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Wiater Building & Design, Inc v. George Gutierrez and Nereida Gutierrez

January 3, 2013

WIATER BUILDING & DESIGN, INC., PLAINTIFF,
v.
GEORGE GUTIERREZ AND NEREIDA GUTIERREZ, DEFENDANTS/THIRD-PARTY PLAINTIFFS-APPELLANTS/ CROSS-RESPONDENTS,
v.
JAMES WIATER AND ROBERT BRANCO, THIRD PARTY DEFENDANTS-RESPONDENTS/CROSS-APPELLANTS. WIATER BUILDING & DESIGN, INC., PLAINTIFF,
v.
BOA CONSTRUCTION, ECK AIR, POWER STONE, BILL LABOCKI, HOME DESIGN TILE & MARBLE, AJ RELIABLE, INC., DEMKO ELECTRIC, AJ STAIRS, TONY AMPORT, CLIFTON ORNAMENTAL IRONWORKS INC., PINNACLE PLUMBING & HEATING, DEFENDANTS.



On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Docket No. L-2374-06.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued: December 5, 2012

Before Judges Axelrad and Haas.

Defendants George and Nereida Gutierrez appeal from an order granting summary judgment dismissing their complaint against third-party defendants, James Wiater and Robert Branco, the principals of Wiater Building and Design, Inc. (referred to as the principals and the corporation, respectively), alleging breach of the Consumer Fraud Act (CFA), N.J.S.A. 56:8-1 to - 20 in connection with a home improvement contract entered into with the corporation. Defendants argue the principals are personally liable for damages, the facts of the case justify piercing the corporate veil, and disputed material factual issues precluded summary judgment. The principals filed a protective cross-appeal, challenging the court's denial of their motion to amend the complaint to add defendants' design architect, The Montoro Architectural Group, as a defendant. As we affirm the appeal, the cross-appeal is moot and need not be addressed.

I.

We recite the record in the light most favorable to defendants, the non-moving party. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). On October 25, 2001, defendants entered into a contract with the corporation for extensive improvements and additions to their home located in Saddle River. The total contract price was about $976,000. The contract expressly stated that it "represents the entire and integrated agreement between the parties hereto and supersedes prior negotiations, representations or agreements, either written or oral."

George Gutierrez (Gutierrez) certified he retained the corporation to perform the home improvement job because of his twenty-year personal relationship with the principals, who "had previously built three or four McDonalds restaurants for [him], and had also previously remodeled a prior residence." They "were also personally well known through an association of owners of McDonald's restaurants, of which [he] was a long time member." He further certified the principals had previously personally supervised the construction work and the subcontractors and hired them to undertake this substantial home improvement job based on both principals' representations "that they would personally supervise the job, see that it was performed in accordance with proper construction requirements, and deliver a good finished product."

On December 30, 2002, the corporation obtained a Temporary Certificate of Occupancy. Whether the corporation completed its contract at that time and the remaining items needed to be completed by defendants' subcontractors, as represented by the principals, or whether a year afterwards the job was still not complete as stated by Gutierrez, such facts are not pertinent to this appeal.

On July 24, 2006, the corporation filed a complaint against defendants for collection of the unpaid balance of $34,380 pursuant to the terms of the contract. Defendants filed an answer and counterclaim, alleging the corporation did not complete the work it agreed to perform and refused to "finish the work which it left undone, and to correct the work which it performed in a shoddy and unworkmanlike manner."*fn1

By order of January 23, 2009, the court denied defendants' motion for leave to file a third-party complaint against the principals. We granted defendants' motion for leave to appeal and reversed and remanded by order of March 9, 2009. On remand, pursuant to court order, defendants filed the third-party complaint and the principals filed an answer.

In April 2009, the corporation filed a motion to amend its complaint to add The Montoro Architectural Group as a defendant, which Judge Edward M. Oles denied by order of May 1, 2009. The reconsideration motion was also denied.

On June 11, 2009, the principals filed a notice of motion for summary judgment, and defendants filed opposition. Oral argument was held on July 17, 2009, and on August 14, 2009, by order and opinion, Judge Oles granted the summary judgment motion, dismissing the third-party complaint. He found the contract "reflects that there are no personal guarantees made by any of the corporate officers relative to the work to be performed or any personal undertaking by" the principals. Even applying an expansive view of the parol evidence rule as articulated in Conway v. 287 Corporate Center Assocs., 187 N.J. 259 (2006), the judge found, as a matter of law, the contract to be unambiguous on its face and the sole contracting parties to be defendants and the corporation.

The judge concluded that to permit defendants to "assert that there were certain warranties or guarantees made by the individual corporate officers which would hold them personally liable would introduce extrinsic evidence to vary the terms of the contract" and "twist or distort the obvious meaning of the parties." Accordingly, he found the principals were entitled to judgment as a matter of law.

By order of September 30, 2009, we denied defendants' motion for leave to appeal. Prior to the start of trial of the consolidated actions, defendants settled their counterclaim against the corporation, which included dismissal of all claims against all parties involved in the consolidated actions, except for defendants' claims against the principals that are the subject of this appeal. The appeal and cross-appeal ensued.

II.

On appeal, defendants argue:

POINT I

THE THIRD-PARTY DEFENDANTS ARE PERSONALLY LIABLE FOR THE DAMAGES SUFFERED BY THE THIRD-PARTY PLAINTIFFS ...


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