defendant and Joseph apparently representing himself and Emily. The trial continued on January 30, 2007 with Joseph, again, apparently representing himself and Emily.

The evidence is equally confusing to us. Nowhere in the record is there any proof of who owned the vehicle on December 30, 2004, when the accident occurred. The evidence indicated that Joseph purchased the vehicle on December 23, 2004 and gifted it to Emily for Christmas, but no proof of ownership was ever presented. On August 24, 2006, while the trial was still pending, defendant moved to dismiss the complaint for failure to state a claim on the ground that Emily's vehicle was uninsured at the time of the accident. The declarations sheet for Emily's Allstate policy showed that the policy was not effective until January 6, 2005 seven days after the accident. Defendant's motion was granted on August 30, 2006, and Joseph moved to vacate.

In a "Certification of Counsel" submitted in support of the motion to vacate the dismissal, Joseph certified:

On the morning of December 30, 2004 - before the subject accident, Emily Gaul, my daughter obtained a "binder" with Allstate Insurance Company. This is evident from the application for insurance documents which are annexed hereto as Exhibit A. All appropriate applications were executed and an initial premium payment was made - again, on the morning of December 30, 2004, before the accident.

Irrespective of Joseph's attestation, the Allstate policy was not in effect until January 6, 2005. Obtaining a "binder" and paying a premium does not render the insurance effective before the policy commencement date. If the vehicle was not insured at the time of the accident, the owner whether Joseph or Emily was in violation of the Motor Vehicle Security-Responsibility Law, N.J.S.A. 39:6-23 to 91. Nevertheless, Joseph argues that he held another insurance policy for other vehicles he owned under which Emily's vehicle was covered because the policy covered any automobile purchased by him for a period of thirty days. None of that demonstrates that Joseph owned the vehicle on the date of the accident or whether it was actually insured under any policy on that date.

Thus, the trial judge awarded $5,000 in damages to Joseph when there was no proof that he owned the vehicle at the time of the accident or that the vehicle was insured. Moreover, Emily, who was found seventy percent negligent, had nominal judgment entered against her and was made virtually whole by the award to Joseph for damage to her vehicle.

In this appeal, Mr. Rooter argues that (1) the decision was against the weight of the evidence and was plain error; and (2) the trial court erred in not dismissing the complaint since plaintiff failed to prove that the motor vehicle was insured on the date of the accident.

We are struck by the anomalous result of this case. We are mindful of the heavy case load in the Special Civil Part and we recognize that the Rules of Court and Evidence are not always strictly applied there. Nevertheless, the irregularities in this case resulted in a manifest injustice to Mr. Rooter.

Joseph Gaul, as an attorney, is an officer of the court bound by the rules. He cannot shift roles from plaintiff to advocate for his third-party defendant daughter and he cannot recover damages absent proof that he was the owner of the vehicle he claimed to have given to Emily as a Christmas gift and absent proof that the vehicle was insured at the time of the accident.

In a non-jury case such as this, the findings of the trial court should not be disturbed unless "they are so wholly insupportable as to result in a denial of justice." Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 483-84 (1974). We have carefully considered the record in light of the applicable law and we are satisfied that there is insufficient credible evidence to support the findings and conclusions of the trial judge.

Accordingly, we reverse and vacate that portion of the judgment requiring Mr. Rooter to pay Joseph a share of damages and dismiss Joseph's claim against Mr. Rooter. We affirm judgment on the third-party complaint requiring Emily to pay $704.83 to Mr. Rooter.

Affirmed in part. Reversed in part.

 

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A-3146-06T1

December 5, 2007