ELAR REALTY CO. VS. ENVIRONMENTAL RISK LIMITED(L-0709-11, ESSEX COUNTY AND STATEWIDE) ( 2017 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2201-15T3
ELAR REALTY CO.,
Plaintiff-Appellant,
v.
ENVIRONMENTAL RISK LIMITED
and GZA GEOENVIRONMENTAL, INC.,
Defendants-Respondents.
________________________________________________________________
Argued September 14, 2017 – Decided October 11, 2017
Before Judges Simonelli, Haas and Rothstadt.
On appeal from Superior Court of New Jersey,
Law Division, Essex County, Docket No.
L-0709-11.
Arnold G. Shurkin argued the cause for
appellant.
Scott K. Winikow argued the cause for
respondents (Donovan Hatem, LLP, attorneys;
Mr. Winikow and Lauren M. Ippolito, on the
brief).
PER CURIAM
Plaintiff Elar Realty Co., appeals from the dismissal of its
complaint on summary judgment granted in favor of defendants
Environmental Risk Limited (ERL) and GZA Geoenvironmental, Inc.
(GZA) and from the denial of its motion for reconsideration. The
Law Division dismissed plaintiff's complaint because it was filed
after the expiration of the one-year statute of limitation that
plaintiff agreed to in its contract with ERL. We affirm.
The relevant facts when viewed in the light most favorable
to plaintiff, see Angland v. Mountain Creek Resort, Inc., 213 N.J.
573, 577 (2013) (citing Brill v. Guardian Life Ins. Co. of Am.,
142 N.J. 520, 523 (1995)), can be summarized as follows. In 2000,
plaintiff and ERL entered into a written contract for ERL to
perform services relating to the remediation of plaintiff's
property. Plaintiff was represented by counsel throughout the
negotiation of the contract.
The contract contained a provision that required plaintiff
to bring any "legal action, regardless of the form thereof, . . .
against ERL [no] more than one year after ERL has ceased providing
services for that specific project for which the damages were
alleged to have [o]curred." In another clause, the contract stated
that "[a]ny claims, counterclaims, disputes and other matters in
question between ERL and [plaintiff] arising out of or relating
to this Contract for Services or the breach thereof ("disputes")
must be filed within one year of the provision of those services
under dispute."
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The contract also did not contain any prohibitions against
assignment and recognized each party's ability to freely assign
its interest in the agreement. Specifically, the parties agreed,
"[t]he covenants and agreements contained in this Contract for
Services shall apply to, inure to the benefit of and be binding
upon the parties hereto and upon their respective successors and
assigns."
After ERL commenced performing services for plaintiff, on
June 9, 2006, ERL and GZA entered into an asset purchase agreement
with GZA purchasing ERL's assets and open contracts. Plaintiff
was not part of this agreement, but was eventually sent a notice
from GZA and ERL informing it of the transaction. Afterwards, GZA
undertook responsibility for ERL's work on plaintiff's property.
Plaintiff accepted services from GZA for a substantial period,
paying its bills without any objection.
GZA performed services for plaintiff until December 24, 2008,
when plaintiff's attorney sent GZA a letter terminating GZA
services. Plaintiff terminated the contract because another
company it hired to assess the work performed by ERL and GZA
reported there were "deficiencies in GZA's work." GZA immediately
stopped its work on the project and no action was taken by either
party for two years regarding their rights under the original
contract between plaintiff and ERL.
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In January 2011, plaintiff filed its complaint in this action.
After a tortuous period of protracted litigation, in 2015 ERL and
GZA filed a motion for summary judgment that plaintiff opposed,
arguing that the one-year statute of limitation was not enforceable
because the assignment between ERL and GZA was invalid, and the
shortened period to file suit stated in the contract was
unreasonable and otherwise unenforceable. Judge Garry J. Furnari
granted the motion on October 5, 2015, dismissing plaintiff's
complaint with prejudice.
In his comprehensive oral decision, Judge Furnari carefully
reviewed the undisputed facts and applicable case law and found
that, contrary to plaintiff's arguments, there was no obstacle to
ERL's right to assign its contract with plaintiff to GZA. The
judge then analyzed the case law applicable to the enforcement of
the contract's one-year statute of limitation and applied it to
the date upon which plaintiff discovered issues with ERL and GZA's
performance that gave rise to its claim, concluding that
plaintiff's action was barred.
Plaintiff moved for reconsideration, which Judge Furnari
denied on January 8, 2016.1 In another comprehensive oral
1
Plaintiff's motion for reconsideration addressed other
interlocutory orders entered by another judge as well as Judge
Furnari's order granting summary judgment. Although Judge Furnari
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decision, the judge explained that despite plaintiff renewing its
challenges to the assignment of its contract with ERL, and again
arguing that the one-year statute of limitation was unreasonable
and unenforceable, plaintiff failed to provide any legal or factual
support for its arguments in satisfaction of its burden on
reconsideration.
On appeal, plaintiff challenges the entry of summary judgment2
in favor of ERL and GZA, arguing that the two entities merged,
making "GZA responsible for ERL's liabilities," and, in any event,
ERL's agreement with GZA was an "asset purchase agreement" that
was "not binding on plaintiff." Plaintiff also challenges the
assignment of its contract by arguing it was not assignable because
it called for personal services and could not be assigned without
plaintiff's agreement. In addition, plaintiff alleges that there
was a conflict of interest between defendants that should have
prevented their attorney from representing them. Finally, it
contends that the one-year statute of limitation "was unreasonable
addressed the other orders and denied reconsideration, his
decision as to those orders is not the subject of plaintiff's
appeal.
2
Although included in plaintiff's notice of appeal, plaintiff's
brief does not contain any arguments directed to Judge Furnari's
order denying reconsideration.
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and unenforceable as a result of the application of equitable
discovery."
We begin by acknowledging the legal principles that guide our
review. Our review of a motion judge's grant of summary judgment
is de novo. Conley v. Guerrero, 228 N.J. 339, 346 (2017). We
apply the same standard as the motion judge, which requires us to
examine the competent evidential materials submitted by the
parties to identify whether there are genuine issues of material
fact and, if not, whether the moving party is entitled to summary
judgment as a matter of law. Ibid. We afford no deference to the
motion judge's legal conclusions. See Cypress Point Condo. Ass'n
v. Adria Towers, L.L.C., 226 N.J. 403, 414-15 (2016). We review
a judge's decision to deny reconsideration for an abuse of
discretion. See R. 4:49-2; Palombi v. Palombi, 414 N.J. Super.
274, 288 (App. Div. 2010) (citing D'Atria v. D'Atria, 242 N.J.
Super. 392, 401 (Ch. Div. 1990)).
We conclude from our review that plaintiff's contentions are
without sufficient merit to warrant discussion in a written
opinion. R. 2:11-3(e)(1)(E). We add only the following brief
comments.
Many of plaintiff's arguments on appeal were not raised before
the motion judge and there is no reason for us to consider them
on appeal. See Zaman v. Felton, 219 N.J. 199, 226-27 (2014)
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(citation omitted); Alloway v. Gen. Marine Indus., L.P., 149 N.J.
620, 643 (1997); Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234
(1973). Plaintiff also failed to address other arguments in its
briefs and those arguments are deemed waived for that reason. See
N.J. Dep't of Envtl. Prot. v. Alloway Twp., 438 N.J. Super. 501,
505-06 n.2 (App. Div.), certif. denied, 222 N.J. 17 (2015);
Pressler & Verniero, Current N.J. Court Rules, comment 5 on R.
2:6-2 (2018).
Procedural issues aside, the motion judge's conclusions that
the one-year statute of limitation agreed to by the parties was
enforceable and that plaintiff's contract with ERL was freely
assignable are unassailable under the facts presented by plaintiff
in opposition to summary judgment and on reconsideration. See
Mirra v. Holland Am. Line, 331 N.J. Super. 86, 91 (App. Div. 2000)
(citing Eagle Fire Prot. Corp. v. First Indem. of Am. Ins. Co.,
145 N.J. 345, 354 (1996)) (addressing agreements as to statutes
of limitations); see also Somerset Orthopedic Assocs, P.A. v.
Horizon Blue Cross and Blue Shield of N.J., 345 N.J. Super. 410,
415-16 (App. Div. 2001) (citing Owen v. CNA Ins./Continental Cas.
Co., 167 N.J. 450, 460-61 (2001)) (addressing assignment of
contracts). We affirm therefore substantially for the reasons
expressed by Judge Furnari in his thoughtful and cogent oral
decisions.
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Affirmed.
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