NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 10, 2013
On appeal from the Superior Court of New Jersey, Law Division, Special Civil Part, Passaic County, Docket No. DC-11588-11.
Kevin P. Harrington argued the cause for appellants (Harrington and Lombardi, LLP, attorneys; Nicholas J. Lombardi, on the brief).
Respondent has not filed a brief.
Before Judges Sabatino and Hayden.
In this unopposed appeal, third-party defendants Michael Foti ("Foti") and L&F Fitness, LLC ("L&F") seek to overturn a judgment for $6, 678.80, plus costs, entered against them in favor of third-party plaintiff, Construction Co-Ordinators, LLC ("CC"), after a one-day trial in the Special Civil Part. For the reasons that follow, we affirm the trial court's determinations on liability and damages as to L&F, but reverse the court's imposition of personal liability upon Foti.
This is a breach of contract dispute. Although the record is limited, the trial proofs essentially showed the following. Foti, an accountant by profession, is the owner of L&F. He wanted to retrofit a warehouse in Wayne into a fitness center. To advance the project, Foti contacted Joseph Pacelli, the principal of CC. Pacelli has about sixty years of experience in the construction industry.
Initially, an agreement was reached through an October 20, 2008 e-mail exchange between Foti and Pacelli for CC to act as the owner's construction manager on the project, for a fee of $7, 000. Various bids from other contractors to perform the work were received, but Foti considered them too high. As a result, CC's role was changed from construction manager to general contractor, an arrangement through which CC or its subcontractors performed the work.
There is no comprehensive contract in the record spelling out the parties' responsibilities. Instead, the evidence consists of a series of sixteen applications and certifications for payment submitted by CC, with various attached backup documents. Late in the project, Pacelli walked off the job when disputes arose. According to exhibit P-2, which is described as an "ac[c]ounting breakdown, " CC billed $672, 484.84 for the project and was paid $665, 806.04, leaving a withheld shortfall of $6, 678.80. The disputed sum of $6, 678.80 has two components: $3, 850 that had been allocated for the construction of theater platforms, and $2, 828.80 in withheld retainage. CC also claimed that it was owed an additional sum of $3, 500 that Foti allegedly authorized for overtime painting.
The litigation began when one of the subcontractors, plaintiff Midway Glass & Metal Installers, Inc. ("Midway"), which allegedly had not been paid in full for various doors and frames, sued CC and Pacelli in the Special Civil Part. CC then filed a third-party complaint against both L&F and Foti, seeking payment for the additional sums that CC itself claimed were due. In response, L&F and Foti filed a counterclaim against CC. The claims by Midway settled, apparently after Midway's counsel died, leaving solely the third-party complaint for the court's disposition.
Two witnesses testified at the trial in January 2012: Pacelli for the third-party plaintiff CC, and Foti for the third-party defendants. The judge reserved decision, and, about a week later, issued a two-page written opinion on February 8, 2012. The judge ruled in favor of CC on the $3, 850 and $2, 828.80 items, but rejected the $3, 500 overtime painting claim. The judge also rejected the counterclaim of L&F and Foti. The judge entered a corresponding final judgment for $6, 678.80, plus costs, in favor of CC against both L&F and Foti individually.
L&F and Foti moved for judgment notwithstanding the verdict, which the judge denied after hearing oral argument. This appeal ensued, which CC has not opposed. However, we have considered the substance of CC's opposing arguments that had been expressed in its letter brief opposing the ...