R.B. TOTAL ELECTRICAL LLC v. VERA CARPENTER

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3298-08T23298-08T2

R.B. TOTAL ELECTRICAL LLC,

Plaintiff-Respondent,

v.

VERA CARPENTER,

Defendant/Third-Party

Plaintiff-Appellant,

v.

R.B. TOTAL ELECTRICAL LLC and

RISHI BUNSEE,

Third-Party Defendants-

Respondents.

____________________________________________________

 

Submitted March 24, 2010 - Decided

Before Judges Axelrad and Fisher.

On appeal from the Superior Court of New Jersey, Law Division, Special Civil Part, Essex County, Docket No. DC-15739-07.

Athena D. Alsobrook, attorney for appellant.

Nord & DeMaio, attorneys for respondent and third-party defendants-respondents (Michael Stafford, on the brief).

PER CURIAM

In this appeal, we first consider whether the judge erred in granting summary judgment in favor of plaintiff R.B. Total Electrical LLC (RBTE) for the remainder due from defendant Vera Carpenter on a contract that called for RBTE to perform certain electrical work in defendant's commercial establishment. We also examine defendant's argument that the judge erred in dismissing her claims against third-party defendant Rishi Bunsee, RBTE's principal, based on the entire controversy doctrine. We affirm.

The record reveals that defendant engaged RBTE to perform electrical work in her daycare center in Irvington. A written estimate, dated July 26, 2006, described the work RBTE agreed to perform and specified the amount defendant agreed to pay. At that time, defendant paid $6000, with the remainder of $7353.60 due upon completion of the work. When defendant failed to pay the balance, RBTE filed a complaint seeking collection in the Special Civil Part.

RBTE successfully moved for summary judgment. The judge determined that the scope of the work was unambiguously defined by the written estimate and there was no dispute that RBTE had fully performed all the promised work. Accordingly, on October 24, 2008, an order of summary judgment was entered in favor of RBTE in the amount of $7353.60.

The record on appeal also reveals confusion about the status of defendant's responsive pleading, which included a third-party action against a fictitious defendant later identified in an amended pleading as Bunsee and, particularly, its status when RBTE's summary judgment motion was granted. On February 20, 2009, finding defendant failed to assert her claim against Bunsee in a timely fashion, the judge granted Bunsee's dispositive motion and dismissed the claims asserted against him based on the entire controversy doctrine.

Defendant filed this appeal, arguing:

I. THE MOTION JUDGE ERRED IN GRANTING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND DISMISSING DEFENDANT'S COUNTERCLAIM AND THIRD PARTY COMPLAINT AS THERE ARE GENUINE ISSUES OF MATERIAL FACTS.

II. THE COURT BELOW ERRED BY NOT PERMITTING APPELLANT'S COUNTERCLAIM AND THIRD PARTY COMPLAINT TO PROCEED WITH A BREACH OF CONTRACT CLAIM WHEN THE FRAUD ARISES IN PRE-CONTRACTUAL MISREPRESENTATIONS.

We reject these arguments, as well as RBTE's contention that we should deem as time-barred defendant's appeal of the October 24, 2008 summary judgment.

In turning to the sufficiency of the October 24, 2008 summary judgment, although the work estimate and some other evidential materials are included in the appendix, defendant failed to include in her appendix any certifications or affidavits she may have submitted in opposition to RBTE's motion. See R. 2:6-1(a)(1). Due to that failure, our ability to apply the Brill standard in reviewing the October 24, 2008 summary judgment has been obfuscated. Nevertheless, on the existing record on appeal, as illuminated by the motion judge's thorough oral decision, we find no merit in defendant's argument that the judge erred in finding that the parties' written agreement was clear and unambiguous and in granting summary judgment in favor of RBTE.

In subsequent proceedings in this matter, the judge dismissed defendant's claim against Bunsee by determining that it was barred by the entire controversy doctrine. Although we agree that this claim was properly dismissed, we reject the grounds upon which the judge relied. Isko v. Planning Bd. of Livingston, 51 N.J. 162, 175 (1968); Grow Co. v. Chokshi, 403 N.J. Super. 443, 467 (App. Div. 2008).

Defendant's third-party complaint was incorporated in her initial responsive pleading. That original third-party complaint asserted the liability of a fictitious person described as the owner/operator of RBTE. Defendant filed an amendment to the third-party complaint on August 22, 2008 -- approximately two months prior to the entry of summary judgment in favor of RBTE -- identifying the fictitious defendant as Bunsee. The record on appeal is murky at best about the actual status of the third-party complaint when summary judgment was rendered in favor of RBTE. In examining the issues on appeal, we will assume that the amendment was filed but not served or was otherwise dismissed without prejudice at the time summary judgment was entered in favor of RBTE. That is, although defendant's pleadings may have been suppressed, dismissed without prejudice, or unserved at the time summary judgment was entered in favor of RBTE -- thus giving the October 24, 2008 order the illusion of finality -- we reject the judge's determination that the claim against Bunsee, when eventually before the court by way of a dispositive motion, should be viewed as a second suit barred by the adjudication of RBTE's complaint.

The entire controversy doctrine embodies a public policy that warrants a court's refusal to entertain a second lawsuit based on claims that were or could have been asserted in an earlier lawsuit. See, e.g., Olds v. Donnelly, 150 N.J. 424, 431 (1997) (holding that the doctrine "seeks to assure that all aspects of a legal dispute occur in a single lawsuit"). Here, there was only a single lawsuit, which was fully adjudicated through a series of motions, and not two separate and distinct lawsuits. Thus, the policies that undergird the entire controversy doctrine were not triggered. The doctrine does not preclude the piecemeal adjudication of multiple claims asserted in a single suit through sequential motions.

Despite our rejection of the grounds upon which the judge relied, we nevertheless affirm the dismissal of the claims asserted against Bunsee. Those claims, largely based upon the Consumer Fraud Act, N.J.S.A. 56:8-1 to -20, were hinged to the allegation that Bunsee made fraudulent representations about the scope of the work to be performed by RBTE. That was also the fundamental question presented by RBTE's motion for summary judgment. At that time, the judge found there was no disputed question of material fact regarding the scope of the work RBTE promised to perform and all those promises were encompassed by the unambiguous work estimate. In other words, the judge found that the only promises made by Bunsee -- who, as defendant acknowledged in the trial court, was the only person that ever spoke for RBTE in their dealings -- were incorporated in the work estimate. That determination precluded any later contention that Bunsee made other unfulfilled and unenumerated promises. In short, the summary adjudication of RBTE's claim against defendant necessarily barred defendant's fraud claims against Bunsee.

Lastly, we find insufficient merit in any other arguments that may be discerned from defendant's brief to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

 
Affirmed.

Defendant filed a supplemental appendix. Its index listed the items submitted to the trial court on the summary judgment motion, as required by R. 2:6-1(a)(1), but, oddly, neither the appendix nor the supplemental appendix included copies of those items.

Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). We apply the same standard in reviewing a summary judgment. See Liberty Surplus Ins. Corp. v. Nowell Amoroso, P.A., 189 N.J. 436, 445-46 (2007); Spring Creek Holding Co. v. Shinnihon U.S.A. Co., 399 N.J. Super. 158, 180-81 (App. Div.), certif. denied, 196 N.J. 85 (2008).

The record on appeal contains five orders entered by another judge between November 16, 2007 and July 18, 2008, which variously entered and vacated defaults entered against defendant. We can reach no safe conclusion as to the status of defendant's pleadings as the result of the last of these orders.

Even if we entertain the notion that the third-party action against Bunsee constitutes a separate suit, we note there is no evidence to suggest that those claims were ever dismissed with prejudice. Because we have held that the entire controversy doctrine does not bar a subsequent lawsuit if the earlier claim regarding the same factual controversy was dismissed without prejudice, see Arena v. Borough of Jamesburg, 309 N.J. Super. 106, 111 (App. Div. 1998), there would have been no impediment to defendant's assertion of her claims against Bunsee in a separate lawsuit.

For the same reasons, we reject RBTE's argument that the appeal is untimely insofar as it seeks review of the October 24, 2008 summary judgment. That order was not rendered final until there was a final disposition of the remaining unadjudicated claims against Bunsee.

Moreover, the Consumer Fraud Act is not implicated when a promise is made but not fulfilled. As a general matter, such an event gives rise only to a contractual claim absent proof that the promisor made the representation knowing at the time that it could not or would not be fulfilled. Barry v. N.J. Highway Auth., 245 N.J. Super. 302, 310 (Ch. Div. 1990). The record does not support a claim that Bunsee made a promise that was not contained in the written estimate let alone a promise that he knew would not be fulfilled.

(continued)

(continued)

2

A-3298-08T2

April 12, 2010