# Opposition Brief — J. I. Hass Co. v. Gilbane Building Co.

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1990
- **Citation:** 493 U.S. 1080

## Text

f ; Supreme Court, US,
FILED

! JAN 23 1990

JOSEPH F. SPANIOL, JR

pennen eae

No. 89-1083

IN THE

Supreme Court of the United States

OctosBer TERM, 1989

J.I. HASS CO., INC.,
Petitioner.
- against —
GILBANE BUILDING COMPANY.

Respondent.

ON PETITION FOR WRIT OF CERTIORARI TO
THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

RESPONDENT'S BRIEF IN OPPOSITION TO
PETITION FOR A WRIT OF CERTIORARI

RicHARD L. ABRAMSON

PECKAR & ABRAMSON, P.C.

Attorneys for Respondent
Gilbane Building Company

70 Grand Avenue

River Edge, New Jersey 97661

(201) 343-3434

~ BEST AVAILABLE COPY

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Tx Ret

TABLE OF CONTENTS

REFERENCE TO OFFICIAL REPORT
OF OPINION BELOW.

COUNTERSTATEMENT OF THE CASE.

SUMMARY OF ARGUMENT
POINT I

THERE ARE NO SPECIAL AND
IMPORTANT REASONS FOR GRANTING
A WRIT OF CERTIORARI IN THIS
es «+ « wee 6+ «6S

POINT II

THE OPINION IS LOGICALLY AND
LEGALLY CORRECT AND THE
PETITIONER'S ARGUMENTS TO
THE CONTRARY ARE WITHOUT
MERIT .. . las aa

CONCLUSION.

PAGE

10

12

17

27

ii

TABLE OF AUTHORITIES
PAGE
Cases Cited
Baltimore & Carolina Line v._

Redman, 295 U.S. 654, 55 ee
296, 79 L.Ed. 603 (1935)... « « 15

Banco Urban Renewal Corp. v.
Housing Authority of City of
Atlantic City, 674 F.2d 1001,
1008 (3rd Cir. 29G2Z)3 6« © © @ ®@ 25

Coleman v. C.1I.R., 791 F.2d 68
(7th Cir. 1986) oer 15
Cox v. City of Freeman, Mo., 321

F.2d 887 (8th Cir. 1963). .-+ e 16

Diederich v. American News Co.,
128 F.2d 144 (10th Cir. 1942) . 14

Friedman v. Tappan Development
Corp., 22 N.J. 523, 531, 126
A.20 646, 650 (1956). . - + «s+» 25

Galloway v. United States

Products Co. v. Champlin,

283 U.S. 494, 51 S.Ct. 513,

76 2.84. 11806 (193a)6 © « *# 2 2 15

Gray _v. Joseph J. Brunetti

Construction Co., 266 F.2d 809,
813, 814 (3rd Cir. 1959). .-.+-: - 14

iii

TABLE OF AUTHORITIES
(continued)

PAGE

J.I. Hass Co. vs. Gilbane

Bldg. Co., 881 F.2d 89,
wees fora Cir. 1988) ...... i3

Kearny PBA Local -21 v. Town of
Kearny, 81 N.J. 208, 221, 405
moage S92, 400 (1979). ...... 25

King v. United Benefit Fire Ins.

Co., 377 F.24 728 (10th 1967)

cert. denied, 389 U.S. 857,

88 S.Ct. 99, 19 L. Ed.24
ee 16

n .. es » Sl, N.J. Super.
31, 38, 143 A.2d 256, 260 (App. .
i ae 26

Merchants Indemnity Corp. v.

Eggleston, 37 N.J. 114, 130-131,

179 A.24 505, 513 (1962) .... 22,23

Newark Publishers Ass'n v. Newark
Typographical Union, 22 N.J. 419,
427, 126 A.2d 348, 353 (1956) .. 14

Paley v. Barton Savings and Loan
Ass'n, 82 N.J. Super 75, 83, 196
A.2d 682 (App. Div. | | Ee 19

Rice v. Sioux City Memorial Park
Cemetary, Inc., 349 U.S. 70,

75 S.Ct. 614 99 L.Ed. 894
MS eG tt tw

iv

TABLE OF AUTHORITIES
(continued)

Slatton v. Martin K. Eby Constr.
Ca., ine., $06 F.2G 305

(8th 1974), cert. denied, 421
Z.8. 321, 96 &.€t. 1657,

44 L.Ed 2d 88 (1975)

PAGE

15

Texas v. New Mexico, 482 U.S. 124,

107 S.Ct. 2279, 2284, 96 L.Ed. 2d
105, 114 (1987) s 8%

Whitesell v. Alexander, 229 F.2d
47, cert. denied, 351 U.S.

932, 76 S.Ct. 783, 100 L.Ed. 1461
(1956). Peet MENT) ee

Fed.R.Civ.P. 50(b).

Fed.R.Civ.P. 59(b).

Supreme Court Rule 17
rem rt Rule 28,1

1 Corbin, Contracts ts
page 400 (1963) :

19

16

14

29

19

TABLE OF AUTHORITIES

(continued)
PAGE
R men f n ntr P
§380 and §380 Comments “a”
Oe "a Ceeeee « 3-6 & eee «oe 23

Restatement of Restitution,
§64 and §68 Cee ¢ See Se 4% oe 23

REFERENCE TO OFFICIAL
REPORT OF OPINION BELOW
The Opinion of the United States Court
of Appeals for the Third Circuit from which
Petitioner seeks review of this Court is

officially reported as J.I. Hass Co. v.

ilbane Bl , 881 F.2d 89 (3rd Cir.
1989).
COUNTERSTATEMENT OF THE CASE

The facts relevant to this matter are
substantially those set forth in the Opinion
of the Court of Appeals. See Appendix E of
the Petition.

Basically, Petitioner Hass entered
into a Subcontract with Respondent Gilbane
(sometimes referred to as “the Base
Subcontract”) wherein Hass agreed to perform
painting work in specifically identified

building locations being constructed at a

Miller Brewery for $295,000. Hass also

entered into a change order to the Base
Subcontract ("Change Order Number 1")
agreeing to perform painting work at other
specifically identified building locations
at the Miller Brewery for an additional
$753,000.

Both the Base Subcontract and Change
Order Number 1 referenced a particular Room
Finish Schedule for each building location
and required Hass to paint the building
systems designated for painting in the
applicable Room Finish Schedules. The Base
Subcontract Room Finish Schedules only
required Hass to paint the architectural and
structural portions of the applicable
buildings while the Change Order Number 1
Room Finish Schedules, which were issued at

a more advanced stage in the design of the

Project, required Hass to paint the building

’

mechanical systems? as well as the
architectural and structural portions of the
applicable buildings.

The Subcontract contained a typical
provision for additional compensation to
Hass for the performance of extra work. It
was under this provision that Change Order
Number 1 was issued.

During performance of the work, a
dispute arose between Gilbane and Hass as to
whether Hass was obligated to paint certain
building mechanical systems under Change
Order Number 1. Hass subsequently performed
some of the disputed work under protest and
Submitted a claim for additional
compensation under the extra work provisions

of the Subcontract in the sum of

1 “Mechanical systems" is a collective reference to
the building heating, ventilating and air
conditioning systems, fire protection systems,
plumbing systems, electrical systems and
miscellaneous metallic surfaces.

—— ———————————————

$144,682.°

Thereafter, Hass continued to
perform the work under the Subcontract and
Change Order Number 1, entered into many
more change orders not in dispute,
requisitioned for payments under the
Subcontract and received payments under the
Subcontract through to completion of the
work as Hass viewed it.

After completion of the Project, Hass
commenced this action in the district
court. Hass contended, for the first time,

in the First Count of the Complaint, that no

contract existed because there was “no

2 The claimed extra work concerned four items of
building mechanical painting each in a separate

building location. Three of them were part of Change

Order Number 1 and the Room Finish Schedules

applicable to each of them specifically required Hass
to paint the disputed work. The fourth item was for
painting of some ductwork in the Brewhouse which was
@ Base Subcontract Building and which was not shown
on the applicable Room Finish Schedules referenced in
the Base Subcontract. However, Hass concedes that it
painted these ducts on its own and not pursuant to
any request by Gilbane. See Appendix below, A2111.33
and A.2111.34.

meeting of the minds” as to the Hass
obligation to paint Change Order Number 1
building mechanical systems. Based upon the
total absence of a contract, Hass claimed
quantum meruit total cost damages that
exceeded its Subcontract balance and its
claim for the disputed Change Order Number 1
building mechanical painting by more than
$800,000 of alleged cost overruns which were
not recoverable under the Subcontract.
Alternatively, the Hass complaint sought a
Subcontract balance in the sum of $431,130
and additional compensation in the sum of
$144,682 for the Change Order Number 1
building mechanical painting performed by
Hass under the extra work provisions of the
Subcontract.

Notwithstanding Gilbane's motion for a
directed verdict upon the First Count of the
Complaint based upon the existence of a
contract as a matter of law regardless of
the scope of work dispute, the trial judge

submitted the case to the the jury upon jury

instructions and written interrogatories
which required the jury to decide whether or
not a contract existed between Gilbane and
Hass in the first instance. The jury
instructions and interrogatories then
required the jury to pass over all of the
contract claims, upon concluding that no
contract existed, and simply determine Hass’
entitlement to quantum meruit total cost
Gamages. The first question put to the jury

read as foliows:

1. Has plaintiff proven that there
was no contract between plaintiff Hass
and defendant Gilbane?

Yes___No

At the end of the first day of
deiiberations, the jury submitted the

following communication to the trial court:

Re Question no.l. We agree that the
base contract existed and we agree

that there was no meeting of the minds
on change order no. 1. Confusion
arises as to the wording of Question
no. 1. Based on what we agree on, is
the answer yes or no to Question no. 1?

Gilbane urged the trial judy to
accept the foregoing communication as a jury
determination that there was a contract
between Hass and Gilbane and instruct the
jury to proceed with a determination of the
contract claims. Conversely, Hass argued ©
that the Court below should respond to the
question by instructing the jury to continue
their deliberations with regard to question
number 1 and make a determination as to
whether, considering the work as a whole,
there was or was not a contract.

Over Gilbane'’s objection, the Court
below responded to the jury question as
follows:

I can only answer that at this time as

follows: Considering the evidence and

the Court's instructions as a whole
and considering all of the work

together, you must determine as a

whole whether Hass has proven that

their was no contract between the

plaintiff Hass and the defendant
Gilbane.

Thereafter, the jury returned with a

verdict answering Question number 1 in the

affirmative, i.e., that there was no
contract between Hass and Gilbane. In
accordance with the Court's instructions the
jury found that Hass was entitled to quantum
meruit total cost damages. This resulted in
an award to Hass of substantial claimed cost
overruns without any determination of
contractual or other legal entitlement.

Thereupon, Gilbane moved for judgment
notwithstanding the verdict pursuant to
Fed.R.Civ.P. 50(b) and for a new trial
pursuant to Fed.R.Civ.P. 59(b), both of
which were denied by the trial judge.

The Statement of the Case in the Hass
Petition consists largely of self-serving
contentions taken out of context. In many
cases, Hass alleges facts that are not even
supported by the Record. ~

In any event, most of the facts
asserted in the Hass Petition deal with
alleged communications predatirg the

execution of the Base Subcontract and Change

Order Number 1 which Hass contends evidence

an intent to exclude building mechanical
painting from Change Order Number .* As
such, they are irrelevant to the holdings
set forth in the Opinion of the Court of
Appeals which are based, in the first
instance, upon the existence of a

contract regardless of the scope of work
dispute and, in the second instance, upon
the unambiguous provisions of the contract
regarding scope of work. They are also

irrelevant in light of Hass’ conceded

knowledge that Change Order Number 1

included painting of the building mechanical

systems before entering into the Change

3 In fact, most of the Hass factual allegations

consist of inadmissible parol evidence. In footnote
4 of the Opinion of the Court of Appeals, the Court
specifically states that it is unnecessary to even

address the admissibility issue because the

underlying factual allegations are irrelevant to its

ruling.

Order. A877, A961, A962, A993 and A994.7

This latter fact was conveniently omitted

from the Hass Statement of the Case.

SUMMARY OF ARGUMENT

There are no special and important
reasons for granting a writ of certiorari in
this case.

The Court of Appeals simply applied
settled principles of appellate review to
the trial court's denial of Respondent's
motion for a directed verdict and for
judgment n.o.v., aS well as basic principles
of New Jersey contract law, all of which are
fully enunciated in the Opinion. In fact,
the Petitioner does not even challenge the
principles of law enunciated by the Court of

Appeals. Rather, Petitioner's arguments are

4 Reference is to Appendix below. Citations to the
Appendix below for the other facts contained in thi:
Counterstatement of the Case are substantially
contained in the reproduction of the unreported
Opinion of the Court of Appeals set forth as Append.
E in the Petition.

all based upon the application of the law to
the particular circumstances of this case.
Consequently, the issues raised in the
Petition totally lack the special importance
to the public, as distinguished from the
parties, necessary for granting a writ of
certiorari pursuant to the Rules and policy
of this Court.

The Opinion of the Court of Appeals is
simply a recognition that Gilbane and Hass
entered into a contract and they are bound
by its terms. As such it is legally and
logically unassailable. It is grounded upon
settled principles of New Jersey contract
law that are cited in the Opinion.

The Hass Petition is nothing more than
a restatement of confusing rationalizations
that do not even contradict the existence of
a contract between the parties when placed
under scrutiny.

The Petitioners attempt to elevate the
determinations of the Court of Appeals to a

denial of Hass' Seventh Amendment right to

trial by jury is totally without merit. The
Seventh Amendment only entitles a civil
litigant to have disputed issues of fact
tried by a jury. The determinations of the
Court of Appeals were entirely grounded upon
questions of law within the exclusive
province of the trial judge pursuant to

governing New Jersey law.

POINT I

THERE ARE NO SPECIAL AND IMPORTANT

REASONS FOR GRANTING A WRIT OF

CERTIORARI IN THIS CASE -

A writ of certiorari will only be
granted by this Court when there are special
and important reasons to do so. Supreme
Court Rule 17. The special and important
reasons required for granting a writ of
certiorari are with respect to the public in

general as distinguished from the parties

alone. Rice v. Sioux City Memorial Park

Cemetary, Inc., 349 U.S. 70, 75 S.Ct. 614 99

L.Ed. 894 (1955). No such special and

important reasons exist in this case.
Rather, the Petition merely seeks plenary
review of an unfavorable decision of the
Court of Appeals.

The Court of Appeals simply applied
settled principles to appellate review to
the District Court's denial of Respondent's
motion for a directed verdict and judgment
n.O.v., aS well as basic principles of New
Jersey contract law, all of which were
enunciated in the Opinion. See, J.I. Hass
Co, vs. Gilbane Bldg. Co., 881 F.2d 89,
92-94 (3rd Cir. 1989). Petitioner does not
even challenge the statement of governing
law by the Court of Appeals. Rather,
Petitioner's arguments are all based upon
the application of the law to the particular
circumstances of this case and, thereby,
lack the requisite public importance for
granting a writ of certiorari.

Petitioner mischaracterizes its
arguments for review in terms of a denial of

its constitutional right to a jury trial in

an effort to create special and important
reasons for granting certiorari. In fact,
the jury determination in this-matter was
limited to the non-existence of a contract
between the parties which should have been
decided by the trial judge as a matter of
law. The same holds true with respect to
the unambiguous terms of the contract as
stated in the Opinion of the Court of
Appeals which were also questions of law
within the exclusive province of the trial
judge pursuant to New Jersey law. See, Gray
Vv. h Brun i nstr ion ~» 266
F.2d 809, 813, 814 (3rd Cir. 1959); Newark
P ish Ass'n v. Newark raphical
Union, 22 N.J. 419, 427, 126 A.2d 348, 353
(1956).

The Seventh Amendment only entitles a
Civil litigant to have disputed issues of
fact tried by a jury. See, U.S. Const.

Amend VII. The power of a judge to pass

upon questions of law is just as much an

essential part of the “jury trial"

guaranteed by the Seventh Amendment as the
power of the jury to pass on questions of
fact. Diederich v. American News Co., 128
F.2d 144 (10th Cir. 1942). It is well
settled that the Seventh Amendment does not
require a jury trial where there are no
facts in dispute. Coleman v. C.I.R., 791
F.2d 68 (7th Cir. 1986).

The Opinion of the Court of Appeals in
this case was grounded entirely upon
questions of law and, therefore, the right
to a jury trial guaranteed by the Seventh
Amendment never comes into play. Coleman v.
Cut aR.- JG.

This Court has long since sanctioned
the principles of appellate review applied
by the Court of Appeals in this case and
upheld the judicial application of directed
verdict and judgment n.o.v. procedures
against Seventh Amendment challenges.
Baltimore & Carolina Line v. Redman, 295
U.S. 654, 55 S.Ct. 296, 79 L.Ed. 603 (1935);

llow Vv ni ates Pro se

Champlin, 283 U.S. 494,

16

$3 8.Ct.. Sl3, 73 bbe. Lise (1932). See,
also Slatton v. Martin K. Eby Constr. Co.,
Inc., 506 F:2d 505 (8th Cir. 1974), cert.
denied, 421 U.S. 931, 95 S.Ct. 1657, 44 L.Ed
2d. 88 (1975); King v. United Benefit Fire
Ine. Co,, 377 F.2€ 728 (Oth 1967) cert.
denied, 389 U.S. 857, 88 S.Ct. 99, 19 L.
Ed.2d 124 (1967); Cox v. City of Freeman,
Mo., 321 F.2d 887 (8th Cir. 1963); Whitsell
v. Alexander, 229 F.2d 47, cert. denied, 351
U.S . 932, 76 S.Ct. 783, 100 L.Ed. 1461
(1956).

This would be a terrible case under
any circumstances for the United States
Supreme Court to make important
constitutional pronouncements. The Hass
quantum meruit claim based upon the
non-existence of a contract did not result
from a good faith effort to fashion a remedy
for the scope of work dispute upon which it
is purportedly based. Rather, it was simply
an effort to circumvent the express terms of

a contract and attempt to recover damages

17

having nothing to do with scope of work
without even proving that Gilbane committed
any wrongdoing.

POINT Il

THE OPINION IS LOGICALLY AND LEGALLY
CORRECT AND THE PETITIONER'S ARGUMENTS

TO THE CONTRARY ARE WITHOUT MERIT.

The balance of tke Hass Petition is
mainly a restatement of parol evidence and
other collateral allegations that are
irrelevant to the Opinion of the Court of

Appeals. In fact, the Opinion is entirely
grounded upon the following elementary
determinations that are not even in dispute:

1. The parties entered into a valid
Base Subcontract, the terms of which are not
disputed. Even the jury found this to be
true.

2. With full knowledge of the scope
of work dispute regarding Change Order
Number 1, Hass affirmed the Change Order and
elected to pursue its remedies under the
extra work provisions of the Subcontract.
The logic of prohibiting a subsequent
recission is inescapable.

3. Change Order Number 1 clearly and
unambiguously required Hass to paint three
of the four building mechanical systems in
question. In this regard, the testimony of
the Hass Project Executive as to the
requirements of Change Order Number 1 was
identical to the findings set forth in the
Opinion. A838, 839, 850 and 859.

18

Placed in its most favorable light,
the Hass Petition presents factual and legal
arguments that may bear tangentially upon
whether Change Order Number 1 required Hass
to paint building mechanical systems and
whether Hass was entitled to recover
additional compensation totaling no more
than $144,682 for the performance of extra
work. However, the Hass Petition hardly
addresses the primary holding that there was
a contract between the parties regardless of
the scope of work dispute. Nor does Hass
explain how a dispute about a change order
can negate the existence of the underlying
contract that is not even in dispute and
that was specifically found to exist by the
jury.

It is academic that a court should
never frustrate the intention of the parties
to be bound by a contract unless necessary
to bring about a fair and just result to a
particular controversy. See Paley v. Barton
Savings and Loan Ass‘n, 82 N.J. Super 75,

19

83, 196 A.2d 682 (App. Div. 1964) . See,
also 1 Corbin, Contracts §895, page 400
(1963). The foregoing principle was

recently confirmed by this Court in Texas v.

New Mexico, 482 U.S. 124, 107 S.Ct. 2279,
2284, 96 L.Ed. 2d 105, 114 (1987) which
reasoned as follows:

But good faith differences about the
scope of contractual undertakings do
not relieve either party from
performance. A court should provide a
remedy if the parties intended to make
a contract and the contract's terms
provide a sufficiently certain basis
for determining both that a breach has
in fact occurred and the nature of the
remedy called for. Restatement
(Second) of Contracts §33(2), end
Comment b (1981). There is often a
retroactive impact when courts resolve
contract disputes about the scope of a
promissor's undertaking; parties must
perform today or pay damages for what
a court decides they promised to do
yesterday and did not.

In the instant case, there was
absolutely no reason to even consider the
non-existence of a contract. Assuming a
legitimate dispute as to Hass‘ obligation to

paint the Change Order Number 1 building

mechanical systems, the extra work

20

provisions of the Subcontract afforded the
appropriate vehicle for complete relief. In
fact, that is the customary manner for
resolving scope of work disputes in the
construction industry and the manner chosen
by the parties themselves before the
posturing of this litigation.

Even viewing the scope of work dispute
in the context advanced by Hass, the issue
of “a meeting of the minds” applies only to
the Hass obligation to paint building
mechanical systems under Change Order Number
1. Therefore, if quasi-contractual relief
were necessitated to achieve "a fair and
just result” such relief should have been
limited to the building mechanical work
actually performed by Hass rather than the
entire contractual relationship. This would
have afforded Hass complete relief with
respect to the scope of work dispute without
otherwise depriving Gilbane of its rights
under the Subcontract. This is exactly what

the Court of Appeals instructed the trial

21

court to do in the event that the jury were
to find that the Hass painting of ductwork
in the Brewhouse was not intended to be
dealt with pursuant to the extra work
provisions of the Subcontract.

The fact that the parties continued to
perform in every respect under the
Subcontract for more than a year after the
scope of work dispute was unquestionably
known to both of them, oan they even treated
the dispute as coming under the extra work
provisions of the Subcontract, makes the
denial of contract existence even more
absurd. Hass does not even deny its own
affirmance of the Subcontract which
constitutes an election of remedies and
precludes the contrary position that no
contract existed after performance was
rendered. See, Merchants Indemnity Corp. v.
Eggleston, 37 N.J. 114, 130-131, 179 A.2d

505, 513 (1962). See also, R men
Second of Contracts, §380 and §380 Comments
"9" end “Bb” €i979);: RB men f

Restitution, §64 and §68 (1937).

22

The Opinion of the Court of Appeals

cites Merchants Indemnity Corp. v.
Eggleston, supra, as expressing the
governing law of New Jersey with respect to
election of remedies. The Hass Petition
does not -even dispute the applicable
principles of law expressed by the New
Jersey Supreme Court in Merchants

mnity. Rather, the Hass efforts to

distinguish Merchants Indemnity are based
solely upon the fact that it concerned an
insurance contract and not a construction
contract which has nothing to do with the
applicable legal principles expressed.

The Hass Petition references a Change
Order Number 1 Room Finish Schedule as
Causing confusion because it was issued
after Hass estimated the Change Order Number
l work. However, Hass omits to disclose
that all the other Change Order Number 1
Room Finish Schedules, which required the

painting of building mechanical systems,

were issued prior to estimating Change Order

23

Number 1. A4lll, A4112, A4146 and A4114.
Additionally, the Change Order Number 1 Room
Finish Schedule, that Hass complains about,
was issued to Hass with a Request for Change
Quotation long before Change Order Number 1
was entered into. A2641-A2650, A3441 and
A3451.

The Hass propensity for confusing
rationalization is typified by its reference
to trial Exhibit P76 as consisting of two
charts prepared by Gilbane and purportedly
depicting the scope of Gilbane's painting
obligation to Miller and Hass’ painting
obligation to Gilbane. However, there was
no testimony in the Court below as to who
prepared these charts, the circumstances of
their preparation and what they purport to
show.

All of the comments in the Hass
Petition regarding the scope of work dispute
suffer the same infirmity as the contentions
specifically addressed above. When placed

under scrutiny they have nothing to do with

24

the scope of Hass‘ contractual undertaking.
Rather, their ultimate purpose is to confuse
the fact that Change Order Number 1, on its
face, clearly required Hass to paint
building mechanical systems and that those
requirements were fully known to Hass when
Change Order Number 1 was entered into.

Additionally, all of the Hass factual
contentions consist of parol evidence
seeking to contradict the terms of an
integrated agreement and should have been
excluded from evidence by the Court below.

It is well settled in New Jersey law,
properly recognized by the Court of Appeals
in its Opinion, that the objective intent of
parties manifested by their written

agreement governs the interpretation of a

contract. Ban rban Renewal r Vv
Housing Authority of City of Atlantic City,

674 F.2d 1001, 1008 (3rd Cir. 1982); Kearny

PBA Local 21 v. Town of Kearny, 81 N.J. 208,

221, 405 A.2d 393, 400 (1979). Friedman v.

Ta n Developmen 4 » £22 Baas Bees Dede

25

126 A.2d 646, 650 (1956) ; Leitner v. Braen,

51 N.J. Super. 31, 38, 143 A.2d 256, 260
(App. Div. 1958). Hass does not even
disagree with this principle.

However, Hass does not identify anything in
the Subcontract documents inconsistent with
the holding in the Opinion of the Court of
Appeals that Change Order Number 1 included
the painting of building mechanical systems
or consistent with Hass' position to the
contrary. Rather, Hass continues to rely
entirely upon extraneous factors in support
of its position. Also, aside from a few
confusing and somewhat incomprehensible
rationalizations, Hass virtually ignores the
Room Finish Schedules which the Project
Specifications reference as defining the
scope of Hass‘ work (A3336 and A3337) and
the testimony of its own Project Executive
to that effect (A838-A839, A850 and A859).
The Hass Petition similarly fails to
reconcile its admitted knowledge when Hass

entered into Change Order Number 1 that it

26

required the painting of building mechanical
wreteiin (A877, A961-A962, A993 and A994).

Contrary to the confusing
characterizations in the Hass Petition, the
scope of painting work is not difficult to
discern from the Subcontract documents. The
Base Subcontract and Change Order Number 1
each identify the but idises to be painted
and refer to Rider “A” for the particular
painting requirements for each building.
A4155, A3466. In each case, Rider "A"
references a Room Finish Schedule for each
building and Section 9F of the Project
Specifications directs Hass to paint the
building elements designated for painting on
the Room Finish Schedules. See specifically
A3336, Section 1.1.3. This is exactly how
it was described by the Hass Project
Executive (A838-839, A850 and A859) and in
the Opinion of the Court of Appeals.

The fact that Hass was not obligated
to paint building mechanical systems under

the Base Subcontract but was obligated to

27

paint building mechanical systems under
Change Order Number 1, and that Hass knew
it, is independently verified by the
exclusions listed in the Pre-Award Meeting
Minutes applicable to each of them. See
Rider "B", Section 20 of A4093, A3453 and
A2981-2992.

Finally, the fact that the Base
Subcontract and Change Order Number 1 were
physically executed on the same day is
meaningless. The essential underpinnings of
the Opinion of the Court of Appeals remain
the same, i.e., a valid Base Subcontract was
entered into and Hass affirmed Change Order
Number 1 with full knowledge of the scope of
work dispute and elected to pursue its
remedies under the extra work provisions of

the Subcontract.

CONCLUSION
For the reasons set forth herein and
in the Opinion of the Court of Appeals from

which review is being sought, Respondent

28

Gilbane Building Company” respectfully
requests that the Petition for a Writ of

Certiorari of J.I. Hass Co., Inc. be denied.

DATED: River Edge, New Jersey

January 22, 1990

Respectfully submitted,

RICHARD L. ABRAMSON

PECKAR & ABRAMSON

A Professional Corporation
Attorneys for Respondent

Gilbane Building Company

5 Pursuant to Supreme Court Rule 28.1. there are no

parent companies or subsidiary companies (except
wholly owned subsidiaries) of Respondent Gilbane
Building Company and the only affiliate of said
corporation is B.T. Equipment Company, Inc.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385020_0888%3A2. Public record. Not legal advice.