On appeal from Superior Court of New Jersey, Law Division, Special Civil Part, Monmouth County, No. SC-3394-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 22, 2009
Before Judges Wefing and Messano.
Following a trial in the Special Civil Part, the trial court found in favor of plaintiff and entered a judgment for $1578 against defendant.*fn1 Defendant has appealed from that judgment. After reviewing the record in light of the contentions advanced on appeal, we reverse.
Plaintiff testified that at the end of June 2008 her 1997 Toyota Tercel automobile broke down on the Garden State Parkway, and she arranged to have it towed to defendant's repair shop. The repair slip, dated July 2, 2008, indicates that her eleven-year-old automobile had more than 150,000 miles on its odometer. The handwritten notation on the slip describes the work done as "Replace the therm. Valve under the Throttle Body." The slip records a charge of $329.98, the greatest portion of which ($233.39) was for parts. It also shows that plaintiff paid a flat $325 for the work performed.
Plaintiff also presented at trial a second repair slip, dated July 16, 2008, for $1578.08. The copy of this slip contained in the record before us is not entirely legible. It refers to disassembling the top of the engine, removing the piston connecting rods, cleaning the pistons, reassembling the engine and replacing the radiator.
Plaintiff testified that she picked up her vehicle after this last work was performed, and it broke down again. She again had it towed to defendant. She said she was told the car needed a new crank shaft. She was unwilling to invest any more money into a car that old with such high mileage. She donated the car to charity and bought a replacement vehicle. She then sued defendant, alleging that the work done on her car had not been done correctly.
Kotsines testified that the first time the car broke down, plaintiff drove it until all the engine coolant had leaked out, necessitating the second, larger repair. He said that several days after plaintiff picked up the car, she called the shop to report that the oil light had come on. She was told to stop driving immediately. Instead, she drove the car from Englishtown to his shop in Asbury Park, damaging the crank shaft.
Plaintiff's complaint clearly sounded in negligence, but she had no expert to testify that the work was done incorrectly. The trial court clearly pointed out this deficiency to plaintiff:
It appears that you're trying to say, is that he either didn't do the work or he did it improperly. Your testimony can't prove that. You need to have somebody that has looked at the car, that is an expert, another auto repair person that looks at it and says, you know what, he never did this gasket or this or that or the other. Or look what he did, he didn't put this on properly, he didn't do it right. You need expert testimony to prove that. I don't know that as a layperson.
Common sense and fairness, right? I can understand how you're like totally aggravated when you put $2,000 into a car. But the car is an old car to begin with. It's very possible that it couldn't be fixed, right? I don't know that, and nobody is here that can testify for you to tell me that, or that he did the work improperly. And that's the problem with your case.
At that point, the trial court veered direction. After posing some additional leading questions to plaintiff, the court concluded that plaintiff had brought her vehicle to defendant, asked defendant to "fix" it, and defendant said he would. Based upon the subsequent breakdown of the vehicle, the court concluded there had been a breach of contract and entered judgment for plaintiff.
We are satisfied this judgment cannot stand. Plaintiff pled a cause of action for negligence, and defendant came to court to defend against that allegation. The trial court had no basis to sua sponte amend plaintiff's cause of action and enter judgment on the basis of a theory never pled or argued. H.E.S. v. J.C.S., 175 N.J. 309, 322 (2003) (noting that "there can be no adequate preparation where the notice does not reasonably apprise the party of ...