PRIME TIME CONSTRUCTION, LLC VS. VIMCO INCORPORATED (L-2967-18, PASSAIC COUNTY AND STATEWIDE) ( 2020 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4881-18T4
PRIME TIME CONSTRUCTION,
LLC, FLORIO ENTERPRISES,
LIMITED LIABILITY COMPANY,
146-152 HAMILTON, LLC,
210-220 GOVERNOR, LLC and
169-183 16TH AVE, LLC,
Plaintiffs-Respondents,
v.
VIMCO, INCORPORATED,
Defendant-Appellant,
and
VIMCO, INCORPORATED,
Third-Party Plaintiff-
Appellant,
v.
MATTHEW FLORIO and
CHARLES FLORIO,
Third-Party Defendants-
Respondents,
and
VIMCO, INCORPORATED,
Third-Party Plaintiff,
v.
BUILD LOGISTICS,
INCORPORATED, STEVEN
RUNFOLO and FRED
MAGALHAES,
Third-Party Defendants.
_____________________________
Submitted October 5, 2020 – Decided December 23, 2020
Before Judges Sabatino and DeAlmeida.
On appeal from the Superior Court of New Jersey, Law
Division, Passaic County, Docket No. L-2967-18.
Obermayer Rebmann Maxwell & Hippel LLP,
attorneys for appellant (Maxwell A. Green and Joshua
B. Kaplan, on the briefs).
Richard S. Mazawey, attorney for respondents and
third-party defendants-respondents.
PER CURIAM
Defendant/third-party plaintiff Vimco Incorporated (Vimco) appeals from
the June 11, 2019 orders of the Law Division denying its motion for summary
judgment and granting summary judgment in favor of plaintiffs Prime Time
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Construction, LLC (Prime), 169-183 16th Ave, LLC (16th Ave), 146-152
Hamilton, LLC (Hamilton), and 210-220 Governor, LLC (Governor), and third-
party defendants Matthew Florio and Charles Florio. We affirm.
I.
The following facts are derived from the record. Prime was the general
contractor for three construction projects in Paterson. 16th Ave, Hamilton, and
Governor, are limited liability companies related to Prime that own the
properties on which the projects are constructed. The Florios are the principals
of Prime, 16th Ave, Hamilton, and Governor.
Prime entered into subcontractor agreements with Build Logistics, Inc.
(BL) to perform masonry and excavation work on the three projects. BL, in
turn, entered into a written contract with Vimco to provide materials for the
Hamilton and Governor projects. Two principals of BL signed a guarantee in
favor of Vimco for the cost of the materials to be supplied to BL. Neither Prime
nor any of its related entities ordered materials directly from Vimco or entered
into a contract with that entity.
Vimco provided BL with materials for the projects. Vimco alleges that
some of the materials were leased or subleased to BL and the remainder were
sold to BL as consumables. BL, in turn, invoiced Prime for the materials BL
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received from Vimco. Prime and its affiliated entities paid BL $478,569.93 on
the invoices. BL, however, failed to pay those funds to Vimco.
In October 2017, BL abandoned the three projects. On November 10,
2017, Prime terminated its contracts with BL.
On or about December 14, 2017, Vimco filed construction liens on the
Hamilton and Governor projects for amounts it believed were due for materials
it provided to BL. Prime thereafter filed two summary actions in the Chancery
Division to discharge the construction liens. Hamilton is named as a plaintiff in
one action; Governor is named as a plaintiff in the other. Vimco filed
counterclaims against Prime, Hamilton, and Governor, alleging conversion and
unjust enrichment.
The Chancery Division judge discharged Vimco's liens after concluding
Prime and its related entities paid BL for all materials provided by Vimco. The
court determined no contract existed between Prime or its related entities and
Vimco and that it would be inequitable for Prime to pay twice for the materials.
The court transferred Vimco's counterclaims to the Law Division. 1
1
In a separate action, Vimco obtained a default judgment against BL and its
principals in the amount of $30,238.72 on the Hamilton project and $158,019.16
on the Governor project for unpaid invoices.
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Approximately two weeks later, the parties conducted an inspection of the
Hamilton and Governor projects to look for materials that Vimco alleges it
rented to BL and should have been returned. According to Vimco, a Prime
representative said his company would pay for any Vimco materials or property
found on the project sites. Vimco representatives found no such materials or
property on the two projects. Prime consented to Vimco's request to inspect the
16th Ave project, as well as two other Prime projects, at 203-205 12th Avenue
and 207-217 12th Avenue, even though BL had not received materials from
Vimco for those projects.
Although Vimco admitted that its materials would not have a marking,
stencil, stamp, or label that would distinguish it from the materials of other
suppliers, it identified what it believed to be its materials at the projects. Vimco
recreated invoices and unsigned delivery tickets for the materials it alleges to
have discovered and attempted unsuccessfully to collect on those invoices from
Prime.2
2
Notably, after Prime terminated its contracts with BL, it hired Macchiavello
Construction (Macchiavello) as its subcontractor on the 16th Ave project.
Macchiavello obtained materials from Vimco for that project. Unlike BL,
Macchiavello fully paid for those materials from monies paid by Prime. Some
materials Macchiavello purchased from Vimco were on site at the 16th Ave
project during Vimco's February 28, 2018 inspection.
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Vimco thereafter filed construction liens on the 16th Ave project and 207-
212 12th Avenue projects based on the invoices it created after the site
inspection. Prime and 16th Ave filed a third summary action in the Chancery
Division to discharge those liens.3 Vimco filed counterclaims against Prime,
16th Ave, and the Florios, alleging conversion, unjust enrichment, and
violations of the New Jersey Prompt Pay Act, N.J.S.A. 2A:30A-1 to -2. Vimco
alleged the Florios were personally liable because they directly participated in
the torts of the entities in which they were principals.
The Chancery Division judge dismissed Vimco's liens, concluding it
produced no evidence that Prime was in possession of any Vimco materials for
which it had not paid BL or Macchiavello and that he was "satisfied that no
Vimco property or material [was] on the 16th and 12th Avenue projects" from
the BL era. The court found Vimco's evidence to be inaccurate and lacking in
credibility and that the invoices had inconsistent dates, predated the inspection,
and were identical to invoices issued to BL, which were paid by Prime. The
court transferred Vimco's counterclaims to the Law Division.
3
The third Chancery Division complaint also names Florio Enterprises, LLC
(FE) as a plaintiff. FE is related to Prime and involved in its construction
activities.
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The three matters in the Law Division were consolidated. After discovery,
the parties cross-moved for summary judgment.
On June 11, 2019, the trial court judge, who decided the Chancery
Division matters discharging Vimco's liens, issued an oral opinion concluding
there is no genuine issue of material fact that: (1) Prime and Vimco never
entered into a contractual relationship; (2) Prime paid BL for all materia ls BL
invoiced as having been received from Vimco before November 2017 when BL
abandoned the projects; (3) Vimco produced no evidence that materials leased
or subleased to BL were left at any of the project sites; (4) the Prompt Pay Act
is inapplicable to Vimco's claims because no contract existed between Prime and
Vimco; and (5) there is no basis on which to pierce the corporate veil to hold
the Florios personally liable for Vimco's claims because they did not participate
in a tort against Vimco. In reaching his decision, the judge incorporated his
findings of fact and conclusions of law in the Chancery Division matters.
This appeal followed. Vimco makes the following arguments.
POINT I
THE TRIAL COURT IMPROPERLY GRANTED
PRIME TIME'S MOTION FOR SUMMARY
JUDGMENT BASED SOLELY ON IMPERMISSIBLE
CREDIBILITY DETERMINATIONS.
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POINT II
THE TRIAL COURT'S ERRONEOUS CREDIBILITY
DETERMINATIONS CAUSED IT TO IGNORE
EVIDENCE PRESENTED BY VIMCO
ESTABLISHING GENUINE ISSUES OF MATERIAL
FACT, PRECLUDING SUMMARY JUDGMENT.
II.
We review the trial court's decision granting summary judgment de novo,
using "the same standard that governs trial courts in reviewing summary
judgment orders." Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super.
162, 167 (App. Div. 1998). Rule 4:46-2(c) provides that a court should grant
summary judgment when "the pleadings, depositions, answers to interrogatories
and admissions on file, together with the affidavits, if any, show that there is no
genuine issue as to any material fact challenged and that the moving party is
entitled to a judgment or order as a matter of law." "Thus, the movant must
show that there does not exist a 'genuine issue' as to a material fact and not
simply one 'of an insubstantial nature'; a non-movant will be unsuccessful
'merely by pointing to any fact in dispute.'" Prudential, 307 N.J. Super. at 167
(quotations omitted).
Self-serving assertions that are unsupported by evidence are insufficient
to create a genuine issue of material fact. Miller v. Bank of Am. Home Loan
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Servicing, L.P., 439 N.J. Super. 540, 551 (App. Div. 2015). "Competent
opposition requires 'competent evidential material' beyond mere 'speculation'
and 'fanciful arguments.'" Hoffman v. Asseenontv.Com, Inc., 404 N.J. Super.
415, 426 (App. Div. 2009) (citations omitted). We review the record "based on
our consideration of the evidence in the light most favorable to the parties
opposing summary judgment." Brill v. Guardian Life Ins. Co., 142 N.J. 520,
523 (1995).
We have carefully reviewed the record in light of these legal principles
and find no error in the trial court's summary judgment decisions. In the
Chancery Division proceedings, the court found that Prime paid BL in full for
every invoice it presented for materials BL bought from Vimco. Vimco
implicitly acknowledges the accuracy of these findings, given that it bases its
claims for payment from Prime not on unpaid invoices from BL, but on its
assertion that representatives of Prime agreed to pay Vimco for any Vimco
materials or property found on Prime's project sites during the February 28, 2018
inspection. The only plausible interpretation of such a promise, if made, is that
Prime agreed to pay for any Vimco materials in its possession for which it had
not already made payment to BL or Macchiavello, or which had been leased or
subleased to BL and should be returned, as Vimco claimed. If Prime was
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inclined to pay twice for the materials provided to BL it would not have
contested Vimco's liens. Vimco produced no evidence of unpaid invoices for
materials purchased by BL or Macchiavello. Nor did it produce any proof that
it leased or subleased property to BL.
The self-serving affidavits of Vimco employees that they saw Vimco's
property at the Prime projects is insufficient to create a genuine issue of material
fact, given that Vimco admits that its property is not marked, stenciled, labeled,
or otherwise identified as belonging to the company. Moreover, the trial court
found, with ample support in the record, that the invoices Vimco produced for
the materials it alleged were in Prime's possession were backdated, inconsistent,
and included misleading "sold to" dates suggesting Prime purchased materials
directly from Vimco. With respect to the materials Vimco alleged were leased
or subleased to BL, Vimco produced no documentary evidence of a leasing
agreement, and could not, in response to a question from the court, name the
entity from which it allegedly leased the material for sublease to BL.
In light of the court's determination that Vimco did not create a genuine
issue of fact with respect to Prime's possession of Vimco's materials or property
for which payment was not made or which were leased or subleased and should
be returned, the grant of summary judgment to Prime and its related entities on
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Vimco's tort claims was warranted. "Conversion is the wrongful exercise of
dominion and control over property owned by another inconsistent with the
owner's rights." Chicago Title Ins. Co. v. Ellis, 409 N.J. Super. 444, 454 (App.
Div. 2009); LaPlace v. Briere, 404 N.J. Super. 585, 595 (App. Div. 2009).
Because the trial court properly granted summary judgment to Prime and its
related entities on the conversion claim, there is no basis to impose individual
liability on the Florios as principals of those entities who participate in a tort.
Unjust enrichment, the basis for equitable relief, requires a showing that
a party received a benefit, the retention of which without payment, would be
unjust. Caputo v. Nice-Pak Prods., Inc., 300 N.J. Super. 498, 507 (App. Div.
1997). In the context of a contractual relationship, the party claiming unjust
enrichment must show that it expected remuneration from the other party at the
time that it conferred the benefit and that the failure of remuneration enriched
the other party beyond its contractual rights. VRG Corp. v. GKN Realty Corp.,
135 N.J. 539, 554 (1994). Here, no contract existed between Prime or its related
entities and Vimco. Prime's contract was with BL. It was through that contract
that Prime paid for all of the materials BL received from Vimco. While Vimco
has a justified expectation of payment from BL, it had no claim against Prime.
Prime was not unjustly enriched. It received the materials for which it paid.
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Finally, the trial court correctly concluded that the Prompt Pay Act does
not apply here. The statute applies to either a prime contractor in a contractual
relationship with a property owner, N.J.S.A. 2A:30A-2(a), or a subcontractor in
a contractual relationship with a prime contractor or subcontractor, N.J.S.A.
2A:30A-2(b). The first provision does not apply because Vimco is a sub-
subcontractor, not a prime contractor, and did not have a contractual relationship
with the property owners. The second provision does not apply because Vimco
did not have a contractual relationship with Prime, the general contractor, or its
related entities that own the properties. Its contract was with BL. If it had a
claim under the statute, it would have had to have been asserted against BL.
Affirmed.
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