Thisopinion shall not "constitute precedent or be binding upon any court Although it is posted on the internet, this opinion is binding only on the WALLACE BROS., INC v. EAST BRUNSWICK BOARD OF EDUCATION

NOT FOR PUBLICATION WITHOUT THE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.


                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-1432-15T3


WALLACE BROS., INC.,

        Plaintiff-Respondent,

v.

EAST BRUNSWICK BOARD OF
EDUCATION,

     Defendant-Appellant.
______________________________

              Argued October 11, 2017 – Decided November 9, 2017

              Before Judges Fuentes, Koblitz and Manahan.

              On appeal from Superior Court of New Jersey,
              Law Division, Middlesex County, Docket No. L-
              1605-14.

              Anthony P. Seijas argued the cause for
              appellant (Cleary Giacobbe Alfieri Jacobs,
              LLC, attorneys; Mr. Seijas, of counsel;
              Jessica V. Henry, on the briefs).

              Gerard J. Onorata argued the cause for
              respondent (Peckar & Abramson, PC, attorneys;
              Mr. Onorata and Patrick T. Murray on the
              brief).


PER CURIAM
      Defendant East Brunswick Board of Education appeals from the

April 24, 2015 order granting summary judgment on the unpaid

portion of a Contract to plaintiff Wallace Bros. Inc.1          The Board

contracted with Wallace to provide general construction at the New

Memorial School in East Brunswick (project).          The total value of

the   contract   was   $18,233,000,   plus   any   additional   costs   for

unanticipated     work.    The   Board    paid   Wallace   $19,713,664.11.

Although the school had been in use for two years, the Board did

not make the last payment of $366,130.26.            Wallace claimed the

Board did not deliver a "final" punch list indicating additional

work to be done until after the litigation ensued.              The Board

claims several punch lists were provided going as far back as

April 2013.      The parties dispute whether these punch lists were

provided to Wallace.

      The trial judge determined that the Board waited too long to

register dissatisfaction with the completion of the project, and

then belatedly provided a final punch list that was maintenance-

related and substantively separate from the contract.           We reverse

the grant of summary judgment because material facts are in dispute

and the Board is entitled to a trial on the issue of whether the


1
  Although the Board's appeal originally sought review of two
orders, the appeal of the October 23, 2015 order granting delay
damages was resolved by way of a stipulation of dismissal.



                                      2                           A-1432-15T3
contract was fully completed and the last payment due in its

entirety.2

      The Board's architect signed two Certificates of Substantial

Completion, one on November 9, 2012 and the second on October 3,

2013, both of which struck out the following language:

             A list of items to be completed or corrected
             is attached hereto.   The failure to include
             any items on such list does not alter the
             responsibility of the Contractor to complete
             all   Work   in  accordance   with  Contract
             Documents.

      The meaning of the striking of this language is not clear.

The   architect     certified   that   "the   stricken     language    merely

indicated, in my opinion, that the punch lists were not attached

thereto."      Wallace contends the architect's signature on the

documents    with    the   language    stricken   speaks    for   itself      in

indicating the project was completed.

      The Board argues that the project was not completed in light

of further punch lists.      The Board contends that it served Wallace




2
 Wallace argues that we should not consider the Board's arguments
not raised before the motion court.      To the extent that these
arguments constitute "issues" not raised below, we choose to
consider them in the interest of justice, given that public funds
are at stake. See Nieder v. Royal Indemn. Ins. Co., 
62 N.J. 229,
234 (1973) (noting that although appellate courts ordinarily
should not reach issues that were not presented below, an exception
applies where the issues significantly affect the public
interest).



                                       3                              A-1432-15T3
a punch list in April 2013, well before litigation ensued in March

2014.   The Board solicited price proposals from other contractors

to repair and complete Wallace's work.            Further, the Board's

opposition to the last payment reflected about $56,000 of back

charges3 and approximately $170,000 in liens on the project.            The

contract requires Wallace to refund the lien amounts to the Board.

     Although    the   evidence   was   conflicting,   the   motion   judge

determined that the Board did not submit a "final punch list" to

Wallace until January 2015, and "[f]airness dictates that this

punch list should be rejected as it was not submitted with the

Certificates of Substantial Completion and the Project has been

occupied for two years."     The contract provides in paragraph 9.9.3

that "Partial occupancy or use of a portion or portions of the

Work shall not constitute acceptance of Work not complying with

the requirements of the Contract Documents."

     We review a grant of summary judgment de novo, applying the

same standard governing the trial court under Rule 4:46-2(c).

Liberty Surplus Ins. Corp. v. Nowell Amoroso, P.A., 
189 N.J. 436,

445-46 (2007).    Generally, the court must "consider whether the




3
   A back charge is a "charge against a contract in the form of a
credit change order to a contractor for the cost of having others
perform   portions    of   their   contract."      Back   charge,
DictionaryofConstruction.com,
http://www.dictionaryofconstruction.com/definition/backcharge.ht
ml (last visited Oct. 24, 2017).
                                    4                             A-1432-15T3
competent evidential materials presented, when viewed in the light

most favorable to the non-moving party, are sufficient to permit

a rational factfinder to resolve the alleged disputed issue in

favor of the non-moving party."         Brill v. Guardian Life Ins. Co.

of Am., 
142 N.J. 520, 540 (1995); see also R. 4:46-2(c).

     The Board argues that the motion judge disregarded material

disputes of fact.      First, it argues that required "closeout

documentation" remains missing, despite a contractual obligation

to provide these documents prior to payment on the contract

balance.   The Board describes these documents as the proof of

payment of all vendors, proof of insurance, subcontractor waivers,

recorded   drawings,   proof   of   tests   and   inspections,   and    the

maintenance package containing manufacturers' warranties.

     The motion judge, referring to the Board, stated:

           When you let so much time go by and you're
           holding up their money and then you say, oh
           you got to do all these things and there's no
           way of telling – most of them look like
           maintenance things that would occur in the
           ordinary course of using the premises, but
           basically it sounds like you're holding their
           money hostage to make them come and do repairs
           that they would not have been called upon to
           do.

     A "punch list status report" dated April 2013 lists close to

three hundred items that had yet to be completed.                The list

reflects that it was revised in August 2013, October 2014 and

November 2014, when some of the items were crossed off.                 The

                                    5                             A-1432-15T3
architect refers to this list as the "Final Punch List."               Examples

from the list that were not crossed off include: caulking all

exposed steel, removing "stub conduit," touching up paint on a

door frame, repairing a damaged wall, installing the vinyl base

at    a    casework    counter,    removing   paint   from   an   entry     frame,

installing a "backer rod," patching bolts at a side-court basket,

sanding and painting "hose bibbs," replacing crumbling grout, and

installing concrete floor sealer.

          According to the November 2014 punch list, $163,890 worth of

work remained.         Also still outstanding was the Board architect's

issuance of a "final Certificate for Payment stating that . . .

the Work has been completed in accordance with . . . the Contract

[and] the entire balance . . . is due and payable" as required in

paragraph 9.10.1 of the contract.             The contract requires "strict

and entire conformity" by Wallace.

          A trial court's legal interpretation of the meaning of a

contract is subject to de novo appellate review.                  Fastenberg v.

Prudential Ins. Co. of Am., 
309 N.J. Super. 415, 420 (App. Div.

1998).       In Dunkin' Donuts of Am., Inc. v. Middleton Donut Corp.,


100 N.J. 166 (1985), the trial court "fashioned its own remedy on

the       basis   of   equitable   considerations,"     believing     that      the

contract would result in an "inappropriate windfall."                Ibid.




                                        6                                 A-1432-15T3
      Our   Supreme   Court   reversed,   stating:   "Equitable     relief

cannot be claimed because a contract is oppressive, improvident,

or unprofitable, or because it produces hardship."         Id. at 183-

84.   The contract does not require that the last payment be made

within a set period of time.        Material factual disputes remain

regarding whether Wallace fully completed the contract.

      Reversed and remanded for further proceedings.         We do not

retain jurisdiction.




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