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Trumbetti Construction, Inc. v. Washington Pond Homeowners Association

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


July 24, 2007

TRUMBETTI CONSTRUCTION, INC., PLAINTIFF-APPELLANT,
v.
WASHINGTON POND HOMEOWNERS ASSOCIATION, DEFENDANT, AND WILKIN MANAGEMENT GROUP, INC., DEFENDANT-RESPONDENT.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. BER-L-3714-05.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted July 3, 2007

Before Judges Parker and Seltzer.

Plaintiff Trumbetti Construction, Inc., appeals from an order entered on July 14, 2006 granting summary judgment dismissing the complaint.

The facts pertinent to this appeal are summarized as follows. Defendant Washington Pond Homeowners Association (Association) is a residential condominium association representing the owners of seventy-six condominium units in fifteen buildings. Defendant/third-party plaintiff Wilkin Management Group (WMG) was the management company hired by the Association to serve as its agent and manage the seventy-six-unit condominium complex.

In 2000, a condominium owner became aware of water damage to his unit. The unit owner hired plaintiff privately to remove the siding and exterior walls and install temporary shoring. A number of other unit owners became aware of the same water damage and retained plaintiff to undertake similar repairs on their units.

The unit owners submitted claims to State Farm Insurance Company (State Farm), the insurance carrier for the Association. On October 5, 2001, State Farm extended coverage for repair of any unit that was in a state of immediate collapse. The Association President, Jeri Winston, asked plaintiff if he wanted to be identified as the Association's contractor to repair all of the damaged units. Although they never entered into a written agreement, the Association understood that plaintiff would "perform the work on a unit-by-unit basis, subject [to State Farm's approval of] the precise work to be performed" on each unit "and the amount and timing of [the] payment for [the] work." In October 2001, the Association's newsletter identified plaintiff as "our contractor" for the entire project. According to the Association, it was clear that the work was contingent upon each unit owner's satisfaction with plaintiff's performance and plaintiff's agreement with State Farm for the amount he would be paid for the work on each unit.

In 2002, the unit owners began complaining to the Association's Board of Directors (Board) about plaintiff's work. That Fall, plaintiff had removed the siding and exterior walls of a number of units and covered them with tarpaulins. By winter, the units still had not been repaired. Plaintiff claimed that the work was delayed because it and State Farm were at an impasse concerning its method of billing and the amount of payment sought. Through February and March 2002, little work was done and many of the units remained open and covered with tarpaulins throughout the winter. By April 2002, State Farm and the Association agreed to proceed with a different contractor. Counsel for the Association advised plaintiff that, except for one unit, it was to cease work and submit his final bills to State Farm. State Farm paid plaintiff in excess of $470,000 for the work he did on the units.

Plaintiff filed the complaint on March 25, 2005, alleging that (1) the Association and WMG breached their contract with plaintiff; (2) WMG "committed wrongful and unlawful acts by interfering with [p]laintiff's contract with [the Association] in an attempt to deprive [p]laintiff of the benefit of said contract;" and (3) WMG "wrongfully and without legal justification interfered with [p]laintiff's expectancy of economic benefit."

In July 2006, the parties filed various motions and cross-motions resulting in the order entered on July 14, 2006 dismissing the complaint against the Association and WMG; dismissing the Association's cross-claims against WMG; and dismissing WMG's third-party complaint against individual Board members.

In this appeal, plaintiff argues that (1) the trial court should not have entertained WMG's summary judgment motion because it was filed on June 21, 2006, less than thirty days before the trial date; and (2) the trial court erred in failing to find that WMG "improperly induced [the Association] to terminate plaintiff so that . . . WMG could replace [p]laintiff with . . . Barnabic Construction and reap the economic benefits that [p]laintiff would have realized from the relationship."

We have carefully considered the record in light of plaintiff's arguments and the applicable law. We are satisfied that the trial court properly entertained WMG's cross-motion for summary judgment since plaintiff had adequate notice of the motion, time to respond and the opportunity to raise all of its arguments in opposition to the motion. We are further satisfied that, in its written opinion, the trial court properly weighed the evidential materials presented, concluded that there were no genuine issues of fact to be decided at trial and correctly concluded that the evidence was "so one sided that one party must prevail as a matter of law." Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). The judgment of the trial court is based on findings of fact which are adequately supported by the evidence. R. 2:11-3(e)(1)(A). Accordingly, we affirm substantially for the reasons set forth by Judge Richard J. Donohue in his written opinion dated July 14, 2006.

Affirmed.

20070724

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