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L. Damian Barna v. Iris Maldonado

November 4, 2011

L. DAMIAN BARNA AND THERESA L. BARNA, PLAINTIFFS-APPELLANTS,
v.
IRIS MALDONADO, DEFENDANT-RESPONDENT.



On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-4206-09.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued October 17, 2011

Before Judges Ashrafi and Fasciale.

Plaintiffs Damian and Theresa Barna appeal from an order of the Law Division dated January 21, 2011, denying their motion for a new trial. Following a five-day trial against their neighbor, defendant Iris Maldonado, the jury awarded plaintiffs compensatory damages totaling $1,050 on their claims of negligence, trespass, and nuisance as a result of a water drainage dispute. The jury found in favor of defendant, however, on plaintiffs' claim of harassment and their request for punitive damages.

Plaintiffs appeal, contending that the jury verdict was a miscarriage of justice and against the weight of the evidence. They also contend they were prejudiced by the judge's rulings before and during the trial. Having reviewed the incomplete record provided by plaintiffs and found no basis for reversal, we affirm the judgment.

As appellants, plaintiffs were required to provide to us the record of proceedings in the trial court relevant to the issues they raise on appeal. See R. 2:6-1(a)(1). Their arguments clearly require a review of transcripts of the trial and any pretrial proceedings in which those matters were raised and decided. See R. 2:5-3. Yet, the only transcript plaintiffs have provided is dated January 21, 2011, and is for their motion seeking a new trial. In addition, the documents contained in plaintiffs' appendix do not include all relevant pleadings. Instead, the appendix contains some documents that were not admitted in evidence at trial and were not otherwise part of the record, according to defendant. The deviations from our appellate rules are sufficient for us to dismiss the appeal. See Society Hill Condo. Ass'n, Inc. v. Society Hill Assocs., 347 N.J. Super. 163, 177 (App. Div. 2002); In re Zakhari, 330 N.J. Super. 493, 494 (App. Div. 2000); Cherry Hill Dodge, Inc. v. Chrysler Credit Corp., 194 N.J. Super. 282, 283 (App. Div. 1984). Nevertheless, we have considered plaintiffs' arguments to the extent the record permits, and we make the following comments so that the pro se plaintiffs might better understand the shortcomings of their appeal.

We discern the following background facts from the briefs and the single transcript provided. The parties live on adjoining lots in Keasbey, a section of Woodbridge Township. Defendant constructed a drainage swale in 2004 that slightly encroached on plaintiffs' property and caused runoff of water onto their land. After years of disputes between the parties, including several criminal and other complaints brought before municipal authorities, defendant filed a civil complaint against plaintiffs in Superior Court in December 2008, and plaintiffs filed a separate civil complaint against defendant in May 2009. The court consolidated the two matters under the docket number of plaintiffs' complaint.

Through mediation, the parties entered into a settlement agreement, but the settlement did not resolve the disputes.

Plaintiffs unsuccessfully moved to enforce terms of the settlement and later unsuccessfully moved for summary judgment on some of their claims. Eventually, the homeowner's insurance carrier for plaintiffs settled defendant's claims for a modest amount, $3,500. However, the insurance carrier for defendant declined to make an offer acceptable to plaintiffs to settle their claims. The court permitted plaintiffs' attorney for their affirmative claims to withdraw from the case, and plaintiffs thereafter proceeded pro se. The court reopened discovery for purposes of new expert investigation and reports, but it denied plaintiffs' motion brought about one month before the scheduled trial date to amend their complaint.

Plaintiffs' affirmative claims were tried before a jury in November and December 2010. On the first day of trial, the court unexpectedly required that plaintiffs submit sixty to seventy questions in writing that would address their proposed direct testimony. The judge indicated that the written questions were necessary and would be utilized by the judge to conduct their direct testimony so that neither plaintiff would be engaging in the unlawful practice of law by questioning the other plaintiff.

Although we have no record of the trial, we understand that expert witnesses testified for both sides at trial. The post- trial transcript indicates that an issue brought before the jury was the extent of water intrusion upon plaintiffs' land. One of the plaintiffs testified water covered approximately one percent of their land. After several days of testimony, the jury deliberated and apparently found that defendant was liable to plaintiffs for diversion of water from her property onto their land but that plaintiffs' damages were not extensive. The jury awarded a total of $1,050 in compensatory damages for negligence, nuisance, and trespass. The jury found defendant was not liable to plaintiffs on their separate claims of personal harassment of them by bringing criminal charges and other conduct. After the jury's initial verdict, the court proceeded to plaintiffs' claims for punitive damages. Additional presentations were made, the jury deliberated, and it determined not to grant any punitive damages to plaintiffs.

Plaintiffs then sought a new trial or an additur, arguing that the modest damages award was a miscarriage of justice. They also sought injunctive relief with respect to remediation of the structures that were allegedly causing water intrusion onto their property. The trial court denied their motions, and this appeal followed.

In their pro se appellate brief, plaintiffs allege several trial errors. We are unable to evaluate any of their arguments because plaintiffs have not provided transcripts of the trial. At the time of oral argument before us, when this deficiency was brought to plaintiffs' attention, they made an oral motion to adjourn the appeal while they procure transcripts. Defendant opposed the motion. We now deny that motion because it was incumbent upon plaintiffs to prosecute their appeal according to the rules of court and within a reasonable schedule established by the court. Litigation cannot proceed by misstep and repetition until a party produces the ...


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