E & V CONSTRUCTION CO INC v. DEEPER LIFE BIBLE CHURCH

NOT FOR PUBLICATION WITHOUT THE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-3256-16T2

E & V CONSTRUCTION CO.,
INC.,

        Plaintiff-Appellant,

v.

DEEPER LIFE BIBLE CHURCH,
DEEPER LIFE BIBLE CHURCH, INC.,
WILLIAM KUMUYI, AKANNI ONI,
VIOLET OBOH, SOJI FALAE, and
EZEKIEL KOREDE,

     Defendants-Respondents.
________________________________

DEEPER LIFE BIBLE CHURCH,
INC.,

        Third-Party Plaintiff/
        Respondent,

v.

ALIYU ABUBAKAR,

     Third-Party Defendant/
     Appellant.
_________________________________

ALIYU ABUBAKAR,

        Fourth-Party Plaintiff/
        Appellant,
v.

DEEPER LIFE BIBLE CHURCH,

     Fourth-Party Defendant/
     Respondent.
_________________________________

           Argued April 23, 2018 – Decided May 1, 2018

           Before Judges Fasciale, Sumners and Moynihan.

           On appeal from Superior Court of New Jersey,
           Law Division, Essex County, Docket No. L-7565-
           15.

           Sidney   Shaievitz  argued   the   cause   for
           appellants E & V Construction Co., Inc. and
           Aliyu   Abubakar   (Shaievitz    &   Berowitz,
           attorneys; Sidney Shaievitz, on the briefs).

           John J. Petriello argued the cause for
           respondents (Ehrlich, Petriello, Gudin &
           Plaza, attorneys; John J. Petriello, on the
           brief).


PER CURIAM

     E & V Construction Co., Inc. (E & V) appeals from an order

denying its cross-motion for leave to file a second amended

complaint; and E & V and Aliyu Abubakar appeal from an order

dismissing their claims.      We conclude that Deeper Life Bible

Church, Inc. (Church, Inc.), and the individual defendants –

members of Church, Inc. – had standing to file the motion to

dismiss.     The judge concluded correctly that E & V's failure to

reinstate its revoked corporate charter precluded E & V from filing

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this action, and that Abubakar – the president and shareholder of

E & V – had no legal basis to seek money damages.                           We therefore

affirm the orders.

         E & V, a construction contractor, filed this complaint against

Church, Inc., Deeper Life Bible Church (Bible Church), and the

individual defendants.              E & V alleged it contracted with Bible

Church to build a church building, it performed the work, and

Bible Church failed to pay the balance due.                     E & V sought final

payment       from   Bible    Church,      Church,     Inc.,    and    the    individual

defendants.

         Church, Inc. filed a counterclaim alleging E & V performed

the work negligently.              It filed a third-party complaint against

Abubakar alleging he was personally responsible for damages caused

by   E    &   V's    negligent         workmanship.      Abubakar          then   filed    a

counterclaim against Church, Inc., and he filed a fourth-party

complaint against Bible Church.

         In July 2005, E & V lost its corporate charter for failing

to file tax returns and prepare quarterly withholding reports.

Approximately        two     and   a    half   years    later    –    with    a   revoked

certificate of incorporation – E & V improperly entered into the

construction contract to build the church.                     Church, Inc. and the

individual       defendants        argued      the   revocation       of    the   charter

precluded E & V from operating its business.                         They filed their

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motion to dismiss the lawsuit, or in the alternative, to stay the

lawsuit pending reinstatement of the charter.     A different judge

stayed the case for thirty days to allow the reinstatement, which

never happened.   The failure to reinstate led to the entry of the

orders under review.

     On appeal, E & V and Abubakar argue that (1) Church, Inc.

lacked standing to file its counterclaim, third-party complaint,

and motions to dismiss; (2) Abubakar had a legal basis to seek

money damages; and (3) the individual defendants are responsible

for Bible Church's debt.1

     We conclude that the contention in the first point is without

sufficient merit to warrant extensive discussion in a written

opinion.   R. 2:11-3(e)(1)(E).   We add the following brief remarks.

Church, Inc., as a party to this lawsuit, has the right to assert

all reasonable defenses, including that the failure to reinstate

the corporate charter precluded E & V from engaging in its usual

business and prevented it from filing this lawsuit.     And even if

Church, Inc. was wrong in these contentions, which is not the




1
  In his reply brief, Abubakar contends he did not violate 
N.J.S.A.
54:52-16 (making it a fourth-degree crime to "knowingly operate[]
under a voided corporate charter"). Whether he committed a crime
is not for this court to determine and, as a result, we will not
address this contention.

                                  4                          A-3256-16T2
case, the individual defendants could make the motion as parties

to the lawsuit.

    Therefore, the judge correctly considered the question of

whether E & V had authority – as a corporation with a revoked

charter – to enter into the construction contract and then later

file this complaint.    The New Jersey State Treasurer has the

authority to revoke a certificate of incorporation under certain

circumstances.    
N.J.S.A. 14A:4-5(5) governs the revocation and

states in part that

         [i]n the event a domestic corporation fails
         to file an annual report for two consecutive
         years with the State Treasurer, then, . . .
         the State Treasurer may issue a proclamation
         declaring    that    the   certificate    of
         incorporation of the corporation has been
         revoked and that all powers conferred by law
         upon it shall thereafter be inoperative and
         void.

         [Emphasis added.]

The consequence of that revocation is severe, but the corporation

may seek reinstatement of the revocation upon

         (a) payment by the corporation of all fees due
         to the State Treasurer . . . ; and (b)
         certification of the Director of the Division
         of Taxation that no cause exists for
         revocation of the corporation's certificate of
         incorporation or certificate of authority.

         [N.J.S.A. 14A:4-5(7).]




                                5                         A-3256-16T2
As a result, the corporation may continue its powers and resume

its   business     so   long    as     it   complies    with   the   conditions       of

reinstatement.

      In response to the motion to dismiss, Abubakar certified that

he was "diligently working" to restore the corporate charter by

preparing "delinquent corporate income tax returns and quarterly

employer withholding reports," and that he was "working with [his]

accountant    to    prepare      and    file    the    missing   tax    returns     and

quarterly reports."            But E & V failed to comply with 
N.J.S.A.

14A:4-5(7).      So we agree with the judge that E & V was without the

legal basis to file this lawsuit until it reinstated its charter.2

Of course, reinstatement generally relates back to the date of the

revocation of the certificate of incorporation.                        Ibid.     It is

undisputed that the charter remains revoked.

      Understanding that E & V was unable to conduct business, it

sought leave to file a second amended complaint to designate

Abubakar "d/b/a E & V Construction Co., Inc." as a new plaintiff.


2
  We note that a dissolved corporate status – which did not happen
here – occurs if the Secretary of State revokes a certificate of
incorporation for nonpayment of taxes or for failure to file annual
reports. 
N.J.S.A. 14A:12-1(1)(g). New Jersey imposes substantial
restrictions on what a dissolved corporation can do.           "[A]
dissolved corporation shall continue its corporate existence but
shall carry on no business except for the purpose of winding up
its affairs . . . ." 
N.J.S.A. 14A:12-9(1). For argument's sake,
E & V did not wind up its affairs, but continued its business by
engaging in the construction contract.

                                            6                                  A-3256-16T2
In support of that motion, E & V's counsel certified that E & V's

certificate    of    incorporation         had       been     suspended    and     that

"reinstatement      proceedings      [of       the    corporate      charter     were]

pending."    He explained that E & V made the motion to "reconcile"

plaintiff's name with 
N.J.S.A. 14A:4-5(5).

     The construction contract identifies E & V as the contracting

party. Abubakar is not a party to the contract. So his contention

that he signed the contract in his individual capacity is without

merit.    Abubakar's recourse should have been to reinstate E & V's

corporate charter, rather than designate "Abubakar d/b/a E & V

Construction   Co.,    Inc."    as    a       new    plaintiff.       As   counsel's

certification implies, E & V filed its motion to assert a second

amended   complaint    in   response          to    Church,    Inc.'s     third-party

complaint   against    Abubakar.           The      sequence    of   the   pleadings

corroborates this fact:      E & V listed itself as a plaintiff in the

complaint, E & V remained the only plaintiff in the amended

complaint, and it was not until Church, Inc. filed its third-party

complaint that E & V sought to file the second amended complaint.

     Finally, E & V and Abubakar contend that the individual

defendants are liable because Bible Church, not Church, Inc.,

entered into the construction contract.                     They assert that the

individuals are personally liable because they are not members of

an incorporated entity.        Consequently, for the reasons previously

                                          7                                    A-3256-16T2
expressed regarding E & V and Abubakar's inability to recover

damages for the construction contract, we conclude that there is

no individual liability exposure.

    After conducting oral argument, and reviewing the record and

the briefs, we conclude that any remaining contentions by E & V

and Abubakar are without sufficient merit to warrant discussion

in a written opinion.   R. 2:11-3(e)(1)(E).

    Affirmed.




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