RIVA POINTE AT LINCOLN HARBOR CONDOMINIUM ASSOCIATION, INC VS. TISHMAN CONSTRUCTION CORPORATION (L-4104-15, HUDSON COUNTY AND STATEWIDE)

• Court: New Jersey Superior Court Appellate Division
• Decided: June 15, 2020
• Docket: A-3568-18T2
• Status: Unpublished

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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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 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-3568-18T2

RIVA POINTE AT LINCOLN HARBOR CONDOMINIUM ASSOCIATION, INC., a New Jersey Non-Profit Corporation,

Plaintiff-Appellant,

v.

TISHMAN CONSTRUCTION CORPORATION, A Delaware Corporation, TISHMAN CONSTRUCTION CORPORATION OF NEW JERSEY, a New Jersey Corporation, NORTH EAST CONSTRUCTION, and PELLA WINDOWS AND DOORS, Commercial Division,

Defendants-Respondents,

and

EVANSTON INSURANCE COMPANY1 and SCOTTSDALE INSURANCE COMPANY,

1 Improperly pled herein as Essex Insurance Company. Defendants. ______________________________

TISHMAN CONSTRUCTION CORPORATION, a Delaware Corporation, TISHMAN CONSTRUCTION CORPORATION OF NEW JERSEY, a New Jersey Corporation,

Third-Party Plaintiff- Respondent,

BONLAND INDUSTRIES, INC., PFC INCORPORATED, NOVA CRETE, INC., MEADOWLANDS FIRE PROTECTION, NORTH EAST CONSTRUCTION, DEL SALVIO MASONRY CORPORATION, SLOAN & COMPANY, ON PAR CONTRACTING CORPORATION, PELLA WINDOWS & DOORS, Commercial Division, LUX HOMES, INC., and RIVA POINTE DEVELOPMENT, LLC,

Third-Party Defendants- Respondents,

KNS BUILDING RESTORATION,

Third-Party Defendant. ______________________________

A-3568-18T2 2 BONLAND INDUSTRIES, INC.,

Fourth-Party Plaintiff,

C-K AIR CONDITIONING, INC.,

Fourth-Party Defendant. ______________________________

Argued telephonically May 13, 2020 - Decided June 15, 2020

Before Judges Fuentes, Mayer and Enright.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-4104-15.

David J. Byrne argued the cause for appellant Riva Pointe at Lincoln Harbor Condominium Association, Inc. (Ansell Grimm & Aaron PC, attorneys; Breanne Marie De Raps and Mark M. Wiechnik, on the briefs).

Keith Robert Hemming argued the cause for respondents Tishman Construction Corporation and Tishman Construction Corporation of New Jersey (McElroy, Deutsch, Mulvaney & Carpenter, LLP, attorneys; Keith Robert Hemming, of counsel; Lisa K. Minichini, on the brief).

Harris B. Katz argued the cause for respondent North East Construction (Winget Spadafora & Schwartzberg, LLP, attorneys; Harris B. Katz, on the brief).

Mark Robert Scirocco argued the cause for respondents Lux Homes, Inc. and Pella Windows and Doors, Commercial Division (Law Offices of Robert A.

A-3568-18T2 3 Scirocco, PC, attorneys; Robert A. Spirocco and Mark Robert Scirocco, on the brief).

Brian Peoples argued the cause for respondent Sloan & Company (Leary, Bride, Mergner & Bongiovanni, PA, attorneys; Brian Peoples, on the brief).

Louis J. De Mille, Jr. argued the cause for respondent Bonland Industries, Inc. (Zirulnick, Sherlock & DeMille, attorneys; Louis J. De Mille, Jr., of counsel and on the brief).

Joshua Patrick Locke argued the cause for respondents C-K Air Conditioning, Inc. and Nova Crete, Inc. (Turner, O'Mara, Donnelly & Petrycki, PC, attorneys, join in the briefs of respondents Tishman Construction Corporation, Tishman Construction Corporation of New Jersey, North East Construction, Sloan & Company, Lux Homes, Inc., Pella Windows and Doors Commercial Division, and Bonland Industries, Inc.).

Eric Corey Weissman argued the cause for respondent Riva Pointe Development, LLC (Ropers Majeski Kohn & Bentley, attorneys, join in the briefs of respondents Tishman Construction Corporation, Tishman Construction Corporation of New Jersey, North East Construction, Sloan & Company, Lux Homes, Inc., Pella Windows and Doors Commercial Division, and Bonland Industries, Inc.).

PER CURIAM

Plaintiff Riva Pointe at Lincoln Harbor Condominium Association, Inc.

appeals from a March 11, 2019 order dismissing its complaint, as well as third-

party complaints and crossclaims. We affirm, substantially for the reasons set

A-3568-18T2 4 forth in Judge Anthony V. D'Elia's detailed and thoughtful oral opinion dated

March 8, 2019.

To give context to our decision, we refer to our related unpublished

opinion, Riva Pointe at Lincoln Harbor Condo. Ass'n v. Riva Pointe Dev., Ltd.

Liab. Co., No. A-1349-15 (App. Div. Feb. 27, 2018) (First Action) and highlight

the salient facts of the instant matter.

In October 2012, plaintiff commenced its First Action against a developer,

general contractor/project manager, architect, and other parties, alleging the

named parties were responsible for construction defects discovered during

"Phase III" of the Riva Pointe at Lincoln Harbor Condominium Project (Project).

Plaintiff alleged defective construction caused water infiltration into

condominium units and common areas, resulting in extensive damages.

After numerous extensions of the discovery deadline in the First Action,

plaintiff served a "preliminary" expert report, identifying the alleged negligence

of each defendant during the Project's construction. Plaintiff advised defense

counsel and the trial court that the preliminary expert report was its final expert

report. With that understanding, Judge Christine M. Vanek allowed plaintiff to

submit a supplemental expert report for the sole purpose of rebutting any defense

expert reports.

A-3568-18T2 5 Prior to trial on the First Action, plaintiff moved for another extension of

the discovery deadline, leave to file a sixth amended complaint, and

postponement of the trial date. Judge Vanek denied these requests. More than

a month after the court-ordered deadline, plaintiff served a supplemental expert

report, raising new issues, opinions and conclusions regarding the Project's

construction defects and increasing plaintiff's claimed damages by nearly $8

million. On September 25, 2015, Judge Vanek found plaintiff was time-barred

from amending its discovery responses to include an expert opinion on the

Project's "water-side damages" and she prohibited plaintiff from using any

opinions contained in its supplemental expert report which were not "necessary

to rebut the testimony of [d]efendant's experts."

On October 2, 2015, plaintiff filed a second complaint (Second Action)

against defendant Tishman Construction Corporation (Tishman), alleging

Tishman was responsible for construction defects on the Project referenced in

the First Action. Either by amended complaint, or third-party complaint filed

by Tishman, defendants North East Construction, Lux Homes, Inc., Pella

Windows and Doors, Commercial Division, Bonland Industries, Inc., K.N.S.

Building Restoration (K.N.S.), Sloan & Company, Nova Crete, Inc., Riva Pointe

Development, LLC (RPD), and others not involved in this appeal were joined in

A-3568-18T2 6 the suit. Bonland Industries, Inc. filed a fourth-party complaint against C-K Air

Conditioning, Inc.

On October 14, 2015, Judge Vanek heard Tishman's motions in limine in

the First Action. During that hearing, the judge found plaintiff knew or should

have known it had a viable cause of action for construction defects when

plaintiff's expert, Falcon Group, Engineering & Architecture (Falcon) issued its

report in September 2008. Thus, Judge Vanek determined this was the accrual

date for plaintiff's cause of action.

In advance of trial, Judge Vanek directed plaintiff's liability expert to

appear for a deposition by October 20, 2015. When plaintiff did not comply

with this order, Judge Vanek precluded plaintiff's liability expert from testifying

at trial.

On the first day of trial, plaintiff's attorney stated it would be "fruitless

and futile to continue with the case given that we don't have a liability expert."

The First Action was dismissed with prejudice by order dated October 26, 2015.

Plaintiff appealed from Judge Vanek's dismissal and discovery rulings in the

First Action and we affirmed all orders on appeal.

On January 28, 2016, while the appeal from the First Action remained

pending, Judge Vanek dismissed the Second Action without prejudice. She

A-3568-18T2 7 found the Second Action was duplicative of the First Action so she did not have

jurisdiction to proceed. The judge specifically determined the claims in the

Second Action were not "new," stating:

[h]ere, it is not as if [plaintiff] is alleging that damages just occurred as a result of some action on the part of Tishman which took place in the last few months. The relevant transaction or occurrence that these [c]omplaints both arise out of are the construction of Phase III of the Riva Pointe at Lincoln Harbor Condominium. [Plaintiff] had ample time in the First Action to pursue the water[-]side damages with nearly three years of discovery and it failed to do so. [Plaintiff's] attempted manipulation of Tishman's use of the word "new" when referring to the water[-]side damages runs completely afoul of [c]ounsel for [plaintiff's] representations on the record on September 18, 2015 that these findings were not, in fact, "new" damages, but rather, a new investigation which unfolded the same or substantially similar damages as noted in the [p]reliminary [r]eport, albeit in a different location of the building.

....

[T]o allow [plaintiff's] Second Action to proceed would improperly allow [plaintiff] an "end-run" around the [c]ourt's prior rulings, while an appeal is pending. The [c]ourt noted in . . . the First Action that allowing [plaintiff] to proceed with new claims for damages asserted after over 974 days of discovery, in violation of [c]ourt [o]rders, would have required the [c]ourt to reopen discovery in its entirety, despite the extensive length of time [plaintiff] had to pursue its claims. The [c]ourt finds no functional difference in [plaintiff's] attempt to reopen discovery in the prior action, and

A-3568-18T2 8 [plaintiff's] current intention to proceed with discovery on a Second Action alleging the same claims, and damages resulting from those claims. The Second Action is identical to the former, with the only difference being that it is only brought against Tishman and not the extensive list of defendants who were parties to the First Action. Allowing the Second Action to go forward could potentially result in further duplicative efforts . . ., potentially resulting in many of the defendants from the First Action who either settled or were relieved on summary judgment to again answer for the allegations which it already compensated for by way of settlement, or in the significant costs incurred refuting [plaintiff's] claims and obtaining summary judgment after over [thirty] dispositive motions . . . decided in connection with the First Action . . . . [A]llowing the Second Action to proceed through the discovery process would run afoul of the Rules of Court which divest this [c]ourt of jurisdiction while an appeal is pending, and result in potentially unnecessary cost to the parties involved and to the judicial system.

Accordingly, . . . . [plaintiff's] Second Action is hereby DISMISSED without prejudice.

[Emphases added.]

After we affirmed Judge Vanek's rulings in the First Action, plaintiff

moved to reinstate its Second Action. Judge Mary K. Costello granted

reinstatement. Two subsequent motions for reconsideration of the reinstatement

decision were denied by Judge Costello and the matter was transferred to Judge

D'Elia.

A-3568-18T2 9 Judge D'Elia conducted a case management conference on February 14,

2019. The judge discussed K.N.S.'s pending motions for dismissal based on

principles such as res judicata, the entire controversy doctrine, and the statute

of limitations, and counsel for K.N.S. reminded him that her "client got out on

summary judgment" in the First Action before that case was dismissed with

prejudice. Judge D'Elia noted K.N.S.'s legal posture in the First Action and

invited counsel at the conference to submit "anything further" regarding their

outstanding issues prior to the return date of the motions.

Third-party defendant RPD responded to the judge's invitation and

forwarded him Judge Vanek's October 14, 2015 decision from the First Action.

In that 2015 decision, Judge Vanek specifically found plaintiff "did not have the

requisite knowledge that it had incurred serious damages [for the Project] and

that it had an action against Tishman until September 2008." She also found:

[T]he unit owners did not assume control of Phase III of [the Project] until March of 2011 . . . . As such, [plaintiff's] cause of action would not have accrued until [plaintiff] assumed control. [Plaintiff] did not learn that the curative action [for the defects] failed until it hired [Falcon] . . . to investigate and draft a report. Falcon issued its [report] in September 2008, which revealed [the] true nature and extent of the alleged defects.

A-3568-18T2 10 On March 8, 2019, Judge D'Elia heard oral argument on K.N.S.'s pending

motions for dismissal. Before he ruled, the judge extensively reviewed the

factual and procedural history of the First and Second Actions, Judge Vanek's

October 14, 2015 and January 28, 2016 decisions, and Judge Costello's

reinstatement of the Second Action.

Concluding there were "two laws of the case" based on prior rulings from

Judges Vanek and Costello, Judge D'Elia agreed with Judge Vanek's finding that

plaintiff's allegations in the Second Action were duplicative of the First Action.

He further agreed with Judge Vanek's finding that plaintiff's cause of action

accrued as of September 2008. Thus, Judge D'Elia determined plaintiff's claims

were time barred under the statute of limitations, N.J.S.A. 2A:14-1. Judge

D'Elia relied on the recent holding in The Palisades At Fort Lee Condo. Ass'n,

Inc. v. 100 Old Palisade, LLC, 230 N.J. 427, 454 (2017) to reach this conclusion.

He also noted Judge Vanek did not have the benefit of the Palisades ruling when

she decided the accrual date for plaintiff's cause of action was deferred until

March 2011 based on plaintiff's assumption of control of Phase III of the Project

at that time.

Judge D'Elia next addressed K.N.S.'s request for dismissal under the entire

controversy doctrine. He again found plaintiff's claims arose in September 2008

A-3568-18T2 11 when it received Falcon's report. The judge added, "[t]he fact that the plaintiff

was unaware of the exact extent of those damages that resulted from the alleged

construction or design defects is not relevant . . . in deciding whether the entire

controversy doctrine applies . . . because [plaintiff] should have . . . proceeded

as quickly as possible so that . . . the [Second Action] would not be duplicative

of the first." Further, Judge D'Elia found the claims in the First and Second

Actions were not "separate and discre[te]," but instead, "clearly related to the

underlying transaction, the full-blown construction problem . . . back from

[P]hase [III] of the [Project]. Therefore, they're barred by the entire controversy

doctrine." Before the hearing concluded, Judge D'Elia also explained K.N.S.

was entitled to dismissal in the Second Action based on res judicata.

Given his findings, Judge D'Elia asked plaintiff's counsel, "[w]ould you

mind if I sua sponte dismissed . . . all complaints against all defendants based

upon [the] statute of limitations and entire controversy doctrine, . . . so that you

can get that full argument and get the notice of appeal filed tomorrow?"

Plaintiff's counsel responded, "I think that's okay, Your Honor." Accordingly,

Judge D'Elia dismissed the Second Action as to all defendants. His March 11,

2019 order confirmed the dismissal was with prejudice.

A-3568-18T2 12 On appeal, plaintiff argues Judge D'Elia erred in, sua sponte, granting

summary judgment to all defendants based on the statute of limitations and the

entire controversy doctrine. Further, plaintiff suggests Judge D'Elia resorted to

"shortcuts" and argues the judge erred by sua sponte dismissing its complaint in

the Second Action. Plaintiff also contends utilization of the entire controversy

doctrine was "off the table" because Judge Costello reinstated the Second

Action, satisfied the claims therein were "new." These arguments are

unavailing.

We review de novo a trial court's decision to grant or deny a motion to

dismiss pursuant to Rule 4:6-2(e). Rezem Family Assoc., LP v. Borough of

Millstone, 423 N.J. Super. 103, 114 (App. Div. 2011). Moreover, we analyze

pure questions of law raised on a dismissal motion, such as the application of

the statute of limitations, on a de novo basis. Smith v. Datla, 451 N.J. Super.

82, 88 (2017). That is because a "trial court's interpretation of the law and the

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

special deference." Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140

N.J. 366, 378 (1995). A de novo standard also applies "[w]hen the legal

conclusions of a trial court on a Rule 4:46 summary judgment decision are

reviewed on appeal." McDade v. Siazon, 208 N.J. 463, 473 (2011).

A-3568-18T2 13 A court must dismiss a complaint if a plaintiff has failed to articulate a

legal basis entitling that party to relief. Sickles v. Cabot Corp., 379 N.J. Super.

100, 106 (App. Div. 2005) (citing Camden County Energy Recovery Assocs.,

L.P. v. New Jersey Dep't of Envtl. Prot., 320 N.J. Super. 59, 64 (App. Div.

1999)). "A motion to dismiss a complaint under Rule 4:6-2(e) for failure to state

a claim upon which relief can be granted must be evaluated in light of the legal

sufficiency of the facts alleged in the complaint." Donato v. Moldow, 374 N.J.

Super. 475, 482 (App. Div. 2005). If a motion to dismiss brought

under subsection (e) presents "matters outside the pleading," Rule 4:6-2 requires

that the motion be "treated as one for summary judgment."

Under N.J.S.A. 2A:14-1, a construction-defect action must be commenced

within six years "after the cause of any such action shall have accrued." As

Judge D'Elia aptly noted, the Palisades Court specifically "reject[d] the approach

. . . that the six-year statute of limitations could not accrue before plaintiff gained

full control of the [c]ondominium [a]ssociation. An owner of a building cannot

convey greater property rights to a purchaser than the owner possessed. " 230

N.J. at 449. "If the building's owner knew or reasonably should have known of

construction defects at the time of the sale of the property, the purchaser takes

title subject to the original owner's right—and any limitation on that right—to

A-3568-18T2 14 file a claim against the architect and contractors." Id. at 449-50 (citing O'Keeffe

v. Snyder, 83 N.J. 478, 502 (1980)). "Thus, a subsequent owner will stand in

the shoes of a prior owner for statute-of-limitations purposes." Id. at 450

(citations omitted).

"A cause of action, for purposes of N.J.S.A. 2A:14-1, accrues when

someone in the chain of ownership first knows or reasonably should know of an

actionable claim against an identifiable party." Ibid. "A condominium plaintiff

does not enjoy a preferred status exempting it from this long-standing rule."

Ibid. Here, as Judges D'Elia and Vanek separately observed, Falcon notified

plaintiff of construction defects in the Project when it issued its September 2008

report. Accordingly, based on the September 2008 accrual date for plaintiff's

action and the holding in Palisades, Judge D'Elia deemed the Second Action

barred by the statute of limitations. We perceive no basis to disturb this ruling.

In light of our decision, we need not address Judge D'Elia's determination

that dismissal of the Second Action also was appropriate under the entire

controversy doctrine. To the extent we have not addressed plaintiff's remaining

arguments, we are satisfied they lack sufficient merit to warrant discussion in a

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

Affirmed.

A-3568-18T2 15