On certification to the Superior Court, Appellate Division.
For affirmance Chief Justice Wilentz and Justices Clifford, Handler, Pollock, O'Hern, Garibaldi, and Stein. Opposed -- none. The opinion of the Court was delivered by Pollock, J.
This case raises the question whether a representative of a party that is not a natural person, e.g., a corporation, may be excluded at trial from the courtroom pursuant to a witness-sequestration order. We hold that such a representative may not be so sequestered, but that the sequestration in this case was harmless error.
Although the sole issue before us raises a procedural point, a brief description of the underlying facts will aid comprehension of the case. Sometime in 1986 appellant, Rezultz, Inc. (hereinafter Rezultz), decided to add office and garage space to its existing building in Vineland. An architect prepared a blueprint that was used to obtain bids from contractors. The blueprint showed a concrete building of specified dimensions with a "garage," office space, and a three-hour fire wall to separate the two areas.
One of the bidders was respondent, Morton Buildings, Inc. (hereinafter Morton), which designs, fabricates, and erects prefabricated steel buildings. Morton's representative, Dennis Russum, visited the Rezultz facility and discussed the project with several employees of Rezultz, including Gregory Call, Rezultz's vice president, and Tom Siciliano, its president. Call gave Russum a copy of the blueprint, which Morton used in preparing its bid.
Morton's buildings were made of steel instead of concrete. Consequently, Russum used the architect's blueprint as a guide only to the size and dimensions of the addition. Notwithstanding the deviation, Rezultz accepted Morton's bid of $42,500. The parties signed a contract, which described the addition as
consisting of an office area and "repair shop," not as an office area and "garage" as shown on the blueprint. After the contract had been signed, Morton prepared its own blueprint with no interior details. The blueprint showed the two areas separated by a "partition wall," not a fire wall. Apparently Rezultz did not notice the discrepancy.
Under the basic building code (BOCA Code), which was in effect in Vineland, the difference between a "repair shop" and a "public garage" is significant. A "repair shop" is a storage area to be used for only one vehicle, but an area for the storage of two or more vehicles is a "public garage." A public garage, unlike a repair shop, must be separated from an adjoining office building by a fire wall. At trial, the substantive dispute centered on whether the addition was a repair shop, as the agreement indicated, or a garage, as indicated on Morton's plans.
When Rezultz applied for a building permit, it submitted the Morton blueprint without any additional plans for the interior of the building. Consequently, the Vineland construction office approved the blueprint with a notation "shell only," apparently indicating that the office had not reviewed the interior partition wall.
Morton constructed the addition without a fire wall. Siciliano, on behalf of Rezultz, accepted the building, in writing. The building inspector, however, determined that the garage area was a "public garage" under the building code, and refused to issue a certificate of occupancy. At a cost of $14,235, Rezultz subsequently hired another contractor to remove the wall constructed by Morton and to build the fire wall. Consequently, Rezultz withheld the final payment of $17,000 owed Morton. Morton sued Rezultz for that payment, and Rezultz counterclaimed for breach of warranty and fraud.
The case was tried in the Law Division by the court sitting without a jury. Much of the dispute at trial centered on the terms of the agreement ...