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Shore Mechanical Contractors, Inc. v. W.G. Osborne Construction

September 8, 2008


On appeal from Superior Court of New Jersey, Law Division, Special Civil Part, Cape May County, Docket No. DC-0439-07.

Per curiam.


Submitted August 26, 2008

Before Judges Lisa and Simonelli.

In this breach of contract action, plaintiff Shore Mechanical Contractors, Inc. appeals from that portion of the October 30, 2007 order denying summary judgment on its claim for interest, attorney's fees and costs pursuant to the Prompt Payment Act (the Act), N.J.S.A. 2A:30A-1 and -2.

The facts are from the record submitted by plaintiff in support of the summary judgment motion, viewed in a light most favorable to plaintiff. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 523 (1995).*fn1 Defendant W.W.W. Rental Group, L.L.C. (WWW)*fn2 hired defendants W.G. Osborne Construction, L.L.C. and William G. Osborne (collectively "Osborne")*fn3 as general contractors to construct two residential units at 233 E. Taylor Avenue, Wildwood. On September 1, 2006, Osborne entered into a sub-contract with plaintiff for the installation of air-conditioning systems in the units at a cost of $9800. The contract provided that payment would be "[d]ue upon completion [of the work.]" Plaintiff completed the work and sent Osborne an invoice, dated November 11, 2006. Obsorne never paid the invoice.

Plaintiff filed a summary judgment motion for full payment under the contract, plus interest, attorney's fees and costs pursuant to the Act. Without making any oral or written findings as required by Rule 1:7-4(a), the trial judge granted the motion as to the amount of the contract, but denied it as to interest, attorney's fees and costs. The judge noted on the order that "[N.J.S.A.] 2A:30A-2 is not applicable to this contract."

It is of great concern to us that the motion judge failed to make written or oral findings of fact and conclusions of law. Normally, under these circumstances, we would reverse and remand the matter to the motion judge to make such findings. However, Rule 2:10-5 permits us to "exercise such original jurisdiction as is necessary to complete determination of any matter on review[,]" to avoid "perpetual litigation." Accardi v. Accardi, 369 N.J. Super. 75, 91-92 (App. Div. 2004). Furthermore, we will exercise our original fact-finding jurisdiction where, as here, "the record is so clear and complete," and the claim is wholly without merit. Huster v. Huster, 64 N.J. Super. 29, 34 (App. Div. 1960); see also Ladenheim v. Klein, 330 N.J. Super. 219, 224 (App. Div. 2000) (remand would be pointless where the record could support only one factual conclusion). We, therefore, exercise original jurisdiction and address the merits of the summary judgment motion.

We use the standard the trial court uses in deciding a summary judgment motion. Bressman v. Gash, 131 N.J. 517, 528-29 (1993); Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). Summary judgment must be granted if "the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law." R. 4:46-2(c); Brill, supra, 142 N.J. at 528-29. "When the evidence 'is so one-sided that one party must prevail as a matter of law,' (citation omitted) the trial court should not hesitate to grant summary judgment." Brill, supra, 142 N.J. at 533. With these standards in mind, we review the judge's ruling.

The Act became effective September 1, 2006, but did not apply to contracts entered into before that date. N.J.S.A. 2A:30A-2b provides, in relevant part:

If a subcontractor . . . has performed in accordance with the provisions of its contract with the prime contractor . . . and the work has been accepted by the owner, . . . , or the prime contractor, . . ., and the parties have not otherwise agreed in writing, the prime contractor shall pay to its subcontractor . . . within 10 calendar days of the receipt of each periodic payment, final payment, . . . the full amount received for the work of the subcontractor . . . based on the work completed or the services rendered under the applicable contract.

N.J.S.A. 2A:30A-2c provides, in relevant part:

If a payment due pursuant to the provisions of this section is not made in a timely manner, the delinquent party shall be liable for the amount of money owed under the contract, plus ...

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