Skip to main content



Nuremberg v. Dave Johnstone Construction

A-4594-04T3 (N.J. Super App. Div. 2006) (Unpublished)

CONTRACTORS; DEFECTS—A court does not have to qualify the owner of a contracting firm as the contractor’s expert witness at trial.

A homeowner hired a construction company to build a walkway and patio. The construction company completed the job, but the cement began to deteriorate shortly thereafter. The construction company did not respond to the homeowner’s requests to return and repair the damage. The homeowner then hired another company to remove the cement and rebuild the patio and walkway. The homeowner sued to recover the costs paid to the second construction company. At trial, the homeowner offered photographs of the deteriorating cement into evidence. After the homeowner presented its case, the construction company moved for dismissal because the homeowner did not present expert testimony in support of her claim that the construction company used inferior materials. In denying the motion, the lower court pointed out that the photographs clearly showed the deterioration, making the testimony of an expert as to the inferiority of the materials unnecessary. The lower court further denied permission to the construction company’s owner to testify as an expert, although he was allowed to testify in defense of the construction company. The owner then testified that he instructed the homeowner not to use rock salt and despite these warnings he testified that he had seen a container of rock salt near the patio. Based on the evidence presented, the lower court found the homeowner to be a more credible witness. Therefore, the lower court concluded that the deterioration of the cement was not caused by use of rock salt. Finding that the homeowner satisfied her burden of proof, the lower court awarded the homeowner damages representing the fair value of the work needed for the repairs.

The construction company moved for reconsideration. In denying the motion, the lower court stated that the initial judgment was based on the homeowner’s credibility, the extent of deterioration as shown in the photographs, and the fact that some of the deteriorated cement was in a position where rock salt would not have been applied.

The construction company appealed, claiming the lower court abused its discretion in refusing to allow its owner to testify as an expert; that the judgment for the homeowner was arbitrary, capricious, and against the weight of credible evidence; and the denial of the reconsideration motion was in error. The Appellate Division held that trial courts generally have the discretion to qualify a witness as an expert, and absent a clear abuse of that discretion an appellate court will not interfere. Finding that the trier of fact was capable of comprehending the nature of the dispute, that the construction company’s owner did testify about the quality of the job or give his opinion as to the cause of the deterioration, and that the lower court concluded that the witness testified falsely, the Court held that the lower court did not abuse its discretion in refusing to qualify the construction company’s owner as an expert.

The Court also deferred to the lower court’s findings of credibility. Finding the credibility determinations to be supported by substantial credible evidence in the record, it found no basis on which to support the construction company’s claims that the lower court failed to appreciate the evidence or that it had improperly relieved the homeowner of her burden of proof.

Failing to find anything in the record capable of supporting the construction company’s contention that the lower court abused its discretion by denying the motion for reconsideration, the Appellate Division rejected that argument.


MEISLIK & MEISLIK
66 Park Street • Montclair, New Jersey 07042
tel: 973-783-3000 • fax: 973-744-5757 • info@meislik.com