DONNA HOPKINS VS. BRUCE BIROC (L-1489-17, MERCER COUNTY AND STATEWIDE)

                                NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
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                                                        SUPERIOR COURT OF NEW JERSEY
                                                        APPELLATE DIVISION
                                                        DOCKET NO. A-4347-18T2

DONNA HOPKINS,

          Plaintiff-Appellant,

v.

BRUCE BIROC,

     Defendant-Respondent.
_________________________

                   Submitted September 16, 2020 – Decided October 15, 2020

                   Before Judges Ostrer and Vernoia.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Mercer County, Docket No. L-1489-17.

                   Chance & McCann, LLC, attorneys for appellant
                   (Matthew Weng, on the briefs).

                   Leary, Bride, Mergner & Bongiovanni, attorneys for
                   respondent (David J. Dering, of counsel and on the
                   brief).

PER CURIAM
      In this personal injury action, plaintiff Donna Hopkins' complaint alleged

that while defendant Bruce Biroc was an invited guest in her home, his dog

chased her cat, and caused the cat to bite plaintiff when she "grabbed [the] cat

in an attempt to avoid the cat getting injured" by the dog.1 Plaintiff also alleged

the cat bite caused severe injuries requiring hospitalization and medical

treatment.

      The parties agreed to a trial on the issue of liability only, subject to a high-

low agreement on damages. Following the trial, at which only plaintiff and

defendant testified, the jury returned a no-cause verdict on plaintiff's negligence

claim.

      Plaintiff appeals from the verdict, claiming the court erred by barring

evidence concerning defendant's consumption of beer prior to the incident and

by barring plaintiff's presentation of her daughter as a rebuttal witness. Having

reviewed the record in light of the applicable law, we find no merit to plaintiff's

arguments, and we affirm.


1
  At trial, plaintiff's counsel advised the court plaintiff divorced subsequent to
the filing of the complaint, and counsel moved to amend the complaint to
identify plaintiff by her maiden name, Donna Marie Urnaitis. During trial,
plaintiff was sworn as a witness and otherwise identified by her maiden name.
However, the record on appeal does not include an order granting her request to
amend the complaint, and the final judgment and plaintiff's submissions on
appeal refer to her as Donna Hopkins.
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      On the first day of trial, prior to the commencement of jury selection, the

court addressed pretrial issues, two of which are pertinent to this appeal. First,

the court addressed the number of trial witnesses, noting it understood only

plaintiff and defendant would testify. Plaintiff's counsel stated he intended to

call plaintiff's daughter as a rebuttal witness. Defendant's counsel objected,

explaining plaintiff had not identified her daughter as an individual with

knowledge of any pertinent facts in her interrogatory answers, and her daughter

was not listed in the parties' pretrial submissions to the court. 2 The court

sustained defendant's objection, finding plaintiff could not call her daughter as

a witness because the child was "never named or identified in any document"

and was first mentioned only on the "eve of trial."

      The second pretrial issue addressed by the court that is challenged on

appeal arises from plaintiff's pretrial submission stating she intended to present

evidence defendant consumed "several beers" during the hours prior to the dog-

and-cat incident. In her pretrial submission, defendant's counsel noted she




2
   In her pretrial submission to the court, see R. 4:25-7(b), plaintiff identified
only herself, defendant, and a physician as trial witnesses. Plaintiff does not
dispute she failed to identify her daughter as an individual with knowledge of
facts pertinent to her cause of action in her answers to defendant's
interrogatories.
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intended to object to the evidence because it was not probative and was

prejudicial.

      Plaintiff's counsel represented to the court that she did not intend to prove

or assert defendant was intoxicated, but instead sought to introduce the evidence

solely to establish defendant "was drinking. That's it." The court did not

initially decide the issue because a motion in limine to exclude the evidence had

not been filed.

      Before and after jury selection the following day, the court again

addressed defendant's objection to plaintiff's plan to introduce evidence

defendant consumed beer during the hours prior to the dog-and-cat incident. The

court concluded evidence concerning defendant's consumption of beer was

irrelevant because plaintiff did not intend to present evidence of intoxication,

and the proffered evidence presented a risk of undue prejudice, confusion of the

issues, and misleading the jury. The court sustained defendant's objection to the

evidence and barred its admission at trial.

      Plaintiff testified at trial that she and her then-husband have been friends

with defendant since 1998, and defendant is the godfather of plaintiff 's oldest

daughter. To her knowledge, defendant had never owned a dog. Plaintiff

explained that at about 2:45 p.m. on July 1, 2015, defendant arrived at the home


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she then shared with her husband and two daughters, and defendant and her

husband spent several hours talking in the kitchen. 3 During this time, plaintiff

moved around the house "a little bit" and also sat on a couch watching television

with her daughter. At around 7:00 p.m., defendant said he "forgot" he left his

dog in his car and he was leaving the house to check on the dog.

      Plaintiff further testified defendant returned to the house, opened the front

door, and his "little" dog ran toward plaintiff who was seated on a couch holding

her cat.4 Plaintiff said defendant had a leash in his hand, but it was untethered

to the dog. Plaintiff testified the dog charged at her and jumped onto her legs

for about thirty seconds while defendant stood and watched. Plaintiff explained

the dog tried to attack her cat; she attempted to push the dog "off of" her; and,

at the same time, she held onto her cat. During this time, the cat bit plaintiff's

finger and caused the injuries for which plaintiff sought damages in the

complaint.




3
  The complaint alleged the incident occurred on July 2, 2015, and the parties'
respective counsel variously argued the incident occurred on that date, but
plaintiff testified it occurred on July 1, 2015.
4
  Plaintiff agreed the dog was "little" and was the "about the same size as [her
seventeen-pound] cat."
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      Defendant testified he was a friend of plaintiff, her former husband, and

their two daughters since 1988 or 1989, and he had a history of adopting rescue

dogs that was known to plaintiff. For example, he explained he brought a rescue

dog he previously owned to plaintiff's older daughter's christening.

      According to defendant, on the date of the incident, he went to plaintiff's

home to "say hello" and show her daughters the new miniature greyhound dog

he adopted a "couple weeks" earlier. Defendant described the dog as "happy"

and not "aggressive." Defendant explained he knocked on the front door and

said, "I got a little greyhound [and] I'll bring him in," and plaintiff and her

daughters said "okay."

      Defendant testified he went to his car, retrieved the dog, and brought him

into the house on a leash. Plaintiff was seated on a couch holding her cat.

Defendant saw the dog go "towards the cat," and "[t]he cat freaked out and

meowed and, you know, and [plaintiff] got bit." The cat then "scurried off."

Defendant said plaintiff went into the bathroom and he spoke to plaintiff's

husband. When plaintiff exited the bathroom, he told her she should get the bite

"checked out," and he left. Defendant admitted he brought the dog into the house

knowing plaintiff had a cat and the "cat's reaction was a result of [his] dog




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coming into the house," but he explained the dog was on a six-foot leash and the

dog never jumped on plaintiff.

      When the trial continued on the morning following defendant's testimony,

the court again addressed plaintiff's counsel's request to call plaintiff's oldest

daughter, this time as a rebuttal witness. From the colloquy included in the trial

record, it appears the issue had been discussed during off-the-record discussions

between the court and counsel after the prior day's proceedings.5 We glean from

the record that, as a result of those discussions, plaintiff's counsel came to the

conclusion the court determined it would not permit the child to testify because

she had not been identified in plaintiff's discovery responses and pretrial

submissions. Plaintiff's counsel advised the court that, based on that conclusion,

the child had not been brought to the court to testify.

      The court explained counsel's conclusion was incorrect and it had not

decided the issue the previous day, and it had so advised plaintiff's counsel at


5
  Defendant's counsel noted that it was her understanding the discussions "were
off the record." We remind counsel and the court that off-the-record discussions
concerning issues of importance during trial hamper our ability to fully review
the record on appeal. See Pressler & Verniero, Current N.J. Court Rules, cmt.
3.2 on R. 1:2-2 (2020). When there are in-chambers discussions "concern[ing]
important subjects such as the procedure to be utilized, a record must be made
or a summary placed on the record as to what transpired. Only then is effective
appellate review insured." Klier v. Sordoni Skanska Const. Co., 337 N.J. Super.
76, 86 (App. Div. 2001).
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that time. In any event, the court informed counsel it had decided to allow

plaintiff's daughter to testify as a rebuttal witness. Plaintiff's counsel proffered

that plaintiff's daughter would rebut only defendant's testimony that he told

plaintiff and her daughters he was going to bring the dog into their house.

      The court offered to briefly delay the continuation of the trial to allow

plaintiff to pick her daughter up at her nearby school and bring her daughter to

the court to testify. Plaintiff's counsel requested an opportunity to speak with

plaintiff about producing her daughter so she could testify as a rebuttal witness.

The court granted the request, and there was a break in the proceedings.

      Following the break, plaintiff's counsel informed the court plaintiff did

"not have [her] daughter" at the court and he "want[ed] to call [plaintiff] back

to the witness stand" as a rebuttal witness. He also stated, "That's it. That's what

I want to produce." Plaintiff made no further requests related to the production

of her daughter as a witness, and she did not call her daughter as a rebuttal

witness.

      Plaintiff testified briefly in rebuttal. She explained she had never seen

any of defendant's dogs prior to the date of the incident.

      Following the summations of counsel and the court's final instructions on

the law, the jury returned a no-cause verdict. The jury determined plaintiff


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failed to prove by a preponderance of the evidence that defendant's negligence

was the proximate cause of her injury. The court subsequently entered an order

for judgment in plaintiff's favor in the amount of $30,000 based on the high-low

agreement, which provided for "the low [of] $30,000 and the high [of]

$150,000." This appeal followed.

      On appeal, plaintiff offers two arguments for our consideration. She

claims the court erred by barring evidence defendant consumed beer during the

several hours he allegedly spent at her home prior to the incident during which

she was injured. Plaintiff also contends the court erred by barring plaintiff from

calling her daughter as a rebuttal witness.        Defendant asserts plaintiff's

arguments lack merit and the appeal should be dismissed as moot because the

case was finally resolved under the parties' high-low agreement.

      We first consider defendant's claim the appeal is moot. He argues the

parties entered into a high-low agreement constituting a settlement that "renders

any appeal between the parties as moot." His argument is founded on the

premise that plaintiff voluntarily resolved her claim in the high-low agreement

and, therefore, she forfeited her right to appeal.     In other words, although

defendant argues the high-low agreement renders the appeal moot, he actually




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contends the high-low agreement constitutes a contractual bar to the prosecution

of this appeal.

      "A high-low agreement, like the one at issue in this case, is '[a] settlement

in which a defendant agrees to pay the plaintiff a minimum recovery in return

for the plaintiff's agreement to accept a maximum amount regardless of the

outcome at trial.'" Serico v. Rothberg, 234 N.J. 168, 177 (2018) (alteration in

original) (quoting Black's Law Dictionary 797 (9th ed. 2009)). A high-low

agreement is a "device used in negligence cases," Benz v. Pires, 269 N.J. Super.

574, 578 (App. Div. 1994), that "protects a plaintiff from the danger of receiving

less than the floor amount and protects a defendant from exposure to a judgment

higher than the agreed ceiling," id. at 579.

      A high-low agreement "is a settlement contract and [is] subject to the rules

of contract interpretation." Serico, 234 N.J. at 177. We will "enforce contracts

'based on the intent of the parties, the express terms of the contract, surrounding

circumstances and the underlying purposes of the contract.'" Id. at 178 (quoting

In re County of Atlantic, 230 N.J. 237, 254 (2017)). In our interpretation of a

high-low agreement, we must consider the agreement's terms "in the context of

the circumstances . . . and . . . apply a rational meaning in keeping with the

expressed general purpose." Ibid. (quoting County of Atlantic, 230 N.J. at 254).


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We enforce the contract as agreed to by the parties, but where an agreement is

ambiguous, we "will consider the parties' practical construction of the contract

as evidence of their intention and as controlling weight in determining [the]

contract's interpretation." Ibid. (quoting County of Atlantic, 230 N.J. at 255).

      The parties' high-low agreement was placed on the record and is limited

solely to the amount defendant would be required to pay plaintiff based on the

jury's findings of comparative negligence. The parties agreed defendant would

pay plaintiff a minimum of $30,000 if the jury returned a no-cause verdict and

$150,000 if the jury determined defendant was solely negligent for plaintiff's

injuries. The parties further agreed the amount paid to plaintiff would be

prorated between the high and low amounts based on the jury's allocation by

percentages of the parties' comparative negligence. As presented to the court on

the record, the parties' high-low agreement did not include any other terms or

conditions.

      Defendant offers no evidence supporting his claim the high-low

agreement included a waiver of the parties' respective rights to appeal from the

jury's verdict based on trial court errors, and the record shows the agreement did

not include such a waiver. Thus, the record undermines defendant's assertion




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the high-low agreement included, permitted, or required a waiver of the right to

appeal from alleged errors committed by the trial court.

      We "will not make a better contract for [the] parties than they themselves

have seen fit to enter into, or alter it for the benefit of one party and to the

detriment of the other." James v. Fed. Ins. Co., 5 N.J. 21, 24 (1950) (quoting

Kupfersmith v. Delaware Ins. Co., 84 N.J.L. 271, 275 (E. & A. 1912)); see also

Benz, 269 N.J. Super. at 579 (explaining that unless the parties agree to the

contrary, in a high-low agreement, "[t]he parties agree to let the usual process

of trial and judgment operate and control the outcome, under all of the rules

applicable to trial determinations"). Because the record does not support a

finding the high-low agreement was conditioned on a waiver of the parties'

respective rights to appeal from trial court errors, we find no basis to impose

such a term. We therefore reject defendant's claim the agreement bars plaintiff's

prosecution of this appeal or otherwise renders the appeal moot.

      Plaintiff argues we should reverse the no-cause verdict based on the

court's purported error in barring evidence plaintiff consumed "several beers"

during the more than four hours plaintiff contends defendant spent at her home

prior to the cat-and-dog incident. Before the trial court, plaintiff's counsel

represented that introduction of the evidence was not for the purpose of


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                                      12
demonstrating defendant was intoxicated. Instead, counsel proffered that the

evidence would explain what occurred prior to the incident. As noted, the court

sustained defendant's objection to the evidence because it had no probative value

and was otherwise unduly prejudicial.

      Relevant evidence is generally deemed admissible, N.J.R.E. 402, but it

may be excluded under N.J.R.E. 403 when 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 issues in the case." Griffin v. City of E. Orange, 225 N.J. 400,

421 (2016) (quoting State v. Koskovich, 168 N.J. 448, 486 (2001)). "[W]hether

evidence should be excluded under [N.J.R.E.] 403 because its prejudicial effect

outweighs its probative value is an issue remitted to the discretion of the trial

court." State v. Harvey, 151 N.J. 117, 184 (1997). We reverse a trial court's

decision to exclude evidence under N.J.R.E. 403 only when the trial court

commits a clear error of judgment. Ibid.

      In Gustavson v. Gaynor, we held that evidence a defendant consumed

alcoholic beverages prior to his involvement in an automobile accident "is by

itself insufficient to warrant an inference that the [defendant-]driver was

intoxicated and that the intoxication was of such a degree as to render him unfit


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to drive at the time of the accident." 206 N.J. Super. 540, 545 (App. Div. 1985).

We held that to admit evidence of drinking alcohol to establish the negligent

operation of a motor vehicle, supporting evidence must be presented "from

which the trier of fact may reasonably conclude that the drinking affected the

safe operation of the vehicle." Id. at 544-45. We also found applicable the

following "general rule": during a trial, "questions cannot be asked which

intimate to the jury that a party was intoxicated at the time of [an] accident

unless there is supporting evidence . . . .; in the absence of supporting evidence,

testimony concerning the drinking of intoxicants should be stricken." Id. at 545

(quoting Ballard v. Jones, 316 N.E.2d 281, 286 (Ill. App. Ct. 1974)).

      Here, plaintiff sought admission of evidence defendant consumed beer

prior to the incident, but she conceded it did not establish defendant was

intoxicated and acknowledged she did not contend that it did. Plaintiff also

failed to proffer any other evidence supporting a finding that defendant's alleged

consumption of beer resulted in intoxication or impairment, or that the alleged

drinking affected him in any manner. See id. at 544-45.

      Plaintiff argued that despite the absence of any evidence establishing

defendant's intoxication, evidence showing he consumed alcohol was admissible

to provide a complete picture of the circumstances leading to the cat-and-dog


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incident. “Relevancy [of evidence] is tested by the probative value the evidence

has with respect to the points at issue." State v. Hutchins, 241 N.J. Super. 353,

358 (App. Div. 1990).       Lacking any proof of intoxication caused by the

purported beer consumption or some other evidence establishing intoxication or

impairment, the proffered evidence was unnecessary to provide "narrative

completeness" and could not logically establish defendant's alleged negligence.

Gustavson, 206 N.J. Super. at 544. The evidence therefore did not have "a

tendency in reason to prove or disprove any fact of consequence to the

determination of the action," N.J.R.E. 401, and the trial court properly

concluded it was irrelevant.

      We reject plaintiff's claim a different result is required by our decision in

Black v. Seabrook Associates, LTD., where, in a wrongful death and

survivorship action, we determined the trial court erred by excluding testimony

concerning the decedent's consumption of alcohol in the hours preceding the

incident that resulted in his death. 298 N.J. Super. 630, 635 (App. Div. 1997).

In Black, the decedent suffered a severed artery when he punched the door to

his apartment to gain entry because the door "was stuck." Id. at 632. Testing at

the hospital where the decedent was treated and died revealed a .143 blood

alcohol content, and a later test revealed a .11 blood alcohol content. Id. at 633.


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Another test showed "a trace of cocaine metabolite in [the] decedent's urine."

Ibid.

        The trial court excluded testimony concerning the decedent's use of

alcohol based on a finding "there was insufficient supplemental evidence of

alcohol to admit such testimony" under Gustavson. Ibid. We reversed the trial

court's decision, and we determined evidence establishing the extent to which

the decedent's "judgment and/or coordination were impaired" by his

consumption of alcohol was "a proper subject for the jury to consider," and could

be established by testimony from two witnesses and "the blood alcohol content

results of decedent's blood serum analysis." Id. at 636-37. We further found

that evidence satisfied the Gustavson "supplemental evidence standard." Id. at

637.

        In Black, defendant sought the admission of the decedent's alcohol

consumption prior to the accident to establish the decedent's intoxication or

impairment as probative of whether the decedent's negligence caused or

contributed to the accident. Id. at 636-37. That is not the case here. Plaintiff's

counsel represented to the court he did not seek to introduce the evidence to

establish defendant was intoxicated or impaired.         During colloquy with

plaintiff's counsel, the court stated, "Let's be clear for the [record].      Your


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argument, whether or not the plaintiff can testify that the defendant . . . was

intoxicated or had been drinking. Which is it?" In response, plaintiff's counsel

said, "Had been drinking." When later asked by defense counsel about the

relevance of the proffered evidence and what plaintiff intend to imply by

presenting evidence defendant was drinking beer, plaintiff's counsel replied,

"That [defendant] was drinking. That's it."

      Plaintiff offered no supplemental evidence of defendant's alleged

intoxication or impairment.    Plaintiff proffered the evidence only to show

defendant was "drinking," and not to establish defendant was intoxicated. Thus,

unlike in Black, the trial court was not presented with evidence probative of any

alleged intoxication or impairment of defendant resulting from the consumption

of alcohol, and plaintiff's counsel represented the evidence was not to be

admitted to establish intoxication. The court therefore properly concluded the

evidence, as represented in plaintiff's proffer, was not probative of defendant's

alleged negligence. See Gustavson, 206 N.J. Super. at 545 (finding evidence of

drinking alcohol alone does not support a finding a defendant-driver negligently

operated a vehicle); cf. Black, 298 N.J. Super. at 636-37 (finding evidence

establishing decedent's intoxication was probative of the decedent's comparative

negligence).


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      Because the evidence as proffered by plaintiff had no probative value, it

was properly excluded as irrelevant under N.J.R.E. 402. Moreover, admission

of the evidence solely for the purpose of establishing defendant was "drinking,"

and without any claim or evidence he was intoxicated, presented a substantial

risk the jury would have judged defendant's actions during the incident based on

irrelevant facts and mere speculation. The court's determination the nonexistent

probative value of the proffered evidence was substantially outweighed by the

risk of undue prejudice, confusion of the issues, and misleading the jury ,

N.J.R.E. 403, did not constitute an abuse of discretion.

      Plaintiff next argues the no-cause verdict should be reversed because the

court erred by barring plaintiff's daughter from testifying as a rebuttal witness.

The argument is without sufficient merit to warrant discussion in a written

opinion, R. 2:11-3(e)(1)(E), because it is founded on an inaccurate factual

premise. The court did not bar the plaintiff's daughter from testifying as a

rebuttal witness. To the contrary, the court ruled plaintiff could call her daughter

as a rebuttal witness, and the court stated it would delay the trial to permit

plaintiff to produce the child before the jury for her testimony. After conferring

with her counsel, plaintiff opted not to produce the child and, instead, testified




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on her own behalf in rebuttal. Plaintiff's assertions to the contrary are both

unsupported by, and contradicted by, the record.

      Affirmed.




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