MERVIN ALLEN VS. HAGEN CONSTRUCTION/MBA ENTERPRISESÂ JOINT VENTURE LLC(L-8048-13, 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NOT FOR PUBLICATION WITHOUT THE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-2759-15T3
MERVIN ALLEN,
Plaintiff-Appellant,
v.
HAGEN CONSTRUCTION/MBA
ENTERPRISES JOINT VENTURE
LLC,
Defendants-Respondents,
and
RICH JACOBS, and L.F.
DRISCOLL COMPANY, LLC,
Defendants.
_____________________________________________________
Submitted October 12, 2017 – Decided November 29, 2017
Before Judges Alvarez and Currier.
On appeal from Superior Court of New Jersey,
Law Division, Essex County, Docket No. L-8048-
13.
Eldridge Hawkins, attorney for appellant.
Cohen Seglias Pallas Greenhall & Furman, PC,
attorneys for respondents (Edward Seglias, of
counsel; Allie J. Hallmark, on the brief).
PER CURIAM
A Law Division judge on January 22, 2016, denied plaintiff
Mervin Allen's post-trial motion to amend the pleadings to name
additional defendants. The underlying proceeding, Allen's
successful claim under the New Jersey Law Against Discrimination
(LAD), N.J.S.A. 10:5-1 to -49, resulted in a $300,000 judgment.
We affirm.
In her oral decision, the trial judge recalled that the
complaint, originally filed against Hagen Construction, Inc., was
subsequently amended before trial to name the current defendant,
"Hagen Construction/MBA Enterprises Joint Venture, L.L.C."1 She
opined that Allen had ample opportunity to address the issue before
trial and in fact did so.
Allen's post-trial application sought to substitute as
defendants Hagen Construction, Inc. and Alfred Hagen personally.
The trial judge further opined that "the evidence adduced at trial
did not demonstrate that Hagen Construction, Inc., and Alfred
Hagen should have been named as defendants . . . ."
The corporate defendant had filed an unopposed pre-trial
motion to amend the name of the corporate entity to "Hagen
1
The jury rendered a no cause of action verdict against the other
defendant Richard Jacobs. The other named defendants were
dismissed prior to trial.
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Construction/MBA Enterprises Joint Venture, L.L.C." Allen filed
a second amended complaint accordingly. That designation was
actually based on an error by defendant's counsel – the correct
corporate name was "MBA Enterprises/Hagen Construction L.L.C."
without the use of the phrase "joint venture." Regardless of the
omission, the corporate defendant was not Hagen Construction.
Alfred Hagen was never sued individually.
During the trial, Allen's attorney told the jury that when
Allen was originally hired, he believed his employer was Hagen
Construction, but he later learned it was "Hagen Construction
Joint Venture, MBA, Joint Venture or something like that."
Additionally, the documentary evidence regarding the corporate
entities' subcontract on the government project at which Allen had
worked used the name "MBA Enterprises/Hagen Construction, L.L.C."
The steward's weekly reports, also introduced into evidence,
abbreviated the name to "Hagen Const., Inc., MBA Joint Venture"
or "Hagen Const." Allen's paychecks were issued by "Hagen
Construction, Inc., MBA Joint Venture[,]" while the corporate
entity's check register states "MBA/Hagen Construction, L.L.C."
The daughter of the deceased president of MBA testified at trial
that her father was a sixty percent owner of the joint venture,
created by decedent and Alfred Hagen.
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On the last day of trial, Allen's attorney showed the judge
a copy of the 2009 State of Pennsylvania corporate certificate
changing the corporate name from "Hagen Construction/MBA
Enterprises Joint Venture, L.L.C." to "MBA Enterprises, Hagen
Construction, L.L.C." Defendant's attorney argued that any
verdict found by the jury against the employer should reflect the
company's correct name. Accepting defendant's attorney's
representation, Allen's counsel informally requested this relief.
The judge agreed to allow the amendment, however, she stated
that for purposes of closing argument and the verdict sheet, in
order to avoid confusion, the corporate entity would be referred
to as Hagen Corporation. More confusion was created by the fact
that the jury verdict sheet incorrectly stated defendant's name
was "Hagen Construction." The record contains no explanation for
the discrepancy, likely due to some clerical mistake. Thus,
although the verdict sheet referred to Hagen Construction, the
intended party was MBA Enterprises/Hagen Construction, LLC.
Virtually simultaneous with the trial judge's denial of
Allen's post-judgment application to amend the named defendants
to Hagen Construction, Inc. and Alfred Hagen, the same motion was
inexplicably made before a different judge on an unopposed basis
and was granted. That judge later vacated the order noting that
it was "signed by mistake. Issue already decided."
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Allen now appeals, raising the following points for our
consideration:
POINT ONE – THE TRIAL COURT ERRED AND ABUSED
ITS DISCRETION BY NOT ALLOWING THE AMENDMENT
OF THE ORIGINALLY NAMED DEFENDANT TO BE PLACED
BACK INTO THE COMPLAINT AND BE SUBSTITUTED AS
A PARTY AGAINST WHOM JUDGMENT MAY BE ENTERED,
AS WELL AS MR[.] HAGEN, THE PRINCIPAL IN ALL
OF THE ENTITIES AND THE SIGNATORY ON
PLAINTIFF'S PAY CHECK
POINT TWO – DEFENDANT MISLED BOTH THE COURT
AND THE PLAINTIFF'S ATTORNEY IN ITS MOTION TO
AMEND
POINT THREE — DEFENDANT'S ADMISSION THAT THE
LABELING OF DEFENDANT'S COMPANY AS A "JOINT
VENTURE", WAS MISSLEADING [sic], ESTOPS
DEFENDANTS FROM ESCAPING LIABILITY BECAUSE
PLAINTIFF RELIED UPON SAME TO HIS DETRIMENT
A trial court's decision to grant or deny a motion to amend
under Rule 4:9-3 is "best left to the sound discretion of the
trial court in light of the factual situation existing at the time
each motion is made." Fisher v. Yates, 270 N.J. Super. 458, 467
(App. Div. 1994) (citing Rule 4:9-1; Du-Wel Products v. U.S. Fire
Ins., 236 N.J. Super. 349, 364 (App. Div. 1989), certif. denied,
121 N.J. 617 (1990); Keller v. Pastuch, 94 N.J. Super. 499 (App.
Div. 1967)). "It is well settled that an exercise of that
discretion will be sustained where the trial court refuses to
permit new claims . . . to be added late in the litigation and at
a point at which the rights of other parties to a modicum of
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expedition will be prejudicially affected." Du-Wel Products,
supra, 236 N.J. Super. at 364.
The doctrine of invited error operates to bar a disappointed
litigant from challenging an adverse decision on appeal when that
party urged the trial court to adopt the proposition now alleged
to be error. N.J. Div. of Youth & Family Servs. v. M.C. III, 201
N.J. 328, 340 (2010); Donofry v. Autotote Sys., Inc., 350 N.J.
Super. 276, 296 (App. Div. 2001); Brett v. Great Am. Recreation,
144 N.J. 479, 503 (1996).
This trial judge's decision to deny the post-judgment motion
was well within her sound discretion and was supported by the
record. The proofs at trial did not demonstrate that the employer
was Hagen Construction, Inc., and did not address Alfred Hagen's
liability. To suggest that a company other than the employer
should be substituted because of some unspecified connection
between the entities is unwarranted. To suggest an individual who
had an ownership interest in a corporation, but no other known
involvement in the wrongful conduct, should be liable for a
substantial judgment when the application is made post-trial, is
also unwarranted.
The relation back doctrine requires a party to have had notice
of the litigation such that no prejudice ensues, and that he or
she knew or should have known that, but for a mistake in the
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identity, the action would have been brought against him or her.
See R. 4:9-3. In this case, however, Hagen Construction, Inc. and
Alfred Hagen would be prejudiced. Hagen Construction, Inc. was
not the employer. Neither was Alfred Hagen. They had no
opportunity to defend themselves during the trial. Even if, for
the sake of argument, we assume defense counsel also represented
Hagen Construction, Inc., that fact alone is not a basis for a
post-trial amendment and a relation back.
Allen's argument that Bussell v. DeWalt Products Corp., 259
N.J. Super. 499 (App. Div. 1992), supports his position is not
correct. In Bussell, many years prior to plaintiff's personal
injury, Black & Decker acquired DeWalt, Inc., the manufacturer of
the saw that caused plaintiff's injury. Id. at 508. Black &
Decker was involved in the litigation from the outset, and referred
the matter to its insurance carrier, who handled the defense.
Ibid. Black & Decker "was well aware that it actually was the
real party in interest from the outset . . . ." Id. at 570. Black
& Decker "clearly had notice and an opportunity to be heard."
Ibid. Allen has not even alleged facts that would establish some
improper corporate shell game intended to protect corporate assets
from a legitimate judgment.
Furthermore, if we assume for the sake of argument that error
was committed by the court, it was invited by Allen himself. He
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did not oppose the motion to amend the name of the corporate
defendant. Allen amended his complaint to reflect that name. The
last day of trial, when the issue arose, he specifically clarified
that the name of the correct corporate entity was MBA
Enterprises/Hagen Construction, LLC. Allen cannot now be heard
to complain about the action he requested the judge take in his
behalf. See M.C. III, supra, 201 N.J. at 340.
Nor do we agree with Allen that he is entitled to relief
because the corporation misled either the court or Allen's attorney
by virtue of application of the doctrine of res ipsa loquitor.
That doctrine does not apply in this context. It is an evidentiary
exception to the basic proposition that negligence must be proved
and never presumed. The argument is so lacking in merit as to not
warrant further discussion in a written opinion. R.
2:11-3(e)(1)(E).
Allen also contends that the status of the corporation as an
"L.L.C." is newly discovered evidence, which justified the
amendment. The record does not support this argument. Although
defendant's attorney readily acknowledges the mistake as to the
use of joint venture in the company name, the "L.L.C." designation
was included in the pre-trial motion to amend the corporate name.
The proofs establish that the employer in the case was MBA
Enterprises/Hagen Construction, LLC. The proofs did not establish
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either that Hagen Construction or Alfred Hagen was Allen's
employer. To allow the amendment would foist unwarranted liability
on an entity and individual against whom nothing was proven at
trial. Thus, the judge's decision denying the motion to amend
under Rule 4:9-3 was a reasonable exercise of discretion.
Affirm.
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