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Estok Corp., T/A Middlesex Trenching Co v. Bill Westervelt Asphalt Paving

April 29, 2011

ESTOK CORP., T/A MIDDLESEX TRENCHING CO., PLAINTIFF-APPELLANT,
v.
BILL WESTERVELT ASPHALT PAVING, INC., DEFENDANT-RESPONDENT.



On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-6792-07.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued January 11, 2011

Before Judges Carchman and Messano.

Following a bench trial, the judge entered judgment dismissing plaintiff Estok Corp., t/a Middlesex Trenching Co.'s complaint and awarding defendant/counterclaimant Bill Westervelt Asphalt Paving Inc. $92,065.82 in damages and interest. Plaintiff appeals alleging 1) that the judge committed a series of errors in his evidentiary rulings; and 2) that defendant breached the contract between the parties and therefore was not entitled to judgment as a matter of law. We have considered these arguments in light of the record and applicable legal standards. We affirm.

I.

Plaintiff was the general contractor for an industrial development project owned by Bridgewater Ventures LLC (the owner) located at 9 Finderne Avenue, Bridgewater. Plaintiff entered into a written subcontractor agreement (the contract) with defendant to pave a 39,055 square yard parking lot; after changes to the original asphalt profile were ordered by the project engineer, the parties agreed on a total contract price of $885,294.91.*fn1 The contract included design specifications requiring defendant to complete the work in accordance with certain standards regarding the thickness of the underlying base and asphalt coating. The total thickness of the asphalt required by the contract was increased from five to seven inches by various change orders executed by the parties.

Defendant had almost completed the contract work when the owner advised plaintiff that a portion of the rear of the parking lot was deficient and that it would not make final payment. Plaintiff contacted defendant, but the parties could not agree on the nature or scope of the alleged deficient performance, leading plaintiff to commence suit.

At the time plaintiff filed its single-count complaint alleging breach of contract, it had paid defendant $796,765.42 in accordance with the contract but had retained 10% of the contract price as security for defendant's performance. Plaintiff sought compensatory and consequential damages. Defendant filed an answer and counterclaim denying it had breached the contract, and demanded payment of the contract balance together with interest, counsel fees and costs.

During discovery, in answers to interrogatories, defendant identified as its expert, "SOR Testing Laboratories/SOR Consulting Engineers [(SOR)]," and attached a copy of its report. In an interrogatory asking for defendant's "version of the occurrences refer[enced] in the [c]omplaint," defendant responded that it had "hired SOR Testing to independently perform an analysis" and "[a]n area of pavement was found to be deficient in thickness and [defendant] ha[d] agreed to overlay this area with 1.0"-1.5" of" asphalt. Defendant was also asked to provide the "proof which will be offered . . . at the trial . . to support" its defenses and counterclaim, "or any other allegations set forth in these [a]nswers to [i]nterrogatories." Defendant identified, among other things, the "[r]eports of SOR testing[.]" In answering a third interrogatory, defendant "acknowledge[d] the total amount of paving materials supplied was short by approximately .5 to 1 inch," and it had "repeatedly offered to either relay the missing material or credit the account of defendant." Lastly, defendant asserted in another interrogatory answer that it was "entitled to the full contract price upon completing the necessary relaying to make up the difference in materials due. In the alternative, [defendant] is entitled to the full contract price less the value of the missing .5-1 inch of paving material."

Immediately before trial commenced, defendant noted that plaintiff had identified its principal, William Gulya, as an expert witness. Defense counsel specified, however, that the pre-trial judge, who was not the trial judge, had ordered plaintiff to furnish an expert's report and none had been furnished.

Plaintiff's counsel objected, arguing that defendant's interrogatories never asked for an expert's report and that the pre-trial order did not require plaintiff to serve any report.*fn2

Plaintiff's counsel claimed that defendant knew the gist of Gulya's testimony from interrogatory answers, that there was no surprise, and that defendant's motion to bar Gulya's as an expert was untimely.*fn3

The judge, however, reviewed the pre-trial order and concluded that it required plaintiff to furnish a report by a date certain and none had been furnished. He reserved decision on defendant's motion until Gulya's testimony "crosses from facts to opinion."

In his opening statement, plaintiff's counsel explained plaintiff's claim for damages. These included the cost of replacing 19,800 square yards of allegedly deficient paving in the rear of the lot, an additional $46,000 that plaintiff expended to repair a second, smaller area where "the paving started to fail," and monies that plaintiff expended to secure a "five year bond" so that a certificate of occupancy could be issued permitting the owner to occupy the premises.

Defense counsel explained his client's position in his opening statement. Specifically, defendant contended that plaintiff was responsible for the "remediation" of subsurface materials, and failed to do so, resulting in the alleged deficiencies in the parking lot. Defendant alleged that it had performed in accordance with the contract, and it sought full payment of monies owed.

Gulya testified that he had been plaintiff's president for twenty years and had worked for the business a total of thirty-six years. He prepared the bids for the majority of plaintiff's projects. However, as Gulya began to express opinions regarding certain industry standards, defendant objected. After an extended colloquy with both counsel, the judge granted defendant's motion to bar Gulya as an expert, concluding that plaintiff had failed to provide any expert report in discovery as requested by defendant's interrogatories, and had violated the pre-trial discovery order. The judge reiterated that Gulya could provide testimony, but not "expert opinions."

After some further testimony, plaintiff's counsel asked Gulya to review reports of tests performed by CTL Laboratories (CTL), which had been hired by the owner. Gulya was asked "whether or not the results of those tests showed that the sub-grade passed or failed the inspection[.]" Defendant objected, on hearsay grounds, and the judge sustained the objection. Plaintiff's counsel's persistence regarding a second CTL report resulted in another objection, which was also sustained. Plaintiff's counsel ...


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