JESSE D. SADEJ VS. ANTHONY X. ARTURI, JR., ESQ. (L-2077-12, BERGEN COUNTY AND STATEWIDE) ( 2019 )

NOT FOR PUBLICATION WITHOUT THE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-1424-16T1
JESSE D. SADEJ,
Plaintiff,
and
CARLA SADEJ,
Plaintiff-Appellant,
v.
ANTHONY X. ARTURI, JR., ESQ.,
BARRY S. GUAGLARDI, ESQ., and
ARTURI, D'ARGENIO, GUAGLARDI
& MELITI, LLP,
Defendants-Respondents.
___________________________________
Argued March 7, 2019 – Decided May 7, 2019
Before Judges Simonelli, Whipple and Firko.
On appeal from Superior Court of New Jersey, Law
Division, Bergen County, Docket No. L-2077-12.
Mitchell B. Seidman argued the cause for appellant
(Seidman & Pincus, LLC, attorneys; Mitchell B.
Seidman and Andrew J. Pincus, on the briefs).
Walter F. Kawalec, III, argued the cause for
respondents (Marshall Dennehey Warner Coleman and
Goggin, LLC, attorneys; Walter F. Kawalec, III, and
Howard B. Mankoff, on the brief).
PER CURIAM
In this legal malpractice matter, plaintiff Carla Sadej appeals from various
orders and a final judgment entered after a jury verdict in favor of defendants
Barry S. Guaglardi, Esq. and Arturi, D'Argenio, Guaglardi & Meliti, LLP
(collectively defendants). We affirm.
I.
The Underlying Action
In August 2001, plaintiff and her husband, Jesse Sadej (Sadej),1 filed five
pages of plans with the Borough of Seaside Park (Borough) outlining the scope
of the improvements they sought to make on their eight-bedroom Victorian
home. The improvements included expanding the house and existing detached
garage, connecting the expanded garage to the house, and constructing an in-
ground pool.
1
Sadej was a plaintiff in this matter but does not appeal.
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2
In August 2001, Borough zoning official Michael Marcinczyk issued a
zoning approval notice for the improvements, and Borough Construction Code
official James Erdman reviewed and approved the plans. Erdman initialed and
dated each of the five pages of the plans, wrote the words "Inspector Job Copy"
in red ink, attached the Building Department's red sticker on the first page of
one set of plans, and gave that set of plans to Sadej to be kept on site. Erdman
retained a copy of the plans for the Borough and issued a construction permit .
Thereafter, the Sadejs obtained a mortgage to pay for the improvements and
commenced construction in accordance with the approved plans.
Approximately eight months later, on April 17, 2002, Erdman issued a
stop work order to the Sadejs for "lost zoning approval." At that point, the
Sadejs had completed approximately eighty percent of the improvements at a
cost of $268,219. The Sadejs did not stop the construction, and on April 18,
2002, the police escorted the contractors off the site.
On May 2, 2002, Borough Administrator Joseph J. Delaney, Jr. met with
Sadej in Delaney's office. Delaney told Sadej that Erdman issued the stop work
order because the construction did not conform to the plans the Borough had on
file. Delaney also explained that the Borough's land use policy did not permit
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connection of a detached garage to the main dwelling because the Borough was
trying to discourage having renters in garages.
It is undisputed that the plans the Borough had on file differed from the
set of plans Erdman gave to Sadej. The second, third, fourth, and fifth pages of
the plan the Borough had on file did not have Erdman's initials and date notations
on them, and the fifth page contained different wording and a different drawing
regarding the expansion of the garage, connection of the garage to the house,
and rear yard setback. Sadej told plaintiff that the Borough had "fraudulently
altered" the plans and Delaney had threatened Sadej by stating that a contractor
had gone bankrupt by challenging the Borough in litigation. The individual who
altered the plans was not identified, and it was not determined whether the
alteration was an intentional fraud or an innocent mistake.
In any event, on May 8, 2002, the Borough filed a verified complaint and
order to show cause in the Chancery Division seeking to restrain the Sadejs from
any further construction, compel them to dismantle the improvements already
made without valid permits or approvals, and pay the Borough's attorney's fees
and costs. Relying on the altered plans, the Borough alleged that the Sadejs had
"substantially increased the scope, intensity, use and character" of the
improvements "from that which was shown on the original permitted plans.
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Specifically, it appears that the work that is being conducted may violate
Borough setback, height, area and lot coverage [but not building coverage]
requirements of its zoning ordinance." Further, Erdman alleged in a supporting
certification that the Sadejs had "substantially deviated from the plans submitted
as part of the original construction permit." Erdman attached a copy of the
altered plans, but not the original plans, to his certification.
On May 9, 2002, the court issued an order temporarily restraining the
Sadejs from any further construction. That same day, Sadej sent a letter to
Delaney, the Borough mayor and council, and the police chief alleging his plans
had been fraudulently altered to support the Borough's position that the Sadejs'
construction activities constituted building code and zoning violations.
The Sadejs retained defendants to represent them in the underlying action.
In a May 16, 2002 order, the court granted the Sadejs' application to lift the
temporary restraints, but advised them "that any continued construction on the
site shall proceed at [their] peril."
Approximately one year later, on May 28, 2003, defendants, on the Sadejs'
behalf, filed an answer to the Borough's complaint and asserted separate
defenses, including promissory and equitable estoppel. The Sadejs also asserted
a counterclaim against the Borough for declaratory judgment, promissory
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estoppel/detrimental reliance and fraud. Defendants did not file a notice of tort
claim with the Borough pursuant to the New Jersey Tort Claims Act, N.J.S.A.
59:1-1 to 12-3. The Borough filed an answer to the counterclaim and asserted
separate defenses, including the two-year statute of limitations (SOL) and the
Sadejs' failure to file a notice of tort claim.
On October 3, 2003, the Sadejs filed an amended answer, affirmative
defenses, and an amended counterclaim reasserting claims against the Borough
for declaratory judgment and promissory estoppel/detrimental reliance, and
adding a claim under 42 U.S.C. § 1983 for the deprivation of their property
rights. The Sadejs did not reassert a fraud claim.
In three separate May 10, 2004 orders, the court granted the Sadejs' motion
for partial summary judgment, finding the improvements did not violate the
Borough's zoning ordinance regarding building height, rear yard setback, and
side yard setback. However, the judge also granted the Borough's motion for
partial summary judgment, finding the improvements violated the building
coverage zoning ordinance – a violation the Borough did not assert in its
complaint. The court found the building, which it determined included the
existing attached porch, violated the maximum allowable building coverage.
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The court ordered the building coverage zoning violation to proceed to trial
along with the Sadejs' separate defenses and counterclaim.
On May 13, 2004, five days after the SOL expired, the Sadejs filed a
second amended counterclaim against the Borough and a third-party complaint
against the Borough's mayor and council, Erdman, Marcinczyk, and Delaney,
both individually and as municipal officials, for declaratory judgment, estoppel,
violation of 42 U.S.C. § 1983, fraud, malicious prosecution, and malicious abuse
of process.
The Borough and municipal officials filed a motion for summary
judgment and to dismiss the second amended counterclaim and third-party
complaint based on the SOL and the Sadejs' failure to file a notice of tort claim.
Thereafter, on July 9, 2004, the Sadejs filed a notice of tort claim with the
Borough.
The case was transferred to the Law Division, where the court granted the
motion and dismissed the second amended counterclaim and third-party
complaint with prejudice. The court found the asserted causes of action were
barred by the two-year SOL because they accrued prior to May 9, 2002, the date
of both Sadej's letter to Delaney, and the Borough mayor, council and police
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chief and the date the Chancery court issued the restraining order. The court
also found the Sadejs failed to timely file a notice of tort claim with the Borough.
The court subsequently denied the Sadejs' motion for reconsideration
making the additional finding that the Sadejs failed to establish a prima facie
case of malicious prosecution. The court determined the only remaining issue
for trial was whether the Borough was estopped from enforcing the building
coverage zoning violation.
The Sadejs subsequently moved for summary judgment, arguing the
Borough was estopped from enforcing the building coverage zoning violation
because they had, in good faith, relied on the building permit and zoning
approvals issued by the Borough in making the improvements. The court
granted the motion and dismissed the Borough's complaint. The court found the
Borough was estopped from enforcing the building coverage zoning violation in
light of the court's earlier ruling permitting the Sadejs to make the improvements
to the garage as a pre-existing nonconforming use. The court explained that the
Borough was estopped from arguing that the Sadejs had to remove the existing
porch because "[the Borough], in essence, permitted [the Sadejs] to build a
garage which caused the [building] coverage problem." Thus, the court ordered
the Borough to immediately reissue the building permit and zoning approvals,
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and authorized the Sadejs to complete the improvements without any further
permits or approvals from the Borough.
The Sadejs filed a motion to for frivolous litigation sanctions under the
Frivolous Litigation Statute, N.J.S.A. 2A:15-59.1, alleging the Borough filed its
complaint despite knowing the fraudulent nature of the building plans on which
it relied. The court denied the motion finding that municipalities are not subject
to liability under the statute.
The parties appealed from various orders. We affirmed the dismissal of
the Sadejs' fraud claims against the municipal officials as time-barred under the
SOL and the dismissal of their claims against the Borough for failure to timely
file a notice of tort claim. Borough of Seaside Park v. Sadej, No. A-6596-06
(App. Div. July 17, 2009) (slip op. at 22-23). However, we reversed the
dismissal of the malicious abuse of process claim against the municipal officials,
finding it was timely because the claim did not accrue until June 9, 2007, when
the court entered the order granting the Sadejs' motion for summary judgment.
Ibid. Nonetheless, we affirmed the dismissal of the malicious prosecution claim
against the Borough, not for failure to timely file a notice of tort claim, but
because a municipality cannot entertain malice as a public corporation. Id. at
18.
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We also reversed and remanded the frivolous litigation sanction issue to
the trial court for consideration of whether the Sadejs complied with the safe
harbor provision of Rule 1:4-8(b)(1). Id. at 42. We directed the court to conduct
a practicality analysis as to whether the circumstances require strict adherence
to Rule 1:4-8, and consider whether the Borough's conduct fell within the
statutory definition of frivolous in N.J.S.A. 2A:15-59.1(b). Ibid. We also
directed that if the court found, after consideration of the above issues, that the
Sadejs were entitled to a frivolous litigation counsel fee award against the
Borough, the court should revisit the question of whether the Borough was
immune from liability. Ibid.The Sadejs retained a new attorney to represent them on remand. Their
malicious abuse of process claim against the municipal officials was tried before
a jury. At the conclusion of the trial, but before the jury announced the verdict,
they accepted a settlement offer of $125,000, apparently with the understanding
that they would pursue a legal malpractice action against defendants.
The Malpractice Action
The trial in the malpractice action began in August 2016. By that time,
the Sadejs were divorced and plaintiff had received the property in equitable
distribution. See Sadej v. Sadej, No. A-2347-10 (App. Div. May 16, 2012) (slip
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op. at 11). Plaintiff testified at the trial as to her damages, but Sadej did not
testify.
Plaintiff's expert, William Michelson testified that defendants deviated
from the standard of care in failing to: (1) timely file a notice of tort claim as to
the counterclaim against the Borough for promissory estoppel; (2) timely assert
claims against the municipal officials for declaratory judgment, estoppel, and
deprivation of property rights under 42 U.S.C. § 1983; and (3) assert claims
against the Borough and municipal officials for inverse condemnation and
deprivation of property rights under the United States and State Constitutions.
Michelson conceded, however, that there was no viable basis for the Sadejs'
fraud claim.
Michelson opined that the Sadejs would have been successful in pursuing
the above claims. Regarding the claims for deprivation of property rights under
the United States and State Constitutions, he testified there was a viable claim
for a partial taking and for interference with the enjoyment of the Sadejs'
property. He explained that the Borough's action violated the Sadejs' "rights, it
was a taking, a partial taking or temporary taking, of their property interest and
it's also been described as an estoppel." He opined that damages included the
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stop work order, the demand to dismantle the completed improvements, and the
length of time the Sadejs could not proceed with the work.
Michelson also asserted that the dismissal of these claims was the
proximate cause of the Sadejs' damages. He explained that if the claims had not
been dismissed, the jury in the underlying action would have returned a verdict
in the Sadejs' favor and they would have had a stronger case, which would have
been reflected in the verdict or settlement. He admitted, however, that
"[n]obody could know" whether the Sadejs would have actually achieved a
verdict in excess of $125,000, or would have been able to negotiate a higher
settlement. He also admitted that on remand, the Sadejs could have recovered
damages for loss of rent and emotional distress, counsel fees, and punitive
damages under the malicious abuse of process claim.
Lastly, Michelson opined that defendants deviated from the standard of
care in failing to serve a "Safe Harbor" notice under Rule 1:4-8(b)(1) in pursuing
their claim for frivolous litigation sanctions against the Borough. Michelson
testified that this deviation proximately damaged the Sadejs because it made it
impossible for them to recover the approximately $287,000 in counsel fees they
incurred in the underlying action.
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Defendants' malpractice expert, Brian Molloy, conceded that defendants
deviated from the standard of care in failing to timely file a notice of tort claim
and in failing to timely file the counterclaim. However, he opined that these
deviations did not proximately cause the Sadejs any damages because on remand
they were able to pursue both their claim for malicious abuse of process against
the municipal officials and their claim for frivolous litigation sanctions. He
explained that the same conduct (the Borough filing suit based on the altered
plans) gave rise to different causes of action, and the Sadejs could not recover
double damages.
Defendants' land use expert, Steven Tripp, opined that the Sadejs did not
have a viable claim for a temporary taking because they were able to use the
property throughout the underlying litigation.
The jury found that the Sadejs proved defendants deviated from the
applicable standard of care by not timely filing affirmative claims against the
Borough or municipal officials for promissory estoppel, violation of 42 U.S.C.
§ 1983, and violation of the Sadejs' property rights under the State Constitution.
However, the jury found the deviations did not proximately cause the Sadejs to
suffer damages.
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On August 26, 2016, the court entered final judgment in defendants' favor
and dismissed the complaint with prejudice. On November 9, 2016, the court
entered an order denying the Sadejs' motion for a new trial on damages and
causation or for judgment notwithstanding the verdict (JNOV). This appeal
followed.
II.
The Sadejs moved prior to the malpractice trial for partial summary
judgment on their claim that defendants committed malpractice by failing to
timely file a notice of tort claim as to the claim against the Borough in the
underlying action for promissory estoppel. At the close of all evidence, the
Sadejs moved for judgment under Rule 4:40-1 on liability and damages on their
claim that defendants committed malpractice in failing to timely prosecute their
claim against the Borough for promissory estoppel.
In denying the motion for partial summary judgment, the court found that
although the Sadejs were successful in pursuing an estoppel defense in the
underlying action, this did not mean they would have succeeded on the
affirmative promissory estoppel claim, particularly on the issue of proximate
cause. The court also found it was a jury question as to what the Sadejs' success
on the estoppel defense meant in terms of causation and damages on the
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affirmative promissory estoppel claim. In denying the motion for judgment
under Rule 4:40-1, the court held that the liability and damages issues should go
to the jury.
On appeal, plaintiff contends that the court erred in denying the motions.
Despite the jury verdict in the malpractice action, she argues that because she
was successful on her estoppel defense in the underlying action, it follows that
she would also have been successful under those same factual circumstances on
the affirmative promissory estoppel claim. We disagree.
Our review of a ruling on summary judgment is de novo, applying the
same legal standard as the trial court. Conley v. Guerrero, 228 N.J. 339, 346
(2017). Thus, we consider, as the trial judge did, "whether the evidence presents
a sufficient disagreement to require submission to a jury or whether it is so one-
sided that one party must prevail as a matter of law." Liberty Surplus Ins. Corp.
v. Nowell Amoroso, P.A., 189 N.J. 436, 445-46 (2007) (quoting Brill v.
Guardian Life Ins. Co. of Am., 142 N.J. 520, 536 (1995)). Summary judgment
must "be granted 'if the pleadings, depositions, answers to interrogatories and
admissions on file, together with the affidavits, if any, show that there is no
genuine issue as to any material fact challenged and that the moving party is
entitled to a judgment or order as a matter of law.'" Templo Fuente De Vida
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Corp. v. Nat'l Union Fire Ins. Co., 224 N.J. 189, 199 (2016) (quoting R. 4:46-
2(c)).
"To defeat a motion for summary judgment, the opponent must 'come
forward with evidence that creates a genuine issue of material fact.'" Cortez v.
Gindhart, 435 N.J. Super. 589, 605 (App. Div. 2014) (quoting Horizon Blue
Cross Blue Shield of N.J. v. State, 425 N.J. Super. 1, 32 (App. Div. 2012)). "If
there is no genuine issue of material fact, we must then 'decide whether the trial
court correctly interpreted the law.'" DepoLink Court Reporting & Litig.
Support Servs. v. Rochman, 430 N.J. Super. 325, 333 (App. Div. 2013) (quoting
Massachi v. AHL Servs., Inc., 396 N.J. Super. 486, 494 (App. Div. 2007)). We
review issues of law de novo and accord no deference to the trial judge's legal
conclusions. Nicholas v. Mynster, 213 N.J. 463, 478 (2013).
Under Rule 4:40-1, "[a] motion for judgment . . . may be made by a party
. . . at the close of the evidence offered by an opponent." The standard of review
is the same as that for a motion for Rule 4:37-2(b) involuntary dismissal and
Rule 4:40-2 JNOV. Pressler & Verniero, Current N.J. Court Rules, cmt. 1 on
R. 4:40-2 (2019).
In deciding the motion, the court "must accept as true all evidence
supporting the position of the party defending against the motion and must
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accord that party the benefit of all legitimate inferences which can be deduced
[from the evidence]." Besler v. Bd. of Educ. of W. Windsor-Plainsboro Reg'l
Sch. Dist., 201 N.J. 544, 572 (2010) (alteration in original) (quoting Lewis v.
Am. Cyanamid Co., 155 N.J. 544, 567 (1998)). If reasonable minds could reach
different conclusions, the motion must be denied. Rena, Inc. v. Brien, 310 N.J.
Super. 304, 311 (App. Div. 1998). If the evidence is so one-sided, however, that
one party must prevail as a matter of law, then a directed verdict is appropriate.
Frugis v. Bracigliano, 177 N.J. 250, 270 (2003). The trial judge may not
consider issues of witness credibility in making the determination. See Rena,
310 N.J. Super. at 311. We utilize the same standard as the trial court. Frugis,
177 N.J. at 269. Applying the above standards, we discern no reason to reverse.
To establish a claim of legal malpractice, the plaintiff must prove: (1) the
existence of an attorney-client relationship creating a duty of care upon the
attorney; (2) the breach of that duty; and (3) damages proximately caused by
that breach. Conklin v. Hannoch Weisman, 145 N.J. 395, 416 (1996) (quoting
Lovett v. Estate of Lovett, 250 N.J. Super. 79, 87 (Ch. Div. 1991)). There is no
dispute that the first two elements were met here. At issue is the third element,
proximate causation.
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It is well established that "[t]he issue of causation is ordinarily left to the
factfinder." Townsend v. Pierre, 221 N.J. 36, 59 (2015). It may, however, "be
removed from the factfinder in the highly extraordinary case in which reasonable
minds could not differ on whether that issue has been established." Id. at 60(quoting Fluehr v. City of Cape May, 159 N.J. 532, 543 (1999)). Here,
reasonable minds clearly differed in that ultimately the jury found the Sadejs
failed to establish the third element. That finding by the jury, which is amply
supported by the credible evidence, forecloses plaintiff's argument on appeal
that the judge erred in denying the motion for partial summary judgment.
For the sake of completeness we address additional reasons why the denial
of partial summary judgment was proper. "Where . . . the claim of malpractice
alleges a failure to meet a time-bar, 'a client must establish the recovery which
the client would have obtained if malpractice had not occurred.'" Garcia v.
Kozlov, Seaton, Romanini & Brooks, P.C., 179 N.J. 343, 358 (2004) (quoting
Frazier v. N.J. Mfrs. Ins. Co., 142 N.J. 590, 601 (1995)). "For example, if a
lawyer misses a statute of limitations and a complaint is dismissed for that
reason, a plaintiff must still establish that had the action been timely filed it
would have resulted in a favorable recovery." Conklin, 145 N.J. at 417. "The
most common way to prove the harm inflicted by such malpractice is to proceed
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by way of a 'suit within a suit' in which a plaintiff presents the evidence that
would have been submitted at a trial had no malpractice occurred." Garcia, 179
N.J. at 358. That "approach aims to clarify what would have taken place but for
the attorney's malpractice." Ibid.Ordinarily, the measure of damages is what result the client would have
obtained in the absence of attorney negligence. Ibid. To prove such injury, "the
client must demonstrate that he or she would have prevailed, or would have won
materially more . . . but for the alleged substandard performance." Lerner v.
Laufer, 359 N.J. Super. 201, 221 (App. Div. 2003). "When plaintiff has settled
the underlying action, the measure of damages is the difference between the
settlement and the amount of money that would have been obtained by
judgment." Kranz v. Tiger, 390 N.J. Super. 135, 146 (App. Div. 2007).
Plaintiff argues it was error to deny her motion because it was a "foregone
conclusion" that she would have prevailed on the affirmative promissory
estoppel claim based on the success she achieved on the estoppel defense.
However, the court in the underlying action did not, as plaintiff argues,
adjudicate the estoppel defense on the same basis as an affirmative claim for
promissory estoppel.
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The Sadejs had obtained approvals to construct improvements to the
existing main dwelling and garage. The record does not show the Sadejs sought
to make any improvements to the existing porch. Based on the altered plans,
the Borough issued a stop work order and brought suit against the Sadejs
alleging that the work violated the setback, height, area and lot coverage
requirements of the zoning ordinance. The court in the underlying action
granted the Sadejs' motion for partial summary judgment, not on the basis of
estoppel, but because the court found there was no building height, rear yard and
side yard setback zoning violations. The court also granted the Borough's
motion for partial summary judgment finding the building, which included the
expanded garage and the porch, exceeded the allowable building coverage.
Thereafter, the court found the Borough was estopped from enforcing the
remaining claim for a building coverage zoning violation, not because the Sadejs
had relied on the Borough's permits and approval in making the improvements,
but rather in light of the court's prior ruling permitting the improvements to the
garage as a pre-existing nonconforming use. Thus, the court did not, as plaintiff
argues, apply "the critical elements of the defense [of] equitable estoppel to the
facts and circumstances of the Borough's conduct" and therefore it was not a
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"foregone conclusion" that if properly filed the Sadejs would have been
successful on their affirmative promissory estoppel claim.
Further, equitable estoppel, asserted as a defense in the underlying action,
is a distinct legal concept from promissory estoppel, asserted as an affirmative
claim in the counterclaim. See Segal v. Lynch, 211 N.J. 230, 253-54 (2012)
(differentiating between promissory and equitable estoppel). "Estoppel" is
listed as an affirmative defense under Rule 4:5-4. The doctrine of equitable
estoppel "is designed to prevent injustice by not permitting a party to repudiate
a course of action on which another party has relied to his detriment." Knorr v.
Smeal, 178 N.J. 169, 178 (2003). The doctrine "is based on the principles of
fairness and justice." D'Agostino v. Maldonado, 216 N.J. 168, 200 (2013).
"To establish equitable estoppel, parties must prove that an opposing party
'engaged in conduct, either intentionally or under circumstances that induced
reliance, and that [they] acted or changed their position to their detriment.'"
Hirsch v. Amper Fin. Servs., LLC, 215 N.J. 174, 189 (2013) (alteration in
original) (quoting Knorr, 178 N.J. at 178). "Equitable estoppel may be invoked
against a municipality 'where interests of justice, morality and common fairness
clearly dictate that course.'" Middletown Twp. Policemen's Benevolent Ass'n
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Local No. 124 v. Twp. of Middletown, 162 N.J. 361, 367 (2000) (quoting Gruber
v. Mayor & Twp. Comm. of Raritan, 39 N.J. 1, 13 (1962)).
Our courts "have applied equitable estoppel to prevent municipalities from
revoking valid permits or approvals from builders who had justifiably relied on
those permits or approvals to their substantial detriment." Palatine I v. Planning
Bd. of Montville, 133 N.J. 546, 560 (1993). Nonetheless, the doctrine is "rarely
invoked against a governmental entity." Twp. of Middletown, 162 N.J. at 367(quoting Wood v. Borough of Wildwood Crest, 319 N.J. Super. 650, 656 (App.
Div. 1999)).
In contrast, promissory estoppel is often asserted as a claim or
counterclaim, although it can be asserted as an affirmative defense. See Pop's
Cones, Inc. v. Resorts Int'l Hotel, Inc., 307 N.J. Super. 461, 469 (App. Div.
1998) (asserting claim for promissory estoppel seeking monetary damages). To
establish promissory estoppel, the plaintiff must "show that there has been '(1)
a clear and definite promise; (2) made with the expectation that the promisee
will rely on it; (3) reasonable reliance; and (4) definite and substantial
detriment.'" Segal, 211 N.J. at 253 (quoting Toll Bros., Inc. v. Bd. of Chosen
Freeholders of Burlington, 194 N.J. 223, 253 (2008)).
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To that end, the doctrines of equitable estoppel and promissory estoppel
differ, in that "[e]quitable estoppel does not require a definite promise, but may
be invoked when there is 'conduct, either express or implied, which reasonably
misleads another to his prejudice so that a repudiation of such conduct would be
unjust in the eyes of the law.'" Id. at 254 (quoting McDade v. Siazon, 208 N.J.
463, 480 (2011)). It was thus not a "foregone conclusion" that the Sadejs would
have been successful on their affirmative promissory estoppel claim because the
basis for the estoppel defense in the underlying action differed both factually,
as set forth above, and legally from the affirmative promissory estoppel claim.
Lastly, and significantly, not only are the doctrines legally distinct, but
the types of proof required to assert a defense of equitable estoppel and/or
promissory estoppel is different than the proofs required to assert an affirmative
promissory estoppel claim for money damages based on the doctrines. Notably,
in asserting a counterclaim against the Borough, the Sadejs had to prove they
incurred damages by reasonably relying to their detriment on the Borough's
promise (promissory estoppel) or the Borough's conduct (equitable estoppel).
See Pop's Cones, 307 N.J. Super. at 472. The Sadejs presented no proofs as to
damages, nor did they move for summary judgment on that basis, because they
were asserting the equitable doctrine as a defense, not as an affirmative claim.
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Thus, even if the court in the underlying action had found the Borough was
estopped from enforcing the building coverage zoning violation based on the
issuance of the permits and approval, it would not follow that the Sadejs were
entitled to judgment in the malpractice action.
Moreover, as the court in the malpractice action properly found, there was
a genuine issue of material fact as to whether defendants' conduct was a
proximate cause of economic damages sustained by the Sadejs. In fact, the jury
later found the Sadejs failed to meet their burden of proof on this issue—a
verdict amply supported by the evidence. The Sadejs were required to establish
that if defendants had timely filed a notice of tort claim as to their affirmative
promissory estoppel claim, the Sadejs would have been able to settle the
underlying action for more than $125,000. They failed to do so.
However, it was undisputed that the Sadejs were barred only from
completing the improvements for seven days and were not compelled to remove
any of the completed improvements. They also were not deprived of the use of
the property in that, during the course of the litigation they used the home for
family vacations as planned, completed the majority of the improvements,
refinanced the home for $1.2 million, and received $110,400 in rental income
even though they had not intended to rent out the property. At best, the Sadejs
A-1424-16T1
24
established that they completed some of the improvements at their "peril," and
did not complete the improvements to the garage; however, there was no
evidence as to how much value the improvement to the garage would have added
to the property or how the Sadejs intended to use the improved space. Thus, the
court did not err in denying the motion for partial summary judgment because
the facts supported a verdict in defendants' favor. For all of these reasons, the
court also did not err in denying plaintiff's motion for judgment under Rule 4:40-
1.
III.
Plaintiff contends as plain error that the court erred in charging the jury
on the issue of "taking" without compensation in violation of the United States
and State Constitutions. She argues the charge misstated the law and defendants
waived their right to the charge and abandoned the issue of a partial taking. She
also argues the court erred in denying the motion for a new trial on this basis.
We reject these arguments.
Prior to the trial in the malpractice action, the parties each submitted
proposed jury charges. Neither party included a proposed charge on partial
taking. Thereafter, the issue of whether the Borough's actions constituted a
partial taking evolved during the course of the trial. For example, plaintiff
A-1424-16T1
25
sought to admit an appraiser's testimony as to the value of the property in
November 2011 ($1.29 million) and April 2015 ($1.134 million), in support of
her claim of a complete taking, and as to the amount of rental income she could
have received between 2002 and 2007, in support of her partial taking claim.
Defendants objected based on relevancy because plaintiff did not lose the
entire value of the property, and based on hearsay because the appraiser simply
stated in his report that "he called around to a bunch of different realtors" to
ascertain how much rental income plaintiff could derive from the property.
Plaintiff's counsel admitted, "there wasn't a full loss of value" in this case but
argued he wanted to elicit testimony from the appraiser as to the loss of value in
measuring damages.
The court barred the appraiser from testifying as to the value of the
property in 2011 and 2015 based on relevancy, barred the appraiser from
testifying as to the rental value based on hearsay, and dismissed plaintiff's claim
that there was a complete taking of the property. However, the court permitted
plaintiff to call realtors to testify as to the rental values. Plaintiff did not call
any realtors and instead relied on her own testimony as to the rents she received
in 2009, 2014, and 2015.
A-1424-16T1
26
At the close of plaintiff's case, the court denied defendants' motion to
dismiss the loss of rent claim. The court found that although plaintiff testified
she did not intend to lease the property, that was not the end of the inquiry, as
the issue was not whether she intended to lease, but rather the damages for a
partial taking should be measured. The court noted that case law indicated a
determination can be made by looking at the difference in the rental value with
and without the carriage house and/or garage, and the jury would have to make
that determination.
At the close of all evidence, the court granted defendants' motion to
dismiss the Sadejs' claim that defendants deviated from the standard of care in
failing to pursue a claim against the Borough for inverse condemnation .
However, the court denied defendants' motion to dismiss the claim that they
deviated in failing to timely file a notice of tort claim as to the 42 U.S.C. § 1983and State constitutional takings claims. The judge found that an inverse
condemnation claim
requires more than simply a partial taking. I think it
requires . . . a taking of substantially all of the property
and in this case there seems to be no dispute . . . that
there was not . . . a taking of substantially all of the
property. . . . [I]f there was a taking, it was only with
respect to the garage, and . . . I don't mean to minimize
it but I don't think it rises to the level of inverse
condemnation.
A-1424-16T1
27
The court conducted an informal charge conference on August 15, 2016.
On August 16, 2016, immediately prior to closing arguments, defense counsel
asked the court to charge the jury on a partial temporary taking "as to the
elements necessary to prove that claim, both for liability and damages ." The
Sadejs' counsel responded he had "no substantive objection to it, so that if
[defense counsel] wants to write something up, [he'll] be glad to consider it."
That same morning, defense counsel submitted the following request to
charge, which the Sadejs' counsel, but not the court, reviewed prior to closing
arguments:
There is a claim for a partial temporary taking. This is
the basis of the [42 U.S.C. § 1983] claim and the [S]tate
constitutional claims. To prove that there was a
temporary partial taking, you must find that [plaintiffs]
were deprived of all or substantially all of the beneficial
use of the property. This is not limited to the addition
[the garage]. It refers to all of the property.
Just compensation for a temporary partial taking must
be based on the fair market value of the owners' loss,
calculated by looking at the difference between the
value of the property before and after the taking.
During closing arguments, defense counsel stated that the Sadejs had to
prove they had been "deprived of all or substantially all of the economic value
of the property during the time at issue here[,]" and argued that they presented
A-1424-16T1
28
no evidence as to "the difference in the value before and after the temporary
taking," or the loss of rent. The Sadejs' counsel objected and requested a
curative instruction. The judge issued a curative instruction that defense
counsel's view of the law may not be accurate, and that the court would instruct
the jury on the law.
During closing argument, the Sadejs' counsel argued they were entitled to
an award "for the temporary partial taking of their property." Counsel
maintained that lost rent was "just a mechanism to measure the loss of use of the
property whether it's a complete taking or a partial taking. . . ." He argued that
the jury
should award some amount for loss of use, lost rent,
only for the five years while they were living in peril of
having to dismantle. Once the [B]orough's case was
over, we do not contend that there are any damages that
should be awarded in this trial for that. So, for loss
use/rent . . . I'm just going to note the rent amounts . . .
which is [in] . . . the range of $5,000 [per week] until it
got up to $7400 [per week].
And it's up to you as jurors to do the allocation to
the extent you find it appropriate as to what portion of
the rent is attributable to the portion of the house that
they lost the use of. Whatever allocation you feel is or
is not appropriate, you should do. And then based on
that, you have the numbers to do the calculation. . . .
[The house] was rented on a weekly basis throughout
the season, during the season when it was rented. And
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29
so, we ask you do that calculation for five years that
they lived in peril of having to dismantle.
After closing argument, the court overruled defendants' request to charge,
and instead, based on the factors set forth in Penn Central Transportation
Company v. City of New York, 438 U.S. 104, 124-26 (1978), as adopted in
Mansoldo v. State of New Jersey, 187 N.J. 50, 58 (2006), proposed to charge as
follows:
This is a claim for a partial temporary taking. This is
the basis of the [42 U.S.C. §] 1983 claim and the [S]tate
constitution . . . claims. To prove that there was a
temporary partial taking plaintiffs must show that there
was a diminishment in the rental value of the property
during the period from April 2002 to July 2007. Just
compensation for a partial temporary taking can be
based upon the difference in rental value of the property
both with and without the carriage house. You . . . are
to determine if the plaintiffs have shown the difference
in the rental value.
The Sadejs' counsel had no objection and said the charge was satisfactory.
Defense counsel objected, stating:
rental value is not a measure of the damages in a partial
taking. The jury should be instructed that to measure
the damages in a partial temporary taking there needs
to be testimony which would have established the value
of the property before the partial taking and during the
temporary taking. The jury should be further instructed
that no such evidence was offered.
A-1424-16T1
30
The court overruled the objection, acknowledging that it had barred the
appraiser from testifying as to the fair market value of the property as of
particular dates. Thereafter, the court charged the jury without objection as
follows:
Plaintiffs specifically claim that the Borough or its
officials violated their Fifth Amendment Right by
taking plaintiffs' property without just compensation
and violated their [Fourteenth] Amendment Rights by
depriving them of their property without due process of
law.
This is a claim by the plaintiff for a partial
temporary taking . . . .
To prove that there was a temporary partial
taking plaintiffs must show that there was a
diminishment in the rental value of their property
during the time period from April 2002 to July 2007.
Just compensation for a partial temporary taking can be
based upon the difference in the rental value of the
property both with and without a carriage house or
garage that has been described in this case.
....
Plaintiffs have the burden of proving
compensatory damages by a preponderance of the
evidence. Plaintiffs claim the following items of
damages under [42 U.S.C. § 1983]: [t]he emotional and
mental harm to plaintiffs during and after the events at
issue including fear, humiliation, and mental anguish
from April 2002 to Jul[y] 2007. . . . The reasonable
value of the medical and psychological care and
supplies that the plaintiff Carla Sadej reasonably
A-1424-16T1
31
needed and actually obtained. The reasonable value of
the [deprivation] of plaintiffs' property from April 2002
until July of 2007. And the reasonable value of the
legal services . . . .
During deliberations, the jury initially submitted two questions: (1) "Do
we have to determine 'partial taking' of property before considering punitive
damages against Borough officials?" and (2) "[I]s showing diminishment in
rental value the only way to prove 'temporary taking?'" In response, the Sadejs'
counsel said that the court should give no further instruction other than to refer
the jury to the written jury instructions. Defense counsel argued that in response
to question two, the jury should be told "yes," because "that's the only
measurement of temporary taking we've given them." The court agreed with the
Sadejs' counsel and instructed the jury to refer to the written charge.
The jury then asked: "[M]ust the plaintiff have shown explicit diminished
rental value of the property [under the instruction regarding the 42 U.S.C. § 1983claim] or may we the jury use inference [as set forth in the general charge]. . .
combined with evidence?" The court advised the jury that they could draw
inference as to the diminished rental value so long as such inferences were drawn
from some evidence in the case. The Sadejs' counsel agreed with the response
and defendants' counsel objected, which objection was overruled.
A-1424-16T1
32
In denying the Sadejs' motion for a new trial, the court rejected their
argument that the jury charge was erroneous, finding it was only after the jury
returned a verdict in defendants' favor that they raised alleged errors in the
charge. The court further found the charge accurately described the
requirements of a temporary partial taking consistent with Mansoldo and Penn
Central, and the evidence presented during the trial.
"It is fundamental that '[a]ppropriate and proper charges to a jury are
essential for a fair trial.'" Prioleau v. Ky. Fried Chicken, Inc., 223 N.J. 245, 256
(2015) (alteration in original) (quoting Velazquez ex rel. Velazquez v. Portadin,
163 N.J. 677, 688 (2000)). "[T]he jury charge should set forth in clear
understandable language the law that applies to the issues in the case." Toto v.
Ensuar, 196 N.J. 134, 144 (2008). "To accomplish these goals, the jury charge
should be tailored to the specific facts of the case." Estate of Kotsovska ex rel.
Kotsovska v. Liebman, 221 N.J. 568, 591-92 (2015). "As a general rule, [we]
will not disturb a jury's verdict based on a trial court's instructional error 'where
the charge, considered as a whole, adequately conveys the law and is unlikely
to confuse or mislead the jury, even though part of the charge, standing alone,
might be incorrect.'" Wade v. Kessler Inst., 172 N.J. 327, 341 (2002) (quoting
Fischer v. Canario, 143 N.J. 235, 254 (1996)).
A-1424-16T1
33
The Sadejs waived their right to challenge the charge on appeal because
they did not object to it below. R. 1:7-2. "Where there is a failure to object, it
may be presumed that the instructions were adequate." State v. Morais, 359 N.J.
Super. 123, 134-35 (App. Div. 2003). "The absence of an objection to a charge
is also indicative that trial counsel perceived no prejudice would result." Id. at
135.
In fact, not only did the Sadejs fail to object, they also expressly agreed
with the instruction and asked the court to repeat it in response to the jury
question. Under the invited error doctrine, "trial errors that 'were induced,
encouraged or acquiesced in or consented to by defense counsel ordinarily are
not a basis for reversal on appeal. . . .'" State v. Bailey, 231 N.J. 474, 490 (2018)
(quoting State v. A.R., 213 N.J. 542, 561 (2013)).
Moreover, even if not waived, plaintiff is not entitled to relief on appeal
unless she can show plain error, that is, error "capable of producing an unjust
result . . . ." R. 2:10-2. For a jury charge, "plain error is 'legal impropriety in
the charge prejudicially affecting the substantial rights of the [party] and
sufficiently grievous to justify notice by the reviewing court and to convince the
court that of itself the error possessed a clear capacity to bring about an unjust
result.'" Mason v. Sportsman's Pub, 305 N.J. Super. 482, 495 (App. Div. 1997)
A-1424-16T1
34
(quoting State v. Hock, 54 N.J. 526, 538 (1969)). The failure to provide clear
and correct jury charges "may constitute plain error." Das v. Thani, 171 N.J.
518, 527 (2002).
"The first step in assessing the sufficiency of a contested jury charge . . .
requires an understanding of the legal principles pertinent to the jury's
determination." Estate of Kotsovska, 221 N.J. at 592. At issue here is whether
the Borough's issuance of a stop work order and an action to enforce it, after it
had issued the permits and approvals, constituted a taking of private property
without just compensation in violation of the Federal and State Constitutions.
See U.S. Const. amend. V ("[N]or shall private property be taken for public use,
without just compensation."); N.J. Const. art. I, ¶ 20 ("Private property shall not
be taken for public use without just compensation."). "The New Jersey
Constitution provides protections against governmental takings of private
property without just compensation, coextensive with the Takings Clause of the
Fifth Amendment of the United States Constitution." Klumpp v. Borough of
Avalon, 202 N.J. 390, 405 (2010). The Takings Clause requires the government
to compensate the property owner where a taking occurs. Ibid.A-1424-16T1
35
A constitutional taking can occur by either a regulatory taking, as in this
case, or a "physical taking, in which the government takes title to private
property. . . ." Ibid.When the government physically takes possession of an
interest in property for some public purpose, it has a
categorical duty to compensate the former owner,
regardless of whether the interest that is taken
constitutes an entire parcel or merely a part thereof.
Thus, compensation is mandated when a leasehold is
taken and the government occupies the property for its
own purposes, even though that use is temporary.
[Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg'l
Planning Agency, 535 U.S. 302, 322 (2002) (citation
omitted).]
Deciding whether a regulatory taking has occurred is more "complicated.
. . . As Justice Holmes stated, 'while property may be regulated to a certain
extent, if regulation goes too far it will be recognized as a taking.'" Mansoldo,
187 N.J. at 58 (quoting Pa. Coal Co. v. Mahon, 260 U.S. 393, 415 (1922)). "'One
example of a governmental regulation that has been held to go 'too far' is 'where
[the] regulation denies all economically beneficial or productive use of [the]
land.'" Ibid. (alterations in original) (quoting Lucas v. S.C. Coastal Council,
505 U.S. 1003, 1015 (1992)). "Regulatory takings are fact-sensitive, and the
landowner has the burden of establishing that the regulations have destroyed all
A-1424-16T1
36
economically viable use of the property." Moroney v. Mayor & Council of Old
Tappan, 268 N.J. Super. 458, 463 (App. Div. 1993) (citation omitted).
However, if, as here, "the regulation does not deny all economically
beneficial use under Lucas, then the determination whether the regulation
otherwise constitutes a compensable taking is governed by the standards set
forth in [Penn Central, 438 U.S. at 124]." Mansoldo, 187 N.J. at 59. Under that
analysis, "Penn Central provides '[a]n ad hoc factual inquiry . . . for regulatory
action that diminishes but does not destroy the value of property by restricting
its use.'" Ibid. (alteration in original) (quoting Bronco Wine Co. v. Jolly, 29 Cal.
Rptr. 3d 462, 497 (Ct. App. 2005)). The Penn Central factors include: (1) "[t]he
economic impact of the regulation on the claimant"; (2) "the extent to which the
regulation has interfered with distinct investment-backed expectations"; and (3)
"the character of the governmental action [e.g., physical invasion]." Penn
Central, 438 U.S. at 124.
Plaintiff argues as plain error that the judge erred in failing to instruct the
jury to "determine whether a taking had occurred upon consideration of [the]
multiple factual factors" set forth in Penn Central. She contends that "lost value
is only one factor in the determination. It is neither the sole nor critical factor."
However, she does not argue on appeal, nor did she argue before the trial court,
A-1424-16T1
37
what specific other factors would have been appropriate. In fact, she only
argued before the trial court that the jury should consider the "loss of use, lost
rent." The court appropriately attempted to tailor the charge to that argument
and the evidence by instructing the jury that to establish a partial taking the
Sadejs must show there was a diminishment in the rental value of their property
during the time period from April 2002 to July 2007. See Komlodi v. Picciano,
217 N.J. 387, 420 (2014).
The court also did not, as plaintiff argues, "hopelessly muddle[]" "the
proper measure of damages into a critical element of the claim itself." Under
Penn Central, 438 U.S. at 124, the "economic impact of the regulation on the
claimant" is a factor in determining whether a taking has occurred. Further, the
value by which the remaining part has been diminished as a consequence of a
partial taking is also a measure of damages. See Borough of Harvey Cedars v.
Karan, 214 N.J. 384, 417 (2013) (damages in partial taking calculated as
difference between value of entire tract before taking and the value of remainder
area after taking); see also Model Jury Charges (Civil), "Condemnation—Partial
Taking (Severance Damages)" (1996).
Further, even if, as plaintiff argues, it would have been clearer to
specifically refer to the Penn Central factors, that failure does not constitute
A-1424-16T1
38
plain error because it had no clear capacity to bring about an unjust result. See
Mason, 305 N.J. Super. at 495. The Sadejs did not establish that the issuance of
the stop work order had an "economic impact" on the property. See Penn
Central, 438 U.S. at 124. They presented no evidence as to the value of the
property that was temporarily removed by the Borough, that is, the property they
were unable to improve without "peril" from 2002 to 2007. In fact, after the
court in the underlying action lifted the stop work order in 2002, the Sadejs
chose to complete all of the improvements except the expansion of the garage.
The Sadejs also presented no evidence as to the diminished rental value of the
property. Plaintiff testified only as to rents she later received in 2009, 2014, and
2015, but presented no evidence she would have received a greater amount if
the garage had been completed. The Sadejs could have called the realtors to
establish that loss, but chose not to.
Plaintiff further argues that defendants waived their right to a jury charge
on a partial taking because they did not submit the charge in accord with the
"Firm Jury Trial" order. We disagree.
Defendants initially submitted a request to charge in accord with the order,
which provided that:
A-1424-16T1
39
On or before the scheduled trial date, all attorneys shall
file and provide the trial judge and their adversaries
with the following:
....
Proposed jury charges, with legal authority,
which charges must be tailored to the facts involved in
the instant case. "Boilerplate" charges, those
referenced in Model Charge 1.12, need not be
submitted unless counsel believes a special instruction
is warranted by the facts of the instant case. Any
substantive issue which is not included in the requests
to charge may, in the discretion of the [c]ourt, be
deemed abandoned or may be viewed as an issue for
determination by the [c]ourt rather than by a jury.
Failure to tailor any request to charge to the facts
involved in this case may be viewed as constituting a
request for a general charge and a waiver of a request
for a tailored charge.
Thereafter, immediately before closing arguments, defendants submitted
a request to charge regarding the "partial temporary taking." The court rejected
that charge, and charged the jury, without objection, as set forth above . In
denying the Sadejs' motion for a new trial on this basis, the court found that
the issue of a partial taking evolved during the course
of the trial. Defendants disputed that [p]laintiffs
suffered any taking, whether complete or partial.
Experts on behalf of both sides opined on the issue,
both in their reports and in their testimony to the jury.
This matter was hotly litigated during the trial and
[p]laintiffs' argument that the Firm Trial Order
precludes such issue is simply incorrect.
A-1424-16T1
40
Rule 1:8-7(a) provides as follows:
In Civil Cases. Either within the time provided by
[Rule] 4:25-7 or thereafter but before the close of the
evidence, as to issues not anticipated prior to trial any
party may submit written requests that the court instruct
the jury on the law as set forth in the requests. The
requests shall make specific reference to the Model
Civil Jury Charges, if applicable, or to applicable law.
Copies of the requests shall be provided to all parties at
the time they are submitted to the court. The court
shall, on the record, rule on the requests prior to closing
arguments to the jury.
The court rejected defendants' proposed charge and thus the Sadejs were
not prejudiced by its late submission. Moreover, the court found the issue of a
partial taking evolved during the trial, including by the Sadejs' proposed
witnesses, and thus the Sadejs had ample notice of defendants' position on this
issue. Further, the Sadejs agreed with the court's charge on this issue, which the
court appropriately tailored to the evidence submitted at trial, and thus cannot
show prejudice.
Next, plaintiff argues that defendants "effectively abandoned" the issue of
a partial taking and thus this should have been an uncontested issue at trial. She
contends that the question of whether or not diminished rental income controlled
the issue of a taking had not been raised at any time in the case. However, as
set forth above, the issue evolved over the course of the trial and neither party
A-1424-16T1
41
clearly abandoned it. Moreover, the only evidence the Sadejs submitted in
support of their partial taking claim was the rent they received, and thus they
should not have been surprised when defendants proposed a jury charge on the
issue, and the court tailored the instruction to that evidence. Further, the court
did not, as plaintiff argues, find that defendants had effectively abandoned this
issue in denying defendants' motion for judgment. Instead, the court denied
defendants' motion for judgment on the 42 U.S.C. § 1983 claim.
Lastly, plaintiff argues that the court erred in denying her motion for a
new trial on the same grounds as set forth above. A trial court shall grant a
motion for a new trial "if, having given due regard to the opportunity of the jury
to pass upon the credibility of the witnesses, it clearly and convincingly appears
that there was a miscarriage of justice under the law." R. 4:49-1(a). We must
adhere to essentially the same standard when reviewing the trial court's decision.
Dolson v. Anastasia, 55 N.J. 2, 7 (1969). We find no plain error in the charge
or in the procedures surrounding the charge. Accordingly, the court did not err
in denying plaintiff's motion for a new trial.
IV.
Plaintiff argues, in the alternative, that she is entitled to attorney's fees for
defendants' pursuit of "worthless claims" in the underlying action, and for the
A-1424-16T1
42
fees incurred in the legal malpractice action. She claims defendants took the
position that her claims were viable in the underlying action but argued "exactly
the opposite" during the malpractice action. In support of that argument,
plaintiff cites to French v. Armstrong, 80 N.J.L. 152, 155 (Sup. Ct. 1910).
However that case did not hold that a plaintiff is entitled to attorney's fees for
the pursuit of "worthless claims."
Further, defendants did not, as plaintiff argues, assert during the
malpractice action that the 42 U.S.C. § 1983 and promissory estoppel claims
were "worthless." Instead, defendants posited that the dismissal of those claims
was immaterial because the claims that were preserved were more than sufficient
to provide the Sadejs with their full measure of damages. Accordingly, both
legally and factually, plaintiff's argument is without merit.
Affirmed.
A-1424-16T1
43