On appeal from the Superior Court of New Jersey, Law Division, Civil Part, Bergen County, L-1599-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Collester, C.S. Fisher and C.L. Miniman.
Third-party defendant Superior Powder Coating, Inc. (SPCI), appeals from an August 3, 2006, order dismissing this action without prejudice to institution of an action against it and co-defendant Ever-Nu Metal Products, Inc. (Ever-Nu), by defendant Hobart Builders, LLC (Hobart), free of the constraints of the entire controversy doctrine. Because two trial judges failed to rule on several motions Hobart filed seeking to bring direct claims against Ever-Nu and SPCI, all of which ought to have been granted, we affirm.
The facts are relatively straightforward. The Sea Dunes Condominium Association, which was not a party to this action, hired Hobart, a general contractor, to install a powder-coated aluminum staircase at the Sea Dunes Condominium in Long Branch.
Hobart entered into a subcontract with plaintiff Petro Steel & Ironworks, Inc. (Petro), to build, powder coat and install the stairs for $52,549. Petro fabricated the metal parts for the staircase and in October 2003 Petro hired SPCI and Ever-Nu to add the powder coating.
The powder coating was made of ground paint particles that SPCI and Ever-Nu applied to the metal parts and then melted to the aluminum in order to give it a more durable finish. Petro delivered the aluminum parts to SPCI and Ever-Nu and Petro picked them up after the coating was completed. Petro then installed the staircase at Sea Dunes. Hobart, as the general contractor, had no direct contact with SPCI and Ever-Nu.
Not long after installation of the staircase, the powder coating started to peel, leaving the metal exposed and corroding. When the staircase failed the final inspection, Hobart became responsible for repairing it. Accordingly, Hobart did not make final payment to Petro.
Petro then filed a book-account complaint against Hobart on June 25, 2004, in the Special Civil Part seeking payment of the $7,750.15 outstanding balance. Seven months later Hobart served an answer and counterclaim on January 20, 2005, alleging breaches of contract and warranty by Petro based on alleged substandard construction.*fn1 Hobart certified that the amount it claimed exceeded the jurisdictional limit of the Special Civil Part and obtained a transfer of the case to the Law Division. Before this answer was filed, the Law Division clerk on March 30, 2005, scheduled trial for June 9, 2005.
In its belated answer to the counterclaim dated April 2, 2005, Petro asserted third-party claims to the counterclaim pursuant to R. 4:8-2 seeking contribution and indemnification from SPCI and Ever-Nu.*fn2 Of course, the addition of these third-party defendants should have automatically extended the time for discovery by sixty days pursuant to R. 4:24-1(b), but the record on appeal does not indicate whether the time for discovery was extended at this time. On May 5 and May 17, 2005, SPCI and Ever-Nu, respectively, answered the third-party complaint and asserted cross-claims against Hobart and each other seeking contribution and indemnification.
Once again the record is silent respecting the events, if any, occurring on the June 9, 2005, trial date. However, on July 1, 2005, Petro's attorney prepared a motion returnable on July 22, 2007, seeking to be relieved as counsel. In the meantime, on July 9, 2005, the Law Division clerk issued a notice that discovery would expire on September 15, 2005. The motion to be relieved was granted on August 8, 2005, and the motion judge required Petro to obtain new counsel within thirty days or face dismissal. SPCI then requested that discovery be extended another sixty days to November 14, 2005, which was approved by all parties. Although Hobart had not filed any cross-claims against SPCI or Ever-Nu, it did serve Petro, SPCI and Ever-Nu with interrogatories and document requests. No discovery was provided in response to those requests.
Petro did not obtain new counsel by September 7, 2005, as ordered and on September 26, 2005, SPCI filed a motion to dismiss Petro's claims against SPCI with prejudice. Hobart then filed a cross-motion on October 13, 2005, to dismiss Petro's claims against it, enter judgment in favor of Hobart and permit it to assert direct claims against SPCI and Ever-Nu for breach of contract, breach of the covenant of good faith and fair dealing, breach of warranty and negligence. Both motions were returnable on October 21, 2005, three weeks prior to the end of discovery.
On October 17, 2005, SPCI opposed Hobart's motion, contending that the June 9, 2005, trial date precluded any discovery extensions absent exceptional circumstances despite the fact that SPCI had secured an extension of discovery through November 14, 2005. SPCI also argued that Hobart was not the intended beneficiary of its contract with Petro and, as a result, Hobart could not sue SPCI. On October 19, 2005, SPCI filed a protective motion returnable on ...