CACON, INC. v. RAND ENVIRONMENTAL SERVICES, INC., et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2480-04T32480-04T3

CACON, INC.,

Plaintiff-Appellant,

vs.

RAND ENVIRONMENTAL SERVICES,

INC., STATE OF NEW JERSEY

DEPARTMENT OF ENVIRONMENTAL

PROTECTION, STATE OF NEW JERSEY

DEPARTMENT OF THE TREASURY,

FOSTER WHEELER ENVIRESPONSE, INC.,

Defendants-Respondents,

and

RONALD C. MIS, SAMUEL BOX,

STEPHEN GANGEMI, O'BRIEN AND

GERE ENGINEERS, INC.,

Defendants.

___________________________________

 

Submitted December 6, 2005 - Decided August 21, 2006

Before Judges Lefelt and Seltzer.

On appeal from the Superior Court of

New Jersey, Law Division, Morris County,

L-294-96.

Kravitz and Puricelli, attorneys for

appellant (Brian M. Puricelli, on the brief).

Peckar and Abramson, attorneys for

respondent Rand Environmental Services,

Inc. (Patrick J. Greene, Jr., of

counsel and Richard S. Robinson,

on the brief).

Treacy, Schaffel, Moore and Mueller,

attorneys for respondent Foster Wheeler

Enviresponse, Inc. (Gary J. Mueller,

on the brief).

Peter C. Harvey, Attorney General,

attorney for respondents State of New

Jersey, Department of Environmental

Protection and State of New Jersey,

Department of the Treasury (Richard

F. Engel, Deputy Attorney General,

on the brief).

PER CURIAM

Plaintiff appeals from a June 4, 2004, summary judgment dismissing its claim against defendants New Jersey Department of Environmental Protection and New Jersey Department of the Treasury (collectively "the State"); a December 10, 2004, summary judgment dismissing its complaint against defendant Rand Environmental Services, Inc. (Rand); and a second December 10, 2004, summary judgment dismissing its complaint against defendant Foster Wheeler Enviresponse, Inc. (FWEI). We affirm.

Although the legal principles involved in this appeal are straightforward, the facts are complicated, having been developed in litigation that involved the trial courts for more than eight years. We discern the following facts from the record. The litigation had its genesis in a contract awarded by the State to FWEI for the environmental remediation of the Comb Fill South Landfill in Chester. FWEI subcontracted a portion of its work to Rand, which, in turn, subcontracted part of its work to plaintiff. A number of disputes arose resulting in various suits in various venues, all of which were ultimately consolidated and considered initially by Judge Stanton.

Plaintiff alleged damages resulting (1) from directions to relocate refuse, causing additional costs and delays, which it presented to Rand in a "Change Notice 24 (CN24);" (2) from extra work it performed, which it presented to Rand in the form of additional invoices; and (3) from delays attributable to the failure of Rand to secure, as it was contractually required to do, an environmental indemnification for plaintiff from the United States Environmental Protection Agency, which it presented to Rand in the form of "Change Notice 9" (CN9).

Plaintiff sued the State, FWEI and Rand, all of which moved to dismiss the complaint. Those motions were denied by Judge Stanton by order dated April 20, 1996. The order also limited "the liability of Rand [] to [plaintiff] with respect to [plaintiff's] claims for additional compensation . . . to the amount, if any, actually received by Rand [] from [FWEI] on account of such claims, so long as such claims are reasonably and in good faith presented by Rand [] to [FWEI] . . . ." The judge also provided that both plaintiff and Rand should "have the right to fully participate in the claims resolution process currently ongoing between the State [] and [FWEI] . . . ." Rand and plaintiff were given the right to notice of, and the opportunity to attend and be heard at, all "negotiations, meeting, and/or settlement conferences." That order is not challenged on this appeal.

The negotiations between the State and FWEI ultimately failed and the matter was returned to the court. Nevertheless, Rand and FWEI continued to discuss a possible resolution of their dispute. That dispute involved Rand's claims for money, some of which would, if obtained by Rand, be remitted to plaintiff. FWEI also had substantial claims against Rand for what it claimed was defective work. Much of the work said to be defective had been done by plaintiff.

In 1999, Rand and FWEI settled their dispute. The settlement released Rand from all claims from FWEI. Rand, in turn, without any payment, released FWEI from all claims, including plaintiff's claims for extra work and the CN24 claims. FWEI, however, was required to present the CN9 claims to the State and to remit to Rand and plaintiff any sums it recovered on those claims. On December 19, 2002, the State moved for partial summary judgment as to the CN9 damage claim. That motion was granted February 12, 2003. No appeal is taken from that order.

On September 8, 2003, FWEI entered into a settlement agreement with the State, pursuant to which it received $15,000,000. On December 12, 2003, FWEI filed a motion for summary judgment, seeking dismissal of plaintiff's claims. The motion asserted that plaintiff lacked sufficient privity to permit it to proceed against FWEI. The State, also claiming lack of privity, moved for judgment on December 18, 2003. Finally, on January 2, 2004, Rand filed a motion to dismiss plaintiff's complaint on the grounds that it had recovered no money from FWEI and that Judge Stanton's April 20, 1996, order limited Rand's liability to plaintiff to those sums Rand collected from FWEI.

Those motions were heard by Judge Wilson who, on June 4, 2004, granted the State's motion subject to "reargument" if plaintiff could "demonstrate that it was denied the opportunity to participate meaningfully in the mediation." Plaintiff did not seek to reconsider the grant of judgment in favor of the State, nor did it ever present proofs that it was prevented from participating in the mediation. The Rand and FWEI motions were denied without prejudice to renewal if accompanied by proofs that Rand's claims against FWEI included plaintiff's claims against FWEI. After additional discovery, the motions were renewed, and granted, on December 10, 2004. This appeal followed.

Because these appeals are from dismissals on summary judgment, we review the judgment by applying the same standard as did the trial court, Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998), without affording any special deference to the judge's interpretation of the law. Manalapan Realty L.P. v. Twp. Committee of Manalapan, 140 N.J. 366, 378 (1995). That is, we review the record in the light most favorable to plaintiff and determine if the record thus viewed requires dismissal as a matter of law. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).

With that background, we first consider the State's motion. We note, initially, that plaintiff has not briefed its arguments respecting any claimed impropriety in the June 4, 2004, order dismissing its claims against the State. Plaintiff's brief deals only with the December 10, 2004, orders and, accordingly, the claim against the State is deemed abandoned. Liebling v. Garden State Indemn., 337 N.J. Super. 447, 465-66 (App. Div.), certif. denied, 169 N.J. 606 (20021). We nevertheless add the following comments.

The only claim presented to the State that might inure to plaintiff's benefit was the claim for delay damages presented in CN9. That claim was dismissed as a matter of law by Judge Stanton on February 12, 2003. We do not see, and plaintiff has not suggested, why it is not bound by that order, nor has it argued that the order was legally incorrect. Since an unchallenged decision has held that the CN9 claims were legally insufficient, plaintiff cannot now claim that it is entitled to those damages.

The remaining claims of plaintiff were never presented to the State and there are two independent bases for dismissing those claims. The first is the lack of any contractual relationship between plaintiff and the State. Plaintiff's contract was only with Rand and it is only to Rand that plaintiff may look for compensation. No obligation, independent of one created by contract, exists between a sub-contractor and an owner. F. Bender, Inc. v. Jos. L. Muscarelle, Inc., 304 N.J. Super. 282 (App. Div. 1997); Insulation Contracting & Supply v. Kravco, Inc., 209 N.J. Super. 367 (App. Div. 1986). There are no such contractually-created obligations imposed on the State here. Accordingly, plaintiff's claims against the State are foreclosed.

Moreover, the June 4, 2004, order dismissing plaintiff's claims against the State permitted plaintiff to seek reconsideration if it could "demonstrate that it was denied the opportunity to participate meaningfully in the mediation." Plaintiff never sought to make that showing and we believe it is foreclosed from raising that issue as to the State on appeal.

The same considerations of privity apply to bar plaintiff's claims against FWEI. Plaintiff argues, however, that FWEI waived the requirement of privity, leaving it vulnerable to plaintiff's claims, when it agreed to present the CN9 claims to the State. "Waiver 'is the intentional relinquishment of a known right.' West Jersey Title & Guar. Co. v. Industrial Trust Co., 27 N.J. 144, 152 (1958). Waiver must be voluntary and there must be a clear act showing the intent to waive the right. Ibid." County of Morris v. Fauver, 153 N.J. 80, 104 (1998). The burden of proving waiver is upon the party asserting it. Columbia Sav. & Loan v. Easterlin, 191 N.J. Super. 327, 342 (Ch. Div. 1983), aff'd, 198 N.J. Super. 174 (App. Div. 1985). There is nothing in this record to suggest that FWEI did anything other than facilitate its settlement with its contractual partner, Rand, when it presented Rand's CN9 claims to the State. That compliance with its settlement obligation hardly demonstrates an intent to allow plaintiff to hold it responsible for Rand's obligations.

Plaintiff also seeks to reach FWEI by arguing that it received payment for the CN24 damages and for the extra work plaintiff claimed it did. There was, however, no proof that FWEI ever received any monies for those claims. The motion judge specifically questioned counsel on this issue at oral argument:

Court: [Is] there any proof that [FWEI] was paid by the State for any of the change notices for which [plaintiff] is now making a claim?

Plaintiff's Counsel: We know they got 15 million dollars.

Court: So you don't have any proof that --

Plaintiff's Counsel: We have proof that we didn't get paid . . . We have proof that [FWEI] was negotiating to get paid.

Court: I think everybody agrees that you didn't get paid . . . Do you have any proof that [FWEI] was paid with regard to any of the change notices for which you are making claim against Rand or [FWEI]?

Plaintiff's Counsel: No, we don't have that[.]

In the absence of any proof that FWEI received monies attributable to plaintiff's work, plaintiff held no viable claim against FWEI.

We turn, finally, to plaintiff's claim against Rand, the only party to which it was contractually tied. There is no question on this record that Rand received no additional funds from FWEI, having given up its claims in return for a dismissal of FWEI's substantial claims against it. It is not clear from plaintiff's submission whether it objects to Rand's settlement with FWEI or FWEI's settlement with the State.

In any event, Judge Stanton's April 20, 1996, order limited Rand's liability to the sums it actually received "so long as [plaintiff's] claims are reasonably and in good faith presented by Rand [] to [FWEI]." Judge Wilson ultimately concluded that Rand's settlement with FWEI was in good faith and there is no meritorious suggestion to the contrary. Indeed, faced with substantial back charge claims advanced by FWEI relating to plaintiff's work, the settlement was reasonable and the record does not support any claim to the contrary.

Rand was able to preserve plaintiff's CN9 claims, but they were determined to be meritless as a matter of law when Judge Stanton dismissed them on summary judgment. Plaintiff argues that a reasonable jury could conclude that this dismissal resulted from the manner in which the claim was advanced but provides no evidence that a different presentation would have compelled a different result.

Plaintiff also argues that it should have been able to participate in the settlement negotiation between Rand and FWEI. The only order permitting participation was Judge Stanton's April 20, 1996, order which required participation in the negotiation "currently ongoing between the State [] and [FWEI]." It did not provide any rights to plaintiff with respect to Rand's settlement with FWEI.

Moreover, Judge Wilson correctly determined that the only evidence presented was to the effect that plaintiff was involved, or had the opportunity to be involved, in settlement discussions. She rejected, as non-responsive, affidavits submitted on plaintiff's behalf from two individuals who attested to their non-involvement in the FWEI-Rand discussions. We agree with the judge's treatment of those certifications. The failure of Rand to obtain any funds after a good faith presentation of those claims precludes plaintiff's recovery against Rand as a matter of law.

Affirmed.

 

The complaint against defendant O'Brien and Gere Engineers was dismissed on June 4, 2004. No appeal is taken from that dismissal. Plaintiff's complaint identifies the individual defendants as agents of FWEI. The order granting judgment in favor of FWEI does not refer to the individual defendants, but no party suggests that the appeal is interlocutory. To the extent the claims against the individual defendants remain, we grant leave to appeal. See Mango v. Pierce-Coombs, 370 N.J. Super. 239, 245 n.1 (App. Div. 2004).

(continued)

(continued)

12

A-2480-04T3

 

August 21, 2006