ROBERT J. TRIFFIN VS. BOARD OF COUNTY COMMISSIONERS Â HERNANDO COUNTY(DC-7774-15, MONMOUTH COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-1965-15T1
D&P CONSTRUCTION, INC.,
Plaintiff-Appellant,
v.
PHILLIPSBURG MALL, LLC,
Defendant-Respondent.
_______________________________________
Submitted February 14, 2017 – Decided March 7, 2017
Before Judges Koblitz and Rothstadt.
On appeal from Superior Court of New Jersey,
Law Division, Warren County, Docket No. L-336-
14.
Benbrook & Benbrook, LLC, attorneys for
appellant (Allison T. Madden, of counsel;
Kevin P. Benbrook, on the brief).
Kaplin Stewart Meloff Reiter & Stein, PC,
attorneys for respondent (Joshua C. Quinter
and Karin Corbett, on the brief).
PER CURIAM
Plaintiff, D&P Construction, Inc., a snowplow contractor,
appeals from the Law Division's orders granting summary judgment
in favor of defendant, Phillipsburg Mall, LLC, and dismissing
plaintiff's complaint with prejudice.1 Plaintiff performed snow-
plowing services on defendant's property pursuant to a written
agreement with defendant's maintenance contractor. When the
maintenance contractor failed to pay its invoices, plaintiff filed
suit against defendant only, alleging breach of contract and unjust
enrichment. Judge John H. Pursel rejected plaintiff's contentions
as a matter of law, finding no privity of contract to support a
breach of contract claim and no reasonable "expect[ation of]
remuneration from defendant" to support an unjust enrichment
claim.
Plaintiff argues on appeal that the motion judge erred in
granting summary judgment on the breach of contract claim by
refusing to consider properly certified facts in its verified
1
Plaintiff's notice of appeal states it is appealing only the
December 1, 2015 order that dismissed its claim for unjust
enrichment. Its case information statement alludes to the court's
October 23 order, denying plaintiff's motion for reconsideration
of the court's August 25 order, which granted defendant summary
judgment on plaintiff's breach of contract claim. Plaintiff's
appellate brief asks this court to review the August 25 order in
addition to the December 1 order. Defendant objects. We could
reject plaintiff's argument on the basis the October and August
orders were not identified in the notice of appeal. See, e.g.,
Campagna ex rel. Greco v. Am. Cyanamid Co., 337 N.J. Super. 530,
550 (App. Div.) (refusing to consider order not listed in notice
of appeal), certif. denied, 168 N.J. 294 (2001); Sikes v. Twp. of
Rockaway, 269 N.J. Super. 463, 465-66 (App. Div.) (issue raised
in brief but not designated in notice of appeal not properly before
court), aff'd o.b., 138 N.J. 41 (1994). We choose, however, to
consider both orders for the purpose of completeness.
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complaint that were sufficient to support liability on a theory
of agency. Plaintiff also asserts the trial court erred when it
granted summary judgment on its unjust enrichment claim by adding
an element of "expected remuneration" into its analysis of that
claim. We disagree with both contentions and affirm.
The material facts were generally undisputed, and when viewed
in the light most favorable to plaintiff, can be summarized as
follows. On December 10, 2013, Michael Fonesca, one of plaintiff's
"partners," was approached by defendant's representatives, Adam
Smith and, later, Mark Snediker, after plowing snow in a parking
lot near defendant's property. Smith and Snediker requested
immediate assistance in removing snow at defendant's property
across the street. Fonesca agreed and arranged for plaintiff's
snowplows to clear the snow as requested.
Thereafter, another principal of plaintiff, Michael Mancino,
had an onsite meeting with Snediker to discuss future snow-removal
services for defendant's premises for the 2013-2014 winter. Bill
Mende, a representative of defendant's maintenance contractor,
Alkyha Defense and Logistics Inc. (Alkyha), also attended the
meeting. Snediker explained to Mancino that Alkyha was defendant's
contractor responsible for snow removal services at defendant's
properties. After the meeting, plaintiff and Alkyha entered into
a written contract that required plaintiff to provide snow removal
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services at defendant's property and bill Alkyha, who was solely
responsible for payment. The agreement specified that plaintiff
was prohibited from seeking payment from defendant, or even
contacting defendant about any "billing dispute."
Plaintiff provided snow removal services pursuant to the
contract at defendant's premises on sixteen occasions, and
submitted invoices to Alkyha totaling $149,502.50. Alkyha never
paid the amount owed or disputed the invoices or its obligation
to pay the outstanding amounts. After Alkyha's nonpayment,
plaintiff terminated the contract with Alkyha and sent all the
invoices to defendant, demanding payment for services rendered on
its property. Defendant did not reply to plaintiff's demand.
Plaintiff filed a complaint against defendant only, asserting
claims for breach of contract and unjust enrichment.2 In July
2015, defendant moved for partial summary judgment with respect
to plaintiff's breach of contract claim, asserting that admissions
in plaintiff's pleadings acknowledged there was no contractual
privity between the parties. Plaintiff opposed the motion, relying
on the contents of its verified complaint and arguing that
2
Danielle Mancino, who stated she was an "Officer and Owner of
. . . Plaintiff," verified the allegations of the complaint. Ms.
Mancino did not attend or participate in any of the meetings
between plaintiff, Alkyha, and defendant, as alleged in the
complaint.
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defendant held Alkyha out as its agent and Alkyha acted with
apparent authority to bind defendant to the contract between
plaintiff and Alkyha. Defendant responded by contending that an
agent cannot act with apparent authority where there is a contract
"between the contractor and the subcontractor[,] and the
relationship between the owner and the contractor is clearly
defined by a separate contract."
Judge Pursel rejected plaintiff's argument and entered an
order on August 25, 2015, granting defendant's motion for partial
summary judgment. In his accompanying written statement of
reasons, the judge explained, "It is undisputed that no contract
exists between the parties" and "[p]laintiff has furnished no
probative evidence of an agency relationship between the defendant
and Alkyha that would give rise to liability in contract." Judge
Pursel rejected plaintiff's reliance upon its verified complaint
as to what the parties represented to each other at their meetings
because it was verified by Danielle Mancino "who [was] not alleged
to have been a party to the dealings between plaintiff and
defendant." The judge concluded, "no genuine issues of material
fact remain" because "[p]laintiff . . . failed to present any
probative evidence of the alleged dealings between itself and
defendant."
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Plaintiff filed a motion for reconsideration arguing,
"Defendant held Alkyha out as its agent and is responsible for the
contractual commitments it made to" plaintiff and that the facts
alleged in its verified complaint have been unopposed by defendant.
Defendant opposed this motion. On October 23, 2015, Judge Pursel
denied plaintiff's motion for reconsideration. In his written
statement of reasons, the judge acknowledged that "[t]he presence
or absence of a contractual relationship is not in itself
indicative of agency." The judge re-asserted that Danielle Mancino
could not provide any evidence because "she is not alleged to have
been a party to dealings between Plaintiff and Defendant" and,
therefore, she could not provide evidence of the alleged agency
relationship. He explained, "Plaintiff offer[ed] no new
information or evidence that was not available to the [c]ourt at
the time it made its decision." The judge concluded that he was
"not persuaded [his original] decision was based upon a palpably
incorrect or irrational basis or failure to appreciate the
significance of probative, competent evidence."
After the judge granted defendant's motion for partial
summary judgment, but before he decided the reconsideration
motion, Fonseca testified at a deposition. Fonesca acknowledged
plaintiff's contract was with Alkyha, admitted he communicated
almost exclusively with Alkyha, and rarely spoke with defendant's
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representatives. He also admitted he never talked to defendant's
principals about payment until after Alkyha refused to remit
payment. According to Fonseca, Mende hired plaintiff, and Mende
provided direction throughout the snow removal project. Fonseca
acknowledged that defendant paid Alkyha several of the installment
payments on the contract between defendant and Alkyha.
After Fonesca's deposition, defendant filed another motion
for summary judgment, seeking the dismissal of plaintiff's
remaining unjust enrichment claim. Defendant argued that where a
remedy at law exists – in the form of a breach of contract claim
against Alkyha – the equitable claim of unjust enrichment cannot
be pursued. Plaintiff opposed the motion advancing a quasi-
contract theory and arguing that defendant was unjustly enriched
by receiving the benefit of plaintiff's services. Plaintiff filed
the certification of Michael Mancino in which he stated that
Snediker explained to him "the terms and rates for [plaintiff's]
services would be established through a contract with
[plaintiff's] designated contractor, [Alkyha]." He then met with
Mende at plaintiff's facilities and signed an agreement to perform
the snowplowing services with Alkyha. Defendant responded,
asserting there was no "evidence that [p]laintiff expected
compensation from . . . defendant at the time [p]laintiff conferred
the benefit . . . ."
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Judge Pursel granted defendant's motion, explaining in a
written statement of reasons, that "[p]laintiff . . . presented
no evidence that it expected remuneration from defendant, as all
evidence suggests plaintiff knew its contract was with Alkyha, and
only sought payment from defendant when payment from Alkyha was
not forthcoming." The judge noted, "plaintiff had an express
contract with Alkyha and plaintiff's legal remedy is found in a
breach of contract action against Alkyha." Citing Callano v.
Oakwood Park Homes Corp., 91 N.J. Super. 105, 110 (App. Div. 1966),
the judge explained, "plaintiff is not entitled to employ the
legal fiction of quasi-contract to 'substitute one promisor or
debtor for another.'" Judge Pursel also stated that the equitable
remedy of unjust enrichment "cannot be imposed when there remains
a legal remedy to be pursued." Accordingly, he concluded, "that
there are no issues of fact having any bearing on plaintiff's
claim for unjust enrichment and defendant is entitled to judgment
as a matter of law."
Judge Pursel entered the court's order on December 1, 2015.
This appeal followed.
We review the grant of summary judgment by applying the "same
standard as the motion judge." Globe Motor Co. v. Igdalev, 225
N.J. 469, 479 (2016) (quoting Bhagat v. Bhagat, 217 N.J. 22, 38
(2014)).
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That standard mandates that summary judgment
be granted "if the pleadings, depositions,
answers to interrogatories and admissions on
file, together with the affidavits, if any,
show that there is no genuine issue as to any
material fact challenged and that the moving
party is entitled to a judgment or order as a
matter of law."
[Templo Fuente De Vida Corp. v. Nat'l Union
Fire Ins. Co., 224 N.J. 189, 199 (2016)
(quoting R. 4:46-2(c)).]
"When no issue of fact exists, and only a question of law remains,
[we] afford[] no special deference to the legal determinations of
the trial court." Ibid. (citing Manalapan Realty, L.P. v. Twp.
Comm. of Manalapan, 140 N.J. 366, 378 (1995)).
Turning to plaintiff's arguments, it first contends Judge
Pursel erred in granting partial summary judgment on its breach
of contract claim because he refused to consider facts in
plaintiff's complaint that supported an agency theory of
liability. Plaintiff argues that Alkyha was acting with apparent
authority on behalf of defendant when it entered into a contract
with plaintiff, and that plaintiff sufficiently pled these facts
in its complaint. Plaintiff also contends the judge erred in
making the factual finding that defendant contracted with Alkyha
for snow removal services because an entity other than defendant
had a contract with Alkyha.
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Plaintiff also challenges the motion judge's granting of
defendant's motion for summary judgment on its claim for unjust
enrichment. According to plaintiff, it "conveyed a substantial
benefit upon [d]efendant . . . for which it has received not a
penny." Relying upon Callano, supra, 91 N.J. Super. at 108, for
the proposition that "a person shall not be allowed to enrich
himself unjustly at the expense of another," plaintiff argues
courts "allow recovery in quasi-contract when one party has
conferred a benefit on another, and the circumstances are such
that to deny recovery would be unjust." It also argues the motion
judge "improperly added an element of 'expected remuneration'" to
the analysis of its unjust enrichment claim because it contradicts
Michael Mancino's certification that stated plaintiff expected it
would be paid for its services by defendant through Alkyha. In
explaining defendant's property is a large shopping mall,
plaintiff contends, "it is obvious that neither . . . [d]efendant
nor any contractor would expect a service to be provided at the
property without proper compensation." Moreover, plaintiff states
it is "mere common sense that when . . . [p]laintiff was not paid
for its snow removal services from Alkyha, . . . [p]laintiff would
look to . . . [d]efendant as the owner of the property to pay for
the services that directly benefited the property and its
commercial operation."
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We find plaintiff's arguments to be without sufficient merit
to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
We affirm substantially for the reasons stated by Judge Pursel in
his thoughtful statements of reasons accompanying the orders
granting defendant summary judgment. We add only the following
brief comment.
Contrary to plaintiff's assertions, Judge Pursel properly
considered whether there was any evidence that plaintiff expected
remuneration for defendant. To prove a claim for unjust
enrichment, a party must demonstrate that the opposing party
"received a benefit and that retention of that benefit without
payment would be unjust." Iliadis v. Wal-Mart Stores, Inc., 191
N.J. 88, 110 (2007) (quoting VRG Corp. v. GKN Realty Corp., 135
N.J. 539, 554 (1994)). "That quasi-contract doctrine also
'requires that plaintiff show that it expected remuneration from
the defendant at the time it performed or conferred a benefit on
defendant and that the failure of remuneration enriched defendant
beyond its contractual rights.'" Ibid. (quoting VRG Corp., supra,
135 N.J. at 554) (emphasis added). Plaintiff's contract with
Alkyha and Fonesca's testimony support the finding that plaintiff
had no expectation of remuneration from defendant when it rendered
its services.
Affirmed.
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