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). 

NOT FOR PUBLICATION WITHOUT THE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.
2 A-0081-17T3

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. 
4 A-0081-17T3

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.
5 A-0081-17T3

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 MartMorristown 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
7 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 
8 A-0081-17T3

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. 
9 A-0081-17T3

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. 
10 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 
11 A-0081-17T3

motion judge. For these reasons, we decline to consider that

claim here.

Affirmed.