NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-2560-23
1410 GRAND ADAMS, LLC,
Plaintiff-Appellant,
v.
TREMATORE CONSTRUCTION, LLC, TREMATORE CONSTRUCTION CORP., and AFFINITY MECHANICAL SERVICES, INC.,
Defendants-Respondents. _____________________________
Submitted May 28, 2025 – Decided June 24, 2025
Before Judges Firko and Augostini.
On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-0359-23.
Kinney Lisovicz Reilly & Wolff PC, attorneys for appellant (James P. Lisovicz, of counsel; Julia C. Talarick and Kevin G. Monaghan, on the briefs).
Kennedys CMK LLP, attorneys for respondent Affinity Mechanical Services, Inc. (Ian J. Antonoff, of counsel and on the brief; Anthony Llaverias, on the brief). Mandelbaum Barrett PC, attorneys for respondent Trematore Construction LLC (Andrew Gimigliano, of counsel and on the brief; Marlene Arabia, on the brief).
Rawle & Henderson, LLP, attorneys for respondent Trematore Construction Corp. (Richard Imossi, on the brief).
PER CURIAM
In this construction matter, plaintiff 1410 Grand Adams, LLC appeals
from a February 16, 2024 order granting in part and denying in part defendants
Trematore Construction Corporation's (Trematore Corp.) (collectively
Trematore), and Affinity Merchant Services, Inc.'s (Affinity) motions for
reconsideration dismissing count one of the complaint with prejudice and
dismissing count two of the complaint without prejudice, which had been
previously dismissed on summary judgment. Plaintiff also appeals from a
March 12, 2024 order granting co-defendant Trematore Construction, LLC's
(Trematore LLC) motion to dismiss, which was converted to a motion for
summary judgment. We affirm both orders under review.
I.
Our review of an order granting summary judgment requires our
consideration of "the competent evidential materials submitted by the parties to
identify whether there are genuine issues of material fact and, if not, whether
A-2560-23 2 the moving party is entitled to summary judgment as a matter of law." Bhagat
v. Bhagat, 217 N.J. 22, 38 (2014). Here, we discern the following facts from
the statements of material facts,1 and the record of the proceedings before the
motion judges, viewed in the light most favorable to plaintiff. Pace v. Hamilton
Cove, 258 N.J. 82, 96 (2024).
A.
Factual Background
This matter involves a construction project owned by plaintiff located at
1410 Grand Street in Hoboken (the Project). Plaintiff entered into a prime
contract with Bijou Design Build (Bijou), the general contractor, to construct a
mixed-use, six-story building (the Grand-Bijou Contract). According to the
Grand-Bijou Contract, "the [c]ontractor shall complete the [w]ork described in
the [c]ontract [d]ocuments for the Project."
On March 20, 2017, Bijou and Trematore LLC entered into the Bijou -
Trematore LLC Subcontract for plumbing and mechanical work. Under Section
1.1, the Bijou - Trematore LLC Subcontract states, "[t]he subcontractor shall
1 We note defendants submitted "statements of material facts" in support of their motions to dismiss. Motions to dismiss filed under Rule 4:6-2(e) do not require a statement of material facts. Motions for summary judgment under Rule 4:6- 2, however, "shall be served with a brief and a separate statement of material facts." A-2560-23 3 complete the [w]ork described in the [c]ontract [d]ocuments for the Project. The
[c]ontract [d]ocuments consist of this [a]greement signed by [Bijou] and
[s]ubcontractor and the [p]rime [c]ontract between [Bijou] and [o]wner." Under
Section 7.6, the Bijou - Trematore LLC Subcontract states, "[t]he [c]ontractor
and [s]ubcontractor waive claims against each other for consequential damages
arising out of or relating to this [s]ubcontract, including without limitation, any
consequential damages due to either party's termination."
Further, Section 8.8 of the Bijou - Trematore LLC Subcontract states:
WAIVERS OF SUBROGATION[:] The [c]ontractor and [s]ubcontractor waive all rights against (1) each other and any of their subcontractors, sub- subcontractors, agents and employees, each of the other, and (2) the [o]wner, the [a]rchitect, the [a]rchitect's consultants, separate contractors, and any of their subcontractors, sub-subcontractors, agents and employees for damages caused by fire or other causes of loss to the extent covered by property [i]nsurance provided under the [p]rime [c]ontract or other property insurance applicable to the [w]ork, except such rights as they may have to proceeds of such insurance held by the [o]wner as a fiduciary. The [s]ubcontractor shall require of the [s]ubcontractor[]s, [s]ub-subcontractors, agents and employees, by appropriate agreements, written where legally required for validity, similar waivers in favor of the parties enumerated herein. The policies shall provide such waivers of subrogation by endorsement or otherwise. A waiver of subrogation shall be effective as to a person or entity even though that person or entity would otherwise have a duty of indemnification, contractual or otherwise, did not pay
A-2560-23 4 the insurance premium directly or [i]ndirectly, and whether or not the person or entity had an insurable interest in the property damaged.
On March 20, 2017, Trematore Corp. and Affinity entered into the
Trematore Corp. - Affinity Subcontract, under which Affinity agreed to perform
plumbing work at the Project. Article 2.4, Schedule 17 of the Trematore Corp. -
Affinity Subcontract states:
Waivers of [s]ubrogation. The [g]eneral [c]ontractor/[o]wner/Trematore . . . [Corp.] and [s]ubcontractor waive all rights against (1) each other and any of their [s]ubcontractors, [s]ub- [s]ubcontractors, agents and employee[s], each of the other, and (2) the [g]eneral [c]ontractor/[o]wner/Trematore . . . [Corp.], the [a]rchitect, the [a]rchitect's consultants, separate [s]ubcontractors, agents and employees for damages caused by fire or other perils to the extent covered by property insurance provided under the [c]ontract or [to other] property insurance applicable to the work except such rights as they may have to proceeds of such insurance held by the [g]eneral [c]ontractor/[o]wner/Trematore . . . [Corp.] as fiduciary. The [s]ubcontractor shall require of the [s]ubcontractor[]s [s]ub-[s]ubcontractors, agents and employees, by appropriate agreements, written where legally required for validity, similar waivers in favor of other parties enumerated herein. If possible, the policies shall provide such waivers of subrogation by endorsement or otherwise. A waiver of subrogation shall be effective as to a person or entity even though that person or entity would otherwise have a duty of indemnification, contractual or otherwise, did not pay the insurance premium directly or indirectly, and
A-2560-23 5 whether or not the person or entity had an insurable interest in the property damaged.
On March 10, 2019, a hot water pipe detached, causing water damage to
the Project. On March 10, 2019, Bijou employee Matthew Testa was notified at
approximately 9:00 p.m. that "water was pouring through the garage ceiling at
the west end" of the Project. In an email memorializing the incident, Testa
stated:
I was alerted immediately. When I got to the site at approximately 9:20 [p.m.], I immediately shut off the water main valve, and walked up the stairs to assess the damage. The source of the leak seemed to be coming from the washer/dryer ceiling of unit 403. After [twenty] minutes, the water pressure dissipated and water ceased from coming out of the ceiling, however it continued to cascade down through the residential units below and into the garage.
The next day, an investigation revealed the water leak resulted from "an
improperly installed compression ring on a [half-]inch domestic water line"
installed by Affinity. The water leak damaged fourteen residential units and one
amenity space, gypsum wallboard, insulation, hardwood flooring, circuit
breakers, appliances, cabinetry, and other items. Because of the water damage,
the temporary certificate of occupancy was delayed from an anticipated issuance
date of March 19, 2019, until the actual issuance date of May 6, 2019, a period
of forty-eight days.
A-2560-23 6 On May 21, 2019, plaintiff submitted a property damage claim to its
insurance carrier, Aspen American Insurance Company (Aspen). Aspen paid
plaintiff the total sum of $881,509.21 2 for the property damage stemming from
the incident. Aspen then sought subrogation through Affinity's and Trematore
LLC's insurance carriers. Both subrogation claims were denied based on the
subrogation clauses contained in the Bijou - Trematore LLC Subcontract and the
Trematore Corp. - Affinity Subcontract.
B.
The Federal Action
On March 1, 2022, Aspen filed a complaint in the United States District
Court for the District of New Jersey against Affinity and Echelon Services
Limited Liability Company (Echelon) 3 (the federal action). Aspen alleged three
counts in its complaint: negligence: property damage (count one); negligence:
delay in completion (count two); and gross negligence (count three). In the
2 The record includes three checks were paid by Aspen to plaintiff and M & T Bank. The first check dated May 24, 2019 is for $100,000; the second check dated June 13, 2019 is for $442,025.06; and the third check dated December 19, 2019 is for $339,484.15. 3 Echelon is a commercial licensed contractor who performed plumbing services at the Project as a subcontractor to Trematore Corp. Echelon is not participating in this appeal. A-2560-23 7 Federal Action complaint, Aspen alleged $552,025.06 of the total paid to
plaintiff was attributable to property damages, and the remaining $339,484.15
was for "[d]elay in the completion of construction costs." As damages, Aspen
claimed it was owed $891,509.21, including a $10,000 deductible.
On April 2, 2022, Affinity and Echelon filed answers to the Federal Action
and asserted a third-party complaint against Brian Trematore Plumbing and
Heating, Inc. (Brian Trematore, Inc.) for non-payment on the balances due to
them from their contracts on the Project. On October 24, 2022, Brian Trematore,
Inc. filed an answer to the third-party complaint and a fourth-party complaint
against Bijou seeking the balance owed to it under the Bijou - Trematore LLC
Subcontract.
On January 27, 2023, Bijou filed an answer to Brian Trematore, Inc.'s
fourth-party complaint and filed a fifth-party complaint against Trematore LLC,
Trematore Corp., and Affinity. The fifth-party complaint alleged four counts,
including consequential loss due to property damage (count one); breach of
contract-failure to indemnify (count two); and fictitious pleadings (counts three
and four). The record does not indicate the status of the Federal Action.
A-2560-23 8 C.
The Law Division Action
On the same day, January 27, 2023, plaintiff filed a complaint in the Law
Division against Trematore LLC, Trematore Corp., and Affinity alleging
consequential loss due to property damage (count one); and breach of contract -
failure to indemnify (count two). 4 Plaintiff alleged "a domestic hot water pipe
detached from its coupling, causing water damage to the Project." Plaintiff
claimed the "coupling failure" was caused by "improper installation practices
engaged in by Trematore and Affinity."5 As a result of the "physical damage"
to the Project, plaintiff alleges it suffered "consequential [losses,] including[]
but not limited to, interest on the construction loan, leasing/marketing costs, and
loss of rent."
As remedies, plaintiff sought indemnification as a "third-party beneficiary
of the contracts between Bijou and Trematore and Trematore and Affinity,"
compensatory damages, consequential damages, and attorney's fees. Trematore
LLC, Trematore Corp., and Affinity filed answers to the complaint.
4 Counts three and four of the complaint address fictitious pleadings and are not germane to our opinion. 5 We note that plaintiff's Law Division complaint under review mirrors the fifth- party complaint filed by Bijou in the federal action. A-2560-23 9 D.
Motion Practice
On October 4, 2023, Affinity filed a motion to dismiss pursuant to Rule
4:6-2(e) for failure to state a claim. Trematore Corp. filed a cross-motion to
dismiss for failure to state a claim. Affinity argued that plaintiff's claims are
barred by the economic loss doctrine. In addition, Affinity contended there was
no direct privity between it and plaintiff, and that plaintiff failed to name an
indispensable party.
In support of its motion to dismiss, counsel for Affinity submitted a
statement of material facts and a certification with the following documents
attached: the Law Division complaint, the Bijou - Trematore LLC Subcontract,
a work order between Trematore Corp. and Affinity dated April 20, 2017, proof
of loss statements made to Aspen by plaintiff, copies of checks paid by Aspen
to plaintiff, and pleadings from the Federal Action.
In support of its cross-motion to dismiss, counsel for Trematore Corp.
submitted a response to Affinity's statement of material facts and a counter-
statement of material facts. Trematore Corp. argued that dismissal was
warranted on the grounds Section 7.6 of the Bijou - Trematore Subcontract
provides Bijou and Trematore Corp. "waive claims against each other for
A-2560-23 10 consequential damages arising out of or relating to this subcontract, including
without limitation, any consequential damages due to either party's termination."
Termatore Corp. argued it was hired by plaintiff to perform work on the
Project and that plaintiff "is not a signatory to the Bijou [-] Trematore
Subcontract." Trematore Corp. asserted the Bijou - Trematore Subcontract did
not establish any "direct privity" between plaintiff and Trematore Corp., and
plaintiff does not have direct privity with Trematore Corp.
Because multiple exhibits beyond the pleadings were attached to counsels'
certifications, the first motion judge converted the motions to dismiss to motions
for summary judgment. On November 3, 2023, the first motion judge conducted
oral argument on Affinity's motion for summary judgment and Trematore
Corp.'s cross-motion for summary judgment.6
On November 15, 2023, the first motion judge read her opinion into the
record and granted both motions. 7 She found that the negligence count was
barred by the economic loss doctrine, and any contract claim was barred based
on the lack of contractual privity between plaintiff and Trematore Corp., and
6 The November 3, 2023 transcript is not contained in the record. 7 The transcript of the decision is mistakenly dated November 14, 2023, but the signature page has an correct date of November 15, 2023. A-2560-23 11 plaintiff and Affinity. The first motion judge determined that plaintiff failed to
meet the exceptions to the economic loss doctrine as Affinity did not have an
independent duty of care to plaintiff and plaintiff could have instead filed a
direct action against Bijou. In addition, the first motion judge held that
plaintiff's right to sue for consequential damages was waived under Section 7.6
of the Bijou - Trematore LLC Subcontract. Two memorializing orders were
entered that day dismissing the complaint against Trematore Corp. and Affinity
with prejudice.
On January 3, 2024, Trematore LLC filed a motion to dismiss the
complaint. Trematore LLC argued that plaintiff failed to join Bijou as an
indispensable party, and its claims were barred by the economic loss doctrine.
Trematore LLC contended dismissal was warranted because of the lack of
privity between plaintiff and Trematore LLC. Further, Trematore LLC asserted
that consequential damages are not recoverable because plaintiff is bound by
Section 7.6 of the Bijou - Trematore LLC Subcontract.
Counsel for Trematore LLC submitted a moving certification in support
of the motion to dismiss. The certification had essentially the same exhibits
annexed to it that had been previously filed by counsel for Affinity and
Trematore Corp.
A-2560-23 12 On January 17, 2024, a consent order was entered by the second motion
judge ordering Trematore LLC to serve certified answers to interrogatories, a
notice to produce, documents, and other responsive materials prior to January
29, 2024, otherwise a dismissal without prejudice will result under Rule 4:23-5.
The record is unclear as to whether any discovery was provided to plaintiff.
On January 31, 2024, plaintiff filed a motion for reconsideration of the
November 15, 2023 orders. On February 16, 2024, in an oral decision, the first
motion judge granted in part and denied in part plaintiff's motion for
reconsideration:
In conclusion, the [c]ourt finds that while the [e]conomic [l]oss [d]octrine does not apply, count one of the complaint was properly dismissed due to the waiver of consequential damage provision in the [Bijou -]Trematore [LLC] [S]ubcontract. However, plaintiff has demonstrated good cause for reversal of the order dismissing count two of the complaint with prejudice. Instead, the [c]ourt finds that it is the interest of justice and in accordance with well established law to dismiss count two of the complaint without prejudice.
A memorializing order was entered.
On February 20, 2024, the second motion judge conducted oral argument
on Trematore LLC's motion to dismiss. 8 On March 12, 2024, the second motion
8 The February 20, 2024 transcript is not contained in the record. A-2560-23 13 judge issued a memorandum of decision regarding Trematore LLC's motion to
dismiss. The second motion judge held that the economic loss doctrine barred
plaintiff's claim against Trematore LLC:
In sum, while [p]laintiff might argue that it relied on Trematore [LLC] to competently execute [its] plumbing tasks and prevent any economic losses, this reliance is intrinsically linked to the contractual obligations Trematore [LLC] undertook. Even read in the most general sense, [p]laintiff's allegation that Trematore [LLC] had an obligation to perform work "not negligently" is really a claim that stems from contract performance, specifically the implied warranty of good workmanship. These are not damages borne out of a societal duty that Trematore [LLC] owed [p]laintiff, like a duty of care a doctor owes a patient irrespective of a contract. Instead, these damages emerge only from the parameters of a contract. Thus, [p]laintiff's claim is squarely within the realm of tort actions pursuing economic damages, barred under the economic loss doctrine.
The second motion judge also found that the two exceptions to the
economic loss doctrine were inapplicable. The first exception, when a plaintiff
can establish an independent duty of care separate from the parties' contractual
relationship, did not apply because Trematore LLC was duty bound under the
contract documents to perform its duties "in a good and workmanlike manner,
and in accordance with industry standards [which] are rooted in the contract
scheme for the Project."
A-2560-23 14 As to the second exception, when a plaintiff can show it would not
otherwise have a remedy, the second motion judge found the economic loss
doctrine did not apply because:
Plaintiff has a clear remedy available through a breach of contract claim against its general contractor. Trematore [LLC] was engaged as a second-tier subcontractor by Bijou, and as such, the rights, responsibilities, and expectations of all parties were meticulously delineated in the contract scheme and hierarchy of the Project. Any grievances arising from the performance of the work, including the alleged incident involving the hot water pipe, should be addressed within the ambit of these contractual obligations and relationships. Thus, as [p]laintiff has a clear remedy against its general contractor here, this second exception under the [e]conomic [l]oss [d]octrine does not apply.
The second motion judge also determined that because plaintiff was a
third-party beneficiary of the Bijou - Trematore LLC Subcontract, and Section
7.6 of the Bijou - Trematore LLC Subcontract waived consequential damages,
count one of plaintiff's complaint was dismissed with prejudice because
"[p]laintiff is a third-party beneficiary of the [Bijou - ]Trematore [LLC]
[S]ubcontract and has waived its right to assert consequential damages against
Trematore [LLC.]" The second motion judge dismissed count two "without
prejudice" as to Trematore LLC "to allow any future indemnification claims
A-2560-23 15 brought against Trematore [LLC] pursuant to the [S]ubcontract." This appeal
followed.
Before us, plaintiff raises the following arguments for our consideration:
(1) the second motion judge erred in granting summary judgment to Trematore LLC as the negligence action is not barred pursuant to the economic loss doctrine;
(2) the second motion judge erred in granting summary judgment to Trematore LLC because the negligence cause of action is not barred by a lack of privity between plaintiff and Trematore LLC;
(3) both judges erred in granting summary judgment to Affinity and Trematore Corp. as the negligence cause of action is not barred pursuant to the terms of the Bijou - Trematore Subcontract;
(4) the negligence cause of action cannot be barred pursuant to plaintiff's alleged failure to join Bijou;
(5) the second motion judge erred in granting summary judgment as to Trematore LLC as there are genuine issues of material fact; and
(6) the second motion judge erred in converting Trematore LLC's motion to dismiss to a motion for summary judgment.
A-2560-23 16 II.
Where, as here, a Rule 4:6-2(e) motion involves the consideration of
"factual allegations made by the parties in certifications outside the pleadings,
[we are] required to apply the standard governing summary judgment motions
in Rule 4:46-2(c)." R.K. v. D.L., Jr., 434 N.J. Super. 113, 121 (App. Div. 2014).
"Our review of a summary judgment ruling is de novo. We apply the same
standard as the trial court." Conley v. Guerrero, 228 N.J. 339, 346 (2017)
(citations omitted). "That is, summary judgment will be granted if there is no
genuine issue of material fact and 'the moving party is entitled to a judgment or
order as a matter of law.'" Ibid. (quoting Templo Fuente De Vida Corp. v. Nat'l
Union Fire Ins. Co. of Pittsburgh, 224 N.J. 189, 199 (2016)).
A trial court's decision to grant or deny a motion for reconsideration is
reviewed for abuse of discretion. Branch v. Cream-O-Land Dairy, 244 N.J. 567,
582 (2021). A trial court should grant reconsideration when "1) the [c]ourt has
expressed its decision based upon a palpably incorrect or irrational basis, or 2)
it is obvious that the [c]ourt either did not consider, or failed to appreciate the
significance of probative, competent evidence." Castano v. Augustine, 475 N.J.
Super. 71, 78 (App. Div. 2023) (alterations in original) (quoting Triffin v. SHS
Grp., LLC, 466 N.J. Super. 460, 466 (App. Div. 2021)).
A-2560-23 17 A.
Plaintiff first argues that the second motion judge erred in granting
summary judgment to Trematore LLC pursuant to the economic loss doctrine.
Plaintiff contends this matter does not involve purely economic damages. In the
alternative, plaintiff asserts Trematore LLC owed it an "independent duty of
care." Plaintiff also avers the first motion judge correctly held on
reconsideration that the economic loss doctrine did not bar its negligence action
against Trematore Corp. and Affinity.
On March 12, 2024, the second motion judge determined:
Plaintiff also admits that the economic loss doctrine "prohibits recovery in a tort action of pure economic losses arising out of a defendant's negligent performance of a contractual obligation." . . . So, while [p]laintiff argues that the case is better suited to be resolved by tort principals, it cannot refute the fact that Trematore [LLC]'s duty to [p]laintiff arose from contract, not tort law. As such, Trematore [LLC]'s duty to perform work on the project in a good and workmanlike manner arises from its second-tier subcontract, and not from common law. Without the contract, Trematore [LLC] has no obligation to perform work on the Project. Therefore, given that the damages sought are wholly economic in nature and arise from a contractual relationship, it is both legally consistent with New Jersey law for [p]laintiff to pursue a breach of contract claim, rather than a tort claim grounded in negligence.
A-2560-23 18 In sum, while [p]laintiff might argue that it relied on Trematore [LLC] to competently execute their plumbing tasks and prevent any economic losses, this reliance is intrinsically linked to the contractual obligations Trematore [LLC] undertook. Even read in the most general sense, [p]laintiff's allegation that Trematore [LLC] had an obligation to perform work "not negligently" is really a claim that stems from contract performance, specifically the implied warranty of good workmanship. These are not damages borne out of a societal duty that Trematore [LLC] owed [p]laintiff, like a duty of care a doctor owes a patient irrespective of a contract. Instead, these damages emerge only from the parameters of a contract. Thus, [p]laintiff's claim is squarely within the realm of tort actions pursuing economic damages, barred under the economic loss doctrine.
"Negligence is 'conduct which falls below a standard recognized by the
law as essential to the protection of others from unreasonable risks of harm. '"
Franco v. Fairleigh Dickinson Univ., 467 N.J. Super. 8, 25 (App. Div. 2021)
(quoting Marshall v. Klebanov, 378 N.J. Super. 371, 378 (App. Div. 2005)). "To
establish a claim of negligence, a plaintiff must show that there was a legal duty,
the duty was breached, the breach proximately caused a foreseeable injury, and
plaintiff suffered damages." Id. at 24.
In our State, the economic loss doctrine precludes tort liability when the
relationship between the parties is based solely on a contract. See Saltiel v. GSI
Consultants, Inc., 170 N.J. 297, 316 (2002) ("a tort remedy does not arise from
A-2560-23 19 a contractual relationship unless the breaching party owes an independent duty
imposed by law"); Spring Motors Distribs. Inc. v. Ford Motor Co., 98 N.J. 555,
579-80 (1985) ("economic losses . . . are better resolved under principles of
contract law . . . [which] are generally more appropriate for determining claims
for consequential damage that the parties have, or could have, addressed in their
agreement"); Duquesne Light Co. v. Westinghouse Elec. Corp., 66 F.3d 604,
618 (3d Cir. 1995) (finding a plaintiff is prohibited "from recovering in tort
economic losses to which their entitlement flows only from a contract "). Based
upon our de novo review, we discern no error in the second motion judge's grant
of summary judgment to Trematore LLC and dismissal of plaintiff's economic
loss doctrine claim.
Under the economic loss doctrine, 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. 66 F.3d at 618). The
doctrine precludes a tort remedy in "a contractual relationship unless the
breaching party owes an independent duty imposed by law." Saltiel, 170 N.J. at
316-17 (holding that "the existence of duties that are specifically imposed by
A-2560-23 20 law in New Jersey . . . can be enforced separately and apart from contractual
obligations.").
In essence, the doctrine "functions to eliminate recovery on 'a contract
claim in tort clothing.'" G&F Graphic Servs. Inc. 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
Const. 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).
To prevail under a negligence claim, personal injury or property damage
must be alleged. Aronsohn v. Mandara, 98 N.J. 92, 97 (1984). Economic
expectations between parties to a contract are not entitled to supplemental
protection by negligence principles. Spring Motors, 98 N.J. at 581. "[R]ecovery
for economic loss on a negligence theory [is] inappropriate." Aronsohn, 98 N.J.
at 97; Spring Motors, 98 N.J. at 580-82.
The economic loss doctrine evolved as part of the common law "as an
effort to establish the boundary line between contract and tort remedies." Dean
A-2560-23 21 v. Barrett Homes, Inc., 204 N.J. 286, 295 (2010). The doctrine "bars tort
remedies in strict liability or negligence when the only claim is for" economic
loss, as opposed to physical injury or property damage. Ibid. Early economic
loss cases arose in the context of defective goods and strict liability, see, e.g.,
Spring Motors, 98 N.J. at 579, but has expanded to service contracts, Saltiel,
170 N.J. at 297.
The purpose of compensatory damages is to compensate plaintiff for
actual loss. Nappe v. Anschelewitz, Barr, Ansell & Bonello, 97 N.J. 37, 48
(1984). "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 trier of
the facts to make a fair and reasonable estimate." Lane v. Oil Delivery, Inc.,
A-2560-23 22 216 N.J. Super. 413, 420 (App. Div. 1987). We next apply these foundational
principles to the matter before us.
Plaintiff contends the economic loss doctrine does not bar its claim for
lost rental income because, as the first motion judge ruled on reco nsideration,
"damage to other property and subsequent harm" serves as the "anchor" for the
lost rent claim. Plaintiff argues the monies it received from Aspen to repair the
property damage "does not change the fact that the loss of rent arises from
property damage," and thus, plaintiff's negligence cause of action is not barred
against Trematore LLC under the economic loss doctrine. We are unpersuaded.
The undisputed facts of record establish that plaintiff's claim against
Trematore LLC, Trematore Corp., and Affinity is solely contractual in nature.
The $357,758.01 claimed by plaintiff is comprised of economic losses stemming
from lost rent caused by the water leak and resultant damage due to the pipe.
Plaintiff's claims all arise from the Bijou - Trematore LLC Subcontract for which
plaintiff was already compensated by Aspen.
Moreover, on February 22, 2024, the first motion judge placed her
reconsideration decision on the record. The first motion judge stated that she
erred in finding that the economic loss doctrine does not bar plaintiff's claims
for loss of rental income under count one of the complaint, which she deemed
A-2560-23 23 consequential damages arising from a "traumatic event." We part company with
the first motion judge's ruling on this issue. Nonetheless, the first motion judge
found that count one was properly dismissed based on Section 7.6 of the Bijou -
Trematore LLC Subcontract. The first motion judge found that since Bijou and
Trematore LLC cannot bring consequential damages claims against the other,
plaintiff is also barred from bringing such a claim because it is a third-party
beneficiary of the contract. The record supports that determination. Thus, count
one of the complaint was properly dismissed.
Next, plaintiff argues the second motion judge erred in granting summary
judgment to Trematore LLC because the negligence cause of action is not barred
by a lack of privity between these two parties. We disagree.
It is generally accepted that the economic loss doctrine does not require
the parties to be in privity of contract. See BRW, Inc. v. Dufficy & Sons, Inc.,
99 P.3d 66, 72 (Colo. 2004) (explaining that the economic loss doctrine applies
where there is a series of interrelated contracts, even despite privity, because the
parties have the ability to allocate risk); Am. Stores Props., Inc. v. Spotts,
Stevens & McCoy, Inc., 648 F. Supp. 2d 707, 713 (E.D. Pa. 2009) (stating that
A-2560-23 24 "privity of contract is not required for application of the economic loss doctrine
to [a] [p]laintiff's negligence claims").
The economic loss doctrine bars negligence claims when the party
asserting the action has a contractual remedy, thereby maintaining a boundary
between contract and tort law and preventing amplified exposure to the party
responsible for the loss. See Travelers Indem. Co. v. Dammann & Co., 594 F.3d
238, 248 (3d Cir. 2010) ("New Jersey courts have consistently held that contract
law is better suited to resolve disputes between parties where a plaintiff alleges
direct and consequential losses that were within the contemplation of
sophisticated business entities with equal bargaining power and that could have
been the subject of their negotiations.")
There are two exceptions to the economic loss doctrine. The first is where
the injured party would not otherwise have a remedy. People Exp. Airlines, Inc.
v. Consol. Rail & Corp., 100 N.J. 246, 249-50, 254 (1985) (holding an airline
could recover for pure economic loss where a tank car in a freight yard ignited
and caused evacuation of the nearby airport because the airline had no contract
with the owners of the tank car and its only means of recovery was in tort) .
The second exception is if an independent duty exists. Saltiel, 170 N.J. at
316 (finding "[u]nder New Jersey law, a tort remedy does not arise from a
A-2560-23 25 contractual relationship unless the breaching party owes an independent duty
imposed by law."). This refers to situations in which an independent duty exists
irrespective of contractual obligations, such as for doctors, lawyers, insurance
brokers, and manufacturers in products-liability law. Id. at 317.
Our Supreme Court has stated in regard to the economic loss doctrine:
The economic loss doctrine prohibits the recovery in a tort action of economic losses arising out of a breach of contract. See Dean, 204 N.J. at 296-97. Thus, under the economic loss doctrine, "the [Products Liability Act, N.J.S.A. 2A:58C-1 to -11] and common law tort actions do not apply to damage caused to the product itself, or to consequential but purely economic losses caused to the consumer because of a defective product." Ford Motor Credit Co., LLC v. Mendola, 427 N.J. Super. 226, 240 (App. Div. 2012).
[Sun Chem. Corp. v. Fike Corp., 243 N.J. 319, 328 n.2 (2020).]
In a separate case, our Supreme Court discussed the distinction between
cases arising in tort or in contract:
At common law a plaintiff who had a contractual relationship with . . . defendant was able to sue in tort if . . . plaintiff could establish that the alleged breach of duty constituted a "separate and independent tort." [Michael Dorff, Attaching Tort Claims to Contract Actions: An Economic Analysis of Contract, 28 Seton Hall L. Rev. 390, 407 (1997)]. However, "the boundary line between tort and contract actions is not capable of clear demarcation." New Mea, 203 N.J. Super. at 493, 497. Similarly, Prosser & Keeton on the Law of Torts
A-2560-23 26 states that "[t]he distinction between tort and contract liability, as between parties to a contract, has become an increasingly difficult distinction to make." W. Page Keeton et al., Prosser & Keeton on the Law of Torts, § 92, at 655 (5th ed. 1984) (Prosser & Keeton).
Prosser & Keeton offers seven guidelines to assist in distinguishing between tort and contract claims:
(1) Obligations imposed by law are tort obligations;
(2) Tort obligations may not be disclaimable;
(3) Misfeasance or negligent affirmative conduct in the performance of a promise generally subjects an actor to tort liability as well as contract liability for physical harm to persons and tangible things;
(4) Recovery of intangible economic loss is generally determined by contract;
(5) There is no tort liability for nonfeasance, i.e., for failing to do what one has promised to do in the absence of a duty to act apart from the promise made;
(6) Duties of affirmative action are often imposed by law apart from the promises made;
(7) Damages for a loss suffered by a promisee in reliance on a promisor to carry out a promise may be recoverable on a tort negligence theory.
[Prosser & Keeton, § 92, at 656-58.]
A-2560-23 27 Clearly relevant to the facts of this case is the fourth guideline. Prosser & Keeton states that "[g]enerally speaking, there is no general duty to exercise reasonable care to avoid intangible economic loss or losses to others that do not arise from tangible physical harm to persons and tangible things." Id. at 657. In fact, most jurisdictions hold that a contractor's liability for economic loss is limited to the terms of the contract.
[Saltiel, 170 N.J. at 309-10.]
We are convinced that plaintiff's claims are purely economic in nature.
Plaintiff seeks consequential damages for lost rent. No claim is made in the
complaint for personal injury or property damages. It is uncontroverted that
Trematore's and Affinity's obligations—if any—owed to plaintiff stem from
their interrelated contracts, which allocate risks and remedies.
Here, Aspen already paid $339,484.159 in "soft costs," the sum originally
sought in this action resulting from a delay in the completion of the construction
of the Project. As Trematore and Affinity point out, it appears plaintiff is
seeking reimbursement for losses it was already compensated for. Courts of this
State have consistently precluded recovery of duplicative damages predicated
on the same injuries—or losses—as here. See Battaglia v. United Parcel Serv.
Inc., 214 N.J. 518, 562 (2013). In any event, because plaintiff's remedy lies in
9 Plaintiff later amended the sum it was seeking to $357,758.01. A-2560-23 28 a breach of contract claim and not a tort claim, the first exception to the
economic loss doctrine does not apply.
We also hold that the second exception to the economic loss doctrine—an
independent duty of care—did not exist between plaintiff and Trematore or
Affinity. The second motion judge explicitly found Trematore LLC's duties, in
accordance with the contract documents, were to perform "in a good and
workmanlike manner, and in accordance with industry standards . . . rooted in
the contract scheme for the Project." Contrary to plaintiff's contention,
Trematore and Affinity did not breach any independent duty imposed by law.
Based upon our de novo review, we conclude this matter involves purely
economic loss and because no exception to the economic loss doctrine applies,
plaintiff's negligence claim against Trematore and Affinity is barred for two
reasons.
First, "a tort remedy does not arise from a contractual relationship unless
the breaching party owes an independent duty imposed by law." Saltiel, 170
N.J. at 316; see also Int'l Mins. & Mining Corp. v. Citicorp N. Am., Inc., 736 F.
Supp. 587, 597 (D.N.J.1990); New Mea, 203 N.J. Super. at 493. "Generally
speaking, there is no general duty to exercise reasonable care to avoid intangible
economic loss or losses to others that do not arise from tangible physical harm
A-2560-23 29 to persons and tangible things." Saltiel, 170 N.J. at 310 (quoting Prosser &
Keeton at 657). Our courts have found that some circumstances impose duties
under both contract and tort, such as with doctors, attorneys, manufacturers, or
bailees. Id. at 317. However, in those cases, the law imposed duties independent
of those that arose under contract, for example, the duty to exercise due care.
Ibid. No such duty exists here.
Second, plaintiff could have asserted a breach of contract claim against
Bijou for the lost rent. Based on this record, Bijou is the only entity involved in
the Project having direct privity of contract with plaintiff. Affinity possessed
specific plumbing skills that it was obligated to apply under the contract.
Specifically, the Trematore Corp. - Affinity Subcontract provides:
"[s]ubcontractor shall conduct its operations so as to not to damage existing structures, any work installed either by it or by other [s]ubcontractors or any personal property of the [g]eneral [c]ontractor/[o]wner/Trematore . . . [Corp.] and others. In case of any such damage resulting from its operations, [s]ubcontractor shall repair and make good as new the damaged portions at its own expense with the consent of the damaged person or settle with the damaged person."
On the record provided, we are unable to discern any duty owed to
plaintiff by Trematore and Affinity that is independent of the duties that arose
A-2560-23 30 contractually. Thus, we glean no reason to disturb dismissal of plaintiff's
complaint.
III.
Next, we address plaintiff's contention that both judges erred in granting
summary judgment to Affinity and Trematore. Plaintiff argues both judges
incorrectly determined that Section 7.6 of the Bijou - Trematore LLC
Subcontract barred plaintiff's claim for consequential damages. Again, we
disagree.
Our review of the court's interpretation and construction of a contract is
de novo. Manahawkin Convalescent v. O'Neill, 217 N.J. 99, 115 (2014). Our
task is to "ascertain the intention of the parties as revealed by the language used,
the situation of the parties, the attendant circumstances, and the objects the
parties were striving to attain." Celanese Ltd. v. Essex Cnty. Improvement
Auth., 404 N.J. Super. 514, 528 (App. Div. 2009). "Where the terms of a
contract are clear, we enforce the contract as written and ascertain the intention
of the parties based upon the language." Pollack v. Quick Quality Rests., Inc.,
452 N.J. Super. 174, 187-88 (App. Div. 2017). "[U]nambiguous contracts are
to be enforced as written . . . ." Grow Co., Inc. v. Chokshi, 403 N.J. Super. 443,
464 (App. Div. 2008).
A-2560-23 31 As our Supreme Court explained when deciding the enforceability of an
arbitration provision, "traditional principles of state law allow a contract to be
enforced by or against nonparties to the contract through assumption, piercing
the corporate veil, alter ego, incorporation by reference, third[-]party
beneficiary theories, waiver and estoppel." Hirsch v. Amper Fin. Servs., LLC,
215 N.J. 174, 188 (2013) (internal emphasis omitted) (quoting Arthur Andersen
LLP v. Carlisle, 556 U.S. 624, 631 (2009)).
"The standard applied by courts in determining third[-]party beneficiary
status is 'whether the contracting parties intended that a third[-]party should
receive a benefit which might be enforced in the courts . . . .'" Reider Cmtys.,
Inc. v. Twp. of N. Brunswick, 227 N.J. Super. 214, 222 (App. Div. 1988)
(quoting Brooklawn v. Brooklawn Hous. Corp., 124 N.J.L. 73, 77 (E. & A.
1940)). "[T]he intention of contracting parties to benefit an unnamed third[-]
party must be garnered from an examination of the contract and a consideration
of the circumstances attendant to its execution." Ibid.
"The principle that determines the existence of a third[-]party beneficiary
status focuses on whether the parties to the contract intended others to benefit
from the existence of the contract, or whether the benefit so derived arises
A-2560-23 32 merely as an unintended incident of the agreement." Broadway Maint. Corp. v.
Rutgers, State Univ., 90 N.J. 253, 259 (1982) (footnote omitted).
Here, Section 7.6 in the Bijou - Trematore LLC Subcontract states "[t]he
[c]ontractor and [s]ubcontractor waive claims against each other for
consequential damages arising out of or relating to this [s]ubcontract, including
without limitation, any consequential damages due to either party's termination."
In denying plaintiff's motion for reconsideration on this issue, the first
motion judge emphasized both the Bijou - Trematore LLC Subcontract and the
Trematore Corp. - Affinity Subcontract specifically reference plaintiff in their
indemnity provisions, requiring Trematore and Affinity to defend plaintiff
against any claims. The first motion judge held the plain language of the waiver
provision "clearly indicates an intention for all claims for consequential losses
arising out of [Affinity's] performance . . . under the [s]ubcontract to be barred."
Accordingly, the first motion judge properly dismissed count one of
plaintiff's complaint. To hold otherwise would give plaintiff "an unfair or
unreasonable advantage over" Trematore and Affinity. Washington Constr. Co.
v. Spinella, 8 N.J. 212, 218 (1951).
In a similar vein, the second motion judge determined count one of
plaintiff's complaint had to be dismissed with prejudice because plaintiff is a
A-2560-23 33 third-party beneficiary of the Bijou - Trematore LLC Subcontract and thereby
waived its right to assert consequential damages against Trematore LLC. The
second motion judge dismissed count two of plaintiff's complaint without
prejudice to allow future indemnification claims to be brought against Trematore
LLC pursuant to the subcontract.
N.J.S.A. 2A:15-2 provides: "A person for whose benefit a contract is
made, either simple or sealed, may sue thereon in any court . . . although the
consideration of the contract did not move from him [or her]." A third-party
may only enforce a contract if they are an intended beneficiary, rather than an
incidental beneficiary, of the agreement. Broadway, 90 N.J. at 259. "The
determining factor as to the rights of a third[-]party beneficiary is the intention
of the parties who actually made the contract." Ibid. "If that intent does not
exist, then the third person is only an incidental beneficiary, having no
contractual standing." Ibid.
"Thus, the real test is whether the contracting parties intended that a third-
party should receive a benefit which might be enforced in the courts; and the
fact that such a benefit exists, or that the third[-]party is named, is merely
evidence of this intention." Ibid. The contracting parties "may expressly negate
any legally enforceable right in a third[-]party. Likewise, they may expressly
A-2560-23 34 provide for that right." Id. at 260. If the contract is silent on the issue, the court
must "examine the pertinent provisions in the agreement and the surrounding
circumstances to ascertain that intent." Ibid. (citing Talcott v. H. Corenzwit &
Co., 76 N.J 305, 312 (1978)).
Here, we are convinced the Bijou - Trematore LLC Subcontract
demonstrates an intent by Bijou and Trematore LLC to confer plaintiff with
third-party beneficiary status as evidenced in numerous sections of the
subcontract. Not only do many of these sections reference plaintiff, but many
sections give plaintiff enforceable rights. For example, Section 4.4.5 states that
"the [s]ubcontractor agrees that the [c]ontractor, [o]wner, [a]rchitect,
[e]ngineers, and [d]esign [c]onsultants each have the authority to r eject [w]ork
of the [s]ubcontractor that does not conform to the [p]rime [c]ontract."
(emphasis added). Section 1.8.1 states that the subcontractor:
shall defend, indemnify and hold harmless the [o]wner, [c]ontractor, [a]rchitect, [a]rchitect's [c]onsultants, other [d]esign [c]onsultants, and agents and employees of any of them from and against claims, damages, losses and expenses, including but not limited to attorney's fees, provided that any such claim, damage, loss or expense is attributable to bodily injury, sickness, disease or death, or to injury to or destruction of tangible property, including construction defect claims, arising out of or resulting from performance of the [s]ubcontract's [w]ork under this [s]ubcontract including the [s]ubcontractor's [s]ub-subcontractors,
A-2560-23 35 anyone directly or indirectly employed by them or anyone for whose acts they may be liable, regardless of whether or not such claim, damage, loss or expense is caused in whole or in part by a party indemnified hereunder.
[(emphasis added).]
Further, Section 8.8 states:
The [c]ontractor and [s]ubcontractor waive all rights against (1) each other and any of their subcontractors, sub-subcontractors, agents and employees, each of the other, and (2) the [o]wner, the [a]rchitect, the [a]rchitect's consultants, separate contractors, and any of their subcontractors, sub-subcontractors, agents and employees for damages caused by fire or other causes of loss to the extent covered by property [i]nsurance provided under the [p]rime [c]ontract or other property insurance applicable to the [w]ork, except such rights as they may have to proceeds of such insurance held by the [o]wner as a fiduciary. The [s]ubcontractor shall require of the [s]ubcontractor's [s]ub-subcontractors, agents and employees, by appropriate agreements, written where legally required for validity, similar waivers in favor of the parties enumerated herein.
Clearly, all of these provisions granted plaintiff enforceable rights under the
Bijou - Trematore LLC Subcontract.
Because the Bijou - Trematore LLC Subcontract unquestionably confers
benefits upon plaintiff, it is also bound by Section 7.6, which states, "[t]he
[c]ontractor and [s]ubcontractor waive claims against each other for
A-2560-23 36 consequential damages arising out of or relating to this [s]ubcontract, including
without limitation, any consequential damages due to either party's termination."
Thus, as the record shows plaintiff is a third-party beneficiary of the Bijou -
Trematore LLC Subcontract, both judges properly dismissed plaintiff's
negligence claims against Trematore and Affinity.
IV.
Plaintiff also argues the plain language contained in Section 7.6 of the
Bijou - Trematore LLC Subcontract does not expressly state that plaintiff
waived its claims for consequential damages. Plaintiff maintains the motion
judges erred by interpreting the term "contractor" to mean "owner and
contractor" without re-writing the terms of the Bijou - Trematore LLC
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. of Am., 309 N.J. Super. 415, 420 (App. Div. 1998). Appellate courts
decide such purely legal questions without deferring to a lower court's
"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).
A-2560-23 37 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 Conts.
§ 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 & Serv., Inc. v.
Gimbel Bros. Inc., 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).
A-2560-23 38 Here, both judges dismissed count two "without prejudice" in order to
allow "any future indemnification claims brought against [Trematore and
Affinity] pursuant to the subcontract." This provision emanates from Section
1.8.1 of the Bijou - Trematore LLC Subcontract, which states that the
subcontractor:
shall defend, indemnify and hold harmless the [o]wner, [c]ontractor, [a]rchitect, [a]rchitect's [c]onsultants, other [d]esign [c]onsultants, and agents and employees of any of them from and against claims, damages, losses and expenses, including but not limited to attorney's fees, provided that any such claim, damage, loss or expense is attributable to bodily injury, sickness, disease or death, or to injury to or destruction of tangible property, including construction defect claims, arising out of or resulting from performance of the [s]ubcontract's [w]ork under this [s]ubcontract including the [s]ubcontractor's [s]ub-subcontractors, anyone directly or indirectly employed by them or anyone for whose acts they may be liable, regardless of whether or not such claim, damage, loss or expense is caused in whole or in part by a party indemnified hereunder.
Our Supreme Court has previously stated:
In the quest for the common intention of the parties to a contract the court must consider the relations of the parties, the attendant circumstances and the objects they were trying to attain. An agreement must be construed in the context of the circumstances under which it was entered into and it must be accorded a
A-2560-23 39 rational meaning in keeping with the express general purpose. . . .
Even where the intention is doubtful or obscure, the most fair and reasonable construction, imputing the least hardship on either of the contracting parties should be adopted, . . . , so that neither will have an unfair or unreasonable advantage over the other. . . . . These rules apply in all circumstances, whether the agreement be integrated or unintegrated.
[Tessmar v. Grosner, 23 N.J. 193, 201 (1957).]
Here, to allow plaintiff to bring the claim under count two for "breach of
contract-failure to indemnify," while also allowing them to not follow Section
7.6 of the Bijou - Trematore LLC Subcontract would be giving a third-party
beneficiary all the benefits of a contract without being burdened by its
obligations and create an unfair advantage in plaintiff's favor. Therefore, we
reject plaintiff's argument.
Plaintiff next argues its negligence cause of action cannot be barred as
"Bijou is not an indispensable party to the negligence cause of action."
"Whether a party is indispensable is fact sensitive." Int'l Brotherhood of Elec.
Workers Loc. 400 v. Borough of Tinton Falls, 468 N.J. Super. 214, 225 (App.
Div. 2021).
A-2560-23 40 Indispensability, in the context of Rule 4:28-1(a), "is usually determined
from the point of view of the absent party and in consideration of whether or not
his rights and interests will be adversely affected." Pressler & Verniero, Current
N.J. Court Rules, cmt. 3.1 on R. 4:28-1 (2025). But the interests of parties
already in the litigation are not absent from consideration. See, e.g., Int'l
Brotherhood of Elec. Workers, 468 N.J. Super. at 225 ("[A] party is not truly
indispensable unless he [or she] has an interest inevitably involved in the subject
matter before the court and a judgment cannot justly be made between the
litigants without either adjudging or necessarily affecting the absentee's
interests." (emphasis added) (quoting Toll Bros., Inc. v. Twp. of W. Windsor,
334 N.J. Super. 77, 90-91 (App. Div. 2000))). "Even if the court is mistaken in
its decision to proceed in the absence of an interested person, it does not by that
token deprive itself of the power to adjudicate as between the parties al ready
before it . . . ." Pressler & Verniero, cmt. 1 on R. 4:28-1.
Here, Bijou was "to furnish and supply all labor, materials, and equipment
necessary for the construction of the Project in accordance with the plans and
specifications and contract documents." In addition, Bijou hired Trematore LLC
"as subcontractor, by way of a written agreement . . . to provide the labor,
materials, and equipment necessary to complete certain plumbing and
A-2560-23 41 mechanical work to and for the Project in accordance with written plans and
specifications and contract documents." It is unchallenged that Bijou is the only
entity to which plaintiff entered into a contract. Nonetheless, plaintiff did not
sue Bijou but instead filed a complaint against parties plaintiff had no direct
contract with. Moreover, in the related Federal Action, Bijou directly filed an
answer to the fourth-party complaint and a fifth-party complaint against
Trematore and Affinity, which directly mirrors the claims in the matter under
review. Contrary to plaintiff's assertion, it was well aware that Bijou was an
indispensable party to this action.
VI.
Plaintiff next argues that summary judgment was prematurely granted
because Trematore operated under several distinct names and additional
discovery is required to determine the appropriate Trematore entity that should
have been named. "[S]ummary judgment is not premature merely because
discovery has not been completed, unless plaintiff is able to demonstrate with
some degree of particularity the likelihood that further discovery will supply the
missing elements of the cause of action." Badiali v. N.J. Mfrs. Ins. Grp., 220
N.J. 544, 555 (2015) (internal quotation marks omitted); see also Minola v.
Kushner, 365 N.J. Super. 304, 307 (App. Div. 2004) ("While we are aware that
A-2560-23 42 ordinarily decision on a summary judgment should be withheld until completion
of discovery, nevertheless, discovery need not be undertaken or completed if it
will patently not change the outcome").
Plaintiff has failed to demonstrate the discovery it suggests—the
appropriate Trematore entity to be named—would supply the missing elements
of its cause of action or alter the outcome, warranting summary dismissal of its
negligence claim.
VII.
Finally, plaintiff argues the second motion judge "did not convert
Trematore LLC's [m]otion to [d]ismiss to a [m]otion for [s]ummary [j]udgment
until her written decision was issued on March 12, 2024" and thus "oral
argument was heard without the filing of either a statement or counterstatement
of material facts."
"In evaluating motions to dismiss, courts consider allegations in the
complaint, exhibits attached to the complaint, matters of public record, and
documents that form the basis of a claim." Banco Popular N. Am. v. Gandi, 184
N.J. 161, 183 (2005); see also Teamsters Loc. 97 v. State, 434 N.J. Super. 393,
412 (App. Div. 2014). "If a trial court reviewing a motion to dismiss relies on
materials beyond the allegations in the complaint, the 'motion [is] treated as one
A-2560-23 43 for summary judgment.'" Arias v. Cnty. of Bergen, 479 N.J. Super. 268, 289
(App. Div. 2024) (alteration in original) (quoting Lederman v. Prudential Life
Ins. Co. of Am., Inc., 385 N.J. Super. 324, 337 (App. Div. 2006); see also Rule
4:6-2 ("If . . . matters outside the pleading are presented to and not excluded by
the court, the motion shall be treated as one for summary judgment and disposed
of as provided by [Rule] 4:46")).
Plaintiff avers the second motion judge did not give it advance notice of
her intention to treat the dismissal motions as summary judgment motions. See
Rule 4:6-2 ("all parties shall be given reasonable notice of the court's intention
to treat the motion as one for summary judgment and a reasonable opportunity
to present all material pertinent to such a motion"). The transcript of the
February 20, 2024 oral argument was not provided to this court, and therefore,
our review of this issue is limited.
However, even accepting plaintiff's representation, we discern no
reversible error. The contents of Trematore LLC's motion, which included
documents that were not referenced in or attached to the complaint or were not
publicly available, clearly placed plaintiff on notice that the second motion
judge could convert the motions to summary judgment motions. And, contrary
A-2560-23 44 to plaintiff's assertion, the alleged lack of notice did not prevent plaintiff from
opposing the motions as summary judgment motions.
We conclude the remaining arguments—to the extent we have not
addressed them—lack sufficient merit to warrant any further discussion in a
written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
A-2560-23 45