NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-2327-12T3
DR. HUMAYUN AKHTAR and APPROVED FOR PUBLICATION YOSARIA AKHTAR, February 24, 2015 Plaintiffs-Appellants, APPELLATE DIVISION
v.
JDN PROPERTIES AT FLORHAM PARK, L.L.C., JDN PROPERTIES, L.L.C., JOSEPH NATALE, RANDY DELUCA, DELTRUS, L.L.C., and CASEY & KELLER, INC.,
Defendants-Respondents. ________________________________________________________________
Argued January 6, 2015 – Decided February 24, 2015
Before Judges Koblitz, Haas and Higbee.
On appeal from Superior Court of New Jersey, Law Division, Morris County, Docket No. Docket No. L-1701-07.
Jay J. Rice argued the cause for appellants (Nagel Rice, L.L.P., attorneys; Mr. Rice, of counsel and on the brief; Randee M. Matloff, on the brief).
Andrew S. Cimino argued the cause for respondent Casey & Keller (Marshall Dennehey Warner Coleman & Goggin, attorneys; Mr. Cimino, of counsel and on the brief).
The opinion of the court was delivered by
KOBLITZ, J.A.D. Plaintiffs, Dr. Humayun Akhtar and his wife, Yosaria,
appeal from a jury verdict dismissing their malpractice claims
against defendant,1 engineering firm Casey & Keller, Inc. A
judge initially awarded plaintiffs summary judgment on
liability, but a second judge reconsidered and vacated the grant
of summary judgment. A third judge held a full trial, which
yielded a no-cause jury verdict. Plaintiffs maintain that they
were entitled to summary judgment as a matter of law, or at
least a new trial, because their expert's opinion was unrebutted
by defendant's expert. In light of plaintiffs' burden of proof
and the conflicting evidence as to the factual predicates for
their expert's opinion, we affirm.
I
As developer JDN Properties at Florham Park, L.L.C., (JDN
FP), was planning a ten-lot project on a set of steep
properties, its manager, Randy DeLuca, engaged engineer Michael
Lanzafama's firm, Casey & Keller, Inc. Lanzafama's firm was to
perform title, topographic, and utilities surveys, prepare
designs for a road and other infrastructure for the project, and
1 "Defendant" refers only to Casey & Keller. The complaint against JDN FP, JDN Properties, and Joseph Natale, the principal of both entities, as well as on site-manager Randy DeLuca and his company Deltrus (collectively, the JDN defendants) is the subject of a separate consolidated appeal under docket numbers A-5907-11 and A-6064-11.
2 A-2327-12T3 submit those documents for approval from the appropriate
government agencies. In the course of that work, Lanzafama
drafted an individual lot grading plan for what would become
plaintiffs' property, depicting two semi-circular Allan Block
retaining walls and incorporating the manufacturer's
specifications. The grading plan was filed with the
municipality in conjunction with the property's site plan and
approved by borough engineer Robert Kirkpatrick in April 2005.
Plaintiffs contracted with JDN FP to purchase the lot and
have a home constructed, with certain modifications, such as one
to accommodate a full walk-out basement, which ultimately drove
the price up to just over $1.56 million. Akhtar, who frequently
visited the site during construction, testified at trial that
shortly before the closing, he was surprised to find that the
builder had deviated from Lanzafama's design by constructing a
much longer, higher retaining wall along the eastern side of the
property than originally designed. He acknowledged, however,
that he had requested that the wall be raised by at least one
foot to accommodate a backyard pool, and DeLuca introduced
testimony suggesting that plaintiffs' requests for modifications
required a more level backyard and consequently, expansion of
the retaining wall. Lanzafama claimed at trial that his
personnel had no knowledge of the modification until their site
3 A-2327-12T3 visit for a final survey, but confirmed that his design provided
sufficient information for building the wall ultimately
constructed.
Nonetheless, the modification was undertaken without prior
municipal approval, and JDN FP had apparently never obtained a
permit for the wall in the first place. On one of his site
visits, borough engineer Kirkpatrick noticed the change, along
with other unauthorized work. Because the municipality had
never inspected the retaining wall's construction, he requested
a letter assuring that the wall had been built according to the
manufacturer's specifications. Lanzafama wrote the letter at
DeLuca's request.
At trial Lanzafama testified that, before doing so, he
discussed with DeLuca the methods that had been used to
construct the wall and inspected the wall himself, albeit after
its completion. He explained that while investigating, he
observed geogrid fabric protruding from the wall at various
points, confirming that the three appropriately spaced layers of
geogrid had been placed. He also observed drainage pipes
extending from the wall, suggesting that the required toe drain
had been installed at the crushed stone's base to evacuate any
water that might build up within or alongside the wall. His
field crew took measurements of the wall to confirm its location
4 A-2327-12T3 and elevation, and he himself examined soil immediately behind
the wall to confirm its stability. He further reviewed
photographs his crew had taken on site visits, which he believed
showed that the blocks, gravel, and geogrid were appropriately
placed and that the correct compaction tools had been used.
Moreover, he recalled his own prior site visits at various
stages of the wall's construction, albeit undertaken for other
reasons, where he nonetheless saw the wall being built with
appropriate materials and equipment. He concluded from those
observations that the wall had been appropriately built and felt
comfortable writing the letter.
Borough building inspector Stephen Jones testified at
deposition that the letter had not specifically been requested
in connection with the review of any application for a
certificate of occupancy. It was, in any event, submitted in
connection with such an application. The borough issued a
temporary certificate of occupancy for the property on June 1,
2006. Pursuant to the contract, JDN FP then remitted a "time of
the essence letter" to plaintiffs and set a closing date for
June 9. Akhtar performed a walk-through of the property prior
to closing and requested repair of certain defects. Plaintiffs
first became aware of serious problems with the property when
5 A-2327-12T3 they learned from a plumber not long after closing that the
house was "sliding." They have never moved in.
Subsequent investigations by engineering firm LAN, hired by
JDN FP, revealed cracking in the foundation under a substantial
portion of the eastern side of the house due to improperly
compacted soil. Plaintiffs, meanwhile, retained Henry Naughton,
an engineering consultant, who concluded that the cracks in the
foundation were attributable to the soil's poor bearing
capacity. He further concluded that the eastern retaining wall,
which Lanzafama had vouched for, had questionable long term
stability that, because of transport of soil through the wall,
would undermine structures supported on the soil. He testified
that failure of the retaining wall was one of the causes of the
movement of the house. LAN recommended installing helical piles
to bolster the foundation and arrest its settlement, but
plaintiffs and JDN FP were never able to agree on an appropriate
remedy.
At trial, plaintiffs claimed Lanzafama's certification that
the wall had been built correctly caused the certificate of
occupancy to issue, requiring plaintiffs to close on a
deficiently built house with a failing retaining wall. To that
end, they introduced Naughton, who testified that no engineer
should issue a certification without conducting an investigation
6 A-2327-12T3 sufficient to make the engineer reasonably certain of its
accuracy. He set forth numerous investigatory steps a
reasonable engineer might take to reach an appropriate level of
certainty and how Lanzafama's course of conduct fell short. He
recounted that, although Lanzafama had never overseen the
construction or inspected the wall as it was built, he should at
least have discussed with the contractor how each aspect of the
manufacturer's specifications had been met, that the soil had
been appropriately compacted, and that the appropriate lengths
of geogrid had been installed. Moreover, he should have
requested compaction and soil density test results from the
contractor and performed independent tests if the contractor
made none available.
Naughton acknowledged that Lanzafama had reviewed
photographs depicting the progress of construction of the wall,
but disagreed that anything meaningful could be learned from
them. He asserted, moreover, that, had Lanzafama conducted a
proper investigation before issuing the letter, particularly had
he performed any soil testing, it would have set off "bells and
whistles" undermining any confidence he could have as to the
retaining wall's construction.
Plaintiffs also introduced Martin Grant, an expert
surveyor. Grant took a series of measurements at several points
7 A-2327-12T3 on the wall on eight occasions from October 2007 to June 2012,
and concluded from them that the wall had moved approximately
one to three inches, well in excess of what the manufacturer's
specifications contemplate. All movement, moreover, had been in
a consistent easterly direction.
Defendant introduced engineering expert Robert Simpson, who
testified that the damage to the house had been caused by the
improperly-compacted fill beneath the foundation, not the
retaining wall. As to the issue of breach, he summarized his
understanding of what Lanzafama had done before preparing the
letter, but never offered an opinion as to whether issuing the
letter constituted a deviation from any accepted standard of
care. He candidly acknowledged that he would not have written
the letter under those circumstances, but elaborated that that
was because his firm "insist[s] upon full-time inspections for
all certifications" and that defendant might simply have
different standards.
Moreover, Simpson believed the evidence inconclusive as to
whether the wall had been properly constructed. There was
strong evidence from testing and measurements by the parties'
experts that the wall was stable. He concluded from his own
observations and other experts' data that the wall had shown
little movement and was not failing, and that, even if it were,
8 A-2327-12T3 it was too far from the house for that failure to have caused
the damage the house sustained.
Defendant also conducted its own investigation of the
wall's movement, taking measurements approximately every six
months between November 2007 and August 2012. Such measurements
revealed that the wall had moved no more than a fraction of an
inch within that time, consistent with the manufacturer's
representation of the wall's flexibility. Lanzafama explained
that Allan Block retaining walls were "basically soil masses
that act as giant gravity walls," which acquire their stability
from geogrid fabric installed "at various levels within the soil
mass." Soil between each pair of geogrid layers is compacted to
form a single unit that acts together. The manufacturer's
specifications show that the walls are designed to be flexible
and "move with stresses, yet not yield."
Finally, defendant presented Wayne Sanclimenti of Ron-Jon
Construction, the subcontractor that built the eastern retaining
wall. Sanclimenti testified to his experience as a certified
Allan Block builder for at least fifteen years, explained the
wall's construction process with reference to photographs taken
during that construction, and stated that the wall had been
built according to the manufacturer's specifications.
9 A-2327-12T3 The jury voted five to one that defendant did not breach
its standard of care. Therefore, the jury did not proceed to
consider proximate cause or damages. The trial judge denied
plaintiffs' motion for a new trial.
II
Plaintiffs first challenge the second judge's
reconsideration of the first judge's grant of partial summary
judgment in favor of plaintiffs as to liability. A court may
grant summary judgment as to an issue only if "the pleadings,
depositions, answers to interrogatories and admissions on file,
together with affidavits, if any, show that there is no genuine
issue as to any material fact challenged and that the moving
party is entitled to a judgment or order as a matter of law."
R. 4:46-2(c). The facts must be viewed in a light most
favorable to the non-moving party. Polzo v. Cnty. of Essex, 209
N.J. 51, 56 n.1 (2012) (citing Brill v. Guardian Life Ins. Co.
of Am., 142 N.J. 520, 523 (1995)). The slightest doubt as to an
issue of material fact must be reserved for the factfinder, and
precludes a grant of judgment as a matter of law. Saldana v.
DiMedio, 275 N.J. Super. 488, 494 (App. Div. 1994).
Any issues of credibility must be left to the finder of
fact. Conrad v. Michelle & John, Inc., 394 N.J. Super. 1, 13
10 A-2327-12T3 (App. Div. 2007). That is so even where a witness's testimony
is uncontradicted, D'Amato by McPherson v. D'Amato, 305 N.J.
Super. 109, 115 (App. Div. 1997), as long as, when considering
the testimony in the context of the record, persons "of reason
and fairness may entertain differing views as to [its] truth
[.]" Sons of Thunder, Inc. v. Borden, Inc., 148 N.J. 396, 415
(1997) (quoting Ferdinand v. Agric. Ins. Co. of Watertown, N.Y.,
22 N.J. 482, 494 (1956)). Summary judgment should be denied
unless "the right thereto appears so clearly as to leave no room
for controversy." Saldana, supra, 275 N.J. Super. at 495. Our
review of a ruling on summary judgment is de novo, applying the
same legal standard as the trial court. Nicholas v. Mynster,
213 N.J. 463, 478 (2013).
Once made, such an interlocutory order may always be
reconsidered, on good cause shown and in the interests of
justice, prior to entry of final judgment. Johnson v. Cyklop
Strapping Corp., 220 N.J. Super. 250, 257, 263-64 (App. Div.
1987), certif. denied, 110 N.J. 196 (1988). Nonetheless,
relitigation of an interlocutory order before successive judges
of coordinate jurisdiction is generally disfavored, Cineas v.
Mammone, 270 N.J. Super. 200, 207-08 (App. Div. 1994), and the
"law of the case" doctrine invests the court with discretion to
decline relitigation of any legal decision made earlier by an
11 A-2327-12T3 equal court in the same case, Lombardi v. Masso, 207 N.J. 517,
538-39 (2011). The doctrine is not inflexible, however,
Southport Dev. Group v. Twp. of Wall, 295 N.J. Super. 421, 430
(Law Div. 1996), aff'd, 310 N.J. Super. 548 (App. Div. 1998),
certif. denied, 156 N.J. 384 (1998), and a court maintains the
discretion to revisit the earlier ruling whenever those
"'factors that bear on the pursuit of justice and, particularly,
the search for truth'" outweigh "the value of judicial deference
for the rulings of [the] coordinate judge." Hart v. City of
Jersey City, 308 N.J. Super. 487, 498 (App. Div. 1998) (quoting
State v. Reldan, 100 N.J. 187, 205 (1985)). Such may be the
case, for example, where a court recognizes clear error in the
earlier decision. Sisler v. Gannett Co., Inc., 222 N.J. Super.
153, 159 (App. Div. 1987), certif. denied, 110 N.J. 304 (1988).
In Lombardi, our Supreme Court emphasized that:
[A]lthough a party who obtains summary judgment may believe he is absolutely free of the litigation, it is a contradiction in terms to say that an interlocutory decree should be a finality. The policy that litigation must have an end is not threatened in such a case, because litigation has not yet terminated. In other words, a party's sense of finality upon summary judgment is just that – a feeling unsupported by the notion of what is, in fact, interlocutory. Interlocutory orders are always subject to revision in the interests of justice.
12 A-2327-12T3 [Lombardi, supra, 207 N.J. at 535-36 (internal citations and quotation marks omitted).]
The first motion judge granted partial summary judgment to
plaintiffs on liability exclusively because defendant had
introduced no expert testimony disputing Naughton's conclusion
that defendant had deviated from the accepted standard of care.
The second motion judge, relying on Lombardi, supra, 207 N.J. at
534-40, concluded that the order granting partial summary
judgment to plaintiffs should be vacated and a trial had on
liability as well as damages. He noted that deposition
testimony from the building inspector, Jones, put into dispute
whether issuance of the certificate of occupancy was conditioned
on defendant's letter, and that data as to movement of the
retaining wall did not inexorably compel the conclusion that the
wall was moving. Yet plaintiffs' expert Naughton had relied on
those factual circumstances to conclude that defendant's alleged
breach of the accepted standard of care was a proximate cause of
plaintiffs' damages. Resolution of either factual dispute in
defendant's favor would call into question the integrity of
Naughton's opinion. Moreover, there remained a factual dispute
as to whether the wall had, in fact, been built according to
specifications.
13 A-2327-12T3 The summary judgment standard takes into account who has
the burden of proof on a matter. CPC Int'l, Inc. v. Hartford
Accident & Indem. Co., 316 N.J. Super. 351, 375 (App. Div.
1998), certif. denied, 158 N.J. 73 (1999). We have explained
that, where "'the movant is also the party bearing the burden of
persuasion with regard to a claim, its initial summary judgment
burden is somewhat higher in that it must show that the record
contains evidence satisfying the burden of persuasion and that
the evidence is so powerful that no reasonable jury would be
free to disbelieve it.'" Ibid. (quoting Moore's Federal
Practice, § 56.13(1), at 56-138 (3d ed. 1997)). Consequently,
where the plaintiff's case hinges on the testimony of a witness,
whose credibility is subject to question considering that
testimony in the context of the record, there may be no
"'single, unavoidable resolution'" of disputed questions of fact
so as to warrant summary judgment. Ibid. (quoting Brill, supra,
142 N.J. at 540). Naughton's report was not so "clear and
convincing [or] . . . [un]contradicted in any way by witnesses
or circumstances, [or] so plain and complete that disbelief of
the story could not reasonably arise in the rational process of
an ordinarily intelligent mind . . . ." Cameco, Inc. v.
Gedicke, 299 N.J. Super. 203, 213 (1997) (emphasis added)
(quoting Ferdinand, supra, 22 N.J. at 494), aff’d as modified,
14 A-2327-12T3 157 N.J. 504 (1999). His report was not so eminently credible
in the context of this record, even if unopposed formally by a
defense expert, as to demand judgment as a matter of law in
light of plaintiffs' burden of proof.
Moreover, the factual predicates for Naughton's opinion
remained subject to legitimate dispute. The value of an
expert's opinion is in elucidating evidence in the record and
explaining to lay factfinders the significance of that evidence
in light of the expert's training and experience. State v.
Odom, 116 N.J. 65, 76 (1989). Naked opinions have no probative
value in themselves and, indeed, are inadmissible to the extent
they bear no connection to the factual record. Pomerantz Paper
Corp. v. New Cmty. Corp., 207 N.J. 344, 372 (2011). The first
motion judge stated that Naughton asserted that defendant had
breached the accepted standard of care, specifically because it
had "issued [its] certification with no attempt to verify how
the retaining walls at the subject property were actually
constructed." (Emphasis added).
A finder of fact could certainly conclude otherwise on the
record available at summary judgment. There was evidence that
at least some investigation occurred, including Lanzafama's
observations during site visits, discussion with DeLuca, and
examination of photographs of the retaining wall during
15 A-2327-12T3 construction. The fact-sensitive inquiry as to whether that
investigation was adequate to meet the standard of care Naughton
outlined was one for the jury, which would remain free to reject
Naughton's credibility in whole or in part, or to resolve any
disputed issue as to the factual predicate for Naughton's
opinion in defendant's favor. See Suarez v. E. Int'l Coll., 428
N.J. Super. 10, 27 (App. Div. 2012) (cautioning that a court
must not invade a jury's exclusive role as factfinder), certif.
denied, 213 N.J. 57 (2013). Defendant's failure to introduce
any expert to address the issue of breach, in other words, did
not in itself warrant summary judgment for plaintiffs. The
factual record on which Naughton's opinion relied was simply not
so one-sided as to warrant that relief. Gilhooley v. Cnty. of
Union, 164 N.J. 533, 545 (2000).
The second motion judge did not abuse his discretion in
reconsidering the first motion judge's ruling, and after our de
novo review, we agree that plaintiffs were not entitled to
summary judgment on liability.
III
Plaintiffs also contend that the trial judge should have
granted their motion for a directed verdict. The standard
applicable to a motion for a directed verdict is equivalent to
that applicable to one for summary judgment. Frugis v.
16 A-2327-12T3 Bracigliano, 177 N.J. 250, 269-70 (2003). The trial court must
accept as true all evidence that supports the non-moving party's
position and all favorable legitimate inferences therefrom to
determine whether the moving party is entitled to judgment as a
matter of law. Dolson v. Anastasia, 55 N.J. 2, 5 (1969). The
court must deny the motion so long as "reasonable minds could
differ," Johnson v. Salem Corp., 97 N.J. 78, 92 (1984), to
ensure that any legitimate dispute of material fact be left to
the jury, Lewis v. Am. Cyanamid Co., 155 N.J. 544, 567 (1998).
The same standard applies on appeal. Estate of Roach v. TRW,
Inc., 164 N.J. 598, 612 (2000).
The trial judge concluded after reviewing the evidence that
judgment as a matter of law was unwarranted as to the issues of
both breach and proximate cause. Plaintiffs' challenge to this
decision rests on the notion that, because Simpson never
directly rebutted Naughton's opinion that defendant deviated
from the accepted standard of care, plaintiffs are entitled to
judgment as a matter of law. However, as already discussed,
plaintiffs were not entitled to such relief in light of their
burden of proof, so long as Naughton's credibility could be
reasonably subject to question, see CPC Int'l, supra, 316 N.J.
Super. at 375, or so long as the factual predicate to his
17 A-2327-12T3 opinion remained subject to reasonable dispute on this record,
see Suarez, supra, 428 N.J. Super. at 27.
[At the direction of the court, Parts IV, V and VI are omitted from the published version. See R. 1:36-2(d).]
Affirmed.
18 A-2327-12T3