John H. King argued the cause for respondents Peter Dolcy and Duffy, Dolcy, McManus & Roesch.
Plaintiff Lucca Contracting, Inc. (Lucca) and defendants/third-party plaintiffs Donald G. Targan and Edward DiNicolantonio (collectively, Targan) entered into a contract for Lucca to perform site work at a project known as Pine Creek Drive in Hamilton Township. Targan hired third-party defendant, Duffy, Dolcy, McManus & Roesch (DDMR), to provide certain surveying and engineering services to develop the site. Under the contract between Lucca and Targan, Targan was required to pay $224,500 in four draws. Targan paid the first and second draws but failed to pay the third and fourth draws. Targan appeals from a judgment returned against them for breach of contract and the trial court's order denying their motion to mold the verdict.
Targan also argues that, if the verdict stands, "the entire amount should be shifted to third party defendant, DDMR." The Appellate Court ruled that this argument lacked sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
The jury found that Targan breached its contract with Lucca; that Lucca did not breach the contract and that Lucca performed the work "according to the contract plans and in a workmanlike manner." The jury concluded that Targan owed Lucca $60,458 under the contract and that the total amount owed under the contract, including "additional reasonable compensatory damages" was $77,083. The jury also found that DDMR breached its contract with Targan "by failing [to] provide Lucca with specifications upon which [it] could rely for the installation of the concrete curb or by advising Targan to remove the concrete curb," and awarded Targan $3,000 for that breach.
After the trial, Targan filed motions for a new trial and to mold the verdict, both of which were denied by the trial court.
On this appeal, Targan argue that plaintiff's improper conduct warrants a new trial; false testimony and presentation of deliberately misleading and irrelevant judgements was not cured at trial; if the trial court denies the motion for new trial, the inconsistent verdict regarding DDMR should be molded; the decision in favor of Lucca was again the weight of the evidence.
The challenged evidence consists of the only judgment received in evidence, the Penn Jersey judgment for $12,371, and Mr. Lucca's testimony regarding the judgments. The Appellate Court said "[i]t is unfortunate that the challenged judgments were not provided in discovery so that the relevance of the judgments to the plaintiff's claims could be explored prior to trial. As the trial court observed, it would ordinarily be expected that such documents would have been demanded and produced during the discovery period."
"Lawyers have an obligation of candor . . . which includes a duty of disclosure to the court and opposing counsel." McKenney v. Jersey City Med. Ctr., 167 N.J. 359, 371 (2001). "[C]oncealment and surprise are not to be tolerated," Lang v. Morgan's Home Equip. Corp., 6 N.J. 333, 338 (1951), because the outcome of the case should be based on the merits given the facts, not the craftiness of counsel. McKenney, supra, 167 N.J. at 371. However, the Appellate Court observed that Targan failed to identify what discovery demand, if any, was made that would have required the production of these judgments prior to trial.
Granting substantial deference to the trial judge's discretion on evidentiary rulings. the Appellate Court held that reversal is only appropriate when the trial judge's ruling was "so wide of the mark that a manifest denial of justice resulted." State v. Carter, 91 N.J. 86, 106 (1982); Board of Educ., supra, 409 N.J. Super. at 430.
The trial court's instruction to the jury did exactly what was promised to Targan's counsel: it made sure that the jury understood that the $213,000 judgment was not to be considered in determining damages. Targan's counsel did not voice any dissatisfaction with the charge at trial. To the extent that any confusion regarding the $213,000 judgment might have survived this instruction, it would appear to be the product of Targan's counsel's argument in summation that Lucca was seeking this amount in damages. There is nothing in the charge or in Lucca's counsel's summation to support that view of Lucca's claim. The jury awarded Lucca less than the sum of the unpaid contract payments, providing no support for a claim that testimony regarding the $213,000 judgment influenced their verdict. We are satisfied that the trial court's instruction cured any false impression that the $213,000 judgment was any part of the damages sought.
Targan also argues that, if the verdict stands, "the entire amount should be shifted to third party defendant, DDMR." The Appellate Court ruled that this argument lacked sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
The entire opinion of the Appellate Court can be found here:
https://law.justia.com/cases/new-jersey/appellate-division-unpublished/2009/a2003-08-opn.html
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