Opinion
DOCKET NO. A-5115-13T3
04-27-2015
ANDREW MOSKOWITZ, Plaintiff-Respondent, v. MAIN TOWING, Defendant-Appellant.
John Appello, attorney for appellant. Respondent has not filed a brief.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Yannotti and Fasciale. On appeal from Superior Court of New Jersey, Law Division, Special Civil Part, Hudson County, Docket No. SC-0732-14. John Appello, attorney for appellant. Respondent has not filed a brief. PER CURIAM
Defendant Main Towing appeals from a judgment entered by the Law Division on May 30, 2014, awarding plaintiff Andrew Moskowitz damages of $896.66, plus court costs of $22. We affirm.
On April 21, 2014, plaintiff filed a complaint in the Small Claims Section of the Special Civil Part, alleging that on February 15, 2014, defendant had towed his car from a parking place on a street in Hoboken. He alleged that, during the towing process, the car's tailpipe had been crushed. He claimed that his left rear brake line and left rear shock absorber had been damaged as well. Plaintiff alleged that the total cost to repair the damage was $896.66.
The judge conducted a trial in the matter on May 30, 2014. Plaintiff testified that he owned a 2001 Ford Mustang, which defendant had towed on February 15, 2014, as alleged in his complaint. Plaintiff said he picked up the car the following day and "noticed there was a weird sound." He looked under the car and thought that the muffler and exhaust pipe had been knocked off.
Plaintiff called defendant to complain, and he was told to come in and fill out a written complaint. He did so on February 17, and was told it would take about a week to review "some kind of videotape or whatever." Plaintiff called a few days later and was told that they had not looked into the matter. He decided to have the car repaired. He testified that, as he was driving to get the car repaired, the "brake line went out." In addition, the mechanic told him that the shock absorber had been bent. This was all due to "the exhaust damage."
Plaintiff testified that he paid $896.66 to have the repairs completed. This included repairs to the exhaust system, the connecting pipe, muffler, tailpipe and "some work on the shocks." The bill included the parts and labor. Plaintiff presented the judge with a copy of the bill, which the judge marked as an exhibit.
Plaintiff further testified that he had parked the car on the street two weeks before it had been towed, and did not move the car thereafter. He said the car had been snowed in. He tried to shovel the car out on February 14th, but there was "just too much" snow. Plaintiff stated that the exhaust was intact the day before the car was towed.
On cross-examination, plaintiff was questioned as to when he first noticed the damage. He stated that he did not check the car before he left the lot. Plaintiff "w[as] just trying to get [his] car out of there." He noticed a problem when he got out onto the highway, which was five minutes after he left the lot. He noticed the problem with the brakes two weeks later, when he was driving to the repair shop.
The judge also questioned plaintiff. Plaintiff said he had owned the car since 2001, when he purchased it "new." He had no issues with the brakes, muffler, tailpipe or shocks before the car was towed.
Defendant's director of operations (the "DO") testified for the defense. He said plaintiff's car was one of the vehicles he had towed. He had used a flatbed truck. The DO stated that if the car had been damaged, he would have noted it. He said, "[t]he reports that we would make would just primarily be body damage, glass damage, stuff that's visible." He was not aware of any police reports indicating that the vehicle had been damaged before he towed it.
The DO further testified that he was not present when the car was released, but said that, to the best of his knowledge, there was no indication it had been damaged. He opined that the damage to the brake line and the shock absorber that plaintiff complained of could have been caused by hitting a pot hole. He also said the damage to the tailpipe could have been caused by a snow plow or by backing into a snow bank.
The judge then placed his decision on the record. The judge noted that plaintiff had testified that he last saw the car the day before it was towed. Plaintiff had noticed that the tailpipe was in its "proper position." The judge said that plaintiff had noticed the damage after he reclaimed the car and drove it a short distance.
The judge found that plaintiff's testimony was credible. He pointed out that defendant's DO had testified that he towed the vehicle but could only speculate on how the damage occurred. Based on plaintiff's testimony, the judge concluded that plaintiff had carried his burden and established by a preponderance of the evidence that defendant had damaged his car. The judge awarded plaintiff $896.66, plus court costs of $22. On May 30, 2014, the judge entered judgment for plaintiff in the amount of $918.66. This appeal followed.
Defendant first argues that the trial judge erred by relying upon plaintiff's repair bill to establish liability and damages. Defendant says that plaintiff did not authenticate the bill, and did not connect the services listed on the bill to the alleged damages to the car. Defendant says the repair bill was hearsay, and the judge erred by failing to admit the bill into evidence.
We note initially that the scope of our review of findings made by a trial court in a non-jury case is limited. We will not set aside the court's findings of fact "'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[.]'" Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974) (quoting Fagliarone v. Twp. of N. Bergen, 78 N.J. Super. 154, 155 (App. Div.), certif. denied, 40 N.J. 221 (1963)). Our deference to the trial court's factual findings "is especially appropriate 'when the evidence is largely testimonial and involves questions of credibility.'" Cesare v. Cesare, 154 N.J. 394, 412 (1998) (quoting In re Return of Weapons to J.W.D., 149 N.J. 108, 117 (1997)).
Here, there is sufficient evidence in the record to support the judge's finding that plaintiff's car was damaged when defendant towed it. As stated previously, plaintiff testified that, before the car was towed, the car was not damaged. However, plaintiff noticed a problem with the car within minutes after he reclaimed the vehicle and drove it from the lot. Plaintiff then observed damage to the muffler and exhaust pipe. Later, when plaintiff was driving the car to the repair shop, he noticed that the brakes on the car were not functioning properly. The judge found plaintiff's testimony was credible, and based on that testimony, reasonably concluded plaintiff's car was damaged while in defendant's possession.
We reject defendant's contention that the judge failed to sufficiently explain the basis for his credibility finding. In this regard, we note that a trial court "has a better perspective than a reviewing court in evaluating the veracity of witnesses" because the trial court "'hears the case, sees and observes the witnesses[.]'" Pascale v. Pascale, 113 N.J. 20, 33 (1988) (quoting Gallo v. Gallo, 66 N.J. Super. 1, 5 (App. Div. 1961)).
In his decision, the judge noted that plaintiff had described the condition of the car before and after it was towed. The judge also noted that defendant's DO had denied the car was damaged when towed, but only offered speculation as to the cause of the damage. We are convinced that the judge provided a sufficient explanation for finding that plaintiff was more credible than defendant's witness.
We also reject defendant's contention that the judge improperly relied upon the repair bill that plaintiff presented. Defendant says the repair bill was not properly authenticated. However, "[t]he requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter is what its proponent claims." N.J.R.E. 901. Plaintiff's testimony established that the bill was, in fact, what he claimed it to be: specifically, a bill for the repairs that he paid.
Defendant argues that the bill should not have been considered because it was not entered into evidence. We disagree. The bill was marked as evidence, and although the judge did not formally admit the document into evidence, defendant was well aware the bill had been offered as evidence and would be considered as such. The judge's failure to admit the bill into evidence was not an error clearly capable of producing an unjust result. R. 2:10-2.
Defendant further argues that it was improper for the judge to rely upon the bill as a basis for the award of damages. Again, we disagree. The rules of evidence may be relaxed in matters tried in the Small Claims Section of the Special Civil Part so that the court may admit "relevant and trustworthy evidence in the interest of justice[.]" N.J.R.E. 101(a)(2)(A); see also Triffin v. Quality Urban Hous. Partners, 352 N.J. Super. 538, 543 (App. Div. 2002) (noting the rules of evidence may be relaxed in small claims matters).
The judge's consideration of the repair bill as proof of the damages sustained by plaintiff was reasonable. Cf. Penbara v. Straczynski, 347 N.J. Super. 155, 162-63 (App. Div. 2002) (holding that the trial judge in a small claims matter should have considered landlord's proffer of receipts indicating purchase price and cost of cleaning carpet allegedly damaged by tenant and determined if the evidence was probative and trustworthy). Plaintiff's repair bill was relevant, and the judge concluded that plaintiff had testified credibly as to the amount he paid to have the car repaired.
Defendant also argues that the judge erred by allowing plaintiff to "change" his cause of action during trial. Defendant says that, in his complaint, plaintiff asserted a cause of action for personal injury or property damage, other than motor vehicle damage. According to plaintiff, the trial court "seemingly re-designated and rewrote" the complaint at trial to allow plaintiff to assert a claim for vehicle damage.
This contention is without sufficient merit to warrant extended comment. R. 2:11-3(e)(1)(E). We merely note that, in the attachment to the complaint, plaintiff explained that his claim was for damage to his car. Moreover, at trial, defendant never alleged that the complaint failed to provide notice of the claim being asserted. Defendant was well aware that plaintiff was seeking compensation for the damage allegedly sustained while the vehicle was in defendant's possession.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION