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Miller v. Kentos


November 10, 2010


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

Per curiam.


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 the problem because it is "completely not [in] the same vicinity" as the bathroom.

Defendant also disputed the estimates which said that the valley flashing was the problem, because he had replaced it completely. Again, however, defendant acknowledged that "[t]here still is the same leak."

Defendant further challenged the amounts of the various estimates, characterizing two as "super, really high estimates," which he believed were provided by plaintiff's "family members." He acknowledged that "the lower estimates are more in line to replace the ridge vent and both valleys[,]" but again protested that neither item needed to be replaced.

The court rendered its decision at the conclusion of the testimony. It found no dispute that the parties had entered into a contract for an addition and "implicit in [that contract] was . . . the addition would not create any leaks." The court also found not "much dispute that there have been leaks over a long period of time, which [defendant had] attempted to remedy." The court noted that plaintiff "has a right at some time to say . . . I have to try to get remedies from somebody else[,]" and to sue defendant for damages because there was no other way "to get relief[,]" and concluded that it was "pretty evident that there is a continuing problem that has not been remedied."

In assessing damages, the court noted that plaintiff's estimates "are kind of all over the place." Plaintiff agreed. Nonetheless, the court concluded that "fair damages, considering all the information [plaintiff] has given me . . . is the sum of $2,000."

On appeal, defendant contends that the estimates "constituted inadmissible hearsay[,]" and that he did not have the opportunity to object to the admissibility or to challenge the contents of those estimates. Defendant further contends that plaintiff's failure to offer expert evidence was fatal to her case.

We concur with defendant's challenges to plaintiff's estimates in connection with the issue of damages. We are satisfied that the trial court did not provide an adequate explanation as to how it arrived at the amount awarded. In fact, the court's only substantive comment regarding those estimates was that they were "all over the place."

This aspect of the court's decision does not comply with Rule 1:7-4, which requires the court to "find the facts and state its conclusions of law" in every opinion or decision. The failure to comply with that rule "'constitutes a disservice to the litigants . . . and the appellate court.' Naked conclusions do not satisfy the purpose of R. 1:7-4." Curtis v. Finneran, 83 N.J. 563, 569-70 (1980) (citation omitted). We are, therefore, constrained to reverse for further proceedings with respect to damages.

We reject defendant's contention that the lack of expert evidence was fatal to plaintiff's claim. As the trial court found, it is undisputed that defendant built the entire addition, including the roof, and that all leakage problems occurred in the addition. Therefore, whatever defects in the roof construction caused those leaks are defendant's responsibility.

"Experts are not needed to establish the appropriate professional standards of care where either the doctrine of res ipsa loquitur or the doctrine of common knowledge applies." Kelly v. Berlin, 300 N.J. Super. 256, 265 (App. Div. 1997). "The doctrine of res ipsa loquitur permits an inference of defendant's negligence 'where (a) the occurrence itself ordinarily bespeaks negligence; (b) the instrumentality was within the defendant's exclusive control; and (c) there is no indication in the circumstances that the injury was the result of plaintiff's own voluntary act or neglect.'" Buckelew v. Grossbard, 87 N.J. 512, 525 (1981) (quoting Bornstein v. Metro. Bottling Co., 26 N.J. 263, 269 (1958)). Here, the recurring leaks "bespeak[] negligence;" the "instrumentality[,]" namely the construction of the addition, "was within . . . defendant's exclusive control;" and there is no indication that plaintiff contributed to "the injury." Ibid.

"The common knowledge doctrine applies when '[t]he facts of a given case [are] such that the common knowledge and experience possessed by lay[persons] . . . enable a [factfinder] to conclude, without expert testimony, . . . that a duty of care has been breached.'" Kelly, supra, 300 N.J. Super. at 265 (quoting Klimko v. Rose, 84 N.J. 496, 503-04 (1980)).

We are satisfied that both of these doctrines defeat defendant's contention regarding the need for expert testimony here. Therefore, we affirm the judgment with respect to liability.

Affirmed in part; reversed and remanded in part for further proceedings in conformity with this opinion.

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