Opinion
DOCKET NO. A-1363-14T4
08-30-2016
MALANGA'S AUTOMOTIVE, INC., A New Jersey Corporation, Plaintiff-Appellant, v. TIMOTHY W. WAGNER, WAGNER AIRCRAFT MAINTENANCE & SERVICES LLC, GREENWOOD LAKE AIRPORT MANAGEMENT, LLC, Defendants, and VATCHE AGHJAYAN and AIR VATCHE, INC., Defendants-Respondents, and VATCHE ADHJAYAN and AIR VATCHE INC., Third-Party Plaintiffs, v. RICHARD MALANGA and CAMP AUTO & TRUCK PARTS, Third-Party Defendants.
Harvey M. Fruchter argued the cause for appellant (Fruchter, Weiss & Associates, attorneys; Mr. Fruchter, of counsel and on the briefs). Donna J. Dorgan argued the cause for respondents.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Messano and Simonelli. On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-6746-13. Harvey M. Fruchter argued the cause for appellant (Fruchter, Weiss & Associates, attorneys; Mr. Fruchter, of counsel and on the briefs). Donna J. Dorgan argued the cause for respondents. PER CURIAM
Plaintiff Malanga's Automotive, Inc., appeals from that part of the September 11, 2014 Law Division judgment, which denied its application for attorney's fees, costs and interest pursuant to the offer of judgment rule (OJR), Rule 4:58-2(a). Plaintiff also appeals from the October 28, 2014 order, which reduced the amount of the judgment, vacated the judgment as to defendant Vatche Aghjayan (Aghjayan), and entered judgment against defendant Air Vatche, Inc. (AVI). For the following reasons, we affirm.
We shall sometimes refer to Aghjayan and AVI collectively as defendants.
We derive the following facts from the evidence adduced at the bench trial. AVI was the owner of a 1989 fighter jet. On July 9, 2011, Aghjayan was piloting the aircraft when he overshot the runway at Greenwood Lake Airport in West Milford while attempting to land, crashed through a fence, and came to rest upside down at the bottom of a ravine approximately eighty feet from the runway level. Aghjayan, an experienced pilot with many flying hours, had landed the aircraft at the airport on approximately twenty-one prior occasions without incident. He was injured as a result of the crash and transported to the hospital. The airport was temporarily closed as a result of the crash.
Defendants Timothy W. Wagner (Wagner), Wagner Aircraft Maintenance & Services LLC (WAMS) and Greenwood Lake Airport Management, LLC (GLA) managed the airport. In order to reopen the airport, Wagner contacted plaintiff, a towing and recovery company, to recover the aircraft. Because plaintiff lacked the proper equipment, it retained Camp Auto & Truck Parts (Camp) to provide the necessary equipment and assist in the recovery.
We shall sometimes refer to Wagner and WAMS collectively as Wagner.
Plaintiff recovered the aircraft and placed it on a taxi lane. The Federal Aviation Administration (FAA) and National Transportation Safety Board (NTSB) responded to the scene and investigated the incident. Neither entity took any action against Aghjayan. During the investigation, the FAA retrieved the aircraft's maintenance logbooks and delivered them to Wagner approximately one week later. Aghjayan later removed the aircraft from the airport.
In its appendix, plaintiff included reports from the FAA and NTSB and deposition transcripts that were never presented to the trial judge. We will not consider these documents. See N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 278 (2007).
Wagner sent defendants an invoice for $4,634.14 for its services in connection with the incident, such as storage, clean-up costs, and assistance with recovery. Wagner refused to return the maintenance logbooks to defendants unless his invoice was paid. At the time of the trial, Wagner had not returned the logbooks.
Camp sent plaintiff an invoice for $6550 for the rental of the equipment used in the recovery and the cost of a laborer. Plaintiff then sent defendants an invoice for $17,906.45 for its services, which included the $6550 plaintiff owed to Camp plus an additional $1240 that plaintiff added to Camp's charges for plaintiff's overhead. Defendants believed the charges were inflated and refused to pay, instead offering $5000 in full payment. Plaintiff also sent the invoice to Wagner, but Wagner refused to pay it.
At the time of trial, Camp's invoice remained unpaid.
Plaintiff charged defendants $4500 for the use of a recovery crane for six hours at $750 per hour, whereas Camp charged plaintiff $3750 for five hours at $750 per hour; plaintiff charged defendants $87 5 for the use of a light duty wrecker for seven hours at $12 5 per hour, whereas Camp charged plaintiff $600 for six hours at $100 per hour; and plaintiff charged defendants $665 for one laborer for seven hours at $95 per hour, whereas Camp charged plaintiff $450 for six hours at $75 per hour.
Plaintiff filed an amended complaint, asserting claims against: (1) Wagner for payment for services rendered; (2) WAMS, GLA, AVI and Aghjayan for quantum meruit damages; (3) Aghjayan for negligence; and (4) Wagner, Aghjayan and AVI for general damages. Wagner and WAMS filed a crossclaim against defendants for contribution and payment of its invoice. Defendants filed a counterclaim against plaintiff and third-party complaint against Richard Malanga (Malanga) and Camp, asserting claims for: (1) negligence in damaging salvageable parts of the aircraft during the recovery; (2) conversion of parts and items taken from the aircraft, including the maintenance logbooks; (3) replevin; (4) bailment; and (5) consumer fraud. Camp filed a counterclaim and fourth-party complaint against plaintiff for indemnification and/or contribution, and a fourth-party complaint against its insurance carrier. Camp did not file any claims against defendants.
Plaintiff subsequently filed a motion to amend the complaint to assert a spoliation claim against defendants, which the court denied in an order dated March 28, 2014. Plaintiff did not appeal from that order, and only raised the spoliation issue at trial with respect to barring defendants' expert witness from testifying about the value of the aircraft's damaged parts. The trial judge found that since defendants' counterclaim for damage to the aircraft had been resolved, there was no need for the expert's testimony. Thus, we will not address any argument raised in this appeal regarding spoliation. Alloway v. Gen. Marine Indus., L.P., 149 N.J. 620, 643 (1997).
Prior to trial, plaintiff and defendants each made an offer of judgment in the amount of $13,500 pursuant to the OJR. In addition, defendants settled their third-party claim against Camp for $10,000 for the damage Camp caused to the aircraft. Camp, in turn, assigned its claim against its insurance carrier to defendants. Defendants also settled their claims against Wagner for $1500. Thus, the only claims remaining for trial were plaintiff's and defendants' claims against each other.
Plaintiff presented the testimony of two fact witnesses, but presented no expert testimony. Aghjayan testified for defendants. The trial judge found that plaintiff was entitled to payment of its invoice and awarded $17,906.25 plus pre-judgment interest at the rate of two percent per annum in the amount of $1,074.59, for a total judgment of $18,980.84. The judge found Aghjayan individually liable pursuant to N.J.S.A. 6:2-7, which provides as follows, in pertinent part:
The owner of every aircraft which is operated over the land or waters of this State is absolutely liable for injuries to persons or property on the land or water
beneath, caused by ascent, descent, or flight of the aircraft, or the dropping or falling of any object therefrom, whether such owner was negligent or not, unless the injury is caused in whole or in part by the negligence of the person injured, or of the owner or bailee of the property injured. . . . An airman who is not the owner or lessee shall be liable only for the consequences of his own negligence.
The judge declined to award plaintiff attorney's fees and costs pursuant to the OJR, which provides as follows, in pertinent part:
Except in a matrimonial action, any party may, at any time more than 20 days before the actual trial date, serve on any adverse party, without prejudice, and file with the court, an offer to take a monetary judgment in the offeror's favor, . . . for a sum stated therein (including costs). The offer shall no be effective unless, at the time the offer is extended, the relief sought by the parties in the case is exclusively monetary in nature.The judge found that the relief sought by the parties was not exclusively monetary in nature due to defendants' claim for replevin.
[R. 4:58-1(a).]
Defendants filed a post-trial motion, arguing that it was error to impose individual liability on Aghjayan pursuant to N.J.S.A. 6:2-7 because he was not the owner of the aircraft and there was no proof he was negligent. Alternatively, defendants sought remittitur, arguing that the judgment should be reduced by the amount of their settlement with Camp. Plaintiff countered that Aghjayan actually owned the aircraft, res ipsa loquitor applied, and the judgment should not be reduced because plaintiff was still obligated to pay Camp.
The judge found he incorrectly applied N.J.S.A. 6:2-7 because AVI, not Aghjayan, actually owned the aircraft and there was no evidence that Aghjayan was negligent. Accordingly, the judge amended the judgment to impose liability solely on AVI. The judge also reduced the judgment by $7790, representing Camp's charges of $6550 and plaintiff's added overhead of $1240. The judge entered judgment against AVI in the amount of $10,116.45 plus pre-judgment interest. This appeal followed.
On appeal, plaintiff contends that the judge erred in: (1) failing to impose individual liability on Aghjayan; (2) reducing the amount of the judgment; and (3) not awarding attorney fees, costs and pre-judgment interest pursuant to the OJR. Defendants counter, in part, that the judge properly reduced the judgment because defendants settled with Camp and the entire controversy doctrine barred Camp from pursuing any claim against plaintiff.
We decline to address defendants' argument that we should affirm the remittitur because the record contains ample evidence that plaintiff inflated Camp's charges and had unclean hands. We also decline to address defendants' argument that plaintiff is not entitled to pre-judgment interest. Defendants did not file a cross-appeal and these arguments go beyond the scope of the judge's decision on the post-trial motion. See Bogey's Trucking & Paving, Inc. v. Indian Harbor Ins. Co., 395 N.J. Super. 59, 64 n.3 (App. Div. 2007). --------
Our review of a trial court's fact-finding in a non-jury case is limited. Seidman v. Clifton Sav. Bank, S.L.A., 205 N.J. 150, 169 (2011). "The general rule is that findings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence. Deference is especially appropriate when the evidence is largely testimonial and involves questions of credibility." Ibid. (quoting Cesare v. Cesare, 154 N.J. 394, 411-12 (1998)). We "should not disturb the factual findings and legal conclusions of the trial judge unless [we are] convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice." Ibid. (citation omitted). However, we owe no deference to a trial court's interpretation of the law, and review issues of law de novo. State v. Parker, 212 N.J. 269, 278 (2012). We also review mixed questions of law and fact de novo. In re Malone, 381 N.J. Super. 344, 349 (App. Div. 2005).
N.J.S.A. 6:2-7 imposes strict liability only on the owner of an aircraft. AVI, not Aghjayan, was the owner of the aircraft. Thus, AVI was absolutely liable for payment of plaintiff's invoice. See Adler's Quality Bakery, Inc. v. Gaseteria, Inc., 32 N.J. 55, 69-70, 72 (1960).
Aghjayan could only be held liable under N.J.S.A. 6:2-7 if he was negligent. To establish negligence, the plaintiff must establish: "(1) a duty of care, (2) a breach of that duty, (3) proximate cause, and (4) actual damages." Polzo v. Cty. of Essex, 196 N.J. 569, 584 (2008) (alterations omitted) (quoting Weinberg v. Dinger, 106 N.J. 469, 484 (1987)). The plaintiff bears the burden of proving these elements "by some competent proof[.]" Davis v. Brickman Landscaping, Ltd., 219 N.J. 395, 406 (2014).
In some cases, the factfinder "is not competent to supply the standard by which to measure the defendant's conduct." Sanzari v. Rosenfeld, 34 N.J. 128, 134-35 (1961). In those instances, the plaintiff must "establish the requisite standard of care and [the defendant's] deviation from that standard" by "present[ing] reliable expert testimony on the subject." Giantonnio v. Taccard, 291 N.J. Super. 31, 42 (1996). Our Supreme Court has explained that, when deciding whether expert testimony is necessary, a court properly considers "whether the matter to be dealt with is so esoteric that [factfinders] of common judgment and experience cannot form a valid judgment as to whether the conduct of the [defendant] was reasonable." Butler v. Acme Mkts., Inc., 89 N.J. 270, 283 (1982). In such cases, the factfinder "would have to speculate without the aid of expert testimony." Torres v. Schripps, Inc., 342 N.J. Super. 419, 430 (App. Div. 2001).
"When applicable, the doctrine of res ipsa loquitor enables the plaintiff to make out a prima facie case." Jerista v. Murray, 185 N.J. 175, 191 (2005). Res ipsa loquitur permits an inference of negligence, establishing, in turn, a prima facie case of negligence. Mayer v. Once Upon A Rose, Inc., 429 N.J. Super. 365, 373 (App. Div. 2013). In order to invoke the doctrine, a plaintiff must establish that "(a) the occurrence itself ordinarily bespeaks negligence; (b) the instrumentality [causing the injury] was within the defendant's exclusive control; and (c) there is no indication in the circumstances that the injury was the result of the plaintiff's own voluntary act or neglect." Ibid. (quoting Szalontai v. Yazbo's Sports Cafe, 183 N.J. 386, 398 (2005)). The Court has stated that
[the mere] existence of a possibility of a defendant's responsibility for a plaintiff's injuries is insufficient to impose liability. In the absence of direct evidence, it is incumbent on the plaintiff to prove not only the existence of such possible responsibility, but the existence of such circumstances as would justify the inference . . . and would exclude the idea that it was due to a cause with which the defendant was unconnected.
[Szalontai, supra, 183 N.J. at 399 (citation omitted).]The doctrine is inapplicable if it is equally likely that the negligence causing the injury "was that of someone other than the defendant[.]" Bornstein v. Metro. Bottling Co., 26 N.J. 263, 273 (1958).
"Res ipsa loquitur is not a panacea for the less-than-diligent plaintiff or the doomed negligence cause of action." Szalontai, supra, 183 N.J. at 400. Instead, res ipsa loquitur "is a rule of law that has its origin in negligence and governs the availability and adequacy of evidence of negligence in special circumstances. Res ipsa loquitur is not a theory of liability; rather it is an evidentiary rule that governs the adequacy of evidence in some negligence cases." Ibid. (quoting Myrlak v. Port. Auth. of N.Y & N.J., 157 N.J. 84, 95 (1999)).
Regardless of the doctrine's application, "a plaintiff nonetheless must satisfy its burden to proffer competent evidence that 'reduces the likelihood of other causes so that the greater probability of fault lies at defendant's door.'" Ibid. (quoting Jimenez v. GNOC Corp., 286 N.J. Super. 533, 545 (App. Div.), certif. denied, 145 N.J. 374 (1996)). Without producing evidence that reduces the likelihood of other causes of the incident, and establishes that the greater probability of fault lies with either defendant, the plaintiff may not rely upon the doctrine of res ipsa loquitur. Ibid.
The mechanics of an aircraft and the piloting thereof are not matters within one's common knowledge and experience; they are matters that clearly require the testimony of an expert, which was lacking here. Without expert testimony, plaintiff's claim that Aghjayan was negligent fails.
In addition, plaintiff produced no evidence that reduced the likelihood of other causes of the incident and established that the greater probability of fault lay with Aghjayan. Thus, plaintiff may not rely on the doctrine of res ipsa loquitur. There is nothing in this record to establish that the incident was Aghjayan's fault other than the occurrence of the incident itself. For all of these reasons, we are satisfied that the judge correctly amended the judgment to impose liability only on AVI.
We are also satisfied that the judgment was properly reduced, but for other reasons. Aquilio v. Cont'l Ins. Co. of N.J., 310 N.J. Super. 558, 561 (App. Div. 1998). The settlement between defendants and Camp related solely to defendants' claim that Camp damaged the aircraft. The settlement had nothing to do with Camp's invoice for services. Thus, the judge incorrectly reduced the judgment based on the settlement.
However, Camp filed a pleading in this case, but asserted no claim against any party for payment of its invoice. Accordingly, any claim Camp had for payment, either asserted directly or subsumed within plaintiff's claim, is barred by the entire controversy doctrine. DiTrolio v. Antiles, 142 N.J. 253, 267-68 (1995). Because Camp has no legal claim for payment, plaintiff is not legally obligated to pay Camp and, in fact, never paid Camp. Thus, plaintiff would be unjustly enriched if it retained that part its invoice dedicated to Camp's services plus plaintiff's overhead on Camp's charges. See VRG Corp. v. GKN Realty Corp., 135 N.J. 539, 554 (1994) (stating that "[t]o establish unjust enrichment, a plaintiff must show both that defendant received a benefit and that retention of that benefit without payment would be unjust[]").
Lastly, the judge properly declined to award plaintiff attorney's fees, costs and pre-judgment interest pursuant to the OJR. If both monetary and non-monetary damages are sought by the parties, "a valid offer cannot be made unless and until the non-monetary claim is dismissed." Pressler & Verniero, New Jersey Court Rules, comment 2 on R. 4:58-6 (2016). At the time plaintiff made its offer of judgment, defendants had a viable non-monetary claim for replevin and conversion. Consequently, plaintiff's offer of judgment was not effective since "the relief sought by the parties in the case [was not] exclusively monetary in nature." R. 4:58-1.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION