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R.B. Total Electrical LLC v. Carpenter

April 12, 2010

R.B. TOTAL ELECTRICAL LLC, PLAINTIFF-RESPONDENT,
v.
VERA CARPENTER, DEFENDANT/THIRD-PARTY PLAINTIFF-APPELLANT,
v.
R.B. TOTAL ELECTRICAL LLC AND RISHI BUNSEE, THIRD-PARTY DEFENDANTS-RESPONDENTS.



On appeal from the Superior Court of New Jersey, Law Division, Special Civil Part, Essex County, Docket No. DC-15739-07.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted March 24, 2010

Before Judges Axelrad and Fisher.

In this appeal, we first consider whether the judge erred in granting summary judgment in favor of plaintiff R.B. Total Electrical LLC (RBTE) for the remainder due from defendant Vera Carpenter on a contract that called for RBTE to perform certain electrical work in defendant's commercial establishment. We also examine defendant's argument that the judge erred in dismissing her claims against third-party defendant Rishi Bunsee, RBTE's principal, based on the entire controversy doctrine. We affirm.

The record reveals that defendant engaged RBTE to perform electrical work in her daycare center in Irvington. A written estimate, dated July 26, 2006, described the work RBTE agreed to perform and specified the amount defendant agreed to pay. At that time, defendant paid $6000, with the remainder of $7353.60 due upon completion of the work. When defendant failed to pay the balance, RBTE filed a complaint seeking collection in the Special Civil Part.

RBTE successfully moved for summary judgment. The judge determined that the scope of the work was unambiguously defined by the written estimate and there was no dispute that RBTE had fully performed all the promised work. Accordingly, on October 24, 2008, an order of summary judgment was entered in favor of RBTE in the amount of $7353.60.

The record on appeal also reveals confusion about the status of defendant's responsive pleading, which included a third-party action against a fictitious defendant later identified in an amended pleading as Bunsee and, particularly, its status when RBTE's summary judgment motion was granted. On February 20, 2009, finding defendant failed to assert her claim against Bunsee in a timely fashion, the judge granted Bunsee's dispositive motion and dismissed the claims asserted against him based on the entire controversy doctrine.

Defendant filed this appeal, arguing:

I. THE MOTION JUDGE ERRED IN GRANTING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND DISMISSING DEFENDANT'S COUNTERCLAIM AND THIRD PARTY COMPLAINT AS THERE ARE GENUINE ISSUES OF MATERIAL FACTS.

II. THE COURT BELOW ERRED BY NOT PERMITTING APPELLANT'S COUNTERCLAIM AND THIRD PARTY COMPLAINT TO PROCEED WITH A BREACH OF CONTRACT CLAIM WHEN THE FRAUD ARISES IN PRE-CONTRACTUAL MISREPRESENTATIONS.

We reject these arguments, as well as RBTE's contention that we should deem as time-barred defendant's appeal of the October 24, 2008 summary judgment.

In turning to the sufficiency of the October 24, 2008 summary judgment, although the work estimate and some other evidential materials are included in the appendix, defendant failed to include in her appendix any certifications or affidavits she may have submitted in opposition to RBTE's motion. See R. 2:6-1(a)(1).*fn1 Due to that failure, our ability to apply the Brill standard*fn2 in reviewing the October 24, 2008 summary judgment has been obfuscated. Nevertheless, on the existing record on appeal, as illuminated by the motion judge's thorough oral decision, we find no merit in defendant's argument that the judge erred in finding that the parties' written agreement was clear and unambiguous and in granting summary judgment in favor of RBTE.

In subsequent proceedings in this matter, the judge dismissed defendant's claim against Bunsee by determining that it was barred by the entire controversy doctrine. Although we agree that this claim was properly dismissed, we reject the grounds upon which the judge relied. Isko v. Planning Bd. of Livingston, 51 N.J. ...


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