RAFAEL CASANOVA, ET AL. v. SPINIELLO COMPANIES, CITY OF NEWARK

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5936-05T55936-05T5

RAFAEL CASANOVA, HECTOR COLON,

ROBERTO MARQUES, and DENISE MENDEZ,

Plaintiffs,

and

ANDRES CONTRERAS, JOSE MONTALVO, and

MARIA SERRANO,

Plaintiffs-Appellants,

v.

SPINIELLO COMPANIES, CITY OF NEWARK,

Defendants-Respondents,

and

DIRECTORS OF WATER DEPARTMENT,

SEWER UTILITIES and NEWARK WATER SHED,

Defendants.

____________________________________________

 

Submitted June 20, 2007 - Decided July 13, 2007

Before Judges Wefing and Weissbard.

On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No.

L-6080-04.

Athena D. Alsobrook, attorney for appellants.

Stevens & Schwab, attorneys for respondent Spiniello Companies (Rocco T. Casale, on the brief).

Respondent City of Newark did not submit a brief.

PER CURIAM

Plaintiffs, Andres Contreras, Jose Montalvo and Maria Serrano appeal from the dismissal of their suit against defendant, Spiniello Companies. We affirm in part, reverse in part, and remand for trial.

Defendant was hired by the City of Newark to reconstruct sewer lines in the vicinity of plaintiffs' homes. On the evening of August 2, 2002, employees of defendant ruptured a sewer line on North 13th Street, causing water and sewage to overflow onto North 13th Street, resulting in damage to the basements and first floors of homes on the street, including those of plaintiffs. The accident was immediately reported, and representatives of defendant responded, observing and taking photographs and a videotape of the damage. Contreras lived at 69 North 13th Street, Montalvo lived at 82 North 13th Street, and Serrano lived at 84 North 13th Street.

On July 30, 2004, plaintiffs, along with Rafael Casanova, Hector Coon, Roberto Marques and Denise Mendez, initiated suit against defendant and the City of Newark. In March 2005, the case was consolidated with an earlier suit arising out of the same incident instituted by Mark Stokes. In January 2006, the consolidated cases were bifurcated as to liability and damages. On January 18, 2006, in response to a motion in limine, Judge Schott ruled that defendants were liable to plaintiffs. On April 13, 2006, however, defendants' unopposed motion for summary judgment was granted as to Stokes, but denied as to the remaining plaintiffs who did oppose it.

On June 5, 2006, the case was assigned for trial on the issue of damages. On defendants' in limine motion, the judge ruled that plaintiffs were unable to prove their damages by competent evidence and dismissed the complaint with prejudice, entering a judgment of no cause in favor of defendants against plaintiffs Contreras, Marques, Mendez, Montalvo, and Serrano. At the same time, the judge entered judgment in favor of plaintiff Casanova in the amount of $2609, and in favor of plaintiff Colon in the amount of $12,598.07.

Contreras, Montalvo and Serrano appeal, arguing that expert testimony was not necessary to prove their damages and they should have been permitted to present their damage proofs to a jury. We agree in part with that contention.

There were three categories of damages at issue; claims for lost rental income, claims for loss or damage to personal property, and claims for repair or replacement of certain property. Plaintiffs have not appealed dismissal of their claims for personal injuries.

In ruling against plaintiffs, the judge said the following:

Now, all of the other claims, and I think the Court has already expressed its views upon the lost rents, there is no evidence at all that would support the damage claims made by the plaintiffs for lost rents. Plaintiffs are not entitled to a gross amount. From the amount [would] have to be deducted various expenses, and there is no evidence as to what those expenses are. Plaintiffs have just set forth gross amounts and cannot prove what their actual profit would have been on the rents. I don't see how a jury could possibly make a damage award for lost rents based upon the evidence that has been submitted to the Court.

And the same holds true for the personal property claim, and the repairs claim, and in some instances the lost property claims . . . there's no competent evidence, . . . there are no documents, there are no reports from experts or public adjusters, or even a realtor that could give guidance as to what the actual damages are in this case for the various items claimed by the plaintiffs. There's no proof that the plaintiffs paid anybody to do any repairs, or incurred any expenses, except for some hearsay documents that are attached to the answers to interrogatories.

There's no proof with respect to the loss of the alleged equipment. No proof of the original cost, the age, the depreciation value. These are the things that have to be taken into consideration when assessing damages for loss of personal property.

The same is true with respect to the loss of the properties by foreclosure. There are no . . . documents, there's no proof that these . . . properties were, in fact, lost as result of this incident. There is no -- except for maybe one letter from a mortgage company showing some arrearages, there's really no other document that would support that claim. So what we would have is we would have the plaintiffs getting up and testifying that this is what they think everything is worth. They made a list and they think it's $10,000. They think it's worth $20,000. And that's just not the way we prove things before a jury.

With respect to the exception here would be Plaintiff Casanova. There is a -- an adjuster's report that was rendered on behalf of the defendant after evaluating the claim, which the Court will deem to be an admission by the defendant that at the very least that amount is the amount of the loss for Casanova. And for Casanova, that amount is $2,609.

For Colon and Mendez there is a similar report, an admission by the defendant that the damages sustained by Colon and Mendez were $12,598.07. The court deems that to be an admission as to the value of the damages incurred by Colon and Mendez.

So the Court will award those amounts to those two plaintiffs, $2,609 to Casanova, $12,598.07 to Colon and Mendez.

With respect to Plaintiffs Contreras, Montalvo, Serrano, and Marques, the complaint is dismissed with prejudice. The Court finds that there is no way based upon the proffer that has been provided by counsel that the jury can award damages for any of the items claimed by these parties.

As noted, plaintiffs take issue with the judge's determination that expert testimony was needed to support their damage claims. They also point out that estimates for repair to the premises were provided in discovery, as well as values for personal property damaged or destroyed. Thus, Contreras provided an estimate from Newark Mechanical Corporation for repair or replacement of a boiler, three water heaters, three storage boilers, and controls on the boilers. Contreras also supplied an estimate from T&T Contractors for repair of extensive damage to his basement. Finally, in his answers to interrogatories, he listed the value of numerous items of personal property damaged as a result of the flooding. Montalvo also provided answers listing the value of personal property damaged, as did Serrano.

We fully agree with the trial judge that plaintiffs' proofs as to the loss of rental income were deficient because they failed to provide defendants with even a modicum of documentation supporting the fact that there were tenants and, as importantly, failed to establish their net loss as a result of any claimed interruption of such tenancies. Those claims were properly dismissed.

We also agree that plaintiffs' claims for damage to, and replacement of property, evidenced by estimates from contractors, were properly barred because plaintiffs did not intend to call the contractors, or any other experts, to testify to the need for, and cost of the repairs and replacements. We reject plaintiffs' argument that they should have been permitted to use the written estimates which they provided in discovery. This type of proof clearly required expert testimony. In these circumstances, any testimony by plaintiffs would have been incompetent hearsay. Thus, the judge was correct in barring these proofs.

However, we take a different view of plaintiffs' claim for loss or damage to their personal property. In Nixon v. Lawhon, 32 N.J. Super. 351, 356 (App. Div. 1954), then Judge (later Justice) Schettino stated the settled rule as being:

[T]hat an owner of an article of personal property may, in circumstances like those present, give his opinion of its value before and after damage has been done, at least where such property is of a common class or in general daily use, except in those extreme cases where it is clear that he has not the slightest knowledge of such value.

[citations omitted.]

The rule dates back as far as Teets v. Hahn, 104 N.J.L. 357, 360 (E & A 1928), and has been acknowledged in a number of decisions since Nixon. See Penbara v. Straczynski, 347 N.J. Super. 155, 162 (App. Div. 2002); Lancellotti v. Maryland Cas. Co., 260 N.J. Super. 579, 585 (App. Div. 1992); Lane v. Oil Delivery, Inc., 216 N.J. Super. 413, 420 (App. Div. 1987); Rodgers v. Reid Oldsmobile, Inc., 58 N.J. Super. 375, 385 (App. Div. 1959). It is applicable here.

Plaintiffs provided valuations of each item in their answers to interrogatories. It was not necessary, as the trial judge thought, to provide receipts, evidence of dates of purchase, and similar supporting documentation. Nor was it necessary, as defendant argues, that plaintiffs supply a basis for how they arrived at the stated values. Those were matters that go to the weight of the testimony and could be the subject of inquiry on cross-examination. Defendant could have sought further information on deposition, but chose not to take any depositions, thereby forfeiting that opportunity.

Accordingly, we reverse that part of the order of dismissal which barred plaintiffs' damage claims as they related to personal property, but affirm the ruling barring the other categories of damage.

 
Affirmed in part, reversed and remanded in part for trial.

The City of Newark was apparently represented in the trial court by the same counsel representing Spiniello Companies. However, on appeal, only Spiniello has filed a responding brief.

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A-5936-05T5

July 13, 2007