755 A.2d 608 (2000) 333 N.J. Super. 258

Shelley ZEIGER, Plaintiff-Appellant/ Cross-Respondent,
v.
Joseph WILF, Defendant-Respondent, and
Capitol Plaza Assoc., Trenton and Goldberger, Moore & Novick Trenton No. 2, Inc., Defendants/Cross-Appellants, and
Goldberger, Moore & Novick, Urban Renewal, L.P., as successor to 240 West, L.P., and Goldberger, Moore & Novick, Trenton, Inc., Defendants.

Superior Court of New Jersey, Appellate Division.

Argued January 11, 2000. Decided July 19, 2000.

*609 R. James Kravitz argued the cause Lawrenceville, for appellant, cross-respondent Shelley Zeiger (Fox Rothschild, O'Brien & Frankel, attorneys; Mr. Kravitz, on the brief).

Sheppard A. Guryan argued the cause, Roseland, for respondent Joseph Wilf and cross-appellants Capitol Plaza Assoc., Trenton and Goldberger, Moore & Novick Trenton No. 2, Inc. (Lasser Hochman, attorneys; Mr. Guryan, of counsel; Bruce H. Snyder, on the brief).

Before Judges MUIR, Jr., CUFF and LESEMANN.

The opinion of the court was delivered by LESEMANN, J.A.D.

This case offers a virtual primer in the Byzantine relationships among various forms of business organizations employed in a modern venture capital project. It includes a limited partnership, a corporation, a general partnership and several sophisticated individuals all involved in the proposed redevelopment of a hotel/office building in downtown Trenton. It also demonstrates the significance of limited individual liability which is a key reason for employing some of those entities, and the inevitable risk that anticipated rewards from such a venture may not be realized.

At issue here is an agreement by which plaintiff, a seller of the property to be renovated, was to receive a "consultant fee" of $23,000 per year for sixteen years. The payments, however, ceased after two years. A jury found the redevelopers (a limited partnership and a corporation) liable for those payments, and an appeal by those entities has now been abandoned. As a result, the matter now focuses on plaintiff's claim that Joseph Wilf, the individual who led the various defendant entities, should be held personally liable for the consultant payments and that such liability should also be imposed on a general partnership owned by Wilf and members of his family.

There is no claim that Wilf personally, or his general partnership, ever guaranteed the consultant payments or that plaintiff ever believed Wilf had made such guarantees. Nor is there a claim that plaintiff did not understand at all times that he was contracting only with a limited partnership and/or a corporation, and not with Wilf personally or with his general partnership. For those reasons, and also because we find no merit in various other theories of individual liability advanced by plaintiff, we affirm the summary judgment entered in favor of Wilf individually, and we reverse the judgment against Wilf's family-owned general partnership.

The property in question was a rundown hotel on West State Street in Trenton, *610 located near several State government buildings. In or shortly before 1981, plaintiff Shelley Zeiger and his associate, Darius Kapadia, purchased the property with the intention of renovating and operating the hotel. They undertook some renovation and began operations but could not obtain sufficient financing to complete the project.

In or around March 1985, Steven Novick, an experienced developer, approached plaintiff concerning a possible purchase of the property. Novick believed the building could be successfully renovated and operated as an office building, (with perhaps some hotel facilities included), particularly if he could lease some or all of the office space to the State. Richard Goldberger, another experienced developer, soon joined Novick in the project, as did another associate, said to have considerable contacts within the State government. Plaintiff was also well known in Trenton governmental and political circles.

As the negotiations proceeded, Novick brought defendant Joseph Wilf into the picture. Wilf was described as a "deep pocket partner," whose financial means could help insure the success of the project. He was also a well known and successful real estate developer and soon became the leader and primary spokesman for the purchasing group. Novick and Goldberger generally deferred to Wilf during the negotiations and structuring of the transaction.

On February 17, 1986, the negotiations culminated in a contract with a purchase price of $3,840,000 for the real estate, a liquor license, and miscellaneous assets connected with the hotel's operation. The contract was signed by a corporation formed by the purchasers, known as Goldberger, Moore & Novick, Trenton, No. 2, Inc., (hereinafter, "Trenton, Inc." or "the corporation").

As the deal was finally struck, the parties also agreed that plaintiff would receive a "consulting fee" of $27,000 per year, payable monthly for sixteen years. While plaintiff was to provide assistance when requested, it is clear that he was not expected to devote much time or effort to the project. The agreement specified he would not be required to spend more than two days per month in consultations. Plaintiff claims the consultation payments were, in reality, an additional part of the payment price, structured as they were to provide tax benefits to the Novick/Goldberger/Wilf group. In addition, plaintiff was to receive from the project two and one half percent of "annual net cash flow after debt service."

Closing took place on March 4, 1986. Trenton, Inc., was the purchaser and also signed the consultant agreement with plaintiff. The contract documents authorized the corporation to assign its property interests, as well as the consulting contract, to another entity, and on the day following closing the corporation did that by assignment to a limited partnership named Goldberger, Moore & Novick, Trenton, L.P., (hereinafter "Trenton L.P." or "the limited partnership").

The limited partnership then began the anticipated renovation and operation of the hotel/office building. Trenton, L.P. consisted of one general partner—the corporation just referred to (Trenton, Inc.), which owned 4.9 percent of the limited partnership. In addition, it had four limited partners: an entity known as Midnov, owned by Novick and Goldberger, which held a 42.7 percent interest; another entity known as Capitol Plaza Associations (CPA), controlled by Wilf and his family and described further below, which also owned 42.7 percent; George Albanese, a former State official, who held a 5.1 percent interest; and plaintiff Shelley Zeiger who owned a 4.9 percent interest.

The stock of Trenton, Inc., was owned fifty percent by Midnov (Novick and Goldberger's entity) and fifty percent by CPA (the Wilf family entity). Goldberger became president of Trenton, Inc.; Wilf was vice president; Novick was secretary/treasurer, *611 and Bernadette Lynch was assistant secretary.

Thus, all of Wilf's interests in both the limited partnership and the corporation were held through his family entity, CPA. CPA was a general partnership and defendant Joseph Wilf was one of the general partners. While other family members were also general partners in CPA, Joseph Wilf was clearly its guiding and dominating force.

Shortly after closing, Trenton, L.P. began its attempts to secure both state leases for the property and a 9.5 million dollar mortgage to finance the required renovation. Wilf was the leader in that operation as he was in all aspects of the project. He maintains that in doing so, he was functioning as vice president of the corporation, which was the only general partner of the limited partnership. In substance, he claims that the limited partnership was operating (as it was required to do) through its general partner. Since that general partner was a corporation, the corporation was, in turn, operating in the only way that a corporation can operate: by the actions of its officers and agents. He maintains further that Goldberger and Novick soon abdicated most responsibility and simply stopped functioning as corporate officers___a claim not disputed by plaintiff. Thus, Wilf says, it was left to him to function as the responsible corporate officer.

Both the limited partnership and the corporation operated informally.^[1] There were few, if any, corporate meetings, resolutions or minutes. Wilf was less than meticulous in affixing his corporate title to documents or other papers which he says he signed as an officer of the corporate general partner. Significantly, however, plaintiff makes no claim that at any time he thought Wilf was operating in some other capacity, or that he believed Wilf or CPA were undertaking any personal responsibility or liability for any part of the project.

The limited partnership began making the monthly consultation payments to plaintiff in early 1986, and it continued to do so for approximately two years. In March 1988, however, the payments were stopped at Wilf's direction. An additional $12,000 was paid in May 1989 (which represented almost all the amount then due to plaintiff), but thereafter no further payments were made. Wilf said at the time that the money was needed for the renovation project and that (alone among all the participants), plaintiff was contributing nothing to the project. Plaintiff complained to Novick, and Novick promised to discuss the matter with Wilf. Novick did so, but Wilf continued to maintain that plaintiff should receive no further payments and thus, no further payments were made. Wilf subsequently acknowledged that he was not familiar with the terms of the consultation agreement or plaintiff's rights thereunder.

Trenton, L.P., did obtain its desired 9.5 million dollar renovation loan. However, by January 1987, those funds were exhausted and more money was needed. Wilf maintains that he invested an additional $565,000 in the project through his own company, and he then obtained a 2.8 million dollar mortgage loan from First Chicago Bank, which he, his brother and Goldberger personally guaranteed. Wilf subsequently paid off that mortgage but—presumably to repay his $565,000 investment and his payoff of the First Chicago loan—he took a $3,063,000 mortgage from Trenton, L.P., covering the office building/hotel.^[2]

*612 Eventually, the project failed. The limited partnership and the corporation filed bankruptcy, as did Novick individually. On July 19, 1993, plaintiff sued Wilf, claiming that Wilf had become the "surviving partner and owner of the partnership assets" pertaining to the "purchase and transfer of" the hotel, and that he was in default respecting payment of plaintiff's consulting fees.

On July 30, 1993, shortly after plaintiff filed his complaint, the New Jersey Secretary of State revoked the corporate charter of Trenton, Inc. The record does not reveal the circumstances of or the reasons for the revocation. It indicates only that records in the Secretary of State's office showed the corporation as "void by proclamation," with a suspension date of July 30, 1993. However, on March 13, 1997, the Secretary of State issued a new certification, stating that the charter had been "voided in error for non-payment of State taxes by Proclamation on July 30, 1993," but that the corporation "was reinstated on March 13, 1997." There was no further indication of the "error" involved, nor, again, did the record indicate the circumstances of or reason for the initial revocation or the subsequent reinstatement.

On March 28, 1995, plaintiff filed an amended complaint naming as defendants Joseph Wilf; CPA; Trenton, L.P.; and Trenton, Inc. Approximately eighteen months later, after extensive discovery, Wilf moved for summary judgment dismissing the complaint as to him, which the motion judge granted on December 23, 1996. On January 24, 1997, that judge denied a motion for reconsideration.

On March 3, 1997, trial against the other defendants began before a different judge. While that trial was proceeding, the Secretary of State issued the aforesaid reinstatement certificate. On April 8, 1997, a jury returned a $456,801 verdict against the limited partnership and the corporation, to which sum the trial court added pre-judgment interest. However, while the trial court had submitted to the jury the liability issue as to the limited partnership and the corporation, it had withheld for determination by the court plaintiff's claim against CPA. On December 4, 1997, the court found that CPA was also liable to plaintiff for the aforesaid $456,801, and entered judgment against it for that amount.

This appeal was initially filed by plaintiff, seeking reversal of the judgment in favor of Joseph Wilf. A cross-appeal was then filed by CPA, by Trenton, L.P. and by Trenton, Inc. As noted however, because of the intervening bankruptcy proceedings, defendants have advised that no "useful purpose is served by continuing to process this appeal" on behalf of the limited partnership or the corporation. Thus, defendants have argued for reversal only as against CPA while, of course, also maintaining that the dismissal as to defendant Wilf should be affirmed.

I

In his argument on summary judgment respecting Wilf, and also in his claim at trial against CPA, plaintiff claimed that the suspension of Trenton, Inc.'s charter provided a basis for imposing liability against Wilf and CPA. The motion judge rejected the argument as to Wilf; the trial judge accepted it as to CPA. We are satisfied that the motion judge was correct, and the trial judge was incorrect. The charter suspension provides no basis for imposing liability on either Wilf or CPA.

A

In his pretrial motion, plaintiff argued that once Trenton, Inc.'s charter was suspended, Wilf could no longer act as an officer of the corporation and thus he was acting in his individual capacity when he *613 directed the activities of Trenton, L.P. There are a number of difficulties with that theory.

First, the breach of plaintiff's consulting contract occurred in 1989, when Trenton, L.P. made its last payment to him and made clear that it would make no further payment. At that time, the corporate charter was fully in effect. The proclamation of revocation occurred only some four years later—on July 30, 1993. Thus, assuming the revocation had the effect claimed by plaintiff, that effect occurred only long after plaintiff's contract had been breached and his cause of action had accrued.

Second, even assuming the critical actions occurred while the charter was suspended, the charter has since been reinstated. By statute as well as case law, that reinstatement was effective retroactively, as of the date the charter was initially revoked, and all corporate actions taken "in the interim" were validated back to the date of original suspension.

N.J.S.A. 14A:4-5(7), provides:

If the certificate of incorporation of a domestic corporation ... has been revoked by proclamation, the certificate shall be reinstated by proclamation of the Secretary of State upon: (a) payment by the corporation of all fees due... and (b) certification of the Director of the Division of Taxation that no cause exists for revocation of the corporation's certificate of incorporation.... The reinstatement relates back to the date of issuance of the proclamation revoking the certification of incorporation or the certificate of authority and shall validate all actions taken in the interim. (Emphasis added.)

In Asbestos Workers Local Union No. 32 v. Shaughnessy, 306 N.J.Super. 1, 703 A.2d 276 (App.Div.1997), this court dealt with that provision and resolved a claim indistinguishable in principle from plaintiff's claim here. There, corporate officers had signed a contract on behalf of the corporation while its charter was suspended for failure to file an annual report and pay required fees. The trial court determined that the individuals had thus become "liable for the debts arising under the contracts they signed on behalf of the corporation." This court reversed for two reasons. First, it saw

no reason for such a rule where the contracting party neither relied upon the individual assurances of the officers nor upon their credit. The rule determined by the trial judge could cause havoc in the business community. Corporate charters are suspended for a variety of reasons such as failure to file the annual report as in this case, ... failure to pay corporate franchise taxes, ... [or] the failure to follow a variety of statutes or administrative regulations. Under the trial judge's ruling, every corporate officer would be required to consult the corporation's attorneys and accountants, or perhaps the Secretary of State before any agreement were signed, at the risk of becoming personally liable for the corporate obligation.

Second, this court quoted the statutory provision set out above, concluding that:

The Act could not be clearer. [Absent some element of fraud or express reliance] [t]he reinstatement validated the agreement between the Union and the Corporation. The statute governing the revocation of the charter for non-filing of annual reports contains its own reinstatement provisions including those for relation back and validation of actions taken during the revocation period. There is thus no reason to add personal liability to that of the corporation.

[Id. at 5, 703 A.2d 276.]

That reasoning applies here. Even ignoring the actual time sequence, and assuming that some significant actions took place during the suspension period, N.J.S.A. 14A:4-5(7) and the decision in Asbestos Workers make clear that once the charter was reinstated, that reinstatement *614 related back to the "date of issuance of the proclamation revoking the certificate," and all actions "taken in the interim" were validated. As this court noted in Asbestos Workers, "[t]he act could not be clearer," and there is "no reason to add personal liability to that of the corporation."^[3]

B

After completion of the trial against Trenton, L.P., Trenton, Inc., and CPA, plaintiff moved for reconsideration of the pre-trial summary judgment which had dismissed his claim against Wilf. Plaintiff claimed the evidence presented at trial had substantiated his original claim against Wilf and thus, based on that evidence, his complaint against Wilf should be retroactively reinstated. The trial judge initially reserved decision on the motion but ultimately denied it.

Plaintiff's argument for reconsideration of the summary judgment granted to Wilf is without merit.

One of the purposes of summary judgment is to afford protection

[A]gainst groundless claims and frivolous defenses, not only to save antagonists the expense of protracted litigation but also to reserve judicial manpower and facilities to cases which meritoriously command attention.

[Brill v. Guardian Life Ins. Co., 142 N.J. 520, 540-41, 666 A.2d 146 (1995) (quoting from Robbins v. Jersey City, 23 N.J. 229, 240-41, 128 A.2d 673 (1957)).]

Consistent with that purpose, once a party successfully dismisses a complaint against him by winning summary judgment, he need not participate in a subsequent trial against other defendants. While reversal on appeal is of course possible, the trial proceeding is otherwise successfully completed for one such as Wilf, who obtained summary judgment.

The concept of employing trial evidence produced against certain defendants to undo a pretrial summary judgment dismissing the complaint as to a different defendant would undercut much of the benefit of the summary judgment practice. It would mean that a defendant who procured dismissal of the complaint against him might nevertheless be required to appear, perhaps participate in, and certainly stay aware of what was happening in the trial from which the summary judgment should have liberated him. Indeed, if evidence produced at that trial could be used against him, he might well be required to seek participation in the trial, to cross-examine witnesses, and perhaps even present witnesses of his own in order to avoid having the victory he obtained set aside retroactively. Plaintiff submits no authority to sustain that extraordinary proposition, and we know of none, neither in precedent nor in policy.

In short, there was no basis to reconsider or set aside the pretrial summary judgment granted to Wilf, dismissing plaintiff's complaint against him.

C

Although the trial court correctly refused to set aside the summary judgment which had been granted to Wilf, it then granted what could be considered essentially equivalent relief by holding CPA liable for Wilf's actions in guiding the operations of Trenton, L.P. Whereas the motion judge had correctly concluded that Wilf's actions were taken as an officer of *615 Trenton, Inc. (functioning as the general partner of Trenton, L.P.), the trial judge inexplicably found that Wilf's actions were taken as a general partner of CPA. On that premise, the court concluded that CPA (via Wilf's actions) had operated as a general partner of Trenton, L.P. and had thus become liable for the limited partnership's actions, including the $456,801 liability which the jury assessed against Trenton, L.P. and Trenton, Inc. However, we see no basis to conclude that Wilf was at any time functioning on behalf of CPA, nor do we perceive any other basis for liability against CPA.

The trial court's reasoning rested almost entirely on the suspension of Trenton, Inc.'s corporate charter. The court concluded that during that suspension, Wilf could not have been acting as a corporate officer since the corporation did not exist, and thus he must have been functioning as a general partner of CPA. However, the assumption that, with the suspension of the corporate charter, Wilf was somehow transmuted into someone acting on behalf of CPA, lacks any logic. CPA had not been actively involved in this venture at all. Its essential function had been to hold ownership interests in Trenton, Inc. and Trenton, L.P. We can conceive of no basis for imposing liability on CPA, particularly since that imposition seems designed essentially to accomplish what the summary judgment motion in favor of Wilf had avoided: the imposition of personal liability against Wilf.

The reasoning set out under Point IA above, which correctly led the motion judge to grant summary judgment dismissing plaintiff's claim against Wilf, is equally applicable here. Both N.J.S.A. 14A:4-5(7) and Asbestos Workers Local Union No. 32 v. Shaughnessy, supra, require dismissal of plaintiff's complaint. The suspension of the corporate charter has no more significance respecting a claim against CPA than it had against Wilf.

The trial court found support for its imposition of liability on CPA by concluding that Wilf had consciously decided that the corporation should not file necessary reports or pay necessary taxes, and thus Wilf had deliberately brought about the charter suspension. The court also found, or at least implied, that Wilf had acted in bad faith by deliberately delaying reinstatement of the charter after his counsel had represented to the motion judge that the charter was in the process of being reinstated. We find no support for those conclusions.

First, we can conceive of no motive for Wilf to deliberately induce a charter suspension. That would produce no benefit of any kind to him and could only pose precisely the kind of personal liability threat that plaintiff is asserting here.

Beyond that, as noted, the record is devoid of any explanation as to how or why the charter was suspended. Absent any such explanation, the most likely conclusion would seem to be that the suspension resulted from an oversight by someone acting for Trenton, Inc., or, recalling the statement in the reinstatement proclamation (that the charter had been "voided in error"), that the "error" was made within the office of the Secretary of State. There is certainly no reason to find that Wilf intentionally brought about the suspension.

Nor is there any basis for finding that Wilf or his attorney were disingenuous in representing to the motion judge that charter reinstatement was imminent. The chronology does not support that conclusion.

Wilf's attorney made his statement on December 23, 1996. The reinstatement proclamation from the Secretary of State is dated March 13, 1997—less than three months later. That would hardly seem an inordinate delay, and there is simply no basis for concluding that Wilf wanted to, or did, delay reinstatement of the charter.

In sum, just as there is no basis for a conclusion that Wilf at any time acted *616 other than as an officer of Trenton, Inc., so too there is no basis to conclude that CPA ever functioned as a general partner of Trenton, L.P. The finding to the contrary is unsupported and is reversed.

II

In addition to his claim based on suspension of Trenton, Inc.'s corporate charter, plaintiff claims the limited partnership statute imposes general partner liability on Wilf because he functioned as the operating head of the parties' renovation project. We find the claim inconsistent with both the policy and the language of the statute.

A basic principle of the Uniform Limited Partnership Law (1976), N.J.S.A. 42:2A-1 to -72, is a differentiation between the broad liability of a general partner for the obligations of a limited partnership (see N.J.S.A. 42:2A-32b), and the non-liability of a limited partner for such obligations. See N.J.S.A. 42:2A-27a. Preservation of that distinction and protection against imposing unwarranted liability on a limited partner has been a consistent concern of the drafters of the Uniform Act on which our New Jersey statute is based, and has been described as "the single most difficult issue facing lawyers who use the limited partnership form of organization." See Revised Unif. Limited Partnership Act, Prefatory Note preceding § 101, U.L.A. (1976) (hereinafter "Commissioners' Report"). Indeed, the history of the Uniform Limited Partnership Act, and thus the evolution of our New Jersey statute, shows a consistent movement to insure certainty and predictability respecting the obligations and potential liability of limited partners. The framers of the Act have accomplished that by consistently reducing and restricting the bases on which a general partner's unrestricted liability can be imposed on a limited partner. Under the present version of the Uniform Act, the imposition of such liability (absent fraud or misleading) is severely limited. Our New Jersey statute (as discussed below) reflects that same philosophy in the provisions of N.J.S.A. 42:2A-27a.^[4]

The original version of the ULPA was adopted in 1916. That enactment dealt with the question of a limited partner's liability in one short provision. In Section 7 it said,

A limited partner shall not become liable as a general partner unless, in addition to the exercise of his rights and powers as a limited partner, he takes part in the control of the business.

In 1976, the original ULPA was substantially replaced by a revised version (on which the New Jersey statute is based) which "was intended to modernize the prior uniform law." See Commissioners Report Prefatory Note preceding Section 101. One of the ways that modernization was effected was by a new Section 303, which replaced the old Section 7, and was adopted virtually verbatim as Section 27 of the New Jersey statute. Section 303 reads as follows:

[A] limited partner is not liable for the obligations of a limited partnership unless..., in addition to the exercise of his [or her] rights and powers as a limited partner, he [or she] takes part in the control of the business. However, if the limited partner's participation in the control of the business is not substantially *617 the same as the exercise of the powers of a general partner, he [or she] is liable only to persons who transact business with the limited partnership with actual knowledge of his participation in control.

The Commissioners' Report in the comment to Section 303 states:

Section 303 makes several important changes in Section 7 of the 1916 Act.... The second sentence of Section 303(a) reflects a wholly new concept.... It was adopted partly because ... it was thought unfair to impose general partner's liability on a limited partner except to the extent that a third party had knowledge of his participation in control of the business ..., but also (and more importantly) because of a determination that it is not sound public policy to hold a limited partner who is not also a general partner liable for the obligations of the partnership except to persons who have done business with the limited partnership reasonably believing, based on the limited partner's conduct, that he is a general partner.

Following that 1976 version, more limitations on a limited partner's liability came in 1988, with a series of "Safe Harbor" amendments, virtually all of which were adopted in New Jersey. See N.J.S.A. 42:2A-27b. The Commissioners' Report explained the reason for those additions to Section 303 of the Uniform Act:

Paragraph (b) is intended to provide a "Safe Harbor" by enumerating certain activities which a limited partner may carry on for the partnership without being deemed to have taken part in control of the business. This "Safe Harbor" list has been expanded beyond that set out in the 1976 Act to reflect case law and statutory developments and more clearly to assure that limited partners are not subjected to general liability where such liability is inappropriate.

Although plaintiff argues that Section 27 of the New Jersey statute imposes a general partner's liability on Wilf (and CPA) because Wilf took "part in the control of the business," we are satisfied that the argument has no merit.^[5] To accept it, and impose such liability on the facts presented here, would reverse the evolution described above and create precisely the instability and uncertainty that the drafters of the ULPA (and the New Jersey Act) were determined to avoid.

Plaintiff's argument rests on Wilf's key role in the renovation project. Wilf acknowledges that role, but argues that his actions were taken as a vice president of Trenton, Inc.—the corporation which was the sole general partner of Trenton, L.P. Wilf argues that since the corporation is an artificial entity, it can only function through its officers, see Printing Mart-Morristown v. Sharp Electronics Corp., 116 N.J. 739, 761, 563 A.2d 31 (1989), and that is precisely what he was doing at all times when he acted concerning this enterprise. Wilf also points to the "Safe Harbor" provisions of N.J.S.A. 42:2A-27b to reinforce his claim that his actions here did not impose general partner liability upon him.

We agree with that analysis. As noted, the 1988 "Safe Harbor" provisions set out a number of activities which, under the statute, do not constitute participating in "the control of" a business so as to impose a general partner's liability on a limited partner. The provision to which Wilf particularly refers is subsection b(6) of section 27, which provides that,

b. A limited partner does not participate in the control of the business within the meaning of subsection a. solely by[,]

*618 * * *

(6) Serving as an officer, director or shareholder of a corporate general partner;

That provision clearly applies here and essentially undercuts plaintiff's argument: while plaintiff claims that Wilf's activities constitute "control" of the activities of Trenton, L.P., the statute says, in just so many words, that those activities do not constitute the exercise of control.

In addition to the "Safe Harbor" protections, section 27a itself sharply limits the circumstances under which the exercise of "control" could lead to imposition of general partner liability on a limited partner. It first provides that if a limited partner's control activities are so extensive as to be "substantially the same as" those of a general partner, that control, by itself, is sufficient to impose liability: i.e., if a limited partner acts "the same as" a general partner, he will be treated as a general partner. However, but for that extreme case, mere participation in control does not impose liability on a limited partner. Such liability may be imposed only as to "persons who," in essence, rely on the limited partner's participation in control and thus regard him as a general partner.

That limitation of liability to those who rely on a limited partner's exercise of control is critical to a sound reading of the statute. It is consistent with the series of amendments from 1916 to now, which have been designed to insure predictability and certainty in the use of the limited partnership form of business organization. To reject plaintiff's claim of liability would be consistent with that view of the statute. To accept the claim would inject precisely the instability and uncertainty which the statute is designed to avoid.

Here, there was none of the "reliance" which is a necessary basis for a limited partner's liability. It bears repeating that plaintiff, an insider in the project, does not claim he was ever misled as to the entities with whom he was dealing. Plaintiff is described as a sophisticated, experienced developer and businessman. He does not deny that description. He does not claim that he ever sought or obtained any individual guarantee or promise of payment from Wilf, and certainly not from CPA. Nor does plaintiff deny that he understood completely that he was dealing with a limited partnership and a corporation. He does not deny his understanding that those entities, by their very nature, provide limited resources and limited recourse for parties with whom they contract. See Frank Rizzo, Inc. v. Alatsas, 27 N.J. 400, 402, 142 A.2d 861 (1958), where the court, speaking of a corporation but employing language equally applicable to a limited partnership, noted that,

[o]rdinarily we do not think in terms of the possibility of individual liability of corporate officers for obligations incurred by the entity in the usual course of business. Such personal liability is inconsistent with the existence of a body corporate at common law and can emanate only from some positive legislative fiat.

In short, there is no claim that plaintiff was misled, or that he relied on some impression that Wilf was a general partner of Trenton, L.P., and thus there is no basis for any finding of personal liability against Wilf under N.J.S.A. 42:2A-27a.

The only other possible statutory basis for imposing liability on Wilf is the provision which would impose such liability if Wilf's activities were "substantially the same as the exercise of the powers of a general partner" of Trenton, L.P. While that phrase is less than precise, and we are aware of no helpful decision interpreting or applying it, we see no basis for its application here.

First, recall that Wilf's activities as an officer of Trenton, Inc., are specifically sanctioned by the "Safe Harbor" provisions. With the other corporate officers having abrogated their responsibilities, it is difficult to see, first, what other choice was available to Wilf; and second, why his *619 actions should have any adverse effect on him under the Limited Partnership Act.

Further, it is significant that plaintiff does not rest his argument so much on the powers and functions exercised by Wilf, as on the manner in which he exercised those functions. That is, the argument points mainly to Wilf's carelessness in not consistently and specifically identifying himself as an officer of Trenton, Inc., when he acted on behalf of Trenton, L.P. or signed documents on behalf of the limited partnership.^[6] The argument, in short, refers more to form than to substance. It lacks force because, regardless of Wilf's alleged carelessness, plaintiff was at all times fully aware of what Wilf was doing and how he was doing it. A failure to comply with some designated formality might have had some significance if, at any time or in any way, it misled plaintiff or prejudiced him. But, as we have noted several times, that is simply not the case.^[7]

Plaintiff cites three out-of-state cases in support of his argument against Wilf and CPA. We find all of them either distinguishable or, for other reasons, non-persuasive.

One such case is Delaney v. Fidelity Lease Ltd., 526 S.W.2d 543 (Tex.1975), where the court questioned whether, under Texas Law, a corporation could serve as the sole general partner of a limited partnership. The court held that, if it were possible for a limited partnership to function in that manner, a corporate officer who took "part in the control of" the limited partnership through acting as an officer of the corporate general partner would become liable to third parties to the same extent as if he himself had been a general partner of the limited partnership.

The most obvious difference between Delaney and our case is the absence of any Texas statute comparable to the "Safe Harbor" provision discussed above. That provision dictates a conclusion precisely the opposite of that reached in Delaney. In short, the Texas court was dealing with a significantly different statute. Its conclusion may have been appropriate there; it is not appropriate here.

The second case cited by plaintiff is Hommel v. Micco, 76 Ohio App.3d 690, 602 N.E.2d 1259 (1991). There, the individual defendants, Micco and Buescher, were limited partners in an operating entity and the general partner of that entity was another limited partnership, Harbor Creek Company. The general partners of the second entity were two corporations, one controlled by Micco and the other by Buescher.

The court imposed individual liability on Micco and Buescher because they had controlled the operating limited partnership. The court did not refer to a "Safe Harbor" provision comparable to N.J.S.A. 42:2A-27b(6), but in any event, since the general *620 partner of the operating entity was not a corporation, but rather another limited partnership, it is not clear whether even "Safe Harbor" provisions such as those in our statute would have applied in Hommel.

Further, the court emphasized that Micco and Buescher had not made the plaintiff aware of the capacity in which they were operating. Since the plaintiff was an outsider, there was no basis to assume he understood the business organizations with which he was dealing, or that limited liability might be applied respecting his contract. That, of course, is completely different from our case, where plaintiff was an "insider" and was fully aware of all the entities involved.

The third case relied on by plaintiff is Gonzalez v. Chalpin, 77 N.Y.2d 74, 564 N.Y.S.2d 702, 565 N.E.2d 1253 (1990). There, the plaintiff, who had contracted with a limited partnership, sought to hold defendant Chalpin to a general partner's liability because Chalpin had directed some of the activities of the limited partnership in his capacity as the sole shareholder, director and officer of its corporate general partner. New York apparently has no "Safe Harbor" provision comparable to N.J.S.A. 42:2A-27b(6), and that may account for the court's seemingly suspicious, or hostile, approach to Chalpin's defense. It referred to Chalpin as attempting to "elude" personal liability and held that any limited partner who maintained he had been functioning as an officer of a corporate general partner "bears a heavy burden when seeking to elude personal liability." The court found that Chalpin had not met that "heavy burden," and thus imposed personal liability on him. Again, the significantly different statute is what probably accounts for an approach and a conclusion which may have been appropriate in the case before that court but is not appropriate here.

Wilf, on the other hand, relies on two cases which we find well reasoned and persuasive. One is Frigidaire Sales Corp. v. Union Properties, Inc. 88 Wash.2d 400, 562 P.2d 244 (1977), where a limited partnership had contracted with plaintiff Frigidaire. The limited partnership had two individual limited partners and one corporate general partner. The two limited partners were also the sole shareholders, officers and directors of the general partner, and by acting on behalf of the corporation, they controlled the activities of the limited partnership.

Frigidaire claimed that by their actions, the limited partners had become liable as though they were general partners. In support of its argument, it cited the Texas case discussed above, Delaney v. Fidelity Lease Ltd. The Washington Supreme Court, however, held that Washington law permitted a corporation to function as a general partner of a limited partnership; that by acting as officers and directors of the corporate general partner, the limited partners had not assumed general partner liability; that Frigidaire had been fully aware of the capacity in which the individual defendants had been acting; and thus Frigidaire had no personal liability claim against the limited partners.

The court declined to follow Delaney. It found that case distinguishable because there the plaintiff had not been fully aware of the status of the entities with whom it was dealing, and also because it found no impediment under Washington law to a corporation serving as general partner of a limited partnership. That the court reached that conclusion even before the ULPA had been amended to include the "Safe Harbor" provisions discussed above, is particularly significant and, we find, particularly persuasive.

Plaintiff's second cited case, Western Camps, Inc. v. Riverway Ranch Enterprises, 70 Cal.App.3d 714, 138 Cal.Rptr. 918 (Cal.Ct.App.1977) is also persuasive. There, defendant Riverway, a limited partnership, had executed a lease with plaintiff. The sole general partner of Riverway was CRC, a corporation. Defendant McCoy was a limited partner in Riverway *621 but also was an officer, director and shareholder of CRC. It was he who, essentially, directed the activities of Riverway.

Plaintiff claimed that because of McCoy's activities, he was responsible to the same extent as a general partner of Riverway. The case predated any "Safe Harbor" provisions, and the court framed the issue as calling for a choice between two conflicting decisions: that of the Texas court in Delaney v. Fidelity Lease Ltd. or the Washington court in Frigidaire Sales Corp. v. Union Properties.

The California court found the Frigidaire reasoning more persuasive. It concluded that the absence of "fraud, wrong or injustice," and full disclosure of the individuals and entities with whom the plaintiff was dealing, were the critical factors. It found no "fraud or injusti