Foley, Incorporated v. Ameresco, Inc.

• Court: New Jersey Superior Court Appellate Division
• Decided: March 25, 2025
• Docket: A-3241-23
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-3241-23

FOLEY, INCORPORATED,

Plaintiff-Appellant,

v.

AMERESCO, INC.,

Defendant-Respondent. __________________________

Argued March 11, 2025 – Decided March 25, 2025

Before Judges Gooden Brown and Vanek.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-5205-23.

Andrew R. Turner (Turner Law Firm, LLC) argued the cause for appellant.

Scott L. Wenzel (Yankwitt LLP) argued the cause for respondent.

PER CURIAM

Plaintiff Foley, Inc. appeals from an amended trial court order dismissing

its complaint without prejudice for failure to comply with contractual dispute resolution procedures (DRP) before litigating and finding defendant Ameresco,

Inc. is entitled to contractual attorney's fees. Based on our review of the record,

we vacate and remand to the trial court for further proceedings.

I.

We discern the salient facts from the motion record before the trial court.

Plaintiff, a New Jersey-based authorized Caterpillar dealer, commenced

litigation against defendant seeking payment of a $198,066.38 retainage, plus

interest, after it delivered a commercial generator set to Trinitas Regional

Medical Center pursuant to a purchase order (the Purchase Order). The Purchase

Order incorporated the terms and conditions set forth in written specifications

(the Specifications).

Defendant moved to dismiss plaintiff's complaint under Rule 4:6-2(e),

arguing plaintiff failed to comply with the DRP contained in Section 4.14 of the

Specifications. Defendant also sought an award of contractual attorney's fees

for plaintiff's non-compliance with the DRP. Defendant requested oral

argument if the motion was opposed.

Defendant's motion relied on a certification signed by plaintiff's counsel

appending the Purchase Order and Specifications, as well as various unpublished

A-3241-23 2 cases for the court's consideration. Defendant's motion was not accompanied by

a factual certification.

Section 4.14 of the Specifications, titled "Governing Law and Dispute

Resolution," mandates the parties comply with the following DPR before

litigating:

4.14.1. If, during the Term of this Agreement a claim, dispute or other matter in controversy ("Claim") arises concerning the Services or this Agreement, a representative from management of both Parties shall meet in person or by phone within ten business days after either Party gives the other Party written notice of the Claim (the "Dispute Notice"). The Dispute Notice shall set forth in reasonable detail the aggrieved party's position and its proposal for resolution of the Claim. If the Claim is not resolved within [thirty] calendar days after the first meeting of the Parties, then the Parties shall endeavor to resolve the Claim by mediation. A request for mediation shall be made in writing, delivered to the other Party and filed with the person or entity administering the mediation. Except for requests for injunctive relief, mediation shall proceed in advance of any proceedings filed in a judicial forum, which shall not be commenced for a period of at least [sixty] days from the date the Dispute Notice was served . . . .

4.14.2. If the parties do not resolve the Claim through informal dispute resolution or mediation, either Party is free to pursue any other available remedy in law or at equity. The Dispute Notice is a condition precedent to each Party's right to resort to litigation, provided that during such time as the Parties are conferring, either party may petition a court of competent jurisdiction for injunctive relief . . . .

A-3241-23 3 Section 4.14.2 also requires each party to pay the other's counsel fees in the

event they initiate litigation prior to attempting to resolve through the DRP.

Pursuant to Section 4.10.5, the Purchase Order and Specifications could only be

modified through a writing signed by both parties.

Plaintiff opposed the motion with a certification from its Executive Vice

President for Power Systems, Joseph Amabile, and appended emails showing

plaintiff delivered the generator pursuant to the Purchase Order and

Specifications, but the retainage was not paid. Amabile certified the parties

attempted to resolve the dispute from October 2022 through August 10, 2023,

with defendant's representative, Daniel Gardner, advising in a July 20 invoice

that plaintiff's retainage invoice in the amount of $201,611.61 was not processed

due to "a credit invoice stuck in the system." Amabile stated Gardner agreed to

have the payment processed once plaintiff submitted a revised invoice deducting

the credit from the retainage amount. In the same email, Gardner asked plaintiff

to copy him "on the email when . . . accounting submits[,] and [he would] follow

[through] the system." Plaintiff certified the revised invoice for $198,066.38,

inclusive of all credits, was submitted but defendant failed to release the

retainage.

A-3241-23 4 The emails appended to Amabile's certification show that on August 10

Gardner emailed defendant and advised that the accounting group reviewed the

purchase order and stated "there [would] be a bill back for the supervision and

support costs incurred for the project commissioning delays due to the vibration

issues in the end of 2021 totaling $32,624.86." The email chain reflects

plaintiff's objection. There is no evidence mediation was requested or

referenced by either party, at any time. Defendant did not submit a reply

certification to the trial court.

Initially, the trial court granted defendant's motion in its entirety without

oral argument or issuing a statement of reasons. The trial court's order dismissed

plaintiff's complaint without prejudice "for failure of [p]laintiff to comply" with

Section 4.14.1 of the Specifications and awarded defendant reasonable

attorneys' fees and costs pursuant to Section 4.14.2. After the motion was

granted, defense counsel sent a letter to plaintiff requesting $35,517.70 in fees

and $352.33 in costs for the motion, without obtaining a fee award from the trial

court.

Plaintiff appealed. The trial court then entered an amended order, in the

same form as the prior order but appending a written statement of reasons. The

trial court stated no oral argument was scheduled because plaintiff did not

A-3241-23 5 submit substantive, meritorious opposition, and "no amount of oral argument

could have changed the outcome." The trial court found the parties did not

dispute the Purchase Order and Specifications constituted the contract between

them and that there was an unambiguous contractual pre-suit mediation

provision. The statement of reasons did not substantively address plaintiff's

opposition, which detailed the parties' negotiations and alleged resolution of the

retainage issue in the July 20 email exchange. Nor did the statement of reasons

reference the standard the trial court applied to decide the motion.

II.

A.

Plaintiff argues the trial court erred in denying oral argument and granting

defendant's motion predicated on a hearsay certification without considering

plaintiff's opposition, which established the parties resolved the retainage issue.

Defendant posits the parties did not resolve the contractual dispute and the trial

court properly granted its motion without oral argument based on the

submissions, contending remand is appropriate only for the trial court to decide

the amount of attorney's fees to be awarded to defendant.

We address the parties' arguments in turn.

B.

A-3241-23 6 Our review of a trial court's decision on a motion to dismiss for failure to

state a claim upon which the court can grant relief is de novo. Baskin v. P.C.

Richard & Son, LLC, 246 N.J. 157, 171 (2021). We "search[] the complaint in

depth and with liberality to ascertain whether the fundament of a cause of action

may be gleaned even from an obscure statement of claim, opportunity being

given to amend if necessary." Di Cristofaro v. Laurel Grove Mem'l Park, 43

N.J. Super. 244, 252 (App. Div. 1957).

Our ability to resolve an appeal is largely dependent on the trial court's

compliance with its Rule 1:7-4 obligation to "'state clearly [its] factual findings

and correlate them with relevant legal conclusions, so that parties and the

appellate courts [are] informed of the rationale underlying th[ose]

conclusion[s].'" Avelino-Catabran v. Catabran, 445 N.J. Super. 574, 594-95

(App. Div. 2016) (alterations in original) (quoting Monte v. Monte, 212 N.J.

Super. 557, 565 (App. Div. 1986)); Curtis v. Finneran, 83 N.J. 563, 570 (1980)

("Naked conclusions do not satisfy the purpose of [Rule] 1:7-4."). Without a

clear statement of reasons, "we are left to conjecture as to what the judge may

have had in mind." Salch v. Salch, 240 N.J. Super. 441, 443 (App. Div. 1990).

Under Rule 1:6-6, "[a]n affiant must aver that the facts presented are on

personal knowledge, identify the source of such knowledge, and must properly

A-3241-23 7 authenticate any certified copies of documents referred to therein and attached

to the affidavit or certification." New Century Fin. Servs., Inc. v. Oughla, 437

N.J. Super. 299, 317-18 (App. Div. 2014) (citing Wells Fargo Bank, N.A. v.

Ford, 418 N.J. Super. 592, 599-600 (App. Div. 2011)). Facts in an attorney's

certification that are not predicated on personal knowledge are "gross hearsay

and a clear violation of [Rule] 1:6-6." Cafferata v. Peyser, 251 N.J. Super. 256,

263 (App. Div. 1991); see also Pressler & Verniero, Current N.J. Court Rules,

cmt. on R. 1:6-6 (2024) ("[a]ffidavits by attorneys of facts not based on their

personal knowledge but related to them by and within the primary knowledge of

their clients constitute objectionable hearsay"); Gonzalez v. Ideal Tile Importing

Co., Inc., 371 N.J. Super. 349, 358 (App. Div. 2004).

On an opposed civil motion that is not a pre-trial discovery motion or

directly addressed to the calendar, oral argument must be granted as of right.

See R. 1:6-2(d). Notwithstanding Rule 1:6-2(d), a trial court can dispense with

a request for oral argument if the record sets forth "special or unusual

circumstance[s]." Filippone v. Lee, 304 N.J. Super. 301, 306 (App. Div. 1997).

C.

Since the trial court did not clearly set forth its findings of fact and

conclusions of law for the entry of the amended order after considering oral

A-3241-23 8 argument, we vacate and remand to the trial court for further proceedings

consistent with this opinion. Based on the facts and circumstances of the case,

we direct the Presiding Judge of the Civil Part to assign this case to a different

judge on remand. The trial court's written statement of reasons lends itself to a

perception that it might not fully consider the arguments of counsel and may be

unduly committed to its initial decision on the motion. Graziano v. Grant, 326

N.J. Super. 328, 350 (App. Div. 1999) (stating the power to remand a case to a

different trial judge "may be exercised when there is a concern that the trial

judge has a potential commitment to [their] prior findings"); see also Freedman

v. Freedman, 474 N.J. Super. 291, 308 (App. Div. 2023) (further citations

omitted) (remanding a matter to a different trial judge as the same judge "may

have a commitment to [their] prior findings").

On remand, the trial court shall hear oral argument 1 and decide the motion

anew, issuing either a written or oral statement of reasons "stat[ing] clearly [its]

factual findings and correlat[ing] them with relevant legal conclusions."

1 Once plaintiff opposed the motion, the trial court lacked the authority under the court rules to decline oral argument based on its finding that plaintiff did not submit substantive, meritorious opposition and because "no amount of oral argument could have changed the outcome."

A-3241-23 9 Avelino-Catabran, 445 N.J. Super. at 594-95 (quoting Monte, 212 N.J. Super. at

565). Since both parties submitted documents outside the pleadings, the

statement of reasons shall address the standard governing the motion and

reference whether the motion was converted to summary judgment pursuant to

Rule 4:6-2(e). The trial court's statement of reasons shall also address whether

movant established, by competent proofs in the record pursuant to Rule 1:6-6,

that the DRP applies in light of plaintiff's certification from Amabile asserting

the parties negotiated a resolution to release the retainage upon submission of a

revised invoice reflecting the agreed-upon credit. The trial court shall also

consider all other issues it may deem relevant on the motion.

Should the trial court deem an award of attorney's fees contractually

required, plaintiff shall not be liable for payment of fees until the trial court

engages in the required analysis under RPC 1.5 and prevailing law. See Rendine

v. Pantzer, 141 N.J. 292, 335 (1995) (holding when calculating the amount of

reasonable attorney's fees, courts must determine the lodestar, defined as "the

number of hours reasonably expended multiplied by a reasonable hourly rate,"

while considering the factors set forth in RPC 1.5).

We decline to adjudicate the merits of the parties' claims or defenses

further, since we "are left to conjecture as to what the judge may have had in

A-3241-23 10 mind" and lack the ability to engage in meaningful appellate review on this

record. See R. 1:7-4; Salch, 240 N.J. Super. at 443; see also Est. of Doerfler v.

Fed. Ins. Co., 454 N.J. Super. 298, 302 (App. Div. 2018) (noting that Rule 1:7-

4's "requirements are unambiguous").

Any arguments not addressed in this decision are without sufficient merit

to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

Vacated and remanded. We do not retain jurisdiction.

A-3241-23 11