RURE ASSOCIATES, INC. v. DYNAMIC INDUSTRIES, INC.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4242-04T54242-04T5

RURE ASSOCIATES, INC.,

Plaintiff,

v.

DYNAMIC INDUSTRIES, INC.,

Defendant-Appellant,

and

UNIVERSAL BONDING INSURANCE

COMPANY,

Defendant,

and

THE VERNON TOWNSHIP BOARD

OF EDUCATION,

Defendant-Respondent.

MATHUSEK INCORPORATED, INC.,

Plaintiff,

v.

DYNAMIC INDUSTRIES, INC.,

Defendant-Appellant,

and

VERNON TOWNSHIP BOARD

OF EDUCATION,

Defendant-Respondent,

and

UNIVERSAL BONDING INSURANCE

COMPANY,

Defendant.

ATLAS LADDER COMPANY, INC.,

Plaintiff,

v.

CARLOS STOFFEL, individually

and trading as FALCON CONSTRUCTION,

Defendants-Third Party

Plaintiffs,

v.

DYNAMIC INDUSTRIES, INC.,

Third-Party Defendant/

Appellant, and

PRINCETON TOWNSHIP BOARD

OF EDUCATION, TOWNSHIP OF

PRINCETON, UNIVERSAL BONDING

AND INSURANCE COMPANY, VERNON

TOWNSHIP,

Third-Party Defendants,

and

VERNON TOWNSHIP BOARD OF

EDUCATION,

Third-Party Defendant/

Respondent.

URETHANE SYSTEMS NORTHEAST, INC.,

Plaintiff,

v.

DYNAMIC INDUSTRIES, INC.,

Defendant-Appellant,

and

VERNON TOWNSHIP BOARD

OF EDUCATION,

Defendant-Respondent,

and

UNIVERSAL BONDING AND

INSURANCE COMPANY, UNITED

STATES FIDELITY AND

GUARANTEE COMPANY, and

GUARANTEE INSURANCE

COMPANY,

Defendants.

 

Submitted: December 14, 2005 - Decided:

Before Judges Fall and Grall.

On appeal from the Superior Court of New Jersey, Law Division, Sussex County, consolidated Docket Numbers SSX-L-102-00, SSX-L-627-00, ESX-L-5741-00, and SSX-L-300-01.

DeNoia & Tambasco, attorneys for appellant (G. John Germann, on the brief).

Apruzzese, McDermott, Mastro & Murphy, attorneys for respondent (Robert J. Merryman, of counsel and on the brief).

PER CURIAM

This appeal arises from a contracting dispute concerning work on a public construction contract for renovations and alterations to Vernon Township High School. Defendant Dynamic Industries, Inc. was the general contractor on that project, contracted by the Vernon Township Board of Education on or about August 27, 1998. On November 15, 2000, the Board terminated its contract with Dynamic Industries for failure to complete the project. Several lawsuits resulted, including these four actions by subcontractors seeking payment for work completed on the project.

On February 22, 2000, subcontractor RURE Associates, Inc. filed a complaint in the Law Division, Sussex County, Docket Number SSX-L-102-00, against Dynamic Industries, Universal Bonding Insurance Company Surety (surety under the project), and Vernon Board of Education, contending that $30,096.80 was due under its subcontract with Dynamic Industries. RURE Associates had entered into a subcontract with Dynamic Industries on July 20, 1998, to install certain hardware on the project.

On July 10, 2000, subcontractor Mathusek Incorprated filed a complaint in the Law Division, Sussex County, Docket Number SSX-L-36-00, against Dynamic Industries, Vernon Board of Education, and Universal Bonding, seeking a balance allegedly due under its subcontract with Dynamic Industries for installation of a hardwood flooring system in the school's gymnasium in the amount of $14,950.

On May 7, 2001, subcontractor Urethane Systems Northeast, Inc. filed a complaint in the Law Division, Sussex County, Docket Number SSX-L-300-01, against Dynamic Industries, Vernon Board of Education, Universal Bonding, and United States Fidelity and Guarantee Company (another surety on the project), seeking $33,634.75 purportedly due on its August 24, 1998 roofing systems subcontract with Dynamic Industries.

A fourth complaint was filed in the Law Division, Essex County, docket number ESX-L-5741-00, by Atlas Ladder Company, Inc., contending that one of Dynamic Industries' subcontractors on the Vernon Board of Education project, Carlos Stoffel, trading as Falcon Construction (Falcon), had entered into a leasing agreement under which Atlas supplied Falcon ladders and certain other supplies. Atlas claimed in its complaint against Falcon that the ladders and supplies had been misplaced, lost or converted by Dynamic Industries, for which Falcon was purportedly responsible. A third-party complaint was filed by Falcon against Dynamic Industries and its principals Maria E. Gregos and Angelo Gregos; Vernon Board of Education; Universal Bonding; subcontractor Mathusek; and against Princeton Township Board of Education under another contract where Dynamic was the general contractor.

The answers filed by Dynamic Industries in these actions did not assert cross-claims against Vernon Board of Education seeking damages based on any alleged breach of contract, nor for any monies allegedly due under the general contract.

By order entered on July 27, 2001, all four of these actions were consolidated for discovery and trial purposes in the Law Division, Sussex County.

On October 12, 2001 and March 11, 2002, the Law Division entered orders granting summary judgment in favor of Vernon Board of Education, dismissing all claims against it in these four actions.

On May 21, 2002, Dynamic Industries filed a motion in the four consolidated actions, seeking an order requiring that the claims of the subcontractors be stayed pending arbitration, and permitting it to file a cross-claim against Vernon Board of Education. Dynamic Industries claimed, in that motion, it was owed significant sums under its contract with the Vernon Board of Education.

On May 22, 2002, Dynamic Industries filed a separate complaint in the Law Division against the Vernon Board of Education, docket number SSX-L-342-02, contending it had substantially completed its contract with the Board and was owed significant sums. Dynamic Industries also filed a motion in the consolidated four subcontractors' actions, seeking an order consolidating its newly-filed complaint against the Board with those actions.

The Vernon Board of Education opposed the application of Dynamic Industries to file cross-claims in the consolidated subcontractors' actions, and sought summary judgment dismissing the claim of Dynamic Industries in SSX-L-342-02, as being barred by the entire controversy doctrine. The motion of Vernon Board of Education to dismiss the complaint filed in SSX-L-342-02, was granted in an order entered on October 21, 2002. On the appeal by Dynamic Industries from that order, we affirmed in an unreported opinion, stating that "since [Dynamic Industries] had a full, fair and reasonable opportunity to litigate its claim against [Vernon Board of Education] in the consolidated subcontractors' litigation, application of the entire controversy doctrine in this action was equitable." Dynamic Industries, Inc. v. Vernon Township Bd. of Educ., A-1684-02T2 (Nov. 12, 2003) (slip op. at 4).

On June 14, 2002, Judge Ronald B. Graves entered orders in the consolidated subcontractors' actions, denying the motion by Dynamic Industries to consolidate, denying its request for leave to file cross-claims against Vernon Board of Education, and denying its application for a stay of the subcontractors' actions pending arbitration. Because the June 14, 2002 order did not represent a final order as to all parties and all claims, it was interlocutory. See R. 2:2-3(a)(1). Upon the settlement and resolution of all claims in the subcontractors' actions, on April 22, 2005, Dynamic Industries filed a notice of appeal from those portions of the June 14, 2002 order denying its application for consolidation and denying it request for leave to file an affirmative cross-claim against Vernon Board of Education in the consolidated actions.

On appeal, Dynamic Industries presents the following arguments for our consideration:

POINT I

THE TRIAL COURT ERRED IN DENYING DYNAMIC INDUSTRIES['] MOTION TO FILE AN AMENDED CROSSCLAIM.

POINT II

THE TRIAL COURT ERRED IN DENYING DYNAMIC INDUSTRIES['] MOTION TO CONSOLIDATE.

In entering the June 14, 2002 order, Judge Graves issued a written decision, stating in pertinent part:

The language of [R. 4:38-1] clearly suggests that it is within the discretion of the court to allow the consolidation of pending actions. In the present matter, however, consolidation of Dynamic's new lawsuit with the already consolidated matter is not appropriate. Trial in the consolidated matter was scheduled on March 5, 2001, May 21, 2001, February 25, 2002, and May 20, 2002, and each date was adjourned. Trial is now scheduled for June 19, 2002. Given that more than a year has passed since this case was first scheduled for trial, ordering consolidation undoubtedly would require additional discovery and trial preparation and would be burdensome to the other parties that have been actively involved in this litigation.

It is of mention that Dynamic did not file opposition to either of [the Board's] applications to dismiss the subcontractor/plaintiffs' claims against [the Board]. If Dynamic had a viable claim against [the Board], it could have brought such an argument to the attention of the court at the time [the Board's] applications were being considered. Dynamic failed to do so. Accordingly, Dynamic's application to consolidate Dynamic Industries v. Vernon Township Board of Education with the four consolidated subcontractor suits is denied.

* * * *

R. 4:7-5(c) clearly provides that leave of court to file a cross-claim shall be freely given. However, permitting Dynamic to file a cross-claim at this juncture is inappropriate. Dynamic's application is procedurally defective and fails to comply with R. 4:7-(c). Furthermore, there is some question as to when Dynamic's counsel first became aware of Dynamic's potential cross-claim against [the Board]. Moreover, as noted above, it would be prejudicial to the parties that have actively participated in this litigation to permit Dynamic to file a cross-claim on the eve of trial.

 
After analyzing the record in the light of the written arguments advanced by the parties, and our decision in A-1684-02T2, supra, on entire controversy grounds, we conclude that the issues presented by Dynamic Industries, Inc. are without merit, R. 2:11-3(e)(1)(E), and we affirm substantially for the reasons articulated by Judge Graves in his written decision issued on June 14, 2002.

Affirmed.

Fictitiously-named defendants have been eliminated from this caption.

(continued)

(continued)

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A-4242-04T5

December 27, 2005