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Business Computer Resources, Inc. v. Great Wall of Tinton Road

August 10, 2009

BUSINESS COMPUTER RESOURCES, INC., PLAINTIFF-RESPONDENT/ CROSS-APPELLANT,
v.
GREAT WALL OF TINTON ROAD, INC., I/P/A GREAT WALL CHINESE FOOD, DEFENDANT-APPELLANT/CROSS-RESPONDENT.



On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Docket No. L-380-07.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued April 30, 2009

Before Judges Parrillo, Lihotz and Messano.

Plaintiff Business Computer Resources, Inc., a computer services and supply company, sued defendant, Great Wall of Tilton Road, Inc., i/p/a Great Wall Chinese Food, a neighboring business in the strip mall both shared, alleging it had sustained property damage as the result of defendant's negligently-caused fire. During trial, over defendant's objection, the judge admitted into evidence two documents--one a computer-generated spreadsheet, prepared by plaintiff's principals, of inventory, fixtures and other personal property lost or damaged in the fire; the other, a work estimate from a fire cleaning and restoration company, Servpro. Plaintiff, who retained a public adjuster to evaluate its loss and negotiate with its insurer, requested the judge to instruct the jury that the adjuster's commission was a recoverable element of its damages. The judge refused.

Defendant stipulated as to liability. The jury concluded that plaintiff had not failed to mitigate its damages, and awarded it $52,000 in damages, to which the judge added prejudgment interest and allowable costs. Final judgment was entered in the amount of $56,620 on June 10, 2008.

Defendant moved for a new trial or remittur. It argued that the spreadsheet was hearsay and not subject to any exception under our evidence rules. Defendant further contended that the values for the inventory, fixtures, and property contained on the spreadsheet were "replacement values" and not "actual cash values." As to the estimate from Servpro, defendant argued that it was also inadmissible hearsay because no witness from that company ever testified at trial.

At oral argument on the motion, regarding the Servpro document, the judge noted that plaintiff's "adjuster testified with respect to the estimate" which "he found to be reasonable . . . given the amount of damage that was done to the premises." In a short written opinion, the judge characterized the spreadsheet as a "summary of damages suffered by [p]laintiff," to which plaintiff's principals had also testified. He concluded the document was not hearsay. Although he did not directly address defendant's replacement value versus actual value argument, the judge nevertheless found the jury's verdict was supported by the evidence, and was far less than the "$79,000 in damages" that plaintiff had sought. The judge denied defendant's motion and this appeal followed.

Before us, defendant reiterates the arguments it raised below. Additionally, plaintiff cross-appeals, arguing that the judge erred in refusing to permit the jury to consider its adjuster's commission as an element of its damages. We have considered these points in light of the record and applicable legal standards. We affirm.

I.

The testimony at trial revealed that plaintiff was formed by Cindy Rollins and her brother, Rick Sheehan. On April 5, 2006, a fire broke out at defendant's restaurant and spread to surrounding stores. When Rollins arrived at her store in the early morning hours, she found its doors opened, and soot and water everywhere.

Plaintiff retained Gregory Coe of Young Adjustment as its public adjuster. Coe requested Sheehan prepare a list of all inventory and equipment damaged in the fire, with the corresponding fair market value of each item. Rollins testified that "[d]ue to the nature of [her] business," she did not maintain a current inventory of every item in the store. She and her fellow workers prepared a spreadsheet containing hundreds of line items of inventory by going "through each and every box" in the store after the fire.

In order to assign "a fair market value" to each item, Rollins "went through the process of going to [her] distributors[] [and] hitting different internet sites." She testified that "[s]ome of the parts were obsolete," meaning they could no longer be purchased from her suppliers. But, she explained, "they're still valuable because the equipment is still out in the market and many of our customers rely on us keeping those kinds of parts to fix the older printers or older computers." In preparing the spreadsheet, Rollins included a column denoted "Value Source," which provided an internet link to the source she used for each item's price. Thus, by clicking on the link, one could see the purchase price for each item listed. She included the manufacturer and part number assigned to each item in separate columns on the spreadsheet. The spreadsheet ultimately comprised nineteen pages and totaled $160,608 in alleged losses and damages to inventory, fixtures, and personal property.

Defendant objected to the spreadsheet as hearsay for the first time as Rollins testified. Plaintiff's counsel countered that he intended to have Rollins identify how the spreadsheet was prepared, and then "offer the list into evidence." The judge overruled the objection for the moment, noting, "[w]hen you have inventory that's been damaged how else do you [prove it] except itemize it?"

Rollins explained that plaintiff did not submit an insurance claim for $160,608. Both she and Coe, who testified later, noted that the actual claim, $137,343, reflected a discount applied to 1) furniture and fixtures in the store that were used; and 2) items that were sealed in boxes and might not have been damaged by soot. In somewhat confusing testimony, Rollins testified that the prices on the spreadsheet reflected plaintiff's "cost to replace" the inventory. At other points, she described the "current value" of an item as "how much money [she could] get for it." During cross-examination, Rollins stated, "I can tell you that these prices [on the spreadsheet] are the price[s] that we would have to pay to replace what was sitting in my store."

Rollins also testified that plaintiff elected to accept $93,168 from its insurance company because it needed to continue its business operations and believed it could pursue defendant for the difference. She explained that Young Adjustment was paid a ten percent commission directly from the insurance proceeds.*fn1

Sheehan testified that ninety percent of plaintiff's total inventory was discarded after the fire. He contacted Servpro to obtain a proposal for rehabilitation and repair work, specifically the cleaning and replacement of the store's drop ceiling. Sheehan testified that Servpro performed some of the work for which plaintiff paid $3,052.67, and identified the company's written estimate for additional necessary work in the amount of $15,062.72. Sheehan further testified about the costs associated with plaintiff's replacement of its carpet, and other repair work that was performed by other contractors.

Coe testified regarding his efforts on plaintiff's behalf. He had worked as a public adjuster for decades, and was very familiar with the values and costs associated with rehabilitating fire-damaged property. Among other things, Coe reviewed the Servpro proposal, testified that reviewing such estimates were part and parcel of his work as an adjuster, and that based upon his familiarity with plaintiff's store and the fire damage, this particular proposal was reasonable for the work that was necessary.

At the conclusion of the testimony, plaintiff moved to admit the spreadsheet and the Servpro estimate into evidence. Referencing his earlier colloquy with counsel in which he had described the spreadsheet as a "recapitulation," "a summary," and a "digest" of Rollins' testimony, the judge noted "the document itself is not evidence, but . . . is [of] assistance to the jury in understanding the nature of the claim." Nevertheless, he admitted the spreadsheet into evidence as an exhibit, indicating he would give the jurors a limiting instruction. As to the Servpro estimate, the judge ruled

I'm going to permit the document to go to the jury, and the reason I'm doing it is several fold. First, [defense] counsel has had the document for a considerable length of time. Secondly, there was testimony . . . and having had it a considerable length of time [defendant was] certainly free to ...


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