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Hsj Properties, L.L.C., A Kansas Limited Liability Company v. Secret Garden Landscaping and First Class Construction

March 29, 2011

HSJ PROPERTIES, L.L.C., A KANSAS LIMITED LIABILITY COMPANY, PLAINTIFF-APPELLANT,
v.
SECRET GARDEN LANDSCAPING AND FIRST CLASS CONSTRUCTION, INC., DEFENDANTS, AND LEO HAGERTY AND JERSEY CONSTRUCTION, INC., DEFENDANTS-RESPONDENTS.



On appeal from Superior Court of New Jersey, Law Division, Camden County, Docket No. L-5411-05.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted November 9, 2010

Before Judges Payne, Baxter and Koblitz.

Plaintiff HSJ Properties, L.L.C., a commercial developer, appeals from the directed verdict entered on its claims against defendants Leo Hagerty and Jersey Construction, Inc. at the close of HSJ's presentation of evidence in a suit claiming negligence and breach of contract by defendants. Determining that the standards set forth for involuntary dismissal by Rule 4:37-2(b) were not met, we reverse and remand the matter for retrial.

I.

In or around 2002, HSJ determined to develop land located in Cherry Hill, New Jersey for use as a storage facility comprised of twenty-three storage buildings and an office building. The land that it proposed to use as the site sloped downward at the rear, and thus leveling it by adding fill and constructing three retaining walls was required, as well as other site improvements.

In furtherance of its planned development, HSJ contracted with Vollmer Associates L.L.P. to provide construction plans for the project. Detail drawings for the construction designated C-0 through C-8 were dated and stamped August 29, 2002; plans and specifications designated P-1 through P-9 were dated and stamped April 25, 2003. P-2, entitled "Construction Specifications," contained specifications for the three retaining walls to be constructed at the site. The specifications required that the wall units comprising the wall be "Allan Block Modular Retaining Wall units, or approved equivalent as produced by a licensed Manufacturer." Specifications were also given for gravel aggregate to be utilized at the site and for backfill material.

P-2 also detailed the method of wall construction, specifying that the wall be built, level, on a base of at least six inches of aggregate, with the raised lip of the block facing forward to facilitate a gradual step-back in the placement of succeeding levels of block. All cavities were to be filled with aggregate and compacted. A designated number of courses of block were to be installed below grade.

Following the construction of additional unit levels, "geogrid," a fabric comprised of high density polyethylene or polyester was to be installed between the blocks and extended into the surrounding compacted backfill in order to anchor the wall. Thereafter, as wall construction progressed, backfilling was to occur in lifts of a specified height, the soil material was to be compacted, and additional courses of geogrid were to be installed. Testing of the soil used for backfill was required in order to insure that it met specifications. The plan specified that "one foot thick minimum of drainage aggregate" be placed immediately behind the wall for drainage purposes. Additionally, a four-inch perforated drainage collection pipe was to be installed at the base of each wall, and outlet pipes were to be inserted in the wall with a forty-foot maximum spacing.

The plan designated as P-2 also contained a section labeled "Product Options and Substitutions" that contained a paragraph concerning substitutions, which stated:

2. Substitution Submittal Procedure:

a. Submit shop drawings, product data, and engineering calculation attesting to the proposed product equivalence.

b. Submit a statement setting forth changes in other products or other portions of the work including changes in the work or other separate contractors, where applicable, that incorporation of the proposed substitution would require.

c. The owner will notify the contractor, in writing of decision to accept or reject request.

A detailed drawing of the wall and its components was also supplied that pictured the six-inch aggregate base, the stepped-back blocks, the perforated drainage pipe, the layer of aggregate behind the wall, the geogrid, and the backfill. General Retaining Wall Notes provided, among other things, for soil compaction tests and specifications.

On March 15, 2003, HSJ entered into a subcontract with Leo Hagerty, Jr. for him to provide site supervision. Paragraph one of the agreement, addressing the scope of the work, provided:

The Subcontractor agrees to furnish all tools, equipment, and labor necessary to complete the following: As per approved plan ...


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