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

NOT FOR PUBLICATION WITHOUT THE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,
v.
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,
and
KNS BUILDING RESTORATION,
Third-Party Defendant.
______________________________
A-3568-18T2
2
BONLAND INDUSTRIES, INC.,
Fourth-Party Plaintiff,
v.
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