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Township of Parsippany-Troy Hills v. Lisbon Contractors

July 31, 1997

TOWNSHIP OF PARSIPPANY-TROY HILLS, A MUNICIPAL CORPORATION IN THE COUNTY OF MORRIS AND STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
LISBON CONTRACTORS, INC., A PENNSYLVANIA CORPORATION AUTHORIZED TO DO BUSINESS IN THE STATE OF NEW JERSEY, DEFENDANT-APPELLANT, AND VICTORY ENVIRONMENTAL SERVICES, INC., A DELAWARE CORPORATION AUTHORIZED TO DO BUSINESS IN THE STATE OF NEW JERSEY; THE TOWN OF PHILLIPSBURG, A MUNICIPAL CORPORATION IN THE COUNTY OF WARREN AND THE STATE OF NEW JERSEY; AND JOSEPH VAUGHAN, DEFENDANTS, AND LISBON CONTRACTORS, INC., THIRD-PARTY PLAINTIFF,
v.
JOSEPH VAUGHAN, THIRD-PARTY DEFENDANT/FOURTH-PARTY PLAINTIFF,
v.
RUSSELL REID WASTE HAULING AND DISPOSAL SERVICE CO., INC., FOURTH-PARTY DEFENDANT.



On appeal from the Superior Court of New Jersey, Law Division, Morris County.

Approved for Publication August 2, 1997. As Corrected August 4, 1997.

Before Judges Skillman, A.a. Rodriguez and Cuff. The opinion of the court was delivered by Cuff, J.A.D.

The opinion of the court was delivered by: Cuff

The opinion of the court was delivered by

CUFF, J.A.D.

In this case, we must determine whether plaintiff Township of Parsippany-Troy Hills (Parsippany-Troy Hills), which disposed of sludge from a sewage treatment facility of another municipality, is entitled to assert a lien pursuant to the Municipal Mechanics' Lien Law when it was not paid for the work it performed.

The facts are largely undisputed. The Township of Phillipsburg (Phillipsburg) awarded a contract to defendant Lisbon Contractors, Inc. (Lisbon) to expand and upgrade its municipal wastewater treatment plant. Part of the work under this contract included the removal of sludge from anaerobic digesters in order that this equipment could be renovated and rehabilitated. Lisbon executed a contract with defendant Victory Environmental Services, Inc. (Victory) to empty and dispose of the contents and thoroughly clean the interior of two existing anaerobic digester tanks at the facility. Victory, in turn, entered a contract with defendant Russell Reid Waste Hauling and Disposal Service Co., Inc. to haul the contents of the tanks, commonly referred to as sludge, to the wastewater treatment facility owned and operated by Parsippany-Troy Hills. Victory made arrangements directly with Parsippany-Troy Hills to accept and process the sludge from the Phillipsburg facility. Parsippany-Troy Hills willingly agreed to accept the sludge because it regularly disposed of sludge from the Phillipsburg facility and was familiar with its characteristics.

In May 1990, Parsippany-Troy Hills began to accept and process the sludge. Invoices were issued to Victory monthly. Victory made no payments until November 1990 when it forwarded $5000 to Parsippany-Troy Hills. By November 27, 1990, Lisbon had paid Victory in full for all amounts owed under the Lisbon-Victory subcontract. All payments were preceded by the submission by Victory to Lisbon of certificates for payment which contained a certification that "all labor, equipment, materials have been paid by the Subcontractor for Work for which previous Certificates for Payment were issued and payments received from the General Contractor...."

The work performed by Victory was related solely to the initial phases of Lisbon's work on the Phillipsburg facility. Lisbon performed work at the Phillipsburg facility through 1991. Phillipsburg made its last payment to Lisbon in March 1992. On January 7, 1992, more than one year after Parsippany-Troy Hills received its only payment from Victory, it filed a Notice of Lien Claim pursuant to N.J.S.A. 2A:44-132. By this filing, Parsippany-Troy Hills asserted a claim against funds due and owing Lisbon from Phillipsburg. Parsippany-Troy Hills asserts that it is owed $100,281.82 by Victory. In view of the lien claim filed by Parsippany-Troy Hills, Lisbon posted a bond pursuant to N.J.S.A. 2A:44-130 in the amount of $200,563.64. Final payment was then made to Lisbon.

Parsippany-Troy Hills filed a complaint against Lisbon and Victory to collect the fees owed to it. In the Second Count of the Complaint, Parsippany-Troy Hills sought a judgment against Phillipsburg to enforce its notice of mechanics' lien. *fn1 In response to cross-motions for summary judgment filed by Parsippany-Troy Hills and Lisbon, the motion Judge entered an order granting plaintiff's motion for summary judgment and entered a judgment in favor of Parsippany-Troy Hills and against Lisbon in the amount of $100,281.82, to be paid from the proceeds of the bond posted by Lisbon. We have not been provided with any oral or written opinion by the motion Judge. The form of order submitted by Parsippany-Troy Hills and signed by the motion Judge contains the following paragraph:

ORDERED that as a matter of law plaintiff Township of Parsippany-Troy Hills was a materialman or subcontractor for Victory Environmental Services at all relevant times and thus is a proper lien claimant under N.J.S.A. 2A:44-125 and the lien was filed within the time provided by N.J.S.A. 2A:44-132. *fn2

Because this order did not dispose of the claims against Vaughan, the motion Judge certified this order as final pursuant to R. 4:42-2.

On appeal, Lisbon argues that Parsippany-Troy Hills is not a proper lien claimant. It also contends that Parsippany-Troy Hills' notice of lien and complaint are barred by laches. Finally, it insists that there is no support in the record for the amount awarded to Parsippany-Troy Hills.

At the outset, we must comment regarding the absence of an oral or written opinion in this matter. We have stated repeatedly that a motion Judge fails to discharge a primary function when findings of fact and Conclusions of law are omitted. R. 1:6-2(f); R. 1:7-4; Curtis v. Finneran, 83 N.J. 563, 570, 417 A.2d 15 (1980). That omission deprives the litigants and this court of the benefit of the motion Judge's legal analysis. In re Will of Marinus, 201 N.J. Super. 329, 338-39, 493 A.2d 44 (App. Div.), certif. denied, 101 ...


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