DOUGLAS MARTIN VS. BANK OF AMERICA (L-4030-08, MONMOUTH COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-2128-15T4
DOUGLAS MARTIN and
KIMBERLY MARTIN, his wife,
Plaintiffs-Appellants/
Cross-Respondents,
v.
BANK OF AMERICA,
Defendant-Respondent/
Cross-Appellant,
and
MGCC GROUP OF COMPANIES, M.G.C.C. GROUP,
INC.; C.G.I. DEVELOPMENT CO., INC.;
CONSTRUCTION MANAGEMENT CO., INC.; M.G.
INVESTMENT GROUP, INC., CGIMG GROUP, LLC,
JOHN TEDESCO, Member and as an Individual
Owner of CGIMG GROUP, LLC; M.G.T. GROUP,
INC., WILLIAM A. GREENBERG, IRWIN M.
NUDELMAN, and ARTHUR J. GALLY,
Individually, and as Officers, Directors
of Principals of M.G.C.C. GROUP OF
COMPANIES, M.G.C.C. GROUP, INC.,
CRYSTAL CREEK REALTY, INC., C.G.I.
DEVELOPMENT CO., INC., C.G.I. CONSTRUCTION
MANAGEMENT CO., INC., well as ARTHUR
J. GALLY, President of M.G.C.C. GROUP OF
COMPANIES, M.G.C.C. GROUP, INC. and CRYSTAL
CREEK REALTY, INC., ABBINGTON ASSOICIATES,
INC., JAMES P. KOVACS, P.E., L.S.,
Individually and as Principal of
ABBINGTON ASSOCIATES, INC., JAMES R.
IENTILE, INC., JAMES R. IENTILE,
Individually, and as Principal of
JAMES R. IENTILE, INC.; CHARLES E.
LINDSTROM, Individually, ANDERSON
BALLIS & LINDSTROM ASSOCIATES, INC.,
LINDSTROM & DIESSNER ASSOCIATES, PC
CONDO/HOUSE MART INC., HOUSE MART,
INC., SUSAN SMITH and DEBRA BURAGINA,
Defendants,
and
M.G.C.C. GROUP, INC., WILLIAM A.
GREENBERG, IRWIN M. NUDELMAN,
ARTHUR J. GALLY, C.G.I. DEVELOPMENT
CO., INC., C.G.I. CONSTRUCTION MANAGEMENT
CO., INC., M.G. INVESTMENT GROUP, INC.,
JOHN J. TEDESCO, M.G.T. GROUP, INC.,
and CRYSTAL CREEK REALTY INC.,
Individually,
Third-Party Plaintiffs,
v.
TOWNSHIP OF HOWELL,
Third-Party Defendant.
_________________________________________
Submitted May 14, 2018 – Decided July 30, 2018
Before Judges Sabatino, Rose and Firko.
On appeal from Superior Court of New Jersey,
Law Division, Monmouth County, Docket No. L-
4030-08.
Shackleton & Hazeltine, attorneys for
appellants/cross-respondents (Richard J.
Shackleton and Brian J. Coyle, on the briefs).
2 A-2128-15T4
Meyner and Landis, LLP, attorneys for
respondent/cross-appellant (Scott T. McCleary
and Matthew P. Dolan, on the briefs).
PER CURIAM
This appeal and cross-appeal have their genesis in
misrepresentations and omissions by defendant Bank of America's
("BOA") predecessor to the Howell Township Planning Board
("Board"), regarding the third phase of residential development
("section III") of Crystal Creek Estates ("CCE"). Plaintiffs
Douglas and Kimberly Martin purchased a home in CCE's second phase
of development ("section II"), and thereafter sought recovery for
property damages from flooding caused by the construction of
section III. They filed claims against BOA and many others,1
pursuant to the Consumer Fraud Act, N.J.S.A. 56:8-1 to -195
("CFA"), and under common law theories of trespass and nuisance.
Following a six-week jury trial and verdict in their favor,
plaintiffs appeal from certain portions of the December 21, 2015
1
In their second amended complaint, plaintiffs also named as
defendants: M.G.C.C. Group, Inc., C.G.I. Development Co., Inc.,
Construction Management Co., Inc., Crystal Creek Realty Inc., and
their representatives (collectively, "M.G.C.C."). The M.G.C.C.
named the Township of Howell as a third-party defendant. Prior
to trial, plaintiffs' claims against the other individuals and
entities were dismissed with prejudice, either voluntarily or by
way of summary judgment. None of the other defendants is a party
to this appeal.
3 A-2128-15T4
final judgment, claiming the judge erred as a matter of law by:
(1) determining the appropriate measure of damages on the CFA and
trespass claims was the diminution in the market value of their
property, and by limiting those damages to the value assessed by
BOA's expert; (2) reducing their counsel fees and failing to award
prejudgment interest on the fee award;2 (3) permitting the jury to
allocate comparative negligence, thereby reducing the CFA award
by thirty-five percent; and (4) denying their July 21, 2015 motion
for leave to file a third amended complaint alleging legal
abatement so as to conform to the jury's verdict. BOA cross-
appeals, contending the trial judge erred in denying its
applications to dismiss plaintiffs' CFA claim before and during
trial, and the judge's award of fees should have been reduced
further because plaintiffs were only nominally successful in
obtaining monetary relief.3
For the reasons that follow, we reverse the judgment entered
in favor of plaintiffs on their CFA claim and counsel fee award,
2
Plaintiffs also appeal from the January 8, 2016 final order
awarding fees and costs on the same basis.
3
In addition to appealing from the December 21, 2015 final
judgment and January 8, 2016 order, BOA appeals from a December
1, 2010 order denying its motion to dismiss the CFA claim, a
December 27, 2012 order denying summary judgment, and a September
18, 2013 order granting plaintiffs' motion for reconsideration of
an April 22, 2013 order dismissing their CFA claim.
4 A-2128-15T4
thereby rendering moot the appeal and cross-appeal concerning the
adequacy of fees. We affirm that portion of the judgment regarding
the trial court's legal determination on the appropriate measure
of damages for plaintiffs' trespass claim, but vacate the court's
monetary calculation and remand the assessment of trespass damages
for a jury determination. Further, we affirm the trial court's
denial of plaintiffs' application to file a third amended
complaint, and the court's decision that principles of mitigation
of damages apply to the entire verdict.
I.
A.
Initially, we consider the trial court's judgment denying
BOA's motion for involuntary dismissal at the close of plaintiffs'
case, Rule 4:37-2, and judgment at the close of all evidence, Rule
4:40-1. In doing so, we discern the pertinent facts and procedural
history from the trial record, extending to plaintiffs all
favorable inferences. Smith v. Millville Rescue Squad, 225 N.J.
373, 397 (2016).4
4
Plaintiffs would be entitled to comparable inferences in our
review of BOA's summary judgment motions. R. 4:46; Davis v.
Brickman Landscaping, Ltd., 219 N.J. 395, 406 (2014); Brill v.
Guardian Life Ins. Co. of Am., 142 N.J. 520, 536 (1995). Because
we dispose of plaintiffs' CFA claims pursuant to BOA's applications
made during trial, we need not reach BOA's pre-trial applications.
5 A-2128-15T4
At trial, plaintiffs presented evidence that BOA's
predecessor, Fleet Bank NA ("Fleet"),5 concealed engineering plans
and made misrepresentations to the Board in order to obtain final
approvals for section III, which Fleet needed to complete the sale
to co-defendant developer, M.G.C.C. Plaintiffs claimed the
concealed plans indicated that six lots in section II, including
their lot, needed regrading to prevent infiltration by surface and
groundwater runoff from section III. Plaintiffs, who had no direct
contact with BOA, argued if Fleet had disclosed the plans, the
Township would not have approved section III, the developer would
not have purchased the real estate, and in turn their property
would not have flooded.
CCE's subdivision was designed by co-defendant Charles
Lindstrom, the project engineer. Following the Board's approval
of the plan, the Department of Environmental Protection adopted
regulations, which required stormwater management planning for
major developments, and mandated installation of detention basins
to reduce flooding and minimize runoff. To effectuate a properly
functioning drainage system, Lindstrom revised the engineering
5
First Jersey National Bank acquired title by deed in lieu of
foreclosure to land for the development of section III. That bank
was acquired by National Westminster Bank NJ, which became known
as NatWest Bank NA ("NatWest"), which was acquired by Fleet, which
was then acquired by BOA.
6 A-2128-15T4
plan to regrade the rear yards of lots 2-6 in section II so that
they would be level with those of section III.
Although the Board granted site plan approval for section III
in April 1990, work on the project could not commence until several
of its conditions were satisfied. Those conditions included
redesign of the stormwater or detention basin "to meet current
ordinance requirements as to slopes, depth, lot size, etc." In
the meantime, BOA's predecessor, NatWest, contracted to sell
section III to an individual, who later assigned the contract to
M.G.C.C. The contract required NatWest to meet the Board's
conditions for approval and to convey thirty-one buildable lots.
By July 1996, NatWest had been acquired by Fleet, whose
attorney and Lindstrom appeared before the Board. Among other
things, they indicated NatWest was then or formerly the owner of
lots 2-6 in section II, and failed to present an engineering map
depicting the proposed and required regrading of those lots. Based
on the presentation by Lindstrom and Fleet's counsel, the Board
approved section III in August 1996.
In April 2002, Fleet conveyed title of section III to M.G.C.C.
Fleet did not present to M.G.C.C. the engineering map that depicted
the regrading of lots 2-6 in section II. M.G.C.C. then commenced
construction according to the revised approved engineering plans.
When installing the drainage pipes along the south side of Alexis
7 A-2128-15T4
Drive where sections II and III meet, M.G.C.C. discovered the
discrepancy between the revised plans and the actual field
conditions. Specifically, the existing grade of the rear yards
of lots 2-6 in section II was two to three feet below the grade
of section III, causing the trapping of water in the rear yards
of lots 2-6.
Plaintiffs' home is located on Alexis Drive, and designated
as block 184.02, lot 6 on the Township's tax map. The house was
constructed in 1995 by their predecessors in title, Steven and
Linda Lefker. In late 2002, the Lefkers experienced surface water
flooding on their property, and dampness and water in the sump
pump well in their basement. They filed suit against M.G.C.C.6
and the Township, seeking to enjoin further construction of section
III until the plans were redesigned to provide that the homes in
that section would be built at the same elevation as those in
section II.
During the course of litigation, the Lefkers retained Bernard
Berson, a civil engineer. Among other things, Berson opined that:
a discrepancy in the grading elevations was causing the flooding;
changes in the water level of the detention basin might affect
6
M.G.C.C. filed a third-party complaint against Fleet.
8 A-2128-15T4
groundwater elevations on the property; and continued construction
of section III would cause more harm to the property.
In October 2003, the Lefkers settled their claims. According
to the settlement agreement, M.G.C.C. agreed to repurchase the
property for $453,000, pay certain legal fees, and fund a
remediation plan. Fleet contributed toward those costs, but the
Lefkers did not release any claims against the bank.
Pursuant to the remediation plan, M.G.C.C. constructed a
retaining wall to resolve the grade differential and a concrete
swale to carry surface water to a drainage inlet, alleviating
water infiltration. By correspondence dated March 23, 2004, an
authorized representative of M.G.C.C. informed its listing
realtors that it was "important" they advise "any potential
purchasers of [XX] Alexis Drive" about the litigation, the
engineering determination that several homes in section II,
including that home, were constructed below the grade proposed for
section III, and "it is likely that remedial work that will benefit
[XX] Alexis Drive and the neighboring properties will be undertaken
and completed in the future."
In July 2004, M.G.C.C. sold the property to Brian and Dawn
Veprek. The following year, the Vepreks sold the property to
plaintiffs. During their one year of ownership, the Vepreks did
9 A-2128-15T4
not experience any issues with flooding or water intrusion in the
basement.
Plaintiffs obtained a home inspection report before
purchasing the property. The report indicated the basement was
dry, and there was insufficient water in the sump pump pit to test
it. Nonetheless, the inspector recommended plaintiffs regrade the
land from the house to reduce possible moisture intrusion into the
basement. Because "[o]ngoing site preparation for another housing
development at the rear of the property [might] also have an effect
on the drainage of [plaintiffs'] property[,]" the inspector
recommended "it would be prudent to contact the local government
to review the site plans and particularly the discussion on the
effect to adjoining areas such as this property."
Plaintiffs claimed the home inspection did not alert them to
any potential problems with flooding in the yard or the basement.
Although the retaining wall and concrete swale had been constructed
behind the house, and a sump pump and French drain were installed
in the basement when they purchased the home, plaintiffs were not
aware of any flooding or water intrusion problems at that time.
Approximately four months after plaintiffs moved in, M.G.C.C.
continued to dump fill behind plaintiffs' home to raise the
elevation of the abutting section III lots. Plaintiffs claimed
they experienced some backyard and basement flooding during their
10 A-2128-15T4
first year of ownership. Two years after they moved in, however,
plaintiffs installed an in-ground swimming pool and a patio in
their backyard.
As the construction of section III progressed, plaintiffs
testified that the water intrusion became increasingly worse,
causing water to stream into their basement through the walls and
up from the French drains. Snakes were found in the basement,
along with a "little spout of water" squirting from the wall,
interfering with their use of their basement. The flooding did
not interfere, however, with use of their backyard, pool or patio.
Plaintiffs admitted they had not taken measures to remediate
the water damage. They did not regrade the property, as
recommended by their home inspection report; hire an exterminator
to determine the snakes' origin; or waterproof the basement.
The jury returned a verdict in favor of plaintiffs against
BOA on the CFA, trespass, and nuisance claims. The judge set the
amount of damages on the CFA and trespass claims at $25,000, based
on the unrebutted expert testimony of defense real estate
appraiser, Mohammad Imran. The jury awarded $2500 on the nuisance
claim, pertaining to the water infiltration in the basement of
plaintiffs' home. The jury also determined plaintiffs were thirty-
five percent at fault for "fail[ing] to exercise reasonable care
to address the water intrusion." After molding the damage awards
11 A-2128-15T4
accordingly, the judge issued a final judgment against BOA,
awarding plaintiffs treble damages of $48,750 on their CFA claim,
$1625 on the nuisance and trespass claims, and $1,817,937 in
counsel fees and expenses as prevailing parties under the CFA.7
This appeal followed.
B.
A party is authorized by Rule 4:40-1 to move for judgment at
the close of all evidence. A trial judge considering such a motion
must apply this "evidential standard: 'if, accepting as true all
the evidence which supports the position of the party defending
against the motion and according [such party] the benefit of all
inferences which can reasonably and legitimately be deduced
therefrom, reasonable minds could differ, the motion must be
denied[.]'" Smith, 225 N.J. at 397 (second alteration in original)
(quoting Verdicchio v. Ricca, 179 N.J. 1, 30 (2004) (citation
omitted)). We apply the same governing standard when we review a
trial judge's decision on a motion for a directed verdict. Frugis
v. Bracigliano, 177 N.J. 250, 269 (2003). However, we review
7
The judge offset the damages award by thirty-five percent,
representing plaintiffs' allocated share of fault. The judge also
awarded pre-judgment interest in the amount of $3,841 on the CFA
claim and $153 on the nuisance and trespass claims. Pursuant to
the January 8, 2016 order, the judge awarded an additional $15,720
in counsel fees and $1,631 in costs, but denied plaintiffs'
application for pre-judgment interest on their fees.
12 A-2128-15T4
issues of law de novo, according no deference to the trial judge's
conclusions on issues of law. Perez v. Professionally Green, LLC,
215 N.J. 388, 399 (2013) (citing Manalapan Realty, LP v. Twp.
Comm. of Manalapan, 140 N.J. 366, 378 (1995)); Zabilowicz v.
Kelsey, 200 N.J. 507, 512-13 (2009).
As amended in 1971, the CFA "provides a private cause of
action to consumers who are victimized by fraudulent practices in
the marketplace." Gonzalez v. Wilshire Credit Corp., 207 N.J.
557, 576 (2011). "It was enacted 'to combat "sharp practices and
dealings" that victimized consumers by luring them into purchases
through fraudulent or deceptive means.'" Manahawkin Convalescent
v. O'Neill, 217 N.J. 99, 121 (2014) (quoting Cox v. Sears Roebuck
& Co., 138 N.J. 2, 16 (1994)). The CFA prescribes a cause of
action on behalf of "[a]ny person who suffers any ascertainable
loss of moneys or property, real or personal, as a result of the
use or employment by another person of any method, act, or practice
declared unlawful under this act . . . ." N.J.S.A. 56:8-19.
A CFA claim brought by a consumer "requires proof of three
elements: '(1) unlawful conduct by defendant; (2) an ascertainable
loss by plaintiff; and (3) a causal relationship between the
unlawful conduct and the ascertainable loss.'" Manahawkin, 217
N.J. at 121 (quoting Bosland v. Warnock Dodge, Inc., 197 N.J. 543,
557 (2009)). "A plaintiff who proves all three elements may be
13 A-2128-15T4
awarded treble damages, 'attorneys' fees, filing fees and
reasonable costs of suit.'" Ibid. (quoting N.J.S.A. 56:8-19).
Pursuant to N.J.S.A. 56:8-2, an "unlawful practice" includes:
any unconscionable commercial practice,
deception, fraud, false pretense, false
promise, misrepresentation, or the knowing,
concealment, suppression, or omission of any
material fact with intent that others rely
upon such concealment, suppression or
omission, in connection with the sale or
advertisement of any merchandise or real
estate, or with the subsequent performance of
such person as aforesaid, whether or not any
person has in fact been misled, deceived or
damaged thereby . . . .
"An 'unlawful practice' contravening the CFA may arise from (1)
an affirmative act; (2) a knowing omission; or (3) a violation of
an administrative regulation." Dugan v. TGI Fridays, Inc., 231
N.J. 24, 51 (2017) (citation omitted).
Here, there was sufficient evidence to support the jury's
verdict as to the first CFA element. For example, BOA's
predecessor committed unlawful acts in misrepresenting to the
Board its ownership of lots 2-6 in section II, and in omitting,
with the intent to deceive M.G.C.C., an engineering map depicting
"the proposed and required regrading of [s]ection II, lots 2
through 6."
The crux of BOA's argument concerning the CFA, however, is
the lack of a causal connection between the unlawful conduct
14 A-2128-15T4
surrounding the conveyance of section III and plaintiffs' purchase
of their home in section II. In contrast to common law fraud, the
causation element of N.J.S.A. 56:8-19 is not "the equivalent of
reliance." Dugan, 231 N.J. at 53 (quoting Lee v. Carter-Reed Co.,
203 N.J. 496, 522 (2010)). Instead, in a private action, "the CFA
requires a showing of 'a causal relationship between the unlawful
conduct and the ascertainable loss.'" Ibid. (quoting Bosland, 197
N.J. at 557). The statutory phrase "as a result of" connotes a
"causal nexus requirement." Bosland, 197 N.J. at 557-58 (quoting
N.J.S.A. 56:8-19). However, contractual privity is not required
to bring a CFA claim. Perth Amboy Iron Works, Inc. v. Am. Home
Assurance Co., 226 N.J. Super. 200, 210-11 (App. Div. 1988).
Our courts "have generally found causation to be established
for CFA purposes when a plaintiff has demonstrated a direct
correlation between the unlawful practice and the loss; they have
rejected proofs of causation that were speculative or attenuated."
Heyert v. Taddese, 431 N.J. Super. 388, 421 (App. Div. 2013). A
"complete lack" of any relationship between the defendant's
unlawful conduct and the plaintiff's loss compels a finding of a
lack of causation under the CFA. Marrone v. Greer & Polman
Constr., Inc., 405 N.J. Super. 288, 296 (App. Div. 2009); see also
Sullivan, N.J. Consumer Fraud, § 11:2-2 (2018).
15 A-2128-15T4
In cases in which the alleged misrepresentation was made to
a prior purchaser and not to a plaintiff asserting the CFA claim,
we have held there was a fatal lack of proof of a causal connection
between the misrepresentation and the alleged loss. See Dean v.
Barrett Homes, Inc., 406 N.J. Super. 453, 462 (App. Div. 2009);
Marrone, 405 N.J. Super. at 295-297; O'Loughlin v. Nat'l Cmty.
Bank, 338 N.J. Super. 592, 606-07 (App. Div. 2001); Chattin v.
Cape May Greene, Inc., 216 N.J. Super. 618, 641 (App. Div. 1987).
For example, in Chattin, a group of homeowners instituted a
class action suit against the builder for damages allegedly caused
by defective windows. Chattin, 216 N.J. Super. at 622. The trial
court dismissed the claims filed by subsequent home purchasers,
holding only the plaintiffs who had had direct contact with the
builder could recover under the CFA. Id. at 624. We affirmed,
finding:
Plaintiffs' argument that subsequent
purchasers of homes should have been permitted
to recover consumer fraud damages, even though
they never received either the brochure or any
oral representation from [the builder]
concerning the windows, is clearly lacking in
merit. There is no basis for finding a
violation of the [CFA] with respect to these
purchasers because [the builder] made no
representation to them. Stated another way,
these purchasers have not suffered "any
ascertainable loss of moneys or property" as
a result of [the builder's] use of a practice
declared unlawful by the [CFA], and hence they
have no claim under N.J.S.A. 56:8-19.
16 A-2128-15T4
[Id. at 641.]
Similarly, in O'Loughlin v. National Community Bank, 338 N.J.
Super. 592, 606-07 (App. Div. 2001), we discerned no basis for a
CFA claim where the defendant bank, which, like BOA here, had
acquired title by deed in lieu of foreclosure to unsold units, but
had not sold the condominium units to the plaintiffs, or made
promises to the plaintiffs that were connected to the sale of the
units. The record also did not reveal "any specific conduct in
violation of the [CFA] on the part of the Bank associated with
plaintiffs' individual units, occurring subsequent to the time the
Bank obtained title." Id. at 606.
Further, we relied on Chattin in deciding Marrone. In
Marrone, the plaintiffs asserted CFA claims against the
manufacturer and distributor of defective exterior siding, which
was used to build their home, eight years before they purchased
it. Marrone, 405 N.J. Super. at 291. The original owners were
unaware that the siding was defective and had not experienced any
problems with it. Id. at 295. After the plaintiffs bought the
home, they discovered both the siding was defective and that it
was improperly installed. Id. at 292. We affirmed the dismissal
of the CFA claims because there was "a complete lack of proof of
a causal connection between the . . . defendants' alleged
17 A-2128-15T4
misrepresentations about their product and plaintiffs' decision
to purchase the house." Id. at 296.
Thereafter, in Dean, we adopted our reasoning in Marrone,
affirming the dismissal of CFA claims where a subsequent owner
sued the same manufacturer of defective siding. Dean, 406 N.J
Super. at 462. The court found that the plaintiffs "neither
received nor relied on any misrepresentation" by the defendants,
and that there was "no nexus between plaintiffs' purchase of the
house and [the defendants'] conduct or lack thereof." Ibid.In the present case, as in Chattin, O'Loughlin, Marrone, and
Dean, BOA had no contact with plaintiffs, and did not make any
misrepresentations or omissions to them. Rather, the proofs
adduced at trial established that BOA's predecessor made
misrepresentations and omissions in order to gain site plan
approval for section III, and to sell the real estate to M.G.C.C.,
which did not construct plaintiffs' home in section II nor sell
the property to them.
Indeed, plaintiffs' alleged connection with BOA is even more
tenuous than that of the plaintiffs in Dean, Marrone, O'Loughlin,
and Chattin. Plaintiffs' causal theory that if the Township had
not granted the approval, M.G.C.C. would not have purchased the
property, section III would not have been built, and their property
in section II would not have flooded, is speculative and
18 A-2128-15T4
attenuated. In particular, there is no proof that if M.G.C.C.
declined to purchase the property, that section III, for which the
Board had already granted conditional approval, and had been
remediated pursuant to the Lefkers' settlement agreement, would
not have been built by another developer.
Further, we are not persuaded by plaintiffs' reliance on
Matera v. M.G.C.C. Group, Inc., 402 N.J. Super. 30 (Law Div. 2007).
There, the Matera court reinstated8 the CFA claims of adjoining
property owners in section II who, like plaintiffs here, purchased
their properties from individual owners and not from BOA. Id. at
42. Those CFA claims were grounded in the same misrepresentations
and omissions made by BOA's predecessor to the Board in July 1996.
Id. at 34-35. Citing Gennari v. Weichert Company Realtors, 148
N.J. 582 (1997), the Matera court found significant that "the
Court stated a violator of the [CFA] is liable for any
misrepresentations whether 'any person has in fact been misled,
deceived, or damaged thereby . . . it did not say any party.'"
Id. at 41. The Matera court then determined BOA's alleged
misrepresentations to the Board and M.G.C.C. damaged the
plaintiffs, holding "that although some nexus is necessary to
8
The Law Division judge reinstated the claims following
plaintiffs' motion for reconsideration of his earlier order,
dismissing the CFA claims on summary judgment.
19 A-2128-15T4
establish a claim under the [CFA], that nexus need only be between
the alleged unlawful conduct and the ascertainable loss; it
requires no contact between the parties." Ibid.
The Matera court's reasoning is not binding on us, nor do we
find it persuasive. Initially, the Gennari Court did not emphasize
the distinction between "any person" and "any party." Further in
Gennari, the misrepresentations at issue were statements by the
defendant realtor to plaintiffs concerning the builder's
qualifications and experience. Gennari, 148 N.J. at 589-90. We
note here, as we did in Marrone, Gennari "is not on point."
Marrone, 405 N.J. Super. at 296, n.4. Rather, as we found in
Marrone, "in this case, there is not only a lack of privity, there
is a complete lack of proof of a causal connection between [BOA's]
alleged misrepresentations . . . and plaintiffs' decision to
purchase the house." Id. at 296.
Consistent with our prior holdings, we are satisfied the
undisputed facts adduced at trial demonstrate a lack of causation
that was fatal to plaintiffs' CFA claim as a matter of law. We,
therefore, vacate the December 21, 2015 final judgment in so far
as it awarded damages and attorney's fees on plaintiffs' CFA
claims, and the trial court's January 8, 2016 order awarding
counsel fees.
20 A-2128-15T4
II.
A.
We next consider plaintiffs' argument that the court erred
in determining the proper measure of damages to their property as
the diminution in its market value, and not the cost of
restoration.9 Although we have vacated that portion of the
judgment awarding damages for plaintiffs' CFA claim, the court's
legal determination concerning the measure of damages is also
applicable to plaintiffs' trespass claim. In setting forth the
facts from the record pertaining to that motion, plaintiffs are
not entitled to the same benefit of favorable inferences as the
CFA claim dismissed pursuant to Rule 4:37-2 and Rule 4:40-1.
Initially, we note the December 21, 2015 final judgment
appears to be at odds with the jury charge and verdict sheet. In
particular, the judgment indicates the jury awarded $25,000 for
plaintiffs' CFA claims, and $2500 for plaintiffs' combined
trespass and nuisance claims. However, the trial court instructed
the jury that if they "find in favor of plaintiffs on their [CFA]
claims, [and] trespass claim . . . the [c]ourt's legal rulings
9
Following plaintiffs' pretrial motion to bar Imran from
testifying about the diminution in value, the parties agreed that
evidence of both damages theories would be presented to the jury,
and, at the close of the evidence, the judge would decide the
appropriate measure of damages as a matter of law.
21 A-2128-15T4
have already addressed the measure of damages to which plaintiffs
are entitled and . . . you will not have to calculate those
damages." (Emphasis added).
Further, the verdict sheet contains two separate questions
for the jury to consider regarding plaintiffs' nuisance claims,
i.e., "damages for annoyance, inconvenience, or discomfort." One
question addresses plaintiffs' nuisance claims for damage to the
basement, for which the jury awarded $2500. The other question
pertains to plaintiffs' nuisance claims for damage to the backyard.
The jury did not award any damages for that claim. Thus, it
appears that the $25,000 judgment includes the trial court's
determination of damages for both the CFA and trespass claims, and
the $2500 award pertains solely to plaintiffs' nuisance claim
regarding the basement.
Pertinent to the judge's determination, plaintiffs presented
evidence that restoration costs, including raising the grade of
the house, pool, deck, patio and grounds three feet to the level
of the abutting section III properties, totaled approximately
$750,000. They presented no evidence as to the diminution in
value or the cost of waterproofing the basement.
Conversely, BOA adduced proof that the diminution in value
of the property totaled $25,000, representing $475,000 for the
value of house without water infiltration, less $450,000 for the
22 A-2128-15T4
value of house as adjusted by what appeared to be a one-time water
infiltration. BOA also presented evidence that it would cost
$28,000 to completely waterproof the basement.
At the close of all evidence the judge issued a lengthy oral
opinion, observing:
the [restoration] costs put forth by
plaintiffs are not reasonable. This is not a
unique bit of property. [Plaintiffs] have
said that they simply want to live in Howell
Township because of the school system. They
[have] not identified anything unique about
this particular property such that it would
not constitute unreasonable economic waste to
invest $750,000 into a house that is
apparently worth $450,000.
Considering as I must the overall
limitation of reasonableness, the [c]ourt
finds that diminution in value better reflects
the plaintiffs' actual loss, rather than the
restoration costs.
In so ruling, the judge found that plaintiffs were seeking
more than restoration costs, i.e., "a change in the topography of
their property. They're asking that soil be added to the property
that wasn't there. They're asking that the house be put in a
position it never was in before. They're asking for new vegetation
. . . ." Further, "They are asking for a very different house
than the one that the[y] purchased."
23 A-2128-15T4
B.
"[W]e review de novo the trial court's legal determination
as to the appropriate measure of damages" for plaintiffs' common
law claims. Mosteller v. Naiman, 416 N.J. Super. 632, 637 (App.
Div. 2010) (citing Manalapan Realty, 140 N.J. at 378). "The
appropriate measure of damages for injury done to land is a complex
subject and courts have responded to such claims in a great variety
of ways depending upon the evidence in the particular case."
Velop, Inc. v. Kaplan, 301 N.J. Super. 32, 64 (App. Div. 1997)
(citing Daniel B. Dobbs, Remedies, §§ 5.2-5.16 at 310-34 (1973)).
"In almost every case [concerning damages to real property],
one of two measures is employed." Mosteller, 416 N.J. Super. at
638. Both measures have "a wide sphere of application, and the
court's selection of one test or the other is basically an
assessment of which is more likely to afford full and reasonable
compensation." Ibid. (quoting Velop, 301 N.J. Super. at 64).
The first measure, described as the "most commonly mentioned
in the opinions," is diminution of value. Velop, 301 N.J. Super.
at 64 (citation omitted). "Under this measure the plaintiff is
entitled to recover the difference in the value of his property
immediately before and immediately after the injury to it, that
[is], the amount his property has diminished in value as a result
of the injury." Ibid.
24 A-2128-15T4
The diminution-of-market-value measure of damages is
generally applicable in cases in which the harm to land is
permanent. Woodsum v. Pemberton, 177 N.J. Super. 639, 646 (App.
Div. 1981); see also 8 Thompson on Real Property, Third Thomas
Edition, § 67.06(a)(2) at 157 (David A. Thomas ed. 2016) (permanent
damages for harm to property are measured by depreciation in market
value of the property). This measure has been applied in similar
cases involving damage caused by excessive excavation on an
adjoining lot, McGuire v. Grant, 25 N.J.L. 356, 368 (1856) (measure
of damages "is not what it will cost to restore the lot to its
former situation, or to build a wall to support it, but what is
the lot diminished in value by reason of the acts of the
defendant"), and involving damage caused by the overflow of water
resulting from the negligent maintenance of drainage pipes and
ditches, Kita v. Borough of Lindenwold, 305 N.J. Super. 43, 51
(App. Div. 1997).
The second measure, "the replacement-cost or restoration-cost
measure[,] . . . 'awards the plaintiff the reasonable cost of
restoring or repairing the damage.'" Mosteller, 416 N.J. Super.
at 638 (quoting Velop, 301 N.J. Super. at 64). This measure is
generally applied where the damage is temporary. Woodsum, 177
N.J. Super. at 646. For example, restoration-cost was applied in
a faulty construction case involving damage from the defective
25 A-2128-15T4
installation of glass panels. St. Louis, LLC v. Final Touch Glass
& Mirror, Inc., 386 N.J. Super. 177, 194 (App. Div. 2006).
Further, the Restatement (Second) of Torts section 929 (Am.
Law Inst. 1979), as cited and generally accepted by our courts,
see Ayers v. Jackson, 106 N.J. 557, 571 (1987), and Siligato v.
State, 268 N.J. Super. 21, 31 (App. Div. 1993), affords a plaintiff
the option to elect the measure of damages as follows:
(1) If one is entitled to a judgment for harm
to land resulting from a past invasion and not
amounting to a total destruction of value, the
damages include compensation for
(a) the difference between the value of the
land before the harm and the value after the
harm, or at his election in an appropriate
case, the cost of restoration that has been
or may be reasonably incurred . . . .
[Emphasis added.]
Although the Restatement does not explicitly define
"appropriate case," comment b to subsection 1(a) of section 929
of the Restatement (emphasis added) explains:
Restoration[:] Even in the absence of value
arising from personal use, the reasonable cost
of replacing the land in its original position
is ordinarily allowable as the measure of
recovery. Thus if a ditch is wrongfully dug
upon the land of another, the other normally
is entitled to damages measured by the expense
of filling the ditch, if he wishes it filled.
If, however, the cost of replacing the land
in its original condition is disproportionate
to the diminution in the value of the land
caused by the trespass, unless there is a
26 A-2128-15T4
reason personal to the owner for restoring the
original condition, damages are measured only
by the difference between the value of the
land before and after the harm. This would
be true, for example, if in trying the effect
of explosives, a person were to create large
pits upon the comparatively worthless land of
another.
On the other hand, if a building such as a
homestead is used for a purpose personal to
the owner, the damages ordinarily include an
amount for repairs, even though this might be
greater than the entire value of the building.
So, when a garden has been maintained in a
city in connection with a dwelling house, the
owner is entitled to recover the expense of
putting the garden in its original condition
even though the market value of the premises
has not been decreased by the defendant's
invasion.
In selecting between these two measures of quantifying
property damages, our courts have recognized that "it can be unfair
to use the restoration-cost method when 'the cost of repairs vastly
exceeds . . . the probable market value of the property.'"
Mosteller, 416 N.J. Super. at 638 (alteration in original) (quoting
Correa v. Maggiore, 196 N.J. Super. 273, 285 (App. Div. 1984));
see also Model Jury Charge (Civil), 8.40, "Trespass to Real
Property" (2018) ("The measure of damages to be awarded to a
plaintiff entitled to a verdict is the difference between the fair
market value of his/her property before and after the trespass by
the defendant.").
27 A-2128-15T4
For example, in Correa, 196 N.J. Super. at 277, the
plaintiffs, who purchased a home from the defendant for $25,000,
brought an action to recover damages allegedly caused by
defendant's deliberate concealment of latent defects. The jury
awarded the plaintiffs $33,000 in compensatory damages, reflecting
the cost to raise and straighten the house. Id. at 279-80. We
reversed the damage award, finding that "the cost of repairs
approach should not be employed where . . . it would result in
'unreasonable economic waste.'" Id. at 285 (quoting 525 Main St.
Corp. v. Eagle Roofing Co., 34 N.J. 251, 255 (1961)). We reasoned
as follows:
By virtue of the age of the building and its
present condition, the cost of reconstruction
is not an appropriate measure of plaintiff's
loss. This is so because the cost of repairs
vastly exceeds the contract price and the
probable market value of the property. It
would be anomalous to compel defendant to
provide plaintiff with what essentially
amounts to a totally refurbished home, which
would be a result far exceeding what is
necessary to make plaintiff whole. Rather,
the diminution in value caused by defendant's
deceit better reflects plaintiff's actual loss
and satisfies the reasonable expectations of
the parties.
[Id. at 285-86.]
Nonetheless, our courts have recognized that in some
circumstances, "reasonable repair costs that exceed the diminution
of the property's value are appropriate . . . [such as] 'where the
28 A-2128-15T4
property owner wishes to use the property rather than sell it.'"
Mosteller, 416 N.J. Super. at 638 (quoting Velop, 301 N.J. Super.
at 64). As plaintiffs argue, restoration costs may be appropriate
in instances where the land is used as a residence, Berg v.
Reaction Motors Division, 37 N.J. 396, 412 (1962), or where the
property had a peculiar value to the owner. Huber v. Serpico, 71
N.J. Super. 329, 345 (App. Div. 1962).
However, contrary to plaintiffs' argument, restoration costs
are not a mandatory measure of damages in "homestead" cases. See
525 Main St. Corp., 34 N.J. at 255 (appropriate measure of damage
"rests in good sense rather than in a mechanical application of a
single formula"); Mosteller, 416 N.J. Super. at 640 (restoration
cost "approach should not be applied mechanically"). "[T]he
'cardinal principles are flexibility of approach and full
compensation to the owner, within the overall limitation of
reasonableness.'" Mosteller, 416 N.J. Super. at 640 (quoting
Huber, 71 N.J. Super. at 346).
Here, although plaintiffs had a "reason personal" for seeking
to restore the property, as the trial judge properly found,
completion of the repairs would result in "unreasonable economic
waste." 525 Main St. Corp., 34 N.J. at 255; Mosteller, 416 N.J.
Super. at 642; St. Louis, LLC, 386 N.J. Super. at 188; Velop, 301
N.J. Super. at 64-66; Correa, 196 N.J. Super. at 285. As the
29 A-2128-15T4
trial judge aptly recognized, plaintiffs' restoration costs of
$750,000 to regrade the property and raise the house, would exceed
what is necessary to make plaintiffs whole. See Correa, 196 N.J.
Super. at 285-86. Indeed, restoration would completely change the
condition of the property. Additionally, the cost of restoration
greatly exceeds the $25,000 diminution in the market value of the
property especially where, as here, there was evidence in the
record that plaintiffs could completely waterproof their basement
for $28,000.
Moreover, the property flooded years before plaintiffs
purchased it in 2005, and both BOA and M.G.C.C. attempted to
remediate the issue. As the judge properly found, the present
action is distinguishable from Berg, where the Court found the
plaintiffs were entitled to restoration of their home to the
"condition immediately prior to the defendant's activities."
Berg, 37 N.J. at 412. Thus, awarding plaintiffs full restoration
costs of $750,000 would be unreasonable and would not represent
their actual loss. Accordingly, diminution in value was the
appropriate measure of damages because it was "more likely to
afford full and reasonable compensation." Mosteller, 416 N.J.
Super. at 638.
30 A-2128-15T4
C.
Although the trial court properly determined the measure of
trespass damages, we part company with its determination of the
amount of those damages as a matter of law. In reaching a $25,000
damage amount, the judge cited the unrefuted testimony of Imran.
The judge reasoned:
[A]ssessing the value of the property is
beyond the ken of the jury. It's beyond the
ken of a normal person. That requires
training. That requires experience in real
estate. Experience in real estate around
areas that have flood issues like Monmouth
County . . . and the only evidence before them
on that is Mr. Imran.
[Plaintiffs' counsel] challenged him,
. . . . But there's no countervailing
assessment. Right? So, I think to say, gosh,
he should have taken into consideration other
factors, you may be right about that. But
then to say that it's up to the jury to
determine how much more they should give,
that's the part I'm concerned about. Because
I think then you're asking them to engage in
an analysis that only an expert is qualified
to do.
. . . .
There was no expert to say . . . his estimate
is way off. The . . . diminution of value of
the property is substantially more than
$25,000. There's no other testimony to that
effect on diminution of value. There just
isn't.
And I think that it's a matter of expert
opinion. It's a matter for an expert. I
think speculating on how water damage impacts
31 A-2128-15T4
the value of the house, is beyond the ken of
an average juror. And . . . there's no
countervailing expert . . . .
Plaintiffs contend damages should have been determined
instead by the jury, citing the court's recognition that
"ultimately once the [expert] testimony is presented, it's for the
jury to weigh that credibility." Among other things, plaintiffs
also claim Imran was not aware of "the true condition of [their]
backyard and basement." In particular, Imran confirmed "that no
one gave [him] any information that there was an elevated
groundwater table beneath this house." Because a jury may accept
or reject expert testimony, we agree with plaintiffs that the
amount of trespass damages should have been determined by the
jury, as the factfinder, here.
"Expert testimony is generally required to determine the fair
market value of real property . . . ." Pansini Custom Design
Assocs., LLC v. City of Ocean City, 407 N.J. Super. 137, 143 (App.
Div. 2009); see also Smart SMR v. Borough of Fair Lawn Bd. of
Adjustment, 152 N.J. 309, 336 (1998) (proof of adverse effect by
construction of a telecommunications tower on adjacent properties
will generally require qualified expert testimony); Jacobitti v.
Jacobitti, 263 N.J. Super. 608, 613 (App. Div. 1993) (cautioning
"trial judges against fixing market value of real property without
the benefit of expert appraisal evidence"). "Nevertheless, expert
32 A-2128-15T4
testimony need not be given greater weight than other evidence nor
more weight than it would otherwise deserve in light of common
sense and experience." Torres v. Schripps, Inc., 342 N.J. Super.
419, 430 (App. Div. 2001). Significantly, "a factfinder is not
bound to accept the testimony of an expert witness, even if it is
unrebutted by any other evidence." Id. at 431; Model Jury Charge
(Civil), 1.13, "Expert Testimony" (2018) (instructing that jurors
"are not bound by the testimony of an expert[;] . . . may give it
whatever weight [they] deem is appropriate[;] [and] may accept or
reject all or part of an expert's opinion(s)").
Here, as the trial court observed, BOA's real estate appraiser
testified, without objection or refutation by a competing expert,
that the diminution in value of the property was approximately
$25,000. However, the jury was free to "accept or reject" Imran's
expert testimony. That liberty is especially applicable here
where Imran admitted he was unaware of the extent of flooding on
the property. Because Imran did not consider the property's entire
flooding history in calculating the appraised value, the jury
might not have perceived his testimony as unrefuted, and could
have accepted or rejected his $25,000 opinion of the diminution
in value of plaintiffs' property. As such, trespass damages should
have been determined by the jury. However, there is no reason to
set aside the jury's award for nuisance damages to the basement.
33 A-2128-15T4
We, therefore, find the trial judge erred in removing from
the jury's consideration the amount of damages on plaintiffs'
trespass claim. Accordingly, we vacate the portion of the December
21, 2015 judgment awarding plaintiffs $25,000, and remand for a
new trial on damages, only, as to plaintiffs' trespass claim.
However, as discussed, infra, the thirty-five percent "avoidable
consequences" offset, determined by the first jury, shall be
applied to reduce any new jury award for trespass damages.
In addressing the matters on remand, the trial court should
conduct a case management conference within thirty days to set a
schedule for revised or additional expert reports, limited to
diminution in current market value, and to fix a new trial date.
To avoid repetition and undue expense, the parties are encouraged
to confer and reach stipulations, where applicable.
III.
Plaintiffs' argument that the trial court erred in denying
their application to file a third amended complaint, more than one
year after the jury verdict, lacks sufficient merit to warrant
discussion. R. 2:11-3(e)(1)(E). Further, we find equally
unavailing plaintiffs' contention that they were not comparatively
negligent. Because we are remanding for the jury to assess damages
on plaintiffs' trespass claim, we add the following brief comments.
Pursuant to the Comparative Negligence Act, a plaintiff's
34 A-2128-15T4
negligence shall not bar recovery in an action
by any person or his legal representative to
recover damages for negligence resulting in
death or injury to person or property, if such
negligence was not greater than the negligence
of the person against whom recovery is sought
or was not greater than the combined
negligence of the persons against whom
recovery is sought.
[N.J.S.A. 2A:15-5.1.]
As such, "when the plaintiff's negligence exceeds each defendant's
negligence . . . the plaintiff's cause of action cannot be
sustained." Vega by Muniz v. Piedilato, 154 N.J. 496, 528 (1998).
In this action, the jury determined "[p]laintiffs' damages
could have been avoided or alleviated by [p]laintiffs' exercise
of reasonable care to address the water intrusion." The jury then
assessed plaintiffs' percentage of damages for that failure.
Because plaintiffs offered proofs "that BOA committed intentional
torts," they maintain "there is no way that apportionment as to
fault can be made against [them]." Plaintiffs' argument is
misplaced. Restatement § 821D cmt. d. (recognizing that under
trespass and private nuisance theories "liability may arise from
an intentional or an unintentional invasion").
Further, "The doctrine of 'avoidable consequences,' otherwise
known as the duty to mitigate damages, is based on the premise
that 'a plaintiff may not recover damages for injuries which he
may have avoided.'" Russo Farms v. Vineland Bd. of Educ., 144
35 A-2128-15T4
N.J. 84, 108 (1996) (quoting Barry v. Coca Cola Co., 99 N.J. Super.
270, 275 (Law Div.1967)). "As opposed to contributory negligence,
the doctrine of avoidable consequences 'normally comes into action
when the injured party's carelessness occurs after the defendant's
legal wrong has been committed.'" Id. at 108-09 (quoting Ostrowski
v. Azzara, 111 N.J. 429, 438 (1988)); see also Dan B. Dobbs,
Remedies, §§ 3.7 at 186 (1973).
Here, plaintiffs admitted they had not taken measures to
remediate the water damage. For example, they did not regrade,
as recommended by their home inspector, attempt to waterproof the
basement, nor hire an exterminator to determine the snakes' origin.
We see no reason, therefore, to disturb the trial court's
determination that principles of mitigation of damages applied to
the entire verdict.
Affirmed in part, reversed in part, and remanded for further
proceedings consistent with this opinion. We do not retain
jurisdiction.
36 A-2128-15T4