On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-2518-04.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 16, 2009
Before Judges Axelrad, Fisher and Sapp-Peterson.
Defendant, TechnoSteel Manufacturing, LLC, appeals from the trial court order granting the cross-motion for summary judgment filed by co-defendants, BFW/Howell Associates, LLC, Benderson Development Company, Inc., Buffalo-Parkton Associates, LLC, Feuerstein Associates, LLC, and Wainco Properties, LLC (collectively referred to as "Benderson"), dismissing defendant's lien and contract claims asserted against Benderson, pursuant to the New Jersey Construction Lien Law, N.J.S.A. 2A:44A-1 to -38 (Act).
Viewing the facts most favorably to defendant as the party defending against Benderson's summary judgment motion, Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 523 (1995), defendant produces structural steel utilized at construction sites. In that regard, it agreed to provide structural steel and drawings to M.J. Fisher Steel Co., LLC (M.J. Fisher) at a cost of $176,000 in connection with a shopping center project known as Howell Commons (the property). Before entering the contract, defendant undertook a credit check of M.J. Fisher and determined that it was not creditworthy. It nonetheless agreed to M.J. Fisher's $176,000 proposal after receiving a copy of a letter that Benderson, the property's labor, equipment and materials contractor, sent to M.J. Fisher dated June 26, 2003 stating:
"Pursuant to the agreement between Benderson Development Company and M.J. Fisher Steel Co., LLC, Benderson Development Company will pay according to Purchase Order #66202 the total sum of Five Hundred and Eighty Thousand Dollars ($580,000.00) to M.J.
Fisher Steel Co., LLC for structural and miscellaneous steel. M.J. Fisher Steel Co., LLC will provide assurances that TechnoSteel has been paid in full for their portion of the work ($176,000.00) prior to the release of their final contract payment."
Defendant's vice president and board member, Scott Cramer (Cramer), stated in his certification, submitted in opposition to Benderson's motion and in support of defendant's cross-motion, that he understood Benderson's letter to M.J. Fisher to mean that "Benderson would withhold a final contract payment of $176,000 from M.J. Fisher until Benderson received proof from M.J. Fisher that [defendant] had been paid in full." He also indicated that this approach was common practice within the construction industry, namely, "for an owner to ensure that a contractor pays a subcontractor or supplier" and that the practice was "similar to giving the supplier a lien on the funds due the contractor." Cramer asserted that defendant supplied the fabricated steel and drawings "[i]n reliance on this payment guarantee." Subsequently, at M.J. Fisher's request, defendant supplied additional structural steel and drawings, with the total amount M.J. Fisher ultimately owed defendant being $208,514.
Defendant delivered the steel to the property in numerous shipments beginning August 5, 2003, with the last delivery occurring on September 29, 2003. Defendant billed M.J. Fisher in several invoices totaling $208,514 between September 30 and October 31, 2003. On November 13, 2003, M.J. Fisher paid defendant $100,000. On December 3, 2003, defendant issued M.J Fisher a credit of $5,487.50 for "minor corrections" M.J. Fisher made at the job site. The balance owed was then $103,026.50.
On December 24, 2003, defendant's New Jersey counsel, Scott
M. Yaffe (Yaffe), filed a construction lien against the property for $103,026.50, naming defendant as the claimant and signing the claim on behalf of defendant, without indicating in what capacity he was signing the claim. In the attached corporate acknowledgment, however, the notary certified that Yaffe had satisfied the notary that he was authorized to sign the instrument as a "duly authorized officer" of the corporation. The lien claim was served upon M.J. Fisher on January 21, 2004, and upon the project's owners on January 31, 2004.
Benderson's project manager, Timothy Liddle (Liddle), when deposed, testified that the steel erection phase of the project ended sometime in 2003 and at that time he received verbal assurances from M.J. Fisher that defendant had been paid. The total value of M.J. Fisher's contract with Benderson was $723,775, of which all but $67,775 had been paid to it by the time defendant had filed its lien claim. Liddle indicated that after receiving the lien claim, he discussed it with Michael Fisher, M.J. Fisher's representative, who indicated that he was working on it. In his certification, Liddle, however, characterized the June 26, 2003 letter as "merely confirm[ing] that M.J. Fisher was obliged to provide assurances that M.J. Fisher had paid Techno[S]teel" and that he "did not intend to make a contract or agreement or guarantee." Nor did he intend to "make any promise that Benderson would do (or not do) anything."
On May 28, 2004, plaintiff, Aloia Construction Company (Aloia), filed its complaint against numerous parties, including defendant and Benderson, alleging, among other things, breach of contract and enforcement of a construction lien in connection with its construction of an outbuilding at the property. On July 28, 2004, defendant filed an answer, counterclaim and a cross-claim asserting lien rights in the property. Benderson filed its answer on November 1, 2004.
On December 8, 2005, Benderson moved for partial summary judgment. The motion included its application to dismiss pursuant to N.J.S.A. 2A:44A-16 and defendant's one-count answer, counterclaim and cross-claim filed on or about July 29, 2004. Benderson argued that defendant's cross-claim failed to name all parties having an interest in the real property that would be adversely affected by the judgment and that defendant's claim was also deficient because it failed to name the contractor who allegedly defaulted. Defendant cross-moved for an order consolidating the matter with other pending cases in which other plaintiffs were seeking to foreclose on the property, and to join those other parties. The court denied Benderson's motion but granted defendant's cross-motion.
Two years later, Benderson filed its second summary judgment motion against defendant. Benderson also sought an order compelling certain discovery. In addition to alleging repeated non-compliance with discovery demands, Benderson argued that there was no evidence that defendant's New Jersey counsel, Yaffe, was a duly appointed corporate officer of defendant authorized to sign the construction lien that had been filed against it and that its efforts to confirm this fact through discovery had been continuously rebuffed. Defendant cross-moved for summary judgment on its first and second cross-claims, seeking a declaration that it held a valid lien claim against Benderson in the amount of $103,026.50 and the entry of judgment against Benderson in that amount.
After conducting oral argument on the motions, the court found that defendant's lien was infirm, directed that the lien be stricken, and granted Benderson summary judgment on defendant's breach of contract claim. It denied defendant's cross-motion.
Prior to entry of the order, Benderson moved for counsel fees, which defendant opposed. The court heard argument and reserved decision. On March 3, 2008, the court rendered its determination, awarding Benderson legal fees and directing counsel to submit a certification of services. On August 5, 2008, following additional proceedings and submissions regarding the amount of any award, the court rendered its decision, subsequently memorialized in an order dated August 19, 2008. The court: 1) granted Benderson summary judgment on both counts of defendant's cross-claim; 2) discharged defendant's construction lien; and 3) awarded Benderson counsel fees. The present appeal followed.
On appeal, defendant raises the following points for our consideration:
THE COURT BELOW ERRED IN DISCHARGING TECHNOSTEEL'S LIEN CLAIM AS IMPROPERLY SIGNED WHEN THE OWNERS PROVIDED NO EVIDENCE THAT THE LIEN WAS IMPROPERLY SIGNED.
THE COURT BELOW ERRED IN DISCHARGING TECHNOSTEEL'S LIEN CLAIM AS IMPROPERLY SIGNED WHEN THERE WAS A GENUINE ISSUE AS TO WHETHER IT WAS IMPROPERLY SIGNED.
THE COURT BELOW ERRED IN DISCHARGING TECHNOSTEEL'S LIEN CLAIM AS IMPROPERLY SIGNED WHEN THAT DEFENSE WAS ...