STATE OF NEW JERSEY VS. ANDREW ALFORD(13-08-2522, CAMDEN COUNTY AND STATEWIDE) ( 2017 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R.1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1464-15T3
BASHAR SABBAGH,
Plaintiff-Appellant,
v.
DIVA MULLER,
Defendant-Respondent.
___________________________
Submitted December 14, 2016 – Decided April 26, 2017
Before Judges Accurso and Manahan.
On appeal from Superior Court of New Jersey,
Law Division, Bergen County, Docket No. L-
449-14.
Bashar Sabbagh, appellant pro se.
William J. Pollinger, P.A. and Eckert,
Seamans, Cherin & Mellott, L.L.C., attorneys
for respondent (Mr. Pollinger and
Christopher E. Torkelson, of counsel and on
the brief).
PER CURIAM
This is a dispute between neighbors who share a common rear
lot line. The house on plaintiff Bashar Sabbagh's property was
destroyed by fire in 2004. In 2007, plaintiff received
approvals to build a new house on the lot. In the course of
clearing the property for the new construction, a large oak tree
plaintiff was attempting to remove fell into defendant Diva
Muller's backyard, damaging or destroying several mature shade
trees. Defendant apparently sued plaintiff in 2007 to recover
for the damage, resulting in plaintiff voluntarily paying
defendant $15,000 to resolve the matter.
In 2012 during Superstorm Sandy, a large tree on
defendant's property was uprooted and fell into plaintiff's
backyard, destroying several recently planted saplings.
Plaintiff instituted this action to recover damages he claimed
totaled $15,000. Defendant counterclaimed asserting that
efforts begun by plaintiff in 2011 to regrade his property had
resulted in increased runoff of rainwater and silt flowing from
plaintiff's property and causing ponding on defendant's land.
She sought injunctive relief and damages of $15,000.
Defendant later submitted an expert report from a landscape
architect assessing her damages at $40,000, consisting of
$10,000 for the installation of two seepage tanks, twenty new
trees costing $24,000 and $6000 in grading and lawn repairs.
The detail for the latter figure provided for "[r]emoval of
existing silt and soil runoff[,] [l]awn repairs associated with
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installation of seepage tanks and tree plantings [a]pproximately
6,000sf."
The matter proceeded to a one-day bench trial before Judge
Bachmann. Plaintiff and defendant both testified, as did
defendant's expert landscape architect. Plaintiff did not
present an expert. The central issue on plaintiff's claim was
whether the tree that fell into his yard during Sandy was one of
the trees previously damaged in 2007 when his oak toppled onto
defendant's property. Plaintiff maintained it was, and thus
that defendant had notice of the tree's weakened condition prior
to Sandy. Defendant claimed it was not one of the trees that
suffered damage in 2007, which she claimed were in another area
of her backyard. She further claimed she saw workers cut up the
tree uprooted in Sandy and observed that it was perfectly
healthy. Neither party presented any proofs on the issue beyond
their testimony.
Judge Bachmann found both parties credible, leaving the
evidence on the point in equipoise. He accordingly dismissed
plaintiff's claim, finding he had failed to carry his burden to
prove that defendant breached her duty of reasonable care or
that any act of defendant was the proximate cause of her tree's
uprooting. See Burke v. Briggs, 239 N.J. Super. 269, 275 (App.
Div. 1990).
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On the counterclaim, the judge was persuaded by the
testimony of both parties that plaintiff's installation of a
seepage pit at the rear of his property and reseeding the grass
had "alleviated all or almost all of the water infiltration
problems." He thus denied any injunctive relief, including
installation of seepage pits on defendant's property or the
planting of new trees. The judge found, however, based on the
testimony and the photographs in evidence, that although
defendant's backyard was now dry, it "is silt covered in areas
and is no longer level and lush with grass." Relying on the
testimony of defendant's expert, the judge found "the area that
must be re-graded is 6,000 square feet." Using the expert's
calculation of an industry standard of a dollar a square foot
for topsoil, seed and fertilizer, the judge awarded defendant
$6000 on her counterclaim.
Plaintiff appeals both the dismissal of his complaint and
the judgment on defendant's counterclaim, contending the judge's
decision was against the weight of the evidence.1 In addition to
1 Although represented by counsel at the trial level, plaintiff
is pro se on appeal. In his brief, he argues that he "incurred
damages as a result of the [defendant's] failure to remove
damaged trees and therefore [defendant] should be liable for the
expenses incurred by the [plaintiff]." As he agrees that Burke
v. Briggs is the controlling law, we understand his argument to
(continued)
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contesting liability on the counterclaim, plaintiff argues the
court erred in assessing damages. He claims the area of lawn to
be repaired is less than 6000 square feet, as the expert
included repairs to areas disturbed by the installation of
seepage pits and trees that the court denied as unnecessary.
Final determinations made by the trial court sitting in a
non-jury case are subject to a limited and well-established
scope of review: "we do not disturb the factual findings and
legal conclusions of the trial judge unless we are convinced
that they are so manifestly unsupported by or inconsistent
with the competent, relevant and reasonably credible evidence
as to offend the interests of justice." In re Trust Created
By Agreement Dated Dec. 20, 1961, ex rel. Johnson, 194 N.J.
276, 284 (2008) (quoting Rova Farms Resort, Inc. v. Investors
Ins. Co. of Am., 65 N.J. 474, 484 (1974) (internal quotations
and citations omitted)). "Deference is especially appropriate
when the evidence is largely testimonial and involves
questions of credibility. Because a trial court hears the
case, sees and observes the witnesses, and hears them testify,
it has a better perspective than a reviewing court in
(continued)
be directed to the trial court's assessment of the evidence
adduced at trial.
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evaluating the veracity of witnesses." Seidman v. Clifton
Sav. Bank, S.L.A., 205 N.J. 150, 169 (2011) (quoting Cesare v.
Cesare, 154 N.J. 394, 411-12 (1998) (citations, internal
quotation marks and editing marks omitted)). We exercise our
own "original fact finding jurisdiction sparingly and in none
but a clear case where there is no doubt about the matter."
Ibid.Applying those standards here makes clear the trial
court's judgment on both plaintiff's claim and defendant's
counterclaim must be affirmed. The only evidence the parties
presented on the question of whether the tree uprooted in
Sandy was one of the ones damaged in 2007 was their own
testimony. The judge listened to both. He found defendant
"credible, to have testified only to what she was personally
aware of and to have refrained from embellishing." The judge
found plaintiff "to have been equally credible and equally
careful and accurate when testifying." Because the evidence
on the critical question was in equipoise, the court correctly
concluded plaintiff had failed to succeed in proving his
claim. See Liberty Mut. Ins. Co. v. Land, 186 N.J. 163, 169
(2006). We are simply in no position to second guess the
judge's careful consideration of the credibility of the
parties.
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As to the counterclaim, plaintiff relies for his argument
on defendant's expert's report, which appears to include in
the 6000-square-foot area in need of repair, land required for
installation of the seepage pits and trees, which the court
rejected as unnecessary. Plaintiff's counsel, however, put
this question to defendant's expert directly on cross-
examination. Counsel asked the expert, "If there's no seepage
tanks required, therefore, there would not be any work to be
done with regards to soil remediation or planting seed there,
would there?" The expert responded, "No. That's not correct.
Because the seepage tanks would be installed where the area is
disturbed already."
Later in the cross, counsel again attacked the expert's
opinion on the cost of restoring the area damaged by surface
water and silt flowing from plaintiff's property. Counsel
asked, "And you had no idea what the cost is to put some
topsoil and some seed on the bare spots that are shown in the
photographs attached to your report because you don't do that
work[,] [c]orrect?" The expert replied:
No. That's not correct. . . . I would say
that it's not just the bare spots. It's
along that entire property line. And it's
the surrounding area of those bare spots
that need to be feathered into the natural
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line. You can't just seed a little patch
and then you'll have a lumpy lawn.2
Given the expert's unequivocal testimony, there is "adequate,
substantial, credible evidence" in the record to support the
damage award on the counterclaim. See Seidman, supra, 205 N.J.
at 169.
Because we find no error in the court's findings of fact or
conclusions of law made at the conclusion of this bench trial,
we affirm, essentially for the reasons expressed by Judge
Bachmann in the statement of reasons appended to the November 2,
2015 final order in the case.
Affirmed.
2 The expert had already testified on direct that "a larger,
extensive area around [the bare patch depicted on the photos in
evidence] has to be re-graded so that it's not lumpy." The
expert estimated that in addition to the bare areas depicted in
the photos, "[y]ou have to reseed probably [4,000] to 5,000
square feet around that area just to smooth it all out
correctly."
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