Correa v. Maggiore

• Citation: 196 N.J.Super. 273,482 A.2d 192
• Parties: Marcela CORREA, Plaintiff-Respondent, v. Carmelo MAGGIORE and Catherine Maggiore, his wife, Defendants-Appellants.
• Decision Date: 04 October 1984
• Court: New Jersey Superior Court – Appellate Division

Page 273

196 N.J.Super. 273

482 A.2d 192

Marcela CORREA, Plaintiff-Respondent, v. Carmelo MAGGIORE and Catherine Maggiore, his wife,

Defendants-Appellants.

Superior Court of New Jersey,

Appellate Division.

Argued Sept. 18, 1984.

Decided Oct. 4, 1984.

Steven E. Pollan, Passaic, for defendants-appellants (Dominick Giordano, Passaic, attorney, of counsel; Steven E. Pollan, Passaic, on the brief).

Alan G. Tresser, Clifton, for plaintiff-respondent (Goldman, Carlet, Garrison & Bertoni, Clifton, attorneys; Alan G. Tresser, Clifton, on the brief).

Before Judges MICHELS, PETRELLA and BAIME.

PER CURIAM.

Plaintiff instituted this action to recover damages allegedly sustained by virtue of defendant's deliberate concealment of material facts pertaining to latent defects in certain residential premises. The principle thrust of plaintiff's claim was that defendant sold her a house without providing information regarding significant structural problems which substantially impaired its value. The jury awarded $33,000 in compensatory damages. Although plaintiff also sought punitive damages, none were awarded. On appeal, defendant contends that the jury's verdict was against the weight of the evidence and constitutes a gross miscarriage of justice. Defendant also argues that the quantum of damages assessed by the jury was so disproportionate to plaintiff's actual monetary loss as to shock the conscience and compel a new trial. In that vein, defendant asserts that plaintiff's expert witness was not properly qualified with respect to the question of damages and that his testimony at trial constituted a mere "net opinion."

The genesis of this appeal was a real estate transaction wherein plaintiff purchased a two-family house in the City of Passaic from defendant for $25,000. At trial, it was undisputed that the house "leaned" or "tilted" to one side by virtue of its age and because of problems pertaining to deterioration of its foundation. Also uncontroverted was the fact that defendant was fully aware of this condition. At trial, defendant candidly acknowledged receiving two notices from the municipal building department directing him to submit architectural plans to correct the "sagging" of the house. At issue, however, was whether plaintiff was apprised of this condition and, if not, whether it was readily observable in any event. Conflicting evidence was presented with respect to that point. Plaintiff testified that she viewed the house on two occasions prior to signing the contract and did not notice the "leaning" condition. Between execution of the contract and the closing, plaintiff returned to the house several times but was unable to see any problem. Plaintiff further testified that she and defendant conversed on numerous occasions prior to the closing, but that he never informed her of any problem pertaining to the house. In point of fact, defendant repeatedly emphasized that plaintiff was "getting a good buy." Although conceding that he never specifically apprised plaintiff of the notices he had received from the municipal building inspector, defendant maintained that plaintiff was well aware of the fact that the house tilted to one side. Specifically, defendant testified that he discussed the problem with plaintiff on several occasions prior to the closing and that he referred her to a contractor for an estimate. The attorney plaintiff retained for the closing testified that she specifically mentioned the fact that the house was not straight during their conversation pertaining to the purchase price. Finally, the testimony of the real estate broker who first contacted plaintiff with respect to the house substantially corroborated that of the defendant. According to his testimony he accompanied plaintiff when she initially viewed the house. The "sagging condition" was not only readily apparent, but also was specifically discussed.

At trial, plaintiff presented several witnesses in an attempt to prove damages. Suffice it to say, overwhelming evidence was presented establishing both the severity of the structural problems relating to the house and the substantial nature of the measures necessary to correct them. The testimony of a licensed architect presented by plaintiff is highly illustrative. He testified that the foundation was rapidly deteriorating, that there was substantial "water seepage" and that many of the footings were apparently destroyed. According to his testimony, it was necessary to "lift" the house by "jacking" devices in order to correct these problems. Once the house was raised, concrete footings were to be poured along several points of the side walls. Steel reinforcements and lolly columns were to be installed. Raising the house would damage the plaster requiring cosmetic work. The architect testified that there was a "strong possibility" the house would collapse unless these corrective measures were taken.

In addition, plaintiff presented the testimony of Frank and Mario Lo Gatto. Frank Lo Gatto testified that he and his father were licensed mason contractors and had been consulted with respect to the preparation of an estimate pertaining to the cost of straightening the house. Based upon the architect's plans, Mr. Lo Gatto testified that it would be necessary to "lift" the house approximately one and a half feet in order to install permanent lolly columns. According to the witness, raising the house was a costly procedure requiring 20 days work and "four or five" men to complete. He further testified with respect to the necessity of installing reinforcing beams and lolly columns and pouring concrete footings. Finally, he noted that the "stairs, planter and front entrance" would have to be rebuilt. Since the witness did not personally prepare the estimate of the costs of these procedures, he was not permitted to offer an opinion with regard to the actual dollar amounts. ¹

Plaintiff thus presented Mario Lo Gatto as an expert witness. Mr. Lo Gatto testified that he had been a mason contractor for some 25 years and was licensed by the state. Although the witness had never actually "lifted" a building, he was familiar with the general procedures involved. Mr. Lo Gatto was permitted to testify over defense counsel's strenuous objections. According to his testimony, it would cost approximately $37,000 to straighten the house. The witness acknowledged that his estimate was highly speculative because the nature of the work to be done depended upon the extent of the damage which could only by ascertained upon raising the house. Nevertheless, Mr. Lo Gatto testified that his opinion was based upon his review of the architect's plans with his son and his independent inspections of the house.

I

Defendant first contends that the trial judge erred in denying his motion for a new trial. Stripped to its essentials, defendant's argument is premised upon three related contentions. Defendant initially claims that the "sagging" of the house was readily apparent to the naked eye and, thus, did not constitute a "latent condition." He further contends that plaintiff was duty-bound to examine public records in the possession of the municipal building department which would have disclosed the condition of the house. Defendant also argues that the defective condition was not material to the transaction and cannot support a claim for damages. Finally, it is asserted that the jury's verdict was against the weight of the evidence. We have carefully reviewed the record and conclude that these arguments are wholly without merit.

The seminal New Jersey decision pertaining to nondisclosure is Weintraub v. Krobatsch, 64 N.J. 445, 317 A.2d 68 (1974). There, our Supreme Court held that deliberate concealment of a latent defective condition material to the transaction constitutes sufficient grounds to justify rescission of a contract to purchase realty. Since rendition of that opinion, this principle has been expanded to permit recovery of monetary damages and has been applied in a broad variety of circumstances. See e.g., Jewish Center of Sussex Cty. v. Whale, 86 N.J. 619, 432 A.2d 521 (1981); Carlsen v. Masters, Mates & Pilots Pension Plan, 80 N.J. 334, 403 A.2d 880 (1979); Environmental Protection Dep't. v. Ventron Corp., 182 N.J.Super. 210, 440 A.2d 455 (App.Div.1981), modified 94 N.J. 473, 468 A.2d 150 (1983); Neveroski v. Blair, 141 N.J.Super. 365, 358 A.2d 473 (App.Div.1976); Berman v. Gurwicz, 178 N.J.Super. 611, 429 A.2d 1084 (Ch.Div.1981); Tobin v. Paparone Const. Co., 137 N.J.Super. 518, 349 A.2d 574 (Law Div.1975). The rule rests upon modern concepts of justice and fair dealing which recognize that purposeful concealment can be as destructive as an affirmative false statement. To support a claim, however, the defective condition must be latent and not reasonably observable to the purchaser. Weintraub v. Krobatsch, supra 64 N.J. at 455-456, 317 A.2d 68. Further, the nondisclosure must be significant. Stated somewhat differently, "[m]inor conditions which ordinary sellers and purchasers would reasonably disregard as of little or no materiality in the transaction would clearly not call for judicial intervention." Id. at 455, 317 A.2d 68.

Our review of the record convinces us that the evidence presented was sufficient to satisfy those requisites. The jury could reasonably have found that the tilting of the house was not observable or readily apparent. Surely, plaintiff's testimony was susceptible to that construction. Although the issue was hotly contested, the jury obviously resolved questions of credibility in plaintiff's favor. The fact that examination of certain public records would have revealed the defective condition is largely inconsequential. One who engages in deliberate concealment may not urge that his victim should have been more circumspect or astute. Jewish Center of Sussex Cty. v Whale, supra, 86 N.J. at 626, n. 1, 432 A.2d 521. See also Pioneer Nat'l Title Ins. v. Lucas, 155...