telephonically November 29, 2018
appeal from Superior Court of New Jersey, Law Division,
Monmouth County, Docket No. L-0203-08.
Anthony J. Davis argued the cause for appellant (Nicoll Davis
& Spinella, LLP, attorneys; Anthony J. Davis and Steven
C. DePalma, on the briefs).
D. Meller argued the cause for respondents (Peckar &
Abramson, P.C., attorneys; Bruce D. Meller and Patrick T.
Murray, on the brief).
Judges Fasciale, Gooden Brown and Rose.
2011, the Legislature substantially amended multiple sections
of the Construction Lien Law, N.J.S.A. 2A:44A-1 to -38 (the
2011 amended CLL). This appeal requires us to decide whether
N.J.S.A. 2A:44A-6(a)(1) and N.J.S.A. 2A:44A-8 (the
signatory-requirement amendments) apply retroactively. We
limit our holding to the retroactive effect of that part of
the signatory-requirement amendments that replaced the
previous mandate that a "duly authorized officer"
sign a corporate construction lien. We do so because the
signatory-requirement amendments, and the 2011 amended CLL in
general, contain other significant changes, which potential
retroactive effect are not at issue in this appeal.
& Company, Inc. (Sloan) appeals from five orders entered
after Sloan filed its construction lien claim in
2008. At that time, a corporate claimant - like
Sloan - had to show that it "duly authorized" an
officer to sign its lien-claim form. After conducting a
plenary hearing in 2014, the judge found that the individual
who signed Sloan's lien-claim form - Robert Luderer - was
not a "duly authorized officer." Instead, he was an
"Accounting & Information Systems Manager," a
position that Sloan maintains satisfies the signatory
requirements of the new law.
early 2016, Sloan unsuccessfully attempted to vacate all the
orders, arguing for the first time that the
signatory-requirement amendments applied retroactively. Sloan
contended that in so amending the CLL, the Legislature was
"clarifying" the meaning of "duly authorized
officer." But in 2011, the Legislature did not
"clarify" what it meant by "duly authorized
officer"; it deleted the phrase altogether from the
original text of N.J.S.A. 2A:44A-6, and required compliance
with a new claim form identified in N.J.S.A. 2A:44A-8 (the
Section 8 claim form).
Section 8 claim form changed who can now sign a corporate
lien claim. Under paragraph one, the signatory must be an
"officer/member" of the corporate entity. And under
a section entitled "Suggested Notarial for Corporate . .
. Claimant," a notary must be satisfied that the
signatory is a "Secretary (or other
officer/manager/agent) of the Corporation." The
signatory must now swear or affirm - unlike before - that he
or she possesses authority to act on behalf of the corporate
claimant by "virtue of its By[-]laws, or Resolution of
its Board of Directors."
conclude that the signatory-requirement amendments at issue
are not "curative" for purposes of retroactivity
analysis. There is no basis to conclude that the Legislature
eliminated the phrase "duly authorized officer" to
cure defects, inadvertence, or error in the CLL or in its
administration; or did so to explain the intent of that part
of the CLL; or to clarify, rather than change, the signatory
requirement. Instead, it deleted "duly authorized
officer" from the text, and created new requirements for
signing corporate construction lien claims.
therefore reject Sloan's retroactivity argument, and hold
that the signatory section of the 2011 signatory-requirement
amendments applies prospectively. We defer to the judge's
factual findings at the plenary hearing, which are supported
by substantial evidence in the record, and conclude that the
judge correctly applied the governing law. Accordingly, we
affirm the orders under review.
Beach originally owned several acres of vacant land (the
Property). It developed the Property as a condominium
community, generally consisting of almost 100 residential
units, a nine-story building, and recreational and parking
facilities (the Project). Diamond Beach retained March
Associates, Inc. (March) as the general contractor, who
subcontracted carpentry work to Sloan. March filed a Chapter
11 Bankruptcy Petition and did not pay Sloan for the work
Sloan allegedly performed on the Project. First Indemnity of
America Insurance Company issued bonds to secure Sloan's
Luderer signed Sloan's lien-claim form in 2008, he did
not identify himself as Sloan's "duly authorized
officer." Rather, in three separate sections of the
form, he referred to himself as an "Accounting &
I[nformation] S[ystems] Manager." Defendants filed a
motion for summary judgment and argued that in 2008, N.J.S.A.
2A:44A-6 required a "duly authorized officer" to
sign a corporate lien claim. Defendants contended that
Luderer was a manager, not a "duly authorized
officer," and therefore sought to discharge the lien
because he lacked authority to sign it.
opposition to the motion, Sloan submitted a certification
from Scott Casabona, Sloan's President as of 2002. He
certified that Luderer signed the lien claim as Sloan's
"duly authorized corporate officer." Casabona
explained further that
Mr. Luderer was acting in this capacity on behalf of Sloan
prior to the time I became President and a member of
the Board of Directors. Sloan had duly authorized Mr. Luderer
to act as an officer for purposes of collecting monies owed
to the company[, ] and [for] signing and filing construction
liens on behalf of the company prior to the time
that I joined Sloan.
to Casabona, "Luderer . . . was duly authorized by the
prior President, Peter Shanley, and the Board of Directors[,
] when he was [first] hired to . . . sign and fil[e]
[Sloan's] construction lien[s] . . . ." Shanley did
not produce his own certification in opposition to the motion
- although he could have - and he did not have an opportunity
to testify at the hearing because he died three months after
Sloan opposed the summary judgment motion.
return date of the motion, the judge found that
Casabona's certification created a genuine issue of
material fact about whether Luderer was a "duly
authorized officer," which precluded summary judgment.
The judge permitted the parties to engage in discovery on
that issue. She then conducted the plenary hearing.
plenary hearing, Casabona dealt head-on with the absence of
any written corroborative evidence that verified Luderer was
a "duly authorized officer." He explained that
Sloan's Board of Directors did not issue written
resolutions or minutes memorializing its elections of
officers. For example, he testified that although Sloan
"followed all of its corporate formalities in holding
[the] meeting [that elected Casabona as] [P]resident,"
there was no written resolution reflecting that election.
Likewise, when the Board first elected Casabona as Vice
President, there were no resolutions or minutes confirming
that election. He emphasized that this method of conducting
business was "just the way [Sloan] operated."
acknowledged that Sloan's by-laws required the Board to
elect officers. He testified that under Article 5, Section 1
of Sloan's by-laws - the section relating to officers -
Sloan's Board of Directors was required to "elect a
president, a treasurer and a secretary, and it may elect such
other officers including one or more vice presidents as it
shall deem necessary." According to the by-laws, the
election was to occur at Sloan's "regular meeting
following the annual meeting of shareholders." He stated
that Sloan's by-laws and certificate of incorporation did
not require that the Board of Directors memorialize those
elections in writing. Without any personal knowledge about
the actual election, he explained that the Board elected
Luderer as an officer in accordance with these practices and
then described Luderer's role at Sloan, particularly the
alleged authority that Sloan had given Luderer as an officer
to file and sign construction liens. Casabona said Luderer
was part of Sloan's "executive team," which
entitled him to participate in management, executive, and
Board meetings by making presentations to shareholders and
other directors. Casabona testified that Luderer reported
directly to him. Casabona said that he observed Shanley
interact with Luderer and watched them working together on
accounts receivables, which Casabona believed led to Luderer
signing Sloan's liens under Shanley's supervision.
Casabona testified that when he was elected President,
Shanley told him to "manage the company in the same
manner." Consequently, Luderer still had weekly meetings
about accounts receivables, except he met with Casabona, who
said he continued the practice of Luderer signing Sloan's
construction liens allegedly as a "duly authorized
also testified at the hearing. He stated that Shanley hired
him in 1995 to be Sloan's credit and collections manager.
Approximately three years later, he became the accounting
manager. At some point before 2000, Luderer learned that
Sloan's Board had allegedly elected him as a "duly
authorized officer for signing and executing and pursuing
construction liens." He said Shanley told him that the
Board authorized him to sign its liens (although he provided
no details as to the alleged conversation).  Luderer
identified Sloan's corporate officers, but he did not
identify himself as such. He produced no written proof, however,
that he was a corporate officer.
judge rendered an oral opinion after the testimony concluded.
To determine whether Luderer was a "duly authorized
officer," the judge relied in part on D.D.B.
Interior Contracting, Inc. v. Trends Urban Renewal Ass'n,
Ltd., 176 N.J. 164 (2003). Recognizing that
D.D.B. was not directly on point, the judge stated
[a]lthough the Court permitted the exception of validating
the lien claim [in D.D.B.], it made it explicitly
clear that going forward, corporations must comply with their
certificates of incorporation and by[-]laws to [e]nsure that
the person executing the duty of filing a construction lien
must be a corporate officer.
Here, again there is a dearth of supporting evidence [that]
this appointment or election, . . . took place or
hearing, Sloan did not produce any Board member who
participated in the election of Luderer as a "duly
authorized officer." Concluding that there was "no
[written] proof" and no "direct [credible]
testimony" that an election had been held giving Luderer
"some sort of designation as a corporate officer,"
the judge granted summary judgment to defendants and
discharged the lien. In September 2014, the judge entered the
order discharging the ...