L. DAMIAN BARNA v. IRIS MALDONADO

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2719-10T1

L. DAMIAN BARNA and

THERESA L. BARNA,

Plaintiffs-Appellants,

v.

IRIS MALDONADO,

Defendant-Respondent.

________________________________

November 4, 2011

Argued October 17, 2011 - Decided

Before Judges Ashrafi and Fasciale.

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

L-4206-09.

L. Damian Barna and Theresa L. Barna, appellants, argued the cause pro se.

James M. Merendino argued the cause for respondent (Connell Foley, LLP, attorneys; Mr. Merendino, on the brief).

PER CURIAM

Plaintiffs Damian and Theresa Barna appeal from an order of the Law Division dated January 21, 2011, denying their motion for a new trial. Following a five-day trial against their neighbor, defendant Iris Maldonado, the jury awarded plaintiffs compensatory damages totaling $1,050 on their claims of negligence, trespass, and nuisance as a result of a water drainage dispute. The jury found in favor of defendant, however, on plaintiffs' claim of harassment and their request for punitive damages.

Plaintiffs appeal, contending that the jury verdict was a miscarriage of justice and against the weight of the evidence. They also contend they were prejudiced by the judge's rulings before and during the trial. Having reviewed the incomplete record provided by plaintiffs and found no basis for reversal, we affirm the judgment.

As appellants, plaintiffs were required to provide to us the record of proceedings in the trial court relevant to the issues they raise on appeal. See R. 2:6-1(a)(1). Their arguments clearly require a review of transcripts of the trial and any pretrial proceedings in which those matters were raised and decided. See R. 2:5-3. Yet, the only transcript plaintiffs have provided is dated January 21, 2011, and is for their motion seeking a new trial. In addition, the documents contained in plaintiffs' appendix do not include all relevant pleadings. Instead, the appendix contains some documents that were not admitted in evidence at trial and were not otherwise part of the record, according to defendant. The deviations from our appellate rules are sufficient for us to dismiss the appeal. See Society Hill Condo. Ass'n, Inc. v. Society Hill Assocs., 347 N.J. Super. 163, 177 (App. Div. 2002); In re Zakhari, 330 N.J. Super. 493, 494 (App. Div. 2000); Cherry Hill Dodge, Inc. v. Chrysler Credit Corp., 194 N.J. Super. 282, 283 (App. Div. 1984). Nevertheless, we have considered plaintiffs' arguments to the extent the record permits, and we make the following comments so that the pro se plaintiffs might better understand the shortcomings of their appeal.

We discern the following background facts from the briefs and the single transcript provided. The parties live on adjoining lots in Keasbey, a section of Woodbridge Township. Defendant constructed a drainage swale in 2004 that slightly encroached on plaintiffs' property and caused runoff of water onto their land. After years of disputes between the parties, including several criminal and other complaints brought before municipal authorities, defendant filed a civil complaint against plaintiffs in Superior Court in December 2008, and plaintiffs filed a separate civil complaint against defendant in May 2009. The court consolidated the two matters under the docket number of plaintiffs' complaint.

Through mediation, the parties entered into a settlement agreement, but the settlement did not resolve the disputes. Plaintiffs unsuccessfully moved to enforce terms of the settlement and later unsuccessfully moved for summary judgment on some of their claims. Eventually, the homeowner's insurance carrier for plaintiffs settled defendant's claims for a modest amount, $3,500. However, the insurance carrier for defendant declined to make an offer acceptable to plaintiffs to settle their claims. The court permitted plaintiffs' attorney for their affirmative claims to withdraw from the case, and plaintiffs thereafter proceeded pro se. The court reopened discovery for purposes of new expert investigation and reports, but it denied plaintiffs' motion brought about one month before the scheduled trial date to amend their complaint.

Plaintiffs' affirmative claims were tried before a jury in November and December 2010. On the first day of trial, the court unexpectedly required that plaintiffs submit sixty to seventy questions in writing that would address their proposed direct testimony. The judge indicated that the written questions were necessary and would be utilized by the judge to conduct their direct testimony so that neither plaintiff would be engaging in the unlawful practice of law by questioning the other plaintiff.

Although we have no record of the trial, we understand that expert witnesses testified for both sides at trial. The post-trial transcript indicates that an issue brought before the jury was the extent of water intrusion upon plaintiffs' land. One of the plaintiffs testified water covered approximately one percent of their land. After several days of testimony, the jury deliberated and apparently found that defendant was liable to plaintiffs for diversion of water from her property onto their land but that plaintiffs' damages were not extensive. The jury awarded a total of $1,050 in compensatory damages for negligence, nuisance, and trespass. The jury found defendant was not liable to plaintiffs on their separate claims of personal harassment of them by bringing criminal charges and other conduct. After the jury's initial verdict, the court proceeded to plaintiffs' claims for punitive damages. Additional presentations were made, the jury deliberated, and it determined not to grant any punitive damages to plaintiffs.

Plaintiffs then sought a new trial or an additur, arguing that the modest damages award was a miscarriage of justice. They also sought injunctive relief with respect to remediation of the structures that were allegedly causing water intrusion onto their property. The trial court denied their motions, and this appeal followed.

In their pro se appellate brief, plaintiffs allege several trial errors. We are unable to evaluate any of their arguments because plaintiffs have not provided transcripts of the trial. At the time of oral argument before us, when this deficiency was brought to plaintiffs' attention, they made an oral motion to adjourn the appeal while they procure transcripts. Defendant opposed the motion. We now deny that motion because it was incumbent upon plaintiffs to prosecute their appeal according to the rules of court and within a reasonable schedule established by the court. Litigation cannot proceed by misstep and repetition until a party produces the evidence or the record that will persuade the jury or the judges. To be fair to all sides and reasonably efficient, litigation must follow an orderly procedure and schedule.

With only the transcript of the motion for a new trial to aid our review, we can find no reversible error. We question the propriety of the procedure described by plaintiffs by which the court elicited direct testimony from the pro se plaintiffs by previously supplied written questions. In many cases, pro se parties can appropriately present their own direct testimony without participation by the court as a questioner. Where multiple pro se parties are involved in a trial on the same side, each could question the other pro se party as his or her witness, just as a pro se party should be permitted to examine any other witness. Such questioning would not be the unlawful practice of law. For efficiency, the court could also streamline arguments and other proceedings by devising a procedure by which pro se parties are permitted to join formally in arguments and applications made by other pro se parties.

To be fair to the trial judge, we agree that each plaintiff could only represent himself or herself and could not act as an attorney for the other. Thus, each would be required to execute all pleadings and represent himself or herself personally at the trial. Each would need to speak for himself or herself in adopting positions or joining in applications made by the other. But there was no need to impose a condition on plaintiffs to submit questions to the court in writing unless other good cause existed for such a procedure.

Despite our questioning of the manner by which the court conducted direct examination of plaintiffs, we have no way of gauging whether plaintiffs were prejudiced. A judgment will not be reversed on appeal unless an error was clearly capable of producing an unjust result. See R. 2:10-2. Without a record of the trial and the evidence plaintiffs were able to present, or might have been prevented from presenting, we cannot conclude that the procedure resulted in prejudice to plaintiffs or otherwise an unfair trial.

With respect to plaintiffs' argument that the damage award was a miscarriage of justice, the Supreme Court of New Jersey has repeatedly held that our system of civil justice depends on the jury's evaluation of particular facts in an individual case and its subjective, unscientific assessment of a fair amount of compensation. See, e.g., Jastram v. Kruse, 197 N.J. 216, 229 (2008) ("the evaluation of damages is a matter uniquely reposed in the jury's good judgment"); Johnson v. Scaccetti, 192 N.J. 256, 281 (2007) (to set aside a jury's damages award, "[t]he verdict must be 'wide of the mark' and pervaded by a sense of 'wrongness'") (quoting State v. Johnson, 42 N.J. 146, 162 (1964)); Caldwell v. Haynes, 136 N.J. 422, 432 (1994) (in assessing the amount of damages awarded, the evidence must be viewed in the light most favorable to the party that opposes a motion for a new trial); Baxter v. Fairmont Food Co., 74 N.J. 588, 597 (1977) ("The judgment of the initial factfinder . . . is entitled to very considerable respect."). For the court to set aside a jury's award, the verdict must "constitute[] a manifest injustice that shocks the judicial conscience." Carey v. Lovett, 132 N.J. 44, 66 (1993).

Recently in He v. Miller, 207 N.J. 230 (2011), the Court again addressed the deference due to a jury's assessment of damages in the context of a trial court's authority to grant a remittitur, or a reduction, of a jury's verdict. The Supreme Court said: "The trial court should not disturb the jury's award unless it is 'so disproportionate to the injury and resulting disability as to shock the conscience and [convince the court] that to sustain the award would be manifestly unjust.'" Id. at 249 (quoting Baxter, supra, 74 N.J. at 604).

Not only must the trial court defer to the jury's findings and conclusions, an appellate court must defer to the trial court's "firsthand 'feel of the case' as it bears on an analysis of whether the jury's verdict was motivated by improper influences." He, supra, 207 N.J. at 250 (quoting Pellicer v. St. Barnabas Hosp., 200 N.J. 22, 58 (2009)).

On the record presented, we have no basis to conclude that the jury's award of $1,050 in compensatory damages was disproportionate to the damage to plaintiffs' land or otherwise motivated by improper influence.

A