JENNIFER HOCKENJOS v. PETERSON STAEGER, INC

NOT FOR PUBLICATION WITHOUT THE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-5138-16T3

JENNIFER HOCKENJOS,

          Plaintiff-Appellant,

v.

PETERSON & STAEGER, INC.,

          Defendant,

and

JAMES PETNER,

          Defendant/Third-Party
          Plaintiff-Respondent,

v.

F&A GENERAL CONSTRUCTION, LLC,
and MARIO NAWROCKI,

     Third-Party Defendants.
____________________________________

                    Argued telephonically October 18, 2018 –
                    Decided October 31, 2018

                    Before Judges Koblitz, Currier, and Mayer.
             On appeal from Superior Court of New Jersey, Law
             Division, Middlesex County, Docket No. L-6011-15.

             Vahbiz Karanjia argued the cause for appellant (Epstein
             Ostrove, LLC, attorneys; Elliot D. Ostrove, on the
             briefs).

             Robert J. MacNiven argued the cause for respondent
             (Shamy, Shipers & Lonski, PC, attorneys; Robert J.
             MacNiven, on the brief).

PER CURIAM

       Plaintiff Jennifer Hockenjos appeals from a March 27, 2017 order

dismissing her complaint against defendants Peterson & Staeger, Inc. (P&S) 1

and James Petner 2 as barred by the entire controversy doctrine (ECD) because

plaintiff filed similar claims against a different construction contractor arising

from the same transactional facts. We affirm.

       Plaintiff owns a home in Sayreville, which suffered significant damage

during Superstorm Sandy.       In December 2012, plaintiff hired third-party

defendant F&A General Construction, LLC (F&A) to repair her home. F&A



1
  After plaintiff filed this appeal, P&S petitioned for bankruptcy. By order dated
October 20, 2017, we dismissed the appeal against P&S without prejudice until
the conclusion of the bankruptcy proceedings. Plaintiff has elected to proceed
solely against James Petner.
2
    Petner was the general manager for P&S and a principal of the corporation.
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gutted plaintiff's home, removed kitchen cabinetry, fitted siding, and installed

sub-flooring, two exterior doors, and insulation.      F&A requested additional

money from plaintiff to continue the repairs. Plaintiff refused to pay further

sums to F&A because she was dissatisfied with the quality of the work.

Consequently, F&A walked off the job prior to April 2013.

      On April 2, 2013, plaintiff subsequently hired P&S to repair her home.

The work done by P&S included interior sheetrocking, spackling, painting, and

installation of moldings, casings, interior doors, cabinets, plumbing and

bathroom fixtures. P&S completed its work in May 2013.

      In July 2013, plaintiff sued F&A for improper construction work and

violations of the Consumer Fraud Act,  N.J.S.A. 56:8-1 to -198 (CFA) (F&A

litigation). Plaintiff did not name P&S or Petner in the F&A litigation.

      The parties in the F&A litigation exchanged discovery.           During her

deposition in the F&A litigation, conducted on February 10, 2015, plaintiff

articulated her dissatisfaction with the work done by P&S. F&A’s attorney

asked plaintiff why she did not name P&S as a defendant in the F&A litigation.

Plaintiff's counsel instructed plaintiff not to answer the question.

      Plaintiff also described the construction work performed by F&A and

P&S. Plaintiff testified F&A and P&S were hired to perform the same work,


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"to put [her] house back to the way it was before the storm." Later in the

deposition, plaintiff retracted her initial statement and stated "[w]hat [P&S]

came in to do had nothing to do what F&A did."

      Petner testified in a deposition on behalf of plaintiff in the F&A litigation.

At the time of his deposition, Petner had no indication plaintiff was dissatisfied

with the work performed by P&S and he was not supplied a copy of plaintiff's

deposition.

      Two years after filing suit, plaintiff settled the F&A litigation and released

all claims against F&A. The release held F&A harmless for claims arising from

work on plaintiff’s home.

      Five days after resolving her claims in the F&A litigation, plaintiff filed

suit against P&S and Petner, claiming violations of the CFA related to their work

on her home (P&S litigation). In addition to the CFA claims, plaintiff alleged

the work done by P&S was defective. P&S and Petner filed a third-party

complaint against F&A, seeking indemnification and contribution for any

damage to plaintiff’s home.

      F&A moved to dismiss the third-party complaint in the P&S litigation.

The judge denied the motion without prejudice, allowing further discovery.

Following the completion of discovery in the P&S litigation, F&A renewed its


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motion. In or around the same time, P&S and Petner moved to dismiss the P&S

litigation. Because discovery had concluded, and the parties relied on materials

outside the pleadings, the applications were treated as motions for summary

judgment. Plaintiff opposed the motions.

      F&A and P&S asserted the ECD barred plaintiff’s claims in the P&S

litigation because her claims arose from the same transaction as her claims in

the F&A litigation. F&A also claimed the third-party complaint in the P&S

litigation should be dismissed because P&S and Petner could not recover against

F&A based on the signed release in the F&A litigation.

      The judge granted defendants' motions, and dismissed plaintiff’s claims

in the P&S litigation with prejudice. The judge found the ECD barred plaintiff’s

subsequent claims against P&S and Petner. The judge concluded the P&S

litigation was a successive action because plaintiff previously filed similar

claims against F&A arising from the same facts. The judge also determined all

defendants would be substantially prejudiced if plaintiff were allowed to

proceed with the P&S litigation.

      On appeal, plaintiff claims the judge's dismissal of her complaint in the

P&S litigation was improper because the ECD is inapplicable, her complaint in




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the P&S litigation was not a successive action, and P&S and Petner would not

be substantially prejudiced if the P&S litigation proceeded.

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

standard as the trial court. Henry v. N.J. Dep't of Human Servs.,  204 N.J. 320,

330 (2010). Summary judgment must be granted if "the pleadings, depositions,

answers to interrogatories and admissions on file, together with the affidavits, if

any, show that 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); see also Brill v. Guardian Life Ins. Co. of Am.,  142 N.J. 520, 540

(1995). The "trial court's interpretation of the law and the legal consequences

that flow from established facts are not entitled to any special deference." Estate

of Hanges v. Metro. Prop. & Cas. Ins. Co.,  202 N.J. 369, 382 (2010) (quoting

Manalapan Realty, L.P. v. Twp. Comm. of Manalapan,  140 N.J. 366, 378

(1995)).

      The ECD, codified in Rule 4:30A, requires the parties to an action raise

all transactionally-related claims in that action.     See Pressler & Verniero,

Current N.J. Court Rules, cmt. 1 on R. 4:30A (2019). "Underlying the [ECD]

are the twin goals of ensuring fairness to parties and achieving economy of

judicial resources." Kent Motor Cars, Inc. v. Reynolds & Reynolds, Co., 207


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                                         6 N.J. 428, 443 (2011). The ECD "embodies the principle that the adjudication of

a legal controversy should occur in one litigation in only one court; accordingly,

all parties involved in a litigation should at the very least present in that

proceeding all of their claims and defenses that are related to the underlying

controversy." Wadeer v. N.J. Mfrs. Inc. Co.,  220 N.J. 591, 605 (2015) (quoting

Highland Lakes Country Club & Cmty. Ass'n v. Nicastro,  201 N.J. 123, 125

(2009)). The goals of the ECD include "(1) the need for complete and final

disposition through the avoidance of piecemeal decisions; (2) fairness to parties

to the action and those with a material interest in the action; and (3) efficiency

and the avoidance of waste and the reduction of delay." Wadeer,  220 N.J. at
 605 (quoting DiTrolio v. Antiles,  142 N.J. 253, 267 (1995)).

      Rule 4:30A provides "[n]on-joinder of claims required to be joined by the

[ECD] shall result in the preclusion of the omitted claims to the extent required

by the [ECD] . . . ." "In determining whether a subsequent claim should be barred

under [the ECD], 'the central consideration is whether the claims against the

different parties arise from related facts or the same transaction or series of

transactions.'" Wadeer,  220 N.J. at 605 (quoting DiTrolio,  142 N.J. at 267). In

applying the ECD, fairness and a reasonable opportunity to litigate must be




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accorded to the party whose claim is sought to be barred. Gelber v. Zito P'ship,

 147 N.J. 561, 565 (1997).

      Here, the judge correctly determined plaintiff's claims in the P&S

litigation were barred by the ECD. The claims in the F&A litigation and the

P&S litigation arose from the same factual transaction; specifically, plaintiff

hired both F&A and P&S to restore her home. Plaintiff, despite her awareness

of claims against P&S when she filed the F&A litigation, elected not to name

P&S or Petner as parties in that earlier filed action.3 The joinder of P&S and

Petner in the F&A litigation would have ensured a comprehensive, just, and

conclusive disposition of the entire controversy in one legal action and would

have promoted fairness to all parties. Thus, plaintiff's failure to join P&S and

Petner in the F&A litigation warrants dismissal of her claims in the P&S

litigation.

         Based on our review of the record, we are satisfied plaintiff could have

joined all claims and all parties related to her home repair in the F&A litigation.

In the F&A litigation, plaintiff expressed her awareness of claims against P&S


3
   P&S and Petner suffered prejudice as a result. First, Petner and P&S would
likely be barred from seeking contribution from F&A based on the release in the
F&A litigation. In addition, based on the passage of time, P&S and Petner are
likely unable to prove the claimed defective work was attributable to other
contractors who repaired plaintiff's home.
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and Petner. Plaintiff made a tactical decision to litigate her claims against F&A

solely in the F&A litigation, without including her claims against P&S and

Petner. Thus, the P&S litigation represents an improper attempt to litigate

claims plaintiff should have presented as part of the F&A litigation, and the ECD

barred plaintiff's claims in the P&S litigation.

      Affirmed.




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