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St. Louis, L.L.C. v. Final Touch Glass & Mirror

June 12, 2006

ST. LOUIS, L.L.C., PLAINTIFF-RESPONDENT,
v.
FINAL TOUCH GLASS & MIRROR, INC., DEFENDANT-APPELLANT, AND FINAL TOUCH GLASS & MIRROR, INC., THIRD-PARTY PLAINTIFF,
v.
JAMES KISSANE, REGISTERED ARCHITECT, DOUG WOLF T/A AURORA CONSTRUCTORS, AND JOHN BOULTON, THIRD-PARTY DEFENDANTS.



On appeal from the Superior Court of New Jersey, Law Division, Somerset County, SOML-1553-01.

The opinion of the court was delivered by: Winkelstein, J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Argued May 3, 2006

Before Judges Conley, Weissbard and Winkelstein.

In this opinion, we examine the appropriate measure of damages for defective construction. Plaintiff St. Louis, L.L.C., which was formed by John Boulton and his wife Prudence Boulton, purchased a forty-eight-acre tract of land located in a canal preservation district in Franklin Township in 1993. The Boultons worked with an architect, James Kissane, to develop plans to construct a two-story, 36,000 square foot house on the property with the exterior walls made of glass. The house was to be used initially as a residence and then in connection with the Boultons's child advocacy foundation. The house cost approximately $8.5 million to construct.

Boulton*fn1 acted as the general contractor for construction of the house. He hired Doug Wolf to serve as the construction manager and Final Touch Glass & Mirror, Inc., to install the glass.

The house's drain pipes, vent pipes, and electrical raceways were to be contained within steel columns that would serve as the support for the house. While affixing the glass panels to the steel columns with screws, Final Touch punctured nearly all of the pipes contained within the columns. Plaintiff brought suit against Final Touch, which asserted third-party complaints for contribution against Boulton, Kissane and Wolf. Wolf defaulted. While the lawsuit was pending, plaintiff sold the house for $2.5 million. At trial, the judge ruled that the appropriate measure of damages would be diminution in value of the house and the cost of repair could be considered by the jury in making that assessment. Boulton and plaintiff's construction cost expert testified that the defects would cost at least $774,000 to repair.

The jury returned a $737,500 verdict in favor of plaintiff. It assessed percentages of negligence as follows: Final Touch forty percent; Wolf sixty percent; Boulton and Kissane zero percent.*fn2 The court denied Final Touch's motion for judgment notwithstanding the verdict or for a new trial. On appeal, defendant raises the following issues:

POINT I

THIS COURT SHOULD VACATE THE VERDICT AND DISMISS ST. LOUIS' COMPLAINT BECAUSE ST. LOUIS FAILED TO PRESENT COMPETENT EVIDENCE OF DAMAGES AS A MATTER OF LAW.

A. The Law Division Should Not Have Permitted St. Louis to Use Cost of Repair as a Measure of Diminution of Value.

B. Even if Cost of Repair was Used Properly as Evidence of Diminution of Value, The Law Division Erred in Permitting Boulton to Testify that the Cost of Repair Was Equal to or Less than the Diminution of Value.

POINT II

THIS COURT SHOULD ENTER JUDGMENT AGAINST ST. LOUIS NOTWITHSTANDING THE VERDICT BECAUSE THE COMPARATIVE NEGLIGENCE LAW BARS ITS RECOVERY.

A. Final Touch Preserved the Right to Ask for a Molded Verdict.

B. The Evidence Adduced at Trial Establishes a Principal/Agent Relationship Between St. Louis and Wolf, Through Which Wolf's Negligence is Imputed to St. Louis.

C. Imputation of Wolf's Negligence to St. Louis Bars St. Louis's Recovery as a Matter of Law.

POINT III

IN THE ALTERNATIVE, THIS COURT SHOULD ORDER A NEW TRIAL IN RESPECT OF PLAINTIFF, FINAL TOUCH, DOUG WOLF, AND JOHN BOULTON BECAUSE THE JURY'S VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE.

We affirm.

I.

The exterior walls of the house are made of large, glass panels that are supported by steel columns between the panels. The house comprises 36,000 square feet on two levels, each fourteen feet high; one level is below ground and one level is above ground. The house is approximately 400 feet long and between 15 and 65 feet wide at varying points. It took over three years to reach substantial completion.

As general contractor, Boulton hired approximately 150 suppliers and subcontractors. Although he was at the job site daily, he did not tell the subcontractors how to do their jobs but instead relied on their specialized expertise.

Wolf, as construction manager, was responsible for scheduling the work of the subcontractors and vendors. His contract required him to ensure that the subcontractors achieved satisfactory performance and quality. Like Boulton, he was at the construction site daily. The proverbial "buck," however, stopped with Boulton regarding project decision-making and payments to subcontractors.

The house has a flat rubber membrane roof, tapered to channel water off. A slope leads water to the roof drains that are located on the perimeter of the roof edge. Because the house was designed with no walls or columns inside, the roof drain pipes, which are three-inch PVC pipes, were placed in twenty of the exterior steel columns. The drain pipes run from the roof drains through the inside of ...


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