LUCCA CONTRACTING, INC v. DONALD G. TARGAN

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2003-08T22003-08T2

LUCCA CONTRACTING, INC.,

Plaintiff-Respondent,

v.

DONALD G. TARGAN and

EDWARD DiNICOLANTONIO, j/s/a.,

Defendants/Third-Party

Plaintiffs-Appellants,

v.

PETER DOLCY and DUFFY, DOLCY,

McMANUS & ROESCH,

Third-Party Defendants-

Respondents.

________________________________________________________________

 

Argued September 16, 2009 - Decided

Before Judges Axelrad, Fisher and Espinosa.

On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Docket No. L-3590-05.

Michael J. Pender argued the cause for appellants (Targan & Pender, attorneys; Mr. Pender, on the brief).

Mitchell Waldman argued the cause for respondent Lucca Contracting, Inc. (Hurvitz & Waldman, LLC, attorneys; Mr. Waldman, of counsel and on the brief).

John H. King argued the cause for respondents Peter Dolcy and Duffy, Dolcy, McManus & Roesch (Thompson Becker & Bothwell, LLC, attorneys; Mr. King, on the brief).

PER CURIAM

Plaintiff Lucca Contracting, Inc. (Lucca) and defendants/third-party plaintiffs Donald G. Targan and Edward DiNicolantonio (collectively, Targan) entered into a contract for Lucca to perform site work at a project known as Pine Creek Drive in Hamilton Township. Targan hired third-party defendant, Duffy, Dolcy, McManus & Roesch (DDMR), to provide certain surveying and engineering services to develop the site. Under the contract between Lucca and Targan, Targan was required to pay $224,500 in four draws. Targan paid the first and second draws but failed to pay the third and fourth draws. Targan appeals from a judgment returned against them for breach of contract and the trial court's order denying their motion to mold the verdict. We affirm.

From October 14, 2004, to February 25, 2005, Lucca provided services pursuant to the contract. The site work included clearing, excavation, pipe work, fill, road base, curbs and sidewalks. On January 12, 2005, DDMR sent Lucca a "cut sheet," which provides the contractor with the heights and locations of the elevations for the curbs and the cuts and fills in the project. William McManus, a licensed surveyor and partner in DDMR, testified that after a mistake was found in the elevation, he sent Lucca a revised, checked "cut sheet" a day later on January 13, 2005. Anthony Lucca (Mr. Lucca) claimed he never received the second cut sheet and DDMR was unable to produce documentation to prove the revised cut sheet was sent. At trial, McManus testified that one of Lucca's employees called DDMR about what appeared to be a one-foot error at one location and was told to "[w]ork it through the station." McManus stated that was done and that the construction was "pretty close to what the [January 12] cut sheet said." However, he also testified that there were many inconsistencies between the elevations built and the two cut sheets.

Mr. Lucca testified that he did not receive any notices from Targan or its engineer that the work did not conform to the cut sheet prior to the completion of the sidewalk in January 2005. He never received any notice from the township that any of the work failed to comply with applicable codes or that any of the sidewalk or curbing had to be removed. When Donald Targan inspected the work in February, he said nothing about the curb heights, the sidewalks or the space between the curbs and sidewalks.

Although Targan asked DDMR to check on the progress of the work to determine whether phases had been completed for payment, DDMR was not asked to inspect the quality of the work done by Lucca. The township provided only guidelines that required a six inch "reveal" for the curb and that the street width be thirty feet. If these guidelines were not met, the work would need to be ripped out and replaced. Peter Dolcy, a licensed engineer and partner in DDMR, testified that he calculated that 200 linear feet of sidewalk and 871 feet of curbing had to be ripped out and replaced. Donald Targan agreed with DDMR's advice. He testified that $19,597 was paid to remove 871 linear feet from the curbs and $8,624 was paid to remove 196 square yards of the sidewalk.

Mr. Lucca testified that he had trouble getting paid after the second draw. The reasons given for nonpayment were unrelated to the curb work. By way of example, Targan wanted all landscaping completed before making payment although landscaping was not included in the proposal. Mr. Lucca also testified that Targan would not pay the third draw because certain work had not been completed, although the work in question was not to be performed until the last portion of the contract.

Lucca left the job in February 2005. Mr. Lucca testified that the work left undone at that point was the base work, which had a dollar value of $33,000.

On June 9, 2005, Lucca filed a complaint seeking $97,810, the balance it claimed was due under the contract. Targan filed an answer and counterclaim as well as a third-party complaint against Peter Dolcy and DDMR.

The jury found that Targan breached its contract with Lucca; that Lucca did not breach the contract and that Lucca performed the work "according to the contract plans and in a workmanlike manner." The jury concluded that Targan owed Lucca $60,458 under the contract and that the total amount owed under the contract, including "additional reasonable compensatory damages" was $77,083. The jury also found that DDMR breached its contract with Targan "by failing [to] provide Lucca with specifications upon which [it] could rely for the installation of the concrete curb or by advising Targan to remove the concrete curb," and awarded Targan $3,000 for that breach.

After the trial, Targan filed motions for a new trial and to mold the verdict, both of which were denied by the trial court. In this appeal, Targan raises the following issues:

POINT I

PLAINTIFF'S IMPROPER CONDUCT WARRANTS A NEW TRIAL.

POINT II

THE FALSE TESTIMONY AND PRESENTATION OF DELIBERATELY MISLEADING AND IRRELEVANT JUDGMENTS WAS NOT CURED AT TRIAL.

POINT III

IF THE COURT DENIES THE MOTION FOR NEW TRIAL, THE INCONSISTENT VERDICT REGARDING DDMR SHOULD BE MOLDED.

POINT IV

THE DECISION IN FAVOR OF LUCCA WAS AGAINST THE WEIGHT OF THE EVIDENCE.

The focus of this appeal is certain testimony of Mr. Lucca regarding three judgments that Lucca purportedly faced as a result of Targan's failure to pay the contract price. Targan argues that this testimony was deliberately false and had a prejudicial impact, warranting a new trial. Targan's arguments can be summarized as follows: No evidence of the three judgments should have been permitted because the judgments were not produced in discovery. Because the judgments were not relevant, they had the power to confuse the jury, causing an unjust result. Finally, the trial court failed to cure the prejudice caused by this evidence. We are satisfied that none of these arguments has merit.

During the course of his testimony, Mr. Lucca testified that, as a result of Targan's failure to pay the sums due under the contract, Lucca's suppliers obtained judgments against Lucca Contracting. His mention of a judgment obtained by Penn Jersey Building Materials Company, Inc. (Penn Jersey) drew an objection on relevance grounds. When the trial court stated that evidence of consequential damages would be permitted, Targan's counsel added, "That's never really been brought to our attention before."

Without further objection, Mr. Lucca continued to testify about the judgment Penn Jersey obtained. He also stated that he had purchased equipment for the job from CNH Capital America, LLC (CNH) that was subsequently repossessed and that a judgment of approximately $213,000 had been entered against Lucca Construction and him personally for the equipment. He testified that there was a third judgment obtained by Caterina Supply, Inc. for "almost $14,000." Counsel made no further objections to this testimony and proceeded to his cross-examination. Counsel did not raise any issue regarding the judgments at the close of testimony that day or before resuming his cross-examination in the morning.

In response to counsel's cross-examination, Mr. Lucca testified that his claim for damages included the amounts of the judgments. Although this testimony was at variance with the claim as asserted in the complaint and presented in the opening statement of Lucca's counsel, no objection was raised at this point. Instead, Targan's counsel questioned Mr. Lucca about the judgments, eliciting an admission that the $213,000 judgment arose from a contract dated May 31, 2005, approximately three months after Lucca walked off the job. Mr. Lucca's testimony concluded on the second day of the trial without any further objection regarding the judgments. Targan's counsel recalled Mr. Lucca on the following afternoon to question him further regarding the $213,000 judgment in CNH Capital America, LLC f/k/a Case Credit v. Anthony Lucca Trucking, Inc., and Anthony Lucca. Mr. Lucca acknowledged that the judgment was against Anthony Lucca Trucking, Inc., an entity separate from the plaintiff here.

At the conclusion of the testimony, Targan's counsel raised the "judgments" issue, but only as to CNH's $213,000 judgment against Anthony Lucca Trucking, Inc. The trial court agreed that reference to that judgment was not proper and could not be the basis for consequential damages. The trial court further advised that when he instructed the jury, he would "make sure they understand that." Targan's counsel made two further requests regarding this judgment: that he be permitted to use a document showing the delivery date of the trucks that were the subject of the judgment to impeach Mr. Lucca's credibility and that the court give an appropriate instruction. The trial court agreed to both requests.

Lucca sought to introduce evidence of only one judgment, the Penn Jersey judgment against it for $12,371, and represented that the claim arising from that judgment would be limited to the amount of attorneys' fees and costs incurred. Targan's counsel agreed that "collection money and reasonable charges that can be shown to be associated with that might be recoverable." He explained that his opposition to the judgment was based upon the lack of "specificity as to whether or not this is just for this job or" for some other job. Targan's counsel also preserved his earlier objection that the judgment was not provided in discovery prior to the trial.

Therefore, the status of the case as to the three judgments at the close of the evidence can be summarized as follows. Only one of the three judgments, the Penn Jersey judgment, was received in evidence. Targan's counsel had successfully impeached Mr. Lucca's credibility regarding the $213,000 judgment by having him admit that the contract that was the subject of that judgment was entered into months after Lucca walked off the job. After Mr. Lucca acknowledged that the judgment was against an entity separate from Lucca, that judgment was excluded from evidence. Further, the trial court agreed to allow Targan's counsel to use a document to impeach Mr. Lucca in his summation by showing that the deliveries in question did not relate to the Targan project. Finally, the trial court advised that it would make sure that the jury understood that the $213,000 judgment could not be considered in determining damages.

Despite these favorable rulings, Targan's counsel argued in his summation that Lucca was claiming damages in excess of $350,000, specifically referring to the $213,000 judgment as part of the damages sought. Lucca's counsel countered that he was not looking for $350,000, only "for the payments that [Lucca] was due," and specifically referred to the third and fourth draws that were to be paid pursuant to the contract.

Thereafter, the trial court explicitly instructed the jury as follows:

In terms of damages, and one final thing I need to bring to your attention. There was some discussion about a judgment for $213,000. One of the hearings that we had during recess yesterday dealt with that judgment, and what was determined after a review of the file and a review of the pleadings was that the $213,000 judgment was against a different entity. It was against Lucca Trucking. It was not against Lucca Contracting. It's irrelevant. It's not in evidence. And that judgment is not to be considered as part of any assessment of damages that you might, that you might make.

The challenged evidence consists of the only judgment received in evidence, the Penn Jersey judgment for $12,371, and Mr. Lucca's testimony regarding the judgments. It is unfortunate that the challenged judgments were not provided in discovery so that the relevance of the judgments to the plaintiff's claims could be explored prior to trial. As the trial court observed, it would ordinarily be expected that such documents would have been demanded and produced during the discovery period. "Lawyers have an obligation of candor . . . which includes a duty of disclosure to the court and opposing counsel." McKenney v. Jersey City Med. Ctr., 167 N.J. 359, 371 (2001). "[C]oncealment and surprise are not to be tolerated," Lang v. Morgan's Home Equip. Corp., 6 N.J. 333, 338 (1951), because the outcome of the case should be based on the merits given the facts, not the craftiness of counsel. McKenney, supra, 167 N.J. at 371. However, Targan has failed to identify what discovery demand, if any, was made that would have required the production of these judgments prior to trial.

We grant substantial deference to the trial judge's discretion on evidentiary rulings. Board of Educ. v. Zoning Bd. of Adjustment, 409 N.J. Super. 389, 430 (App. Div. 2009); Benevenga v. Digregorio, 325 N.J. Super. 27, 32 (App. Div. 1999), certif. denied, 163 N.J. 79 (2000). As a general rule, the trial court's ruling will not be disturbed unless there is a clear abuse of discretion. Dinter v. Sears, Roebuck & Co., 252 N.J. Super. 84, 92 (App. Div. 1991). Reversal is only appropriate when the trial judge's ruling was "so wide of the mark that a manifest denial of justice resulted." State v. Carter, 91 N.J. 86, 106 (1982); Board of Educ., supra, 409 N.J. Super. at 430.

Following the trial, Targan secured information that suggests that the judgment in evidence arose from purchases made for another project months after Lucca walked off the job. However, since this information was not available to the trial court when the judgment was received in evidence, the decision to admit the Penn Jersey judgment was not an abuse of discretion. Even if this decision were error, it was not a clear abuse of discretion and plainly did not result in a manifest denial of justice.

The trial court's instruction to the jury did exactly what was promised to Targan's counsel: it made sure that the jury understood that the $213,000 judgment was not to be considered in determining damages. Targan's counsel did not voice any dissatisfaction with the charge at trial. To the extent that any confusion regarding the $213,000 judgment might have survived this instruction, it would appear to be the product of Targan's counsel's argument in summation that Lucca was seeking this amount in damages. There is nothing in the charge or in Lucca's counsel's summation to support that view of Lucca's claim. The jury awarded Lucca less than the sum of the unpaid contract payments, providing no support for a claim that testimony regarding the $213,000 judgment influenced their verdict. We are satisfied that the trial court's instruction cured any false impression that the $213,000 judgment was any part of the damages sought.

Targan sought a new trial based upon Rule 4:49, and, at oral argument, contended that "[Rule] 4:50 may offer appropriate relief as well." The standard for granting a new trial pursuant to Rule 4:49-1 requires a determination that "the jury's verdict is 'contrary to the weight of the evidence or clearly the product of mistake, passion, prejudice or partiality.'" Crawn v. Campo, 136 N.J. 494, 512 (1994) (quoting Lanzet v. Greenberg, 126 N.J. 168, 175 (1991)). Plainly, if the jury accepted the testimony of Mr. Lucca as credible, there was adequate evidentiary support for the verdict rendered. But Targan argues that the Lucca's improper conduct requires a new trial. The question raised by this argument is whether the introduction of the Penn Jersey judgment and the testimony regarding the judgments "could have a tendency to influence the jury in arriving at its verdict in a manner inconsistent with the legal proofs and the court's charge." Brown v. Kennedy Mem'l Hosp.-Univ. Med. Ctr., 312 N.J. Super. 579, 591 (App. Div.), certif. denied, 156 N.J. 426 (1998).

The verdict here does not reflect such an influence. First of all, the jury awarded less than the sum of unpaid contract payments. In addition, unlike the circumstances in Kotler v. Nat'l R.R. Passenger Corp., 402 N.J. Super. 372, 381 (App. Div. 2008), Lucca's counsel did not attempt to exploit evidence that was arguably admitted in error in his summation. Therefore, we conclude that the motion for a new trial was properly denied.

 
Targan also argues that, if the verdict stands, "the entire amount should be shifted to third party defendant, DDMR." This argument lacks sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

Affirmed.

Prior to trial, Targan dismissed the third-party complaint against Dolcy and proceeded only against DDMR.

Although the document was not provided earlier, Mr. Lucca testified in his deposition that he was being sued by Penn Jersey, where he bought all the concrete for the job, and by Caterina Supply, Inc., where he bought the "Cultec chambers."

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14

A-2003-08T2

October 29, 2009