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700 Highway 33 LLC v. Joseph Pollio and Cramar Electric Co

July 8, 2011

700 HIGHWAY 33 LLC, PLAINTIFF-APPELLANT,
v.
JOSEPH POLLIO AND CRAMAR ELECTRIC CO., DEFENDANTS-RESPONDENTS, AND, CHARLES SZARAWARSKI, CMS CUSTOM BUILDERS CORP., SUN H. KIM D/B/A WORLD SIGN AND STEPHEN STRONG, DEFENDANTS.



On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-4750-09.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Argued June 8, 2011

Before Judges Ashrafi, Nugent and Kestin.

The opinion of the court was delivered by NUGENT, J.S.C. (temporarily assigned).

Plaintiff, 700 Highway 33 LLC, appeals from two October 29, 2010 Law Division orders: one that denied its motion to amend the complaint, the other that granted the cross-motion of defendants, Joseph Pollio and Cramar Electric Co. (Cramar), to dismiss the complaint with prejudice based on the entire controversy doctrine. We reverse and remand.

I.

Plaintiff owns property in Millstone Township on which it constructed a commercial building in 2003 and 2004. Cramar is an electrical contractor that worked on the building until terminated by plaintiff, and Pollio is an owner of Cramar. Plaintiff filed two lawsuits that arose out of construction disputes with various contractors; the first in 2003 (the 2003 action), the second in 2009 (the present action).

Plaintiff filed the 2003 action against the general contractor and several subcontractors, but did not name Pollio and Cramar as parties. On January 20, 2004, plaintiff's manager wrote Pollio a letter confirming that Cramar's "electrical contracting services" had been terminated the previous day for "failure to perform as promised" and making "outright misrepresentations." The letter also stated that Cramar's "[r]epeated failure to show up to perform specified work as promised ... resulted in delays and rescheduling of other trades and additional rental of site work equipment...." Pollio wrote back and denied the allegations. On August 3, 2004, plaintiff amended the complaint in the 2003 action but did not name Pollio and Cramar as parties and did not disclose their names as non-parties "who should be joined in the action ... because of potential liability to any party on the basis of the same transactional facts." R. 4:5-1(b)(2).

Plaintiff included no factual allegations in the amended complaint, but instead incorporated by reference the allegations in the original complaint. The parties did not include the original complaint in either the trial court motion record or in this appeal. Consequently, there is no record of the transactional facts on which plaintiff based the 2003 action.

The parties settled the 2003 action in 2008. On September 28, 2009, plaintiff commenced the present action, alleging, among other things, that it paid Cramar $50,000 to purchase special equipment that Cramar never purchased, and that Cramar failed to properly perform its work. Pollio and Cramar are the only remaining defendants in the present action. Plaintiff settled with defendants, CMS Custom Builders Corp. and Charles Szarawarski, and the court dismissed the complaint against defendants, Stephen Strong and Sun H. Kim d/b/a World Sign, for lack of prosecution. After plaintiff's original counsel was disqualified because he was a potential trial witness, plaintiff retained new counsel and on September 28, 2010, filed a motion to amend the complaint. On October 7, 2010, Pollio and Cramar filed a cross-motion to dismiss the complaint on the basis of the entire controversy doctrine because plaintiff did not name or identify them in the 2003 action.

In support of their motion, Pollio and Cramar provided certifications from their attorney*fn1 and from Pollio, but neither the certifications nor the attachments specifically identified the transactional facts on which plaintiff based the 2003 action. Plaintiff opposed the motion and provided, among other things, a certification from its former manager averring that the claims in the 2003 action were based on separate contracts, occurred at different times, and were entirely different from those asserted in the present action. The trial court granted Pollio and Cramar's cross-motion, and denied plaintiff's motion to amend the complaint. On October 29, 2010, in an oral opinion, the trial court explained that based on its experience, construction cases were unique, involved multiple legal issues such as insurance coverage and indemnification, and the work of one subcontractor often affected the work of other subcontractors. Because plaintiff's dispute with Pollio and Cramar existed when the 2003 action was pending, the court concluded that plaintiff had an obligation to include them in that action.

II.

The entire controversy doctrine refers to our Supreme Court's "approach to joinder of claims and parties" that has "evolved through a series of decisions" and rule amendments. Kent Motor Cars, Inc. v. Reynolds & ...


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