v.

THE ORCHARDS AT HOLMDEL CONDOMINIUM ASSOCIATION, INC., WENTWORTH PROPERTY MANAGEMENT, KAREN LEWANDOSKI, JOANN CICOLELLO, ELIZABETH MORRIS, and ELEANOR MURPHY, Defendants-Respondents.

No. A-0120-09T2.

Superior Court of New Jersey, Appellate Division.

Argued June 1, 2010.

Decided October 13, 2010.

Michael Confusione argued the cause for appellant (Hegge & Confusione, LLC, attorneys; Mr. Confusione, of counsel and on the brief).

Walter F. Kawalec, III, argued the cause for respondents (Marshall, Dennehey, Warner, Coleman & Goggin, attorneys; Mr. Kawalec, of counsel and on the brief).

Before Judges R. B. Coleman and Coburn.

PER CURIAM

In this personal injury action, plaintiff Laura A. Boyan appeals from a judgment of no cause for action based on a jury verdict in favor of defendants The Orchards at Holmdel Condominium Association, Inc., Wentworth Property Management, Karen Lewandoski, Joann Cicolello, Elizabeth Morris and Eleanor Murphy¹ (collectively the Orchards). We affirm.

Plaintiff was the owner of a property on Primrose Court in the Orchards at Holmdel Condominium development. The development consists of two sections. The plaintiff lived in the second section. In 2000, the Orchards decided to replace the wooden enclosure fences in the first section with vinyl (PVC) fencing. Such fences did not exist in the second section, except on the plaintiff's property.

Upon learning that the Orchards only intended to replace the fences in the first section, plaintiff contacted Donna Barbour of Wentworth Property Management to request that her fence be replaced as well. Thereafter, Barbour spoke with Karen Lewandoski Fong, a member of the Orchards' board of directors, who at the time was unaware that any property in the second section had a fence. After further consideration of whether the fence was the Orchards' responsibility, plaintiff was informed she could come to the next meeting of the board of directors to discuss the matter. Ultimately, the Orchards determined that it would treat the fence as a common element and exercise responsibility.

At the next quarterly board meeting in December 2002, however, there were not enough board members in attendance to constitute a quorum; thus, no business could be transacted. Plaintiff was present at that meeting, having entered the meeting room carrying a glass of wine in one hand and a carafe of wine in the other. According to Fong, plaintiff appeared intoxicated. Although plaintiff was informed no decision could be made on that date due to the lack of a quorum, plaintiff acted belligerently and repeatedly asserted her demands for a new fence. At one point, plaintiff threatened "[b]y the time I'm finished with you, everyone on Primrose will have a new fence." As a result of this event, the board determined that all communications with plaintiff should be through counsel.

After considering the difference between the cost of wood ($1,680) and vinyl ($2,840), the board approved a new wooden fence for plaintiff; however, when the fencing contractor attempted to replace plaintiff's fence, plaintiff seemed annoyed or upset or agitated. Plaintiff threatened the contractor with suit if he proceeded to install the wooden fence; so, the contractor told the property manager to let him know how to proceed. In the meantime, installation was suspended.

Then, on the morning of August 8, 2003, plaintiff was planning to go on a bike ride with a colleague, Dr. Jay Kartagener. Prior to Kartagener's arrival, plaintiff walked her dog. Plaintiff stated that as the dog sniffed around her property, it became spooked and "bolted" towards the fence, and dislodged a board from the fence. Plaintiff testified she "just saw stars." She felt "just a white flash of pain," and the next thing she remembered was Kartagener standing over her, calling her name and the police were there.

Plaintiff was observed to have a "non-raised, non-tender to palpation red line, eyebrow to hairline just left of the mid forehead." In addition to this red line, plaintiff stated that, as a result of the accident, she experienced pain in her head, neck, lower back and left leg. She also suffered from vertigo. For these conditions, plaintiff received treatment which included physical therapy and a spinal epidural. Plaintiff also consulted with Dr. Michael Lospinuso, an orthopedic surgeon, who explained that plaintiff had a spinal condition called spondylolisthesis that was asymptomatic until awakened by the accident. Plaintiff alleges these conditions severely affected her ability to work and her quality of life.

On January 28, 2004, plaintiff filed a complaint against defendants in the Law Division, alleging negligence and breach of fiduciary duty. Defendants answered, denying the claims asserted. Following discovery, trial was held before Judge Waldman and a jury over the course of thirteen days in February 2009. The jury returned a verdict for the defendants, finding neither negligence nor breach of fiduciary duties. Plaintiff moved for a new trial, but the court denied that motion. This appeal ensued.

On appeal, plaintiff contends she was denied a fair trial because the jury was permitted to hear about her excessive alcohol consumption and because defense counsel suggested throughout the trial that there existed hidden proofs bearing on the veracity of plaintiff's claims and because the trial judge failed to give a sua sponte limiting instruction. We reject plaintiff's contention that these alleged errors warrant a new trial.

I.

"In reviewing a trial court's evidential ruling[s], an appellate court is limited to examining the decision for abuse of discretion." Hisenaj v. Kuehner, (2008). The decision of a trial court to admit evidence should not be overturned unless the decision amounted to a "palpable abuse of discretion." State v. Coder, 198 N.J. 451, 468 (2009) (citing Brenman v. Demello, 191 N.J. 18, 31 (2007)). In order to warrant a reversal, the court's finding must have been "so wide off the mark that a manifest denial of justice resulted." Green v. N.J. Mfrs. Ins. Co., 160 N.J. 480, 492 (1999) (quoting State v. Carter, 91 N.J. 86, 106 (1982)).

Under N.J.R.E. 403(a), "relevant evidence may be excluded if its probative value is substantially outweighed by the risk of . . . undue prejudice, confusion of issues, or misleading the jury." In this regard, "[e]vidence should be barred if its probative value `is so significantly outweighed by [its] inherently inflammatory potential as to have a probable capacity to divert the minds of the jurors from a reasonable and fair evaluation of the basic issue[s].'" Green, supra, 160 N.J. at 491 (quoting State v. Thompson, 59 N.J. 396, 421 (1971)). Also, under N.J.R.E. 404(b), "evidence of other crimes, wrongs or acts is not admissible to prove disposition of a person in order to show that such person acted in conformity therewith." However, such evidence is admissible for other purposes, "such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident when such matters are relevant to a material issue in dispute." Ibid.

Plaintiff argues she was denied a fair trial as a result of the defense portraying her as a belligerent angry drunk who appeared at the Orchards' board of directors meeting with a glass of wine and carafe. Plaintiff argues that the testimony regarding her alcohol consumption and bizarre behavior had "no legitimate relevance" to issues in the case, including whether any negligence or a breach of fiduciary duty existed.

Judge Waldman made a specific ruling prior to trial that the evidence of plaintiff's intoxication at the December 10, 2002 board meeting was admissible. The testimony was introduced to explain why the Orchards contacted its attorneys to deal with the plaintiff instead of interacting with her directly. On the other hand, the court made it clear that plaintiff's prior DWI record and any general alcohol consumption issue would not be allowed before the jury. Evidence of plaintiff's behavior at the meeting, although potentially prejudicial, was relevant to the jury's understanding of why the Orchards refused to deal directly with plaintiff and why there was a delay in the installation of the fence. Further, the testimony was used to impeach plaintiff's credibility, since she disputed defendants' witness's testimony concerning her behavior at the December 10, 2002 board meeting. Even if the decision to admit the testimony regarding plaintiff's conduct at the board meeting was in error, it was not "clearly capable of producing an unjust result" and did not amount to plain error — the standard for issues raised, as this is, for the first time on appeal.

Significantly, no claim was made that plaintiff had consumed alcohol on the date of the accident or that her consumption of alcohol caused or contributed to the occurrence of the accident. Quite simply, the evidence of plaintiff's alcohol consumption at the board meeting did not have the clear capacity to bring about an unjust result, and we find no basis to conclude that the trial judge's ruling in allowing such evidence was so far off the mark that a manifest injustice resulted.

II.

Plaintiff also takes issue with what she characterizes as defense counsel's references to the existence of "hidden proofs" beyond the evidence admitted at trial. At the hearing of arguments on the motions in limine, the court granted plaintiff's motion to bar the defense from eliciting testimony or mentioning in its opening or closing that plaintiff was involved in prior automobile accidents in which she was not injured. During the in limine hearing, plaintiff argued no evidence existed that she had suffered any injuries before the present incident or pre-existing conditions aside from asymptomatic spondylolisthesis. Defense counsel contended that he had not been provided with all the pertinent medical history information. Plaintiff insists that, in spite of the court's ruling in limine, the defense throughout the trial made remarks alluding to missing medical records, secret doctors and other "inflammatory suggestions of hidden proofs," all of which rendered the trial unfair. At the time, the court gave limiting instructions to counsel, but plaintiff asserts the proceedings were so tainted and unfair that she was denied a fair trial.

While it may be true that counsel for the defendants suggested that plaintiff's allegations were inconsistent, illogical, or too suspiciously coincidental to believe, we do not agree that plaintiff's right to a fair trial was undermined. It is permissible for a party to defend a lawsuit by suggesting that an adversary or witness is lying. SeeOstrowski v. Cape Transit Corp., 371 N.J.Super. 499, 513-15 (App. Div. 2004). Plaintiff has not demonstrated that any conduct on the part of defense counsel was so unsupported by the record or so egregious that a mistrial should have been ordered or a new trial directed then or now.

Similarly, plaintiff complains that defense counsel described the geographic proximity of the plaintiff's ex-husband and Dr. Kartagener's offices as a "strange coincidence" during summation, and asserts that such innuendo warrants a new trial. We disagree. Attorneys are given broad latitude in making arguments in summation, Diakamopoulos v. Monmouth Med. Ctr., 312 N.J.Super. 20, 32 (App. Div. 1998). "[C]ounsel's comments must be confined to the facts shown or reasonably suggested by the evidence introduced during the course of the trial," Colucci v. Oppenhaim, 326 N.J.Super. 166, 177 (App. Div. 1999), certif. denied, 163 N.J. 395 (2000), but "counsel may argue from the evidence any conclusion which a jury is free to arrive at." Spedick v. Murphy, 266 N.J.Super. 573, 590 (App. Div.), certif. denied, 134 N.J. 567 (1993). "Counsel may draw conclusions even if the inferences that the jury is asked to make are improbable, perhaps illogical, erroneous or even absurd, unless they are couched in language transcending the bounds of legitimate argument, or there are no grounds for them in the evidence." Id. at 590-91.

We recognize that "[c]ounsel, in his summation to a jury should not misstate the evidence nor distort the factual picture." Colucci, supra, 326 N.J. Super. at 177 (quoting Matthews v. Nelson, 57 N.J.Super. 515, 521 (App. Div. 1959), certif. denied, 31 N.J. 296 (1960)). Here, the brief comment by the defense during summation did not transgress that boundary. The accusations, insinuations or suggestions of lack of credibility or of strange coincidences did not have the clear capacity to produce an unjust result.

III.

Plaintiff also argues the trial court erred by failing to give a curative instruction sua sponte to limit the use of the evidence of plaintiff's alcohol consumption and to remedy defense counsel's suggestions of "hidden proofs." Regarding the failure to give a curative instruction, plaintiff contends the trial court should have given jury instructions, in accordance with N.J.R.E. 404(b), that the testimony regarding her alcohol consumption at the board meeting "could not be used to conclude that plaintiff must be a bad person or had a bad character." SeeShowalter V. Barilari, Inc., 312 N.J.Super. 494, 511-12 (App. Div. 1998) (involving a curative instruction limiting the use of evidence under N.J.R.E. 404(b)). Concerning the trial court's failure to remedy defense counsel's suggestions of "hidden proofs," plaintiff argues the final jury charge was insufficient and too general. Plaintiff now asserts that the final charge to the jury should have included an instruction to "disregard any suggestion or invitation heard during trial to consider or speculate about documents or testimony that might exist beyond the courtroom evidence." To support this assertion, plaintiff cites Geler v. Akawie, 358 N.J.Super. 437, 471 (App. Div.), certif. denied, 177 N.J. 223 (2003), in which we observed that "the absence of curative instructions heightened the already damaging effect of counsel's ill-considered words and increased the likelihood that the jury believed counsel's remarks to have been proper." See alsoPatterson v. Surpless, 107 N.J.L. 305, 308 (E. & A. 1930) ("[w]hen counsel deliberately seeks to inject into a cause an element which has, and is designed to have, the effect of prejudicing the rights of one or the other of the litigants, it is the duty of the judge to guard against such . . . pernicious results though proper instruction to the jury.").

Since plaintiff failed to request such instructions at trial, the plain error standard of review applies. R. 1:7-2. This standard requires the plaintiff to show the jury instructions were "clearly capable of producing an unjust result." R. 2:10-2; City of Linden, County of Union v. Benedict Motel Corp., 370 N.J.Super. 372, 397 (App. Div.), certif. denied, 180 N.J. 356 (2004). While the trial judge may not have given the jury instruction plaintiff now wishes the court had given, plaintiff does not contend that an erroneous instruction was given. The contention is merely that the charge was not sufficiently forceful to convey to the jurors that they should disregard any suggestion or invitation to consider or speculate about documents or testimony that might exist beyond the courtroom evidence. We are satisfied the charge as given adequately incorporated and communicated that concept. For example, the judge instructed:

The lawyers are advocates for their clients. In their opening statements and in their summations they have given you their views of the evidence and their arguments in favor of their clients' positions. While you may consider their comments, nothing that attorneys say is evidence and their comments are not binding on you.

You're the judges of the facts. You alone have the responsibility of deciding factual issues in the case. It's your recollection and evaluation of the evidence that controls. If the attorneys or I have said anything or if I say anything in my comments to you and I may comment very slightly or briefly on some of the facts in the case, if I do and it disagrees with your recollection of the evidence, it's your recollection that you rely on, not mine, not the attorneys, what they say in their openings or summations. You decide the facts, you recall the facts, you decide the facts. You're going to recall the facts and from those — from all the evidence in the case you decide what facts you're going to accept.

Your decision in the case must be based solely on the evidence presented and my instructions on the law.

"There is no reversible error `where the charge, considered as a whole, adequately conveys the law and is unlikely to confuse or mislead the jury, even though part of the charge, standing alone, might be incorrect.'" Magull v. C. B. Commercial Real Estate, 162 N.J. 449, 464 (2000) (quoting Fischer v. Canario, 743 N.J. 235, 254 (1996)). Here, we perceive no mistaken exercise of discretion by the judge and no prejudice to plaintiff.

Affirmed.

Footnotes

1. The individually named defendants are members of the Board of Trustees of The Orchards.