Opinion
DOCKET NO. A-1906-14T3
06-02-2016
FREDY CASTELLANOS and WILLIAM CASTELLANOS, Plaintiffs-Respondents, v. EL PALACIO LATINO, INC., Defendant-Appellant.
Eduardo J. Jimenez, attorney for appellant. Martin, Kane & Kuper, LLC, attorneys for respondents (Todd Drayton, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Lihotz and Higbee. On appeal from Superior Court of New Jersey, Law Division, Union County, Docket No. L-2689-11. Eduardo J. Jimenez, attorney for appellant. Martin, Kane & Kuper, LLC, attorneys for respondents (Todd Drayton, on the brief). PER CURIAM
Plaintiffs Fredy and William Castellanos were involved in a fight on property owned by defendant El Palacio Latino, Inc. As a result of the fight, plaintiffs suffered stab wounds and filed a negligence action against defendant. The jury found defendant negligent and awarded Fredy $10,259.12 for medical expenses and $2560 for lost wages and William $26,699.94 for medical expenses and $6720 for lost wages. The jury awarded nothing to plaintiffs for pain and suffering, disability, or loss of enjoyment of life.
We refer to plaintiffs by their first names for clarity. --------
Plaintiffs moved for a new trial, or in the alternative, additur, on pain and suffering damages only, pursuant to R. 4:49-1(a). Defendant opposed the motion, arguing there was evidence in the record to support plaintiffs' injuries did not result in compensable pain and suffering. At oral argument, the trial judge conceded there was a high likelihood he was going to modify the verdict. He asked the parties whether they preferred additur or a new trial to modify the award. Both parties agreed additur was the more appropriate remedy.
After oral argument, the trial judge issued an order awarding William and Fredy $30,000 and $10,000 in pain and suffering, respectively. The trial judge explained his decision in an oral opinion. The trial judge concluded a new jury trial was warranted under the circumstances, but the parties had agreed additur was the more appropriate remedy. He explained it was "incomprehensible" based on the overwhelming facts adduced at trial that the jury awarded zero dollars to plaintiffs for pain and suffering, disability, and loss of enjoyment of life. He determined the award was "unquestionably inadequate and thoroughly inconsistent with the jury's" award of medical expenses and lost wages.
At the end of the proceeding, the following exchange took place:
[Trial Judge]: The [c]ourt finds that these amounts are both fair and just. And the [c]ourt will enter an [o]rder to that effect. The [c]ourt is going to request that plaintiffs' counsel submit a proposed order. And that's the end of the [c]ourt's opinion.
[Defense Counsel]: Thank you, Judge.
[Trial Judge]: Do you have any questions, [defense counsel]?
[Defense Counsel]: No, Your Honor. That's fine.
[Trial Judge]: Al[r]ight. Thank you all.
Defendant appeals from the trial judge's order granting plaintiffs' additur. Defendant argues the trial court improperly determined the jury verdict was a miscarriage of justice, misapplied legal standards, relied on evidence outside the record in granting additur, and failed to follow the correct procedure for entering additur.
Additur is encouraged "to avoid the unnecessary expense and delay of a new trial." Carbis Sales, Inc. v. Eisenberg, 397 N.J. Super. 64, 84 (App. Div. 2007). "A motion for a new trial or, alternatively, an additur, based on a claim that a jury award was against the weight of the evidence, should not be granted unless it 'clearly and convincingly appears' that the award was so deficient that it constitutes a 'miscarriage of justice.'" City of Long Branch v. Jui Yung Liu, 203 N.J. 464, 492 (2010) (quoting R. 4:49-1(a)). Appellate review employs "a standard of review substantially similar to that used at the trial level, except that the appellate court must afford due deference to the trial court's feel of the case." Ibid. (quoting Jastram v. Kruse, 197 N.J. 216, 230 (2008)). However, we "make an independent determination of whether an injustice did in fact occur." Kozma v. Starbucks Coffee Co., 412 N.J. Super. 319, 324 (App. Div. 2010). "The option to consent to an additur or risk the outcome of a new trial is defendant's." Tronolone v. Palmer, 224 N.J. Super. 92, 97 (App. Div. 1988) (emphasis omitted).
We agree with defendant that the trial judge failed to follow the correct procedure for entering additur. The error occurred when the trial judge accepted defendant's consent to additur before the additur amount was calculated. The error was exacerbated when the trial judge failed to present defendant with the choice of accepting additur as calculated or a new trial at the conclusion of his oral opinion. The trial judge's inquiry as to whether defense counsel had any questions at the conclusion of the oral opinion cannot equate to giving defendant its due choice.
We vacate the order granting additur and remand for the purpose of determining whether defendant accepts the additur as to each plaintiff or wishes to proceed to a new trial on damages for pain, suffering, disability and loss of enjoyment of life as to either or both plaintiffs. Based on this conclusion, we need not address the remaining arguments presented on appeal.
Reversed and remanded. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION