LAURA LAGUDI v. DR. THOMAS B. CAMPAGNA

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5926-05T55926-05T5

LAURA LAGUDI,

Plaintiff-Respondent,

v.

DR. THOMAS B. CAMPAGNA,

Defendant-Appellant.

_______________________________________

 

Submitted July 31, 2007 - Decided

Before Judges Yannotti and Miniman.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. SC-2081-06.

Michael B. Campagna, attorney for appellant.

Respondent has not filed a brief.

PER CURIAM

Defendant Thomas B. Campagna appeals from a judgment entered in the Special Civil Part on June 6, 2006, which awarded plaintiff Laura Lagudi $2,400, plus costs. For the reasons that follow, we affirm in part and reverse in part.

Plaintiff filed a complaint dated April 26, 2006, seeking $2,454 plus costs on a claim arising from certain dental work performed by defendant. In her complaint, plaintiff alleged that defendant had placed two crowns and while one "came out great," the other crown "was not successful." According to plaintiff, "metal was showing in [her] mouth for months." Plaintiff alleged that over a three-year period, defendant tried to fix the faulty crown but was unsuccessful. Plaintiff alleged that she had to have the crown re-done by another dentist. Plaintiff asserted, "I am only looking for reimbursement."

The matter was tried on June 6, 2006. Plaintiff testified that one of the two crowns placed by defendant had not been completed properly. Plaintiff testified that she went to another dentist to have the crown re-done, and it took the second dentist two visits to complete the work. Plaintiff stated that she paid the second dentist $3,500. She paid defendant $2,300.

Plaintiff was asked to explain why she was seeking $2,454 in this case. She responded by stating that she was seeking reimbursement of the cost incurred for the second dentist. Plaintiff asserted that she filed a claim with the State Board of Dentistry (Board), which ordered defendant to return $1,046 to her. The following colloquy ensued between the judge and plaintiff:

Q. All right. All right. So, basically, what you're suing for is the cost to fix it, which is $3,500. Since you already got $1,046, you're suing for the remainder which is $2,453 -- $54?

A. Yes, Your Honor.

Q. Okay. But, you stopped paying at $2300.

A. I must have gone at least over 55 times to the dentist --

Q. Okay.

A. -- because he had to bang it out. I went through a lot of pain --

Q. Okay.

A. -- with this crown.

Q. Okay.

Defendant did not cross-examine plaintiff, nor did he present any witnesses. However, in summation, defendant's attorney argued that plaintiff's complaint should be dismissed based on res judicata and collateral estoppel because plaintiff asserted a claim with the Board, which ordered defendant to remit $1,044.60 to plaintiff. The judge rejected the argument in part, stating that the Board only had the authority to award restitution for the original services, and could not order payment for replacement procedures or pain and suffering.

The judge concluded that the Board's decision was res judicata "as far as restitution is concerned." The judge found that plaintiff paid defendant $2,300 for the procedure, and plaintiff paid the second dentist $3,500 for the replacement. The judge awarded plaintiff $1,200 for the replacement, and $1,200 for pain and suffering because plaintiff had "to endure approximately 55 visits." Judgment was entered accordingly and this appeal followed.

Defendant does not challenge the award of $1,200 for the replacement procedure. However, defendant argues that: 1) the judge erred by awarding plaintiff damages for pain and suffering when such damages were not sought in the pleading; and 2) the judge erred by awarding pain and suffering damages because plaintiff did not file a complaint seeking such damages within the time required by the statute of limitations.

We are convinced that the judge erred by awarding plaintiff damages for her pain and suffering. R. 4:9-2 allows a complaint to be amended at trial when an issue that is not raised in the pleadings is "tried by consent or without the objection of the parties." However, in the trial of this matter, plaintiff at no point sought damages for her alleged pain and suffering.

Indeed, plaintiff made clear in her complaint and at trial that she was only seeking reimbursement for the money spent to have defendant's faulty work corrected. Although plaintiff mentioned in passing that she had to make about 55 visits to defendant because of the problems with the crown, and stated that she had been in pain, plaintiff never asked the court to award her damages for pain and suffering. That being so, the judge erred by awarding plaintiff $1,200 for her pain and suffering.

We therefore affirm the award of $1,200 to plaintiff for the replacement procedure but reverse the award of $1,200 for pain and suffering. We remand to the trial court for entry of a judgment awarding plaintiff $1,200, plus costs.

Affirmed in part, reversed in part, and remanded for entry of a judgment consistent with this opinion.

 

The Board actually ordered defendant to remit $1,044.60 to plaintiff.

(continued)

(continued)

5

A-5926-05T5

August 9, 2007