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Thomas Company, Inc. v. Tamburro Brothers Construction Co.

September 14, 2010

THOMAS COMPANY, INC., PLAINTIFF,
v.
TAMBURRO BROTHERS CONSTRUCTION CO., INC., DEFENDANT/THIRD-PARTY PLAINTIFF-RESPONDENT,
v.
HAMILTON TOWNSHIP BOARD OF EDUCATION, THIRD-PARTY DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Chancery Division, Atlantic County, C-50-09.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted August 31, 2010

Before Judges Simonelli and Waugh.

Third-party defendant Hamilton Township Board of Education appeals orders of the Chancery Division (1) requiring it to participate in an arbitration to resolve a lawsuit related to the school construction project that underlies this action; (2) ordering it to continue to hold certain funds in escrow pending completion of a second related lawsuit; and (3) declaring the rights of the parties with respect to the second lawsuit. Because we conclude that there were unresolved, genuine issues of material fact, we reverse and remand for further proceedings consistent with this opinion.

I.

We discern the following operative facts and procedural history from the record.

The Board entered into a contract with third-party plaintiff Tamburro Brothers Construction Co., Inc., for work related to the renovation of one of its schools. When the work was substantially completed, Tamburro filed suit against the Board for retainage and other funds that it claimed were then owed to it by the Board, as well as claims against other parties not relevant here. The Board filed a counterclaim against Tamburro.

Tamburro and the Board eventually entered into a settlement in December 2007. At the time of the settlement, one of Tamburro's subcontractors, Thomas Company, Inc., had made a claim arising from the project. In addition, the Board had filed suit against the manufacturer of the gymnasium floor installed as part of the project. Both of those collateral claims were referred to in the settlement agreement.

The material provisions of the settlement agreement were as follows:

1. The Board shall pay Tamburro the total sum of $345,000.00 in full and final settlement of all claims by Tamburro against the Board. The parties also accept this settlement amount in full settlement of all claims of the Board for back charges, credits and offset against Tamburro.

2. The Board shall pay $295,000.00 out of the settlement amount on or before December 28, 2007. Payment of the initial sum of $295,000.00 shall not release Tamburro from responsibility to complete the work items identified in paragraph 3.

3. On or before January 15, 2008, Tamburro shall

a. remove and replace broken terrazzo tiles located in the hallways of the ...


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