Excelsior Lumber Co. v. Van Peenen Landscape Contractors
| Decision Date | 09 July 2019 |
| Docket Number | DOCKET NO. A-6032-17T4 |
| Parties | EXCELSIOR LUMBER CO., INC., Plaintiff, v. VAN PEENEN LANDSCAPE CONTRACTORS, and VAN PEENEN CONTRACTORS, INC., Defendants, and SECOND GEN CATERING CO., INC., and 691 POMPTON AVENUE REALTY, LLC, Defendants-Respondents. SECOND GEN CATERING CO., INC., and 691 POMPTON AVENUE REALTY, LLC, Plaintiffs-Respondents, v. RAYMOND VAN PEENEN, SUSAN A. VAN PEENEN, VAN PEENEN CONTRACTORS, INC., VAN PEENEN CONSTRUCTION, LLC, VAN PEENEN LANDSCAPE CONTRACTORS, INC., ASHLIN EARTH MATERIALS, INC., WILKSTONE, LLC, WOY TECH, INC., EXCELSIOR LUMBER COMPANY, INC., TRANE, U.S., INC., UNITED RENTALS NORTH AMERICA, INC., UNITED AUTOMATIC FIRE SPRINKLER, INC., and JP MORGAN CHASE BANK, N.A., Defendants, and TRI-STATE FOLDING PARTITIONS, INC., Defendant-Appellant. |
| Court | New Jersey Superior Court — Appellate Division |
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
Before Judges Koblitz, Currier and Mayer.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket Nos. L-5989-11 and L-6194-11.
Robert K. Chewning argued the cause for appellant (McLaughlin & Nardi, LLC, attorneys; Maurice W. McLaughlin and Robert K. Chewning, on the briefs).
Theodore S. Smith argued the cause for respondents (Drinker Biddle & Reath, LLP, attorneys; Kenneth J. Wilbur and Theodore S. Smith, on the brief).
Defendant Tri-State Folding Partitions, Inc. (Tri-State) appeals from two orders, March 13, 2015 and August 6, 2018, granting summary judgment to plaintiffs Second Gen Catering Co., Inc. and 691 Pompton Avenue Realty, LLC (collectively, the Grove Owners). We affirm both orders.
In October 2009, the Grove Owners hired a general contractor, Van Peenen Contractors, Inc. (Van Peenen), to construct a banquet and catering facility. The original contract price to construct the banquet facility was $13,801,732. The Grove Owners subsequently expanded the scope of Van Peenen's construction work, agreeing to an increased contract price of $15,934,567.1
Van Peenen invoiced the Grove Owners for completed construction work and submitted applications for payment. On February 24, 2011, Van Peenen submitted payment application No. 48.2 In that application, Van Peenen certified the total contract price was $15,470,000, and claimed the Grove Owners had a balance due of $419,337.90.
In May 2011, several subcontractors alleged Van Peenen failed to pay them and filed construction liens against the banquet facility. In its June 2, 2011 construction lien, Tri-State asserted it was owed $169,920.50 by Van Peenen. Based on the lien claims, on June 7, 2011, the Grove Owners terminated the contract with Van Peenen.
The Grove Owners filed a complaint against Van Peenen alleging fraudulent misrepresentation, conversion, violations of the New Jersey Consumer Fraud Act, N.J.S.A. 56:8-1 to -210, fraudulent conveyance, breach of contract, and other claims. In the complaint, the Grove Owners also sought to discharge the construction liens filed by the subcontractors.3
Tri-State filed an answer and counterclaim. Tri-State alleged it was entitled to payment from the Grove Owners based on breach of contract, unjust enrichment, quantum meruit, and promissory estoppel.
After the exchange of discovery, the Grove Owners filed a motion for summary judgment. The Grove Owners claimed Tri-State's construction lien was improper because it paid Van Peenen more than the earned value of the work completed, and therefore no lien fund was available under the New Jersey Construction Lien Law (Construction Lien Law), N.J.S.A. 2A:44A-1 to -38. The Grove Owners also sought summary judgment based on the absence of any contract with Tri-State.
In opposition to the motion, Tri-State submitted certifications from its principal, Peter Mucciolo, and his son, Peter Mucciolo III. In the Mucciolo certifications, Tri-State claimed the Grove Owners orally admitted to owing money and promised to pay Tri-State upon completion of the work at the banquet facility.
The motion judge granted the Grove Owners' motion for summary judgment, finding there were no genuinely disputed material facts regarding the lack of an available lien fund, Tri-State's quasi-contractual claims, or Tri-State's claim based on promissory estoppel. Regarding Tri-State's contract claim, the judge dismissed that claim without prejudice to any "claims based on uncompensated work performed after Van Peenen's termination . . . ."
As to the lack of a lien fund, the judge determined Van Peenen was paid in full by the Grove Owners for the earned amount of the work completed prior to Van Peenen's termination. The judge found payment application No. 48 established the earned amount of the work at the banquet facility as of May 4, 2011, the date of the first filed lien claim, was $14,521,718.90. She also determined the Grove Owners paid Van Peenen $15,050,500, more than the earned amount of the work as of May 4, 2011, and thus no lien fund existed.
The Grove Owners produced cancelled checks, receipts, and accounting records to support the amount paid to Van Peenen as of May 4, 2011. Despite the availability of these documents for review, Tri-State failed to proffer any contrary evidence disputing the amount paid to Van Peenen by the Grove Owners for the earned work as of May 4, 2011 to establish the existence of a lien fund.
The judge also rejected Tri-State's quasi-contract claims. She found any purported agreement between the Grove Owners and Tri-State was a separate agreement from the contract between Tri-State and Van Peenen. The judge held Tri-State could not assert quasi-contract claims if it had a contract with the Grove Owners. She further explained Tri-State was not entitled to restitution based on quasi-contract "merely because the contractor with whom [it] contracted fail[ed] to pay."4
In addition, the judge determined Tri-State's promissory estoppel claim failed because the Grove Owners' alleged oral agreement to pay Tri-State was a promise to be liable for the obligations of another and therefore had to be in writing in accordance with the statute of frauds. See N.J.S.A. 25:1-15. She also found Tri-State improperly sought to impose liability against the Grove Owners for work performed prior to Van Peenen's termination because the amount sought by Tri-State against the Grove Owners "exactly match[ed] how much [Tri-State was] seeking against Van Peenen."
The judge left open the possibility of a claim by Tri-State based on a new contract for work performed after Van Peenen's termination.
In 2015, the Grove Owners and Van Peenen agreed to submit their dispute to binding arbitration.5 The arbitrator awarded the Grove Owners $685,990, representing defective or incomplete work by Van Peenen. The judge confirmed the arbitration award and entered a judgment for the Grove Owners in that amount.
Tri-State then pursued its claims against the Grove Owners for contract work purportedly performed by it after Van Peenen's termination. In connection with those claims, the judge required Tri-State to produce all evidence upon which it intended to rely.
In 2018, the Grove Owners moved for summary judgment. The Grove Owners argued it never had a contract with Tri-State and sought dismissal of Tri-State's only remaining claim.
Tri-State cross-moved for summary judgment, claiming the Grove Owners promised to pay Tri-State for work completed after Van Peenen was fired. Based on a certification from Peter Mucciolo, III, Tri-State asserted it had meetings with principals of the Grove Owners post-termination of the general contractor and relied on representations that Tri-State would be paid for all work.
In an August 6, 2018 order, a different motion judge granted the Grove Owners' motion for summary judgment and denied Tri-State's motion. The judge concluded Tri-State failed to adduce "competent evidence establishing a substantial factual dispute" to support a claim that the Grove Owners had a contract with Tri-State and agreed to pay Tri-State for work completed subsequent to Van Peenen's termination.
The judge, after reviewing the 2018 summary judgment motions, found Tri-State's motion for summary judgment set forth the same facts presented to the prior judge in 2015. He compared the 2015 Mucciolo certifications to the 2018 Mucciolo certification and concluded the certifications presented the same alleged conversations in support of Tri-State's supposed new contract with the Grove Owners. The judge noted Tri-State supplied no evidence supporting the "specific nature and extent of the work promised and actually performed at the [banquet facility] pursuant to the putative new contract." The judge explained "it is impossible to conclude that Tri-State has adduced facts on this motion establishing a genuine dispute of material fact as to the existence of a new contract."
On appeal, Tri-State claims there are genuinely disputed issues of material fact precluding summary judgment in favor of the Grove Owners. Tri-State also contends it has meritorious claims against the Grove Owners based on breach of contract, quantum meruit, unjust enrichment, and promissory estoppel.
We review a trial court's decision granting summary judgment de novo, employing the same standard used by the trial court. Templo Fuente De Vida Corp. v. Nat'l Union Fire Ins. Co. of Pittsburgh, 224 N.J. 189, 199 (2016). Summary judgment should be granted only if the record demonstrates there is "no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law." R. 4:46-2(c). In determining whether a summary judgment motion was properly granted, we review the evidence, drawing "all legitimate inferences from the facts in...
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