SITE ENTERPRISES, INC. VS. NRG REMA, LLC (L-5651-14, MIDDLESEX COUNTY…

                                NOT FOR PUBLICATION WITHOUT THE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-1852-18T4

SITE ENTERPRISES, INC.,

          Plaintiff-Respondent,

v.

NRG REMA, LLC, and BTU
SOLUTIONS GROUP, INC.,

     Defendants-Appellants.
___________________________

                   Argued September 29, 2020 – Decided October 8, 2020

                   Before Judges Fasciale, Mayer, and Susswein.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Middlesex County, Docket No. L-5651-14.

                   Thomas J. O'Leary argued the cause for appellants
                   (Walsh, Pizzi, O'Reilly, Falanga, LLP, attorneys;
                   Thomas J. O'Leary, of counsel and on the briefs;
                   Katherine M. Romano, on the briefs).

                   Mitchell Malzberg argued the cause for respondent
                   (Mitchell J. Malzberg, LLC, attorneys; Mitchell
                   Malzberg and Jodelyn S. Malzberg, on the brief).

PER CURIAM
      This appeal pertains to an action for enforcement of a construction lien.

BTU Solutions Group, LLC (BTU), and NGR Rema LLC (NGR) (collectively

defendants) appeal from three written orders entered after a bench trial: an

August 16, 2018 "opinion and order" entering judgment to the lienholder,

plaintiff Site Enterprises, Inc. (SEI); a September 28, 2018 order determining

that SEI is entitled to attorney fees and costs under N.J.S.A. 2A:44A-15(b),

subject to a certification of services; and a November 21, 2018 order awarding

those fees and costs. Defendants also challenge a "verbal order" by the judge

denying their motion to bar SEI's expert, Robert Peña. Judge Arthur Bergman

conducted the bench trial, entered the orders, and rendered written and oral

opinions.

      A trial court's factual findings "are binding on appeal if they are supported

by 'adequate, substantial and credible evidence.'" Diamond Beach, LLC v.

March Assocs., Inc., 457 N.J. Super. 265, 281-82 (App. Div. 2018) (quoting

Rova Farms Resort, Inc. v. Inv'rs Ins. Co., 65 N.J. 474, 484 (1974)). "Deference

is especially appropriate 'when the evidence is largely testimonial and involves

questions of credibility.'" Cesare v. Cesare, 154 N.J. 394, 412 (1998) (quoting

In re Return of Weapons to J.W.D., 149 N.J. 108, 117 (1997)). See State v.

Locurto, 157 N.J. 463, 474 (1999) (explaining that credibility findings are "often

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                                        2
influenced by matters such as observations of the character and demeanor of

witnesses and common human experience that are not transmitted by the

record"). However, "[a] trial court's interpretation of the law and the legal

consequences that flow from established facts are not entitled to any special

deference" and warrant de novo review. Manalapan Realty, LP v. Twp. Comm.

of Manalapan, 140 N.J. 366, 378 (1995).

        Applying these well-settled standards and other applicable law, we affirm

SEI's final judgment of $491,379.42, the award of counsel fees and costs totaling

$80,188.26, and the judge's evidentiary rulings.

                                         I.

        Pertinent background information concerning the relationships between

the parties and the long history of this demolition project was explained in NRG

REMA LLC v. Creative Environmental Solutions Corp., 454 N.J. Super. 578

(App. Div.), certif. denied, 235 N.J. 111 (2018), a related appeal pertaining to

the value of the lien fund for SEI and another BTU subcontractor, Creative

Environmental Solutions Corporation. 1

        On April 5, 2012, NRG and Werner entered into a contract for demolition

of Units 1, 2, and 3 of the Werner Generating Station in South Amboy. Werner


1
    Creative Environmental Solutions Corporation is not a party in this appeal.
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                                         3
paid NRG $250,000 for title to the salvage materials that it anticipated

recovering during the demolition. Werner immediately received title to the

salvage that it valued at $13 million. Just four days after it executed the prime

contract with NRG, Werner subcontracted with BTU and "BTU stepped into

Werner's shoes to perform the prime contract" for the demolition. NRG REMA

LLC, 454 N.J. Super. at 584.

      "BTU initially projected that costs of roughly $4.5 million would generate

$13 million in salvage-related revenue." Ibid. However, "BTU overestimated

the amount of salvageable metal and equipment, and underestimated the cost of

recovery." Ibid. When Superstorm Sandy hit New Jersey in October 2012,

"[t]he site filled with salt water, destroying otherwise salvageable equipment,

dispersing asbestos throughout the site, and further complicating remediation."

Ibid. Several months later, on April 25, 2013, BTU subcontracted with SEI

"which agreed to perform demolition work after the storm in return for $3.7

million." Id. at 584-85.

      According to the contract between BTU and SEI, titled "General Services

Agreement," SEI "is in the business of providing Demolition, Asbestos

Remediation, HAZMAT removal and site cleanup." The parties each agreed to

designate a project manager to coordinate performance of the work, which was


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                                       4
to be completed in six months "under a fixed fee engagement" for $3.7 million,

as noted above. BTU designated Helio Guzman as project manager and SEI

designated Tom Rock. The scope of the work to be performed by SEI for

remediation and demolition of the power generating station is described in th e

Statement of Work attached to the contract.

      Schedule 2 of the Statement of Work lists SEI's responsibilities as follows:

(1) removal/disposal of universal waste from the building; (2) set up and

maintenance of silt fence around the property; (3) plating of canals for

demolition work/installation of steel plates for water intake inlets on West side;

(4) electrical work, including disconnecting power from the building; (5) power

panel for misting blowers to be maintained on site to contain airborne dust ; (6)

set up power in salvage process area; (7) provide power source for and relocation

of NRG cables and data lines; (8) provide additional power panel for work area;

(9) complete demolition of existing power plant; (10) demolition of oil tanks,

water tower, and small buildings around the plant; (11) demolition and

abatement labor, with all demolition laborers having asbestos licenses plus

asbestos and lead awareness training and proper personal protective equipment

(PPE); (12) separating metal and non-ferrous material for salvage; (13) cutting

of steel to fit into dump trailers; and (14) removal of all concrete, slabs, footing,


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                                         5
and foundations to grade. Pursuant to Schedule 2, SEI was also responsible for

the disposal costs of the first 1,000 tons of asbestos-containing material (ACM).

      In addition to the tasks specified in Schedule 2, Schedule 6 required SEI

to supply safety information and documentation to BTU. Schedule 7 required

SEI's project manager or site supervisor to attend various daily and weekly

meetings and to participate in project conference calls. While Section 5 of the

contract contained boilerplate language pertaining to the submission of invoices

to BTU "for services not compensated on a fixed price basis," Schedule 9 of the

Statement of Work made it clear that SEI was to be paid a lump sum of $3.7

million for "all work performed." The Statement of Work itself did not require

SEI to submit any invoices or timesheets to BTU.

      On August 29, 2014, SEI sued defendants for enforcement of a $450,000

construction lien pursuant to the CLL. The complaint also asserted breach of

contract and account stated claims, not part of this appeal, that were dismissed

because the parties' contract required SEI to prosecute those claims in Texas.

Defendants filed a counterclaim to discharge SEI's lien, alleging that it was

untimely filed and willfully overstated in violation of the CLL. They also sought

attorney's fees and costs.




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                                       6
      On April 10, 2017, defendants filed a motion in limine to preclude SEI's

expert, Robert Peña, from testifying at the bench trial. Peña opined that SEI had

completed at least 15% of the required work, valued at $555,000, under its lump

sum contract with BTU before it demobilized from the project in December

2013. The judge denied defendants' motion in limine on the record without

entering a written order. It found that Peña was qualified to give an expert

opinion based upon over twenty years of experience with estimating and project

management for demolition projects, and that Peña's opinion was not a net

opinion because he provided the "why and wherefore" to support his conclusion.

The case proceeded to trial.

      The four-day bench trial was limited in scope to the timeliness of the lien

and whether its value was willfully overstated.2 SEI called four witnesses at

trial: (1) James DiNatale, owner of SEI; (2) Helio Guzman, BTU project


2
   The parties stipulated that the amount of the lien fund as determined by the
Appellate Division in NRG REMA LLC v. Creative Environmental Solutions
Corp., 454 N.J. Super. 578 (App. Div.), certif. denied, 235 N.J. 111 (2018), a
related case tried in 2013, was sufficient to satisfy SEI's lien claim. See L & W
Supply Corp. v. DeSilva, 429 N.J. Super. 179, 184 (App. Div. 2012) (explaining
that the CLL "limits the lien to the amount available in the 'lien fund,' which
'shall not exceed the unpaid portion of the contract price of the claimant's
contract for the work, services, material or equipment provided'") (quoting
N.J.S.A. 2A:44A-9(a)).



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                                       7
manager; (3) Tom Rock, SEI project manager; and (4) Robert Peña, expert in

demolition cost analysis.    Defendants called three witnesses: (1) Nicholas

Kemper, Consolidated Asset Management Services; (CAMS) project manager; 3

(2) Jared Rossi, Chief Financial Officer of BTU; and (3) Barry Brower, expert

in construction cost analysis.

       The judge issued his written findings of fact and conclusions of law,

concluding that SEI proved, by a preponderance of the evidence, that the lien

was timely filed. The judge further determined that SEI was entitled to judgment

in the amount of $450,000 plus prejudgment interest and costs. He then entered

judgment for SEI in the amount of $491,379.42, dismissed defendants'

counterclaim with prejudice, and awarded SEI $75,978 in attorney's fees and

$4,210.26 in costs under N.J.S.A. 2A:44A-15(b), for a total of $80,188.26.

                                      II.

       On appeal, defendants argue primarily the judge's factual findings were

unsupported by the credible evidence adduced at trial. They also contend that

the judge erred as a matter of law when he concluded the lien was timely filed.

Defendants assert that the judge abused his discretion by awarding counsel fees

and costs.


3
    Werner is a wholly owned subsidiary of CAMS.
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                                       8
                                        III.

      Enacted in 1994, the CLL is a remedial statute that "replaced the

longstanding Mechanic's Lien Law in New Jersey, making it easier for

contractors, subcontractors and suppliers to place construction liens on property

in the amount of the work, services or material they have provided, and for

which they have not been paid." Thomas Grp., Inc. v. Wharton Senior Citizen

Hous., Inc., 163 N.J. 507, 509, 517 (2000). "Work" is statutorily defined as "any

activity, including, but not limited to, labor, performed in connection with the

improvement of real property." N.J.S.A. 2A:44A-2.

      N.J.S.A. 2A:44A-3 provides:

            that any contractor or subcontractor . . . who provides
            work, services, material or equipment pursuant to a
            contract shall be entitled to a lien for the value of the
            work or services performed, or materials or equipment
            furnished in accordance with the contract and based on
            the contract price.

            [Thomas Grp., 163 N.J. at 513.]

"The lien attaches to the interest of the owner in the real property." Ibid. (citing

N.J.S.A. 2A:44A-3). "The amount of a lien claim shall not exceed the unpaid

portion of the contract price of the claimant's contract for the work, services,

material or equipment provided." N.J.S.A. 2A:44A-9.



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                                         9
      The CLL requires claimants to file lien claims "within 90 days from the

last date of work, services, material or equipment provided for which payment

is claimed."    Thomas Grp., 163 N.J. at 513 (citing N.J.S.A. 2A:44A-6).

Enforcement actions must be initiated in Superior Court "within one year from

the date the last work was provided" or the lien will be discharged. Id. at 514

(citing N.J.S.A. 2A:44A-14(a)(1)). If a lien claim is untimely or "willfully

overstated . . . the claimant shall forfeit all claimed lien rights and rights to file

subsequent lien claims to the extent of the face amount claimed in the lien

claim." N.J.S.A. 2A:44A-15(a).

      Additionally, the CLL contains a fee-shifting provision.               N.J.S.A.

2A:44A-15(a) provides that if the lien claim is untimely or willfully overstat ed,

the claimant "shall . . . be liable for all court costs, and reasonable legal

expenses, including, but not limited to, attorneys' fees, incurred by the owner"

in defending the lien claim. Conversely, N.J.S.A. 2A:44A-15(b) provides:

             If a defense to a lien claim is without basis, the party
             maintaining the defense shall be liable for all court
             costs, and reasonable legal expenses, including, but not
             limited to, attorneys' fees, incurred by any of the parties
             adversely affected by the defense to the lien claim. The
             court shall, in addition, enter judgment against the party
             maintaining this defense for damages to any of the
             parties adversely affected thereby.



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                                         10
For purposes of this analysis, "without basis" is defined as "frivolous, false,

unsupported by a contract, or made with malice or bad faith or for any improper

purpose." N.J.S.A. 2A:44A-15(d).

                                       IV.

      We begin by addressing defendants' contention that the judge's findings

are unsupported by the record. Defendants contend that evidence does not

support the judge's findings that SEI completed at least 15 percent of the work

contemplated under the contract and that the value of the work was $450,000.

Contrary to these assertions, there is ample support in the record for the judge's

findings of fact.

           A. Whether SEI completed at least 15 percent of the work

      Defendants attack Peña's testimony, which the judge found to be credible,

on the basis that he was unqualified to testify as an expert under N.J.R.E. 702

and because his opinion was a net opinion. Here, the judge addressed these

arguments when he denied defendants' motion in limine to exclude Peña's

testimony.    He did so by applying applicable law and by not abusing his

discretion.

      A trial court's decision to admit or exclude expert testimony in a civil case

is reviewed under "a pure abuse of discretion standard." In re Accutane Litig.,


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                                       11
234 N.J. 340, 391-92 (2018) (citing Townsend v. Pierre, 221 N.J. 36, 52-53

(2015)). "Accordingly, the trial court's decision here should not be disturbed on

appeal unless the decision was 'made without a rational explication, inexplicably

departed from established practices, or rested on an impermissible basis.'"

Estate of Kotsovska v. Liebman, 221 N.J. 568, 588 (2015) (quoting Flagg v.

Essex Cty. Prosecutor, 171 N.J. 561, 571 (2002)).

      "New Jersey Rules of Evidence 702 and 703 control the admission of

expert testimony." In re Accutane, 234 N.J. at 348. Pursuant to N.J.R.E. 702,

"[i]f scientific, technical, or other specialized knowledge will assist the trier of

fact to understand the evidence or to determine a fact in issue, a witness qualified

as an expert by knowledge, skill, experience, training, or education may testify

thereto in the form of an opinion or otherwise." Ibid. (quoting N.J.R.E. 703).

"N.J.R.E. 703 addresses the foundation for expert testimony." Townsend, 221

N.J. at 53. Expert opinions must be grounded in "facts or data derived from (1)

the expert's personal observations, or (2) evidence admitted at the trial, or (3)

data relied upon by the expert which is not necessarily admissible in evidence

but which is the type of data normally relied upon by experts." Ibid. (quoting

Polzo v. Cty. of Essex, 196 N.J. 569, 583 (2008)).




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                                        12
      "The net opinion rule is a 'corollary of [N.J.R.E. 703] . . . which forbids

the admission into evidence of an expert's conclusions that are not supported by

factual evidence or other data.'" Id. at 53-54 (alterations in original) (quoting

Polzo, 196 N.J. at 583). In other words, the expert must "'give the why and

wherefore' that supports the opinion, 'rather than a mere conclusion.'" Id. at 54

(quoting Borough of Saddle River v. 66 E. Allendale, LLC, 216 N.J. 115, 144

(2013)). "Evidential support for an expert opinion is not limited to treatises or

any type of documentary support, but may include what the witness has learned

from personal experience." Rosenberg v. Tavorath, 352 N.J. Super. 385, 403

(App. Div. 2002).

      The record supports the judge's finding that Peña possessed ample

knowledge, experience, training and education to testify as an expert in the field

of demolition cost analysis.     Peña has worked exclusively for demolition

companies as an estimator/project manager for almost twenty-five years. He has

a bachelor's degree in civil engineering technology, and his undergraduate

coursework included estimation classes. He testified at length about his work

on numerous large demolition projects and his experience estimating percentage

completion while the jobs are underway.




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                                       13
      Contrary to defendants' contention, the fact that Peña had never been

asked to determine "the percentage completion of a contractor's work after a

contractor abandoned a Project prior to completing its work," where no schedule

of values existed in the contract, does not mean he was unqualified to do so here.

His extensive experience in the demolition industry is just as relevant to the

unique facts at issue here.    Moreover, defendants' reliance on Goldman v.

Shapiro, 16 N.J. Super. 324 (App. Div. 1951), and Zulla Steel, Inc. v. A & M

Gregos, Inc., 174 N.J. Super. 124 (App. Div. 1980), both decided before the

CLL was enacted, is misplaced. Neither case involved a construction lien claim

and neither case addressed the admissibility of expert testimony.

      And Peña's opinion on the percentage completion of SEI's work did not

amount to a net opinion. As the judge found, Peña explained the basis for his

opinion and expressed that it was firmly grounded in his experience as an

estimator in the area of demolition and his familiarity with the job site. He

reviewed, among other documents, the contract between SEI and BTU in

evidence, and deposition testimony from DiNatale about the work SEI had

completed. He explained the methodology he used to arrive at his conclusion

that SEI had completed 15 percent of the work. Specifically, he reviewed the




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total scope of work as defined by the contract and compared it to the actual work

that SEI completed between April 2013 and December 2013.

      Defendants further claim that Peña "failed to offer any objective basis

justifying his decision to assign 5 [percent] of the SEI/BTU contract value to

mobilization." However, Peña testified that, in his experience, mobilization

costs for demolition contracts are typically billed at the beginning of the project,

with the exact number negotiated between contractor and owner, and that they

could be valued as low as 3 percent or as high as 10 percent. He explained that

mobilization includes moving equipment to the site, submitting plans, paying

permit fees, buying materials, addressing soil erosion, and hiring electricians,

among other tasks. His experience in the field provided a sound basis for his

opinion. Rosenberg, 352 N.J. Super. at 403. See State v. Townsend, 186 N.J.

473, 495 (2006) (holding that an expert's "education, training, and most

importantly, her experience, provided a sound foundation for her opinion" which

was "not a net opinion").

      In addition, we reject defendants' assertion that Peña's opinion is

inadmissible because he did not consider SEI's actual costs.          "An expert's

proposed testimony should not be excluded merely 'because it fails to account

for some particular condition or fact which the adversary considers relevant.'"


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                                        15
Townsend, 221 N.J. at 54 (quoting Creanga v. Jardal, 185 N.J. 345, 360 (2005)).

Peña testified repeatedly that he did not find SEI's actual costs to be relevant to

a percentage completion analysis for a lump sum contract, and the court

ultimately agreed. "The expert's failure 'to give weight to a factor thought

important by an adverse party does not reduce his testimony to an inadmissible

net opinion if he otherwise offers sufficient reasons which logically support his

opinion.'" Ibid. (quoting Rosenberg, 352 N.J. Super. at 402).

      Because Peña was qualified to testify as an expert in demolition cost

analysis and offered sufficient reasons to support his findings and conclusions,

his opinion was not a net opinion and the court did not abuse its discretio n by

allowing him to testify.   Moreover, the court's finding that SEI completed at

least 15 percent of the work is further supported by the credible testimony of

DiNatale, Rock, and Guzman about their firsthand observations of the work that

SEI completed, as well as Guzman's daily project status reports which state that

SEI completed 16 percent of the work under the contract as of December 2013.

The court's credibility determinations are entitled to deference on appeal.

Cesare, 154 N.J. at 412.




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                                       16
                  B. Whether the lien amount was overstated

      There exists support in the record for the judge's finding that the value of

the work performed by SEI was $450,000. Defendants criticize Guzman's daily

reports, upon which the court relied, as "inaccurate," of "little probative worth,"

and "not conclusive with respect to any claim by SEI against BTU" even though

Guzman     was     BTU's     project   manager     for   the    Werner     project.

There are multiple problems with these assertions.

      First, defendants claim that Guzman failed to testify about the

methodology he used to determine percentage completion when he authored the

daily reports.   However, this contention is belied by the record.        Guzman

credibly testified that, as project manager, he personally monitored and observed

SEI on site each day and often discussed the day's tasks with SEI representatives.

He explained that he discussed the percentage completion figures with Carroll,

the project manager for CAMS, and that they looked at each task completed to

arrive at the percentages. We defer to the judge's finding that Guzman testified

credibly. See Cesare, 154 N.J. at 412.

      Second, defendants claim that Guzman's percentage completion figures

were inaccurate because, as of May 15, 2013, he determined that SEI had

completed 16 percent of the work, valued at $592,000, but "SEI issued an


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                                       17
invoice in the amount of $150,000 for work performed through May 24, 2013 ."

The judge found, however, that the invoices were not particularly relevant to the

lien claim or the percentage completion of work by SEI because the parties' lump

sum contract did not require SEI to maintain cost records.

         As the factfinder in this case, the judge was permitted to assign greater

evidentiary weight to Guzman's daily project status reports and related

testimony and less weight to the invoices. See Brill v. Guardian Life Ins. Co.

of Am., 142 N.J. 520, 536 (1995) (discussing the "weighing that a factfinder

(judge or jury) engages in when assessing the preponderance or credibility of

evidence"). Moreover, DiNatale credibly testified that the invoices were only

issued pursuant to Carroll's request, and the fact that SEI sought $150,000 from

BTU in May 2013 is consistent with DiNatale's credible testimony that he had

negotiated a $150,000 payment with BTU for mobilization costs in May 2013.

Furthermore, Guzman testified that he did not make monetary valuations of each

task.     In short, Guzman's percentage completion calculations need not be

reconciled with the invoices as his calculations have nothing to do with SEI's

costs.

         Third, defendants claim that Guzman's assessment of percentage

completion cannot be reconciled with BTU's records pertaining to scrap material


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                                        18
removed from the site between April 2013 and December 2013.            But Peña

credibly testified that the amount of scrap material removed from the site while

SEI was working is a poor indicator of the work completed because many of

SEI's contractual tasks, including asbestos abatement, site maintenance,

demolition of smaller structures, and attendance at meetings, did not generate

any salvageable scrap material. Because there is little to no correlation between

the amount of scrap material removed and the tasks that SEI completed,

defendants' data pertaining to the amount of scrap removed from the site does

not contradict or undermine Guzman's assessment of percentage completion.

      Contrary to defendants' assertions, Guzman's daily project status reports

and his testimony thereto constituted adequate, substantial, credible evidence

that supported the court's finding that the value of the work SEI performed was

$450,000. Other credible evidence also supported the court's finding, including

testimony from DiNatale and Rock about the tasks SEI performed through

December 2013 and Peña's expert opinion that SEI completed 15 percent of the

work under the contract as of December 2013. Notably, 15 percent of $3.7

million is $555,000, and SEI sought only $450,000 in its lien claim.

      We reject defendants' argument that SEI's lien was "willfully overstated"

pursuant to N.J.S.A. 2A:44A-15(a). "[A] willful overstatement connotes an


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                                      19
intent to recover that to which the claimant knows he is not entitled; in other

words, a claim made in bad faith." Legge Indus. v. Joseph Kushner Hebrew

Acad./JKHA, 333 N.J. Super. 537, 561 (App. Div. 2000). Defendants failed to

present any evidence of bad faith and SEI's lien claim is supported by both the

trial testimony and the documents in evidence. Cf. Patock Constr. Co. v. GVK

Enters., LLC, 372 N.J. Super. 380, 388 (App. Div. 2004) (holding that lien was

willfully overstated where the amount of the lien was neither supported by

witness testimony nor trial exhibits). Defendants' discussion of Zulla Steel and

Goldman is once again inapt because both were decided before the CLL and do

not involve construction lien claims.

      Lastly, defendants contend that the only competent evidence of the value

of the work performed by SEI is Brower's expert opinion that the reasonable

value of the work was $169,000—despite the fact that the court rejected

Brower's opinion in its entirety. As the trier of fact in a non-jury trial, the trial

judge is empowered "to accept or reject, in whole or in part, the testimony of

one expert over that of another." Maudsley v. State, 357 N.J. Super. 560, 586

(App. Div. 2003). See also LaBracio Family P'Ship v. 1239 Roosevelt Ave.,

Inc., 340 N.J. Super. 155, 165 (App. Div. 2001) (indicating that "the weight to

be given to the evidence of experts is within the competence of the fact-finder").


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                                        20
      Here, the judge acted well within his authority when he considered and

soundly rejected Brower's opinion because he used a cost analysis that was "not

relevant to the contract at hand" and had not "performed an analysis of the

responsibilities of SEI pursuant to the contract." Moreover, its determination

that SEI's costs are not relevant to the amount of the lien is supported by the

CLL's plain language which states that the claimant "shall be entitled to a lien

for the value of the work or services performed, or materials or equipment

furnished in accordance with the contract and based upon the contract price[.]"

N.J.S.A. 2A:44A-3.

                                      V.

      Defendants contend incorrectly that SEI's lien was untimely filed and

therefore invalid under N.J.S.A. 2A:44A-15(a). The judge concluded that SEI's

lien, filed on December 26, 2013, was timely. Specifically, the court found that

it was "undisputed" that SEI's work "began in April, 2013 and continued until

demobilization occurred in December, thus making the lien filing timely ." But

defendants argue there is no evidential support in the record for these

conclusions.

      The CLL requires claimants to file lien claims "within 90 days from the

last date of work, services, material or equipment provided for which payment


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                                      21
is claimed." Thomas Grp., 163 N.J. at 513 (citing N.J.S.A. 2A:44A-6(a)).

"Work" is broadly defined under the CLL as "any activity, including, but not

limited to, labor, performed in connection with the improvement of real

property." N.J.S.A. 2A:44A-2.

      Defendants once again rely on the invoices that SEI prepared for Carroll

and assert that because SEI did not issue any invoices for labor after July 24,

2013, it neither completed nor sought payment for any work beyond that date

and thus the lien was untimely filed. This contention is belied by the credible

testimony of DiNatale, Rock, Guzman, and Peña, who each testified that SEI's

work on the project continued through December 2013. That work included

canal plating, as shown in a photograph dated September 30, 2013; 4 cable tray

work; ongoing daily asbestos-related maintenance activities; maintenance of the

silt fence to address soil erosion; participating in project meetings and phone

calls concerning, among other topics, Guzman's daily project status reports and



4
  Contrary to defendants' assertion, the fact that SEI removed the canal plates
when it demobilized does not negate the fact their installation, which was
required under the contract to prevent ACM from entering the water, constituted
work under the CLL. Their reliance on a 1939 Missouri case, Tallman Co. v.
Villmer, 133 S.W.2d 1085, 1086 (Mo. Ct. App. 1939) is misplaced as Tallman,
involved a mechanic's lien claim for a hot water heater that was brought to a
premises and never installed. Tallman is factually distinguishable and not
controlling.
                                                                       A-1852-18T4
                                     22
EPA approval for the open demolition permit; and submission of safety-related

documentation to BTU. Additionally, DiNatale received project-related emails

in October and December 2013 that corroborate the testimony.

      The Statement of Work appended to the contract required SEI to complete

the activities as part of the project for demolition and abatement of the Werner

generating station, and they each qualify as work under the statute. The broad

definition of work codified at N.J.S.A. 2A:44A-2 is not limited to labor.

Moreover, the lack of invoices for August, September, October, and November

2013 does not undermine the credible witness testimony upon which the court

relied. DiNatale testified that Carroll had not requested invoices for August

through November 2013 and, as the court found, SEI was not required to send

BTU any invoices under the terms of the lump sum contract.

      Despite the lack of invoices, the record shows that SEI sought payment

for its work from BTU. DiNatale credibly testified that he asked Rossi for

$450,000 to begin demolition of the main power plant building in early

December 2013, before the lien was filed. DiNatale's testimony in this regard

was corroborated by Rossi's testimony and by text messages between the two.

Although SEI generated several invoices dated December 2013 that sought

$450,000, it is not known from the record whether any of those invoices were


                                                                        A-1852-18T4
                                      23
received by BTU prior to the filing of the lien. Nonetheless, neither the CLL

nor the parties' contract require invoices to be issued when seeking payment and

the testimony and text messages constituted adequate, substantial, credible

evidence to support the court's ruling.

      Defendants further claim that even assuming SEI maintained a presence

on site and performed asbestos-related housekeeping tasks in the Fall of 2013

"while the project was delayed," those tasks do not qualify as work under the

CLL—entitling SEI to a lien—and therefore the lien was untimely filed. This

somewhat     confusing   claim   appears       to   be   grounded   in   defendants'

characterization of SEI's lien claim as a delay damages claim. They assert that

because demolition of the main building was delayed, and because both the

prime contract between NRG and Werner and the subcontract between Werner

and BTU contained "no-damage-for-delay" clauses,5 SEI was not entitled to any

recovery for its asbestos-related housekeeping tasks done during the "delay and

disruption" of the project.




5
  Those clauses, which did not appear in SEI's contract with BTU, state that
"neither party shall be liable for any loss or damage for delay or for
nonperformance due to causes not reasonably within its control, including . . .
unusual or extraordinary delays in issuance of permits by Governmental
Authorities."
                                                                            A-1852-18T4
                                          24
      But this is an action for enforcement of a construction lien. Nothing in

the record supports defendants' characterization of SEI's lien claim as a claim

for delay damages, and SEI asserted no such claim in its complaint. As the judge

found, SEI never sought delay damages and the delayed portion of the job —

demolition of the main power plant building—was not part of SEI's lien claim.

Under the CLL, SEI sought to be paid for the work it completed between April

2013 and December 2013, which was a small percentage of the total work

contemplated under the contract. Even though demolition of the main power

plant building was delayed, the credible testimony and documents in evidence

support the court's conclusion that SEI continuously worked on other ancillary

aspects of the project through December 2013. The CLL entitles SEI to payment

for that work.

                                        VI.

      There is no basis to overturn the judge's award of counsel fees. "A trial

court's award of attorneys' fees generally is not disturbed unless there is a clear

abuse of discretion." Patock, 372 N.J. Super. at 390 (citing Packard-Bamberger

& Co. v. Collier, 167 N.J. 427, 444 (2001)). 6 Defendants erroneously contend


6
  SEI's construction lien was timely filed and not willfully overstated, therefore
we reject defendants' contention that they are entitled to attorney's fees and costs
under N.J.S.A. 2A:44A-15(a).
                                                                            A-1852-18T4
                                        25
that the judge erred by awarding attorney's fees and costs to SEI under N.J.S.A.

2A:44A-15(b).

      The judge found that "from the time [defendants] received notice that

Helio Guzman would appear as a witness at trial" to authenticate the daily

reports he authored, their defenses "were 'without basis' pursuant to N.J.S.A.

2A:44A-15(b)." Thus, the judge awarded reasonable fees and costs from the

time defendants were noticed that Guzman had been located and would testify

(February 22, 2017) in the amount of $80,188.26 which was 100 percent of what

SEI had requested in its detailed and itemized certification of services. The

judge rejected defendants' objections to SEI's certification of services and found

"both the amount of time spent and the rates reasonable per the applicable

RPCs."

      "[W]ithout basis" is defined as "frivolous, false, unsupported by a

contract, or made with malice or bad faith or for any improper purpose."

N.J.S.A. 2A:44A-15(d). Guzman worked for defendant BTU and his daily

reports coupled with his credible testimony established that: (1) SEI's work on

the project continued through December 2013 and (2) SEI had completed 16%

of the work contemplated under the contract, valued at $592,000 of the total

contract price of $3.7 million.       That said, SEI sought only $450,000.


                                                                          A-1852-18T4
                                       26
Nonetheless, defendants took the untenable position that the court should ignore

the testimony of and records kept by Guzman, who was physically present at the

project observing the work, in favor of the opinion of Brower and find that the

lien was both willfully overstated and untimely filed.

      Brower's insistence that SEI's costs were relevant to the amount of the lien

is inconsistent with the CLL's plain language which states that the claimant

"shall be entitled to a lien for the value of the work or services performed, or

materials or equipment furnished in accordance with the contract and based upon

the contract price[.]"   N.J.S.A. 2A:44A-3.     Consequently, SEI expended a

significant amount of money to litigate the matter due to defendants' frivolous

defenses that were unsupported by the contract.              Given the unique

circumstances, it was reasonable for the court to conclude that defendants'

defenses were without basis and to award SEI attorney's fees and costs.

      Affirmed.




                                                                          A-1852-18T4
                                      27
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