On appeal from the Superior Court of New Jersey, Law Division, Cape May County, Docket No. L-84-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Cuff, Fisher and Baxter.
In the wake of one contractor leaving the job site, plaintiff Jacqueline Grendysa contracted with defendant Roseworth Construction for the completion of construction of two residential townhouse units on her property in Wildwood Crest.
Roseworth began work in March 2004, but left the job site on June 24, 2004, when plaintiff failed to make certain interim payments required by the contract, and later filed a construction lien on the property.
On November 17, 2004, plaintiff commenced this action in the Chancery Division against Roseworth and defendant James Roberts, whom she alleged was Roseworth's "owner, operator and/or proprietor." Her complaint sought the discharge of Roseworth's lien; she also pled negligence and breach of contract claims. Defendants filed a counterclaim, alleging plaintiff's breach of the construction contract and plaintiff's alleged "intentional and outrageous conduct" in entering into a contract she had no intention to perform.
The Chancery judge discharged the lien by order entered on January 28, 2005, finding that Roseworth had failed to take the necessary steps to perfect it. In his written decision, the Chancery judge indicated "that the discharge of the lien claim is, of course, without prejudice to [Roseworth's] ability to seek recovery of any sums claimed to be due from [p]laintiff." The action was transferred to the Law Division on February 10, 2005.
The parties thereafter engaged in discovery on the remaining claims. Interrogatories were exchanged and answered; depositions were taken.
On December 6, 2006--after the case had marked its second anniversary, after discovery was completed and after a date for mandatory arbitration had been fixed--plaintiff's attorney withdrew from the action. Plaintiff, through her new attorney, then moved for leave to file an amended complaint, which, for the first time, would assert new claims, including claims based on the Consumer Fraud Act, N.J.S.A. 56:8-1 to-20, against Roseworth, Roberts and a proposed new party, Sturdy Savings Bank. That motion was denied on January 5, 2007.
The action was later tried to a jury over the course of four days. At its conclusion, the jury rendered a verdict in favor of Roseworth on its breach of contract claim, and awarded Roseworth $100,000. The judge denied plaintiff's subsequent motion for a new trial, but reduced the damage award to the amount of damages actually incurred by Roseworth, $66,372.40. While pressing the contention that a new trial was warranted, plaintiff's counsel also conceded that the reduction of the award was preferable to a retrial, saying at the time: "I don't want to try the case again. I think that a remittitur is a fine way to dispense with having to try the case again...."
Plaintiff appealed, arguing that the trial judge: (1) erred in denying the motion to amend the complaint both prior to and at the conclusion of the trial; (2) mistakenly denied plaintiff's motion for a new trial; and (3) made erroneous rulings during trial, including, among others, (a) permitting Roseworth's claim of lost profits, (b) barring admission of evidence of Roseworth's debt to a non-party, and (c) limiting the scope of plaintiff's expert's testimony.
In her first point, plaintiff asserts that the trial judge abused his discretion in refusing to permit an amendment of the complaint. In arguing that the judge erred, plaintiff invokes the standard applicable to such motions, i.e., that leave "shall be freely given in the interest of justice." R. 4:9-1. Despite this liberal standard, amendments are not to be permitted merely upon request. The matter ultimately rests with the trial judge's sound discretion, Kernan v. One Washington Park Urban Renewal Assocs., 154 N.J. 437, 456-57 (1998); Balthazar v. Atlantic City Med. Ctr., 358 N.J. Super. 13, 27 (App. Div.), certif. denied, 177 N.J. 221 (2003), and tardy applications should be denied when they visit undue prejudice on the parties or hamper the efficient administration of justice, Notte v. Merchants Mut. Ins. Co., 185 N.J. 490, 500-01 (2006); Zacharias v. Whatman PLC, 345 N.J. Super. 218, 226 (App. Div. 2001), certif. denied, 171 N.J. 444 (2002). On review, the trial judge's determination will not be disturbed unless it constitutes a "clear abuse of discretion." Salitan v. Magnus, 28 N.J. 20, 26 (1958).
Here, although plaintiff has not included in her appendiX copies of the papers submitted in support of the motion to amend the complaint, we assume, as stated by the trial judge in his written opinion, that plaintiff claimed the amendment was based upon facts not known when the complaint was originally filed but which came to light during discovery. To convince us that the judge's decision to deny the amendment at that late date was an abuse of discretion, it was incumbent upon plaintiff to demonstrate what she learned for the first time in discovery and when she learned it. The record on appeal, however, provides no illumination of these important considerations. As we have observed, plaintiff not only failed to include in her appendix her moving papers, but she also failed to include the proposed amended complaint, which might have revealed some information on these points or the nature of these new claims. As a result, we cannot gauge the significance of the new information that plaintiff sought to utilize in asserting her consumer fraud claims, nor can we ascertain the true extent to which she was late in asserting those claims. In short, we cannot ...