NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2475-12T4

 A-6202-12T3

ENVIROFINANCE GROUP, LLC,

Plaintiff-Appellant/

Cross-Respondent,

and

EARTHMARK NJ KANE MITIGATION, LLC,

Plaintiff, 

v.

ENVIRONMENTAL BARRIER COMPANY, LLC,

Defendant-Respondent/

Cross-Appellant.

______________________________________________

Argued October 22, 2014 - Decided 

Before Judges Lihotz, Espinosa and St. John.

On appeal from the Superior Court of New 

Jersey, Chancery Division, Bergen County, 

Docket No. C-111-11.

Cory Mitchell Gray argued the cause for 

appellant/cross-respondent (Greenberg 

Traurig, LLP, attorneys; Mr. Gray, Robert C. 

Epstein and Michael R. Glanzman, on the 

briefs).

Paul J. Halasz (Day Pitney, LLC) and Gary H. 

Nunes (Womble Carlyle Sandridge & Rice, LLP)

of the Virginia bar, admitted pro hac vice, 

argued the cause for respondent/crossappellant (Day Pitney, LLC and Mr. Nunes, 

APPROVED FOR PUBLICATION

April 14, 2015

APPELLATE DIVISION

April 14, 2015
2 A-2475-12T4

attorneys; Mr. Halasz, Mr. Nunes and Robert 

G. Rose, on the briefs).

The opinion of the court was delivered by 

LIHOTZ, J.A.D. 

In these appeals, calendared back-to-back and consolidated 

for purposes of our opinion, we examine several orders, which 

fix the rights of the parties. Plaintiff EnviroFinance Group, 

LLC (EFG) provided construction financing to plaintiff Earthmark 

NJ Kane Mitigation, LLC (Earthmark), the developer of an 

environmental mitigation project to be built on Bergen County 

wetlands owned by the Meadowlands Conservation Trust (MCT). The 

primary contractor of the project was defendant Environmental 

Barrier Company, LLC, d/b/a Geo-Con (Geo-Con). 

When Geo-Con was not paid for its work, it filed two 

construction liens against Earthmark's leasehold interest in the 

project. Earthmark and EFG filed this action against Geo-Con,

primarily to discharge the construction liens. The motion judge 

concluded Geo-Con's liens were properly asserted against the

private leasehold interest and assets of Earthmark, not against 

the public realty. Geo-Con requested default and later moved

for entry of final default judgment and to fix damages against 

Earthmark. EFG opposed the motion, asserting a final judgment 

against Earthmark would impair its collateral interest. 

Following a hearing, the judge disagreed and found EFG lacked 
3 A-2475-12T4

standing to oppose determination of claims between Geo-Con and 

Earthmark. A final judgment in favor of Geo-Con and against 

Earthmark was entered. A second order, filed over EFG's 

objection and without benefit of a testimonial hearing, required 

Earthmark's payment to Geo-Con of an award of counsel fees, 

costs and pre—judgment interest. The first appeal, filed by 

EFG, challenges these two orders (A-2475-12). This court 

declined to consider, but did not dismiss this appeal, pending 

the outcome of cross-motions for summary judgment. 

Reviewing the summary judgment record, the judge upheld 

Geo—Con's construction liens. He also determined EFG was liable 

for cure payments under the terms of its agreement with Geo-Con 

and assertions made in a February 2011 correspondence, but was 

not liable for additional cost overruns outlined in a September 

7, 2010 contract between Geo-Con and Earthmark, or otherwise 

responsible to pay claims for work performed, despite 

allegations of quantum meruit. The second matter regards crossappeals by EFG and Geo-Con from the summary judgment orders (A6202-12). 

Following our review, of the arguments presented, the 

record on appeal and the applicable law, we affirm. 

I.

MCT owns 587 acres of environmentally sensitive wetlands in 

the Richard P. Kane Natural Area located in Bergen County. 
4 A-2475-12T4

Earthmark was chosen as the successful bidder following the 

request for proposals to construct an environmental mitigation

bank on MCT's land. A mitigation bank is "a wetland, stream, or 

other aquatic resource area that has been restored, established, 

enhanced, or (in certain circumstances) preserved for the 

purpose of providing compensation for unavoidable impacts to 

aquatic resources permitted under . . . state or local wetland 

regulation."1 Mitigation banks employ a market-based approach to 

preservation, placing the implementation and success of a 

project on a third party in exchange for credits, which may be 

sold to future developers, whose ventures in the surrounding 

area may impact the protected environment. See 33 C.F.R.

§ 332.2. The proposed mitigation bank in the Richard P. Kane 

Natural Area was designed to allow transportation authorities, 

including New Jersey Transit, the Port Authority of New York/New 

Jersey, the New Jersey Department of Transportation and the New 

Jersey Turnpike Authority, to buy credits to offset wetlands 

disruption by prospective development in the Meadowlands region.

Effective January 22, 2009, MCT's Board of Directors 

entered into a ground lease with Earthmark to construct the 

project, at Earthmark's sole cost and expense, on a portion of 

 

1 Mitigation Banking Factsheet, United States Environmental 

Protection Agency, http://water.epa.gov/lawsregs/guidance/ 

wetlands/mitbanking.cfm (last updated Oct. 5, 2012). 
5 A-2475-12T4

MCT's land. As required by the ground lease and request for 

proposal, Earthmark, MCT, and the various federal and state 

agencies comprising the Meadowlands Interagency Mitigation 

Council, entered into the Richard P. Kane Natural Area 

Mitigation Bank – Mitigation Bank Instrument (the project). 

Earthmark contracted with Geo-Con to be the project's primary 

contractor (construction contract). 

The project was financed through a loan from EFG. 

Earthmark executed a $12 million "Secured Revolving Loan and 

Security Agreement" (the pledge agreement) on July 13, 2010. To 

secure repayment of the construction financing, Earthmark 

executed a "Pledge and Security Agreement" (the loan documents),

granting EFG collateral security, which included 100% ownership 

and membership interests in Earthmark, including its leasehold 

and proceeds from the sale of mitigation credits generated by 

the project. 

Geo-Con and EFG also entered into a Contractor Consent 

Agreement (CCA), which collaterally assigned the construction 

contract between Geo-Con and Earthmark to EFG. The agreement 

required Geo-Con to provide notice and a cure period to EFG, in 

the event Earthmark defaulted under the construction contract. 

Additionally, the CCA precluded amendment or modification of the 

initial Earthmark-Geo-Con construction contract, without EFG's 

prior written consent. 
6 A-2475-12T4

Geo-Con commenced construction on the project in April 

2010. Once EFG's financing was in place, monthly loan draw 

requests were submitted by Geo-Con, which certified the work

covered had been completed as required by the project documents. 

EFG asserts problems in implementing the initial construction 

plan arose, creating a need for additional excavating and 

grading work, which caused timetable setbacks and significant 

cost overruns. The nature and treatment of these issues were

delineated in a September 7, 2010 agreement between Earthmark 

and Geo-Con, amending the initial construction contract and 

adding more than $2 million of expense to complete the 

additional work. The amendment to the construction contract was 

not presented to or approved by EFG. 

Further, EFG alleged Geo-Con and Earthmark designed a 

separate payment schedule for this additional work, which was 

sought by, and disguised in, Geo-Con's draw requests to EFG.

When EFG learned of the separate agreement to address cost 

overruns, it declared Earthmark in default in a December 8, 2010 

letter. 

By January 2011, Geo-Con ceased work on the project because 

it was not being paid. Geo-Con notified EFG of Earthmark's 

failure to remit payment of its October and November invoices, 

and separately sent notice of its intent to stop work, unless 

EFG cured the default. EFG challenged the work stoppage,
7 A-2475-12T4

advising Geo-Con it was willing to remit cure payments upon 

receipt of certain documents required under the CCA. 

Specifically, EFG identified Geo-Con's need to submit 

engineering approval, and offered to meet to discuss the matter. 

Geo-Con provided the engineer's certification approving the 

October and November invoices. Also, Geo-Con rejected EFG's

position regarding the work stoppage, as well as its refusal to 

pay for the additional work, and accused EFG of bad faith. When 

EFG did not remit cure payments, Geo-Con recorded two 

construction liens in the Bergen County Clerk's Office against 

Earthmark's leasehold interest in the project, on March 28, 

2011. 

EFG and Earthmark initiated this action by filing a 

verified complaint and an order to show cause, principally 

seeking to discharge Geo-Con's construction liens. Further, EFG 

sought damages for Geo-Con's wrongful filing of the construction 

liens, which it argued violated the Construction Lien Law (CLL), 

N.J.S.A. 2A:44A-1 to -38, because the liens attempted to attach 

a public works project in violation of N.J.S.A. 2A:44A-15(a). 

The complaint also alleged breach of contract, asserting Geo-Con 

included sums in its liens pursuant to the concealed overrun 

modification agreement, which were neither approved nor due. 

Geo-Con counterclaimed, alleging Earthmark and EFG breached 

their respective contractual obligations. Geo-Con sought 
8 A-2475-12T4

quantum meruit payment from EFG, payment on an open book account 

against Earthmark, an equitable lien against the assets of 

Earthmark and EFG, and permission to foreclose the construction 

liens. 

On September 20, 2011, Judge Robert P. Contillo denied EFG 

and Earthmark's request to discharge the construction liens, 

finding the cited exception to the CLL inapplicable. Although 

the project was in the nature of a public works project as it 

would improve public property, the judge concluded the 

improvements were not "contracted for and awarded by a public 

entity," necessary elements for application of the exception. 

N.J.S.A. 2A:44A-5(b) (emphasis added). The judge determined the 

relationship from which the proposed liens arose between Geo-Con 

and Earthmark was a private one and did not involve a public 

entity. Therefore, the lien attached not to the public realty,

but to Earthmark's private interest in the ground lease. 

Partial summary judgment was later granted dismissing GeoCon's claim for an equitable lien on mitigation credits 

generated from the project that were pledged by Earthmark to 

EFG. Subsequently, counsel for Earthmark requested to be 

relieved, which was granted. Earthmark did not secure 

substituted counsel and ceased participation in the litigation. 

Thereafter, Earthmark entered into a Transition Agreement giving 

EFG control of the project. 
9 A-2475-12T4

In June 2011, EFG assigned all its interest, including the 

loan and its security interest in Earthmark and the project, to 

Kane Mitigation, LLC (Kane). Kane was owned entirely by EFG. 

In February 2012, Kane became the successor bank sponsor of the 

project under the authorizing documents with MCT.

Without opposition, Geo-Con moved to dismiss Earthmark's 

complaint and requested default on its counterclaims against 

Earthmark. Geo-Con later moved for entry of final default 

judgment against Earthmark, seeking damages of $5,505,328. EFG 

opposed that motion and requested "a proof hearing on the 

validity and amount of Geo-Con's claims against Earthmark." 

Geo-Con challenged EFG's standing to oppose its motion, to which 

EFG advanced it held a financial stake in the outcome and a 

judgment would "impair EFG's collateral" and security interest

under the pledge agreement. 

Following oral argument, Judge Contillo concluded EFG 

lacked standing to oppose Geo-Con's motion for entry of default 

judgment against Earthmark, finding EFG had almost two years to 

exercise its rights under the pledge agreement and failed to do 

so. Further, the judge determined Geo-Con's claims were 

advanced solely against Earthmark and did not alter EFG's

security interests under the loan and pledge agreements. 

Earthmark's complaint against Geo-Con was ordered dismissed with 

prejudice and final judgment was entered on behalf of Geo-Con 
10 A-2475-12T4

against Earthmark for $3,811,651, the sums approved for payment 

by the project engineer for work performed. The order was 

certified for execution purposes. See R. 4:42-1. 

Geo-Con moved for additional compensation in the form of 

attorney's fees, costs, and pre-judgment interest, pursuant to 

the Prompt Payment Act (PPA), N.J.S.A. 2A:30A-1 to 2. On March 

15, 2013, following oral argument, the judge granted Geo-Con an

additional judgment of $1,715,139, which he certified as final. 

EFG appealed (A-2475-12). In our October 2, 2013 order, we 

noted the matter was interlocutory and removed it from our

plenary calendar. However, we did not dismiss the appeal 

pending the outcome of cross-motions for summary judgment, which 

had been filed.

Following oral argument on the summary judgment motions, 

Judge Contillo issued a written opinion on July 8, 2013. The 

judge denied EFG's and granted Geo-Con's motion for breach of 

contract, awarding Geo-Con, its successors and assigns, 

$1,354,386.31, which represented agreed cure payments due from 

EFG under the CCA, following Earthmark's default. Although the 

judge found Geo-Con breached the CCA by entering into the 

September 7, 2010 modification agreement with Earthmark without 

notice to or consent from EFG, he found EFG's claim failed 

because it did not prove resultant damages, "a[n] essential 

component of a breach of contract claim."
11 A-2475-12T4

As to the remaining claims, the judge rejected a 

resubmitted challenge by EFG to discharge the construction liens 

and subsequent judgments, holding EFG lacked standing to 

challenge Geo-Con's claims against Earthmark. Geo-Con's 

allegations for quantum meruit and to establish an equitable 

lien against the mitigation credits were denied, as was its 

assertion EFG was responsible to satisfy cost overruns of more 

than $2 million. Finally, EFG's request to add Kane as a 

necessary party and include a claim for strict foreclosure was 

denied as untimely.

A final judgment memorializing these decisions was entered 

on July 12, 2013. The sheriff's sale of the leasehold interest 

was held on January 17, 2014.2 EFG filed a separate Law Division 

action against the project engineer and Geo-Con. As against the 

latter, EFG alleged general negligence, negligent 

misrepresentation, breach of contract, strict foreclosure, and 

violation of the construction lien law. The record suggests

that litigation is on-going. 

Cross-appeals were filed by EFG and Geo-Con from the 

summary judgment orders (A-6202-12). We calendared the two 

appeals back-to-back and now address all issues in one opinion.

 

2 The sheriff's deed is not included in the record. EFG's 

brief states Geo-Con was the successful bidder at sale; however, 

Geo-Con's brief states Kane was the successful bidder. 
12 A-2475-12T4

II.

In its initial appeal (A-2475-12), EFG argues the judge 

erroneously denied it standing to challenge Geo-Con's default 

judgment against Earthmark, emphasizing EFG held a priority 

security interest in 100% of Earthmark's membership3 in the 

project through the pledge agreement, essentially giving EFG the 

right to assume Earthmark's role in the project. EFG maintains 

this accords it a significant financial stake in any action 

affecting Earthmark's assets. EFG also challenges entry of 

default judgment against Earthmark, arguing a proof hearing was 

required prior to entry of any award of damages. In opposition, 

Geo-Con argues EFG's security interest does not confer standing 

to challenge Earthmark's obligations to its contractor.

In our review, we are obligated to defer to a judge's

factual determinations when supported by the evidential record. 

Brunson v. Affinity Fed. Credit Union, 199 N.J. 381, 397 (2009). 

However, we accord no special deference to a trial judge's 

"interpretation of the law and legal consequences that flow from 

established facts," Manalapan Realty, L.P. v. Twp. Comm. of 

Manalapan, 140 N.J. 366, 378 (1995), which we review de novo. 

Dep't of Envtl. Prot. v. Kafil, 395 N.J. Super. 597, 601 (App. 

Div. 2007). 

 

3 Earthmark, as an LLC, has membership interests, not stock.
13 A-2475-12T4

"[S]tanding is an element of justiciability that cannot be 

waived or conferred by consent." In re Adoption of Baby T, 160 

N.J. 332, 341 (1999). Rather, it is a threshold inquiry because 

"[a] lack of standing by a plaintiff precludes a court from 

entertaining any of the substantive issues for determination." 

Id. at 340. In short, the doctrine focuses on whether a party 

has a legal entitlement to seek relief from the court. Triffin 

v. Somerset Valley Bank, 343 N.J. Super. 73, 80 (App. Div. 

2001). Our Supreme Court has described the essential purposes 

of the doctrine, which seeks to

assure that the invocation and exercise of 

judicial power in a given case are 

appropriate. Further, the relationship of 

plaintiffs to the subject matter of the 

litigation and to other parties must be such 

to generate confidence in the ability of the 

judicial process to get to the truth of the 

matter and in the integrity and soundness of 

the final adjudication. Also, the standing 

doctrine serves to fulfill the paramount 

judicial responsibility of a court to seek 

just and expeditious determinations on the 

ultimate merits of deserving controversies. 

[N.J. Chamber of Commerce v. N.J. Election 

Law Enforcement Comm'n, 82 N.J. 57, 69 

(1980).]

In New Jersey, standing is governed by R. 4:26-1, which 

provides "[e]very action may be prosecuted in the name of a real 

party in interest . . . ." To have standing in a case, our 

Supreme Court has held "a party must present a sufficient stake 

in the outcome of the litigation, a real adverseness with 
14 A-2475-12T4

respect to the subject matter, and a substantial likelihood that 

the party will suffer harm in the event of an unfavorable 

decision." In re Camden Cnty., 170 N.J. 439, 449 (2002). 

New Jersey courts take a liberal view of standing. 

Generally, the threshold to prove a party's standing is "fairly 

low." Reaves v. Egg Harbor Twp., 277 N.J. Super. 360, 366 (App. 

Div. 1994). "A financial interest in the outcome ordinarily is 

sufficient to confer standing." Strulowitz v. Provident Life &

Cas. Ins. Co., 357 N.J. Super. 454, 459 (App. Div.) (citing In 

re Camden Cnty., supra, 170 N.J. at 448), certif. denied, 177 

N.J. 220 (2003). "But standing is not automatic, and a litigant 

usually has no standing to assert the rights of a third party." 

Bondi v. Citigroup, Inc., 423 N.J. Super. 377, 436 (App. Div. 

2011) (citation and internal quotation marks omitted), certif. 

denied, 210 N.J. 478 (2012). 

EFG argues the necessity to preserve its security interest 

satisfies these standards. In financing the project, EFG 

obtained a significant security interest in Earthmark and its 

interest in the project. In a November 13, 2012 letter opinion,

the court acknowledged:

The terms and conditions of the 

construction financing provided by EFG to 

Earthmark are set forth in a Secured 

Revolving Loan and Security Agreement dated 

as of July 13, 2010. Pursuant to the 

agreements, Earthmark granted [EFG] a

security interest in its leasehold interest 
15 A-2475-12T4

under the Lease, and in the proceeds from 

the sale of all credits originally issued 

under the Mitigation Banking Instrument 

("MBI") and the proceeds of all future 

credits to be issued under the terms of the 

MBI, which provides for the Project to 

generate 69.98 mitigation credits for the 

tidal portion of the Project. 

A condition of the loan included Earthmark's pledge of 100% of 

its membership interest, which 

include[ed] without limitation, all of 

[Earthmark's] rights, powers, and remedies 

under the Operating Agreement, and the 

certificates representing such Pledged 

Interests, if any;

(b) any additional shares of Stock, or 

other right, title or interest in

[Earthmark] from time to time acquired by 

[Earthmark] in any manner (which shares 

shall be deemed to be part of [Earthmark's]

Pledged Interests), and any certificates 

representing such Stock;

. . . .

(h) [Earthmark's] rights with respect to 

any property or asset of [Earthmark]

. . . .

(q) any and all other rights, claims, 

property interests, or other interests of 

any kind that [Earthmark] may have from time 

to time with respect to or against 

[Earthmark], and any other or greater 

interest that [Earthmark] may have from time 

to time in, to or with respect to 

[Earthmark.]

Notably, this litigation was commenced jointly by EFG and 

Earthmark, showing the alignment of the two entities' interests. 
16 A-2475-12T4

Although Earthmark's current status or viability is not certain, 

its disclosed financial difficulties prevented it from fully 

participating in the litigation, including challenging Geo-Con's 

asserted damages claims. EFG argues standing should be granted,

otherwise Geo-Con is effectively insulated from substantive 

challenge to its damage award and the resulting judgment 

encumbers the value of the project. See e.g., Assocs. 

Commercial Corp. v. Langston, 236 N.J. Super. 236, 242 (App. 

Div.) (allowing the defendant standing to challenge a lien on 

her house discovered after she sold it, despite the fact that 

escrowed proceeds would have been given to the plaintiff), 

certif. denied, 118 N.J. 225 (1989).

EFG fails to cite any authority supporting its position for 

standing that squarely addresses a relationship matching the one 

presented in this litigation. EFG is a party-plaintiff in the 

litigation and its interest in the project was financially 

intertwined with Earthmark through the pledge agreement and 

security interest in all of Earthmark's assets, including the 

project. EFG suggests its interest in the ground lease gives it 

the right to challenge any attaching lien. This is incorrect, 

because at all times EFG's interest was that of a secured 

creditor. Although EFG could have exercised control rights over 

the ground lease by exercising the provisions of the pledge 

agreement, it chose not to do so. 
17 A-2475-12T4

EFG's merits brief also offers only general assertions

supporting its claim of standing, some of which were not 

presented to the trial judge. These challenges offer little 

more than unsupported contentions of financial harm and fail to 

demonstrate an adverse interest to Geo-Con's claims to payment 

for services performed under the contract, approved by the 

project engineer, for which payment was not made. 

In its brief under A-6202-12, EFG states the lien was 

inflated by $2.1 million, a consequence of work performed under 

the unauthorized modification agreement, and contends if it were

given standing it would have defeated the claim as invalid and 

unenforceable. No evidence supports such an assertion. As 

noted, EFG declined to exercise its rights under the pledge 

agreement to essentially step into Earthmark's shoes and advance

whatever defenses Earthmark may have to the demanded payment. 

Likely, EFG chose to avoid this role as it is two-edged: not 

only would EFG have the right to control the project and 

Earthmark's assets, but also it would be saddled with the 

corresponding responsibility to address incurred liabilities, 

including the debt due to Geo-Con for services rendered. In 

limiting its role to that of a secured lender for the project, 

we cannot agree EFG held a stake in any dispute between 

Earthmark and its vendors. See Stubaus v. Whitman, 339 N.J. 

Super. 38, 51 (App. Div. 2001) (finding a plaintiff must 
18 A-2475-12T4

demonstrate harm from a direct injury), certif. denied, 171 N.J.

442 (2002). 

We reject EFG's claim the trial judge erred by denying it 

standing to challenge Geo-Con's judgement against Earthmark. 

Having essentially made this same analysis, Judge Contillo 

entered a default judgment for unpaid, approved invoices 

totaling $3,811,651, concluding these sums were adequately 

proven as due from Earthmark. An additional award for 

attorney's fees, litigation costs, and pre-judgment interest was

deemed subject to proofs. During the hearing, EFG participated 

and made its position known. Following review, these amounts 

were found to be obligations owed to Geo-Con by Earthmark. 

On appeal of that order, EFG argues the entitlement to 

legal fees is overstated and fees should have been limited to 

count three of Geo-Con's complaint.

4 We disagree. 

Rule 4:43-2(b) grants a trial court the discretion to

require proof of the quantum of damages as well as entitlement 

to relief, prior to entry of default judgment. Douglas v. 

Harris, 35 N.J. 270, 276 (1961). Factual findings must 

establish the entitlement to relief. See Curtis v. Finneran, 83 

 

4 Geo-Con's claim was based on the PPA, which provides in 

pertinent part: "In any civil action brought to collect payments 

pursuant to this section, the action shall be conducted inside 

of this State and the prevailing party shall be awarded 

reasonable costs and attorney fees." N.J.S.A. 2A:30A-2(f).
19 A-2475-12T4

N.J. 563, 569, (1980) ("In a non[-]jury civil action, the role 

of the trial court at the conclusion of a motion a trial is to 

find the facts and state conclusions of law.") (citing R. 1:7-

4). 

When addressing statutorily authorized fee awards for 

"separate claims in a complaint [which] share a common core of 

facts with . . . or are based on related legal theories, the 

trial judge, when awarding fees, must focus on the significance 

of the overall relief obtained by [the] plaintiff in relation to 

the hours reasonably expended." Silva v. Autos of Amboy, Inc., 

267 N.J. Super. 546, 551 (App. Div. 1993). Certainly, where a 

party presents "distinctly different claims for relief in one 

lawsuit, work on those unrelated claims cannot be deemed in 

pursuit of the ultimate result achieved." Stoney v. Maple Shade 

Twp., 426 N.J. Super. 297, 318 (App. Div. 2012) (citation and 

internal quotation marks omitted). "However, when the p[arty]'s 

claims for relief 'involve a common core of facts or will be 

based on related legal theories,' such a suit cannot be viewed 

as a series of discrete claims." Silva, supra, 267 N.J. Super.

at 556 (quoting Hensley v. Eckerhart, 461 U.S. 424, 435, 103 S. 

Ct. 1933, 1940, 76 L. Ed. 2d 40, 51 (1983)). 

We note, the methodology utilized in addressing a request 

for statutorily authorized fees must consider the relief 

obtained, the justification of the fees asserted, see Litton 
20 A-2475-12T4

Indus., Inc. v. IMO Indus., Inc., 200 N.J. 372, 386 (2009), and 

the reasonableness of the amount sought, Rendine v. Pantzer, 141 

N.J. 292, 334-35 (1995). These principles are further guided by 

Rule 4:43-2(b) (addressing the appropriate amount of damages 

awarded) and R.P.C. 1.5 (assessing the reasonableness of counsel 

fees requested).

We have considered the written opinion by Judge Contillo

and conclude he did not mechanically allocate fees according to 

various claims, Silva, supra, 267 N.J. Super. at 551, but 

thoughtfully followed the above principles in making the fee 

award. The judge found the claims arose from a common core of 

facts and were based upon related legal theories, emphasized the 

complexity of the issues and the interrelation of the facts, and 

concluded the legal services rendered represented, "all 

legitimate, appropriate, core work that had to be done." 

Further, the judge analyzed the fee request against the criteria 

of R.P.C. 1.5. He characterized time entries as consistent with 

"commercial reasonableness," fairly stating tasks undertaken and 

time allocated to sufficiently apprise the court and the client 

on "what they're getting billed for."

"[A] reviewing court will disturb a trial court's award of 

counsel feels 'only on the rarest of occasions, and then only 

because of a clear abuse of discretion.'" Litton Indus., supra,
21 A-2475-12T4

200 N.J. at 386 (quoting Packard-Bamberger & Co. v. Collier, 167 

N.J. 427, 444 (2001)). We find no basis to intervene.

III.

A.

Notwithstanding entry of this judgment, the contractual 

dispute between Geo-Con and EFG was thereafter litigated. In 

the related appeal, EFG challenges the order for summary 

judgment, maintaining the judge erred in denying summary 

judgment against Geo-Con for its breach of the CCA by its 

unauthorized modification to perform extra work. EFG also 

challenges the awarded judgment to Geo-Con for cure payments as 

unsupported by the record and contradictory to the judge's prior 

findings. We are not persuaded. 

EFG was afforded the opportunity to prove its claims. The 

judge agreed Geo-Con breached a material term of the CCA, when 

it executed the September 7, 2010 side-agreement with Earthmark 

and failed to provide notice to EFG of the overruns. However, 

EFG offered no argument or proof it sustained damages by this

breach. When specifically asked by Judge Contillo at oral 

argument whether damages resulted, counsel's response was "no." 

To prevail on a breach of contract claim, a party must 

prove a valid contract between the parties, the opposing party's 

failure to perform a defined obligation under the contract, and 

the breach caused the claimant to sustained damages. Murphy v. 
22 A-2475-12T4

Implicito, 392 N.J. Super. 245, 265 (App. Div. 2007). EFG's 

assertion that mere proof of the breach deprives Geo-Con of any 

payment is legally unsupportable. See Lone v. Brown, 199 N.J. 

Super. 420, 425 (App. Div.) (holding summary judgment on a 

breach of contract claim was appropriate because grievant could 

not assert damages), appeal dismissed, 103 N.J. 480 (1986).

EFG, for the first time on appeal, now lists, as resultant 

damages, all expenses incurred in the litigation, as well as the 

loss of the ground lease at sheriff's sale and the possible 

inability to exercise its unencumbered security interest. The 

costs of litigation are insufficient to support damage elements 

of a claim. See Satellite Gateway Commc'ns, Inc. v. Musi Dining 

Car Co., 110 N.J. 280, 284-85 (1988) (holding attorney's fees 

incurred to prosecute breach of contract claim insufficient to 

satisfy resultant damages). The other suggested damages were 

not presented to the trial court. We reject EFG's late attempt 

to justify its position, noting 

[i]t is a well-settled principle that our 

appellate courts will decline to consider 

questions or issues not properly presented 

to the trial court when an opportunity for 

such a presentation is available unless the 

questions so raised on appeal go to the 

jurisdiction of the trial court or concern 

matters of great public interest.

[Nieder v. Royal Indem. Ins. Co., 62 N.J.

229, 234 (1973) (citation and internal 

quotation marks omitted).] 

 
23 A-2475-12T4

Finally, EFG received notice of and chose not to 

participate in the sheriff's sale, and there is no evidence its 

overall security interest will be impaired. Thus, these 

contentions are unproven and not tied to the asserted breach of 

contract. 

Regarding the related challenge to the judge's finding EFG 

elected to provide cure payments, we recite the relevant terms 

of parties' agreement. The CCA defines the rights and 

responsibilities in the event of Earthmark's default, as 

follows:

1. . . . Contractor [Geo-Con] hereby 

agrees that if an event of default has 

occurred under the Loan Agreement . . . and 

such default is not cured within any 

applicable grace or cure period . . . and if 

Lender [EFG] has given written notice from 

Lender to Contractor of such default, then 

Lender shall have the right, at Lender's 

option, either to terminate the Contract 

with respect to the Property . . . or to 

require that Contractor perform its 

obligations under the Contract for the 

benefit of the Lender.

. . . . 

2. . . . Contractor agrees to not 

enter into any amendment or modification of 

the Contract without the prior written 

consent of Lender. 

3. Contractor agrees to give prompt 

written notice to Lender of any default or 

breach by Borrower of any of its obligations 

under the Contract, and that, prior to 

Contractor exercising any of its rights or 

remedies under the Contract, Lender shall 
24 A-2475-12T4

have an opportunity to remedy or cure such 

breach for a period of thirty (30) days 

after receipt of notice thereof . . . . 

We disagree with EFG's assertion that liability for cure 

payments must be preceded by and is linked to its assumption of 

the construction contract. There is nothing in the language of 

paragraphs one and three supporting an interpretation they are 

interdependent. In paragraph one, which addresses a remedy 

available to EFG in the event Earthmark defaults under the Loan 

Agreement, Geo-Con agrees to permit EFG to terminate the 

construction contract or essentially step into Earthmark's shoes 

and require Geo-Con to continue performance for EFG's sole 

benefit. Conversely, paragraph three addresses Earthmark's 

breach of the construction contract with Geo-Con and affords EFG 

the "opportunity to remedy or cure [Earthmark's] breach for a 

period of thirty (30) days after receipt of notice thereof." 

The plain language of these distinct provisions gives EFG a the 

right to keep construction on track by making cure payments, 

while it determines whether to exercise its right to step into 

the shoes of Earthmark and assume responsibility to complete 

the construction contract, which may be made after the thirtyday cure period. 

In its February 8, 2011 correspondence to Geo-Con, EFG 

stated it was ready to provide cure payments upon receipt of the 

engineer's certificate certifying payment, stating:
25 A-2475-12T4

Lender is prepared to cure certain of the 

payment defaults of the Borrower . . . . 

Unfortunately, Geo-Con has not presented all 

documentation required for payment under the 

Contract with respect to the amounts 

represented by the Cure Notices. Lender is 

willing to promptly make cure payments for 

the following amounts upon receipt of the 

engineer's certification executed by the 

engineer and required by the terms of the 

Contract[.]

This determination reflects an effort to keep the project 

on track, pending EFG's consideration of its options. Judge 

Contillo agreed with EFG, concluding it had no obligation to 

satisfy the deferred charges generated from the modification 

agreement. However, EFG, despite its assertions, never remitted 

payment for the two invoices identified as acceptable, even 

after it received the engineer's certification. 

EFG now suggests other documentation was mandated under the

CCA, which Geo-Con failed to provide. However, EFG did not 

detail what was missing to the trial judge. On appeal, EFG 

asserts Geo-Con should have delivered lien waivers and withdraw 

its work stoppage notice in writing. The fact is, no liens were 

filed at this stage of the dispute and payment was never made by 

EFG in exchange for discontinuing the work stoppage. 

EFG also renews its challenge to the validity of the 

construction liens, maintaining the judge's statutory 

interpretation of N.J.S.A. 2A:44A-5(b) was erroneous. The 

exemption to the CLL states: 
26 A-2475-12T4

No liens shall attach nor shall a lien 

claim be filed:

. . . . 

b. For public works or improvements 

to real property contracted for and awarded 

by a public entity; provided, however, that 

nothing herein shall affect any right or 

remedy established pursuant to the 

"municipal mechanic's lien law," N.J.S.[A.]

2A:44-125 et seq.

[N.J.S.A. 2A:44A-5(b).]

EFG reads this provision as exempting any public works 

project, arguing the provision for "improvements to real 

property" is not contingent upon a project being "contracted for 

and awarded by a public entity." We disagree substantially for 

the reasons set forth in Judge Contillo's September 20, 2011 

written opinion. R. 2:11-3(e)(1)(A).

Although the mitigation bank itself fit within the 

definition of a public works project, the joint public-private 

venture neither imposed nor required substitute surety 

assurances, i.e., protections of payment or performance bonds or 

other guarantees for the benefit of contractors or material 

suppliers working on public projects, supporting the argument 

the right to place a lien on the subject property was barred. 

See N.J.S.A. 2A:44-143(a)(1). This distinction was detailed in 

the trial judge's opinion, which we conclude correctly decided

this issue. R. 2:11-3(e)(1)(A).
27 A-2475-12T4

We also reject as lacking merit, EFG's challenge to the 

timeliness of the lien and to its propriety. R. 2:11-

3(e)(1)(E).

In the final issue raised, EFG argues the judgment was 

improperly entered against its successors and assigns. 

Plaintiff asserts Kane never participated in any of the trial 

court proceedings and cannot be held liable. We disagree.

Successor liability, which holds one entity accountable for 

another entity's debts, is an equitable doctrine that requires a 

case-by-case assessment. Baker v. Nat'l State Bank, 161 N.J.

220, 227-28 (1999). A successor entity will be held liable for 

the debts of its predecessor where it is a continuation of the 

same. Lefever v. K.P. Hovnanian Enter., 160 N.J. 307, 310 

(1999). In this matter, the facts show Kane is 100% owned by 

EFG and was created for the sole purpose of assuming and 

succeeding to EFG's rights with respect to the project. EFG's 

allegation its due process rights were violated because Kane was 

not a party to the litigation is legally unsupported.

B.

Geo-Con's cross-appeal challenges the trial judge's summary 

judgment dismissal of (1) its claim for quantum meruit against 

EFG, as set forth in the July 8, 2013 opinion, and (2) its 

assertion of an equitable lien on the mitigation credits 

received on the projected proceeds generated from their sale, as 
28 A-2475-12T4

set forth in the November 13, 2012 opinion. We have considered 

the arguments advanced on appeal, in light of the record and 

applicable law and reject Geo-Con's arguments substantially for 

the reasons set forth in the judge's thorough opinions. R.

2:11-3(e)(1)(A). We add these brief comments.

The equitable doctrine of quantum meruit allows "the 

performing party to recoup the reasonable value of services 

rendered." Weichert Co. Realtors v. Ryan, 128 N.J. 427, 438 

(1992). Recovery "rests on the equitable principle that a

person shall not be allowed to enrich himself unjustly at the

expense of another," id. at 437 (citation and internal quotation 

marks omitted), and requires proof of "(1) the performance of 

services in good faith, (2) the acceptance of the services by 

the person to whom they are rendered, (3) an expectation of 

compensation therefor, and (4) the reasonable value of the 

services." Starkey, Kelly, Blaney & White v. Estate of 

Nicolaysen, 172 N.J. 60, 68 (2002) (citations and internal 

quotation marks omitted). Geo-Con cannot meet this test.

Even if the requested compensation for services was 

reasonable, payment for the work performed under the sidemodification agreement was between Geo-Con and Earthmark. GeoCon ignored its obligation under the CCA to notify EFG. There 

was no expectation of payment from EFG or demonstrated proof EFG 
29 A-2475-12T4

accepted the work and corresponding obligation or actually 

received a benefit therefrom. 

We also reject Geo-Con's claim EFG was unjustly enriched. 

To demonstrate unjust enrichment, "a plaintiff must show both 

that defendant received a benefit and that retention of that 

benefit without payment would be unjust" and that the plaintiff 

"expected remuneration" and the failure to give remuneration 

unjustly enriched the defendant. VRG Corp. v. GKN Realty Corp., 

135 N.J. 539, 554 (1994). No evidence to support this position 

is found within the record. 

An equitable lien may lie when unjust enrichment or an 

express agreement to grant a lien against a specific property is 

shown. Id. at 546. Additionally, an equitable lien can be 

imposed, if based on the "the dictates of equity and conscience 

. . . a contract of reimbursement could be implied at law." 

Ibid. 

Here, no express or implied agreement was executed to grant 

a lien on the underlying realty and we find no basis to infer 

EFG agreed to provide payment for the overrun costs. Also, as 

noted, there is no evidence of unjust enrichment. The trial 

judge's written opinion thoroughly considered the law as applied 

to the facts presented on this issue. We find no flaw in his 

analysis. R. 2:11-3(e)(1)(A). 
30 A-2475-12T4

To the extent additional arguments had been raised but were 

not specifically addressed, they were found to lack sufficient 

merit to warrant extensive discussion in our opinion. R. 2:11-

3(e)(1)(E). 

Affirmed.