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Gaul v. Plumbing

December 5, 2007

JOSEPH GAUL, PLAINTIFF-RESPONDENT,
v.
MR. ROOTER PLUMBING, DEFENDANT/THIRD-PARTY PLAINTIFF-APPELLANT,
v.
EMILY GAUL, THIRD-PARTY DEFENDANT.



On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. DC-3333-06.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted October 31, 2007

Before Judges Parker and Lyons.

In this Special Civil Part case, defendant/third-party plaintiff Mr. Rooter Plumbing appeals from a judgment entered on January 30, 2007 awarding him $704.83 from third-party defendant Emily Gaul, but ordering him to pay $1,500 to plaintiff Joseph Gaul. We affirm in part and reverse in part.

This action arose out of an accident that occurred on December 30, 2004. On that day, while third-party defendant Emily Gaul was driving a car purchased by her father, Joseph Gaul, and given to her as a gift, she hit the rear end of Mr. Rooter's "low boy" truck parked on the right side of a two-lane road. Although the truck extended into the lane of travel, there were no cones, reflectors or markings around the truck other than the reflectors on the truck itself. Emily's car was damaged on the left front side, however, rather than the right front as might be expected.

Emily, who was seventeen and driving "for at least a couple of weeks" at the time, left the scene and did not report the accident. She was subsequently charged with leaving the scene of an accident with property damage. N.J.S.A. 39:4-129(d). That charge was later amended to N.J.S.A. 39:4-97.2, operating a motor vehicle in an unsafe manner and Emily pled guilty to the offense in Chester Township Municipal Court.

At trial before the Special Civil Part, Joseph Gaul, who is an attorney and Emily's father, argued on her behalf. After hearing the testimony and the arguments, the trial court found that Mr. Rooter was thirty percent negligent because he failed to post cones, reflectors or any other device to warn that the vehicle, which was parked on the road overnight, extended into the lane of travel. Emily, as the driver who was principally responsible for making the required observations of things that were obviously in her path, was found seventy percent negligent.

The trial judge determined that Emily's vehicle was damaged to the extent of $5,000, and assessed seventy percent against Emily, requiring her to pay her father $3,500 for the damage to her vehicle, and thirty percent against Mr. Rooter, requiring him to pay $1,500 to Joseph for damage to Emily's vehicle. The court also rendered judgment in favor of Mr. Rooter against Emily for $704.83. Thus, Mr. Rooter, who was found only thirty percent negligent, must pay $796.17 and Emily, who was seventy percent negligent, benefited from the trial judge's award of damages to her father for the damage to her vehicle. In essence, the judgment rendered Emily whole - albeit she was seventy percent negligent.

We are as confused by the outcome as we are by the pleadings and the "facts" of this case. The complaint was filed on February 23, 2006 by Emily's father, Joseph Gaul, who signed the complaint as Emily's attorney. The complaint was captioned with Emily as plaintiff and sought damages to "plaintiff's vehicle" for Mr. Rooter's alleged negligence.

Trial began on June 6, 2003 with Joseph appearing and representing Emily as plaintiff. During the trial, Joseph stated that he paid for the damage to Emily's car but the judge properly disallowed the statement because Joseph was Emily's attorney and could not testify as a witness. Thus, there was no evidence of the alleged damages. The judge then, at Joseph's suggestion and over defendant's objection, took the extraordinary step of calling the auto body mechanic on the telephone from the courtroom and having the mechanic testify telephonically as to the amount of damages.

Defendant represents in his brief that some time after the June 6 trial date, "it was learned that plaintiff, Emily Gaul, was not the 'registered' owner of the vehicle so the court permitted the pleadings to be amended." There is nothing in the record before us, however, to reflect a motion for leave to amend or an order granting that motion. On June 30, 2006, Mr. Rooter filed a third-party complaint captioned with Joseph as plaintiff and Emily as third-party defendant. Emily filed an answer to the third-party complaint on July 21, 2006 and signed it pro se.

On December 20, 2006, the trial continued with Joseph as plaintiff and Emily as third-party defendant - and Joseph apparently representing himself and Emily. The trial continued on January 30, 2007 with Joseph, again, apparently representing himself and Emily.

The evidence is equally confusing to us. Nowhere in the record is there any proof of who owned the vehicle on December 30, 2004, when the accident occurred. The evidence indicated that Joseph purchased the vehicle on December 23, 2004 and gifted it to Emily for Christmas, but no proof of ownership was ever presented. On August 24, 2006, while the trial was still pending, defendant moved to dismiss the complaint for failure to state a claim on the ground that Emily's vehicle was uninsured at the time of the accident. The declarations sheet for Emily's Allstate policy showed that the policy ...


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