January 20, 2010
ALICE MCDANIEL, PLAINTIFF-RESPONDENT,
FREDDIE WILLIAMSON, DEFENDANT-APPELLANT.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 those papers represented the money she paid to correct the water problem. The record does not indicate that the judge gave defendant an opportunity to review these papers or to cross-examine plaintiff or Brown about them.
The judge placed his decision on the record as follows:
Okay. The--essentially uncontroverted testimony is that water run off from a slanted roof and improper gutters and leaders caused accumulation of water on the ground, which found its release into the home of Mrs. McDaniel.
(Tape change, no overlap in recording) --physical damages to her home as a result therefrom, for which--from the source of which was inadequate gutters and leaders, as testified to by Mr. Brown, which was ultimately corrected.
But prior to being corrected, there was a defective drainage system off of Mr. Williamson's house, which served as the proximate cause of the damage suffered by Mrs. McDaniel, for which she expended monies, for which I have receipts testified to by Mr. Brown, the individual who did the repairs, and authenticate[d] by Mrs. McDaniel. I will enter a judgment in favor of the plaintiff accordingly, in the amount of $1800.
Defendant filed two motions on December 3, 2008, one for discovery and to amend the judgment and one for reconsideration. He pointed out that he had sought discovery in his answer, that it was not supplied, and that he was not permitted to question plaintiff or review any of the documents presented to the judge. He further contended that plaintiff had large trees on her property and that, if her gutters and downspouts were not cleaned often, the leaves would clog them and cause water seepage in the walls. He also pointed out that one of plaintiff's downspouts stopped at her second-floor roof and her basement door was on ground level, which would permit water seepage during rain- storms. He attached photographs of plaintiff's property that show the alleyway paved with concrete, the basement door at ground level, and a downspout ending on the first-floor roof at the rear of the house. He asserted that plaintiff had not proven that the condition of his property was the cause of any damage to hers. The motion for reconsideration was based upon the same assertions. The judge denied the motions, noting there was "no basis to reconsider the prior decision." This appeal followed.
Defendant contends on appeal that he was not given discovery after numerous requests and was not permitted to examine plaintiff, the other witnesses, or the evidence at the time of the hearing. Defendant also contends plaintiff did not prove that the alleged damages were caused by his property; the damages were more likely caused by her lack of maintenance of her own property. He also asserts the judge erred in allowing plaintiff's son to testify without being sworn and in denying his motion for reconsideration. Further, he argues that the judgment should not have been granted prior to completion of discovery.
We need not address the merits of the judge's fact-findings because the procedural errors require us to vacate the judgment and remand for a new trial. These errors are the judge's fail- ure (1) to mark documents for identification and formally accept them into evidence; (2) to give defendant an opportunity to cross-examine plaintiff and the other witnesses; (3) to permit defendant to examine the evidence at the time of the hearing; (4) to allow defendant to offer testimony beyond the scope of the judge's questions to him; and (5) to allow plaintiff's son to testify without being sworn.
We recognize that defendant did not raise any of these issues during the trial. Ordinarily, we "will decline to consider questions or issues not properly presented to the trial court when an opportunity for such presentation is available 'unless the questions so raised on appeal go to the jurisdiction of the trial court or concern matters of great public interest.'" Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973) (quoting Reynolds Offset Co. v. Summer, 58 N.J. Super. 542, 548 (App. Div. 1959), certif. denied, 31 N.J. 554 (1960)). However, we are satisfied that defendant did not have an adequate opportunity to raise these issues during the trial because he was never given an opportunity to freely speak.
We begin our review of the conduct of the proceedings with Rule 1:2-3, which provides, "The verbatim record of the proceedings shall include references to all exhibits and, as to each, the offering party, a short description of the exhibit stated by the offering party or the court, and the marking directed by the court." We have said that "the trial judge has the ultimate responsibility of conducting adjudicative proceedings in a manner that complies with required formality in the taking of evidence and the rendering of findings." N.J. Div. of Youth & Family Servs. v. J.Y., 352 N.J. Super. 245, 264 (App. Div. 2002) (noting, among other things, the trial judge's review and consideration of documents "without any identification for the record"). The failure to identify documents for the record "not only violate[s] basic rules of trial practice, R. 1:2-3, but inhibit[s] the appellate process by depriving the appellate court of a complete record on appeal." Ibid. Here, we have no record of the documents on which the judge relied in making his findings--no identifying markings, no description of any documents, and no documents. We only know that documents were offered by plaintiff and her witnesses. Review of the merits of the judge's fact-findings is thus impossible.
The judge also committed a fundamental error in failing to give defendant an opportunity to cross-examine plaintiff and her witnesses. Justice Albin in his concurring opinion in Oberhand v. Director, Div. of Taxation, 193 N.J. 558, 578 (2008), observed, Our Court has recognized that "'[f]undamental fairness is a doctrine that is an integral part of due process, and is often extrapolated from or implied in other constitutional guarantees.'" Doe v. Poritz, 142 N.J. 1, 109 (1995) (quoting State v. Yoskowitz, 116 N.J. 679, 731 (1989) (Handler, J., dissenting)). New Jersey's doctrine of fundamental fairness, which is encompassed within the protections of Article I, Paragraph 1 of our State Constitution, "'serves to protect citizens generally against unjust and arbitrary governmental action.'" Id. at 108 (quoting State v. Ramseur, 106 N.J. 123, 377 (Handler, J., dissenting)).
"It has long been held that cross-examination is the 'greatest legal engine ever invented for the discovery of truth.'" State ex rel. J.A., 195 N.J. 324, 342 (2008) (quoting California v. Green, 399 U.S. 149, 158, 90 S.Ct. 1930, 1935, 26 L.Ed. 2d 489, 497 (1970) (internal quotation omitted)); see also State v. Castagna, 187 N.J. 293, 309 (2006); Peterson v. Peterson, 374 N.J. Super. 116, 124 (App. Div. 2005) ("[C]ross-examination is the most effective device known to our trial procedure for seeking the truth." (internal quotations omitted)).
We addressed this issue in the context of a workers' compensation case:
Preliminarily, we observe that a workers' compensation judge is not strictly bound by rules of evidence and procedure but must respect and insure due process and fundamental rights of litigants. Jasaitis v. City of Paterson, 48 N.J. Super. 103, 109 (App. Div. 1957), aff'd, 31 N.J. 81 (1959). These fundamental rights entitle all parties in workers' compensation proceedings to pre- sent testimony in critical areas such as medical issues involving causation. Vaughn v. State, 151 N.J. Super. 251, 253-254 (App. Div. 1977). Inherent in this right is not only the ability to present medical testimony but the right to cross-examine adverse experts. Paco v. Am. Leather Mfg. Co., 213 N.J. Super. 90, 93 (App. Div. 1986).
Cross-examination is perhaps the single, most important tool of the trial lawyer; the effective use of this tool in the hands of the skilled examiner often is the difference between victory and defeat in the court room. Professor Wigmore said this of cross-examination:
"For two centuries past, the policy of the Anglo-American system of evidence has been to regard the necessity of testing by cross-examination as a vital feature of the law. . . . [I]t [cross-examination] is beyond any doubt the greatest legal engine ever invented for the discovery of truth." 5 Wigmore, Evidence § 1367 (Chad-bourn rev. 1974) at page 32. See also Georgis [v. Scarpa], 226 N.J. Super. [244,] 256 [(App. Div. 1988)]; Perry v. Crunden, 79 N.J. Super. 285, 292 (Law Div. 1963). [Waters v. Island Transp. Corp., 229 N.J. Super. 541, 547 (App. Div. 1989).]
Indeed, the Supreme Court has observed, "Fundamentally, due process requires an opportunity to be heard at a meaningful time and in a meaningful manner." Doe, supra, 142 N.J. at 106. See also Gonzalez v. Safe & Sound Sec. Corp., 185 N.J. 100, 114 (a party's due process rights include the right to present and cross-examine a witness) (citing Paco, supra, 213 N.J. Super. at 93). The Special Civil Part judge violated this principle when he did not afford defendant an opportunity to cross-examine the witnesses against him. We are also satisfied that the judge violated principles of fundamental fairness when he did not give defendant an opportunity to freely testify on his own behalf and to inspect the documents plaintiff brought to the proceeding.
We turn to the judge's failure to require plaintiff's son to be sworn prior to offering any testimony. Our Rules of Evidence provide, "Before testifying a witness shall be required to take an oath or make an affirmation or declaration to tell the truth under the penalty provided by law." N.J.R.E. 603. We have observed, While the trial judge may exercise broad discretion in his or her control of the proceedings, as we noted in Division of Youth and Family Services v. J.Y., 352 N.J. Super. 245, 264 (App. Div. 2002), "the trial judge has the ultimate responsibility of conducting adjudicative proceedings in a manner that complies with required formality in the taking of evidence and the rendering of findings." [Div. of Youth & Family Servs. v. G.M., 398 N.J. Super. 21, 38 (App. Div. 2008) (finding presentation of facts through representations by counsel inadequate and requiring a plenary hearing at which sworn witnesses testified), aff'd in part and modified in part, 198 N.J. 382 (2009).]
The judge was clearly cognizant of this requirement, but nonetheless did not enforce it. We cannot determine whether the judge relied on any portion of the son's statements because the judge also failed to comply with Rule 1:7-4(a), which requires a judge to make findings of fact and conclusions of law "in all actions tried without a jury." R. 1:7-4(a). "Failure to perform that duty constitutes a disservice to the litigants, the attorneys, and the appellate court." Curtis v. Finneran, 83 N.J. 563, 569-70 (1980) (quotations omitted). Moreover, "[n]aked conclusions do not satisfy the purpose of R. 1:7-4." Id. at 570. Yet, that is precisely what the judge did here: recite naked factual conclusions without any conclusions of law at all. As a result, the judgment is vacated and the matter is remanded for a new trial. Plaintiff shall be required to provide defendant with all documents on which she may rely at the time to trial; defendant shall do the same.
Reversed and remanded for proceedings consistent with this opinion.
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