May 29, 2007
RICHARD A. PULASKI CONSTRUCTION CO., INC., PLAINTIFF-RESPONDENT,
AIR FRAME HANGARS, INC., DEFENDANT, AND BRUCE W. RITTERSON*FN1 , THIRD-PARTY DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-2320-99.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 1, 2007
Before Judges Kestin and Weissbard.
Defendant, Bruce W. Ritterson, appeals from a judgment in the amount of $144,356 in favor of plaintiff, Richard A. Pulaski Construction Co., Inc., following a bench trial before Judge Jacobson. We affirm.
The trial, which took place over three days in February 2006, followed an earlier appeal by plaintiff after its fraud claim against defendant was dismissed. In an unpublished opinion filed July 22, 2003, we affirmed the dismissal of the fraud cause of action but remanded for trial on plaintiff's alternate theory of "prima facie tort." After hearing the testimony, including that of defendant and plaintiff's principal, and summations of counsel, Judge Jacobson rendered a detailed oral opinion in which she made findings of fact, including credibility assessments, and reached conclusions of law. She concluded that plaintiff had established the elements of "the unusual, extraordinary remedy of a prima facie tort." She assessed damages in the amount of $105,932, to which interest in the amount of $19,155 and counsel fees of $20,269.01 were added to constitute the final judgment.
After denial of his motion for a new trial, defendant appeals, raising the following arguments:
I. THE TRIAL COURT ERRED AS A MATTER OF LAW IN ITS FINDING THAT DEFENDANT RITTERSON WAS PERSONALLY LIABLE FOR PRIMA FACIE TORT AGAINST PLAINTIFF PULASKI CONSTRUCTION BECAUSE THE TRIAL COURT'S FINDING TURNS A FORFEITED CONSTRUCTION LIEN CLAIM INTO A TORT AGAINST AN INDIVIDUAL.
A. THE TRIAL COURT ERRED IN ITS FINDING FOR PRIMA FACIE TORT AGAINST THE DEFENDANT BECAUSE THE ELEMENTS OF PRIMA FACIE TORT ARE NOT MET.
1. The theory of prima facie tort encompasses harms that fall within gaps in the law and there are no gaps in construction lien law; rather, the law is clear and unambiguous that the burden was on Plaintiff to protect its claim.
2. The trial court missed the fact that construction lien claims go against the real property, not an individual or an entity.
3. The law has clear steps that Plaintiff should have taken to secure its claim against the property that Plaintiff simply never followed.
4. There was no intentional, willful and malicious harm committed by Defendant, and if there was harm, it was against third parties, which does not create liability for prima facie tort.
5. Plaintiff's allegations of criminal behavior are gross misinterpretations of the law.
6. The trial court erred when it gave weight to Buyers' testimony because the proposed actions of the Buyers would have been wrong under the law.
7. Even if the finding for prima facie tort was correct the trial court erred in accepting Plaintiff's legal argument in favor of finding damages for prima facie tort in the amount of the construction lien as there is no relation to any of the so-called intentional harm to the amount of work and services for real property.
B. THE TRIAL COURT ERRED AS A MATTER OF PUBLIC POLICY IN FINDING THAT A PRIMA FACIE TORT OCCURRED BECAUSE PRIMA FACIE TORT AS A MATTER OF PUBLIC POLICY SHOULD NOT BE A REMEDY FOR A CONSTRUCTION LIEN CLAIMANT WHO FORFEITS ITS RIGHT TO A LIEN CLAIM UNDER THE CONSTRUCTION LIEN STATUTE.
II. THE TRIAL COURT ERRED WHEN IT DENIED DEFENDANT'S MOTION FOR A NEW TRIAL BECAUSE THE STANDARD OF REVIEW IS WHETHER THERE IS CLEAR AND CONVINCING EVIDENCE THAT A MISCARRIAGE OF JUSTICE OCCURRED, AND THERE IS A MISCARRIAGE OF JUSTICE CLEARLY AND CONVINCINGLY WHEN A RULE OF PROFESSIONAL CONDUCT IS IGNORED THAT RESULTS IN HARM TO DEFENDANT.
Having reviewed the record in light of applicable law, we conclude that defendant's arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). Judge Jacobson's findings of fact are supported by substantial evidence which she found to be credible. Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 483-84 (1974); R. 2:11-3(e)(1)(A). Her legal conclusions as to the demonstration of a prima facie tort are likewise supported by the record. See Taylor v. Metzger, 152 N.J. 490 (1998); Restatement (Second) of Torts § 870 (1979). In denying defendant's motion for a new trial, the judge again commented adversely on defendant's credibility, as she had in rendering her verdict. The judge noted that her "feel of the case . . . was that [defendant] could not be trusted." As a result, she said, "He has to accept the consequences of his own actions, and his own lies." The judge properly rejected defendant's argument, raised again on this appeal, that sought to blame his trial counsel for the adverse verdict based on a purported conflict of interest.