A recent non-precedential Appellate Division case serves as a reminder that not all arbitration provisions are drafted equally. At issue in a residential construction suit was the defendant-contractor's arbitration provision which required an aggrieved homeowner to file a claim with the American Arbitration Association in lieu of filing an action in court. However, the provision at issue did not contain specific language which would have informed a reasonable homeowner that by going to arbitration they would be "waiving a right to seek relief in a court of law." (see Atalese v. U.S. Legal Servs. Grp., 219 N.J. 430 (2014)). This proved fatal to the defendant-contractor's invocation of arbitration, and the defendant-contractor's motion to compel arbitration was reversed and the matter remanded to the trial court for (expensive) litigation. This serves as a reminder for all businesses and individuals with arbitration clauses in their contracts to have same reviewed by an attorney knowledgeable on the subject matter. (Becker v. Ollie Slocum and Son, Inc.)
A group of homeowners joined together to sue the builder of their development for selling them homes with infiltrator septic systems instead of stone and pipe septic systems, which allegedly have a substantially-shorter useful life. Since many of the homes were sold over ten years prior to the filing of the complaint, the Plaintiffs only filed Consumer Fraud Act ("CFA") claims and did not file faulty design or construction defect claims. However, the Appellate Division affirmed the ruling of the trial judge that all claims must be dismissed based upon the statute of repose. Noting the broad application of the statute of repose, that it covered all claims regardless of how a plaintiff couches the cause of action, citing the legislature's use of the language that no action could be brought after ten years, "whether in contract, in tort, or otherwise." (Allen, et. al. v. Beazer Homes Corporation)
The New Jersey Consumer Fraud Act ("CFA") places many responsibilities upon a home improvement contractor which, if violated, render the contract null and void. However, if the CFA violations are only "technical" and "inadvertent" in nature, then the contractor can still recover monies for unpaid work performed under a theory of quantum meruit. This was specifically the situation presented to the court in CB Construction, Inc. v. Jill Panico, which was decided on June 26th. There, the Appellate Division affirmed an award in favor of a contractor despite three technical violations of the CFA. Moreover, even though the technical CFA violations did entitle the homeowner to recover attorney fees, the trial court substantially reduced such fees to only 10% of what was requested by the homeowner defendant. As stated by the trial judge, "The litigation could have been resolved in the Special Civil Part at minimal legal expense to the parties, but for Defendant's decision to utilize the CFA as a sword in an effort to win a large judgment and attorneys' fees award. Defendant made the decision to transform this case from a simple dispute over a book account, into, relatively speaking, a "high stakes" multi-count, multi issue dispute. That defendant failed on almost all of her factual defenses and legal theories must also weigh heavily on this court as it tries to determine a fair and proportionate counsel fee award." The appellate court upheld this substantial reduction. (CB Construction, Inc. v. Jill Panico)
Where there is no contractual privity with a property owner, a subcontractor cannot sue an owner for unpaid work performed except under the Construction Lien Law. Consequently, in the event that the lien fund available under the Construction Lien Law is insufficient to make a subcontractor whole, the subcontractor can only seek additional payment from the general contractor who hired them, not the owner. In a recent matter before the Appellate Division, a landscaping contractor was owed $87,696.40 from the general contractor, who failed to make payment. The landscaper filed a lien against the property and prevailed on such claim. However, since there was only a limited lien fund available, the landscaper only received its pro rata share of $35,300.94 from the lien fund, leaving an unpaid balance of over $50,000. The landscaper then attempted to recover the remaining balance from the property owner directly by asserting quasi-contractal claims in the Law Division, but the matter was ultimately dismissed. The Appellate Division affirmed such dismissal, stating that, "New Jersey law is clear that subcontractors who are not paid by the general contractor who hired them cannot sue the property owners who they lack privity." (Ash Maple, LLC, et. al. v. Jeral Construction Company, Inc., et. al.)
The New Jersey Prompt Payment Act ("PPA"), N.J.S.A. 2A:30A-1, et. seq., includes numerous provisions that protect contractors including, the ability to collect interest of prime plus 1% on overdue balances and the ability to suspend performance after seven-day written notice of non-payment. In ERCO Interior Systems, Inc. v. National Commercial Builders, Inc., a New Jersey contractor sued a Kansas company for work that the contractor performed in New Jersey. When the NJ contractor brought suit for non-payment, the Kansas company moved to dismiss the case on the basis that the contract has a forum selection clause mandating that any enforcement actions be brought in Kansas. However, the Appellate Division held that due to the fact that the case involved the PPA, the forum selection clause was invalid. Noting that forum selection clauses will not be enforced where such enforcement would violate the public policy of New Jersey, the Court found that there was a strong public policy behind the PPA and that the PPA claim, along with the other associated claims of breach of contract, etc. must all be litigated in New Jersey. ERCO Interior Systems, Inc. v. National Commercial Builders, Inc.
In an unpublished decision from March 25th, the Appellate Division found a general contractor to be responsible for providing a safe working environment for the employees of its subcontractors based on the specific set of facts in that case. Notably, the court did not examine the terms of the subcontract (which wasn’t signed until after the accident), but relied upon provisions in the general contractor’s agreement with the owner that placed responsibility for safety barriers and OSHA compliance on the general contractor. Consequently, the court found that the general contractor owed a duty of care to a subcontractor’s employee that fell through a hole in the roof where there were no safety barriers or other fall protection. In doing so, the Appellate Division quoted the almost twenty-year-old case of Kane v. Hartz Mtn. Industries, stating, “[t]he public interest supports imposing a duty of care upon [the general contractor] for Plaintiff’s benefit. We have held the ‘public policy of this State … favors the general contractor as the single repository for the safety of all employees of a job.’” (Joel Rivera v. PNL Jersey Properties LLC, et. al.)
The awarding of a $163.5 million contract to design and build a school in Passaic was upheld by the Appellate Division in an unpublished decision earlier this month. The 2nd highest bidder attempted to have the bid rejected for failure to comply with the bid specifications of the New Jersey Schools Development Authority. Specifically, there was a requirement that the technical proposal be submitted in PDF form in addition to the multiple hard copies that were required. While a PDF was submitted by the lowest bidder, the PDF was incomplete and missing an organizational chart and some subcontractor forms. However, the missing items were included with the hard copies that were submitted simultaneously with the bid. Consequently, both the authority itself and the court agreed that such failure was insufficient to overturn the award to the lowest bidder, stating that while the electronic copy didn't fully match the paper submission, it was not a material defect. (Ernest Bock & Sons, Inc. v. New Jersey Schools Development Authority, et. al.)
The New Jersey Consumer Fraud Act ("CFA") protects homeowners from (among other things) unconscionable commercial practices of residential contractors, including those who threaten to file criminal charges if they are not paid. A recent Appellate Court decision involved a homeowner who withheld payment to an HVAC contractor who failed to repair an air conditioning system after three service calls. The contractor then proceeded to threaten the homeowner with the filing of criminal charges, and then (when payment wasn't made) actually filed charges for theft of services with the local police department. The charges were eventually dismissed by the municipal court, and the homeowner was ultimately successful on a CFA claim in Superior Court.
On appeal, the Appellate Division upheld the finding of a CFA violation but remanded the case back to the trial court to revisit the award of only $19,800 in attorney fees and costs. In doing so, the court noted the specific conduct of the contractor stating, "[the contractor] admitted that [it] has a history of instituting criminal actions as a means of collecting its unpaid invoices. This outrageous abuse of our criminal justice system is precisely the type of unconscionable commercial practice the CFA was designed to protect consumers from and deter unscrupulous commercial entities from engaging in." Accordingly, the matter was remanded to the trial court to revisit the amount of attorney fees and costs awarded. (Jeffrey S. Jacobs v. Mark Lindsay and Son Plumbing & Heating, Inc., et. al.)
A ten-year battle over a subcontractor lien claim was decided by the Appellate Division recently, and provided guidance regarding interpretation of the New Jersey Construction Lien Law ("CLL"). This case centered around a 100-unit residential development where the general contractor filed for bankruptcy, leaving its subcontractors unpaid. The subcontractor at issue in this lawsuit filed a lien claim in hopes of getting paid from the owner directly for its work performed in conjunction with the development. The lien was signed by the subcontractor's "Accounting and Information Systems Manager," and the issue before the court was whether or not this person was the appropriate signatory on the lien.
Prior to 2011, the CLL required that a lien claim be signed by a "duly authorized officer" of the company filing the lien. In 2011 the legislature revised the CLL and instead prescribed that a lien claim be signed by an “officer/member”, and included with the statute a revised lien claim form that indicated signature by, "the Secretary (or other officer/manager/agent) of the Corporation (partnership or limited liability company)”. In this matter, the Appellate Division held that this change in language was a new requirement that should be applied prospectively only, and was not a clarification of prior term of "duly authorized officer". Despite winning on this issue, the subcontractor ultimately failed to establish that its "Accounting and Information Systems Manager" was a duly authorized officer. The Court noted that: the subcontractor's Board of Directors did not identify the signer in any resolution, by-law provision, or other written document as a corporate officer; the subcontractor did not memorialize in writing that it authorized that person to execute lien claims; and on the subcontractor's requests for classification forms (which are needed for classification by the Division of Property and Management), the signatory was not identified as a corporate officer. As a result of having the wrong individual at the company sign the lien claim, the lien was dismissed and the subcontractor was left with no ability to recover the monies owed. (Diamond Beach LLC v. March Associates, Inc., et. al.)
In an unpublished decision that was issued today, the Appellate Division reversed a trial court's award of $50,832.17 to a stucco subcontractor and dismissed the subcontractor's claim for the unpaid contract balance with prejudice. The two-judge appellate panel did not disturb the trial court's finding that the general contractor did, in fact, breach its contract with the subcontractor. However, despite the breach of contract, the court reversed the Law Division judge and held that the subcontractor could not recover any damages whatsoever since the subcontractor failed to prove what portion of the monies owed constituted lost profit. The appellate panel stated that the trial court, "omitted, however, the second step: calculating 'the difference between the contract price and the cost of performance or production'." This ruling confirms that the burden of proving lost profits is on the party seeking damages, and evidence must be presented that is sufficient to enable the court to identify what portion of the monies due represent the subcontractor's profit. (Professional Stone, Stucco & Siding Applicators, Inc. v. JMOC Builders, Inc.)
Peter J. Vazquez, Jr.