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Karen Atkinson v. Ayers Corporation

June 29, 2011


On appeal from the Superior Court of New Jersey, Law Division, Special Civil Part, Sussex County, Docket No. SC-494-09.

Per curiam.


Submitted October 27, 2010 - Before Judges Axelrad and R. B. Coleman.

Plaintiff Karen Atkinson appeals an October 16, 2009 Order for Final Judgment in favor of the defendant-counterclaimant Ayers Corporation in the net amount of $343.44. We affirm.

In the spring of 2008, plaintiff contracted with defendant for the delivery of a roll-off dumpster. Because plaintiff had concerns about the placement of the dumpster on her property, defendant sent an employee to consult with plaintiff. The employee informed plaintiff that the dumpster could be placed on her property with minimal damage by avoiding delivery during and immediately following wet weather. Notwithstanding these consultations about plaintiff's concerns and desire to avoid damage to her property, defendant delivered a dumpster to plaintiff's property on May 8, 2008. Plaintiff testified that "it had been raining quite hard three days prior and on that very day." Plaintiff also presented photographs showing the damage to her lawn.

Defendant admitted the driver damaged plaintiff's lawn and that the truck momentarily was stuck causing additional damage. After approximately five weeks, defendant removed the dumpster, and plaintiff expressed her displeasure. Plaintiff testified that she solicited several proposals from landscaping companies and that she could not afford even the lowest proposal. The parties dispute whether a proposal was ever forwarded to defendant.

On July 6, 2009, plaintiff filed a complaint in the Sussex County Law Division, Special Civil Part, for $3,000 in damages plus costs. Following two adjournments, a trial was held on September 30, 2009. After hearing the testimony of plaintiff and Joanne Wilkerson, the principal of defendant Ayers Corporation, Judge Edward V. Gannon awarded $125 to plaintiff, representing "$100 to account for [a] day laborer and another $25 for grass seed." On the counterclaim by Ayers, he awarded $275 for the dumpster plus a "reasonable" charge based on tonnage of debris, for a total of $468.44. The net effect of the judgment is that plaintiff owes defendant $343.44. Plaintiff now appeals the trial court's order in favor of defendant.

On appeal, plaintiff argues the court erred by rejecting her estimate of damages. Plaintiff contends she tried to provide the court with a foundation for her estimate, but the court rejected her attempt and sua sponte provided an unsupportable personal assessment. Specifically, plaintiff complains that during trial, defendant's counsel objected to plaintiff's estimates for repair as hearsay, and later based on the photographs of plaintiff's lawn, the court observed that "anybody looking at these pictures, myself included, any reasonable person would have to conclude that the actual damage depicted in these photographs could be repaired by a day laborer with a rake and some grass seed."

Hearsay "is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." N.J.R.E. 801(c). "Hearsay is not admissible except as provided by these rules or by other law." N.J.R.E. 802. However, our Rules of Evidence may be relaxed "to admit relevant and trustworthy evidence in the interest of justice . . . in actions within the cognizance of the Small Claims Section of the Special Civil Part of the Superior Court, Law Division . . . ." N.J.R.E. 101(a)(2)(A). We therefore review the trial court's evidentiary ruling under an abuse of discretion standard. See Estate of Hanges v. Metro. Prop. & Cas. Ins. Co., 202 N.J. 369, 382 (2010). "Traditional rules of appellate review require substantial deference to a trial court's evidentiary rulings." State v. Morton, 155 N.J. 383, 453 (1998).

Initially, we note that plaintiff, now assisted by counsel, does not provide a copy of any written estimates nor even the photographs presented at trial. Hence, based on the record before us, we cannot conclude the court's refusal to relax prohibition of unexceptional hearsay was an abuse of discretion.

Plaintiff also argues the court abused its discretion by admitting evidence of defendant's damages, i.e. the unpaid dumpster bill, because the document was not authenticated as a business record. Since plaintiff did not object to submission of the document at the time of trial, we review her claim under the plain error standard. See R. 2:10-2; Beasley v. Passaic Cnty., 377 N.J. Super. 585, 604 (App. Div. 2005).

We note that plaintiff acknowledged the dumpster would be $275, and when asked if she had any objection to the billing invoice for the dumpster, plaintiff replied she did not. Also, the court was satisfied with the proofs provided by defendant's book accounting of the dumpster. Thus, the crux of plaintiff's argument is that the court abused its discretion because her evidence of damages was considered inadmissible hearsay while the business record provided by defendant was unauthenticated and also hearsay. We do not find that argument persuasive.

Finally, the scope of our appellate review of a judgment entered in a non-jury case is limited. "Findings by the trial judge are considered binding on appeal when supported by adequate substantial and credible evidence." Rova Farms Resort v. Investors Ins. Co., 65 N.J. 474, 484 (1974). "[O]ur courts have held that the findings on which [such a judgment] is based should not be disturbed unless they are so wholly insupportable as to result in a denial of justice." Id. at 483-84. In light of the limited scope of ...

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