RIVA POINTE AT LINCOLN HARBOR CONDOMINIUM ASSOCIATION, INC. v. RIVA POINTE DEVELOPMENT, LLC

 

(NOTE: The status of this decision is Published.)

                        NOT FOR PUBLICATION WITHOUT THE
                      APPROVAL OF THE APPELLATE DIVISION
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      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-1349-15T1


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

        Plaintiff-Appellant/
        Cross-Respondent,

v.

RIVA POINTE DEVELOPMENT, LLC, a
New Jersey Limited Liability
Company; LIRO ARCHITECTS AND
ENGINEERS WEST, PC, a New Jersey
Professional Corporation; PELLA
CORPORATION, an Iowa Corporation;
PELLA WINDOWS AND DOORS, INC.;
ON PAR CONTRACTING; TOBIN PARNES
DESIGN; P.F.C. INCORPORATED; NOVA
CRETE, INC.; NORTH EAST
CONSTRUCTION; and ENBE CONSTRUCTION
GROUP, INC.,

        Defendants,

and

THORNTON TOMASETTI, INC., a New
York Corporation; and LZA
ASSOCIATES, a Division of Thornton
Tomasetti, Inc.,

        Defendants-Respondents,
and

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

      Defendants-Respondents/
      Cross-Appellants,


and

SLOAN & COMPANY; and DEL SALVIO
MASONRY CORPORATION,

      Defendants-Respondents/
      Cross-Respondents,

and

MEADOWLANDS FIRE PROTECTION,

      Defendant-Respondent/
      Cross-Respondent,
and

BONLAND INDUSTRIES, INC.,

      Defendant-Respondent/
      Cross-Respondent/
      Third-Party Plaintiff,

v.

C-K AIR CONDITIONING, INC.,

      Defendant/
      Third-Party Defendant,

and

KNS BUILDING RESTORATION,

      Defendant-Respondent/

                                  2   A-1349-15T1
     Cross-Respondent/
     Third-Party Plaintiff,

v.

DNK CONTRACTING CORP.,

     Defendant/
     Third-Party Defendant.


ARIE EHIELI and MIRIAM EHIELI,

     Plaintiffs,

v.

RIVA POINTE AT LINCOLN HARBOR
CONDOMINIUM ASSOCIATION, INC.;
WENTWORTH PROPERTY MANAGEMENT
CORPORATION, n/k/a FIRSTSERVICE
PROPERTY MANAGEMENT CORPORATION;
and MICHAEL DRESCHER,

     Defendants.

FIRSTSERVICE PROPERTY MANAGEMENT
CORPORATION, f/k/a WENTWORTH
PROPERTY MANAGEMENT CORPORATION,

     Defendant/
     Third-Party Plaintiff,

v.

RIVA POINTE DEVELOPMENT, LLC, a
New Jersey Limited Liability
Company; PETER TULLY; TISHMAN
CONSTRUCTION CORPORATION, a
Delaware Corporation; TISHMAN
CONSTRUCTION CORPORATION OF NEW
JERSEY, a New Jersey Corporation;
LIRO ARCHITECTS AND ENGINEERS WEST,
PC, a New Jersey Professional
Corporation; THORNTON TOMASETTI,

                                 3    A-1349-15T1
INC., a New York Corporation; LZA
ASSOCIATES, a Division of Thornton
Tomasetti, Inc.; PELLA CORPORATION,
an Iowa Corporation; PELLA WINDOW
OF IOWA, INC., an Iowa Corporation;
PWD, INC., an Iowa Corporation,
t/a PELLA WINDOWS AND DOORS, INC.;
ON PAR CONTRACTING; TOBIN PARNES
DESIGN; BONLAND INDUSTRIES, INC.;
P.F.C. INCORPORATED; NOVA CRETE,
INC.; MEADOWLANDS FIRE PROTECTION;
KNS BUILDING RESTORATION; NORTH
EAST CONSTRUCTION; DEL SALVIO
MASONRY CORPORATION; SLOAN &
COMPANY; and ENBE CONSTRUCTION
GROUP, INC.,

     Third-Party Defendants.


RIVA POINTE AT LINCOLN HARBOR
CONDOMINIUM ASSOCIATION, INC.,

     Defendant/
     Third-Party Plaintiff,
v.

RIVA POINTE DEVELOPMENT, LLC, a
New Jersey Limited Liability
Company; TISHMAN CONSTRUCTION
CORPORATION, a Delaware
Corporation; TISHMAN CONSTRUCTION
CORPORATION OF NEW JERSEY, a New
Jersey Corporation; LIRO ARCHITECTS
AND ENGINEERS WEST, PC, a New
Jersey Professional Corporation;
THORNTON TOMASETTI, INC., a New
York Corporation; LZA ASSOCIATES, a
Division of Thornton Tomasetti,
Inc.; PELLA CORPORATION, an Iowa
Corporation, t/a PELLA WINDOWS AND
DOORS, INC.; CONSENTINI
ASSOCIATES; ON PAR CONTRACTING;
and TOBIN PARNES DESIGN,


                                 4    A-1349-15T1
     Third-Party Defendants.


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

     Third-Party Defendants/
     Fourth-Party Plaintiffs,

v.

BONLAND INDUSTRIES, INC.; P.F.C.
INCORPORATED; NOVA CRETE, INC.;
MEADOWLANDS FIRE PROTECTION; KNS
BUILDING RESTORATION; NORTH EAST
CONSTRUCTION; DEL SALVIO MASONRY
CORPORATION; and SLOAN & COMPANY,

     Third-Party Defendants/
     Fourth-Party Defendants.



         Argued January 30, 2018 – Decided February 27, 2018

         Before Judges Reisner, Hoffman, and Mayer.

         On appeal from Superior Court of New Jersey,
         Law Division, Hudson County, Docket Nos.
         L-4781-12 and L-2315-13.

         Mark M. Wiechnik argued the cause for
         appellant/cross-respondent Riva Pointe at
         Lincoln Harbor Condominium Association, Inc.
         (Ansell, Grimm & Aaron, PC, attorneys; Breanne
         M. DeRaps and Mark M. Wiechnik, on the
         briefs).

         Keith R. Hemming argued the cause for
         respondents/cross-appellants          Tishman
         Construction    Corporation     and   Tishman
         Construction   Corporation   of   New  Jersey
         (McElroy, Deutsch, Mulvaney & Carpenter, LLP,

                                5                         A-1349-15T1
          attorneys; Keith R. Hemming, of counsel and
          on the briefs; Daniel A. Dorfman, on the
          briefs).

          Louis J. DeMille, Jr., argued the cause for
          respondent/cross-respondent         Bonland
          Industries (Zirulnik, Sherlock & DeMille,
          attorneys; Louis J. DeMille, Jr., on the
          brief).

          Mark D. Shifton argued the cause for
          respondent/cross-respondent     Del    Salvio
          Masonry Corporation (Seiger Gfeller Laurie,
          LLP, attorneys; Mark D. Shifton, of counsel
          and on the brief; Gary Strong, on the brief).

          Jeffrey W. Moryan argued the cause for
          respondent/cross-respondent   KNS    Building
          Restoration (Connell Foley LLP, attorneys;
          Jeffrey W. Moryan, of counsel and on the
          brief; Susan Kwiatkowski, on the brief).

          Aris   E.L. Dutka   argued   the  cause  for
          respondent/cross-respondent Meadowlands Fire
          Protection   Corp.   (London   Fischer  LLP,
          attorneys; Yekaterina Berkovich, on the
          brief).

          Brian   Peoples   argued    the   cause   for
          respondent/cross-respondent Sloan & Company
          (Leary, Bride, Tinker & Moran, PC, attorneys;
          Brian Peoples, on the brief).

          Katherine A. Buchanan argued the cause for
          respondents Thornton Tomasetti, Inc. and LZA
          Associates (Byrne & O'Neill, LLP, attorneys;
          Michael J. Byrne and Katherine A. Buchanan,
          on the brief).

PER CURIAM

     This appeal and cross-appeal arise from construction defect

claims filed by plaintiff Riva Pointe at Lincoln Harbor Condominium


                                 6                          A-1349-15T1
Association, Inc. (Association) against the developer, general

contractor/project manager, architect, and other parties related

to the construction of condominium units and common areas in

Weehawken, New Jersey.     After reviewing the record in light of the

applicable standard of review, we affirm all orders on appeal.

     This   construction   defect   case    involves   more   than    twenty

contractors,    subcontractors,     and    other   professionals.         The

Association     alleged    defective      construction    caused       water

infiltration into condominium units and common areas, resulting

in extensive damages.      The Association's original complaint was

filed in October 2012.1     Defendants filed answers, cross-claims,

third-party claims, and fourth-party claims.

     After numerous extensions of the discovery deadline, the

Association served a "preliminary" expert report identifying the

negligence of each defendant in the construction of the condominium

complex.    The Association subsequently advised defense counsel and

the court that the preliminary expert report was actually its

final expert report.      With that understanding, the court allowed

the Association to submit a supplemental expert report for the

sole purpose of rebutting the defense experts' reports.                   The


1
  The Association filed five amended complaints during the course
of the litigation.



                                    7                                A-1349-15T1
court's final case management order (CMO)2 expressly limited the

Association's     supplemental    expert         report    "to   rebuttal     of

[d]efendants' expert opinions and shall not otherwise introduce

any new issues, opinions, and/or conclusions that are not already

included in [p]laintiff's 'Preliminary Document of Conditions

Report'   dated   July   14,   2014."      The     final   CMO   required   the

Association to serve its supplemental expert report by April 15,

2015.

     On May 13, 2015, the court amended the final CMO.                        In

accordance    with   the   amended       final    CMO,     the   Association's

supplemental expert report was due June 24, 2015; the discovery

deadline was extended to July 17, 2015; and the trial date remained

September 21, 2015.

     On the due date of its supplemental expert report, the

Association moved for leave to file a sixth amended complaint,

extend discovery, and postpone the trial date.               The judge denied

the Association's motion to file an amended complaint, finding the

Association did not meet the standard for adding new parties under

Rule 4:9-1.       The judge also found the Association failed to

establish exceptional circumstances for extending the discovery

deadline and postponing the trial date.


2
  The court issued five case management orders prior to the entry
of its final case management order on November 14, 2014.

                                     8                                 A-1349-15T1
     Over   one   month    after    the   deadline    for   service      of   the

Association's     supplemental      expert    report,       the    Association

submitted   a   report    setting   forth    new   issues,    opinions,       and

conclusions regarding construction defects at the condominium

complex.    Significantly, the supplemental expert report included

a wholly new damage claim related to moisture infiltration on the

side of the condominium buildings facing the Hudson River.                    The

Association's supplemental expert report increased the claimed

damages by nearly $8 million.

     Defendants     Tishman    Construction        Company        and    Tishman

Construction Company of New Jersey (collectively, Tishman) filed

a motion to bar the Association's supplemental report as beyond

the scope of the court's order limiting the report to rebuttal of

the defense experts' reports.             The judge required Tishman to

identify the portions of the Association's supplemental expert

report that exceeded rebuttal of the defense experts' reports.

Ultimately, the judge agreed that portions of the Association's

supplemental expert report were not "rebuttal," and barred any

opinions contained in the report that were not "necessary to rebut

the testimony of [d]efendants' experts."

     After the discovery period expired, defendants KNS Building

Restoration     (KNS),   Thornton    Tomasetti,      Inc.   and    one   of   its

divisions, LZA Associates (collectively, Thornton), and Tishman

                                      9                                  A-1349-15T1
moved for summary judgment on the Association's claims.3 The judge

granted summary judgment in favor of KNS and Thornton, concluding

that the Association's expert failed to state the standard of care

applicable to KNS and Thornton, how these defendants breached that

standard of care, and the damages proximately caused by any such

breach of the applicable standard of care.               The judge denied

Tishman's motion to dismiss the Asociation's breach of implied

warranty    claim.     Tishman    also   moved   in   limine    to    bar   the

Association from offering any evidence as to claims filed after

the expiration of the statute of limitations, which the judge

denied.

     The Association moved for reconsideration of the judge's

orders denying leave to file a sixth amended complaint and extend

discovery, granting summary judgment to KNS and Thornton, and

limiting its expert's testimony to certain issues.                   The judge

denied    the   Association's    reconsideration      motion,   finding     the

Association failed to present any new facts, evidence, or case law

overlooked in her prior ruling.

     Tishman then sought reconsideration of the judge's earlier

denial of its motion for summary judgment with respect to the



3
  Tishman previously moved for partial summary judgment to enforce
defense and indemnification clauses pursuant to its contracts with
several defendants. The judge denied the motion without prejudice.

                                    10                                 A-1349-15T1
Association's breach of implied warranty claim and denial of its

motion   for      partial    summary     judgment       requesting    defense      and

indemnification from various co-defendants.                     The judge denied

Tishman's    reconsideration           motion,   finding       Tishman    failed    to

present any new facts, evidence, or case law overlooked in her

prior ruling.       On the breach of implied warranty issue, the judge

ruled the Association stands in the shoes of the original property

owner/developer and Tishman owed a duty of implied warranty of

reasonable     workmanship        to   the    Association      as   the   subsequent

property owner.       The judge denied reconsideration on the issue of

defense and indemnification, reasoning the relevant contractual

language    did    not    unequivocally       provide    for    indemnity   against

Tishman's sole negligence, and Tishman failed to establish a

substantial nexus between the claims and the contractors' work.

       With trial imminent, the judge ordered the Association's

liability expert to appear for deposition by October 20, 2015.4

The Association failed to produce the expert for deposition.

Tishman then sought dismissal of the Association's complaint based

upon   violation     of     the   court's     order   compelling      the   expert's

deposition.       Ruling on Tishman's application, the judge imposed a



4
   Pursuant to the judge's final pre-trial order, the trial date
was adjourned to October 26, 2015.


                                         11                                  A-1349-15T1
lesser sanction, precluding the Association's liability expert

from testifying at trial.        The judge also required the Association

to pay Tishman's attorney's fees and costs associated with the

motion.5

     Just    before    the    scheduled     trial    date,    the     Association's

counsel advised that she would not appear for trial.                     The judge

ordered the Association's counsel to appear on the day of trial.

Counsel for the remaining parties appeared in court on the trial

date.6   The Association's attorney explained to the judge that "it

would be fruitless and futile to continue with the case given that

we don't have a liability expert," because without an expert the

Association    could    not   meet    its   burden    of     proof.      The   court

dismissed the Association's case with prejudice in accordance with

Rule 4:37-1(b).

     The Association appeals from the court's orders: (1) denying

its request for leave to file a sixth amended complaint, extend

discovery,    and   adjourn     the   trial   date;    (2)     granting    summary

judgment to defendants KNS and Thornton; (3) barring portions of

its supplemental expert report and the testimony of its liability


5
   Tishman filed a fee application seeking $1440.50 in costs and
attorney's fees due to the expert's failure to appear for his
court-ordered deposition. Tishman's fee application was granted.
6
  Prior to trial, certain defendants resolved the matter with the
Association, or were granted summary judgment, or were defaulted.

                                       12                                   A-1349-15T1
expert; (4) dismissing its remaining claims at trial; (5) denying

its motion for reconsideration; and (6) granting Tishman's fee

application.

      Tishman cross-appeals from the court's orders: (1) denying

its   motion   for   contractual     defense   and   indemnification;     (2)

denying summary judgment on the Association's claim for breach of

the implied warranty of reasonable workmanship; and (3) denying

its motion to bar the Association from presenting evidence of

claims filed after the expiration of the statute of limitations.

      We review the judge's discovery orders in this matter for

abuse of discretion.         An abuse of discretion occurs "when a

decision is 'made without a rational explanation, inexplicably

departed from established policies, or rested on an impermissible

basis.'" U.S. Bank Nat. Ass'n v. Guillaume, 
209 N.J. 449, 467

(2012) (quoting Iliadis v. Wal-Mart Stores, Inc., 
191 N.J. 88, 123

(2007)). We review the judge's summary judgment orders de novo,

applying the same standard as the trial court.                 See Bhagat v.

Bhagat, 
217 N.J. 22, 38 (2014); Brill v. Guardian Life Ins. Co.

of Am., 
142 N.J. 520, 540 (1995).

                                      I.

      We   affirm    the   judge's   orders    denying   the   Association's

request to file a sixth amended complaint, extend discovery, and

adjourn the trial date; granting summary judgment to defendants

                                     13                              A-1349-15T1
KNS    and     Thornton;      barring       portions      of    the    Association's

supplemental expert report and the testimony of its liability

expert    at    trial;      and    denying       the   Association's       motion    for

reconsideration, for the reasons set forth in Judge Christine M.

Vanek's thorough and comprehensive written opinion dated October

23, 2015.      We add only the following comments.

       The judge's dismissal of the Association's claims on the date

of    trial    in    accordance      with    Rule      4:37-1   renders      moot    the

Association's appeal related to the failure to extend discovery.

See Mack Auto Imports, Inc. v. Jaguar Cars, Inc., 
244 N.J. Super.
 254,   256-58       (App.   Div.    1990)    (holding     appeal      of   an   adverse

discovery order moot after a voluntary dismissal because discovery

is no longer an issue in a dismissed case).

       The judge's refusal to allow the Association to file a sixth

amended complaint or adjourn the trial date was not an abuse of

discretion.         The judge assigned to this case held multiple case

management conferences with counsel and issued no less than five

case management orders specifying deadlines for all aspects of

discovery and scheduling the trial.                      The judge adjusted the

deadlines,     as    necessary,      to   accommodate      reasonable       delays     in

obtaining information based upon the large number of parties

involved in this litigation.                 Having familiarity with the case

since its inception, the judge properly determined that allowing

                                            14                                  A-1349-15T1
the Association to add new claims three months prior to trial,

amounting    to   nearly     $8   million    in    additional       damages,     would

prejudice the rights of defendants and unduly delay the trial.

See Bldg. Materials Corp. of Am. v. Allstate Ins. Co., 
424 N.J.

Super. 448, 484-85 (App. Div. 2012).

     We     affirm   the     judge's    dismissal        of   the      Association's

remaining claims on the scheduled trial date.                    The Association's

counsel advised that the Association was voluntarily dismissing

its complaint.       Under these circumstances, the Association is

precluded from appealing an order to which it consented.                      See Bass

v. De Vink, 
336 N.J. Super. 450, 455 (App. Div. 2001) ("It is

axiomatic . . . that a party cannot appeal from a judgment or

order to which [it] consented"); see also Pressler & Verniero,

Current N.J. Court Rules, cmt. 2.2.3 on R. 2:2-3(a)(1) (2018).

However,    we    have   also     considered      the   merits    of    the   judge's

dismissal of the Association's claims, and we find no abuse of the

judge's discretion in barring the Association's liability expert

from testifying at the trial.

                                       II.

     We review fee determinations for an abuse of discretion.

Rendine     v.    Pantzer,      
141 N.J.     292,     317   (1995).           "[F]ee

determinations by trial courts will be disturbed only on the rarest



                                       15                                      A-1349-15T1
occasions . . . ."      Packard-Bamberger & Co. v. Collier, 
167 N.J.
 427, 443 (2001) (quoting Rendine, 
141 N.J. at 317).

     We affirm the judge's order awarding fees to Tishman in the

amount   of   $1440.50.     The   judge    found   Tishman's     supplemental

certification in support of its fee request complied with Rule

4:42-9 and RPC 1.5.        The judge gave due consideration to the

reasonableness of the fee amount requested and the time expended

by Tishman's counsel in moving to bar the Association's liability

expert based on the expert's failure to appear for his court-

ordered deposition.

                                    III.

     Turning to Tishman's cross-appeal, we affirm for the reasons

set forth in Judge Vanek's well-reasoned written opinion dated

October 23, 2015.7      Based upon the judge's comprehensive opinion

stating the reasons, factually and legally, for denial of Tishman's

request for contractual defense and indemnification, no additional

discussion is required.         The competent evidence in the record

supports the judge's determination that the contractual provisions

concerning    defense     and   indemnification     were   not    clear    and



7
  Two of the issues Tishman raises on appeal, denial of its motion
for summary judgment on the Association's breach of implied
warranty claim and denial of its motion to bar the Association's
claims filed after expiration of the statute of limitations, are
moot in light of our disposition of the Association's appeal.

                                    16                                A-1349-15T1
unambiguous as to an intent to indemnify Tishman for its own

negligence in this construction project.   See Azurak v. Corp.

Prop. Inv'rs, 
175 N.J. 110, 112 (2003).

    Affirmed.




                              17                       A-1349-15T1