NOT FOR PUBLICATION WITHOUT THE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-2574-16T4
RITA VAN DOIMEN,
Plaintiff,
v.
V&C LIQUORS, INC.,
Defendant/Third-Party
Plaintiff-Appellant,
v.
PUBLIC SERVICE ELECTRIC AND GAS
COMPANY, (PSE&G),
Defendant/Third-Party
Defendant-Respondent.
___________________________________
Submitted February 28, 2018 – Decided August 10, 2018
Before Judges Nugent and Currier.
On appeal from Superior Court of New Jersey,
Law Division, Essex County, Docket No. L-7838-
13.
Dell'Italia & Santola, attorneys for appellant
(John P. Dell'Italia, on the brief).
Peter L. Agostini, attorney for respondent.
PER CURIAM
This appeal involves the claim of V&C Liquors, Inc., against
PSE&G, for fire damage to V&C's Newark liquor store.1 A jury found
PSE&G 100 percent liable and awarded V&C $200,000 for property
damage and $14,700 for lost rent. The trial judge granted PSE&G's
motion for relief from that part of the judgment entered on the
$200,000 property damage claim. In doing so, the court concluded
it had erred by permitting V&C's principal to testify to the amount
of a contractor's $200,000 proposal to repair the fire damage.
V&C appeals from the implementing order.
Because V&C relied on the court's erroneous ruling in
presenting its proofs at trial, we conclude the proper remedy is
a new trial. Otherwise, due solely to judicial error, V&C will
be deprived unfairly of the opportunity to present alternative
proofs, and PSE&G will unjustly avoid the consequences of its
negligence. We thus reverse and remand for a new trial solely on
V&C's property damage claim.
These are the facts. V&C owns a three-story wood-frame
building in Newark, where it operates a liquor store on the first
1
The record is unclear as to whether V&C Liquors, Inc. filed its
claim against PSE&G as a cross-claim or third-party complaint.
The parties refer to themselves in their appellate briefs as third-
party plaintiff and third-party defendant. The trial pleadings
in the appellate record, including the order from which V&C
appeals, do not include third-party designations. In any event,
the distinction is not relevant to the appellate issues.
2 A-2574-16T4
floor and rents the apartments on the second and third floors. In
October 2011, fire damaged the building. V&C alleged the fire
occurred when a PSE&G transformer malfunctioned, causing arcing
along cables or wires that ignited the vinyl siding on the
building. On the last day of a five-day trial, a jury agreed and
found PSE&G's negligence to be the sole cause of the fire. This
liability determination has not been challenged.
The jury awarded $14,700 to compensate V&C for lost rent and
$200,000 to compensate V&C for the fire damage to the building.
Neither party challenges the award for lost rent. On its motion
for relief from the judgment, PSE&G challenged the competency of
V&C's proofs of the cost to repair the fire damage. The trial
court determined it had erred by admitting at trial V&C's hearsay
evidence of the cost to repair the fire damage, vacated the
$200,000 fire damage award, and left standing the judgment on the
jury's verdict for lost rent.
These were V&C's proofs concerning the fire damage. Devender
N. Chhabra, a dentist and V&C's principal, testified he hired an
expert – a consulting, structural, and civil engineer – to inspect
the damage. Dr. Chhabra walked around the outside of the building
and through the entire inside of the building with the expert.
Dr. Chhabra paid for a report from the expert, the purpose of
which "was to find out the degree of damage and what [Dr. Chhabra
3 A-2574-16T4
could] do in the most economical way to get the thing back so that
[he] could rent the apartments." The expert rendered a report
detailing the damage.
Next, Dr. Chhabra hired a contractor. He and the contractor
inspected the exterior of the building and every room with the
engineer's report in hand, so the contractor could determine the
cost to repair the damage the engineer had specified. The
contractor gave Dr. Chhabra a "Proposal" to make the repairs. The
Proposal contained a detailed itemization of the repairs the
contractor would perform. The contractor included in the Proposal
the cost to make the repairs, which was $200,000.
The engineer testified at the trial. The contractor did not.
During Dr. Chhabra's testimony concerning the contractor's
Proposal, the following exchange took place:
Q: Okay. And how - - by the way, you
received other proposals. Is that right you
said?
A: I did.
Q: Were they higher or lower than this?
[DEFENSE COUNSEL]: Objection. Relevance, hearsay.
THE COURT: Overruled.
Q: Okay, were they higher or lower?
A: Much higher than that, sir.
[DEFENSE COUNSEL]: Objection.
4 A-2574-16T4
THE COURT: Sidebar.
[DEFENSE COUNSEL]: Sidebar.
(Sidebar on at 10:57:26 a.m.)
(Inaudible sidebar)2
(Sidebar off at 10:59:31 a.m.)
Q: And how much is this bid for,
Doctor? What's the price?
A: It's $200,000.
[PLAINTIFF'S COUNSEL]: Your Honor, I
would ask at this point, I have this exhibit
blown up, I'd like to have it put into evidence
for the jury to just see it.
[DEFENSE COUNSEL]: My - - my objection
to admission into evidence stands. My
objection is running. No foundation.
THE COURT: Okay, base - - based upon the
case law, I'm sustaining the objection. It's
- - it's - - so it's not going into evidence.
[PLAINTIFF'S COUNSEL]: Okay, but the
amount is going in?
[DEFENSE COUNSEL]: Objection.
[PLAINTIFF'S COUNSEL]: His testimony is
- -
2
Many sidebar conferences were unrecorded because they were
"inaudible." The trial judge should have taken appropriate
measures to assure the side-bar conferences were being recorded.
R. 1:2-2. "The requirement for the recording of 'all proceedings'
must be understood to include side-bar conferences related in any
way to the trial of the action." Pressler & Verneiro, Current
N.J. Court Rules, cmt. 3.1 on R. 1:2-2 (2018).
5 A-2574-16T4
[DEFENSE COUNSEL]: His testimony is what
it is.
[PLAINTIFF'S COUNSEL]: Is $200,000.
[DEFENSE COUNSEL]: His testimony is what
it is, Your Honor.
THE COURT: The testimony is what it is.
[PLAINTIFF'S COUNSEL]: Yes, sir. Thank
you.
PSE&G filed a motion for relief from the judgment, seeking
an order "alter[ing] the judgment entered in this matter to reflect
an award of $14,700 for lost rents based on the competent,
admissible evidence at trial." PSE&G alleged the court erred by
admitting hearsay evidence, namely, Dr. Chhabra's testimony that
the contractor's Proposal to repair the fire damage was $200,000.
PSE&G also argued that because there was no competent evidence of
the cost to repair the fire damage, the trial court was required
to grant the motion and "mold the damages verdict to $14,700 based
upon the competent, admissible evidence presented at trial."
The trial court granted PSE&G's motion. During the oral
opinion it delivered, the trial court made the following
observations. First, V&C's counsel had advised the court a witness
from the construction company was unavailable, but counsel
intended to present through Dr. Chhabra's testimony the amount of
the construction company's Proposal. Second, counsel for PSE&G
6 A-2574-16T4
had been in receipt of the Proposal for "over four years and never
secured any witnesses nor evidence to refute the contents of the
Proposal." The court was apparently aware of these considerations
when it ruled at trial that Dr. Chhabra could not introduce into
evidence the documentary Proposal but could testify to its
contents.
The court granted PSE&G's motion on the ground that Dr.
Chhabra's testimony about the $200,000 Proposal was inadmissible
hearsay. Concluding that expert testimony was required to
establish the damages, and because in the court's view the
"$200,000 for damages never should have gone to the jury because
there was not a proper foundation," the court declared the original
October 20, 2016 order of judgment would be amended to include
only the rental damages of $14,700. This appeal followed.
On appeal, V&C does not argue the trial court erred in its
post-judgment decision that Dr. Chhabra's testimony concerning the
Proposal was inadmissible hearsay. Rather, it relies on case law
holding the mere uncertainty as to the quantum of damages is an
insufficient basis to deny relief to a non-breaching party to a
contract. V&C also argues the court incorrectly determined expert
testimony was needed to establish damages and, therefore, abused
its discretion by granting PSE&G's motion.
7 A-2574-16T4
PSE&G responds the trial court correctly granted the motion
to correct the verdict because the sum the jury awarded for fire
damage was based on inadmissible hearsay. PSE&G argues that absent
the inadmissible hearsay, V&C failed to meet its burden of proving
its damage claim.
We agree with the trial court's post-verdict decision that
it erred when it permitted Dr. Chhabra to testify to the amount
of the Proposal. We disagree with the remedy. The court should
have granted a new trial on the limited issue of the fire damage.
"The primary purpose of tort law is that of compensating
plaintiffs for the injuries they have suffered wrongfully at the
hands of others." Berman v. Allan, 80 N.J. 421, 427 (1979). Thus,
as our Supreme Court has recognized in another context:
The courts of this and other jurisdictions
have long held that where a wrong itself is
of such a nature as to preclude the
computation of damages with precise
exactitude, it would be a "perversion of
fundamental principles of justice to deny all
relief to the injured [party], and thereby
relieve the wrongdoer from making any amend
for his acts."
[Id. at 428 (alteration in original) (quoting
Story Parchment Co. v. Patterson Parchment
Paper Co., 282 U.S. 555, 563 (1931)).]
Of course, "damages may not be determined by mere speculation or
guess." Ibid. Here, however, that is not what happened.
8 A-2574-16T4
The contractor's quotation of $200,000 to repair the fire
damage was not tantamount to speculation or guesswork. To the
contrary, it was the contractor's price to repair the fire damage
observed directly by the engineer, the doctor, and the contractor.
The Proposal was also, according to Dr. Chhabra, the lowest of
several proposals he obtained. Nonetheless, Dr. Chhabra's
testimony about the content of the Proposal was hearsay. V&C
submits no exception to the rule barring hearsay, N.J.R.E. 802.
At trial, the court apparently ruled it would not admit the
actual Proposal into evidence, but would permit Dr. Chhabra to
testify to its content.3 The trial court did not explain either
at trial or in its decision on PSE&G's post-verdict motion why it
admitted the hearsay evidence. Perhaps because PSE&G had the
report for four years before trial and presented no expert to
counter it, the trial court believed there was "no bona fide
dispute between the parties as to a relevant fact," and the
evidence could thus be proved "by any relevant evidence" without
application of exclusionary rules. N.J.R.E. 101(a)(4). Whatever
the reasoning, the court reversed its decision on the post-verdict
3
Because the sidebar addressing the issue was not recorded, we
are unable to determine whether PSE&G objected to both the
admission of the document into evidence and Dr. Chhabra's reference
to it, or only the admission of the document into evidence. In
its appellate brief, PSE&G suggests it objected to both. V&C does
not dispute that assertion.
9 A-2574-16T4
motion. By doing so in that context, the court deprived V&C of
the opportunity to present alternative, competent evidence.
Once the trial court admitted Dr. Chhabra's hearsay testimony
concerning the $200,000 Proposal, V&C needed to present no further
evidence on damages, a point underscored by the jury's verdict.
Had the court barred the hearsay testimony, V&C could have taken
measures to present alternative, competent evidence. For example,
it could have requested a short adjournment to accommodate a
witness from the construction company who prepared the estimate.
V&C also could have requested the court's permission and authority
to videotape the testimony of the witness. Given the procedural
manner in which the court reversed itself, V&C was deprived of the
opportunity to do so.
For these reasons, and based on the unique factual situation
presented in this case, we hold the appropriate remedy is the
grant of a new trial on the damage issue, not its dismissal. A
contrary result – such as that reached in this case – undermines
the primary purpose of tort law, namely, compensating plaintiffs
for injuries they have suffered wrongfully at the hands of others;
unjustly relieves a wrongdoer from making amends for its act; and
is fundamentally unfair to the party who has relied on the trial
court's evidentiary ruling, which is precisely what litigants are
expected to do. See Berman, 80 N.J. at 427-28.
10 A-2574-16T4
The retrial on damages shall proceed without undue delay.
Since the time for discovery ended years ago, we see no reason why
the trial cannot be scheduled expeditiously.
Reversed and remanded for a new trial on the issue of the
compensation to which V&C is entitled as the result of fire damage
to its building. We do not retain jurisdiction.
11 A-2574-16T4