109 A.3d 228
N.J. Super. Ct. App. Div.2015Background
- JDN Properties planned a ten-lot project on steep terrain; Randy DeLuca engaged Casey & Keller, Inc. to perform surveys, design road/infrastructure, and prepare documents for approvals.
- Lanzafama drafted a grading plan showing two Allan Block retaining walls; the plan was approved by the borough engineer in April 2005.
- Plaintiffs bought the lot and built a home, but shortly before closing learned the eastern retaining wall was longer/higher than designed; they requested some adjustments.
- The modification occurred without municipal approval or a permit; the borough engineer requested assurance the wall complied with specifications; Lanzafama wrote a confirming letter.
- Investigations after closing showed foundation cracks due to improperly compacted soil; experts criticized the wall’s long-term stability and its relation to house movement.
- A jury found no breach by Casey & Keller, Inc., and the trial court denied the motion for a new trial; appellate review upheld the decision to deny summary judgment and affirm the no-cause verdict.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether plaintiffs were entitled to summary judgment on liability | Akhtar argues defendant breached standard of care; Naughton’s opinion uncontradicted | Defendant contends credibility and factual disputes preclude summary judgment | No; credibility issues and disputed facts about standard of care prevented judgment as a matter of law |
| Whether the second judge properly reconsidered the first summary judgment order | Reconsideration was warranted to preserve the issue for appeal | Interlocutory orders are revisable; Lombardi permits reconsideration when justice demands | Yes; the second judge did not abuse discretion in reconsidering and allowing trial on liability and damages |
| Whether the trial court should have granted a directed verdict for plaintiffs | Naughton’s credibility should have yielded judgment for plaintiffs | Credibility and disputed facts remained; Naughton’s opinion not incontrovertible | No; disputes remained; trial court properly denied directed verdict |
Key Cases Cited
- Lombardi v. Masso, 207 N.J. 517 (N.J. 2011) (interlocutory orders may be revised in interests of justice; law-of-the-case considerations apply)
- Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520 (N.J. 1995) (summary judgment standard; burden of proof and credibility considerations)
- Saldana v. DiMedio, 275 N.J. Super. 488 (App. Div. 1994) (summary judgment rule; credibility and genuine issues of material fact)
- State v. Odom, 116 N.J. 65 (N.J. 1989) (expert testimony and credibility analysis for admissibility/weight)
- Suarez v. E. Int'l Coll., 428 N.J. Super. 10 (App. Div. 2012) (court must not invade jury’s factfinding role; credibility of experts)
- Cameco, Inc. v. Gedicke, 299 N.J. Super. 203 (App. Div. 1997) (credibility and weight of expert opinions; not automatically dispositive)