STATE OF NEW JERSEY VS. ANDREW ALFORD(13-08-2522, CAMDEN 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NOT FOR PUBLICATION WITHOUT THE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-1464-15T3

BASHAR SABBAGH,

Plaintiff-Appellant,

v.

DIVA MULLER,

Defendant-Respondent.
___________________________

Submitted December 14, 2016 – Decided April 26, 2017

Before Judges Accurso and Manahan.

On appeal from Superior Court of New Jersey,
Law Division, Bergen County, Docket No. L-
449-14.

Bashar Sabbagh, appellant pro se.

William J. Pollinger, P.A. and Eckert,
Seamans, Cherin & Mellott, L.L.C., attorneys
for respondent (Mr. Pollinger and
Christopher E. Torkelson, of counsel and on
the brief).

PER CURIAM

This is a dispute between neighbors who share a common rear

lot line. The house on plaintiff Bashar Sabbagh's property was

destroyed by fire in 2004. In 2007, plaintiff received
approvals to build a new house on the lot. In the course of

clearing the property for the new construction, a large oak tree

plaintiff was attempting to remove fell into defendant Diva

Muller's backyard, damaging or destroying several mature shade

trees. Defendant apparently sued plaintiff in 2007 to recover

for the damage, resulting in plaintiff voluntarily paying

defendant $15,000 to resolve the matter.

In 2012 during Superstorm Sandy, a large tree on

defendant's property was uprooted and fell into plaintiff's

backyard, destroying several recently planted saplings.

Plaintiff instituted this action to recover damages he claimed

totaled $15,000. Defendant counterclaimed asserting that

efforts begun by plaintiff in 2011 to regrade his property had

resulted in increased runoff of rainwater and silt flowing from

plaintiff's property and causing ponding on defendant's land.

She sought injunctive relief and damages of $15,000.

Defendant later submitted an expert report from a landscape

architect assessing her damages at $40,000, consisting of

$10,000 for the installation of two seepage tanks, twenty new

trees costing $24,000 and $6000 in grading and lawn repairs.

The detail for the latter figure provided for "[r]emoval of

existing silt and soil runoff[,] [l]awn repairs associated with

2 A-1464-15T3
installation of seepage tanks and tree plantings [a]pproximately

6,000sf."

The matter proceeded to a one-day bench trial before Judge

Bachmann. Plaintiff and defendant both testified, as did

defendant's expert landscape architect. Plaintiff did not

present an expert. The central issue on plaintiff's claim was

whether the tree that fell into his yard during Sandy was one of

the trees previously damaged in 2007 when his oak toppled onto

defendant's property. Plaintiff maintained it was, and thus

that defendant had notice of the tree's weakened condition prior

to Sandy. Defendant claimed it was not one of the trees that

suffered damage in 2007, which she claimed were in another area

of her backyard. She further claimed she saw workers cut up the

tree uprooted in Sandy and observed that it was perfectly

healthy. Neither party presented any proofs on the issue beyond

their testimony.

Judge Bachmann found both parties credible, leaving the

evidence on the point in equipoise. He accordingly dismissed

plaintiff's claim, finding he had failed to carry his burden to

prove that defendant breached her duty of reasonable care or

that any act of defendant was the proximate cause of her tree's

uprooting. See Burke v. Briggs, 239 N.J. Super. 269, 275 (App.

Div. 1990).

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 On the counterclaim, the judge was persuaded by the

testimony of both parties that plaintiff's installation of a

seepage pit at the rear of his property and reseeding the grass

had "alleviated all or almost all of the water infiltration

problems." He thus denied any injunctive relief, including

installation of seepage pits on defendant's property or the

planting of new trees. The judge found, however, based on the

testimony and the photographs in evidence, that although

defendant's backyard was now dry, it "is silt covered in areas

and is no longer level and lush with grass." Relying on the

testimony of defendant's expert, the judge found "the area that

must be re-graded is 6,000 square feet." Using the expert's

calculation of an industry standard of a dollar a square foot

for topsoil, seed and fertilizer, the judge awarded defendant

$6000 on her counterclaim.

Plaintiff appeals both the dismissal of his complaint and

the judgment on defendant's counterclaim, contending the judge's

decision was against the weight of the evidence.1 In addition to

1 Although represented by counsel at the trial level, plaintiff
is pro se on appeal. In his brief, he argues that he "incurred
damages as a result of the [defendant's] failure to remove
damaged trees and therefore [defendant] should be liable for the
expenses incurred by the [plaintiff]." As he agrees that Burke
v. Briggs is the controlling law, we understand his argument to
(continued)

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contesting liability on the counterclaim, plaintiff argues the

court erred in assessing damages. He claims the area of lawn to

be repaired is less than 6000 square feet, as the expert

included repairs to areas disturbed by the installation of

seepage pits and trees that the court denied as unnecessary.

Final determinations made by the trial court sitting in a

non-jury case are subject to a limited and well-established

scope of review: "we do not disturb the factual findings and

legal conclusions of the trial judge unless we are convinced

that they are so manifestly unsupported by or inconsistent

with the competent, relevant and reasonably credible evidence

as to offend the interests of justice." In re Trust Created

By Agreement Dated Dec. 20, 1961, ex rel. Johnson, 194 N.J.

276, 284 (2008) (quoting Rova Farms Resort, Inc. v. Investors

Ins. Co. of Am., 65 N.J. 474, 484 (1974) (internal quotations

and citations omitted)). "Deference is especially appropriate

when the evidence is largely testimonial and involves

questions of credibility. Because a trial court hears the

case, sees and observes the witnesses, and hears them testify,

it has a better perspective than a reviewing court in

(continued)
be directed to the trial court's assessment of the evidence
adduced at trial.

5 A-1464-15T3
evaluating the veracity of witnesses." Seidman v. Clifton

Sav. Bank, S.L.A., 205 N.J. 150, 169 (2011) (quoting Cesare v.

Cesare, 154 N.J. 394, 411-12 (1998) (citations, internal

quotation marks and editing marks omitted)). We exercise our

own "original fact finding jurisdiction sparingly and in none

but a clear case where there is no doubt about the matter."

Ibid.

Applying those standards here makes clear the trial

court's judgment on both plaintiff's claim and defendant's

counterclaim must be affirmed. The only evidence the parties

presented on the question of whether the tree uprooted in

Sandy was one of the ones damaged in 2007 was their own

testimony. The judge listened to both. He found defendant

"credible, to have testified only to what she was personally

aware of and to have refrained from embellishing." The judge

found plaintiff "to have been equally credible and equally

careful and accurate when testifying." Because the evidence

on the critical question was in equipoise, the court correctly

concluded plaintiff had failed to succeed in proving his

claim. See Liberty Mut. Ins. Co. v. Land, 186 N.J. 163, 169

(2006). We are simply in no position to second guess the

judge's careful consideration of the credibility of the

parties.

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 As to the counterclaim, plaintiff relies for his argument

on defendant's expert's report, which appears to include in

the 6000-square-foot area in need of repair, land required for

installation of the seepage pits and trees, which the court

rejected as unnecessary. Plaintiff's counsel, however, put

this question to defendant's expert directly on cross-

examination. Counsel asked the expert, "If there's no seepage

tanks required, therefore, there would not be any work to be

done with regards to soil remediation or planting seed there,

would there?" The expert responded, "No. That's not correct.

Because the seepage tanks would be installed where the area is

disturbed already."

Later in the cross, counsel again attacked the expert's

opinion on the cost of restoring the area damaged by surface

water and silt flowing from plaintiff's property. Counsel

asked, "And you had no idea what the cost is to put some

topsoil and some seed on the bare spots that are shown in the

photographs attached to your report because you don't do that

work[,] [c]orrect?" The expert replied:

No. That's not correct. . . . I would say
that it's not just the bare spots. It's
along that entire property line. And it's
the surrounding area of those bare spots
that need to be feathered into the natural

7 A-1464-15T3
 line. You can't just seed a little patch
and then you'll have a lumpy lawn.2

Given the expert's unequivocal testimony, there is "adequate,

substantial, credible evidence" in the record to support the

damage award on the counterclaim. See Seidman, supra, 205 N.J.

at 169.

Because we find no error in the court's findings of fact or

conclusions of law made at the conclusion of this bench trial,

we affirm, essentially for the reasons expressed by Judge

Bachmann in the statement of reasons appended to the November 2,

2015 final order in the case.

Affirmed.

2 The expert had already testified on direct that "a larger,
extensive area around [the bare patch depicted on the photos in
evidence] has to be re-graded so that it's not lumpy." The
expert estimated that in addition to the bare areas depicted in
the photos, "[y]ou have to reseed probably [4,000] to 5,000
square feet around that area just to smooth it all out
correctly."

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