SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION DOCKET NO. A-2576- 22 CUSTOM RENOVATIONS, LLC, Plaintiff-Respondent,

v. HARVEY G, LLC, and CLAUDE and RYAN NE 1 GIROUX, Defendants-Appellants.

______________________________

Submitted September 20, 2023

– Decided October 2, 2023 Before Judges Currier and Firko. On appeal from an interlocutory order of the Superior Court of New Jersey, Law Division, Camden County, Docket No. L- 2691

- 22. Rogers Counsel, attorneys for appellants (Lance Rog ers and Brian T. Newman, on the briefs).

1 The initial complaint refers to this defendant as "R yanne" Giroux. The record also refers to this defendant as "Ryan" Giroux. We refer to this defendant as "Ryanne" in our opinion. NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court.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 parti es in the case and its use in other cases is limite d. R. 1:36- 3.2 A- 2576

- 22 Siciliano & Associates, LLC, attorneys for responde nt (Salvatore J. Siciliano and Jennifer McPeak, on the brief).
PER CURIAM By way of leave granted, defendants Claude and Rya n ne Giroux and Harvey G, LLC (collectively defendants) 2 appeal from a March 17, 2023 Law Divisi on order denying their motions to discharge a lis p endens and to impose sanctions against plaintiff Custom Renovations, LLC for the frivolous filing of the lis pendens. For the reasons that follow and b ased on the applicable principles of law, w e conclude the trial court misapprehended the law in denying defendants' motion to discharge the lis pendens, an d we reverse. We also remand for the trial court to consider anew defenda nts' motion for sanctions.
I. Plaintiff operates a construction and home renovat ion company. Plaintiff and the Giroux defendants entered a Contract for Bu ilding, Construction, or Repair (Contract) to perform home improvements on a Haddonfield home they resided in and owned by defendant Harvey G, LLC for a total contract amount

2 The record sometimes refers to Claude and Ryanne Gi roux as defendants and in other instances includes Harvey G, LLC, as a def endant as well. The merits brief is filed on behalf of "defendants" but does not specify them. Therefore, in our opinion, we co nstr ue defendants to include Claude and Ryanne Giroux a nd Harvey G, LL C.3 A- 2576

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of $200,000. The Giroux defendants requested addit ional renovation work and upgrades at a cost of $15,755.77. The Giroux defendants only paid $150,000 to plaintiff, claiming they were entitled to credits f or unfinished work and that they were "promised additional credits." On October 12, 2022, plaintiff filed a two-count c omplaint against defendants alleging breach of contract (count one), and breach of contract and fair dealing (count two). Plaintiff alleged it was owed approximately $56,000 from the Giroux defendants, after a credit and redu ction in price by $9,750. That same day, plaintiff also filed a notice of lis pend ens in the Camden County Clerk's Office against Harvey G, LLC, as the owner of the Haddonfield property , where the work was performed. The lis pendens was recorded on October 21,
2022

. The notice of lis pendens stated:

PLEASE TAKE NOTICE of the commencement and pendency of a suit in the Superior Court of New Jer sey, Law Division-Special Civil Part, 3 Camden County, captioned above in connection with all that tract o r parcel of land commonly known as 377 Kings Highway West, Borough of Haddonfield, County of Camden, State of New Jersey, legally described as follows: SEE Exhibit "A"

3 The complaint was filed in the Law Division, not th e Special Civil Part.4 A- 2576

- 22 The general object of said suit includes an action for breach of contract for professional services provid ed and seeks payment of outstanding legal fees owed to Plaintiff.The Complaint containing the claim in the aboveentitled action was filed in the Office of the Cler k of the Superior Court of New Jersey on May 20, 2021. On November 10, 2022, counsel for defendants sent plaintiff's counsel a letter stating the lis pendens was improperly filed because plaintiff's claim against the Giroux defendants was for money damages only and a demand was made that the lis pendens be discharged. Defense c ounsel's letter notified plaintiff the filing of the lis pendens was done wi th an "improper purpose"

— to "harass and/or cause a needless increase in litigat ion"

— in violation of N.J.S.A.5 A- 2576

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2A:15

- 59 4 and Rule 1:4 -8(b) 5 , the frivolous litigation rule. Plaintiff did not respond to the letter and did not discharge the lis pendens. Defendants moved to dismiss the complaint under Ru le 4:6 -2(e), for failure to state a cause of action for breach of co ntract due to plaintiff's failure to comply with the New Jersey Consumer Fraud Act (C FA), N.J.S.A. 56:8-1 to
-227. Plaintiff cross-moved seeking leave to file and ser ve a first amended

co mplaint adding a third count against Harvey G, LLC for unjust enrichment. Following oral argument on December 16, 2022, the t rial court dismissed counts one and two of the complaint as against Harvey G, L LC but denied the motion to dismiss the complaint as to the Giroux defendant s. The trial court also granted

4 N.J.S.A. 2A:15-59.1(a)(1) provides:

A party who prevails in a civil action, either as p laintiff or defendant, against any other party may be awarde d all reasonable litigation costs and reasonable atto rney fees, if the judge finds at any time during the proceedings or upon judgment that a complaint, counterclaim, cross-claim, or defense of the nonprevailing person was frivolous.

5 Rule 1:4 -8(b) provides for "Motions for Sanctions." In per tinent part, the Rule states, "[A]n application for sanctions under this rule shall be by motion . . ." and "will be made within a reasonable time . . . if the offending paper is not withdrawn within [twenty-eight] days of service of the written demand."6 A- 2576

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plaintiff's cross-motion for leave to file and serve a first amended complaint to add a third count against Harvey G, LLC for unjust enrichment (count three)

. On January 23, 2023, the Giroux defendants filed a n answer and counterclaim denying the allegations in the complai nt and stating the Haddonfield property was sold subsequent to the law suit being filed. They alleged they overpaid plaintiff and were entitled t o a refund because plaintiff "failed to perform several material portions of the job." The Giroux defendants alleged they had to "hire other contractors and pro fessionals to complete the job." In their counterclaim, the Giroux defendants averred plai ntiff wa s a home improvement contractor as defined by N.J.A.C. § 13: 45A-17.2, and it did not comply with provisions of the regulations pertainin g to home improvement contractors by failing to sign the Contract, failin g to memorialize amendments to the Contract in writing, failing to provide a co mpletion date for the work, a statement of guarantee or warranty for the labor an d materials used and other enumerated compliance failures under N.J.A.C. 13:4 5A-16.2. The Giroux defendants also alleged plaintiff violated the CFA a nd attempted to stop the sale of the property by filing a frivolous lis pendens. They alleged they owe no7 A- 2576

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additional monies to plaintiff, and the Contract sh ould be deemed invalid under the CFA. Harvey G, LLC sold the subject property to a third -party buyer. The title company escrowed $100,000 at the time of closing du e to the lis pendens. On February 1, 2023, the Giroux defendants filed a mot ion to discharge the lis pendens and for sanctions, which is the subject of the matter under review. On March 17, 2023, the trial court heard oral argum ent on the motions and rendered an oral decision that day. The trial court found "when you have a claim to renovations in the property, it's perfectly appr opriate to have a . . . notice of lis pendens . . . and to have a construction lien." The trial court noted the construction lien was "not file[d] properly" but "[ i]t doesn't matter" because plaintiff is "owed money . . . based on the renovat ions on this property." In conclusion, the trial court stated, "[t]here is a lien aga inst the property" and that "a lis pendens is absolutely appropriate under the circumstances." The trial court denied both motions

. We granted defendants' motion for leave to appeal. Before us, the following arguments are presente d:

(1) plaintiff's lis pendens is legally flawed and t he trial court erred in denying the motion to discharge the lis pendens; and8 A- 2576

- 22 (2) defendants' motion for sanctions should be remanded to the trial court because the lis pendens was frivolous. Having reviewed these contentions in light of the record and applicable legal principles, we conclude the trial court misap pre he nded the law in denying defendants' motion to discharge the lis pendens war ranting reversal. We also remand for the trial court to consider anew whether sanctions should be awarded

to defendants under Rule 1:4 -8 and N.J.S.A. 2A:15-59.1.
II. A lis pendens provides notice to a prospective pur chaser of a currently pending claim that could impact the real property. Gen. Elec. Credit Corp. v. Winnebago of N.J., Inc., 149 N.J. Super. 81, 85-86 (App. Div. 1977) (citations omitted). Defendants argue that the filing of the lis pendens was procedurally incorrect as plaintiff's first amended complaint sought only monetary damages, and no claim or right to the property's title. Def endants further contend plaintiff does not have a right in the subject property, and its right to file a mechanics or construction lien expired months ago. And, the Had donfield property is now owned by an unrelated third-party. N.J.S.A. 2A:15- 6 provides:

In every action, instituted in any court of this St ate having civil jurisdiction or in the United States Di strict Court for the District of New Jersey, the object of which is to enforce a lien upon real estate or to affect the title9 A- 2576

- 22 to real estate or a lien or encumbrance thereon, pl aintiff or his [or her] attorney shall, after the filing of the complaint, file in the office of the county clerk o r register of deeds and mortgages, as the case may be , of the county in which the affected real estate is sit uate, a written notice of the pendency of the action, which shall set forth the title and the general object thereof, with a description of the affected real estate. No notice of lis pendens shall be filed under this article in an action to recover a judgment for money or damages only. (Emphasis added.) It is undisputed the action solely seeks a judgmen t for monetary damages against the Giroux defendants individually and Harv ey G, LLC . If plaintiff prevails, it can obtain a monetary judgment against the Giroux defendant s for what they owe under the Contract and against Harvey G, LLC, if unjust enrichment is proven. The matter here does not in any way seek "to enforce a lien upon real estate or to affect the title to rea l estate or a lien or encumbrance thereon." N.J.S.A. 2A:15

- 6. Moreover, plaintiff does not claim an ownership interest in the property's title, and the statute p lainly disallows the filing of a lis pendens on this basis. We are satisfied that plaintiff is only seeking a monetary judgment against defendants

— in each of the three counts of its first amended co mplaint

— and that the trial court misapprehended the law in not disch arging the lis pendens.10 A- 2576

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N.J.S.A. 2A:15- 6 unequivocally states no notice of lis pendens shall be filed to recover a judgment for money or damages only. Ther efore, we reverse the order denying defendants' motion to discharge the lis pen dens an d remand for the trial court to enter an order discharging the lis pendens

. III. In light of our decision, we also reverse the tria l court's order denying sanctions and remand for the court to consider this aspect of defendants' motion
anew. N.J.S.A. 2A: 15 -59.1(a)(1) provides a prevailing party in a civil action, as plaintiff or defendant, may be awarded all reaso nable litigation costs and reasonable attorney fees if the judge finds a plead ing or defense of the nonprevailing person was frivolous. Subsection (b)(1) of the statute requires the judge to consider, in determining whether a pleadin g or defense was frivolous, if bad faith is shown, or the action was "solely fo r the purpose of harassment delay or malicious injury." Subsection (b)(2) requires the judge to analyze whether th e nonprevailing party "knew, or should have known," that the pleadi ng or defense "was without any reasonable basis in law or equity and could not b e supported by a good faith argument for an extension, modification or reversal of existing law." We offer no opinion as to the determination of the trial cou rt on this issue.11 A- 2576

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To the extent we have not specifically addressed a ny remaining arguments raised by defendants, we conclude they lack suffici ent merit to warrant discussion in a written opinion. R. 2:11 -3(e)(1)(E). Reversed and remanded for further proceedings cons istent with our opinion. We do not retain jurisdiction.