FLEMINGTON SUPPLY CO INC v. NELSON ENTERPRISES

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

FLEMINGTON SUPPLY CO.,

INC.,

Plaintiff-Appellant,

v.

NELSON ENTERPRISES,

Defendant,

and

THE FRANK MCBRIDE CO., INC.,

Defendant-Respondent.

November 20, 2015

Submitted September 16, 2015 Decided

Before Judges Hoffman and Leone.

On appeal from Superior Court of New Jersey, Law Division, Hunterdon County, Docket No. L-294-12.

Scholl, Whittlesey & Gruenberg, LLC, attorneys for appellant (Steven P. Gruenberg, on the briefs).

Connell Foley LLP, attorneys for respondent (Peter J. Smith, of counsel and on the brief; Daniel E. Bonilla, on the brief).

PER CURIAM

Following a bench trial, plaintiff Flemington Supply Co., Inc. (Flemington) appeals from an August 26, 2014 Law Division order dismissing its complaint with prejudice. We affirm.

These are the most pertinent facts drawn from the trial record. Flemington is a mechanical and plumbing supply company. Defendant, The Frank McBride Co., Inc. (McBride), was a mechanical and plumbing contractor. The two companies had a working relationship for decades. In February 2011, McBride invited Flemington to bid on a contract to supply fixtures for a construction project, the Princeton Medical Arts Pavilion. Flemington submitted its bid to McBride, which was thereafter awarded the plumbing subcontract for the project.

In March 2011, Flemington first learned of Nelson Enterprises, Inc., an entity formed to serve as a minority business in the form of a women s business enterprise (WBE). Lynn Nelson was the owner, president, and only employee of Nelson Enterprises. She formed Nelson Enterprises in 2009 "[t]o be a WBE, which is a vendor that purchases material for public jobs." Nelson is also the daughter of Edward Zimmerman, McBride s then-president, and worked as a receptionist for McBride. McBride contacted Flemington and advised that the billing for the project would go through Nelson Enterprises. Flemington obliged.

During the project, upon receiving purchase orders from McBride, Nelson Enterprises would forward the orders to Flemington, which in turn would send invoices to Nelson Enterprises. Flemington never directed invoices to McBride for any purchase orders received from Nelson Enterprises. Upon receipt of the invoices, Nelson would add a three percent mark-up and send the invoices to McBride. Through July 2011, all invoices among all three parties had been received and paid. McBride stopped paying invoices received from Nelson Enterprises around August 2011 and ceased operations in August 2012. Because Nelson Enterprises was not paid, Nelson was unable, in turn, to pay Flemington s invoices. On April 24, 2012, Flemington sued Nelson Enterprises and obtained a default judgment for $25,070.65; however, that judgment was discharged in August 2013, after Nelson Enterprises filed for bankruptcy.

On the same date it filed suit against Nelson Enterprises, Flemington filed a separate suit against McBride seeking payment for other unpaid invoices that were issued for the same project, but in McBride's name. On December 18, 2012, Flemington settled this lawsuit against McBride for $30,000. Both parties executed a general release, which contained language excluding from the release any claim Flemington might have for any other invoices. Flemington accepted the settlement check.

Flemington then sought and was eventually granted leave to amend its complaint in the action it had filed against Nelson Enterprises to add Flemington as a defendant. Flemington asserted claims for damages for the unpaid invoices issued to Nelson Enterprises based on various theories, including guarantee, agency, quantum meruit, unjust enrichment, restitution, and quasi-contract.

The matter proceeded to trial with the court hearing testimony from Mark Lauterback, president of Flemington; Mark Hendrickson, McBride's director of construction; and Lynn Nelson. At the conclusion of the trial, Judge Fred Kumpf rejected Flemington's claims, and dismissed its complaint with prejudice.

On appeal, Flemington argues that the trial court erred in finding that it was not entitled to recovery and rejecting its claims based on quantum meruit, unjust enrichment and quasi-contract. Flemington further argues that the court erred in rejecting its claim that Nelson Enterprises was McBride's agent. We have considered plaintiff's contentions in light of the record and applicable legal principles and conclude they are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We affirm substantially for the reasons expressed in Judge Kumpf's comprehensive twenty-six page opinion issued on March 4, 2011. We make the following additional comments.

On this appeal, we are bound by the judge's factual findings so long as they are supported by sufficient credible evidence. Rova Farms Resort, Inc. v. Inv'rs Ins. Co. of Am., 65 N.J. 474, 484 (1974). "Trial court findings are ordinarily not disturbed unless 'they are so wholly unsupportable as to result in a denial of justice[.]'" Meshinsky v. Nichols Yacht Sales, Inc., 110 N.J. 464, 475 (1988) (quoting Rova Farms, supra, 65 N.J. at 483-84).

In reviewing the trial judge's findings, we owe particular deference to his evaluation of witness credibility. State v. Locurto, 157 N.J. 463, 474 (1999). Having heard the witnesses testify firsthand, the trial judge is in the best position to develop a feel for what happened in this case, including an evaluation of the parties' good faith, or lack thereof. See Rova Farms, supra, 65 N.J. at 483-84; Trusky v. Ford Motor Co., 19 N.J. Super. 100, 104 (App. Div. 1952).

We review the judge's legal interpretations de novo. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995). We apply an abuse of discretion standard to the judge's determination to grant or withhold equitable relief, see Goodyear Tire and Rubber Co. v. Kin Props., Inc., 276 N.J. Super. 96, 106 (App. Div.), certif. denied, 139 N.J. 290 (1994), so long as the decision is consistent with applicable legal principles. See Dunkin' Donuts of Am., Inc. v. Middletown Donut Corp., 100 N.J. 166, 183 (1985).

Applying these principles to the record on appeal, we find sufficient support for Judge Kumpf's conclusion that Flemington is not entitled to recover under theories of quantum meruit, unjust enrichment, or quasi-contract. We also find no basis to disturb the judge's findings that Flemington failed to establish that Nelson Enterprises was merely an agent of McBride.

Unjust enrichment "requires that plaintiff show that it expected remuneration from the defendant at the time it performed or conferred a benefit on defendant . . . ." Iliadis v. Wal-Mart Stores, Inc., 191 N.J. 88, 110 (2007) (quoting VRG Corp. v. GKN Realty Corp., 135 N.J. 539, 554 (1994)). "To recover under a theory of quantum meruit, a plaintiff must establish: (1) the performance of services in good faith, (2) the acceptance of the services by the person to whom they are rendered, [and] (3) an expectation of compensation therefor . . . ." Starkey v. Estate of Nicolaysen, 172 N.J. 60, 68 (2002) (citations and internal quotations omitted). Logically, a plaintiff would have to show it expected compensation from the person sued.

As Judge Kumpf specifically noted, Flemington sued Nelson Enterprises first and then McBride. That, and its invoicing, certainly indicate that Flemington expected to receive payment from Nelson Enterprises.

Like Judge Kumpf, we note that Flemington took no action to protect its interests under the Construction Lien Law, N.J.S.A. 2A:44A-3. As Judge Kumpf explained,

[The] construction lien law was designed to protect suppliers such as Flemington Supply in circumstances such as those that exist here where the supplier is not paid by a subcontractor. Plaintiff Flemington Supply did not avail itself of the statutory procedure and filed no construction lien. Instead, Flemington [S]upply amended the complaint to assert a quasi-contract claim against the company up the chain of contractors . . . .

The parties' remaining appellate arguments do not warrant further discussion in a written opinion. R. 2:11-3(e)(1)(E).

Affirmed.