On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Docket No. L-0712-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Payne, C.L. Miniman and Waugh.
Plaintiff Yezzi Associates, L.L.C., appeals a December 5, 2008, order denying its motion in limine seeking to bar certain documentary and testimonial evidence at trial. It also appeals a January 23, 2009, order granting summary judgment in favor of defendant Brick Township Board of Education (defendant or the Board) dismissing plaintiff's complaint with prejudice. We reverse in part and affirm in part and remand for further proceedings consistent with this opinion.
We summarize all of the evidence presented to the judge with respect to both motions. Plaintiff provides architectural services for construction projects. During the summer of 2000, defendant solicited plaintiff's services for the construction and renovation of several schools. Plaintiff had previously provided similar services to defendant pursuant to requests for proposals. After the parties discussed the scope of the project, plaintiff submitted a draft contract for architectural services in September of 2000. The specified fee was apparently six percent of actual construction costs for architectural services and one percent for construction administration.*fn1
This draft contract was not accepted by defendant, because it was concerned that the project might not be approved by referendum. As a result, it wanted to limit its obligation to pay architectural fees to prepare drawings for the referendum in the event the project was rejected by the voters in Brick. Accordingly, defendant sought proposals from three architectural firms to secure the lowest fee possible for the architectural work needed to bring the project to referendum.
Plaintiff and the other architects made their presentations to defendant on October 23, 2000.*fn2 The focus of the presentation was the cost to take the project to referendum and the time needed to prepare construction documents. Not long after the presentation, defendant advised plaintiff it had been selected and requested a proposed form of contract. Plaintiff was awarded the contract, partly because plaintiff agreed to bring the project to referendum for $72,000,*fn3 whereas the other architects wanted $288,000 for this preliminary work. On November 16, 2000, the Board's attorney prepared a resolution appointing plaintiff to the position of architect for the subject project. The resolution specifically provided that "[t]he fees shall be 6% of construction cost." It did not indicate that any contract or proposal from plaintiff was attached nor did it indicate the scope of work to be performed. Defendant approved the resolution at its December 14, 2000, meeting.
On December 26, 2000, plaintiff prepared, and its principal Massimo F. Yezzi, Jr., (Yezzi) signed, a proposed AIA Document B151-1997, Abbreviated Standard Form of Agreement Between Owner and Architect and immediately began work on the project. Paragraph 2.6.2 required plaintiff to "provide administration of the Contract for Construction as set forth below... unless otherwise provided in this Agreement." It further provided in ¶ 2.6.4:
The Architect shall be a representative of and shall advise and consult with the Owner during the administration of the Contract for Construction. The Architect shall have authority to act on behalf of the Owner only to the extent provided in this Agreement unless otherwise modified by written amendment.
The contract also contained the following charges for services to be rendered for the project:
11.2.1 For Basic Services, as described in Article 2, and any other services included in Article 12 as part of Basic Services, Basic Compensation shall be computed as follows....
PHASE I - REFERENDUM: ASSIST THE BOARD IN DEVELOPING CONCEPT PLANS, TIME SCHEDULES AND COST ESTIMATES FOR VARIOUS SCHOOL BUILDINGS WITHIN THE DISTRICT FOR REFERENDUM REVIEW.
ARCHITECTURAL FEE: HOURLY WITH A NOT TO EXCEED OF $10,000 PER PROJECT.
PHASE II: CONSTRUCTION DOCUMENTS: PROVIDE ARCHITECTURAL/ENGINEERING CONSTRUCTION DOCUMENTS FOR BIDDING, INCLUDING BID DRAWINGS AND BID SPECIFICATIONS.
ARCHITECTURAL FEE: 6% OF ESTIMATED CONSTRUCTION COST.
PHASE III: CONSTRUCTION ADMINISTRATION: BASED ON ACTUAL CONSTRUCTION COST OF PROJECT, PROVIDE ADMINISTRATIVE SERVICES AT 1% OF CONSTRUCTION COST.
Additionally, paragraph 11.2.2 stated that "progress payments for Basic Services in each phase shall total the following percentages of the total Basic Compensation payable: 6% of CONSTRUCTION COST FOR CONSTRUCTION DOCUMENTS[,] 1% OF ACTUAL CONSTRUCTION COST FOR CONSTRUCTION ADMINISTRATION."
The contract also contained an integration clause, which reads as follows: "This Agreement represents the entire and integrated agreement between the Owner and the Architect and supersedes all prior negotiations, representations or agreements, either written or oral. This agreement may be amended only by written instrument signed by both Owner and Architect."
The printed form contract makes no reference to any attachments to the contract. However, in Article 12, which is on the signature page for the contract, plaintiff included the following as additional items:
1. ADDENDUM "A" ATTACHED.
3. ARTICLE 7.2 ARBITRATION DELETED IN ITS ENTIRETY.
4. AD PER PROPOSAL LETTER OF 9/14/00 ATTACHED -- EXHIBIT "B".
5. OWNER WILL APPROVE EACH PHASE OF WORK PRIOR TO PROCEEDING TO THE NEXT PHASE.
6. PROPOSAL DOES NOT INCLUDE SURVEY WORK, CIVIL ENGINEERING AND TEST BORINGS.
Exhibit A contains mandatory contract language respecting nondiscrimination and affirmative action. Exhibit B is not contained in the appendices before us and may not have been submitted to the motion judge. Addendum A made five modifications to the standard AIA form contract, none of which are relevant here.
According to Yezzi, on January 29, 2001, he reminded defendant to sign the contract, and he received it thereafter without any changes to any of its provisions, including the compensation provisions. During his deposition, Yezzi was not sure exactly when he received the Agreement, but could only "assume January sometime."
Dr. Philip W. Nicastro, Business Administrator and Board Secretary, stated that the AIA contract "was not consistent with the proposal that... Yezzi made to the Board at the October 23, 2000 meeting."*fn4 Therefore, Nicastro scheduled two meetings between himself, Yezzi, and the Board Attorney, Nicholas C. Montenegro, to negotiate the contract. Yezzi claimed that he could not remember these discussions ever having taken place.
Nicastro provided the following details about these meetings:
13. At the first meeting three issues were discussed. They were total compensation, change orders and an ...