PATRICK JOHNSON VS. RODNEY GONZALES (DC-003930-19, 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NOT FOR PUBLICATION WITHOUT THE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-1093-19T1

PATRICK JOHNSON,

Plaintiff-Respondent,

v.

RODNEY GONZALES,

Defendant-Appellant,

and

SHELDON, MATLACK,
KNIPE, ASSOCIATES, INC.,

Defendants.
___________________________

Submitted December 1, 2020 — Decided December 16, 2020

Before Judges Mawla and Natali.

On appeal from the Superior Court of New Jersey, Law
Division, Camden County, Docket No. DC-003930-19.

Rodney Gonzales, appellant pro se.

Dale W. Keith, attorney for respondent.
PER CURIAM

Defendant Rodney Gonzales appeals from an October 1, 2019 judgment

entered in favor of plaintiff Patrick Johnson for property damage and costs from

flooding caused by a broken pipe in defendant's adjoining property. We affirm.

We derive the following facts from the record. Plaintiff and defendant

each own one half of a duplex, which shares a common wall. Plaintiff's property

is occupied by tenants. Defendant's property is unoccupied. On January 22,

2019, water flooded into plaintiff's basement, damaging the home's heater and

hot water heater. The rising water threatened to reach the electrical outlets and

required the local fire department to pump out the basement.

After the flood was contained, plaintiff's tenants vacated the property due

to the lack of heat and hot water, and he paid $239.96 for their motel stay while

repairs were made. Plaintiff purchased a dehumidifier and shop-vac at a cost of

$224.52 to clean the basement and remediate mold from the flood. He hired a

contractor to replace the heating equipment, which cost $7700. The newly

installed equipment required a permit from Gloucester City, inspection, and

certification, at a cost of $536.33. Plaintiff also incurred postage costs of $4.05

and court costs of $101.

A-1093-19T1
2
 Prior to trial, plaintiff's counsel served a demand for admissions on

defendant by first-class and certified mail on August 5, 2019. The certified mail

was returned unclaimed. Defendant did not respond to the demand and therefore

admitted: he owned the adjoining property; "on January 22, 2019[,] a water pipe

in [d]efendant['s] . . . property . . . was leaking into the basement of [plaintiff's

property] and . . . came through the common basement wall of plaintiff's

property . . . ."; "the Gloucester City Fire Department . . . found three . . . feet

of water in [the] basement of [plaintiff's property,] . . . which required same to

be pumped out"; and "[t]hat the water intrusion from [defendant's property]

caused extensive damage to [plaintiff's] property . . . including damaging the hot

water heater, the HVAC system . . . and requiring mold remediation."

To explain the level of damage caused by the water and the ensuing need

to replace the equipment in his basement, plaintiff testified the water heater was

"five [to] eight years old at the most." Defendant produced a photograph, which

showed the heater on the ground and the water line over the top of the unit. He

produced a photograph of the new combined heater and water heater, which

showed it was attached to the basement wall, out of reach of any water.

During his testimony, defendant acknowledged his "pipe froze . . . and it

was shooting water out a little bit" and that he had "two to three feet of water"

A-1093-19T1
3
in his side of the basement. However, defendant argued plaintiff failed to prove

defendant was negligent because defendant frequently inspected his property

and plaintiff's side of the common wall was in disrepair, allowing the flooding

to occur. He also argued plaintiff failed to mitigate his damages because he

installed a more expensive system than he originally had. Defendant opined the

repairs should have cost plaintiff $2100.

Defendant also argued he did not receive an answer to his request for

production of documents. As a result, he claimed he had no knowledge of

plaintiff's damages. Defendant claimed he filed a "motion for discovery," but

plaintiff failed to produce discovery.

The trial judge rendered an oral opinion and concluded defendant was

negligent because

it's . . . not disputed that the water . . . leak originated
. . . in . . . defendant's basement and then got through
the walls, and then essentially filled up . . . the
basement. Defendant mentions it's kind of small, ten
by ten, but still basically filled it up to several feet.

I'm looking at one of the photographs, . . . [a]nd
. . . [it] . . . is supposed to show the condition as it
existed before the . . . water infiltration. So, [it] shows
this heater sitting there, and then next to it in the corner
is the water heater, and . . . it shows both of them in a
bit of a mess . . . . But then there's . . . a hole that the
water heater is sitting on . . . .

A-1093-19T1
4
 ....

So you would expect . . . a great amount of water
would first just basically infiltrate into the ground [in
the hole beneath the heater] before it started filling up
the basement. But then, to fill up the basement to the
extent of two feet or three feet, which neither are really
disputed . . . , the . . . water had to have been flowing
for quite some time to basically go into defendant's
basement, . . . fill up his basement to about the same
degree . . . .

With regard to the argument raised by . . .
defendant [that] the wall was not in good shape on the
part of . . . [plaintiff], I'm not persuaded by that. First
off, the wall is really not . . . a dam[], and it would seem
that if there's three feet of water in the defendant's
basement, . . . if the wall was just basically pure cinder
block, it seems the water would infiltrate there unless
those block hollows were all filled with concrete. But
it's not supposed to be a dam.

The judge found the costs plaintiff presented for the tenant's motel stay,

city permits and inspection, dehumidifier and shop-vac, court fees and postage

were reasonable and compensable. The judge found it was necessary for

plaintiff to replace the entire water heater and heating system because the

flooding had "rendered [the old system] junk" and there was no means to

"depreciate the value" of the lost equipment. The judge also rejected defendant's

argument that plaintiff replaced the equipment with an upgraded system because

I have no proofs . . . from . . . defendant . . . to . . .
indicate that under the circumstances, this wall unit was

A-1093-19T1
5
 not something that was necessary, and that something
. . . less sophisticated could have been installed in place
. . . . And again, for me to just sort of go in there and
reduce it by half, or reduce it by a third or something
like that, would quite frankly . . . be . . . arbitrary and
capricious because the [c]ourt is not an expert . . . .

I find that the testimony by the plaintiff was
clear, concise, and credible . . . . I looked and I
evaluate[d] the testimony of both sides in the trial, and
I saw nothing to basically either impeach [plaintiff's]
testimony or . . . otherwise indicate that he was coming
in here and basically giving a falsehood about what he
paid for this work.

So, I find that he has also proven the cost of this
heating system that was necessitated by the negligence
of the defendant.

The judge awarded plaintiff a judgment totaling $8805.86.

On an appeal from a bench trial, our scope of review is "limited." Rova

Farms Resort, Inc. v. Invs. Ins. Co., 65 N.J. 474, 484 (1974). "Findings by the

trial judge are considered binding on appeal when supported by adequate,

substantial and credible evidence." Ibid. (quoting N.J. Tpk. Auth. v. Sisselman,

106 N.J. Super. 358 (App. Div. 1969)). They should "not be disturbed unless

'they are so wholly insupportable as to result in a denial of justice.'" Ibid.

(quoting Greenfield v. Dusseault, 60 N.J. Super. 436, 444 (App. Div. 1960)).

Defendant raises the following points on appeal:

A-1093-19T1
6
 POINT I: THE COURT IMPROPERLY RULED ON
[DEFENDANT'S] NEGLIGENCE WITHOUT ANY
EVIDENCE TO SUPPORT A FINDING OF
NEGLIGENCE

POINT II: THE COURT ALLOWED PLAINTIFF TO
INTRODUCE EVIDENCE WHICH HAD NOT BEEN
PROVIDED IN DISCOVERY, WITHOUT
PROVIDING [DEFENDANT] WITH AN
UNDERSTANDING OF [HIS] ABILITY TO OBJECT

POINT III: THE COURT FAILED TO PROVIDE
[DEFENDANT] WITH AN OPPORTUNITY TO
INTRODUCE EVIDENCE WITH RESPECT TO
PLAINTIFF'S DAMAGE CLAIMS

POINT IV: THE COURT FAILED TO PROPERLY
CALCULATE THE DAMAGES

The record supports the trial judge's findings regarding liability, namely,

the reasonable inference from the trial evidence that defendant failed to monitor

his property. Defendant's failure to answer plaintiff's requests for admissions

established that the water in plaintiff's property came from a pipe in defendant's

basement, reached a level of approximately three feet in plaintiff's basement,

and damaged his heater and heating equipment, requiring mold remediation.

Defendant's testimony at trial did not rebut these facts. Furthermore, the judge

considered, but rejected defendant's testimony the damage was caused by the

condition of plaintiff's side of the basement wall and that defendant regularly

inspected the property. We have no reason to disturb the trial judge's findings.

A-1093-19T1
7
 We reject defendant's assertion the trial judge admitted evidence in

violation of the discovery rules. The record reveals defendant checked a box on

the form answer he filed in response to plaintiff's complaint which stated:

"Demand for Production of Documents Pursuant to R[ule] 4:18-2. By checking

this box, demand is made for production of all documents or papers referred to

in the pleading for which this answer is provided, within [five] days of this

demand." Defendant raised the lack of discovery at trial and the following

colloquy ensued:

[Defendant:] If I had been given discovery like I filed
for, . . . I would have a copy of everything that he's
saying that he did. But I asked for that through the
court, I did not receive it. I then called the court . . .
and . . . spoke with [a staff member], and she said[: "O]h
no, this is a separate trial. . . . [T]hey sent something
up here[.]" I sent somebody up, picked it right up, . . .
and it shows none of this . . . documentation [plaintiff]
gave . . . . So, I feel that first off, this [case] should
have been thrown out, just because [plaintiff] never
provided discovery . . . .

[The Court]: Well, you have to . . . ask them, and if you
don't get it, you have to file a motion. I don't know
what you're expecting the court to do.

[Defendant]: I filed a motion for discovery. I filed
paperwork to the court to get discovery, and I never
received anything.

....

A-1093-19T1
8
 [The Court]: Let's just take a look . . . in the docket.

....

[Court Clerk]: There was no motion in the file.

Rule 6:4-3(e) states: "The provision of R[ule] 4:18 (production of

documents, inspection) shall apply to actions in the Special Civil Part ." Rule

4:18-1(b)(4) states: "The requesting party may move for an order of dismissal

or suppression or an order to compel pursuant to R[ule] 4:23-5 with respect to

[a] . . . failure to respond to the request or . . . any failure to permit inspection

as requested." The comment to the rule explains that "[i]f the party served with

the demand does not respond, the aggrieved party need not filed a motion

seeking compliance but may immediately resort to the two-step dismissal

procedure prescribed by R[ule] 4:23-5(a) for failure to answer." Pressler &

Verniero, Current N.J. Court Rules, cmt. 2.4 on R. 4:18-1(b)(4) (2021).

It is clear defendant did not adhere to the Rules of Court. The record is

devoid of a motion to compel the discovery he claimed was missing and he did

not file a motion to dismiss plaintiff's complaint prior to trial. The trial judge

did not err by refusing to dismiss the complaint at trial.

We likewise reject defendant's arguments in Points III and IV challenging

the damages award. In Point III, defendant argues the trial judge erred by not

A-1093-19T1
9
permitting him to introduce evidence to rebut plaintiff's damages claim. In Point

IV, he claims the judge "did not calculate any reduction due to the equipment

being different than what had been in place . . . [and awarded plaintiff] full

damages for the shop [] vac and dehumidifier[.]"

As we noted, defendant testified to what he thought was the proper cost

to replace the damaged equipment in plaintiff's basement. This drew an

objection from plaintiff's counsel on grounds of hearsay and because defendant

was not qualified as an expert. Although the judge never ruled on the objection,

defendant presented no objective expert or fact testimony to support his claims

regarding the damages amount. Defendant was never qualified as an expert and

quotes he claimed he received from a supply company for replacement

equipment are not contained in the record. The arguments raised by defendant

relating to the value difference between the old and new equipment was

addressed and rejected by the trial judge, who found defendant failed to adduce

objective evidence to rebut plaintiff's proofs. The remaining argument regarding

the mold remediation equipment lacks sufficient merit to warrant discussion in

a written opinion. R. 2:11-3(e)(1)(E).

Affirmed.

A-1093-19T1
10