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Miller v. Kentos

November 10, 2010

MADELAINE F. MILLER, PLAINTIFF-RESPONDENT,
v.
JOSEPH M. KENTOS, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Special Civil Part, Atlantic County, Docket No. SC-2270-09.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted October 25, 2010

Before Judges Grall and LeWinn.

Defendant appeals from the November 6, 2009 judgment of the Special Civil Part awarding damages of $2000 plus costs to plaintiff in a construction dispute. We affirm the trial court's findings with respect to liability. We reverse, however, for a new trial on damages.

The evidence adduced at trial may be summarized as follows. Plaintiff hired defendant, "a state licensed building and remodeling contractor," to build an addition to her home in 2002. Following completion of that construction in 2003, problems developed with the roof, resulting in leaks on several occasions.

Defendant repaired the roof three times between 2007 and the time of trial in 2009. Plaintiff testified that, notwithstanding the repairs, she continued to experience leaks during rainfalls. The leaks occurred in a closet and a bathroom.

Plaintiff obtained estimates from four roofers and submitted those estimates to the court. Defendant acknowledged that he had had an opportunity to review the estimates during a pre-trial mediation session. These documents were not moved into evidence at trial, however, and thus are not part of the record before us.

Defendant testified that he completed work on plaintiff's addition in July 2003, and she received a certificate of occupancy shortly thereafter. Plaintiff first called him to report a problem with roof leakage in March 2007. Defendant went to the premises and observed a stain in the bathroom ceiling; he "went up on the roof over that spot and . . . applied roofing caulk just to that area, . . . figuring that would take care of the problem."

Plaintiff called defendant a year later, in April 2008, stating that the stain "had reappeared." Again defendant responded, "applied more roof caulk over a wider area," adding that was all he did "because it seemed to [him] that the roof was leaking only very intermittently, possibility [sic] when the wind only blew in a certain direction."

Plaintiff called defendant a third time, in June 2009, stating that the leak "had returned." At that time plaintiff informed defendant that "there was a little water in the closet, which was right next door to the bathroom. So . . . the leak had apparently grown at that point in time."

On this occasion, defendant "tore all of the shingles off of that section of the roof[,] . . . removed the valley flashing,*fn1 [and] removed the water shield that's installed underneath it." He "replaced all of that . . . . [He] reinstalled the existing shingles so the color would match, and that area was finished again."

Plaintiff called defendant again in September 2009, stating that the leak had once again reappeared. Defendant offered to "come out and take a look at it," but plaintiff said she had "brought another roofing company out to give estimates and . . . that they said that it was done improperly." It appears that the estimates identified the ridge vent*fn2 and the valley flashing as the sources of the problem.

Defendant challenged the estimates plaintiff presented, claiming that the ridge vent had been properly installed and "has been up there for over five years now. It has not leaked. It's been working perfectly fine." Defendant acknowledged that "[s]omething's leaking," but claimed that the ridge vent was not ...


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