On appeal from Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-2149-04.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 16, 2008
Before Judges Skillman, Graves and Grall.
Defendant J.C.C. Construction Corp. (J.C.C.) appeals from a final judgment in favor of plaintiff Marya Thomas Coburn. Coburn sought damages for failure of a retaining wall situated on property that is the site of a new home she purchased from J.C.C. A jury found that J.C.C. breached the contract of sale and violated the Consumer Fraud Act (CFA), N.J.S.A. 56:8-1 to -20. The trial court reduced damages and entered judgment against J.C.C. in the amount of $403,652.93 - $89,250 for breach of contract and violation of the CFA, which was trebled, and $135,902.93 for counsel fees and costs, N.J.S.A. 56:8-19. Prior to trial, Coburn accepted $19,000 in settlement of a claim asserting negligence by the engineering firm that prepared the plot plan for J.C.C., defendant John E. Collazuol and Associates, P.C.
On appeal J.C.C. claims the evidence was not adequate to establish a violation of the CFA, alleges plain error in the jury charge, and contends the damage award for breach of contract is excessive. Although the evidence is adequate to establish a violation of the CFA, the jury charge was clearly capable of leading to a verdict based on insufficient grounds; a new trial on that claim is required. Moreover, the contract damages provide compensation in excess of the amount needed to make Coburn whole; therefore, the award must be reduced.*fn1
The evidence relevant to J.C.C.'s liability was as follows. The owners of J.C.C., Richard and James Venetsanos, demolished an existing residence on a lot in Englewood Cliffs and built a new house and the retaining wall that is the subject of this dispute. The house, rear-yard, and a portion of the driveway and side-yards are situated on an elevated area of the lot bordered on the rear and both sides by the retaining wall.
After the new house and retaining wall were built, Coburn visited the property, which J.C.C. was offering for sale. She spoke with Richard Venetsanos, and he told her the house was well-built with good materials. They did not discuss the retaining wall, and Coburn knew nothing about the plot plan prepared by Collazuol. Coburn purchased the property for $1,585,204 in March 2002. She shares the residence with Donald E. Wilson and his wife.
By summer 2002, Wilson noticed that the gates Coburn had installed at the driveway were uneven and, on further inspection, saw that the retaining wall was leaning. The Venetsanos came to look at the wall, but they either did not see or refused to acknowledge a problem.
In February 2003, Martin Spence and Michael McNally, both civil engineers who were qualified as experts at trial, inspected the retaining wall. They noted that the section of the wall along the rear of Coburn's property was bowed and leaning away from the soil it retained. The engineers explained that when a retaining wall leans away from the load, it has failed and continues to fail over time until it collapses.
McNally obtained the plot plan prepared by Collazuol and arranged for an excavator, Kenneth Van Wyck, to expose the area between the wall and the soil it retained and a seepage pit shown on the plot plan. After Van Wyck dug test holes along the rear portion of the wall and excavated to uncover the seepage pit shown on the plot plan, a portion of the rear side of the wall collapsed.
The excavation disclosed that the seepage pit had not been built. The purpose of the seepage pit is drainage; water remaining in the soil behind a retaining wall puts pressure on the wall and pushes the wall forward.
Instead of building the seepage pit, J.C.C. installed drains in the lawn that were connected to a pipe and a storm sewer. Because the drain openings were higher than the level of the grass, surface water could not reach the drain unless it pooled and formed a one-inch-deep puddle of water.
The test holes dug along the rear side of the retaining wall disclosed structural features not observable from the front of the wall. The plot plan called for placement of a twelve-inch wide band of clean, crushed stone along the entire wall from the base to the top and between the wall and the soil behind it. If installed, this layer of crushed stone would serve to drain water from behind the wall. The engineers found only a minimal amount of stone behind Coburn's wall. The stone that was there was mixed with silty, clay-like soil that was retaining moisture. The only crushed stone was near the bottom of the wall and a drainage pipe. The pipe had been damaged by the weight of moist soil ...