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Aacon Contracting, LLC v. Glenn Poppe

July 30, 2012

AACON CONTRACTING, LLC, PLAINTIFF-RESPONDENT,
v.
GLENN POPPE, POPPE CONSTRUCTION, INC., POPPE CONTRACTING, INC., WALTER H. POPPE GENERAL CONTRACTORS, INC. AND EDWARD MILLER,*FN1 DEFENDANTS-APPELLANTS.



On appeal from Superior Court of New Jersey, Law Division, Union County, Docket No. L-2718-10.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted July 24, 2012

Before Judges Graves and Yannotti.

Defendants Glenn Poppe, Poppe Construction, Inc. (Poppe Construction), Poppe Contracting, Inc. (Poppe Contracting), and Walter H. Poppe General Contractors, Inc. (Walter H. Poppe General Contractors), appeal from a November 7, 2011 order granting summary judgment to plaintiff AACON Contracting, LLC (AACON). We affirm.

On May 13, 2008, Poppe Construction and AACON signed an agreement (the subcontract) in which AACON, as subcontractor, agreed to provide concrete and masonry work for the construction of a Walgreens pharmacy in Colonia. AACON was to be paid $394,000 for the work it performed. Poppe Construction represented it was the general contractor in a contract with Walgreens; however, the general contractor was actually Poppe Contracting, not Poppe Construction.

After AACON began working on the project, Walter H. Poppe General Contractors issued several checks to AACON and its suppliers totaling $179,054. In September 2008, a dispute arose between AACON and Poppe Construction because a concrete slab floor poured by AACON was rejected by Walgreens. Thereafter, Walter H. Poppe General Contractors withheld payments due AACON under the subcontract. The concrete slab floor was repaired by Cream Ridge Environmental, Inc. (Cream Ridge Environmental), which issued an invoice to Walter H. Poppe General Contractors for $32,356.63 on December 8, 2008. However, AACON and Poppe Construction disputed responsibility for the cost of the repair.

On February 4, 2009, AACON filed a construction lien claim against the owner of the property on which the Walgreens pharmacy was being built. The lien claim amount of $214,946 represented the amount AACON was to receive under the subcontract less the amount it had already been paid.

On February 25, 2009, Walgreens issued a check to Walter H. Poppe General Contractors for $127,606.05, and on April 2, 2009, Walgreens issued a check to Walter H. Poppe General Contractors for $277,680.47. In subsequent requests for payment, Poppe Contracting represented to Walgreens that AACON was "previously paid" $354,600.

AACON completed work on the project in June 2010, and Walgreens paid AACON $39,400 on June 29, 2010. In return, AACON discharged its construction lien claim on August 4, 2010.

AACON and Poppe Construction submitted their dispute regarding the remainder of the amount due AACON to arbitration. The parties stipulated that the "unpaid subcontract balance was $175,546." In an August 30, 2010 decision, the arbitrator concluded that the repair work performed by Cream Ridge Environmental was "solely the responsibility of AACON" and that Poppe Construction was liable for the remainder due under the subcontract. The arbitrator awarded AACON $156,704, which was calculated by taking the unpaid subcontract balance of $175,546, together with $8114 for interest and $5400 for reasonable counsel fees, and subtracting the $32,356 repair charge. On October 15, 2010, a Law Division judge in Bergen County confirmed the arbitration award and entered judgment in favor of AACON and against Poppe Construction in the amount of $156,704.

Shortly thereafter, AACON filed a complaint in the Law Division in Union County alleging fraud (count one), negligence (count two), breach of fiduciary obligations (count three), and conspiracy to commit fraud (count four). AACON named Glenn Poppe, Poppe Construction, Poppe Contracting, and Walter H. Poppe General Contractors as defendants. Defendants filed an answer on January 7, 2011.

At his deposition, Glenn Poppe testified he was the sole owner, shareholder, and officer of Poppe Construction, Poppe Contracting, and Walter H. Poppe General Contractors; the three entities did not have any equipment or employees; he reviewed all contracts entered into by the three entities; in 2008 and 2009, he received "wages from Walter H. Poppe General Contractors, Inc."; and Poppe Contracting, Poppe Construction, and Walter H. Poppe General Contractors were "paid in full" by Walgreens.

In October 2011, AACON filed a motion for summary judgment. In a supporting certification, Phillip Taglianetti, Sr., President of AACON, stated that when he executed the subcontract with Poppe Construction, he "relied upon the representations by that entity that it had a contract with Walgreens." Taglianetti also certified that "Poppe Contracting and Glenn Poppe represented to AACON that AACON was not being paid because Poppe Construction had not been paid by Walgreens for AACON's work." In response, Glenn Poppe certified that "[t]o the best of [his] knowledge ...


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