Opinion
DOCKET NO. A-3337-11T2
06-17-2013
STEVEN TENZER and DALE TENZER, husband and wife, Plaintiffs-Respondents, v. WAKEFERN FOOD CORPORATION Defendant-Appellant, and SUNRISE SUPERMARKETS, INC., t/a SHOP-RITE OF PARSIPPANY #355 (improperly pleaded as ShopRite of Parsippany, Inc.), Defendants/Third-Party Plaintiffs-Appellants, and GRAND ENTRANCE, a division of CONSTRUCTION SPECIALTIES, INC., Defendant/Third-Party Defendant-Respondent, and INSIDE EDGE COMMERCIAL INTERIOR SERVICES, Defendant/Third-Party Plaintiff-Respondent, and QUALITY FLOORING WORKROOM, INC., Defendant/Third-Party Plaintiff-Respondent.
Devin C. Villarosa argued the cause for appellants Wakefern Food Corporation and Sunrise Supermarkets, Inc., t/a Shop-Rite of Parsippany #355 (Gold, Albanese & Barletti, attorneys; Robert Francis Gold, of counsel; James N. Barletti, on the brief). Peter Rosen argued the cause for respondents Steven and Dale Tenzer (Rosen & Rosen, LLC, attorneys, join in the brief of appellants). Nora Coleman argued the cause for respondent Grand Entrance, a division of Construction Specialties, Inc. (Haworth Coleman & Gerstman, LLC, attorneys; Ms. Coleman, on the brief). Matthew J. Connahan argued the cause for respondent Inside Edge Commercial Interior Services (Maloof, Lebowitz, Connahan & Oleske, PA, attorneys; Mr. Connahan, on the brief). Glenn A. Montgomery argued the cause for respondent Quality Flooring Workroom, Inc. (Montgomery, Chapin & Fetten, P.C., attorneys; Mr. Montgomery, of counsel; Gary Ahladianakis, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Sabatino and Fasciale.
On appeal from the Superior Court of New Jersey, Law Division, Morris County, Docket No. L-1222-08.
Devin C. Villarosa argued the cause for appellants Wakefern Food Corporation and Sunrise Supermarkets, Inc., t/a Shop-Rite of Parsippany #355 (Gold, Albanese & Barletti, attorneys; Robert Francis Gold, of counsel; James N. Barletti, on the brief).
Peter Rosen argued the cause for respondents Steven and Dale Tenzer (Rosen & Rosen, LLC, attorneys, join in the brief of appellants).
Nora Coleman argued the cause for respondent Grand Entrance, a division of Construction Specialties, Inc. (Haworth Coleman & Gerstman, LLC, attorneys; Ms. Coleman, on the brief).
Matthew J. Connahan argued the cause for respondent Inside Edge Commercial Interior Services (Maloof, Lebowitz, Connahan & Oleske, PA, attorneys; Mr. Connahan, on the brief).
Glenn A. Montgomery argued the cause for respondent Quality Flooring Workroom, Inc. (Montgomery, Chapin & Fetten, P.C., attorneys; Mr. Montgomery, of counsel; Gary Ahladianakis, on the brief). PER CURIAM
Defendants Wakefern Food Corporation ("Wakefern") and Sunrise Supermarkets, Inc. ("Sunrise"), trading as Shop-Rite of Parsippany #355 (collectively, "ShopRite") appeal from an August 22, 2011 order barring the trial testimony of a liability expert, Elise Dann, and granting summary judgment to the other codefendants; and an October 24, 2011 order denying reconsideration. We affirm.
This matter began as a personal injury action by plaintiff Steven Tenzer, a supermarket customer. On September 17, 2006, Tenzer was injured after falling on uneven flooring within the ShopRite store in Parsippany. Plaintiff sued Wakefern, the corporate parent of the ShopRite chain; Sunrise, the owner of the ShopRite store in Parsippany; and several flooring defendants, including Grand Entrance, a division of Construction Specialties, Inc. ("Grand Entrance"); Inside Edge Commercial Interior Services ("Inside Edge"); and Quality Flooring Workroom, Inc. ("Quality Flooring").
The complaint, which was amended multiple times, was based upon allegations of negligence in the installation and maintenance of the flooring, thereby creating a dangerous condition on the premises. Various cross-claims for indemnification and contribution were pleaded by and among the named defendants, including cross-claims by ShopRite against Grand Entrance, Inside Edge, and Quality Flooring.
Factually, the record indicates that Grand Entrance manufactured a custom aluminum grid floor known as "Pedigrid," which was installed at the entrance to the ShopRite store where plaintiff fell. The Pedigrid is designed to trap debris and thereby prevent it from being tracked into the store.
Grand Entrance delivered the Pedigrid floor and support leg assembly parts to the ShopRite store. According to the allegations, Inside Edge installed the Pedigrid without using the extra support legs supplied by the manufacturer. Juan Brusco, the lead installer employed by Inside Edge, testified at his deposition that he did not read the instructions because he already knew how to install the Pedigrid. Grand Entrance evidently knew that certain parts of the flooring were not used, and issued a corresponding credit. Among other things, plaintiff contended that the installation instructions were defective because they were confusing.
Dann, an engineer retained originally as a liability expert for plaintiff, issued a series of five expert reports criticizing ShopRite and the flooring defendants in various respects. Among other things, Dann concluded that the floor had not been properly and safely secured to its base when it was installed. She also opined that ShopRite had failed to maintain the floor in a safe condition. During discovery, the parties took Dann's deposition, at which she amplified those criticisms.
After discovery was completed, Grand Entrance moved in limine to bar Dann's expert testimony as improper net opinion. The other defendants, including ShopRite, likewise asked the court to bar her expert testimony.
In an oral opinion, the motion judge concluded that Dann's opinions were inadmissible with regard to the flooring defendants, but allowed her opinions to be admissible at trial against ShopRite. The judge then granted summary judgment to the flooring defendants, leaving ShopRite the sole defendant in the case.
ShopRite moved for reconsideration, this time arguing that Dann's opinions concerning the flooring had been "buried in the morass" and that the judge should now find that those specific opinions did not violate the net opinion rule. The judge denied that application.
Following the trial court's rulings, ShopRite settled with plaintiff. A stipulation of dismissal was thereafter filed with the court.
On appeal, ShopRite continues to press for indemnity and contribution from the flooring defendants. ShopRite argues that the trial court erred in treating Dann's expert criticisms of the flooring defendants as improper net opinion, and that its cross-claims against those defendants consequently should not have been extinguished on summary judgment.
The flooring defendants argue, as a jurisdictional matter, that ShopRite's settlement with plaintiff and the filing of the stipulation of dismissal with prejudice precludes the present appeal. They further argue that ShopRite should not be allowed, in effect, to repudiate its original position respecting the inadmissibility of Dann's expert testimony. Moreover, the flooring defendants contend that the trial court correctly applied the net opinion doctrine in excluding Dann's net opinions against them, particularly because she had no personal experience in installing a Pedigrid floor.
Having considered these arguments, we dismiss the appeal for lack of jurisdiction because ShopRite did not preserve a right to appeal by reducing the trial court's ultimate disposition to a final judgment. The stipulation of dismissal that was filed in the wake of ShopRite's settlement with plaintiff is insufficient to create an appealable final judgment. See, e.g., Young v. Steinberg, 53 N.J. 252, 254 (1969) (noting that the contribution claims of a settling tortfeasor are properly preserved by "a settlement which has been elevated to the status of a judgment by formal court proceeding, and which discharges the injured party's claim against a non-settling tortfeasor"); Gangemi v. Nat'l Health Labs., Inc., 305 N.J. Super. 97, 103 (App. Div. 1997) (holding that a "simple stipulation of dismissal" does not satisfy the "judgment" requirement of the Joint Tortfeasors Contribution Act, N.J.S.A. 2A:53A-1 to -5); Polidori v. Kordys, Puzio & Di Tomasso, 217 N.J. Super. 424, 432 (App. Div. 1987) (similarly requiring the entry of a judgment).
Even if ShopRite's contribution claims had been properly preserved through the entry of a final judgment, we concur with defendants that ShopRite should not be permitted to take inconsistent positions in the litigation concerning the admissibility of Dann's expert testimony. ShopRite's motion arguments to bar Dann's testimony were not confined to her opinions about maintenance. Indeed, in an August 8, 2011 letter to the motion judge, ShopRite highlighted the fact that Dann had "admitted having no expertise or training concerning the installation or maintenance of the Pedigrid floor," (emphasis added), and thus her expert opinions should be barred. Because the motion judge adopted that position, which had been advocated both by ShopRite and the other defendants, as to Dann's opinions on installation, ShopRite is estopped from now taking a contrary position. McCurrie v. Town of Kearny, 174 N.J. 523, 533-34 (2002) (recognizing the well-established principle of judicial estoppel). The trial court's alleged error was invited, at least in part, by ShopRite's own advocacy. N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 340 (2010) (applying the invited error doctrine).
Although we need not reach the subject, for sake of completeness we note our view that Dann's expert testimony concerning the installation of the flooring should not have been barred as inadmissible net opinion. Despite the fact that Dann had not been directly familiar with Pedigrid flooring in the past and did not perform testing of the flooring involved in this case, that was not essential to enable her to offer expert testimony in this matter based upon the application of engineering principles. The record shows that Dann provided a sufficient explanation of the "whys and wherefores" of her conclusion that the flooring should have been safely anchored, and that the co-defendants' failures in that regard were contributing causal factors in plaintiff's accident. See Pomerantz Paper Corp. v. New Cmty. Corp., 207 N.J. 344, 372 (2011) (explaining the net opinion doctrine, and the requirement that an expert must explain the "why and wherefore" of her conclusions).
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION