Angela M. Carrillo-Mendoza v. Laurie S. Kurs

• Court: New Jersey Superior Court Appellate Division
• Decided: July 26, 2024
• Docket: A-3148-22
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-3148-22

ANGELA M. CARRILLO-MENDOZA,

Plaintiff-Appellant,

v.

LAURIE S. KURS, STEVEN A. KURS, and BHAIRAVI H. MALKAN,

Defendants,

and

HIREN G. MALKAN,

Defendant-Respondent. __________________________

Argued May 20, 2024 – Decided July 26, 2024

Before Judges Gilson and Berdote Byrne.

On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-0163-17. Salomao Nascimento argued the cause for appellant (Epstein Ostrove, LLC, attorneys; Salomao Nascimento, on the briefs).

Robert P. Stein argued the cause for respondent (Goldberg, Miller & Rubin, PC, attorneys; Robert P. Stein, on the brief).

PER CURIAM

Plaintiff appeals from a judgment of no cause after a jury trial in her

personal injury action, arguing the trial court erred in: 1) excluding a statement

made by an unidentified female motorist, in contravention of the excited

utterance exception to the hearsay rule, N.J.R.E. 803(c)(2); 2) failing to allow

her to present rebuttal evidence; and 3) using the model jury charge regarding

settling defendants. After reviewing the record in the light of prevailing legal

principles, we affirm.

I.

We glean the following facts from the record. Plaintiff was traveling in

the middle car of a three-car accident that occurred on February 11, 2015. She

filed a negligence action in 2017 against Steven Kurs, Laurie Kurs (Laurie),

Hiren Malkan (defendant), and Bhairavi Malkan for injuries she allegedly

sustained. Steven Kurs and Bhairavi Malkan separately moved for summary

judgment and their motions were granted by the trial court. Plaintiff then settled

A-3148-22 2 with Laurie in February 2022. Plaintiff and defendant subsequently agreed to a

liability-only trial.

Prior to trial, plaintiff stated she intended to call Laurie as a witness,

despite having settled her claim against Laurie. On March 27, 2023, prior to

trial, defendant moved in limine to preclude deposition testimony from Laurie

relating to an unidentified witness to the accident. Specifically, defendant

sought to exclude Laurie's deposition statement of what occurred immediately

after the accident, where, in her deposition, she stated:

The car behind me, the woman got out. I don't know her, and I didn't think at the time . . . to ask her for her name. But she came out, and she said that she had seen what happened. And she said -- and I'm only repeating what she said that she had seen -- she might have been more hugging more to the left so she was able to see what happened, or to the right, I don't know. But that the car in the middle had hit the first car, which is probably, I'm only guessing, why [defendant's] lights didn't go on. [Defendant] didn't stop. And me not knowing it, she said, then I went into [defendant's car]. . . . That . . . [o]ne is the first car, two is in the middle, and me is three. That two hit one, and then I hit two.

The trial court granted defendant's motion, finding Laurie's statement

failed to meet the standards for an excited utterance pursuant to N.J.R.E.

803(c)(2). It also denied plaintiff's request for a hearing on the matter pursuant

to N.J.R.E. 104. In addition, the trial court agreed with defendant that the jury

A-3148-22 3 should be charged pursuant to Model Jury Charges (Civil), 1.11G "Settling

Defendants" (rev. April 2018) based on Laurie's expected testimony at trial. The

next day, plaintiff moved for reconsideration of the trial court's in limine ruling

regarding the unidentified motorist's statement, which was denied.

Plaintiff, Laurie, and defendant testified at trial. Plaintiff's counsel read

into evidence portions of defendant's deposition transcript prior to defendant's

testimony, and on cross-examination addressed discrepancies between

defendant's trial testimony and deposition testimony. The day after defendant

concluded his testimony, plaintiff sought to introduce "rebuttal evidence"

consisting of defendant's answer to plaintiff's nineteenth interrogatory question

regarding the speed his car was travelling when the collision occurred. The trial

court prohibited plaintiff from introducing the interrogatory, finding plaintiff

had prior access to it and should have used it on cross-examination. The court

reasoned allowing plaintiff to present the interrogatory would "draw [undue

attention] to the jury as if there is something that was hidden, or this is a new

issue. It's not a new issue."

The jury rendered a unanimous verdict in favor of defendant, and the court

entered a judgment of no cause for action on May 23, 2023. This appeal

followed.

A-3148-22 4 II.

We review evidentiary rulings for an abuse of discretion, with substantial

deference afforded to the trial court. Hrymoc v. Ethicon, Inc., 254 N.J. 446, 463

(2023); see Casino Reinv. Dev. Auth. v. Lustgarten, 332 N.J. Super. 472, 497

(App. Div. 2000). A trial court's decision whether to conduct a hearing pursuant

to N.J.R.E. 104 is also reviewed for an abuse of discretion. Est. of Grieco v.

Schmidt, 440 N.J. Super. 557, 567 (App. Div. 2015). Trial court's rulings are

generally upheld unless they are "'so wide of the mark' that [they] constitute[] 'a

clear error in judgment.'" State v. Olenowski, 255 N.J. 529, 572 (2023) (quoting

State v. Allen, 254 N.J. 530, 543 (2023)); see also Hrymoc, 254 N.J. at 463.

However, we review issues of law de novo. State v. Scott, 474 N.J. Super. 388,

403 (App. Div. 2023).

III.

A. The Excited Utterance Exception to the Hearsay Rule.

Plaintiff argues that Laurie's testimony concerning what the unidentified

motorist said to her should have been admitted as an excited utterance pursuant

to N.J.R.E. 803(c)(2). She contends the statements were made immediately after

"a very serious, shocking crash involving multiple larger vehicles" and the

unidentified female declarant must have been excited by what she witnessed.

A-3148-22 5 Further, plaintiff asserts there is nothing in the record to show the unidentified

declarant had any reason to fabricate her statement. As such, plaintiff claims

the statements satisfy each of the elements necessary to admit an excited

utterance. She argues the trial court, at minimum, should have conducted a Rule

104 hearing to determine the reliability of the statement. We disagree.

"Hearsay is generally inadmissible, N.J.R.E. 802, except if it falls within

one of the hearsay exceptions," such as a statement that qualifies as an excited

utterance. State v. Outland, 458 N.J. Super. 357, 364 (App. Div. 2019) (quoting

State v. Williams, 169 N.J. 349, 358 (2001)); N.J.R.E. 803(c)(2). For a hearsay

statement to be admitted under the excited utterance exception, the proffering

party must lay a foundation that the declarant spoke "'under the stress of

excitement" without "the opportunity to deliberate or fabricate." N.J.R.E.

803(c)(2); Gonzales v. Hugelmeyer, 441 N.J. Super. 451, 458 (App. Div. 2015);

State v. Branch, 182 N.J. 338, 357–58 (2005).

A statement will qualify as an excited utterance if it meets the factors

enumerated in Truchan v. Sayreville Bar & Restaurant:

(1) the amount of time that transpired between the initial observation of the event and the subsequent declaration of the statement; (2) the circumstances of the event; (3) the mental or physical condition of the declarant; (4) the shock produced; (5) nature of the

A-3148-22 6 statement; and (6) whether the statement was made voluntarily or in response to a question.

[323 N.J. Super. 40, 48-49 (App. Div. 1999); State v. Belliard, 415 N.J. Super. 51, 87 (App. Div. 2010) (quoting State v. Buda, 195 N.J. 278, 294 (2008)); State v. Long, 173 N.J. 138, 159 (2002).]

As the trial court aptly observed, there was no evidence presented to

support the contention that the unidentified motorist's statement qualified as an

excited utterance. Because the declarant is unidentified, the requisite emotional

state must be demonstrated, rather than merely inferred. See Gonzales, 441 N.J.

Super. at 458 (holding the statement from an unidentified witness "was not

eligible as an excited utterance because there was no foundation laid that the

declarant spoke 'under the stress of excitement' without 'the opportunity to

deliberate or fabricate.'").

Plaintiff claimed the declarant was excited based solely on the fact she

had allegedly witnessed an accident. However, unlike plaintiff, the unidentified

motorist was not involved in the accident. Moreover, Laurie's deposition

testimony made clear she was "only guessing" at what the motorist meant.

Laurie's deposition testimony does not provide any indication of how long after

the accident the declarant spoke with her. Nothing establishes the declarant's

mental or physical state at the time of her alleged statement. Moreover, the

A-3148-22 7 unidentified witness was not mentioned in any police report and was only first

mentioned by Laurie at her deposition approximately two years after the

accident. Laurie, who had at that point not yet settled her case with plaintiff,

made the self-serving statement, and the trial court was correct to find the

statement unreliable.

The trial court was not required to have a Rule 104 hearing to test the

reliability of the statement. Only Laurie would have been able to offer any

testimony regarding the circumstances of the statement, nearly ten years after

the accident occurred.

B. Rebuttal Evidence.

Plaintiff also contends she should have been permitted to read into

evidence defendant's answer to the nineteenth form interrogatory to rebut his

testimony from the prior day. Plaintiff argues there was no reason not to permit

the entry of rebuttal evidence in this instance as the jury had not yet been

charged. We discern no abuse of discretion in the judge's denial.

Rebuttal evidence is intended to challenge or contradict new matters

raised by an opposing party at trial. See N.J. Div. of Child Prot. & Permanency

v. T.D., 454 N.J. Super. 353, 385 (App. Div. 2018). "Generally, a party holding

the affirmative of an issue is obligated to present all of the evidence on the case

A-3148-22 8 in chief before the close of the proof, and does not have the right to add to it on

rebuttal." 75 Am. Jur. 2d Trial § 283 (2024); see T.D., 454 N.J. Super. at 385

(finding no abuse of discretion when the trial court denied request to call a

father's "daughter on rebuttal, as his ability to parent was not an unexpected

issue raised" by the other party). Evidence cumulative to the party's case in

chief is not rebuttal evidence. See T.D., 454 N.J. Super. at 385 ("Rebuttal

evidence is appropriate 'when necessary because of new subjects introduced on

direct or cross-examination' of witnesses.") (quoting State v. Cook, 330 N.J.

Super. 395, 418 (App. Div. 2000)).

Plaintiff introduced testimony from Laurie, the driver of the third vehicle,

who testified defendant's car's brake lights did not turn on, and defendant's car

was still moving. On cross-examination, defendant was specifically questioned

regarding the speed he was traveling at the time of the crash, and he stated he

"was almost stopped . . . when [he was] hit from behind." When questioned

further, defendant testified he was "[s]topped, . . . [o]r almost stopped, . . . it was

. . . like, . . . the speed was zero." Plaintiff then questioned him regarding his

prior deposition testimony on the same issue, and the speed of his vehicle as he

described it in the police report, before concluding cross-examination. The

interrogatory plaintiff sought to read into evidence should have been introduced

A-3148-22 9 during plaintiff's direct case or, at the very least, during cross-examination of

defendant. It was not new evidence and could have been anticipated prior to

and during trial.

C. The Jury Charge Regarding Settling Defendants.

With respect to the appeal of a jury charge, we must ascertain "whether

an erroneous charge may have affected the trial's result." Washington v. Perez,

219 N.J. 338, 351 (2014). This requires us to examine the entire charge, rather

than review individual errors in isolation. Ibid. (quoting Viscik v. Fowler Equip.

Co., 173 N.J. 1, 18 (2002)). Reversal is inappropriate where the instruction was

"incapable of producing an unjust result or prejudicing substantial rights," ibid.

(quoting Mandal v. Port Auth. of N.Y. & N.J., 430 N.J. Super. 287, 296 (App.

Div. 2013)), or accords with the model jury charges. Graphnet, Inc. v. Retarus,

Inc., 250 N.J. 24, 40 (2022).

Plaintiff maintains the trial court prejudiced her before the jury by

informing it Laurie settled with plaintiff before trial. She asserts her settlement

with Laurie was irrelevant and a jury should not be informed of a party's

settlement prior to trial if the court can avoid it. She also asserts the trial court's

instruction "likely confused" the jury with its "contradictory" instruction , which

emphasized settlement and made speculation unavoidable.

A-3148-22 10 "[A] jury charge is presumed to be proper when it tracks the model jury

charge because the process to adopt model jury charges is 'comprehensive and

thorough.'" State v. Cotto, 471 N.J. Super. 489, 543 (App. Div. 2022) (quoting

State v. R.B., 183 N.J. 308, 325 (2005)). Although plaintiff contends the jury

charge is "contradictory," she does not explain the alleged contradiction.

Plaintiff elected to call Laurie as a witness and the trial court was required to

advise the jury as to the reason Laurie was not a defendant in the case, and the

reason it need not weigh Laurie's potential culpability.

Affirmed.

A-3148-22 11