PETRIC & ASSOCIATES, INC. VS. CCA CIVIL, INC. (L-1596-16, HUDSON 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NOT FOR PUBLICATION WITHOUT THE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-3571-17T2
PETRIC & ASSOCIATES, INC.,
Plaintiff-Respondent,
v.
CCA CIVIL, INC.,
Defendant-Appellant.
___________________________
Argued December 9, 2019 – Decided June 8, 2020
Before Judges Sumners, Geiger and Natali.
On appeal from the Superior Court of New Jersey,
Law Division, Hudson County, Docket No. L-1596-
16.
Lawrence S. Lustberg argued the cause for appellant
(Gibbons PC, and Peckar & Abramson, PC, attorneys;
Lawrence S. Lustberg, Jennifer Ann Hradil, Jason R.
Halpin, Gerard J. Onorata, and Patrick Thomas
Murray, on the briefs).
Eliza D. Stahl argued the cause for respondent (The
Law Office of Eliza D. Stahl PC, attorneys; Eliza D.
Stahl, on the brief).
PER CURIAM
Defendant CCA Civil, Inc., appeals from a jury verdict awarding
plaintiff Petric & Associates $1,850,000 in damages, comprised of: 1)
$300,000 for fraud; 2) $800,000 for breach of contract; 3) $250,000 for
violation of the Prompt Payment Act (PPA), N.J.S.A. 2A:30A-1 to -2; and 4)
$500,000 in punitive damages. Defendant also appeals from a series of related
pre- and post-trial motion orders and a separate award of $260,911.36 in
attorney's fees.
The jury considered a wealth of evidence that defendant fraudulently
induced plaintiff to enter into a contract to install temporary shielding and
work platforms on the Pulaski Skyway in Jersey City, Kearny, and Newark
without informing plaintiff of the existence of high voltage Public Service
Electric and Gas Company (PSE&G) wiring that not only would have altered
plaintiff's decision to enter into the contract on the agreed terms, but also
placed plaintiff's employees at significant risk of harm. The trial proofs also
support the jury's determination that defendant breached the contract and acted
with "actual malice" or "a wanton and willful disregard," see N.J.S.A. 2A:15-
5.12, warranting the compensatory and punitive damages awards. However,
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the trial proofs were insufficient for the jury to conclude that defendant
violated the PPA.
We accordingly affirm the court's December 15, 2017 order denying
summary judgment to defendant, the jury's January 25, 2018 verdict finding
defendant liable for fraudulent inducement and breach of contract, its attendant
compensatory and punitive damages awards, and the trial court's March 16,
2018 order denying defendant's motion to set aside the verdict or for a new
trial. We reverse, however, the jury's verdict concluding that defendant
violated the PPA. Based on our reversal of that count, we vacate and remand
the court's March 29, 2018 order granting attorneys' fees to plaintiff, including
its decision to grant a ten percent fee enhancement.
On appeal, defendant raises the following points for our consideration:
POINT I
THE TRIAL COURT ERRED BY FAILING TO
REJECT PETRIC'S FRAUDULENT INDUCEMENT
CLAIM AS A MATTER OF LAW.
A. The Trial Court Erred in Denying CCA Civil's
Motion for Summary Judgment as to Petric's Fraud
Claim.
B. The Trial Court erred in Denying CCA Civil's
Motions for Judgment at Trial Because Petric Did Not
Present Clear and Convincing Evidence of Fraud.
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POINT II
THE TRIAL COURT ERRED BY FAILING TO
REJECT PETRIC'S BREACH OF CONTRACT
CLAIM AS A MATTER OF LAW.
A. The Trial Court erred in Denying CCA Civil's
Motion for Summary Judgment.
B. Because Petric Failed to Show at Trial that CCA
Civil Did Anything Other Than Fully Comply With its
Obligations Under the Subcontract, the Trial Court
Erred by Sending the Breach of Contract Claim to the
Jury.
POINT III
BECAUSE CCA CIVIL WAS WITHIN ITS RIGHTS
UNDER THE SUBCONTRACT TO WITHHOLD
PAYMENT FROM PETRIC, THE TRIAL COURT
ERRED IN DENYING SUMMARY JUDGMENT AS
TO PETRIC'S PROMPT PAYMENT ACT CLAIM.
POINT IV
THE JURY AWARDED DUPLICATIVE DAMAGES
FOR PETRIC'S FRAUD AND CONTRACT
CLAIMS, AND THE DAMAGE AWARD MUST BE
REDUCED.
A. Petric's Contract Damages Can Not Exceed
$382,373.87.
B. Petric's Vague Reference to Lost Profits Cannot
Justify the Damages Award Because Petric Failed to
Establish Lost Profits with Reasonable Certainty.
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POINT V
BECAUSE PETRIC OFFERED NO EVIDENCE
THAT CCA CIVIL ACTED WITH "EVIL MOTIVE,"
THE TRIAL COURT ERRED BY REFUSING TO
ELIMINATE THE PUNITIVE DAMAGES AWARD.
POINT VI
THE TRIAL COURT'S AWARD OF ATTORNEY'S
FEES MUST BE REDUCED BECAUSE PETRIC IS
NOT ENTITLED TO ATTORNEY'S FEES FOR ALL
OF ITS CLAIMS, NOR IS IT ENTITLED TO ANY
ENHANCEMENT.
I.
We discuss the extensive procedural history and the trial evidence to
provide context for our opinion.
Plaintiff was a small, family-owned industrial painting company run by
the Petrics, Ellen, and Steven, wife and husband. 1 Plaintiff had been in
business for approximately thirty years, and in that time worked on between
thirty and forty projects for the New Jersey Department of Transportation
(NJDOT). Steven, plaintiff's Vice President, testified that he was a civil
engineer and a member of the Structural Steel Painting Council. In addition, at
the time plaintiff bid on the Pulaski Skyway job, Steven had more than thirty
1
For ease of reference, we refer to Ellen and Steven Petric by their first
names, intending no disrespect.
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5
years' experience in the industry, had worked on public projects for NJDOT,
and was familiar with NJDOT's procedures and specifications, including
change orders.
By letter dated June 28, 2013, defendant advised plaintiff of its intent to
award plaintiff a subcontract to install temporary shielding and work platforms
for the Pulaski Skyway project. On July 12, 2013, plaintiff submitted a formal
bid to install a standard platform for $6.50 per square foot.
At trial, Steven testified regarding the parties' approximate two-month
negotiation of the subcontract. He stated that the final design drawings
revealed a complicated design, not the "standard" design originally anticipated
by plaintiff, and they did not show any indication of PSE&G wire interference.
He further testified that as a result of the more complicated design, plaintiff
negotiated a higher unit price of $6.60 per square foot.
Michael Grant, defendant's former employee who negotiated the
subcontract on defendant's behalf, testified as a witness for plaintiff and noted
that one of the primary issues regarding the subcontract negotiations was
prompt payment to plaintiff. He stated that because plaintiff "had just
completed a project for which they had not received payment timely and they
couldn't afford to finance" the current project, plaintiff was "in a precarious
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financial position and . . . [defendant] knew it." In this regard, plaintiff agreed
to perform the work for $6.60 per square foot, which Grant testified was "a
much lower price to do the work than others would have given [defendant]," if
defendant agreed to make timely payments.
NJDOT kept notes from progress meetings regarding the project between
August and September 2013, which were admitted at trial. At each meeting,
PSE&G and representatives of defendant spoke regarding PSE&G wire
interference with the project. By way of example, as early as an August 14,
2013 meeting, the minutes provided that defendant's surveyor noticed a
"PSE&G ramp close to installation of [the] electrical shield," and that "[a]t
present it looks like issue of '[New Jersey High Voltage] Proximity Act'[2]
violation."
Similarly, according to the progress meeting notes from an August 20,
2013 meeting, representatives from PSE&G indicated that within ten feet of
the working area, "[t]here are open wires/exposed cover wires," which had "no
insulation" and were unable to be insulated. In response, defendant's
representatives asked whether there was "potential de-energizing" in that area,
2
The New Jersey High Voltage Proximity Act (Proximity Act), N.J.S.A. 34:6-
47.1 to -47.9, precludes contractors from performing work within a specified
distance of high-voltage electrical lines.
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and PSE&G responded in the negative. According to the sign-in sheets at each
of the project meetings, Gregory Borovskis, defendant's project manager, and
Dino Monioudis, defendant's assistant project manager, were present. Plaintiff
did not have a representative at those meetings.
At trial, Dennis Persico, defendant's corporate representative, testified
by deposition that by the August 20, 2013 meeting, "[defendant] knew about
the condition [of] the high voltage of the cable lines and the proximity of the
cable lines," but "[defendant] did not know at the time [it] signed [the] prime
contract."
Steven performed a walk-through of the worksite along with plaintiff's
superintendent/foreman Chad Eberle on August 22, 2013, prior to signing the
subcontract, and both admitted seeing wires. Although the PSE&G wires were
visible, both witnesses testified it was not apparent how close the wires would
be in relation to the temporary shielding at the time of the walk-through. In
this regard, Steven noted that he "was not allowed to climb up on the bridge
and measure . . . how far it would be from [plaintiff's] work." Eberle likewise
testified that though the PSE&G wires were visible from the ground, that
perspective did not indicate their proximity in relation to the platform.
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Further, as no platform had been designed when plaintiff inspected the
site or bid on the project, and the wires were not identified on any NJDOT
design drawings or specifications, Steven claimed that "because [he] didn't
know the location of the platform in relation to those wires," he did not take
them into account in preparing his bid. Defendant, however, introduced
documentary evidence indicating that at a coordination meeting dated
September 5, 2013, an unidentified representative of plaintiff suggested that
the PSE&G wires be hiked up so as not to interfere with the project.
Plaintiff also introduced evidence that the high voltage nature of the
PSE&G wires was not apparent at the time of the walk-through. For example,
Eberle testified that when he eventually noticed the proximity of the wires, he
"needed to contact [plaintiff] to get [defendant] to find out" whether the wires
were high voltage or even live wires. Likewise, Persico stated on cross-
examination at his deposition that "[a]t the time that you were able to see the
wires, [he did not] think anyone was aware of the voltage in those wires . . . ."
He further noted that a person could not determine whether the wires were
high voltage by looking at them.
Steven testified that plaintiff "started getting ready to work" in early
September before the subcontract was signed. On September 12, 2013, he was
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approached in the field by Borovskis, who insisted he sign the subcontract.
Steven initially declined because Ellen had negotiated the deal and he did not
normally sign contracts on plaintiff's behalf. He called Ellen, who advised him
the parties had agreed on final terms, so he signed the subcontract.
Pursuant to the subcontract, plaintiff agreed to install the temporary
shielding at the Pulaski Skyway project for $6,765,000. Article 6 of the
subcontract governed change orders on the project. Initially, it provided that
"[a]ny change or adjustment in the [c]ontract price by virtue of . . . [a] Change
Order shall be specifically stated in said Change Order." It also indicated that
change orders "are subject to the terms of the subcontract," and that "[i]f
[defendant] and/or [NJDOT] elects the option to direct the Change Order work
to be done by [plaintiff] on a time and materials basis," plaintiff was obligated
to "prepare daily time and materials invoices" to be submitted daily to
defendant. Moreover, "[t]he allowable mark-up on time and material invoices
[was] deemed to be full and complete compensation to [plaintiff] for all
general and administrative expenses, overhead, supervision, and profit . . . ."
Regarding plaintiff's total compensation for change orders, Article 6
stated that plaintiff would not receive "any compensation or allowance for any
Change Order in an amount greater than that which [defendant] actually
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receives from [NJDOT], less a reasonable deduction for work incorporated
therein which is performed by [defendant], as well as [defendant]'s overhead
and profit."
Article 7 of the subcontract provided for claims by plaintiff "for extra
work, additional and increased costs of contract work, delay and interference
in the performance of its work, and/or for other damages for any cause
whatsoever in connection with the performance of the [s]ubcontract . . . ."
Where those costs are "directly or indirectly attributable to or arise out of the
acts and omissions of [NJDOT] or [an architect/engineer]," they were not
"chargeable to or recoverable from [defendant], and any legal right of
[plaintiff] to otherwise assert such claim against [defendant] shall be fully
liquidated by whatever recovery, if any, may be obtained on [plaintiff]'s behalf
in the prosecution of its claim by [defendant] against [NJDOT] . . . ." Article 7
further permitted defendant, "in its sole discretion, [to] settle its entire claim,
including that of [plaintiff], with [NJDOT]" and stated that plaintiff "expressly
releases and discharges [defendant] from any and all liability for any such
claims, except to the extent of any recovery as aforesaid."
The subcontract was supplemented and modified by Exhibit A and its
accompanying Rider. Exhibit A to the subcontract, entitled "Scope of Work
A-3571-17T2
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and Subcontract Price," provided that where the subcontract conflicts with
Exhibit A or the Rider, the provision in Exhibit A or the Rider would control.
Further, Exhibit A required that defendant "provide monthly payments to
[plaintiff] equal to wage and benefit costs incurred by [plaintiff] for work
performed up to what [plaintiff] earned the previous month." It further
provided that if NJDOT were to "make any monetary deductions from
[defendant] due to work covered by this agreement, these deductions shall be
made to [plaintiff]'s payment."
The Rider to Exhibit A also provided that "[plaintiff] agrees, for
additional compensation, to perform extra work, conform and abide by all
decisions issued by [defendant], when [defendant] has been directed to
perform extra work, conform and abide by similar decisions issued by
[NJDOT]." Further, under the Rider, plaintiff was "not . . . responsible for
hidden conditions not detectable upon a reasonable inspection of the jobsite
conditions" and, as noted, defendant was to "assist [plaintiff] to pursue
additional compensation" pursuant to Article 6 of the subcontract.
Where additional work was proposed, plaintiff was "not . . . obligated to
proceed . . . unless a price [was] agreed upon in writing." In the event an
agreement could not be reached, defendant retained the ability to, "direct, in
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writing, for [plaintiff] to perform the work on a time and material plus
allowable markup per the [p]rime [c]ontract and Article 6" of the subcontract.
The Rider also stated that "[p]laintiff shall receive full compensation for
all work performed including [c]hange [o]rder work as long as work is
acceptable to [defendant] and [NJDOT]," and that compensation was not to be
"unreasonably withheld and shall be given in a timely manner." Finally, the
Rider revised Article 25 of the subcontract "to provide that the losing party
shall be responsible for all costs, disbursements, and expenses, including
reasonable attorney fees incurred by the prevailing party as a result of any
claim or dispute between [plaintiff] and [defendant] if so directed by . . . the
court."
As noted, Steven testified that he did not know about the PSE&G wire
interference prior to bidding on the project or signing the subcontract and that
had he known about the interference, he would never have signed it. "[E]xtra
work," under the subcontract, payable on a time and material basis, had a
lower percentage mark-up for profit and overhead than Steven testified he
would have included in a bid. He explained: "If I were to price that PSE&G
extra work when I bid the original quote, because of all the uncertainties and
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actual overhead and actual profit that we normally use in our bidding, it would
be $1 million."
Steven also testified at trial that on September 16, 2013, plaintiff began
work on the project. The following day, plaintiff discovered that certain
PSE&G wires were too close to the platform as designed. Immediately after
discovering the PSE&G wire interference, Steven and Eberle notified
Monioudis and Victor Uscilla, defendant's project field engineer, who stated
they were "shocked" at the discovery.
Grant testified that he had no idea about the potential PSE&G wire
interference until after the subcontract had been signed. According to Grant,
"it was to [defendant]'s advantage to tell him everything that [defendant] knew
or should have known in order to protect [defendant] when [he] wrote the
schedule. So if . . . there was something wrong in the access to the job site,
[defendant] could claim against [NJ]DOT."
The proximity of the high voltage PSE&G wires caused the plans for the
installation of the temporary shielding to be altered. When plaintiff contacted
defendant and described the updated plan, defendant directed plaintiff to
proceed with the change and extra work related to the PSE&G wire
interference on a time and material basis and plaintiff complied with that
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directive. As a result of the PSE&G wire interference, plaintiff had to change
the coordination and scheduling of its work, as well as the methods used to
complete it. In this regard, plaintiff had to deliver materials from the ground
up, instead of lowering them down from the bridge, which was more costly.
Furthermore, Steven testified that prior to discovering the PSE&G wire
interference, plaintiff had planned on working one shift per day. However,
even after the discovery, Steven stated that because the project operated on a
fixed schedule, "there [were] no extensions allowed . . . which made it very
difficult." Plaintiff had to increase its manpower in order to accommodate the
schedule. As a result, plaintiff's employees worked triple shifts, twenty-four
hours a day, seven days a week, and through rain and snow to make up for the
delays caused by the wire interference. Steven testified he slept in a trailer on
site most nights. Because of these changes, plaintiff began to experience
further financial difficulties but nevertheless completed its work, on time, by
the end of May 2014.
Defendant then filed a claim with NJDOT alleging that it was entitled to
additional compensation because the PSE&G wire interference was an
"existing latent condition." Defendant and plaintiff worked together to
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produce a claims package for the additional work, using plaintiff 's time and
material costs documentation.
On May 12, 2014, defendant submitted a final claim package to NJDOT,
in which it used minutes from the aforementioned project meetings to
determine the amount of extra compensation needed. Defendant's claim
included the total amount of plaintiff's time and material costs, which totaled
$697,380.86. The entire claim, including the amounts claimed by defendant
and other subcontractors, was approximately $1.2 million.
After meetings and discussions between NJDOT, defendant, and
plaintiff, NJDOT discounted the claim based upon its specifications and
offered $441,482.79 to plaintiff for the extra work on the PSE&G wire
interference. Defendant communicated NJDOT's offer by way of e-mail to
Ellen, who responded: "Please settle [plaintiff]'s portion of the PSE&G extra
for $441,482.79."
Ellen testified that, meanwhile, in May 2014, when plaintiff had nearly
completed its work on the project, defendant advised plaintiff that it would not
be paid for its time and material costs related to the PSE&G wire interference
until defendant was paid by NJDOT. By that time, plaintiff was due over
$697,000 for the time and material costs related to the wire interference. In
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response, plaintiff expressed its desire to pay its suppliers, unions, and
insurance premiums, but defendant refused to make any payment because
plaintiff "owed . . . too much to the vendors and the unions." Ellen stated she
continued requesting the payments and began "begging" defendant because
plaintiff "was desperate to get payments." Eventually, in March 2015,
defendant used some of plaintiff's funds to pay two suppliers directly but
maintained its refusal to pay plaintiff's union benefits.
As a result of plaintiff's inability to pay its bills, it received violation
notices from the New Jersey Department of Labor, with interest, totaling
approximately $126,000. On June 8, 2015, plaintiff was "debarred," meaning
it was not allowed to work on public works projects for three years. Ellen and
Steven were also personally debarred. As a result of those violations and the
debarment, plaintiff was "effectively . . . put out of business" and at the time of
Ellen's testimony at trial, was "no longer operating."
In November 2015, after plaintiff's debarment, defendant paid the unions
with plaintiff's money. Notwithstanding the fact that the unions were
eventually paid, plaintiff incurred interest and penalties on the late payment
and remained debarred, and the Department of Labor turned over the debt
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owed by plaintiff to a collection agency. Furthermore, at the time of trial,
defendant still withheld $66,221.14 that was owed to plaintiff.
On April 19, 2016, plaintiff filed a complaint against defendant alleging:
1) violation of the PPA; 2) breach of contract; 3) unjust enrichment; 4)
quantum meruit; 5) fraudulent inducement; and 6) breach of the covenant o f
good faith and fair dealing.
On November 3, 2017, defendant filed a motion for partial summary
judgment on the breach of contract, unjust enrichment, quantum meruit,
fraudulent inducement, and breach of the covenant of good faith and fair
dealing counts. In support of its motion, defendant argued that the matter was
"controlled by plain and unambiguous contract language," which defendant
claimed it complied with "to the letter." Defendant contended that it "held full
discretion to settle the claim itself . . ., but still only settled the claim once
[plaintiff] gave its express written consent." It also maintained that plaintiff
was "bound by the subcontract terms limiting its legal rights to assert any
claim for further compensation, because recovery is capped by any such
recover[y] that [defendant] could obtain on [plaintiff]'s behalf for the claim."
Finally, defendant argued that plaintiff's claim was barred by the doctrine of
accord and satisfaction.
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The following month, plaintiff filed a cross-motion for partial summary
judgment on the PPA, breach of contract, fraudulent inducement, and
attorneys' fees counts. The court found genuine issues of material fact
regarding all claims and denied both parties' motions.
The matter proceeded to a jury trial which took place between January 9,
2018 and January 25, 2018. At trial, plaintiff presented live testimony from
the Petrics, Jeffrey Overton, a NJDOT manager, Peter Wu, defendant's
chairman, Eberle, and Grant, as well as documentary evidence. As noted, it
also presented the deposition testimony of Persico.
Defendant presented testimony from Uscilla, Jennifer Sokoloski, senior
project engineer of defendant, and Thomas McIntyre, the former project
superintendent for defendant's consultant on the project, and documentary
evidence. At the close of plaintiff's case-in-chief, defendant moved for
involuntary dismissal of plaintiff's fraud and contract claims, which the court
denied. At the close of the evidence, defendant moved for a directed verdict
on plaintiff's fraud claim. The court denied that motion as well.
As noted, the jury returned a verdict in favor of plaintiff on the PPA,
breach of contract, and fraud claims and awarded plaintiff $1,850,000 in
damages. The same day, the court entered a judgment reflecting that verdict.
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Three weeks later, defendant moved for judgment notwithstanding the
verdict (JNOV) pursuant to Rule 4:40-2(b), for a new trial pursuant to Rule
4:49-1, and/or for a new trial on damages or for a remittitur. After hearing
oral argument, the court issued an oral decision and a corresponding March 16,
2018 order in which it denied defendant's motion for a new trial and left the
liability verdict undisturbed. It also denied defendant's motion for a new trial
or to set aside the verdict as to the fraudulent inducement claim and upheld the
punitive damages award. The court, however, reduced the amount of the jury
award for plaintiff's PPA claim from $250,000 to $66,221.04. 3
In support of its decision to deny defendant a new trial or set aside the
verdict with respect to the fraud claim, the court explained that the trial
evidence "established that [defendant] knew about a potential 'Proximity Act'
violation as of at least August 14, 2013." Further, the court stated that the jury
knew that "[plaintiff] was facing financial difficulties prior to . . . entering into
the subcontract" and that Steven "stated that the project would have been bid
higher" had plaintiff been aware of the latent site condition. In this regard, the
court determined that "[i]t was not unreasonable for the jury to find that
3
The court, on March 27, 2018, amended its March 16, 2018 orders to reflect
the correct dates that the orders were signed.
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knowledge of the proximity of live wires to the shielding that was to be
installed by [plaintiff] was a material misrepresentation that should have been
disclosed when the amount of the subcontract was negotiated . . . ."
Regarding the breach of contract claim, the court stated that sufficient
evidence had been presented a trial to permit the jury to award plaintiff
$800,000 in compensatory damages as "[t]hey were given the exact
calculations down to . . . $751,596.91" and were informed that plaintiff was
"entitled to damages resulting from [defendant]'s violation of the [PPA] as
well as lost profits in any amount to be determined at trial suffered by
[plaintiff]." Finally, the court determined that the jury could reasonably have
concluded that defendant concealed the latent PSE&G site condition to obtain
more favorable pricing for the job from plaintiff.
Plaintiff moved for attorneys' fees under the PPA and the subcontract
and requested a fifty percent fee enhancement. After hearing oral arguments,
the court awarded plaintiff a total of $260,911.36. That award was comprised
of $220,243.50 in attorneys' fees, $18,643.51 in costs, and a ten percent
enhancement equaling $22,024.35. In support of its determination, the court
issued a March 29, 2019 oral decision and corresponding order. In its oral
decision, the court found that "the billing in this case was appropriate," and
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that it was proper to award plaintiff attorneys' fees incurred prior to the filing
of the complaint because "it all seemed related to the same issue, which is . . .
the shielding work that was done on this project." This appeal followed.
II.
Defendant first argues that the trial court erred in denying its motion for
partial summary judgment on the fraud claim. Next, it maintains that the court
erred by denying summary judgment on plaintiff's breach of contract claim
because, as provided for in the subcontract, plaintiff received the monetary
amount that was approved by NJDOT. Defendant also contends that summary
judgment was warranted in its favor on plaintiff's PPA claim because the PPA
is inapplicable when the parties have agreed to an alternative payment
mechanism, such as the subcontract here which permitted defendant to
withhold funds to pay plaintiff's vendors and suppliers. We first address the
applicable standard of review and then each of defendant's claims in the order
presented.
Our review of a ruling on summary judgment is de novo, applying the
same legal standard as the trial court. Townsend v. Pierre, 221 N.J. 36, 59
(2015). "Summary judgment must be granted if 'the pleadings, depositions,
answers to interrogatories and admissions on file, together with the affidavits,
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if any, show there is no genuine issue as to any material fact challenged and
that the moving party is entitled to a judgment . . . as a matter of law. '" Town
of Kearny v. Brandt, 214 N.J. 76, 91 (2013) (quoting R. 4:46-2). We accord
no special deference to the trial judge's conclusions on issues of law. Nicholas
v. Mynster, 213 N.J. 463, 478 (2013).
A. Fraud
As noted, defendant contends in Point I.A of its merits brief that the trial
court committed error when it denied defendant's motion for summary
judgment on plaintiff's fraud claim. Specifically, it contends that as a matter
of law, plaintiff failed to establish a prima facie claim of fraud because: 1) the
subcontract required plaintiff to inspect the site, and thus any alleged fraud is
not cognizable in conjunction with a contract claim; 2) plaintiff knew about the
existence of the PSE&G wires but made no inquiry into a potential Proximity
Act violation and could not have reasonably relied on any omission by
defendant; and 3) plaintiff failed to establish that defendant owed it a duty to
disclose the proximity of the PSE&G wires. We disagree.
Initially, we note that defendant's arguments in its moving brief
submitted to the trial court related to the fraud claim were extremely limited.
In fact, that brief contained no point heading regarding the fraud claim and
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stated only, within its breach of contract analysis, that "[plaintiff]'s claim
related to the PSE&G extra work rises and falls based upon the express
contract language of the subcontract" and that "[plaintiff] has no right for
further recovery on the PSE&G claim . . . that has [not] already been presented
to the NJDOT by [defendant] and [plaintiff] and fully resolved." Defendant
did not use the word "extraneous," argue that no duty to disclose existed, nor
contend that any reliance by plaintiff was unreasonable. Even in its reply
brief, which addressed plaintiff's fraud claim in more detail, defendant limited
its argument to plaintiff's failure to show that "(1) [defendant] knew of any
falsity, (2) that [plaintiff] itself did not know of the allegedly concealed
PSE&G condition, and (3) that [plaintiff] was even damaged since the PSE&G
claim was ultimately presented to the NJDOT, negotiated, and settled at the
direction of [plaintiff]."
Likewise, defendant did not present these arguments in support of either
motion to dismiss at trial. On its motion at the close of plaintiff's evidence,
counsel merely argued that plaintiff had not "identified a person . . . [or] a
date" of the alleged fraud and that "[Steven] was aware of the PSE&G line."
Further, at the close of all of the evidence, defense counsel stressed the clear
and convincing evidence standard and characterized the case as "as best . . . a
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case about . . . a utility line that may or may not have impacted [plaintiff's]
work" and not one of fraud. And, in its brief in support of its motion for
JNOV and/or a new trial, other than a spare quotation regarding a duty to
disclose from an unreported opinion, defendant again failed to put forth any of
the arguments it advances on appeal. Instead, as on the prior motions,
defendant's fraud argument revolved around whether it acted with intent in
concealing the PSE&G wire interference, whether plaintiff knew or could have
known of the condition, and whether plaintiff was actually damaged.
Defendant's generalized statements throughout the litigation did not
suffice to preserve the arguments it seeks to advance on appeal, and we
consider those contentions waived. See Nieder v. Royal Indem. Ins. Co., 62
N.J. 229, 234 (1973) ("[A]ppellate courts will decline to consider questions or
issues not properly presented to the trial court when an opportunity for such a
presentation is available 'unless the questions so raised go to the jurisdiction of
the trial court or concern matters of great public interest.'"). Such arguments
should be raised specifically in order to be preserved for appeal, not swept into
general requests for dismissal. See United States v. Hoffecker, 50 F.3d 137,
162 (3d. Cir. 2008) ("A skeletal 'argument,' really nothing more than an
assertion, does not preserve a claim. Especially not when the brief presents a
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25
passel of other arguments, as [defendant]'s did." (alteration in original)
(quoting United States v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991))). For
purposes of completeness, however, we address and reject defendant's
contentions on the merits.
In order to establish a claim for fraudulent inducement, a plaintiff must
prove a misrepresentation of material fact, knowledge of belief by the
defendant of its falsity, intent that the other party rely on the
misrepresentation, and reasonable reliance thereon by the other party. Nolan
v. Lee Ho, 120 N.J. 465, 472 (1990). Fraud in the inducement does not differ
materially from common law fraud, as it provides a cognizable basis for
equitable relief in the event a false promise induced reliance. See Lipsit v.
Leonard, 64 N.J. 276 (1974). Plaintiff must prove each element by "clear and
convincing evidence." Stochastic Decisions, Inc. v. DiDomenico, 236 N.J.
Super. 388, 395 (App. Div. 1989).
However, a plaintiff is prohibited "'from recovering in tort economic
losses to which their entitlement only flows from contract.'" Bracco
Diagnostics, Inc. v. Bergen Brunswig Drug Co., 226 F. Supp. 2d 557, 562
(D.N.J. 2002) (quoting Duquesne Light Co. v. Westinghouse Elec. Co., 6 F.3d
604, 618 (3d Cir. 1995)). This doctrine "functions to eliminate recovery on 'a
A-3571-17T2
26
contract claim in tort clothing.'" G&F Graphic Servs. v. Graphic Innovators,
Inc., 18 F. Supp. 3d 583, 588-89 (D.N.J. 2014) (quoting SRC Constr. Corp. v.
Atl. City Hous. Auth., 935 F. Supp. 2d 796, 801 (D.N.J. 2013)); see also New
Mea Constr. Corp. v. Harper, 203 N.J. Super. 486, 494 (App. Div. 1985)
(finding that defendant's failure to use construction material specified in the
parties' contract was a type of conduct "not ordinarily alleged in a tort case"
and could not give rise to a separate claim by "[m]erely nominally casting [the]
cause of action" as a tort claim).
While New Jersey courts have applied this doctrine in the strict liability
and negligence contexts, see, e.g. Spring Motors Distribs., Inc. v. Ford Motor
Co., 98 N.J. 555 (1985); Alloway v. General Marine Indus., L.P., 149 N.J. 620(1997), "[n]o New Jersey Supreme Court case holds that a fraud claim cannot
be maintained if based on the same underlying facts as a contract claim."
Gleason v. Norwest Mortgage, Inc., 243 F.3d 130, 144 (3d Cir. 2001). In fact,
the law on whether a plaintiff may recover for purely economic loss on
concurrent fraud and contract claims has arisen predominantly out of the New
Jersey federal courts and other jurisdictions, not our state courts.
Generally, "[t]he pattern that has emerged in New Jersey decisional law
is that claims for fraud in the performance of a contract, as opposed to fraud in
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27
the inducement of a contract, are not cognizable under New Jersey law."
Bracco, 226 F. Supp. 2d at 564. "Courts have continued to affirm 'the
conceptual distinction between a misrepresentation of statement of intent at the
time of contracting, which then induces detrimental reliance on the part of the
promisee, and the subsequent failure of the promisor to do what he has
promised.'" Id. at 564 (quoting LoBosco v. Kure Eng'g Ltd., 891 F. Supp.
1020, 1032 (D.N.J. 1995)). In this regard, only those pre-contractual
misrepresentations that are extraneous to the parties' contract may be brought
alongside a breach of contract claim. Ibid; see also G&F, 18 F. Supp. 3d at
593 (permitting common law fraud claim based on alleged pre-contractual
misrepresentation which was "necessarily extraneous to the contract"); Florian
Greenhouse, Inc. v. Cardinal IG Corp., 11 F. Supp. 2d 521, 528 (D.N.J. 1998)
(permitting fraud claim but explaining that "the factual basis for the alleged
fraud is extraneous to the contract"); Genovese v. State Farm Mut. Ins. Co.,
106 A.D. 3d 866, 867 (N.Y. App. Div. 2013) (holding that the plaintiff could
not maintain a fraud action alongside its breach of contract action because the
fraud claim was "based on the same allegations as the breach of contract"
claim); S&D Maintenance Co. v. City of New York, 169 A.D. 2d 417, 418
(N.Y. App. Div. 1991) (same).
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Where a pre-contractual misrepresentation relates to a defendant's future
intent to perform under the contract, it will be considered intrinsic to the
contract, and any related fraud claims will be dismissed. RNC Sys. v. Modern
Tech. Grp., Inc., 861 F. Supp. 2d 436, 451 (D.N.J. 2012); see also Wyle Inc. v.
ITT Corp., 13 N.Y.S. 3d 375, 376 (N.Y. App. Div. 2015) (stating that
"pleadings must allege misrepresentations of present fact, not merely
misrepresentations of future intent to perform under the contract, in order to
present a viable claim that is not duplicative of a breach of contract claim");
Vives v. Rodriguez, 849 F. Supp. 2d 507, 521 (E.D. Pa. 2012) (dismissing
because the misrepresentations as to defendant's duties were later enshrined in
the contract). Cf. Ohm NYC LLC v. Times Sq. Assoc. LLC, 96 N.Y.S. 3d
198, 199 (N.Y. App. Div. 2019) (holding that a landlord's misrepresentations
as to the leased premises were "misrepresentations of a then present fact"
creating a "cause of action for fraudulent inducement that is not duplicative of
the breach of contract claim").
Moreover, without an "independent duty imposed by law," a fraud claim
is not extraneous to the contract. Saltiel v. GSI Consultants, Inc., 170 N.J.
297, 310 (2001); see also Int'l Minerals & Mining Corp. v. Citicorp N.A., Inc.,
736 F. Supp. 587, 597 (D.N.J. 1990) ("It has . . . consistently been held that an
A-3571-17T2
29
independent tort action is not cognizable where there is no duty owed to the
plaintiff other than the duty arising out of the contract itself."); Galdieri v.
Monsanto Co., 245 F. Supp. 2d 636, 650-51 (E.D. Pa. 2002) (granting
defendant's motion for summary judgment on plaintiffs' misrepresentation
claim because each alleged misrepresentation "addresse[d] a breach of duty
incorporated into the parties' various agreements" and was thus "'intertwined'
with plaintiff's breach of contract claim").
New Jersey courts have concluded that "[s]ilence in the face of a duty to
disclose" constitutes fraud in the following circumstances: 1) "fiduciary
relationships such as principal and agent or attorney and client"; 2) where
either party, by entering the transaction, "'expressly reposes . . . a trust or
confidence in the other . . . or [because of the] circumstances of the case, the
nature of their dealings, or their position towards each other, such a trust and
confidence . . . is necessarily implied'"; and 3) "contracts or transactions which
in their essential nature, are 'intrinsically fiduciary,' and . . . 'necessarily call[]
for perfect good faith and full disclosure.'" United Jersey Bank v. Kensey, 306
N.J. Super. 540, 551 (App. Div. 1997) (quoting Berman v. Gurwicz, 189 N.J.
Super. 89, 93-94 (Ch. Div. 1981)). In the second class of transactions, "[t]he
nature of the transaction is not the test," but rather "[e]ach case must depend
A-3571-17T2
30
on its own circumstances" because "[t]he trust and confidence, and the
consequent duty to disclose, . . . may be necessarily implied from [the parties']
acts and other circumstances." 3 J. Pomeroy, A Treatise on Equity
Jurisprudence 553 (5th ed. 1941).
Similarly, courts do not consider fraud claims extraneous to contract
claims where both claims possess "the same measure of damages." RNC Sys.,
861 F. Supp. 2d at 454; see also Manas v. VMS Assocs, LLC, 863 N.Y.S.2d 4,
7-8 (N.Y. App. Div. 2008) (holding that "the fraud-based causes of action are
duplicative of the breach of contract cause of action" where "plaintiff did not
allege that she sustained any damages that would not be recoverable under her
breach of contract cause of action"). Essentially, in order to maintain
simultaneous claims in tort and contract, a defendant must "cause harm to the
plaintiff distinct from those caused by the breach of contract." Pub. Serv. Ent.
Grp., Inc. v. Philadelphia Elec. Co., 722 F. Supp. 184, 201 (D.N.J. 1989); see
also Saltiel, 170 N.J. at 310 (holding that the failure of the defendant to apply
"specific technical skills" required under a construction contract was "a breach
of its contractual duties," but did not constitute a separate tort).
Applying the facts against these legal principles, we conclude that
plaintiff's fraud claim was extraneous to the parties' subcontract and that the
A-3571-17T2
31
court properly permitted the claim to survive summary judgment. The record
indicates that defendant was aware of the wire interference as early as the
August 14, 2013 NJDOT progress meeting. Steven signed the subcontract on
September 12, 2013, and plaintiff did not discover the latent condition
independently, despite a prior walk-through of the premises, until September
17, 2013.4 At his deposition, Steven stated that had he known of the wire
interference, he would have bid $1 million on the project instead of the
$697,000 that plaintiff ultimately bid. Further, defendant's omission was that
of a present fact, not a future intent to perform. Therefore, plaintiff's claim
clearly relates to reliance on pre-contractual misrepresentations.
4
While we note that defendant indicated in its reply brief in support of its
partial summary judgment motion that representatives from plaintiff attended a
September 5, 2013 meeting in which the parties discussed the PSE&G wire
interference, the document it references was not included in the record on
appeal. In any event, as the motion record also contained evidence that
plaintiff was unaware of the wire interference, the issue of whether plaintiff
knew of the wire interference was, at most, a disputed material fact and
precluded the granting of partial summary judgment to defendant on the fraud
claim. Likewise, defendant raised the same issue at the close of plaintiff's
evidence, at the close of all the evidence, and at oral argument in support of its
motion for JNOV or a new trial. All motions were properly denied for the
same reason, as the jury heard Steven and Eberle testify that plaintiff was
unaware of the wire interference. Thus, a judgment in defendant's favor was
unwarranted based on the evidence adduced at trial, and we defer to the jury's
verdict and its role in determining witness credibility.
A-3571-17T2
32
Sufficient evidence in the motion record also existed for the court to
conclude that defendant violated an independent duty to disclose when it failed
to inform plaintiff of the PSE&G wire interference prior to entering into the
subcontract. Given that the subcontract related to a potentially dangerous
construction project, the circumstances indicate that it was "necessarily
implied" that defendant would make plaintiff aware of a situation, such as high
voltage wires in proximity to the work site, which could result in grave injury
to plaintiff's employees. See United Jersey Bank, 306 N.J. Super. at 551.
Defendant's reliance on Globe Motor Car Co. v. First Fidelity Bank, 273
N.J. Super. 388, 395 (Law Div. 1993) for the proposition that "a party has 'no
duty to disclose matters of which the other party has actual or constructive
knowledge or as to which the information or means of acquiring information of
the two parties is equal'" is misplaced. Defendant claims that because plaintiff
knew that the PSE&G wires existed, "it had at least equal means of acquiring
information about the potential for the wires to interfere with its work."
Defendant reads Globe Motor Car too broadly. That case involved a car
dealership whose employee committed embezzlement by falsifying records.
The car dealership sued a bank whose role it was to extend credit to the
dealership and to "inspect Globe's records and the vehicles" as the bank saw
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33
fit. Id. at 391. The Law Division found that the bank did not have a fiduciary
duty to uncover and notify the plaintiff of its own employee's embezzlement
scheme based on the parties' relationship as debtor and creditor. Id. at 394. In
this regard, it noted that the bank did not possess knowledge of the
embezzlement, but that the plaintiff could have simply examined the bank 's
monthly reports to determine whether "any deposits [were] missing or if
checks [were] drawn without authority." Id. at 394-95.
Here, however, the motion record supported the reasonable inference
that plaintiff had neither actual nor constructive knowledge of the wires '
voltage and proximity to the platform. As Steven and Eberle both noted,
plaintiff could not have identified as much during their walk-through because
the platform had not yet been built. Further, unlike the bank in Globe Motor
Car, defendant was in a much better position to discover and discern the
voltage and proximity of the wires because it was involved the design of the
platform and attended various meetings with PSE&G. As such, the parties did
not have equal means of identifying the voltage and proximity of the wires.
Moreover, as discussed infra Section IV, plaintiff's claimed damages for
fraud arise separately from its claimed damages for breach of contract. As
noted, at Steven's deposition, he testified that he would have bid $1 million on
A-3571-17T2
34
the project instead of $697,000. Those damages stem from defendant's failure
to disclose the PSE&G wire interference to plaintiff before the subcontract was
signed. The remainder of the evidence in the motion record regarding
plaintiff's claimed damages – i.e., $66,221.04 in payments that defendant
failed to disburse, $255,517 representing the difference between pl aintiff's
$697,000 bid and the $441,482.79 that the NJDOT approved, $126,856.66 in
fees and penalties from the Department of Labor, and other costs related to
billing – arise out of defendant's performance under the subcontract. As such,
we conclude that defendant did "cause harm to the plaintiff distinct from those
caused by the breach of contract." Pub. Serv. Ent. Grp., Inc., 722 F. Supp. at
201.
Defendant's reliance on P.T. & L. Constr. Co. v. Dep't of Transp., 108
N.J. 539 (1987) is also misplaced. Defendant contends that P.T. & L. supports
the proposition that "where there is a false representation about, or actual
concealment of information regarding site conditions, a contractor is entitled to
compensation of extra work . . . [b]ut . . . the claim remains a breach of
contract claim" and not a fraud claim.
In P.T. & L., the plaintiff construction company contracted with the
State to perform site clearance, underground, and roadway work, including
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35
"stripping" on Route 78 in Springfield. Id. at 542. Because of poor working
conditions which led to flooding on the west end of the work site, the
"stripping" took 171 days instead of the 3 days allocated. Id. at 543. The
plaintiff contended that "the State, through the contract process, had misled it
into believing that it would be working under dry or normal working
conditions by use of the term 'stripping,'" ibid., and argued that "the work
should have been described to bidders as 'wet excavation,'" id. at 546. It also
asserted that certain specified materials and elements of the design drawings
indicated "dry conditions" of work. Id. at 547.
The P.T. & L. Court held that "the State's nondisclosure of material facts
constituted a misrepresentation of site conditions" and allowed the plaintiff to
recover for breach of contract. Id. at 541. In doing so, it distinguished a claim
based only on "implicit" representations, which would not support recovery, as
opposed to "a claim founded on the State's withholding information that
conditions would be wet." Id. at 541-42.
Notably, the P.T. & L. Court did not address the propriety of a fraud
claim under those circumstances at all, as the plaintiff in that case asserted
only a claim for breach of contract. While defendant argues that P.T. & L.
held that "even where an owner or contractor is alleged to have misrepresented
A-3571-17T2
36
site conditions . . . the damages, if any, are contract damages and depend upon
the specificity of the allegedly misrepresented site conditions or
specifications," our Supreme Court did not so limit a plaintiff's recourse
regarding a fraud allegation. The mere fact that the P.T. & L. Court permitted
a plaintiff to recover for breach of contract does not preclude plaintiff in this
case from recovering under a fraud claim.
As we have concluded that plaintiff's fraudulent inducement claim is
extraneous to its contract claim and that defendant had a duty to disclose the
latent wire interference, the final step in the analysis is to determine whether
plaintiff reasonably relied on defendant's omission. Steven certified in
plaintiff's opposition to defendant's motion for partial summary judgment that
at the time plaintiff submitted its bid, it was impossible for it to know of the
wire interference, as the wires "[were] not identified on any of the Project
plans or specifications" prepared by defendant and Safespan, and that despite a
walk-through of the work site, "it was not apparent that the cables were
proximate to the area where the temporary shielding would eventually be
installed." Given that defendant took part in designing the platform and did
not disclose the proximity of the wires and that Steven indicated his bid would
have been significantly different had he been made aware of the dangerous
A-3571-17T2
37
conditions known by defendant, we conclude sufficient evidence existed for
the court to deny defendant's summary judgment motion, and for the jury to
have concluded, that plaintiff reasonably relied on that omission in submitting
its bid. As such, because defendant misrepresented a present fact prior to
entering into the subcontract, which it had a separate duty to disclose, and
plaintiff reasonably relied on that nondisclosure, we conclude the trial court
properly denied summary judgment on the fraud claim.
B. Breach of Contract
In Point II.A, defendant maintains that "the [s]ubcontract unambiguously
provided that, in exchange for extra work, [plaintiff] was only entitled to as
much compensation as . . . the NJDOT was willing to pay" under both Articles
6 and 7, and that the trial court misconstrued the subcontract. Defendant
further asserts that the court should have found that defendant satisfied its
contractual duties with respect to plaintiff's PSE&G claim at the summary
judgment stage. We disagree.
At the appellate level, "[i]nterpretation and construction of a contract is
a matter of law for the court subject to de novo review." Fastenberg v.
Prudential Ins. Co., 309 N.J. Super. 415, 420 (App. Div. 1998). Appellate
courts decide such purely legal questions without deferring to a lower court 's
A-3571-17T2
38
"interpretation of the law and the legal consequences that flow from
established facts." Manalapan Realty, LP v. Twp. Comm. of Manalapan, 140
N.J. 366, 378 (1995); see also Zaman v. Felton, 219 N.J. 199, 216 (2014).
When interpreting a contract, the court should consider the plain
language of the contract, the circumstances surrounding the contract, and the
contract's purpose. Highland Lakes Country Club & Cmty. Ass'n v. Franzino,
186 N.J. 99, 115-16 (2006). In doing so, and in determining whether a
contract is ambiguous, courts may consider extrinsic evidence offered in
support of conflicting interpretations. Teamsters Indus. Emps. Welfare Fund
v. Rolls-Royce Motor Cars, Inc., 989 F.2d 132, 135 (3d Cir. 1993). Such
evidence may include the structure of the contract, the parties' bargaining
history, and the conduct of the parties that reflects their understanding of the
contract's meaning. Ibid.Although courts may use course of performance and course of dealing in
interpreting contract terms, "express terms are given greater weight than
course of performance [and] course of dealing." Restatement (Second) of
Contracts § 203(b) (Am. Law. Inst. 1981). However, "where the terms of a
contract are clear and unambiguous there is no room for interpretation or
construction and the courts must enforce those terms as written." Karl's Sales
A-3571-17T2
39
& Serv., Inc. v. Gimbel Bros., 249 N.J. Super. 487, 493 (App. Div. 1991). It
should not "rewrite a contract for the parties better than or different from the
one they wrote for themselves." Kieffer v. Best Buy, 205 N.J. 213, 223
(2011).
Contrary to defendant's contention, plaintiff's interpretation is supported
by the clear language of Exhibit A and the Rider to Exhibit A, which
specifically modify or supersede the terms of the subcontract. In this regard,
the Rider to Exhibit A states that plaintiff was entitled to "full compensation
for all work performed including [c]hange [o]rder work as long as work is
acceptable to [defendant] and [NJDOT]. Such compensation shall not be
unreasonably withheld and shall be given in a timely manner." Both Article 6
and Exhibit A define "full compensation" as time and material costs plus
allowable markup. The record indicates that even considering the additional
unexpected change order work, plaintiff completed its work within the original
timeframe contemplated by the parties under the subcontract and there is no
indication in the record that either defendant or NJDOT deemed plaintiff's
work unacceptable. Moreover, it is undisputed that plaintiff did not receive
full compensation for its change order work.
A-3571-17T2
40
Further, a genuine issue of material fact existed as to whether
compensation to plaintiff was, as proscribed by the Rider to Exhibit A,
"unreasonably withheld and . . . given in a timely manner." Indeed, as noted,
neither party disputes that plaintiff has yet to receive the full amount to wh ich
defendant alleges plaintiff is entitled. As such, summary judgment for
defendant would have been improper on plaintiff's contract claim as well.
C. Prompt Payment Act
In Point III, defendant argues that the trial court erred in denying
summary judgment on plaintiff's PPA claim. Specifically, it asserts that
"[b]ecause the summary judgment record undisputedly established that
[plaintiff] had failed to timely pay its vendors and suppliers, there was no
genuine issue of material fact as to whether the [s]ubcontract entitled
[defendant] to withhold payment from [plaintiff]." In this regard, defendant
maintains that the subcontract entitled it "to withhold funds in order 'to assure
payment of [plaintiff]'s unpaid obligations.'" In opposition, plaintiff correctly
notes that defendant did not move for summary judgment on that claim in the
trial court.
We reject defendant's argument that it was entitled to summary judgment
on the PPA claim, as it never moved for summary judgment below on that
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41
claim. "[A]ppellate courts will decline to consider questions or issues not
properly presented to the trial court when an opportunity for such a
presentation is available 'unless the questions so raised go to the jurisdiction of
the trial court or concern matters of great public interest.'" Nieder, 62 N.J. at
234. As defendant's summary judgment claim fulfills neither of those
conditions, we decline to address its argument in the context of whether
defendant was entitled to summary judgment.
However, we note that by raising the issue in opposition to plaintiff's
motion for partial summary judgment, defendant properly preserved the
argument that the PPA is subordinate to the parties' subcontract and address
that argument on the merits. See Nat'l Westminster Bank N.J. v. Anders
Eng'g, Inc., 289 N.J. Super. 602, 609-610 (App. Div. 1996) (finding defendant
sufficiently preserved a defense for appellate review where that defense was
raised in its trial level opposition brief). As such, we conclude that
insufficient evidence supported a jury verdict on the PPA and reverse that
portion of the verdict.
N.J.S.A. 2A:30A-2(b) provides that where a subcontractor "has
performed in accordance with the provisions" of a subcontract, the prime
contractor has accepted the work, and "the parties have not otherwise agreed in
A-3571-17T2
42
writing, . . . the prime contractor shall pay to its subcontractor . . . within [ten]
calendar days of the receipt of each . . . payment . . . the full amount received
for the work of the subcontractor . . . based on the work completed or the
services rendered . . . ." (emphasis added). Where "a payment due pursuant to
. . . this section is not made in a timely manner, the delinquent party shall be
liable for the amount of money owed under the contract, plus interest at a rate
equal to the prime rate plus 1%." N.J.S.A. 2A:30A-2(c).
Here, the subcontract permits defendant to withhold funds from plaintiff
"to ensure payment of [plaintiff]'s obligations," such as the unions and
vendors. The trial court noted as much in denying plaintiff's motion for
summary judgment, stating that defendant "argue[d] that the withholding of
the funds was necessary in order to pay those vendors." As such, based on a
plain reading of the statute, the parties "otherwise agreed in writing" on the
conditions by which defendant would disburse payments to plaintiff. Plaintiff
does not dispute that it owed payments to its vendors and unions. Therefore,
defendant's failure to disburse funds to plaintiff was governed by the
subcontract and not the PPA, and there was insufficient evidence to support a
jury verdict for plaintiff under the statute.
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43
III.
In Point II.B, defendant argues that the trial court erred in denying its
motions for involuntary dismissal of plaintiff's contract claim at the close of
plaintiff's evidence, as well as its motion for judgment notwithstanding the
verdict and/or for a new trial on the contract claim. Specifically, it contends
that the breach of contract claim should not have been submitted to the jury
because plaintiff "failed to show that [defendant] did anything other than fully
comply with its obligations under the [s]ubcontract." According to defendant,
"[a]t trial, the evidence unequivocally showed that [defendant] paid [plaintiff]
all amounts required under the [s]ubcontract." Defendant also contends the
trial court erred "by deeming the [s]ubcontract ambiguous and permitting parol
evidence to 'interpret' it." We disagree.
A motion for judgment may be made at the close of plaintiff's case, Rule
4:37-2(b) or after the verdict, Rule 4:40-2(b). Both motions are governed by
the same evidential standard: "[I]f, accepting as true all the evidence which
supports the position of the party defending against the motion and according
[it] the benefit of all inferences which can reasonably and legitimately be
deduced therefrom, reasonable minds could differ, the motion must be denied
. . . ." Verdicchio v. Ricca, 179 N.J. 1, 30 (2004) (quoting Estate of Roach v.
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44
TRW, Inc., 164 N.J. 598, 612 (2000)); see also ADS Assocs. Grp., Inc. v.
Oritani Sav. Bank, 219 N.J. 496, 511 (2014). We apply the same standard on
appeal. Estate of Roach, 164 N.J. at 612.
Moreover, Rule 4:49-1(a) provides that a trial court shall grant a new
trial if, "having given due regard to the opportunity of the jury to pass upon the
credibility of the witnesses, it clearly and convincingly appears that there was
a miscarriage of justice under the law." A "miscarriage of justice" is defined
as a "pervading sense of 'wrongness'" that stems from a "manifest lack of
inherently credible evidence to support the finding, obvious overlooking or
undervaluation of crucial evidence, [or] a clearly unjust result." Risko v.
Thompson Muller Auto. Grp., 206 N.J. 506, 521 (2011) (quoting Lindenmuth
v. Holden, 296 N.J. Super. 42, 48 (App. Div. 1996)). "[T]he standard for
authorizing a new trial . . . requires a determination that the jury 's verdict is
'contrary to the weight of the evidence or clearly the product of mistake,
passion, prejudice, or partiality.'" Crawn v. Crampo, 136 N.J. 494, 512 (1994)
(quoting Lanzet v. Greenberg, 126 N.J. 168, 175 (1991)).
As noted, the clear and unambiguous language of Exhibit A and its
accompanying Rider establishes that plaintiff was entitled to "full
compensation for all work performed including [c]hange [o]rder work," which
A-3571-17T2
45
it did not receive. In this regard, the jury heard Ellen testify that she did not
sign the change order form and that plaintiff "did not accept the sum of
$441,482.79 in full satisfaction of its claim against [defendant]."5 Further,
Ellen testified that when she sent the e-mail authorizing defendant to settle
plaintiff's claim with NJDOT, her decision was spurred by "a phone call from
. . . Antoun threatening that if she did not send the e-mail, [plaintiff] would get
nothing." Ellen also stated that plaintiff received no payment. As such,
questions of fact existed as to whether defendant fully discharged its
contractual duties, and denial of defendant's motions for involuntary dismissal
and JNOV was proper. And, based on the evidence adduced at trial, it does
not clearly and convincingly appear that there was a miscarriage of justice
under the law warranting a new trial. R. 4:49-1(a); see also Barber, 406 N.J.
Super. at 51.
5
Although plaintiff accuses defendant of attempting to resurrect its accord
and satisfaction defense on appeal, we note that defendant makes clear in its
reply brief that "this [is not] a matter of 'accord and satisfaction,' . . . it is
simply a matter of [defendant] having fully performed its obligations under the
Subcontract."
A-3571-17T2
46
IV.
Defendant asserts in Point IV that the jury's compensatory damages
award was excessive, and therefore, the trial court erred in denying its motion
for a new trial on damages or for a remittitur. Specifically, it contends that
based on the evidence presented at trial, the jury's award on plaintiff's breach
of contract claim could not have exceeded $382,373.87. 6 In this regard, it
argues that the jury's $800,000 award on plaintiff's contract claim "could only
have resulted from double-counting" the PPA and fraud damages in calculating
the damages award. It further avers that the trial court erred by justifying the
damages award based on plaintiff's "vague statement" in its responses to
interrogatories that it suffered lost profits. We disagree.
The award of damages is left to the sound discretion of the trier of fact.
Mandia v. Applegate, 310 N.J. Super. 435, 446 (App. Div. 1998). An
appellate court should not disturb the amount of damages awarded unless the
6
Defendant also claims that plaintiff stipulated and explained to the jury that
it would be limited to "the amount of damages . . . explained on page [five] of
[plaintiff's] interrogatories," which totaled $751,594.91. Nevertheless, "a jury
is free to reject any evidence, including that which is uncontroverted,"
including any stipulation plaintiff may have made. State v. Wesner, 372 N.J.
Super. 489, 494 (App. Div. 2004); see also AGS Computs., Inc. v. Bear,
Stearns & Co., 244 N.J. Super. 1, 5 (App. Div. 1990); Biunno, Weissbard &
Zegas, Current N.J. Rules of Evidence, cmt. 4(a) on N.J.R.E. 101(a)(4) (2020).
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award is plainly wrong, constitutes a manifest injustice, or shocks the court 's
conscience. Carey v. Lovett, 132 N.J. 44, 66 (1993). Thus, if the record
supports "a reasonable estimate of damages, based upon more than mere
speculation, a damage award can be affirmed." Fort Lee v. Banque Nat'l De
Paris, 311 N.J. Super. 280, 291 (App. Div. 1998). Moreover, a damage award
should be affirmed if evidence is adduced "which affords a basis for estimating
damages with some reasonable degree of certainty." Viviano v. CBS, Inc., 251
N.J. Super. 113, 129 (App. Div. 1991).
The purpose of compensatory damages is to compensate the plaintiff for
his or her actual loss. Nappe, 97 N.J. at 48. "It is well-settled that the 'law
abhors damages based on mere speculation.'" Mosley v. Femina Fashions,
Inc., 356 N.J. Super. 118, 128 (App. Div. 2002) (quoting Caldwell v. Haynes,
136 N.J. 422, 442 (1994)). However, "[w]here a wrong has been committed,
and it is certain that damages have resulted, mere uncertainty as to the amount
will not preclude recovery – courts will fashion a remedy even though the
proof on damages is inexact." Kozlowski v. Kozlowski, 80 N.J. 378, 388
(1979). A plaintiff is only required to "prove damages with such certainty as
the nature of the case may permit, laying a foundation which will enable the
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trier of the facts to make a fair and reasonable estimate." Lane v. Oil Delivery,
Inc., 216 N.J. Super. 413, 420 (App. Div. 1987).
"[I]t is fundamental that no matter under what theories liability may be
established, there cannot be any duplication of damages." Ptaszynski v. Atl.
Health Sys., Inc., 440 N.J. Super. 24, 39-40 (App. Div. 2015) (quoting P. v.
Portadin, 179 N.J. Super. 465, 472 (App. Div. 1981)). Thus, courts have
consistently precluded recovery of duplicative damages predicated on the same
injuries. See, e.g., Battaglia v. United Parcel Serv. Inc., 214 N.J. 518, 562
(2013) (holding that where a jury awarded a plaintiff damages under the Law
Against Discrimination, the plaintiff could not recover on his implied contract
claim because any recovery "would be entirely co-extensive with the verdict
[he] has already received"); Ptaszynski, 440 N.J. Super. at 40 (holding that the
trial judge erred in not instructing the jury "that it could not award plaintiff
damages for defendant's violations of [a statute] and its negligence based upon
the same injuries or harm to [plaintiff]").
Here, the jury's $800,000 award of compensatory damages on the breach
of contract verdict is supported by the record without double counting the
fraud damages. Initially, defendant concedes that Ellen testified at trial to the
following damages claims relating to breach of contract: 1) $255,517.21,
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which represented the difference between plaintiff's $697,000 proposal for the
balance of the PSE&G work and the $441,482.79 that NJDOT approved; 2)
$66,221.04 for the unpaid balance of that $441,482.79; and 3) $126,856.66,
which represented fees and penalties imposed by the Department of Labor.
The total amount of those damages was $448,594.91. 7
Other evidence adduced at trial further supports the jury's $800,000
award on defendant's breach of contract. For example, while we recognize that
Ellen was subject to robust cross-examination, she testified and plaintiff
presented documentary evidence regarding its incurred damages with respect
to the center platform in the amount of $246,408.97.8 In addition, the jury
7
Defendant concedes that the $66,221.04 was "expressly included in the
elements of [plaintiff]'s contract damages . . . at trial," but argues that since the
trial court modified the jury's PPA verdict to represent that sum, it cannot be
applied to the breach of contract damages. After subtracting that number from
the $448,594.91 amount, defendant contends that plaintiff's award of
compensatory damages for breach of contract cannot exceed $382,373.87.
However, as we reverse the PPA verdict, we conclude that the $66,221.04 was
a proper consideration for damages under the breach of contract claim and was
consistent with the jury charge on breach of contract which said that plaintiff
was to be placed "in as good a monetary position as he or she would have
enjoyed if the contract had been performed as promised."
8
At trial, Ellen testified that plaintiff completed 48,000 square feet of work on
the center platform at the $6.60 per square foot contract price, for a total of
$316,000 value under the contract. However, she stated that "the cost to
complete the center section of the platform" ended up totaling $563,208.97. In
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heard testimony that defendant improperly deducted $50,566.56 from
plaintiff's time and material billing "for equipment costs directly incurred by
[plaintiff]." Combining defendant's admitted damages with the additional
evidence adduced at trial equals $745,570.44. 9 Thus, the record supports "a
reasonable estimate of damages, based upon more than mere speculation," Fort
Lee, 311 N.J. Super. at 291, and we accordingly affirm as to the jury's
compensatory damages award for breach of contract.
With respect to the fraud damages, there was also evidence presented at
trial to support the jury's award without it having double-counted damages.
For example, Steven testified that had he known of the wire interference prior
to entering his bid, he would have bid using a 20% to 25% profit margin and a
25% overhead margin, not the allowable 10% markup for profit and 15%
markup for overhead as provided for change or extra work in the subcontract.
its merits brief, plaintiff explains that the jury could reasonably have
determined that defendant's breach led to plaintiff's loss of the difference
between these two values, $246,408.97.
9
We note that in plaintiff's merits brief, it also maintains that the damages
award for breach of contract could be supported in part by the $121,000
difference between the $818,000 claim on the change order submitted by
defendant to NJDOT "for the value of [plaintiff]'s work, which [defendant]
admitted was a valid claim supported by documentary evidence," and the
$697,000 amount which was eventually claimed by plaintiff.
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Moreover, he testified the time and material amounts he provided in
conjunction with the change order work did not include salary for Ellen or
himself, and that would have been included in a bid. In this regard, Steven
testified that had defendant not concealed the PSE&G wire interference,
plaintiff's bid on the project would have been $1 million as opposed to
$697,000. Thus, the $303,000 difference provided a permissible basis for the
jury to arrive at a $300,000 award for fraud without double counting that
amount in the $800,000 contract damages award.
V.
Defendant further argues, in Point V, that the trial court erred by failing
to vacate the $500,000 punitive damages award.10 Defendant maintains that
plaintiff was not entitled to punitive damages because it "did not present any
evidence that [defendant] acted with 'actual malice' or 'wanton and willful
disregard'" pursuant to the New Jersey Punitive Damages Act, N.J.S.A. 2A:15-
5.12. We disagree.
10
We note that defendant does not challenge the quantum of the punitive
damages award on appeal, merely the fact that the jury awarded punitive
damages. As such, we do not address the propriety of the amount of damages
awarded.
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We review the trial court's decision to award punitive damages for an
abuse of discretion. Maudsley v. State, 357 N.J. Super. 560, 590 (App. Div.
2003). An abuse of discretion can be shown "if the discretionary act was not
premised upon consideration of all relevant factors, was based upon
consideration of irrelevant or inappropriate factors, or amounts to a clear error
of judgment." Flagg v. Essex Cty. Prosecutor, 171 N.J. 561, 571 (2002).
A court may award punitive damages "as punishment or deterrence for
particularly egregious conduct." Nappe v. Anschelewitz, Barr, Ansell &
Bonello, 97 N.J. 37, 49 (1984); see also Maudsley, 357 N.J. Super. at 590. To
impose punitive damages, "a defendant's conduct must be willfully and
wantonly reckless or malicious." Gennari v. Weichert Co. Realtors, 148 N.J.
582, 610 (1997). Punitive damages require "an intentional wrongdoing in the
sense of an 'evil-minded act' or an act accompanied by a wanton and willful
disregard of the rights of another." Smith v. Whitaker, 160 N.J. 221, 241
(1999) (quoting Nappe, 97 N.J. at 49). A plaintiff "must prove by clear and
convincing evidence a 'deliberate act or omission with knowledge of a high
degree of probability of harm and reckless indifference to the consequences.'"
Id. at 242 (quoting Berg v. Reaction Motors Div., Thiokol Chem Corp., 37 N.J.
396 (1962)).
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Further, juries are permitted to award punitive damages in cases which
include causes of action in addition to fraud. See, e.g., Velop, Inc. v. Kaplan,
301 N.J. Super. 32, 70-71 (App. Div. 1997) (upholding punitive damages
award where a jury found defendants liable for fraud, breach of contract,
conversion, and tortious interference); Perth Amboy Iron Works, Inc. v. Am.
Home Assur. Co., 226 N.J. Super. 200, 227 (App. Div. 2000) (reversing
dismissal of fraud and punitive damages claims where the only jury verdict
was on breach of warranty and noting that while punitive damages "would not
generally be awardable on a warranty theory of liability, . . . if defendants'
conduct is found to be fraudulent" on remand, "the imposition of punitive
damages might be warranted").
As discussed, the jury did not err in finding that defendant committed
fraud as there was substantial evidence that defendant failed to disclose the
PSE&G wire interference to induce plaintiff to enter the contract. Further,
there was sufficient evidence adduced at trial to establish that defendant acted
with a "conscious and deliberate disregard of the interests of others ." As the
court noted when it denied defendant's motion for a new trial or a remittitur,
the trial evidence supports the conclusion that defendant knew of a potential
Proximity Act violation prior to the signing of the subcontract but did not
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disclose that information to plaintiff because it knew that it "was obtaining a
better price" in contract negotiations. Defendant's conduct induced plaintiff to
engage in a potentially life-threatening activity while also depriving plaintiff
of the opportunity to negotiate the fair value for the work required to complete
the project. In this regard, defendant's conduct demonstrated a "wanton and
willful disregard" of plaintiff's rights.
Moreover, according to Grant, who negotiated the subcontract on behalf
of defendant, defendant was aware that plaintiff was facing financial
difficulties at the time it executed the subcontract. Defendant nevertheless
failed to pay plaintiff for the work it performed on the project, instead taking
the position that plaintiff knew or should have known of the proximity of the
PSE&G wires and the attendant financial and work-related consequences on
the project. Defendant refused to make timely progress payments even despite
plaintiff's notifications that it needed to pay its vendors, suppliers, and unions.
Indeed, in April 2015, defendant was directly notified by the New Jersey
Department of Labor that plaintiff was facing prosecution, fines, and/or
penalties for failing to pay union benefits. Defendant did not pay the unions
until October 2015 and January 2016, after plaintiff was debarred from public
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contracts. Based on that evidence, the court did not abuse its discretion in
denying a new trial on punitive damages.
VI.
Defendant maintains that plaintiff should not have received attorneys'
fees as it should not have been considered a prevailing party. It argues,
however, that even were we to uphold the jury verdicts on all of the claims on
which plaintiff prevailed below, plaintiff would not be entitled to attorneys '
fees on the fraud claim. Further, defendant contends that "unless the PPA
verdict is upheld, [plaintiff] is not, as a matter of law, entitled to an
enhancement of the lodestar amount." Based on our reversal of the jury's PPA
verdict, we vacate and remand for the trial court to determine whether
attorneys' fees and an attendant fee enhancement are warranted.
"[F]ee determinations by trial courts will be disturbed only on the rarest
of occasions, and then only because of a clear abuse of discretion." Rendine v.
Pantzer, 141 N.J. 292, 317 (1995). We award attorneys' fees only where
"expressly provided for by statute, court rule, or contract." Litton Indus., Inc.
v. IMO Indus., Inc., 200 N.J. 372, 385 (2009) (quoting Packard-Bamberger &
Co. v. Collier, 167 N.J. 427, 440 (2001)).
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"The starting point in awarding attorneys' fees is the determination of the
'lodestar,' which equals the 'number of hours reasonably expended multiplied
by a reasonable hourly rate.'" Furst v. Einstein Moomjy, Inc., 182 N.J. 1, 21
(2004) (quoting Rendine, 141 N.J. at 335). "In determining the reasonableness
of a fee, the factors in RPC 1.5(a) must be considered." Stoney v. Maple
Shade Twp., 426 N.J. Super. 297, 318 (App. Div. 2012) (citing Furst, 182 N.J.
at 22).
"In cases where plaintiff presents 'distinctly different claims for relief' in
one lawsuit, work on those unrelated claims cannot be deemed in pursuit of the
ultimate result achieved." Silva v. Autos of Amboy, Inc., 267 N.J. Super. 546,
556 (App. Div. 1993) (quoting Hensley v. Eckerhart, 461 U.S. 424, 434-35
(1983)). However, "when the plaintiff's claims for relief 'involve a common
core of facts or will be based on related legal theories,' such a suit cannot be
viewed as a series of discrete claims." Ibid. (quoting Hensley, 461 U.S. at
435).
"[I]f a plaintiff's unsuccessful claims are related to the successful claims,
either by a 'common core of facts' or 'related legal theories,' the court must
consider the significance of the overall relief obtained to determine whether
those hours devoted to the unsuccessful claims should be compensated."
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Singer v. State, 95 N.J. 487, 500 (1984) (quoting Hensley, 461 U.S. at 435).
Therefore, "[i]f the results obtained are fully effective in vindicating plaintiff 's
rights, counsel should recover for all hours reasonably expended on the
litigation." Ibid. On the other hand, "if a successful plaintiff has achieved
only limited relief in comparison to all of the relief sought, the court must
determine whether the expenditure of counsel's time on the entire litigation
was reasonable in relation to the actual relief obtained, . . . and, if not, reduce
the award proportionately." Ibid. However, "there need not be proportionality
between the damages recovered and the attorney-fee award itself." Furst, 182
N.J. at 23 (citing Rendine, 141 N.J. at 336).
After determining the lodestar, the court must consider whether an
enhancement is appropriate "to reflect the risk of nonpayment in all cases in
which the attorney's compensation entirely or substantially is contingent on a
successful outcome." Rendine, 141 N.J. at 337. This determination hinges on
"the actual risks or burdens that are borne by the lawyer or lawyers." Id. at
339-40 (quoting Pennsylvania v. Del. Valley Citizens' Council for Clean Air,
483 U.S. 711, 747 (1987) (Blackmun, J., dissenting)). An enhancement may
not be appropriate under certain circumstances, such as where an attorney is
paid a portion of his or her hourly fee regardless of results; where the damages
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sought are so substantial that the contingent fee could exceed the lodestar
amount; or where "the likelihood of success is unusually strong." Id. at 340-
41; see also Litton, 200 N.J. at 389 ("Unlike the traditional fee-shifting case in
which enhancement has some relevancy as a type of encouragement to
represent a party . . . the opposite applies in a contract case.").
Here, it is undisputed that the subcontract entitled plaintiff to attorneys '
fees. The parties provided, under paragraph 21 of the Rider to Exhibit A, tha t
Article 25 of the subcontract would be revised to state "that the losing party
shall be responsible for all costs, disbursements, and expenses[,] including
reasonable attorney fees incurred by the prevailing party as a result of any
claim or dispute between [plaintiff] and [defendant] if so directed by the
arbitrator or the court."
In awarding a $220,243.50 lodestar amount, however, the trial court
necessarily considered plaintiff's counsel's work on obtaining the PPA verdict.
As we reverse as to that claim, we vacate and remand the trial court's March
29, 2018 order granting plaintiff's application for attorneys' fees, as well as the
portion of that order granting a fee enhancement to plaintiff. While the trial
court stated that based on its review, plaintiff's billing "all seemed related to
the same issue, which is the contract issue, the shielding work that was done
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on this project," we note that as its review inherently included work on the
PPA claim, the court should reconsider that conclusion on remand. In this
regard, the court should determine the degree to which "plaintiff's unsuccessful
claims are related to the successful claims, either by a 'common core of facts'
or 'related legal theories,'" Singer, 95 N.J. at 500 (quoting Hensley, 461 U.S. at
435), and recalculate any fee award and attendant enhancement pursuant to the
aforementioned principles.
VII.
In sum, we affirm the trial court's December 15, 2017 order denying
summary judgment, its March 16, 2018 order denying defendant's motion for
JNOV or a new trial, and the jury's January 25, 2018 verdict only to the extent
that they relate to plaintiff's breach of contract and fraud claims and the jury's
attendant $800,000 compensatory damages award for breach of contract and
$300,000 award for fraud. We reverse, however, the jury's verdict that
defendant violated the PPA. We also affirm the jury's $500,000 punitive
damages award. Finally, we vacate and remand the court's March 29, 2018
order granting plaintiff's application for attorneys' fees and a fee enhancement
and remand for further proceedings to determine whether plaintiff is entitled to
a fee award.
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We stress that this verdict and the attendant damages award were the
result of a jury trial. The jury considered a wealth of evidence and we
necessarily defer to their findings. See Cuevas v. Wentworth Grp., 226 N.J.
480, 499 (2016) ("A jury's verdict, including an award of damages, is cloaked
with a 'presumption of correctness.'") (quoting Baxter v. Fairmont Food Corp.,
74 N.J. 588, 598 (1977)).
To the extent we have not addressed any of defendant's arguments it is
because we have concluded they lack sufficient merit to warrant discussion in
a written opinion. R. 2:11-3(e)(1)(E).
Affirmed in part, reversed in part, vacated and remanded in part. We do
not retain jurisdiction.
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