On November 25, 2013, the Appellate Division affirmed a jury verdict in favor of a home developer. Donato v. Hovnanian Enterprises, A-4445-09T4, was a construction defect matter that was filed by the current homeowners of a home built in a K. Hovnanian subdivision. The home was originally purchased by Susan Tannehill. The Kesselhauts purchased a home in the same subdivision directly behind, and uphill from the Tannehill home. The Kesselhauts contracted with a landscaping company, Magic Gardens, for the installation of an in ground pool. Subsequently, Ms. Tannehill sold the home to John and Bernice Donato.
The Donatos retained Foresight Consulting Services to perform the pre-purchase inspection. Subsequent to their purchase of the home, the Donatos experienced two incidents of water infiltration. They then filed suit alleging a number of causes of action, including negligence, breach of implied covenant of good faith and fair dealing, breaches of implied and express warranties, intentional infliction of emotional distress, negligent infliction of emotional distress, and negligent destruction of personal property against K. Hovnanian. They also filed suit against the Kesselhauts, Foresight Consulting, and numerous other parties. The other parties either settled their claims or were stipulated out of the case prior to trial.
After a six week trial in Passaic County, the jury returned a verdict in favor of K. Hovnanian. Although they found that K. Hovnanian was negligent in the home’s construction, they did not find that the negligence was the proximate cause of the water infiltration. The Plaintiffs appealed the verdict for two reasons: (1) the trial court improperly denied their motion to file an Amended Third Party Complaint; and (2) the trial court improperly denied their motion to set aside the verdict and order a new trial.
The Appellate Division affirmed the trial court’s denial of the Plaintiffs’ Motion to file a Third Amended Complaint to add Magic Gardens as a defendant because the motion was made afer 700 days of discovery and on the eve of trial. The trial court noted that Plaintiffs were aware of the claims against Magic Gardens as early as November 2008 (the trial occurred during the early part of 2011), and they should have filed their motion earlier. Generally, a motion to amend a Complaint is governed by R. 4:9-1. Once responsive pleadings have been served, a party may only amend its Complaint with consent of the parties or by leave of the court. The decision to grant or deny the motion to amend a pleadings is left entirely to sound discretion of the trial judge. Notte v. Merchs. Mut. Ins. Co., 185 N.J. 490, 501(2006). Here, the Appellate Division found no abuse of discretion by the trial court.
Further, the Appellate Division affirmed the trial judge’s decision to deny Plaintiff’s motion to set aside the jury verdict and order a new trial after the jury appeared confused about the verdict sheet.
On the last day of deliberations, the jury indicated that they were confused by the jury verdict sheet. The trial judge read the jury verdict instructions out loud, line by line, identifying the source of the jury’s confusion. The verdict sheet was corrected and the jury returned to deliberate. Soon after, they returned with a verdict. However, the verdict sheet’s instructions were not followed. Although they found that K. Hovnanian was negligent in the construction of the home, they found that the negligence was not proximately related to the water infiltration, and yet they awarded damages to the Plaintiff.
The jury verdict sheet was then re-drafted and the instructions were corrected. The jury was then re-instructed with regard to the verdict sheet. The judge asked the jury to return to the jury room and adhere to the instructions. The jury returned a verdict, the third time, adhering to the instructions of the verdict sheet, finding that K. Hovnanian’s negligence was not the proximate cause of the Plaintiffs’ damages.
The Appellate Division noted that the jury’s confusion laid with the jury verdict instructions, not by the misapplication of legal principles charged by the court.
This matter was tried by Philip A. Garubo, Jr. and Ayesha T. Rashid who practice in the litigation department of GRSLB&G. Congratulations on another great win!!