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APS Contractors, Inc. v. School District for the Chathams

April 3, 2009

APS CONTRACTORS, INC., PLAINTIFF-RESPONDENT/ CROSS-APPELLANT,
v.
SCHOOL DISTRICT FOR THE CHATHAMS, DEFENDANT-APPELLANT/CROSS-RESPONDENT.



On appeal from Superior Court of New Jersey, Law Division, Morris County, Docket No. L-111-05.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued March 3, 2009

Before Judges Graves, Grall and Ashrafi.

Defendant School District for the Chathams appeals a jury verdict in favor of plaintiff APS Contractors, Inc. and denial of its post-trial motions. Plaintiff APS Contractors cross-appeals denial of its motion for prejudgment interest. We affirm the jury verdict and the post-trial rulings.

Plaintiff, a general contractor, was awarded four contracts totaling more than five million dollars to construct additions and renovations at five public schools in the Chatham School District. Upon completion of the work, plaintiff claimed that defendant owed a balance of $1,685,115 after accounting for all adjustments and change orders. Defendant School District disputed the amount asserting that plaintiff's calculation included large sums for change orders that had not been approved in accordance with the contract terms. The School District also claimed it was owed credits for corrective work, negligent workmanship, and delay damages.

Plaintiff filed suit alleging breach of contract and quantum meruit causes of action. Defendant School District brought counterclaims for breach of contract and negligence. The case was tried before a jury in January 2008, and the jury returned a verdict in favor of plaintiff APS Contractors for $1,450,000. Defendant moved for a new trial or what it called remittitur. Plaintiff filed a cross-motion for prejudgment interest. Both motions were denied by the trial court.

On appeal, defendant School District raises five arguments:

I. THE TRIAL COURT ERRED IN EXCLUDING DEFENDANT'S SUPPLEMENTAL EXPERT REPORT

II. THE TRIAL COURT ERRED BY EXCLUDING EVIDENCE OF DEFENDANT'S DAMAGES FOR PROFESSIONAL SERVICES AND ADDITIONAL CORRECTIVE WORK

III. THE JURY AWARD ON PLAINTIFF'S CLAIM FOR UNAPPROVED CHANGE ORDERS IS CONTRARY TO LAW AND AGAINST THE WEIGHT OF THE EVIDENCE

IV. THE COURT'S CHARGE TO THE JURY ON THE ISSUE OF CONTRACT MODIFICATION WAS ERRONEOUS AND PREJUDICIAL TO DEFENDANT

V. THE TRIAL COURT ERRED BY FAILING TO RECOGNIZE THE EXCESSIVENESS OF THE JURY'S DAMAGES AWARD AND GRANTING REMITTITUR

We reject all of these arguments.

I.

The trial court suppressed some of the proposed testimony of the School District's expert witness because a report summarizing that testimony was not provided in discovery until more than five months after the close of discovery and after trial dates had been set. The discovery period was extended three times and finally expired on March 2, 2007, without a further request for extension. Defendant School District had served its initial expert report a month earlier, in February 2007. In April 2007, at oral argument on cross-motions for summary judgment, the judge apparently commented that more expert evidence was needed. Consequently, defendant undertook to prepare a supplemental expert report, but defense counsel did not seek leave from the court to re-open discovery or to provide a late expert report.

Defendant served its supplemental expert report on August 15, 2007. By that time, two trial dates had been set. Plaintiff objected to the late discovery. Defendant still did not seek intervention of the court by moving to re-open discovery or even by complying with the requirements of Rule 4:17-7 pertaining to amendment of interrogatory answers after the discovery period. When trial began on January 14, 2008, plaintiff moved to suppress the proposed expert testimony disclosed only in the late supplemental report. The trial court granted plaintiff's motion. Defendant contends that the court's ruling reduced its potential counterclaim damages by $1,279,466, and consequently it was reversible error.

This court will "generally defer to a trial court's disposition of discovery matters unless the court has abused its discretion or its determination is based on a mistaken understanding of the applicable law." Rivers v. LSC P'ship, 378 N.J. Super. 68, 80 (App. Div.), certif. denied, 185 N.J. 296 ...


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