Before Judges Stern, Kestin and Wefing.
The opinion of the court was delivered by: Kestin, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
On appeal from the Superior Court of New Jersey, Law Division, Civil Part, Sussex County.
Plaintiffs appeal from the trial court's order entered during a jury trial at the close of plaintiffs' case, granting defendant's motion to dismiss the complaint on entire controversy grounds. We reverse and remand for a new trial.
We are obliged, as the trial court was, to view the operative facts of the matter, to the extent they are in dispute, in the light most favorable to plaintiffs, the respondents on the motion to dismiss. Dolson v. Anastasia, 55 N.J. 2, 5 (1969).
The controversy between the parties traces back to April 1992, when defendant, Kevin Schmidt, retained plaintiff Shawn Aikens to paint a model home which Schmidt's corporation had built. The painting was completed in July 1992 and Aikens was paid $2500, one dollar per square foot, as had been agreed. The parties then agreed that Aikens would paint a second model home for the same price. That job was completed in late September or early October. No payments were made on account of the latter project, nor did Schmidt indicate any dissatisfaction with the work. Aikens sent Schmidt repeated bills for his work and made a number of telephone calls seeking payment.
On April 20, 1993, Aikens was painting another house in the area and saw Schmidt's truck arrive at a model home nearby. Aikens walked over and demanded payment of his unpaid bill. Schmidt refused. The parties' versions of what transpired during the exchange differed greatly; however, there appears to be no question that their conversation was marked by anger on both sides. According to Aikens, after Schmidt displayed disdain for Aikens's demands and refused payment without giving any reason based on the quality of the work performed, Aikens said he would sue for the amount due, and he returned to the work he was doing on the neighboring home. According to Schmidt, Aikens made threats and engaged in other conduct that motivated Schmidt to report their confrontation to the police.
A short time later that day, while he continued to paint the neighboring home, Aikens received a series of three visits from Vernon Township police officers who had questions concerning his conduct in the conversation with Schmidt. About three months later, Aikens was summoned to the Newton barracks of the New Jersey State Police. Upon arriving, he was searched, taken into custody, and held in a cell for more than two hours, during which time he was fingerprinted and photographed. He was charged with disorderly persons simple assault (N.J.S.A. 2C:12-1a(1)), petty disorderly persons criminal trespass (N.J.S.A. 2C:18-3), disorderly persons theft (N.J.S.A. 2C:20-3; see also N.J.S.A. 2C:20-2b(3)), and terroristic threat, a third degree crime (N.J.S.A. 2C:12-3a), all allegedly committed on April 20, l993.
After considerable back-and-forth communication between attorneys for the parties over the matters in dispute, the charges were eventually tried in the Vernon Township Municipal Court on May 24, 1994. Aikens was found not guilty as to all. He asserts that all of the charges except for theft were dismissed on motion at the close of the State's case, and that the theft charge was dismissed after all the proofs were heard.
Two days after the acquittal, on May 26, 1994, Aikens filed a four- count "complaint on contract" in the Special Civil Part of the Law Division against Schmidt and his corporation alleging an agreement for the painting of two homes, and a balance due of $2500 plus interest, costs and attorneys fees. That case was settled on September 16, 1994, with the payment of $2500.
The instant suit was filed on August 25, 1995. Aikens sought damages against Schmidt and his corporation *fn1 for false arrest, malicious prosecution, and intentional infliction of emotional distress. Plaintiff Roseanne Aikens sued per quod. Issue was joined with the filing of the answer on December 4, 1995. The answer denied liability as to the first two counts of the complaint, false arrest and malicious prosecution, but did not specifically address the emotional distress or per quod claims. It recited seven separate defenses, none of which invoked the entire controversy doctrine.
The first mention of the entire controversy doctrine during the pendency of the case occurred in trial at the close of plaintiffs' proofs when defendant moved to dismiss the complaint on that basis. The gravamen of the argument, supported by a memorandum of law that had been submitted, was that plaintiffs were required to have prosecuted their tort claims at the same time as Aikens pursued his contract claim; and that, having failed to do so, they were precluded from suing in tort at a later time. Plaintiffs argued, inter alia, as they do on appeal, that because defendant had not pled the entire controversy doctrine as an affirmative defense he was barred from arguing its application at the time of trial. Plaintiffs emphasize in their argument on appeal that there had been ample pre-trial opportunities in status conferences and motion practice for defendant to raise the issue well in advance of trial.
After considering the parties' arguments and evaluating the issues, the trial court granted defendant's motion and dismissed the case on entire controversy grounds. Beginning her oral opinion with references to a seminal case, Cogdell v. Hospital Center at Orange, 116 N.J. 7 (1989), and to Cafferata v. Peyser, 251 N.J. Super. 256 (App. Div. 1991), the trial judge noted that the entire controversy doctrine was "designed to achieve economy in litigation by avoiding the waste, inefficiency, delay and expense of piecemeal and fragment[ed] litigation," and referred to "its equitable nature and concept ... that's predicated on judicial fairness," stating that "it will be invoked in that spirit." The judge ...