NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-2181-17T4
MARWA AYAD,
Plaintiff-Appellant,
v.
ACCURA HOME INSPECTION,
Defendant-Respondent,
and
BILL FOERSTER, HOA LEE, and SHERRYL LEE,
Defendants. ____________________________
Argued December 11, 2018 – Decided December 24, 2018
Before Judges Hoffman and Firko
On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. DC-016941-17.
Marwa Ayad, appellant, argued the cause pro se. Joseph W. Denneler argued the cause for respondent (Salmon, Ricchezza, Singer & Turchi, LLP, attorneys; Joseph W. Denneler on the brief).
PER CURIAM
Plaintiff, Marwa Ayad, a self-represented litigant, appeals from an order
entered by the trial court during a bench trial on December 12, 2017, which
granted defendant Accura Home Inspection's motion to dismiss pursuant to Rule
4:37-2(b). We affirm substantially for the reasons expressed by Judge Robert
H. Gardner in his well-reasoned oral opinion. These are the salient facts.
I.
This case involves the purchase of a residence by plaintiff from
defendants, Hoa Lee and Sherryl Lee. 1 Plaintiff retained Accura to perform a
home inspection prior to the closing that took place on June 29, 2016. In its
report, Accura identified, amongst other things, evidence of water infiltration in
the basement, and that the cost to remediate same would be $9000. Plaintiff's
closing attorney, Ali D. Jaloudi, Esq., provided Accura's report to counsel for
the sellers, Mark R. DiMaria, Esq. In a July 8, 2016 letter, Jaloudi pointed out
ten issues of concern to plaintiff. Number eight read: "Regarding any and all
leaks in [the] basement, laundry area, and attic - - buyers are seeking a credit
1 The Lee and Foerster defendants were dismissed from the case prior to trial. A-2181-17T4 2 based on a contractor estimate for a cost of repair . . . ." Negotiations ensued,
and plaintiff2 agreed to a global $6500 reduction in the purchase price that
encompassed the entire punch list set forth in her attorney's letter. During trial,
plaintiff confirmed this fact.
Nonetheless, in July 2017, plaintiff filed this complaint seeking damages
for breach of contract. At trial, in response to a question by the judge, plaintiff
testified that: "the findings regarding the basement and laundry locations are
inadequate and result in breach of the pre-inspection agreement. I also believe
that the findings misrepresented the condition of the premises and fall below the
home inspection industry standard." Plaintiff failed to produce an expert witness
to opine as to any deviation from accepted home inspection industry standards
as it pertained to Accura, or any competent evidence as to liability or damages.
The judge appropriately denied her application to move a so-called "report" from
"Mid-Atlantic"3 into evidence because it constituted inadmissible hearsay, was
not authenticated, and was never produced in discovery.
2 At trial, plaintiff testified that her husband, who is not a party to this action, also agreed to the $6500 settlement figure during a telephone conference call with Mr. Lee. 3 The documents submitted in plaintiff's appendix refer to an agreement provided by Mid-Atlantic Waterproofing of NJ, Inc. It is a contract to perform certain work at plaintiff's home. A-2181-17T4 3 At the close of plaintiff's case, counsel for Accura moved for an
involuntary dismissal pursuant to Rule 4:37-2(b) which provides:
(b) At Trial—Generally. After having completed the presentation of the evidence on all matters other than the matter of damages (if that is an issue), the plaintiff shall so announce to the court, and thereupon the defendant, without waiving the right to offer evidence in the event the motion is not granted, may move for a dismissal of the action or of any claim on the ground that upon the facts and upon the law the plaintiff has shown no right to relief. Whether the action is tried with or without a jury, such motion shall be denied if the evidence, together with the legitimate inferences therefrom, could sustain a judgment in plaintiff's favor.
In reviewing a motion for involuntary dismissal pursuant to Rule 4:37-
2(b), our task is to determine whether the evidence, along with its legitimate
inferences, could have sustained a judgment in favor of the party opposing the
motion. Dolson v. Anastasia, 55 N.J. 2, 5 (1969); Pressler & Verniero, Current
N.J. Court Rules, cmt. 2.1 on R. 4:37-2(b) (2019). Neither the trial judge nor
this court, as a reviewing court, are "concerned with the weight, worth, nature
or extent of evidence, but must accept as true all [of] the evidence supporting
the party opposing the motion, and accord him [or her] the benefit of all
favorable inferences. Then, if reasonable minds could differ, the motion must
be denied." Polyard v. Terry, 160 N.J. Super. 497, 505-06 (App. Div. 1978)
(citing Dolson, 55 N.J. at 5). "A motion for involuntary dismissal only should
A-2181-17T4 4 be granted where no rational [factfinder] could conclude that the plaintiff
marshaled sufficient evidence to satisfy each prima facie element of a cause of
action." Godfrey v. Princeton Theological Seminary, 196 N.J. 178, 197 (2008).
In Dolson, our Supreme Court held that under this rule, the court's role "is
quite a mechanical one." Dolson, 55 N.J. at 5. Judge Gardner found that,
"plaintiff has the burden of proof here to show more likely than not [,] [b]ut part
of that burden also includes establishing what the home inspection history
standard is." Giving plaintiff the benefit of all reasonable inferences following
presentation of her case, the judge further held that with regard to the standard
attributable to a home inspector, "[i]t has to be established by an expert." We
agree.
II.
On appeal, plaintiff presents the following arguments for our
consideration:
THE TRIAL COURT DISMISSED THE COMPLAINT BECAUSE AN EXPERT WITNESS WAS NOT PRESENT TO TESTIFY ON DECEMBER 12, 2017.
PLAINTIFF IS APPEALING BECAUSE NEW EVIDENCE WHICH HAD NOT BEEN AVAILABLE ON OR BEFORE 12/12/2017 HAS BEEN MADE AVAILABLE NOW. TWO EXPERT WITNESSES ARE AVAILABLE TO TESTIFY AS TO THE BASEMENT'S PRE-EXISTING CONDITION.
A-2181-17T4 5 The two expert witnesses plaintiff seeks to produce post-trial are Michael
Eagleson, a "senior" inspector, and Omar Elsherif, a professional engineer. She
argues that these individuals can opine that there was a "breach of the standard"
by Accura.
Specifically, plaintiff proposes that Eagleson and Elsherif would testify
about the home having a pre-existing condition of "capillarity, efflorescence,
cove leaks, vertical cracks, [] seepage damage to several walls in the basement,
hydrostatic pressure of the basement floor, and improper waterproofing of the
basement's exterior walls." Plaintiff asserts that this "new evidence" was not
available prior to or at the time of trial.
In addressing expert testimony, Rule 702 provides: "If scientific,
technical, or other specialized knowledge will assist the trier of fact to
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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-2181-17T4
MARWA AYAD,
Plaintiff-Appellant,
v.
ACCURA HOME INSPECTION,
Defendant-Respondent,
and
BILL FOERSTER, HOA LEE, and SHERRYL LEE,
Defendants. ____________________________
Argued December 11, 2018 – Decided December 24, 2018
Before Judges Hoffman and Firko
On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. DC-016941-17.
Marwa Ayad, appellant, argued the cause pro se. Joseph W. Denneler argued the cause for respondent (Salmon, Ricchezza, Singer & Turchi, LLP, attorneys; Joseph W. Denneler on the brief).
PER CURIAM
Plaintiff, Marwa Ayad, a self-represented litigant, appeals from an order
entered by the trial court during a bench trial on December 12, 2017, which
granted defendant Accura Home Inspection's motion to dismiss pursuant to Rule
4:37-2(b). We affirm substantially for the reasons expressed by Judge Robert
H. Gardner in his well-reasoned oral opinion. These are the salient facts.
I.
This case involves the purchase of a residence by plaintiff from
defendants, Hoa Lee and Sherryl Lee. 1 Plaintiff retained Accura to perform a
home inspection prior to the closing that took place on June 29, 2016. In its
report, Accura identified, amongst other things, evidence of water infiltration in
the basement, and that the cost to remediate same would be $9000. Plaintiff's
closing attorney, Ali D. Jaloudi, Esq., provided Accura's report to counsel for
the sellers, Mark R. DiMaria, Esq. In a July 8, 2016 letter, Jaloudi pointed out
ten issues of concern to plaintiff. Number eight read: "Regarding any and all
leaks in [the] basement, laundry area, and attic - - buyers are seeking a credit
1 The Lee and Foerster defendants were dismissed from the case prior to trial. A-2181-17T4 2 based on a contractor estimate for a cost of repair . . . ." Negotiations ensued,
and plaintiff2 agreed to a global $6500 reduction in the purchase price that
encompassed the entire punch list set forth in her attorney's letter. During trial,
plaintiff confirmed this fact.
Nonetheless, in July 2017, plaintiff filed this complaint seeking damages
for breach of contract. At trial, in response to a question by the judge, plaintiff
testified that: "the findings regarding the basement and laundry locations are
inadequate and result in breach of the pre-inspection agreement. I also believe
that the findings misrepresented the condition of the premises and fall below the
home inspection industry standard." Plaintiff failed to produce an expert witness
to opine as to any deviation from accepted home inspection industry standards
as it pertained to Accura, or any competent evidence as to liability or damages.
The judge appropriately denied her application to move a so-called "report" from
"Mid-Atlantic"3 into evidence because it constituted inadmissible hearsay, was
not authenticated, and was never produced in discovery.
2 At trial, plaintiff testified that her husband, who is not a party to this action, also agreed to the $6500 settlement figure during a telephone conference call with Mr. Lee. 3 The documents submitted in plaintiff's appendix refer to an agreement provided by Mid-Atlantic Waterproofing of NJ, Inc. It is a contract to perform certain work at plaintiff's home. A-2181-17T4 3 At the close of plaintiff's case, counsel for Accura moved for an
involuntary dismissal pursuant to Rule 4:37-2(b) which provides:
(b) At Trial—Generally. After having completed the presentation of the evidence on all matters other than the matter of damages (if that is an issue), the plaintiff shall so announce to the court, and thereupon the defendant, without waiving the right to offer evidence in the event the motion is not granted, may move for a dismissal of the action or of any claim on the ground that upon the facts and upon the law the plaintiff has shown no right to relief. Whether the action is tried with or without a jury, such motion shall be denied if the evidence, together with the legitimate inferences therefrom, could sustain a judgment in plaintiff's favor.
In reviewing a motion for involuntary dismissal pursuant to Rule 4:37-
2(b), our task is to determine whether the evidence, along with its legitimate
inferences, could have sustained a judgment in favor of the party opposing the
motion. Dolson v. Anastasia, 55 N.J. 2, 5 (1969); Pressler & Verniero, Current
N.J. Court Rules, cmt. 2.1 on R. 4:37-2(b) (2019). Neither the trial judge nor
this court, as a reviewing court, are "concerned with the weight, worth, nature
or extent of evidence, but must accept as true all [of] the evidence supporting
the party opposing the motion, and accord him [or her] the benefit of all
favorable inferences. Then, if reasonable minds could differ, the motion must
be denied." Polyard v. Terry, 160 N.J. Super. 497, 505-06 (App. Div. 1978)
(citing Dolson, 55 N.J. at 5). "A motion for involuntary dismissal only should
A-2181-17T4 4 be granted where no rational [factfinder] could conclude that the plaintiff
marshaled sufficient evidence to satisfy each prima facie element of a cause of
action." Godfrey v. Princeton Theological Seminary, 196 N.J. 178, 197 (2008).
In Dolson, our Supreme Court held that under this rule, the court's role "is
quite a mechanical one." Dolson, 55 N.J. at 5. Judge Gardner found that,
"plaintiff has the burden of proof here to show more likely than not [,] [b]ut part
of that burden also includes establishing what the home inspection history
standard is." Giving plaintiff the benefit of all reasonable inferences following
presentation of her case, the judge further held that with regard to the standard
attributable to a home inspector, "[i]t has to be established by an expert." We
agree.
II.
On appeal, plaintiff presents the following arguments for our
consideration:
THE TRIAL COURT DISMISSED THE COMPLAINT BECAUSE AN EXPERT WITNESS WAS NOT PRESENT TO TESTIFY ON DECEMBER 12, 2017.
PLAINTIFF IS APPEALING BECAUSE NEW EVIDENCE WHICH HAD NOT BEEN AVAILABLE ON OR BEFORE 12/12/2017 HAS BEEN MADE AVAILABLE NOW. TWO EXPERT WITNESSES ARE AVAILABLE TO TESTIFY AS TO THE BASEMENT'S PRE-EXISTING CONDITION.
A-2181-17T4 5 The two expert witnesses plaintiff seeks to produce post-trial are Michael
Eagleson, a "senior" inspector, and Omar Elsherif, a professional engineer. She
argues that these individuals can opine that there was a "breach of the standard"
by Accura.
Specifically, plaintiff proposes that Eagleson and Elsherif would testify
about the home having a pre-existing condition of "capillarity, efflorescence,
cove leaks, vertical cracks, [] seepage damage to several walls in the basement,
hydrostatic pressure of the basement floor, and improper waterproofing of the
basement's exterior walls." Plaintiff asserts that this "new evidence" was not
available prior to or at the time of trial.
In addressing expert testimony, Rule 702 provides: "If scientific,
technical, or other specialized knowledge will assist the trier of fact to
understand the evidence or to determine a fact in issue, a witness qualified as an
expert by knowledge, skill, experience, training, or education may testify thereto
in the form of an opinion or otherwise." N.J.R.E. 702.
We are satisfied that expert testimony on these issues was required. A
factfinder "should not be allowed to speculate without the aid of expert
testimony in any area where lay persons could not be expected to have sufficient
knowledge or experience." Biunno, Weissbard & Zegas, Current N.J. Rules of
A-2181-17T4 6 Evidence, cmt. 1 on N.J.R.E. 702 (2018). Simply stated, "expert testimony is
required when the subject matter is so esoteric that jurors [or factfinders] of
common judgment and experience cannot form a valid judgment." Ibid. Rule
703 requires that an expert's opinion be based upon "facts or data . . . perceived
by or made known to the expert at or before the hearing." Creanga v. Jardal,
185 N.J. 345, 360 (2005) (emphasis added) (quoting N.J.R.E. 703).
To establish a cause of action in negligence, a plaintiff must prove: "(1)
a duty of care owed by defendant to plaintiff; (2) a breach of that duty by
defendant; and (3) and injury to plaintiff proximately caused by defendant's
breach." Endre v. Arnold, 300 N.J. Super. 136, 142 (App. Div. 1997).
Generally, negligence is not presumed, and the burden of proving negligence
rests on the plaintiff. Rocco v. N.J. Transit Rail Operations, Inc., 330 N.J. Super.
320, 338 (App. Div. 2000). Accordingly, plaintiff was required to prove that
Accura failed to perform the home inspection in accordance with the standard
of care required of home inspectors.
Plaintiff was also required to provide expert opinion prior to trial as to
whether Accura was obligated to perform a more thorough inspection of the
basement walls and floor, laundry area, improper waterproofing, cracks, and any
other items she felt were at issue. She failed to provide this guidance. The only
A-2181-17T4 7 document plaintiff attempted to move into evidence was an "agreement" from
Mid-Atlantic, that is actually a contract outlining proposed work to be performed
for "lower wall service," "sub-floor pressure relief system," installation of a
"heavy duty submersible pump system," and drywall work. This is not an expert
report. Moreover, the photographs offered by plaintiff standing alone were
insufficient. "There still has to be some testimony in fact that [the conditions]
pre-existed and for what period of time due to what was found with regard to
those particular issues, none of which has been testified to here," as aptly noted
by the judge. This does not satisfy Rule 702, and we agree with the trial judge
that plaintiff offered no evidence that Accura failed to perform its inspection in
accordance with home inspection standards.
Plaintiff was obligated to produce factual and expert information timely
during the discovery process and ultimately at trial. She is not held to a less
stringent standard because she is self-represented, and she must adhere to the
court rules. Rubin v. Rubin, 188 N.J. Super. 155, 159 (App. Div. 1982). Here,
plaintiff proffered nothing other than her own bald assertions about Accura's
alleged deficient performance. She was given the opportunity to fully develop
her theories of liability and damages both during discovery and at trial. The
judge made his decision on a proper record, and adjudicated the case on its
A-2181-17T4 8 merits. R. 4:37-2(d). Res judicata prevents parties from re-litigating in a new
proceeding any "claims or issues that have already been adjudicated."
Velasquez v. Franz, 123 N.J. 498, 505 (1991). The doctrine applies here.
We are also not persuaded that plaintiff has demonstrated newly
discovered evidence. In Accura's inspection report, highlighted in red ink, these
defects were noted:
Heating – "The circulating pump seal is leaking and needs to be repaired."
Laundry – "The space above and below the tub (photos 2067 and 2068)
show signs of past water leakage which might have come from the foundation
wall."
Having possessed this report since July 2016, plaintiff failed to show
anything newly discovered since the trial, or that with the exercise of due
diligence, could not have been discoverable prior to trial. See DEG, LLC v.
Township of Fairfield, 198 N.J. 242, 264 (2009). "[N]ewly discovered evidence
must be material, must have been discovered since the former trial, must not
have been discoverable in the exercise of due diligence, and must be such as
would probably alter the judgment." Aiello v. Myzie, 88 N.J. Super. 187, 196
(App. Div. 1965); see also R. 4:50-1. There is no justification in this matter to
afford plaintiff "another bite at the apple."
A-2181-17T4 9 Our disposition of the appeal makes it unnecessary to consider other
arguments plaintiff has raised. We have determined that they have insufficient
merit to warrant any additional discussion. R. 2:11-3(e)(1)(E).
Affirmed.
A-2181-17T4 10