LESSNER ELECTRIC COMPANY VS. FIDELITY AND DEPOSIT COMPANY OF MARYLAND (L-1353-17, UNION 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NOT FOR PUBLICATION WITHOUT THE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-0081-17T3

LESSNER ELECTRIC COMPANY,

Plaintiff-Appellant,

v.

FIDELITY AND DEPOSIT COMPANY OF
MARYLAND, ZURICH AMERICAN
INSURANCE CO., and APS
CONTRACTING, INC.,

Defendants-Respondents.

_____________________________________

Argued July 31, 2018 – Decided August 8, 2018

Before Judges Sabatino and Mawla.

On appeal from Superior Court of New Jersey,
Law Division, Union County, Docket No. L-1353-
17.

Glenn C. Slavin argued the cause for appellant
(Slavin & Morse, LLC, attorneys; Glenn C.
Slavin, on the brief).

Eric J. Levine argued the cause for
respondents Fidelity and Deposit Company of
Maryland and Zurich American Insurance Company
(Baron Samson, LLP, attorneys; Eric J. Levine,
on the brief).
 Daniel Connolly Carmalt argued the cause for
respondent APS Contracting, Inc. (Carmalt Law,
LLC, attorneys; Daniel Connolly Carmalt, on
the brief).

PER CURIAM

Plaintiff Lessner Electric Company (Lessner) appeals from

August 22, 2017 and September 20, 2017 orders dismissing its

complaint alleging breach of contract, delay damages, and unjust

enrichment on grounds of a failure to state a claim. We affirm.

In July 2013, Lessner entered into a subcontract with

defendant APS Contracting, Inc. (APS) to perform electrical work

on the construction of the Union County Family Courthouse. In

pertinent part, the contract between Lessner and APS stipulated

as follows:

To the fullest extent permitted by law,
[Lessner] waives its right to any claim for
damage for delay from [APS] . . . . [Lessner]
expressly confirms its understanding that this
is a complex project with multiple prime
contractors and/or numerous other
subcontractors, which conditions may result
in, by way of example only and not by the way
of limitation, coordination and interference
issues, out of sequence work, recurring
schedule revisions, compression and/or
acceleration of the [w]ork, stoppage of the
[w]ork, and/or other unspecified delays to the
[p]roject and for which [Lessner] may not be
compensated. [Lessner] expressly undertakes
and assumes the risks of the above and
disclaims any liability for same on the part
of [APS].

[(Emphasis added).]

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 Defendants Fidelity and Deposit Company of Maryland, and its

parent company Zurich American Insurance Co. (collectively, the

surety) insured the performance of APS through a warranty bond.

In April 2015, APS was removed from the project, and the surety

assumed APS's role for the remainder of the project.

In August 2015, the surety entered into an Assignment and

Ratification Agreement (ratification agreement) with Lessner to

reaffirm its subcontract, bring Lessner current for certain

payments and costs Lessner believed were due from APS, and have

Lessner complete the remainder of its work.

The ratification agreement expressly stipulated in paragraph

2: "Except as otherwise modified by this Agreement, the terms of

the Subcontract remain in full force and effect." The ratification

agreement further stated Lessner "hereby: (i) ratifies and affirms

its obligations under the Subcontract . . . [and] (iv) agrees

. . . [it] shall complete the Subcontract and the Subcontract Work

. . . for [the] Surety, as a subcontractor for [the] Surety, in

accordance with the terms of the Subcontract and Contract [with

APS] . . . ." The ratification agreement also set forth the amount

Lessner claimed it required from the surety in order to return and

complete its work. This figure was comprised of the original

amount agreed upon between Lessner and APS with an addition for a

change order, less sums already paid to Lessner.

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 The surety and Lessner agreed on no other conditions on

Lessner's return to the project, other than to contract for the

payment of the sums due under the original contract. However, the

ratification agreement did identify damages Lessner claimed it had

suffered as a result of the delay of the project. Specifically,

paragraph 4 of the ratification agreement released APS and the

surety,

from any and all claims, of any type or kind,
known or unknown, asserted or unasserted,
which in any way arise from, relate to, or
concert the Subcontract, the Contract, the
Project, the Bond, and/or the [Lessner's]
performance under the Subcontract, which
claims have accrued or arise out of or relate
to events occurring prior to the date of this
Agreement, excluding only: . . . (ii) such
claims as may be identified . . . in Rider A,
which is attached hereto and made a part
hereof.

Rider A was entitled "PENDING REQUESTS FOR CHANGE ORDERS AND

RESERVED CLAIMS," and allegedly included Lessner's non-waiver of

a claim for delay damages although the rider did not describe them

specifically as such.1

In September 2016, Lessner asserted a claim against the surety

seeking "additional compensation due to the delay damages"

1
The bottom of Rider A obliquely references a May 20, 2015
"Scheduling Concerns/Delays" letter. However, the letter was not
supplied to the motion judge, and is not part of the record before
us.

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totaling $1.82 million allegedly resulting in a twenty-four month

delay caused by APS's replacement on the project. The surety

noted Lessner's sole remedy for delay under the contract was to

seek an extension of time to complete its work. The surety also

noted there had been "no meeting of the minds" under the

ratification agreement to compensate Lessner for delay damages.

Lessner filed a complaint in the Law Division for breach of

contract against defendants seeking payment of the delay damages.

The complaint asserted three counts against the surety, alleging

a breach of the bonding agreement, the contract with APS, and

unjust enrichment. The surety and APS filed motions to dismiss

for failure to state a claim. Defendants argued their motions

should be granted because of the express waiver of delay damages

clause under the contract with APS, and that delay damages were

not recoverable under the express terms of the bond and the Bond

Act, N.J.S.A. 2A:44-143 to -147.

The motion judge granted the surety's motion to dismiss. The

judge found Lessner knew of its delay damages claim, yet entered

into the ratification agreement, which did not provide for payment

of the alleged damages. The judge also concluded the express

waiver of delay damages under the contract with APS was binding,

and therefore likewise dismissed the claims against APS. This

appeal followed.

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 We begin by reciting our standard of review. Appellate review

of a trial court's ruling on a motion to dismiss is de novo.

Frederick v. Smith, 416 N.J. Super. 594, 597 (App. Div. 2010)

(citing Seidenberg v. Summit Bank, 348 N.J. Super. 243, 250 (App.

Div. 2002)). "A complaint should be dismissed for failure to

state a claim pursuant to Rule 4:6-2(e) only if 'the factual

allegations are palpably insufficient to support a claim upon

which relief can be granted.'" Ibid. (quoting Rieder v. State

Dep't of Transp., 221 N.J. Super. 547, 552 (App. Div. 1987)).

"This standard requires that 'the pleading be searched in depth

and with liberality to determine whether a cause of action can be

gleaned even from an obscure statement.'" Ibid. (quoting

Seidenberg, 348 N.J. Super. at 250); see also Printing Mart-

Morristown v. Sharp Elecs. Corp., 116 N.J. 739, 746 (1989).

On appeal, Lessner asserts the motion judge prematurely

dismissed its complaint and applied the wrong legal standard for

Rule 4:6-2(e) motions by requiring Lessner to prove the allegations

in the complaint, rather than afford it every favorable inference.

Lessner argues APS acted in bad faith and contrary to the intent

of the contract by delaying the project by two years. Lessner

asserts the motion judge failed to search the contract to

understand its intent. Additionally, Lessner argues the "no delay

damages" clause allowed for a modification, and the surety

6 A-0081-17T3
allegedly ratified the modification provision when it entered into

the ratification agreement, which contained Rider A. We address

these arguments in turn.

"A contract is an agreement resulting in obligation

enforceable at law. . . . To be enforceable as a contractual

undertaking, an agreement must be sufficiently definite in its

terms that the performance to be rendered by each party can be

ascertained with reasonable certainty." W. Caldwell v. Caldwell,

26 N.J. 9, 24-25 (1958) (citing Friedman v. Tappan Dev. Corp., 22

N.J. 523, 531 (1956)). "The polestar of contract construction is

to discover the intention of the parties as revealed by the

language used by them." Karl's Sales & Serv. v. Gimbel Bros., 249

N.J. Super. 487, 492 (App. Div. 1991).

"Generally, the terms of an agreement are to be given their

plain and ordinary meaning." M.J. Paquet v. N.J. DOT, 171 N.J.

378, 396 (2002). "[W]here 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,

249 N.J. Super. at 493 (citing Kampf v. Franklin Life Ins. Co.,

33 N.J. 36, 43 (1960)); see also Cty. of Morris v. Fauver, 153

N.J. 80, 103 (1998).

Courts may not "remake a better contract for the parties than

they themselves have seen fit to enter into, or to alter it for

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the benefit of one party and the detriment of the other." Ibid.

(citing James v. Fed. Ins. Co., 5 N.J. 21, 24 (1950)). "A court

has no power to rewrite the contract of the parties by substituting

a new or different provision from what is clearly expressed in the

instrument." E. Brunswick Sewerage Auth. v. E. Mill Assocs., Inc.

365 N.J. Super. 120, 125 (App. Div. 2004).

Here, as we noted, the contract between Lessner and APS

contained an express waiver of delay damages. Lessner concedes

as much, and also does not dispute the ratification agreement

generally reaffirmed the terms and conditions of the contract with

APS.

The motion judge concluded:

[The contract] says no damages for delay. And
when [Lessner] . . . ratified, [it] knew what
the delay was at that point. At that point
in time, now [the] surety is in. It's not APS
you're suing or anything like that, it's the
surety that comes in and says . . . do you
want to finish . . . this job? Here's your
contract, list everything that's outstanding,
list your retainage . . . and then we'll have
a Rider A which has things that you're going
to ask them for that are beyond the price of
the contract, and they're going to say yes to
some things and no to . . . some other things.
But when a contract provision is clear, and
we all know what delay damages are, when
that's clear then I think [defendants have] a
right to have that interpreted with the plain
meaning. No damages for delay.

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 Our de novo review leads us to the same conclusion as the

motion judge. Lessner's complaint could only proceed if defendants

were responsible for payment of delay damages. The plain language

of the contract provides for a clear waiver of delay damages.

Therefore, the motion judge properly dismissed Lessner's complaint

for failure to state a claim.

Moreover, the ratification agreement did not contain a mutual

agreement to compensate Lessner for delay damages, and thus did

not modify or afford greater rights to Lessner than those set

forth in its contract with APS. Indeed, as we noted, at most

Rider A merely reflected Lessner's position that it was not waiving

its right to assert a claim for delay damages. However, the

complaint and the record do not support Lessner's argument that

the surety agreed to compensate Lessner for any alleged delay

damages. Thus, in the absence of any evidence of a mutual

agreement to modify the contract, dismissal of Lessner's complaint

for delay damages was appropriate.2

Furthermore, as the motion judge noted, the surety did not

have greater obligations than APS had under the contract. In

disputes such as the one at bar, we have held "[t]he rights of a

2
Because we have determined the contract and the ratification
agreement enforceable, as interpreted by the trial judge in
dismissing Lessner's contract claims, it follows that Lessner's
unjust enrichment claim cannot survive as well.

9 A-0081-17T3
third-party beneficiary . . . depend upon and are measured by the

terms of the bond, the contractual undertaking between the promisor

and the promisee." Ribiera & Lourenco Concrete Constr. Co. v.

Jackson Health Care Assocs., 231 N.J. Super. 16, 24 (App. Div.

1989). "[A] surety is chargeable only according to the strict

terms of its undertaking and its obligations cannot and should not

be extended either by implication or by construction beyond the

confines of its contract." Eagle Fire Prot. Corp. v. First Indem.

of Am. Ins. Co., 145 N.J. 345, 356 (1996) (quoting Monmouth Lumber

Co. v. Indem. Ins. Co. of N. America, 21 N.J. 439, 452 (1956)).

Finally, Lessner argues, for the first time on appeal, the

delay damages waiver should not be enforced because "APS did not

act reasonable and, in fact, acted in bad faith in its dealings

with Lessner." Our Supreme Court has stated:

It is a well-settled principle that our
appellate 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 on appeal go to the
jurisdiction of the trial court or concern
matters of great public interest."

[Nieder v. Royal Indem. Ins. Co., 62 N.J. 229,
234 (1973) (quoting Reynolds Offset Co., Inc.
v. Summer, 58 N.J. Super. 542, 548 (App. Div.
1959)).]

Our review of the record reveals Lessner's bad faith argument

was not asserted either in its pleadings or argued before the

10 A-0081-17T3
motion judge. For these reasons, we decline to consider that

claim here.

Affirmed.

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