September 3, 2008
A-TECH CONCRETE CO., PLAINTIFF-RESPONDENT,
WEST ORANGE PUBLIC SCHOOLS, DEFENDANT-APPELLANT, AND R.W. MERKEL, INC., AND PIKE CONSTRUCTION CO., DEFENDANTS.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-6044-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted August 26, 2008
Before Judges Lisa and Simonelli.
Appellant, West Orange Public Schools, appeals from a final judgment entered against it in favor of A-Tech Concrete Co. (A- Tech) in the amount of $69,079. Appellant consented to the entry of judgment at the time scheduled for trial of A-Tech's quantum meruit claim against it, preserving its right to appeal. Thus, appellant's arguments focus on a prior order which, upon A-Tech's reconsideration motion, vacated the summary judgment previously entered in appellant's favor dismissing A-Tech's claim. Appellant argues that the judgment against it should be vacated because it will require appellant's taxpayers to pay twice for the same work and materials provided by A-Tech. Appellant further argues that the trial court erred when it concluded that the entire controversy doctrine barred any prospective claim of the general contractor, Pike Construction Co. (Pike), to retainage held by appellant. We reject these arguments and affirm.
Appellant entered into a contract with Pike for the construction of improvements to appellant's property. Pike entered into a subcontract with R.W. Merkel, Inc. (Merkel), which in turn entered into a subcontract with A-Tech. Pursuant to the terms of the contract between Merkel and A-Tech, A-Tech performed concrete construction work, resulting in improvement to appellant's property. There is no dispute that A-Tech's work was performed in a good and workmanlike manner. Merkel made partial payments to A-Tech. However, it failed to pay an outstanding balance in the amount of $69,079.
The general contract between appellant and Pike authorized appellant to withhold retainage of the contract sum, which appellant was required to hold until it "approved the Construction Manager's and Architect's determination that the work has been satisfactorily completed and no unsettled claims exist." (emphasis added). On February 24, 2005, after A-Tech performed the work, and realizing it was not being paid the balance due by Merkel, A-Tech filed a notice of lien claim pursuant to the Municipal Mechanics' Lien Law. See N.J.S.A. 2A:44-132 and -133. The claim was in the amount of $82,079, but Merkel subsequently made further payment to A-Tech, reducing the balance to $69,079. A-Tech's notice of lien claim was served on appellant. Therefore, at that time, appellant was aware of ATech's unsettled claim.
A-Tech brought this action against appellant, Pike and Merkel. Appellant sought recovery of the balance due on various theories, including under the Municipal Mechanics' Lien Law and for quantum meruit. A-Tech obtained a default judgment against Merkel*fn1 and Pike was successful in obtaining dismissal of ATech's claim against it on summary judgment.
Appellant moved for summary judgment. The motion judge concluded that A-Tech failed to properly perfect its lien claim in accordance with the Municipal Mechanics' Lien Law, and granted summary judgment in appellant's favor, dismissing ATech's claim against it. A-Tech moved for reconsideration. The motion judge granted A-Tech's motion, setting forth these reasons:
1. This court again finds that, plaintiff has failed to perfect a valid municipal mechanic's lien because it never filed a notice of delivery of labor or materials to Merkel with defendant West Orange Public Schools. See N.J.S.A. § 2A:44-127. Therefore plaintiff cannot proceed pursuant to the municipal mechanics' lien law. Also, to clarify the court's prior decision. [T]his court did not hold in its initial decision, that A-Tech was required to show privity of contract with West Orange in order to obtain recovery against West Orange Public Schools. This court did take note of the absence of privity of contract when assessing the knowledge of West Orange Public Schools of a valid claim under the Municipal Mechanics Lien Law.
2. The Construction Lien Law remedy is "cumulative" to other available remedies. Craft v. Stevenson Lumber Yard, Inc., 179 N.J. 56, 77 [(2004)].
Plaintiff, may, therefore still pursue a quantum mer[u]it claim against West Orange Public Schools.
. The value of the benefit conferred upon West Orange Public Schools is, however, a question that should be submitted to a jury.
4. Defendant claims that if it is required to pay A-Tech that Pike would file suit. Plaintiff responds and the court agrees that any such claims or suit by Pike would be barred by the Entire Controversy Doctrine because Pike was an original party to this action, it was aware of A-Tech's quantum mer[u]it claim against Defendant, and it had sufficient opportunity to preserve any claim to the money held as retainage.
The effect of the court's order was to set the matter down for trial of A-Tech's quantum meruit claim against appellant. The evidential record establishes that at the time of appellant's initial summary judgment motion, appellant had paid all sums it owed to Pike, excepting retainage held by appellant in the amount of $253,943. The record further demonstrates that Pike had paid Merkel in full the amount Pike owed Merkel.
We reject appellant's argument that allowing the judgment in favor of A-Tech against it to stand will result in double payment by appellant for the same work. Recovery under the Municipal Mechanics' Lien Law is not a sole remedy, and A-Tech's failure to perfect its rights under that law does not affect or impair its right to seek recovery against a responsible party.
N.J.S.A. 2A:44-127. Under these circumstances, a quantum meruit claim against the owner of the property is a viable claim. Craft, supra, 179 N.J. at 77 (2004).
Accordingly, we find no error in the motion judge's determination that A-Tech should be allowed to present its quantum meruit claim to a jury, and we affirm substantially for the reasons stated by the judge in the first three paragraphs quoted above. We decline to address the entire controversy doctrine (addressed in paragraph four of the quoted passage), because it is not a justiciable issue. Pike was not a party to the litigation when the trial court order was entered and is not a party to this appeal.