Before Judges Havey, Skillman and P.g. Levy.
The opinion of the court was delivered by: Havey, P.j.a.d.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
On appeal from Superior Court of New Jersey, Law Division, Cape May County.
The opinion of the court was delivered by
Defendants Louis DeLosso and The Design Collaborative Architects and Planners, P.A. (DECO) appeal from a judgment entered on an $11,300 jury verdict in favor of plaintiff. Defendant William M. Kemp cross-appeals from the trial Judge's order denying his summary judgment motion and the Judge's denial of his motion for involuntary dismissal pursuant to R. 4:37-2. On appeal, DeLosso and DECO argue: (1) plaintiff's expert's testimony was a net opinion and thus insufficient to establish a prima facie case of professional negligence against them; (2) DECO's and DeLosso's reliance on the Kemp survey was in compliance with the parties' contract and consistent with accepted standards of architectural practice; (3) plaintiff's damages were not proximately caused by the conduct of DeLosso and DECO; and (4) DeLosso and DECO were entitled to a new trial because of evidentiary errors committed by the trial Judge. We reverse the judgment in plaintiff's favor and remand for the entry of a judgment of dismissal. We dismiss Kemp's cross-appeal as moot.
In 1985, plaintiff purchased a structure on Washington Street, Cape May, for the purpose of operating a beauty salon and guest house. She contacted William M. Kemp, a professional land surveyor, to prepare a survey of the property for submission to the Cape May Zoning Board of Adjustment for a special reasons variance and site plan waiver in order to utilize the structure as a beauty shop. The survey dated February 12, 1985, was submitted to the Zoning Board. The survey located a thirty-inch diameter maple tree on the site. The Zoning Board denied plaintiff's request for a site plan waiver.
Plaintiff thereafter contacted defendant Sabatino Architects to prepare a full site plan. DeLosso, employed at the time by Sabatino Architects, prepared a site plan dated February 10, 1986. DeLosso testified that he relied on the Kemp survey "as the basis" for the Sabatino site plan because it contained all of the information required by the City of Cape May. Specifically, DeLosso relied on the survey for the outline of the lot and location of physical features, including the maple tree.
After the Zoning Board denied plaintiff's application for a special reasons variance, she filed an action in lieu of prerogative writs, which resulted in a remand to the Zoning Board with direction that the application be reconsidered. According to the record, plaintiff received her variance approval by "default." She thereafter contacted DeLosso in 1989 requesting his appearance before the Cape May Planning Board on her site plan application. DeLosso had since been hired by DECO. On April 6, 1989, DeLosso appeared at the hearing and the Board granted site plan approval, based on the Sabatino plan.
On November 20, 1990, plaintiff again contacted DeLosso for the purpose of revising the site plan to reflect a proposed deck, a parking and lighting plan, and a handicap ramp. Pursuant to a November 28, 1990 written agreement between plaintiff and DECO, plaintiff agreed to "furnish a legal description and certified land survey of the site, . . . and complete data pertaining to existing buildings, other improvements and trees . . . ." Plaintiff thereupon sent DeLosso the February 10, 1986 Sabatino site plan. According to DeLosso, he did not use a land survey in preparing the revised site plan, nor did he personally inspect the property. DeLosso completed the DECO site plan on April 16, 1991, certifying that he had supervised the preparation of the site plan and that all dimensions and information set forth thereon were correct. The Planning Board approved the DECO site plan on September 4, 1991.
Construction of the structure's alterations and revisions to the site layout commenced in December 1991. During construction, plaintiff's contractor determined that the thirty-inch diameter maple tree was actually located in the proposed driveway area, rather than as shown on the DECO site plan. The contractor was forced to stop construction. Plaintiff was advised by the City that she needed a new site plan.
In December 1991, plaintiff contacted Joseph Courter, an architect, to "start from scratch" and to prepare a new plan. Plaintiff gave Courter Kemp's February 12, 1985 survey and DECO's April 16, 1991 revised site plan. Based on these documents and an inspection of the site, Courter determined that the plans had mislocated the maple tree. According to Courter, the Kemp survey and DECO site plan situated the tree between eleven and fourteen feet from where it actually stood. Courter thereupon prepared a new site plan on January 14, 1992. The Planning Board approved the plan on July 29, 1992.
Courter charged plaintiff $5,814 for his services in connection with preparation of the revised site plan. According to plaintiff, she was unable to open her shop until October 1992, and suffered approximately $12,128 in lost earnings because she was not able to hire a second stylist. Moreover, she paid $1,625 to her contractor after construction was interrupted for reviewing site plans with zoning officers and appearing before the Board to obtain the new site plan approval.
Plaintiff called Courter as her expert witness. It was his opinion that "[i]n working in a small parking lot where there's a 30 inch diameter tree in the proximity, I would think it would be prudent to determine the location of that tree, fairly accurately." Courter concluded that DeLosso's failure to accurately denote the thirty-inch diameter tree violated that standard of practice. He also opined that "a prudent architect would go to the site and make sure that he knows where that tree is, because all his work is going to revolve around that tree." Courter also testified that Kemp's 1985 survey was prepared for a special reasons variance and site plan waiver. Therefore, there was no need to include vegetation in the survey, and thus Kemp's ...