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Arco Construction Group, Inc v. Sinowest Financial Services and Cfc Associates

February 17, 2011

ARCO CONSTRUCTION GROUP, INC., PLAINTIFF-APPELLANT,
v.
SINOWEST FINANCIAL SERVICES AND CFC ASSOCIATES, L.L.C., DEFENDANTS-RESPONDENTS.



On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Docket No. L-1955-09.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Telephonically argued January 19, 2011

Before Judges Baxter and Koblitz.

At the conclusion of an arbitration proceeding, an arbitrator entered judgment against defendant Sinowest Financial Services (Sinowest). The sole issue on appeal is whether the trial judge erred when she confirmed the arbitration award, and entered judgment, solely against Sinowest, thereby rejecting the motion of plaintiff Arco Construction Group, Inc. (Arco) to also enter judgment against defendant CFC Associates, L.L.C. (CFC). Although plaintiff maintained CFC was the "same entity" as Sinowest, and Sinowest was merely the trade name under which defendant CFC operated, plaintiff had not named CFC as a respondent in the arbitration.

We conclude the trial judge's reasons for declining to also enter judgment against CFC did not address the central issue raised, namely, whether the two entities are the same, and whether the arbitration award should therefore have been amended so as to also enter judgment against CFC even though plaintiff failed to name CFC in its arbitration demand. We therefore reverse the June 25, 2010 order, and the subsequent July 23, 2010 order denying plaintiff's motion for reconsideration, and remand for further proceedings.

I.

On June 3, 2008, Arco entered into a contract with Sinowest, pursuant to which Arco was to provide labor and materials for renovations to the Tusk Restaurant located at 1736 Route 206 in Montgomery Township. The contract between the parties contained a mandatory arbitration clause. The contract identified Sinowest, John Cheng and Jimmy Vastardis as the "Owner[s]" of the property. Cheng and Vastardis signed the contract "personally" and as "Owner[s]," and Angel Cabrera signed the contract on behalf of Arco. Although the agreed-upon price set forth in the contract was $700,000, numerous change orders were executed during the course of construction. Before the work was complete, the restaurant was destroyed by a fire on March 15, 2009.

As a result of a dispute between Arco and Sinowest over how much money Sinowest still owed to Arco, on September 4, 2009, Arco filed a construction lien claim with the Somerset County Clerk. The construction lien claim was filed against the "real property owned by CFC Associates, L.L.C.[,] 36 Bridge Street, Metuchen, New Jersey" in the amount of $138,000 for the value of the work, services, materials or equipment provided in accordance with a contract with Sinowest Financial Services.

In response to Arco's lien, and as required by N.J.S.A. 2A:44A-14(a)(2), CFC, as the owner of the property against which the lien was filed, served a written demand for Arco to commence an action to establish its lien claim.*fn1 On October 26, 2009, in response to CFC's demand, Arco filed a complaint in the Law Division to foreclose on its lien and to stay the proceedings pending arbitration between Arco and Sinowest. The complaint filed by Arco named both Sinowest and CFC as defendants.*fn2

Notably, the complaint described each one as a separate corporation, and, in particular, the complaint specified that Sinowest was itself a corporation. The complaint alleged:

2. Upon information and belief, defendant, Sinowest Financial Services (hereinafter "Sinowest"), is a corporation with offices at 36 Bridge Street, Metuchen, New Jersey and is the business entity with whom Arco entered into a contract for the construction of a project known to Arco as "Construction of Tusk Restaurant, Montgomery Township, New Jersey" (hereinafter the "Project").

3. Upon information and belief, defendant, CFC Associates L.L.C. (hereinafter "CFC"), is a corporation with offices at 36 Bridge Street, Metuchen, New Jersey and is the owner of certain real estate property at 1736 Route 206, Montgomery Township, New Jersey, which is further identified as Lot 8; Block 20001, on the Tax Map of the Township of Montgomery, New Jersey (hereinafter the "Property").

Sinowest and CFC filed a joint answer to Arco's complaint. In their answer, they admitted the allegations of paragraphs 2 and 3, thereby acknowledging that Sinowest was a corporation.

The answer filed by Sinowest and CFC did not state that Sinowest was not a corporation and was merely the name under which CFC ...


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