On appeal from Superior Court of New Jersey, Law Division, Special Civil Part, Essex County, Docket No. DC-029399-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: December 16, 2009
Before Judges Cuff and C.L. Miniman.
Defendant Freddie Williamson appeals from a November 14, 2008, judgment entered in the Special Civil Part awarding plaintiff Alice McDaniel $1800 in repair costs that she alleged were caused by defendant's gutters and leaders, which the judge found were defective and caused water infiltration into plaintiff's house, thus necessitating the repairs. We reverse and remand for a new trial.
Plaintiff filed a complaint on August 13, 2008, in which she alleged that defendant's house was damaged and that it caused damage to her house, which flooded her basement and required it to be painted and waterproofed, among other things. She sought $12,000 in damages. In his answer, defendant denied the allegations of the complaint and sought review of "bills, receipts, etc[.,] proving that [he was] responsible for the alleged complaints." He also asserted that the first he ever heard of any problem was two or three months before and that the problem was repaired by the same handyman plaintiff used.
The matter was tried to the bench on November 14, 2008. Plaintiff and defendant were sworn at the beginning of the proceeding and plaintiff testified that she lives in Newark next door to a two-family rental property owned by defendant. She testified that defendant's property has leaders and gutters in the back of his house that drain down the alleyway between their properties, which had been causing water damage to her property for many years. Plaintiff further testified that she had been fixing the water damage over the years. At one time she had to have her house painted; she had to have it waterproofed; and she had to have tubing put down to keep the water out.
Plaintiff submitted receipts for painting her flooded basement, rodent and pest treatments, waterproofing, tree damage, cleaning leaves out of the gutters, purchase of a hand shower, cleaning out the attic, and removing leaves from the front yard. As the judge reviewed these receipts with her, plaintiff withdrew many of them as unrelated to any water damage, but the judge did not either mark the remainder for identification or accept any into evidence.
Plaintiff also offered "a whole series" of photographs of the leaders and gutters on defendant's property. She admitted that she never had a water remediation company inspect the damage to her home and identify the source of the water. Rather, she took care of it herself. The judge did not give defendant an opportunity to cross-examine plaintiff.
During plaintiff's testimony, her son, Michael McDaniel, interjected testimony without having been sworn as a witness, acting almost as a representative of plaintiff, whose testimony seemed confused. At one point, the judge instructed him that he would have to be sworn if he was going to speak. Nonetheless, plaintiff's son continued to interject comments about the documentary evidence. At one point, the judge began to examine the son despite his warning that the son would have to be sworn. In response to the judge's question, the son stated he lived in his mother's home and they had a roofer who had worked on both properties who was available to testify. He also related statements made by defendant during mediation. The judge did not give defendant an opportunity to cross-examine plaintiff's son.
Plaintiff's witness, Dwayne Brown, was sworn, examined by the judge, and testified that he used to live at defendant's property. He worked doing general repairs, roofing, and siding- he was a home-improvement general contractor. His and plain-tiff's families became friends and he had many occasions to be in plaintiff's home. While walking on the alleyway between the properties during rain storms, he would observe water "coming down very hard and severe" between the two houses. The drainage from plaintiff's roof was to the front and back of her property because she had "an A-frame." The drainage from defendant's roof was to the right and left sides and the water that came off his roof went down the alleyway. He could not say from his observations where that water went after it hit the alleyway although he could see water flowing to the front because the ground is slightly pitched. However, when he went into plain-tiff's house after a rainfall, she would show him water in her basement on the side of her house next to the alleyway. The judge showed Brown one of the pictures supplied by plaintiff, which the judged marked P-1, and Brown testified that it depicted defendant's roof where it shed water onto the alleyway because of the way the roof was pitched.
Brown testified that he waterproofed the wall by the alleyway and fixed the sheetrock and window, but at the time he did so, they did not know the water infiltration was from defendant's property. However, as a result of later working on the roofs of both houses, he told plaintiff to contact defendant because the water infiltration problem was going to continue until defendant fixed his property. Plaintiff did not do so and eventually Brown contacted defendant and got them both together to discuss the problem. In response to a leading question from the judge, Brown testified that defendant's property had "inappropriate gutters and leaders to handle that water and the water would then land in the alleyway between the houses, and be released into the house of [plaintiff]." The judge then questioned Brown about some photographs, but did not mark them for identification. Brown testified that the water would run off out of the gutter. The judge did not give defendant an opportunity to cross-examine Brown.
The judge then examined defendant and he testified that Brown came to him in July or August 2008 and told him that "water was coming off [his] house too hard into the alleyway." Defendant asked Brown what the problem was and then told him to take care of it. Brown later reported that he had fixed the problem. Defendant denied knowing of any problem before that time. Defendant was not given an opportunity to offer any unsolicited direct testimony and plaintiff was not given an opportunity to cross-examine him.
The judge then questioned Brown further and he testified that he "realigned [defendant's gutter] and cleaned it out, unclogged the drainpipes and everything." Plaintiff then chimed in to say that she had spoken to defendant; he said he would come back and talk to her about it, which he did and said he was getting the handyman to fix it. The judge then told plaintiff that she had to show him "what monies were spent by [her] to correct and clear up this problem" and he did not have the paperwork to tell him the answer to that. Brown then offered to pick out the invoices from among the papers plaintiff brought and he apparently handed some papers to the judge which represented the work he did relative to the water infiltration. The judge did not mark any of those papers for identification or accept them into evidence. Plaintiff then confirmed that ...