SANTANDER CONDOMINIUM ASSOCIATION, INC. VS. AA Â CONSTRUCTION 1 CORPORATION, ETC.(L-4818-14, MONMOUTH COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-0525-15T3
SANTANDER CONDOMINIUM
ASSOCIATION, INC.,
Plaintiff-Respondent,
v.
AA CONSTRUCTION 1 CORPORATION
d/b/a AA CONSTRUCTION COMPANY,
Defendant-Appellant,
and
AMERICAN RETAIL CONSTRUCTION,
LLC,
Defendant.
____________________________________
Argued September 26, 2017 – Decided October 13, 2017
Before Judges Reisner, Hoffman and Mayer.
On appeal from Superior Court of New Jersey,
Law Division, Monmouth County, Docket No. L-
4818-14.
Michael Confusione argued the cause for
appellant (Hegge & Confusione, LLC, attorneys;
Mr. Confusione, of counsel and on the brief).
Cheryl Siegel argued the cause for respondent
(Buckalew, Frizzell & Crevina, LLP, attorneys;
Jeffrey S. Mandel, on the brief).
PER CURIAM
Defendant AA Construction 1 Corporation d/b/a AA Construction
Company (AA) appeals from the March 6, 2015 order of the trial
judge discharging its construction lien against plaintiff
Santander Condominium Association, Inc. (Santander) and awarding
counsel fees to Santander. We affirm.
The facts giving rise to AA's construction lien claim are
undisputed. Santander hired American Retail Construction, LLC
(American Retail) to repair the façade of a condominium building
on its property located in Asbury Park. American Retail entered
into a subcontract with AA to perform the façade work.1 American
Retail failed to pay AA for its work.
On May 16, 2013, AA's contract with American Retail was
terminated. AA sent a "Demand for Statement Respecting Trust
Relating to Improvement" to Santander and American Retail
requesting the unpaid balance for its façade work. The document
was sent by certified mail to Santander's condominium property in
Asbury Park and the green card was signed by someone at the
1
AA did not produce a copy of its contract with American Retail
to verify that it was hired to perform the work and the amount to
be paid for the work.
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condominium property. Santander maintained that it did not receive
this notice.2
On January 23, 2014, AA filed a second document seeking the
unpaid balance for work performed. The second notice was mailed
to Santander at "400 Deal Lake Drive, Allenhurst, NJ 07711." 3
Santander claims that notices should have been mailed to its
registered agent in Howell, not the condominium property in Asbury
Park where the work was performed.
On or about March 21, 2014, AA filed a construction lien
against Santander's property. Santander claimed it did not receive
notice of the construction lien. AA's agent certified that notice
of the construction lien was sent to Santander by regular mail and
certified mail to the address in Asbury Park. The certified mail
letter was returned "unclaimed." There is no indication in the
record as to the status of the regular mail letter.
2
During oral argument, Santander's counsel indicated that any one
of the seventy plus condominium residents may have signed the
green card. However, the condominium residents lacked authority
to act on behalf of Santander, which is a separate legal corporate
entity.
3
The property where the façade work was performed, known as
Santander Condominium, is located at 400 Deal Lake Drive, Asbury
Park, New Jersey, 07712. The address for Santander Condominium
Association, Inc. is c/o Urban Building Evaluations, Inc., 1 Willow
Pond Drive, Howell, New Jersey, 07731. The Allenhurst address is
unconnected to any address related to this matter.
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By October 31, 2014, Santander had remitted payment for work
due to American Retail.4 Because it remitted payment in full to
American Retail, Santander demanded discharge of the lien. AA
declined to discharge the lien.
Santander filed a verified complaint and order to show cause
seeking discharge of AA's construction lien and attorneys' fees
and costs. In the complaint, Santander asserted that AA did not
effectuate proper service of the lien. At the show cause hearing,
Santander argued that AA's service of the lien claim was improper
because, pursuant to its contract with American Retail, all notices
were to be sent to Santander at a Howell address. Santander
further argued that a corporate search would have disclosed the
Howell address for Santander's registered agent. Instead, AA
mailed all notices to the residential condominium property in
Asbury Park where the work was performed. Santander asserted that
it did not receive mail or maintain an office at the Asbury Park
property.
AA responded that Santander had actual notice of AA's lien
claim, which fulfilled the notice requirement of the construction
lien statute. AA also maintained that it was not a party to the
written contract between Santander and American Retail, and
4
American Retail filed for bankruptcy in December 2014.
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therefore could not have known the address for service of notices
on Santander.
By order dated March 6, 2015, the motion judge determined
that AA did not effectuate service of the lien claim on Santander.
Thus, he discharged AA's lien claim against Santander and awarded
attorney's fees to be calculated by the court in a separate
application. Santander subsequently submitted a certification for
legal services. On August 17, 2015, the motion judge awarded
attorney's fees to Santander in the amount of $8,798.70.
This appeal involves interpretation of the requirements of
the Construction Lien Law, N.J.S.A. 2A:44A-1 to -38. Statutory
interpretations involve questions of law and are reviewed de novo
by appellate courts. McGovern v. Rutgers, 211 N.J. 94, 108 (2012).
"A trial court's interpretation of the law and the legal
consequences that flow from established facts are not entitled to
any special deference." Manalapan Realty, LP v. Twp. Comm. of
Twp. of Manalapan, 140 N.J. 366, 378 (1995). However, fact
findings by a judge are entitled to deference on appeal "when
supported by adequate, substantial and credible evidence" in the
record. Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65
N.J. 474, 484 (1974).
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The motion judge discharged AA's lien claim on the basis that
AA failed to properly serve Santander with its lien claim pursuant
to N.J.S.A. 2A:44A-7, which provides:
a. . . . Service shall be by personal service
as prescribed by the Rules of Court adopted
by the Supreme Court of New Jersey or by:
(1) simultaneous registered or certified mail
or commercial courier whose regular business
is delivery service; and
(2) ordinary mail addressed to the last known
business or residence address of the owner or
community association, contractor or
subcontractor. A lien claim served upon a
community association need not be served upon
individual "unit owners" as defined in section
3 of P.L. 1993, c. 318 (C.2A:44A-3).
b. The service of the lien claim provided for
in this section shall be a condition precedent
to enforcement of the lien; however, the
service of a lien claim outside the prescribed
time period shall not preclude enforceability
unless the party not timely served proves by
a preponderance of the evidence that the late
service has materially prejudiced its
position. Disbursement of funds by the owner,
community association, a contractor or a
subcontractor who has not been properly served
. . . shall constitute prima facie evidence
of material prejudice.
[N.J.S.A. 2A:44A-7.]
"When statutory language is clear and unambiguous, the court's
function is to enforce the statute as written, absent
any specific indication of legislative intent to the contrary."
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Gallo v. Sphere Constr. Corp., 293 N.J. Super. 558, 563 (App. Div.
1996)(emphasis omitted).
AA argued it complied with service of process requirements
under N.J.S.A. 2A:44A-7, which requires service of a lien claim
by personal service or by mailing to the "last known business or
residence address of the owner." As Santander is a corporation,
it has only a business address. The address of the condominium
property in Asbury Park was neither Santander's residential
address nor its business address.5 Because Santander did not
reside at 400 Deal Lake Drive, Asbury Park, New Jersey, service
of the lien claim purportedly made by AA to that address failed
to satisfy the statute's service requirements.
Further, N.J.S.A. 2A:44A-7(a)(1) and (2) require service of
the lien claim by certified and ordinary mail. The record
indicates that the lien claim sent to Santander by certified mail
at the condominium property was "unclaimed." Thus, the lien claim
sent by certified mail was not received by Santander. AA also
attempted service of the lien claim upon Santander by ordinary
mail addressed to the condominium property. However, the status
of the ordinary mail letter was not part of the record. Thus,
even assuming the Asbury Park address was correct for AA's service
5
Had AA done a corporate search, it would have found that
Santander's registered agent for service was located in Howell.
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of its lien claim on Santander, there is no evidence that either
the certified mail or the ordinary mail were received at the Asbury
Park address.
Additionally, Santander demonstrated it suffered "material
prejudice" in accordance with N.J.S.A. 2A:44A-7(b) because it
remitted payment for the façade work to American Retail. Pursuant
to the statute, disbursement of funds by an owner who has not been
properly served "shall constitute prima facie evidence of material
prejudice." Id.
Because the motion judge discharged AA's lien claim for lack
of proper service, he ordered an award of attorneys' fees and
costs to Santander. Pursuant to N.J.S.A. 2A:44A-30(e), "[a]ny
lien claimant who fails to discharge a lien claim of record
pursuant to this section shall be liable for all court costs, and
reasonable legal expenses." AA disputes the applicability of the
statute in this case.
The statute expressly provides that any party can file an
order to show cause to discharge a lien that has been filed
"without factual basis." N.J.S.A. 2A:44A-30(c). The motion judge
discharged the lien claim because AA failed to properly serve
Santander with the claim pursuant to N.J.S.A. 2A:44A-7. As a
result, AA is liable for Santander's court costs and reasonable
legal expenses. On appeal, AA did not contest the reasonableness
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of the legal fees awarded to Santander. AA merely challenged the
award of fees to Santander.
Affirmed.
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