Excel Envtl. Res., Inc. v. Pioli Props., LLC
| Decision Date | 21 February 2020 |
| Docket Number | DOCKET NO. A-2314-18T1 |
| Parties | EXCEL ENVIRONMENTAL RESOURCES, INC., Plaintiff-Respondent, v. PIOLI PROPERTIES, LLC, Defendant-Appellant. |
| Court | New Jersey Superior Court — Appellate Division |
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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.
Before Judges Yannotti, Hoffman and Firko.
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-0445-17.
Matthew Joonho Jeon argued the cause for appellant (Matthew Jeon, PC, attorneys; Matthew Joonho Jeon, on the briefs).
Ronald E. Steinvurzel argued the cause for respondent (Steinvurzel & Levy Law Group, attorneys; Ronald E. Steinvurzel, on the brief).
Following a bench trial, defendant Pioli Properties (Pioli) appeals from the Law Division judgment entered in favor of plaintiff Excel Environmental Resources for services performed under two vapor mitigation contracts. We affirm.
We derive the following facts from the trial record. Bristol Meyers Squib (BMS) allegedly caused a release of chlorinated solvents, which dissolved into ground water underneath Pioli's property located on Georges Road in New Brunswick (the property). According to an investigation report completed for BMS, the property required vapor mitigation.
As a result, on August 1, 2014, plaintiff and Pioli entered into a written contract (Contract # 1), whereby plaintiff agreed to design and install a vapor mitigation system for the property at a cost of $78,500.00. Plaintiff invoiced Pioli regularly from December 31, 2014 until June 30, 2016, billing Pioli a total of $79,940.47. Pioli did not pay the amount billed, claiming plaintiff had agreed to seek payment from BMS.
Under the terms and conditions of Contract # 1, plaintiff could "bill for the actual hours expended and costs incurred. . . ." and agreed to "not exceed this cost estimate without advance Authorization/Extension of Services or other acceptable documentation." The contract also stated, "The work outlined in this proposal willbe conducted in accordance with [plaintiff's] Standard Terms and Conditions and labor rates provided as Attachment A." Attachment A stated, in pertinent part:
This agreement between [plaintiff] and the client identified herein, consisting of a proposal and Standard Terms and Conditions, constitutes the entire understanding between the parties . . . [Plaintiff] hereby objects to any terms contained in any prior or subsequent purchase orders, work orders, invoices, acknowledgment forms, requests for proposals or other documents received from the [c]lient that would otherwise have the effect of modifying or abrogating these Standard Terms and Conditions in whole or in part.
In addition, Attachment A included a provision regarding changes to the contract:
[Plaintiff] shall be entitled to additional compensation for work in the event that [plaintiff] experiences any increases in costs due to changes in the scope of work defined in [plaintiff's] original proposal, or for additional work requested by client, or changes in the manner or method of performance of work, or due to changes in schedule or circumstances not solely caused by [plaintiff]. [Plaintiff] shall be compensated for all such additional work either (1) as previously agreed in writing by the parties; or (2) on a time and materials basis in accordance with [plaintiff's] then current standard commercial rates.
Attachment A also contained an estimated costs and schedule clause:
Costs and schedule estimates are based on [plaintiff's] best judgment of the requirements known at the time of the proposal and can be influenced favorably or adversely by[c]lient's needs and other circumstances. [Plaintiff] will endeavor to perform the [s]ervices and accomplish the objectives within the estimated costs and schedule, but in no event shall [plaintiff's] estimate be interpreted as a not-to-exceed or fixed price. . . . [Plaintiff] shall be entitled to a change order for additional compensation or additional time to perform its work, in the event that work outside the [s]ervices is requested or required to be performed by [plaintiff], or in the event that the assumptions underlying [plaintiff's] proposal prove to be different from the facts actually encountered by [plaintiff] during the performance of the [s]ervices.
On June 5, 2015, the parties entered into a second contract (Contract # 2), whereby plaintiff agreed to provide certain remedial investigation services on the property at a cost of $20,955. Contract # 2 stated "it is . . . an extension to [Contract # 1]." On January 19, 2016 and February 26, 2016, Pioli made two payments totaling $15,784.04 for work performed pursuant to Contract # 2.
On March 1, 2016, plaintiff agreed to perform additional services related to the remedial investigation work under Contract # 2, at an estimated cost of $27,383.00. On March 11, 2016, plaintiff agreed to perform certain supplemental services related to the remedial investigation work in Contract # 2, at an estimated cost of $5,206.25. Plaintiff performed all required services and billed Pioli $60,230.70.
On November 30, 2016, plaintiff placed a $124,387.13 construction lien on defendant's property, after Pioli failed to make any payments regardingContract # 1 or the remaining payments owed under Contract # 2. On January 20, 2017, plaintiff filed a complaint seeking a determination that it acquired a "good and valid" construction lien on defendant's property, the amount of its lien, and the entry of a judgment against Pioli for all amounts due and owing, plus interest, costs, and attorney's fees. Additionally, plaintiff's complaint also asserted a claim of unjust enrichment.
Pioli filed an answer and counterclaim, alleging plaintiff breached its contracts and "started charging inflated invoices and changed its initial representation stating that it requires additional work and expenses [and] . . . further proceeded with the work that exceeds the initial cost estimate without acquiring [its] authorization in advance." Pioli further asserted plaintiff failed to request advance authorization before completing additional work under Contract # 1, in accordance with the contract.
Regarding Contract # 2, Pioli asserted plaintiff did not produce any report, which led Pioli to hire JCS Environmental Consulting Inc. (JSC) to finish plaintiff's work. Pioli sought $27,750 as reimbursement for payments it made to complete plaintiff's work. Pioli's counterclaim further alleged plaintiff breached the "implied covenant of good faith and fair dealing."
On August 7, 2018, the matter proceeded to a bench trial. Eric Mertz, plaintiff's vice president and director of remediation services, testified first, recounting that he met with multiple Pioli principals prior to entering into Contract # 1. Mertz stated he did not advise any Pioli principal that BMS would pay plaintiff for the work on the property. He confirmed that, prior to the lawsuit, Pioli never claimed plaintiff did not finish a task or performed its work negligently or deficiently.
According to Mertz, he believed the contracts required him to obtain approval from Pioli to exceed the total budget but not to exceed individual task estimates, explaining it was general practice in the industry to shift the invoice costs for one task to another in order to keep the overall cost within budget. He stated,
Mi Y. Linn, a Pioli employee, testified that, during contract negotiations, she was under the impression BMS would pay all charges incurred on Contract # 1. She confirmed Contract # 2 had nothing to do with BMS.
The trial judge found plaintiff and Pioli entered into a valid contract, which included the extensions of the initial scope of work. She found Mertz's testimony credible and noted the testimony from Pioli's principals conceded that the work reflected in plaintiff's billing related to the scope of the work in Contract # 1.
The judge found it undisputed that Contracts # 1 and # 2 did not contain "any language that reflected BMS was obligated to pay [plaintiff] or that [plaintiff] would only be paid upon Pioli being paid by BMS." Further, the judge noted Pioli failed to present evidence that it sent BMS any of the bills it received from plaintiff nor did it dispute any invoices until plaintiff filed suit.
The judge awarded plaintiff the full amount of Contract # 1 totaling $78,500.00. After deducting Pioli's two payments toward Contract # 2, the judge found the remaining balance on Contract # 2 and its two extensions equaled$37,760.21. Therefore, the total amount owed on Contracts # 1 and # 2 totaled $116,261.21.
Additionally, the judge awarded plaintiff attorney's fees and contractual interest of eighteen percent for any unpaid balance and attorney's fees and costs relating to collection efforts. The contractual interest amounted to $71,276.64 and the attorney's fees amounted to $66,647.02. The judge entered an order for judgment in favor of plaintiff in the amount of $254,183.87.
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