Opinion
DOCKET NO. A-4445-09T4
11-25-2013
JOHN DONATO, individually, BERNICE DONATO, as Guardian ad litem for JOHN DONATO, JR., and BERNICE DONATO, individually, Plaintiffs-Appellants, v. HOVNANIAN ENTERPRISES, INC., K. HOVNANIAN AT WAYNE V, INC., Defendants-Respondents, and SUSAN E. FITZSIMMONS, MICHAEL J. FITZSIMMONS, SULLIVAN CONSULTANTS, INC., OPIRHORY REALTORS, MARK KESSELHAUT, LESLIE KESSELHAUT, and FORESIGHT CONSULTING SERVICES, INC., Defendants.
Law Offices of Charles Shaw, P.C., attorneys for appellants (Charles Shaw, of counsel; Eilish M. McLoughlin and Romain D. Walker, on the briefs). Golden, Rothschild, Spagnola, Lundell, Boylan & Garubo, P.C., attorneys for respondents (Philip A. Garubo, Jr., of counsel; Ayesha T. Rashid, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Fuentes, Harris and Koblitz.
On appeal from Superior Court of New Jersey, Law Division, Passaic County, Docket No. L-636-07.
Law Offices of Charles Shaw, P.C., attorneys for appellants (Charles Shaw, of counsel; Eilish M. McLoughlin and Romain D. Walker, on the briefs).
Golden, Rothschild, Spagnola, Lundell, Boylan & Garubo, P.C., attorneys for respondents (Philip A. Garubo, Jr., of counsel; Ayesha T. Rashid, on the brief).
The opinion of the court was delivered by FUENTES, P.J.A.D.
Hovnanian Enterprises, Inc., and K. Hovnanian At Wayne V, Inc., (Hovnanian) are the original builders of a number of single-family houses located in the area of Skyview Road in the Township of Wayne. On January 11, 1997, Susan Tannehill purchased one of the new houses on Skyview Road directly from Hovnanian. That same year, Mark and Leslie Kesselhaut purchased their house which is located uphill from Tannehill's property. The Kesselhauts have resided in this house since they bought it in 1997.
In 2003, the Kesselhauts contracted with Magic Gardens Landscaping, Inc., (Magic Gardens) to install an in-ground pool on their property. On December 10, 2003, Tannehill's house was flooded during the construction of Kesselhaut's pool. Magic Gardens' president, Drew Shepherd, admitted that the flood was related to the work his company was doing in connection with the construction of Kesselhaut's pool. Magic Gardens paid Tannehill $4,000 as compensation for water damage to her home.
On January 22, 2004, Tannehill sold her house to plaintiffs John and Bernice Donato. The record reflects that plaintiffs were informed of the December 10, 2003 flooding incident before the closing of title. John Donato personally visited the property on December 16, 2003, and specifically viewed the basement area. Plaintiffs also retained Foresight Consulting Services, Inc. (Foresight) to perform a pre-purchase inspection of the property and report any problems it detected to plaintiffs before the closing of title. Foresight noted certain cracks in the basement of the property.
Plaintiffs began this legal action in 2008 after enduring two incidents of major flooding in the basement of their home. The first occurred in 2004; the second, in October 2005, involved "approximately 8 inches of standing water" in the basement of the house. Plaintiffs claimed these two incidents caused "irreparable and extensive damage" to their home and to their minor son's personal property.
Plaintiffs initially brought suit against Hovnanian grounded in the following diverse theories of liability: (1) breach of contract; (2) negligence; (3) breach of implied covenant of good faith and fair dealing; (4) violation of an expressed contractual warranty; (5) violation of an implied common law warranty; (6) intentional infliction of emotional distress; (7) negligent infliction of emotional distress; and (8) negligent destruction of John Donato, Jr.'s personal property.
Plaintiffs also sued the Kesselhauts based on a hybrid theory that incorporated principles of common law negligence, civil trespass, and nuisance. They alleged the Kesselhauts wrongfully changed the topography of their property and diverted the natural flow of rainwater, causing the flooding in their basement on the two occasions previously mentioned. Plaintiffs settled their claims against the Kesselhauts before the start of trial against Hovnanian as the only defendant.
Plaintiffs presented their case against Hovnanian before a jury over a three-week period commencing on February 1, 2010 and ending on March 4, 2010. As framed by the trial judge during his final charge to the jury, plaintiffs claimed that Hovnanian "breached a ten-year home warranty by failing to repair major structural defects at their home during the effective period of coverage . . . [and] constructed the grading and drainage system in a negligent manner." As a measure of damages, plaintiffs sought to recover "the cost of repairing the grade of the property and the draining [of] the system, as well as the property damages that they claim to personal property."
After some initial confusion in the manner it delivered its verdict, the jury found Hovnanian "was negligent in the construction of plaintiffs' home," but that such negligence was not "a proximate cause of the water infiltration causing the flood in the basement of plaintiffs' home." The jury also found in favor of Hovnanian on plaintiffs' claim of breach of warranty. Specifically, the jury found plaintiffs failed to establish that at any time between January 22, 2004 and May 2006 their home had "a major structural defect as defined in the Homeowners Warranty."
This appeal is limited to the following two issues plaintiffs identified in their Civil Case Information Statement (CCIS). First, plaintiffs challenge an interlocutory decision made by the trial court on September 1, 2009, denying their motion to file a third amended complaint to add Magic Gardens and its president Drew Shepherd as defendants. Second, plaintiffs argue the trial court erred when it denied their motion to set aside the jury verdict and order a new trial based on the confusion surrounding the jury's first attempt at reporting its verdict. The court memorialized its decision denying this motion in an order dated April 16, 2010.
Consistent with the limited scope of this appeal, plaintiffs obtained leave from the trial court pursuant to Rule 2:5-3(c)(2) to submit abbreviated transcripts covering only the record developed by the parties that is relevant to the two argument points plaintiffs identified in their CCIS. After reviewing this record, and mindful of prevailing legal standards, we affirm.
I
We will first address the trial judge's denial of plaintiffs' motion to amend their complaint for a third time.
Plaintiffs filed their original complaint against Hovnanian on February 7, 2007. They filed a second amended complaint on December 30, 2008, to add Foresight as a defendant.
The limited record before us does not reveal or explain the outcome of plaintiffs' claims against Foresight. We do know with certainty that the jury trial was limited to the negligence and breach of warranty claims against Hovnanian.
On August 24, 2009, plaintiffs filed a notice of motion on short notice seeking to amend their complaint for a third time to add additional grounds for liability against the Kesselhauts and to add Magic Gardens and its president Drew Shepherd as defendants. By the time plaintiffs' counsel made this motion, there had been 757 days of discovery on the matter and the case was scheduled for trial one week later, on August 31, 2009.
The trial court heard oral argument on plaintiffs' motion on September 11, 2009. Plaintiffs' counsel represented to the trial judge that in July 2009 he had, "for the first time," received discovery from Magic Gardens that indicated its acceptance of "some responsibility and a sense of liability" in connection with the $4,000 Magic Gardens paid to Tannehill in 2003 for damages caused to her house in connection with the construction of the Kesselhauts' in-ground pool. In addition to including these two new parties to the case, plaintiffs' counsel believed this information also gave plaintiffs new legal grounds for potential liability against the Kesselhauts. It is important to note that at this time, plaintiffs had not yet settled their claims against the Kesselhauts.
In opposition to the motion, counsel for the Kesselhauts emphasized that the case had been scheduled to be tried one week before plaintiffs filed this motion. Counsel argued that allowing plaintiffs to introduce new theories of liability against his clients at this juncture would be highly prejudicial, because he had prepared his defense based on the evidence and legal theories presented up to that point in time. Counsel elaborated on this issue as follows:
My clients are prejudiced by this because, quite frankly, the plaintiffs have not put forth any type of expert or anything else dealing with our client, and all I see in this case, and it's consistently gone on, is that we get to the end of the line and there's a flurry of activity. And, you know, quite frankly, you know, I'm frustrated on behalf of my clients.
Counsel for Magic Gardens and its president Drew Shepherd noted that none of plaintiffs' proposed experts had indicated that Magic Gardens had done anything wrong or identified it as a potential responsible party. Most importantly, Magic Gardens' counsel noted that "the Donatos knew of my client, knew of the situation in which everything occurred, and my client actually met with [the] Donatos at their house back in early 2004." Counsel thus characterized plaintiffs' factual assertions claiming otherwise as "disingenuous."
Against this backdrop, the trial judge denied plaintiffs' motion to file a third amended complaint. The judge made the following findings in support of his decision.
[T]his matter had 757 days of discovery. There is a November '08 deposition in which I believe certainly the plaintiff implicates Drew [Shepherd the] landlord as a potential party of which he could have sought recovery, did not. This thing should have been tried on 8/31[/09].
. . . .
I don't know if this is an amendment or if this is an attempt under - - I think it's [Rule] 4:9-1 or whether it's a motion to add a party, which is covered by [Rule] 4:24-2, and that clearly would be out of time
because discovery ended on 8/31[/09], and it is 9/11[/09] today, a day we all remember, unfortunately.
But again, this -- there's been plenty of time. Discovery, quite frankly, should have taken place much earlier than it did. I don't know why it took so long to take depositions of people, to get expert reports. There's been two prior amendments that the [c]ourt has allowed. Quite frankly, discovery sounds like it proceeded in a very disjointed, dysfunctional manner. We can't just keep doing depositions and amending after the third or fourth listing because now we feel we have another potentially culpable party. The point of giving almost 800 days of discovery is that, you know, we kept -- and it was five extensions and there were two amendments . . . we provided the plaintiff with really every opportunity to discover additional parties. . . . They took discovery they felt was necessary. . . . there was . . . some knowledge that this individual named Drew, I believe, it's in Mr. Donato's November 2008 deposition, he talks about him. So at that point, maybe it was time to make the amendment.
But I'm going to deny the application, as being untimely and that it would unduly delay the resolution of this matter.
Rule 4:24-2 prohibits the filing of a motion for joinder of additional parties under Rule 4:30, "unless it is returnable before the expiration of the time limited for discovery unless on notice and motion, for good cause shown, the court otherwise permits."
A motion to amend a complaint is governed by Rule 4:9-1. After responsive pleadings have been served, a party may only amend its complaint with the consent of the parties or by leave of court. Ibid. The decision to grant or deny a motion to amend a pleading is left entirely to the sound discretion of the trial judge. Notte v. Merchs. Mut. Ins. Co., 185 N.J. 490, 501 (2006). The motion court is expected to exercise this discretionary authority with great liberality in favor of granting leave to amend. Id. at 501. Indeed, the language of the rule itself requires that leave "shall be freely given in the interest of justice." R. 4:9-1.
Generally, a trial court's decision to deny or grant a motion to amend a pleading should be guided by a two-step analysis: (1) whether the non-moving party would be prejudiced; and (2) whether the amendment would be futile because it is clearly barred by an undisputed legal basis, such as a claim filed outside the time period allotted by the relevant statute of limitations. Bustamante v. Borough of Paramus, 413 N.J. Super. 276, 298 (App. Div. 2010).
However, as implicitly noted in Bustamante, the two-step approach generally applicable in most cases does not exhaustively cover the analytical spectrum. A court may also deny a motion to amend a pleading when it finds the proposed amendment would unduly protract or delay the litigation, or cause undue prejudice to the party opposing the motion. Cutler v. Dorn, 196 N.J. 419, 441 (2008). Similarly, motions to amend a pleading after the case has undergone extensive discovery and is ready for trial are viewed with understandable consternation. "The denial of [a] motion to amend is . . . sustainable when made on the eve of trial[,] . . . particularly . . . if the motion seeks to add new parties." Pressler & Verniero, Current N.J. Court Rules, comment 2.2.2 on R. 4:9-1 (2014) (internal citations omitted); accord Bonczek v. Carter-Wallace, Inc., 304 N.J. Super. 593, 602 (App. Div. 1997), certif. denied, 153 N.J. 51 (1998).
Applying these principles to the facts before us, we discern no legal basis to disturb the trial judge's decision to deny plaintiffs' belated attempt to add a party that was known to them from the start of this litigation. The court properly found plaintiffs' conduct in this regard was part of a pattern of dilatory behavior in the management of this litigation.
II
We next address plaintiffs' argument challenging the trial court's decision to deny their motion to set aside the jury verdict and order a new trial on the breach of warranty and negligence claims against Hovnanian. As previously noted, plaintiffs specifically opted to limit the scope of our review to the issues raised in their CCIS. Thus, we will not consider any matters or arguments that fall outside the parameters of the trial court's decision concerning the first jury verdict sheet.
As explicitly stated in the trial court's March 14, 2011 order, the limitations reflected therein were requested by plaintiffs as a matter of appellate strategy and/or as measures to limit the cost involved in prosecuting this appeal. Pursuant to Rule 2:5-3(c)(2), the trial court granted plaintiffs' motion to submit abbreviated transcripts as follows:
2. Appellants are hereby permitted to rely upon the Trial transcripts of March 1, 2010, March 2, 2010, March 3, 2010, March 4, 2010, respectively, and the Motion Transcripts of September 11, 2009, and April 16, 2010, respectively in support of their Appeal, provided that the Appellants limit the parameters of their Appeal to the Jury Verdict Sheets and the Motion for leave to amend the Complaint which was heard on September 11, 2009;
. . . .
4. In the event that the Appellants shall seek to expand the scope of their Appeal beyond the September 11, 2009 Motion and the Jury Verdict Sheets, by addressing matters which go to the weight of the evidence, then the Appellants shall order complete transcripts of the entire Trial . . . .
The transcripts ordered and provided to us by plaintiffs remained carefully circumscribed by the scope of the trial court's order. We will not address any arguments that fall outside these parameters. We will limit our discussion to the arguments addressing the jury's initial confusion caused by the admittedly obscure directions included in the first verdict sheet.
Independent of the clear limitations plaintiffs created in this self-imposed injunction, we decline to address or consider the arguments raised by plaintiffs concerning alleged interactions plaintiffs' counsel and plaintiff Bernice Donato allegedly had with one or more jurors long after the case was concluded. These arguments are predicated on two certifications submitted by plaintiffs in a rogue attempt to supplement the appellate record. There is no legal basis for this court to review on direct appeal issues that were never brought to the attention of the trial court. Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973).
On March 4, 2010, the last day of deliberations, the jury advised the trial judge that they had some confusion about the way the questions were presented. Specifically, the jury sent out the following written question: "Your Honor, we're having problems in questions. Can you help clarify how to answer some of the questions."
When the jurors returned to the courtroom, the trial judge asked the foreperson to clarify "which questions is the jury having a problem with? Just tell me the question number." In response, the foreperson indicated:
We just felt that if certain questions, say, if you answered yes, move on to, let's say, question whatever, 29, let's say. But you get to that question, then it tells you - - you read back, it says, well, if you have an answer, 16 and 23, then you can't answer that question. So that's what we'd like to know. Is there a misprint maybe somewhere?After reading the verdict sheet instructions out loud, line by line, the court identified the source of the jurors' confusion. The court corrected the clerical error to the satisfaction of the jurors and with the consent of the attorneys. Thereafter, the jury continued to deliberate until it reached a final verdict.
The jurors returned to the courtroom soon after the foreperson informed the Sheriff's Officer that the jury had reached a verdict. The foreperson reported the verdict using the following jury verdict form, which read in relevant part
1. Do you find that the defendant, K. Hovnanian was negligent in the construction of the plaintiffs' home?
[Yes. Vote: 9-0]
. . . .
2. Do you find that the defendant K. Hovnanian's negligence was a proximate cause of the water infiltration causing the flood in the basement of plaintiffs' home?
[No. Vote: 8-1]
[Since the jury answered "No" as to proximate cause, at this point, the verdict sheet instructed the jury to go to question 10 which addressed plaintiffs' negligence claims. However, inexplicably, the jury proceeded to answer question 3.]
. . . .
3. Have plaintiffs proven that the negligence of defendant K. Hovnanian will require remedial work to the exterior of the home?
[ No. Vote: 9-0]
. . . .
[Here again, because they answered "No," the Verdict Sheet directed the jurors to go to question 10. Again, inexplicably, the jury proceeded to answer question 9.]
9. Have defendants proven that the negligence of the Kesselhauts will require remedial work to the exterior of plaintiffs' home?
[Yes. Vote: 9-0]
10. Do you find that the plaintiffs established that at any time during January 22, 2004 to May 2006 the plaintiffs' home had a major structural defect as defined in the Homeowners Warranty?
[No. Vote: 8-1]
13. Have the plaintiffs proven that a major structural defect as defined by the Homeowners Warranty would require remedial work to the exterior of their home?
[No. Vote: 8-1]
14. List the comparison of both parties' responsibility to be answered if answers to Question #3, #9 and/or #13 are "yes".
List the percentage of responsibility for the work to the exterior of plaintiffs' home proximately caused by:
Defendant K. Hovnanian (for breach of warranty and/or negligence) 50% Defendant Kesselhauts 50%
TOTAL 100%
. . . .
15. Do you find the plaintiffs suffered damage to their personal property as a proximate cause of defendant K. Hovnanian's negligence?
[Yes. Vote: 9-0]
16. Do you find the plaintiffs suffered damage to their personal property as a proximate cause of the Kesselhauts' negligence?
[Yes. Vote: 9-0]
17. List the percentage of responsibility for the damages to plaintiffs' personal property proximately caused by
Defendant K. Hovnanian 50% Defendant Kesselhaut 50%
TOTAL 100%
18. What amount of money will fairly and reasonably compensate plaintiffs for:
a. Repairs to the exterior of their home (not to exceed $204,500) $100,000
. . . .
19. Did the defendants prove that plaintiffs failed to mitigate their damages for personal property losses after the event of 2004?
[Yes. Vote: 9-0]
. . . .
20. What amount of money should be deducted from plaintiffs' personal property damages for plaintiffs' failure to mitigate their losses?
[$___[zero]___ Vote 9-0]
After the foreperson completed reading the verdict sheet, the attorneys and the trial judge conferred outside the presence of the jury to discuss this anomalous result. As reported by the foreperson, the verdict sheet showed that the jurors had deviated from the instructions on the verdict sheet and answered questions they should not have reached given their findings of "no proximate cause" in favor of Hovnanian. The record shows the judge and the attorneys carefully reviewed the verdict sheet in an effort to ascertain the source of the problem.
The record reflects that immediately after the foreperson finished reading the verdict sheet, the trial judge uttered the following two words: "A nightmare." We do not know whether these words were said loud enough for the jurors or anyone else in the courtroom to hear. Although we sympathize with the trial judge's understandable frustration with this unexpected outcome, we caution that decorum dictates a judge to exercise self-restraint at all times while on the bench.
Despite their good faith efforts, they were unable to find a reasonable explanation for the jurors' decision to reach and answer questions concerning damages and comparative fault between Hovnanian and the Kesselhauts, despite their threshold determination that Hovnanian's conduct was not "a proximate cause of the water infiltration causing the flood in the basement of plaintiffs' home." Equally vexing was the jury's decision to answer questions concerning the loss of plaintiffs' personal property despite having found plaintiffs did not prove their home had a major structural defect as defined in the Homeowners Warranty.
Although plaintiffs' counsel was understandably more upset with this outcome than defense counsel, the record reflects that all involved reached the reasonable consensus that the verdict recorded in the verdict sheet was untenable. The question that remained was how to address the situation. After considering the suggestions of counsel, the judge decided to take the following measures:
I think the better course of action is to correct the mistakes in the verdict sheet, give it back to them, re-instruct them about the verdict sheet. No one has ever asked. They have not asked one question about the legal instruction, so, you know, I think they - - they are at least confident that they understand that. Correct the verdict sheet so that it reflects what was our intent, which was that if they go to 10 and answered it no and they didn't find negligence in the - - in the first nine questions, 1 through 3, then there was going to be a no cause. If you disagree with that, the way it was - - it was designed to unfold, no negligence, no warranty, no cause.
At this point, the judge invited the attorneys to place their positions on the record. Plaintiffs' counsel believed that the jurors needed
some kind of clarification about obviously proximate cause if they thought that there was remedial work required outside by K. Hov[nanian]. My concern is that when they
answered the proximate cause question they didn't understand it because in 14 they assess 50/50 responsibility to remediating by K. Hov[nanian] outside the house.
Defense counsel asked the judge to mold the verdict as a matter of law to reflect a "no cause" for K. Hovnanian based on a finding of no proximate cause. When the judge declined to adopt this position, defense counsel indicated he would accept, as "a fall back position," the approach suggested by the trial judge.
The trial judge redrafted the verdict sheet to reflect the corrections to the instructions discussed with counsel. He then informed the jurors of his decision, and read aloud, word by word, line by line, the newly drafted verdict sheet. The judge then asked the jurors to take the new verdict sheet "back into the jury room with you and then to deliberate on the verdict in conformity with the instructions I've given you about what you do when you get to Question No. 10." The jury adhered to the court's instructions and returned a verdict reflecting their answers to questions 1, 2, and 10.
The second verdict sheet reflected the following verdict by the jury:
1. Do you find that the defendant, K. Hovnanian was negligent in the construction of the plaintiffs' home?Consistent with the instructions on the verdict sheet, the jury did not reach any other question.
[Yes. Vote: 9-0]
If your answer to this question is "yes" proceed to Question #2.
If your answer to this question is "no" proceed to Question #10.
2. Do you find that the defendant K. Hovnanian's negligence was a proximate cause of the water infiltration causing the flood in the basement of plaintiffs' home?
[No. Vote: 8-1]
If your answer to this question is "yes" proceed to Question #3.
If your answer to this question is "no" proceed to Question #10.
10. Do you find that the plaintiffs established that at any time during January 22, 2004 to May 2006 the plaintiffs' home had a major structural defect as defined in the Homeowners Warranty?
[No. Vote: 8-1]
Relying on Neno v. Clinton, 167 N.J. 573 (2001) and Ponzo v. Pelle, 166 N.J. 481 (2001), plaintiffs argue the trial court erred in denying their motion for a judgment notwithstanding the verdict (JNOV) or in the alternative for a new trial, because the judge's approach in responding to the jury's first verdict sheet erroneously failed to clear the underlying legal confusion concerning the concept of proximate cause. We disagree.
Plaintiffs' reliance on Neno and Ponzo is misplaced because those cases are factually distinguishable. The plaintiffs in Neno "sustained serious injuries" after being hit by a truck as they walked across a highway intersection. Neno, supra, 167 N.J. at 577. The Supreme Court's jurisdiction was initially triggered pursuant to Rule 2:2-1(a), as a result of a dissent from a member of this court who believed "the trial court improperly had admitted the opinion of the investigating traffic officer concerning the cause of the accident." Ibid. The dissenting appellate judge "also concluded that the verdicts were inconsistent, requiring a retrial." Ibid.
The Court also granted the plaintiffs' petition for certification. Neno v. Clinton, 165 N.J. 488 (2000).
--------
Agreeing with our dissenting colleague, the Court reversed the jury's verdict finding the defendant driver negligent, but also finding "that his negligence was not a proximate cause of the accident." Id. at 587. Citing Menza v. Diamond Jim's, Inc., 145 N.J. Super. 40, 45 (App. Div. 1976), the Court adopted our dissenting colleague's conclusion that, under the factual circumstances of that case, such a verdict was "so inconsistent with the evidence as to bespeak confusion or mistake on the part of the jury." Ibid.
Here, by contrast, the jury's confusion was caused by the instructions in the verdict sheet, not by misapplication of the legal principles charged by the court or a misapprehension of the relevant evidence. The trial judge candidly admitted his responsibility in partly causing this confusion.
The verdict form did not misinform them about what they could consider in terms of Hovnanian's responsibility . . . to the plaintiff[s]. What it didn't do, regrettably, is misinform [sic] them as to what they were to do after they made individual determinations on the different theories that the plaintiff[s] [were] advancing for recovery. Had [the jurors] been told at the outset that when they reached Question No. 10 and had answered the preceding questions in such a fashion that they had excluded both the negligence and the breach theories, that their job was complete, they would never have gone on to consider the remaining questions. The directions to get them to those remaining questions, unfortunately, were less than clear. That's my fault. I take full responsibility. It may have been a collaborative effort, but it doesn't get to them unless I put my seal on it, and I - - I didn't do that correctly.
We agree and praise the trial judge for his candid assessment of the source of the jurors' initial confusion. We are satisfied that the second verdict form correctly and accurately recorded the jury's verdict. Whether this verdict is supported by the evidence presented at trial is beyond the scope of our review. Plaintiffs' intentional decision to limit the appellate record to abbreviated transcripts reflecting only the facts we have discussed at length here makes it impossible for us to answer that question.
Plaintiffs' reliance on Ponzo, supra, is likewise misplaced. The plaintiffs in Ponzo were spouses who brought a personal injury action against the defendant for striking the plaintiff wife with a car and causing her injury. 166 N.J. at 483. The plaintiff husband sought compensatory damages based on his derivative per quod claims. Ibid. The defendant conceded his negligence caused the car accident; the defendant's orthopedist expert on damages also on cross-examination conceded that the injuries suffered by the wife to her knee as well as the subsequent arthroscopic surgery performed to repair it were both related to the car accident. Id. at 486.
"[T]he trial court submitted a single interrogatory to the jury: 'Did the defendant's negligence proximately cause damage to Karen Ponzo?' The jury answered 'no' to that question and thus returned a verdict of no cause" in the defendant's favor. Id. at 487. The Court framed the salient questions before it as follows: "Whether there was a concession that [the plaintiff wife] suffered a knee injury in the accident; and if so, whether the single jury interrogatory improperly skewed the outcome of the case." Id. at 488. After carefully reviewing the trial record, the Court concluded that defense counsel had conceded that his client's negligence (the car accident) caused the knee injury suffered by the plaintiff wife. Id. at 491.
Whether the accident caused other injuries to the plaintiff wife was hotly contested. However, the question of whether she suffered an injury to her knee as a result of the accident was not. "Therefore, the jury's only inquiry regarding that injury was its extent and what amount of money, if any, was necessary to compensate" the plaintiff wife. Ibid. The Court concluded that under these circumstances the jury's no proximate cause finding could not stand.
[W]here, as here, [the plaintiff wife] advanced three distinct injuries from the accident, the existence of only two of which [the defendant] disputed, the single jury interrogatory was inadequate. The trial court should have crafted interrogatories that reflected the concession regarding the knee injury and detailed the distinct approach that was required of the jury where [the defendant] advanced entirely distinct defenses to the different claims.
[Id. at 492.]
In reaching this conclusion, the Ponzo Court reviewed and applied the settled legal principles governing appellate review of a trial court's jury interrogatories.
Ordinarily, "a trial court's interrogatories to a jury are not grounds for reversal unless they were misleading, confusing, or ambiguous." Sons of Thunder v. Borden, Inc.,
148 N.J. 396 (1997). Interrogatories are meant to serve particular purposes: "to require the jury to specifically consider the essential issues of the case, to clarify the court's charge to the jury, and to clarify the meaning of the verdict and permit error to be localized." Wenner v. McEldowney & Co., 102 N.J. Super. 13, 19 (App. Div.), certif. denied, 52 N.J. 493, (1968). "The framing of [jury] questions in clear and understandable language cannot be overemphasized." Benson v. Brown, 276 N.J. Super. 553, 565 (App. Div. 1994).
We are also mindful that in reviewing an interrogatory for reversible error, we should consider it in the context of the charge as a whole. Sons of Thunder, supra, 14 8 N.J. at 418. An accurate and thorough jury charge often can cure the potential for confusion that may be present in an interrogatory. Id. at 415-20; Mogull v. CB Commercial Real Estate Group, Inc., 162 N.J. 449, 470-71 (2000).
[Id. at 490-491 (emphasis added).]
Applying the Ponzo Court's holding to the facts here, we are satisfied that the trial judge correctly addressed and cured the confusion created by the first poorly drafted jury verdict form. However, unlike the core facts in Ponzo, where the jury was materially misled on how to apply the legal principle of proximate cause, the jury here was merely confused by the directions on the verdict sheet and answered questions that were not logically reconcilable with their initial finding of no proximate cause in favor of Hovnanian.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION