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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
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 In an unpublished opinion filed July 22, 2003, we affirmed the dismissal of the fraud cause of action but remanded for trial on plaintiff's alternate theory of "prima facie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 ...