January 11, 2008
PROSPECT ASHLEY CONDOMINIUM ASSOCIATION, INC., PLAINTIFF,
LOOKOUT BUILDERS, INC. AND CHARLES ZOCCOLI, DEFENDANTS-APPELLANTS, AND E. ROBINSON GROUP, INC., DOR-WIN MANUFACTURING CO. AND DEGUSSA WALL SYSTEMS, INC., SUCCESSOR BY ACQUISITION TO BOTH SYNERGY, INC., AND HARRIS SPECIALTY CHEMICALS, INC., DEFENDANTS-RESPONDENTS, AND JOSEPH FARRELL, MARIA ZOCCOLI, JOSEPH RICCIARDO, MARY LOU HONL, IMPACT REALTY ASSOCIATES, INC., AMERICAN APPLICATION SYSTEMS, INC., AMERICAN APPLICATION ASSOCIATES OF RIVER EDGE, INC., WILLIAM BERNTSEN, J.P. PATTI ROOFING CO., INC., KNICKERBOCKER DEVELOPMENT, CONCRETE CONSTRUCTION COMPANY, AND VILLAROSA CONSTRUCTION, DEFENDANTS.
On appeal from the Superior Court of New Jersey, Law Division, Bergen County, L-10051-02.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 4, 2007
Before Judges Coburn, Fuentes, and Grall.
Defendants, Lookout Builders, Inc., and Charles Zoccoli ("Lookout") appeal from an order dismissing their cross-claims for contribution under the Joint Tortfeasors Contribution Law ("JTCL"), N.J.S.A. 2A:53A-1 to -5, and for common law and contractual indemnification against defendants Dor-Win Manufacturing Co. ("Dor-Win"), Degussa Wall Systems, Inc. ("Dugussa"), and E. Robinson Group, Inc. ("Robinson") (also referred to collectively hereinafter as "respondents"). We affirm.*fn1
This case arose from the construction of the Prospect Ashley Condominium, which began in Hackensack in the late 1980's and was completed in the early 1990's. Lookout owned and developed the project as general contractor. Dor-Win manufactured and supplied the windows pursuant to a contract with Lookout; Degussa manufactured a product called Exterior Insulation Finish System ("EIFS"). Robinson purchased the EIFS from Degussa and supplied it to the site, where it was installed by other entities.
From 1993, by which time the project was complete, through some time in 2000, Lookout retained control of the Condominium Board. Although Lookout had received complaints from unit owners about water leaking into the building through the windows, it took no legal action on those complaints. In 2000, Lookout relinquished control of the Board to the owners of the condominiums.
In 2002, plaintiff, Prospect Ashley Condominium Association, Inc., filed suit against Lookout and ultimately, by amended complaints, included as defendants, among others, DorWin, Degussa, and Robinson. Although Lookout filed cross-claims for contribution and indemnification, it never served them on Dor-Win, Degussa, or Robinson.
In January 2006, Lookout wrote to Robinson's counsel seeking indemnification pursuant to a written indemnification agreement. About four months later, Robinson refused the request.
The briefs advise us that after the conclusion of extensive discovery, respondents filed motions for summary judgment against plaintiff on the ground that its claims were barred by the statute of limitations. By order dated May 30, 2006, summary judgment was entered for Dor-Win dismissing the "Complaint and all claims against them (sic)." Another May 30, 2006, order granted summary judgment on the complaint to Robinson but preserved Lookout's cross-claims. The parties appear to agree that Degussa also obtained summary judgment on the complaint at the same time as the other respondents, but an order to that effect is not included in the record.
Lookout filed a motion on or about June 1, 2006. The relief sought was an order "clarifying" the prior orders so as to indicate that its cross-claims for contribution and indemnification against the respondents would be preserved. Robinson replied with a cross-motion seeking dismissal of Lookout's cross-claims against it. Without filing a motion, Dor-Win asked for the same relief. At argument on the motions, Degussa, apparently without the support of any written request, but without objection on that ground from Lookout, also asked for dismissal of the cross-claims against it. The result was an order entered on August 18, 2006, which dismissed Lookout's cross-claims against the three respondents. Although the order does not say so, the parties agree that the dismissal was with prejudice.
In September 2006, plaintiff and Lookout settled their differences with Lookout agreeing to pay plaintiff one million dollars, and on September 12, 2006, the court entered an order of dismissal. On December 8, 2006, a judgment was entered, on the settlement, apparently at Lookout's request. The judgment stated, in pertinent part, that "judgment be entered in favor of Plaintiff and against the Defendant Lookout Builders, Inc., inclusive of all interest and costs in the amount of One Million Dollars."
On January 11, 2007, Lookout filed its Notice of Appeal seeking review of the August 18, 2007, order dismissing its cross-claims against the respondents.
Two of the respondents, Robinson and Degussa, argue that Lookout's appeal should be dismissed because it was filed too late. Robinson argues that the time for appeal began to run when the order was entered "on September 9, 2006, dismissing this matter with prejudice." The order is actually dated September 12, 2006, and it does not state that it is with prejudice. Degussa has the date of the order correct, but fails to include any supporting authority for its argument. The record contains no evidence that the September 12, 2006, order was requested by any party, served on Lookout, or even filed with Lookout's knowledge. Apparently, it was entered sua sponte by the judge, and it reads as follows: "It having been represented by counsel that this case has been settled: It is on this 12 day of Sept., 2006, ORDERED that this action is hereby dismissed." Lookout suggests that the order was entered by the judge for an "administrative" reason; namely, to remove the case from the docket.
In Straus v. Borough of Chatham, 316 N.J. Super. 26, 33 (App. Div. 1998), we held that the appeal of an earlier summary order dismissing plaintiff's complaint against two respondents was timely because it was taken within 45 days of the later filing of a stipulation of dismissal as to another defendant. We also observed that there was no final judgment until the stipulation had been filed because up until then all issues had not been resolved as to all parties. Ibid.; Hudson v. Hudson, 36 N.J. 549, 553 (1962); Yuhas v. Mudge, 129 N.J. Super. 207, 209 (App. Div. 1974).
There is no evidence that Lookout was aware of the filing of the dismissal order even though it was, of course, aware that it had reached a settlement with plaintiff. We are inclined to think that Lookout was obliged to file a stipulation of dismissal or the consent judgment long before the date on which it finally accomplished the latter step, December 8, 2006. But Robinson and Degussa have not made that argument and we are not inclined to raise it on our own. Since there is no indication that Lookout was aware of the September 12, 2006, order, and since neither Robinson nor Degussa took any action toward obtaining entry of a final order disposing of the claim between plaintiff and Lookout, we are satisfied that the time for appeal did not begin to run until the filing of the December 8, 2006, judgment, which makes the appeal timely.
Plaintiff's action against Lookout was not based on products liability, but rather on other claims, including Lookout's breach of its fiduciary duty. Berman v. Gurwicz, 189 N.J. Super. 89 (Ch. Div. 1981), aff'd 189 N.J. Super. 49 (App. Div.), certif. denied, 94 N.J. 549 (1983). On the other hand, Lookout's claims against the respondents were based on products liability and indemnification.
Lookout's claim for common law indemnity had to be dismissed because it could not show that it was free from active fault. Promaulayko v. Johns Manville Sales Corp., 116 N.J. 505, 511 (1989); Cartel Capital Corp. v. Fireco of New Jersey, 81 N.J. 548, 566 (1980).
Lookout's pleadings on contribution never mentioned contractual indemnity, a claim it now wishes to pursue against Robinson; rather, it sought "indemnity in accordance with established legal principles" from all defendants. No facts were alleged in support of contractual indemnity, a violation of R. 4:5-2. Moreover, Lookout has failed entirely to supply any legal authority or detailed argument in support of its claim for contractual indemnity.
Lookout's unserved claims for contribution were properly dismissed because the Joint Tortfeasors Contribution Law ("JTCL"), N.J.S.A. 2A:53A-1 to 5, is inapplicable in these circumstances. The rule is well settled: there must be "joint liability and not joint, common or concurrent negligence."
Farren v. New Jersey Tpk. Auth., 31 N.J. Super. 356, 362 (App. Div. 1954) (citations omitted). The liability must be common and must arise at the time of the accrual of plaintiff's cause of action. Cherry Hill Manor Assoc. v. Faugno, 182 N.J. 64, 72 (2004)(citing Markey v. Skog, 129 N.J. Super. 192, 200 (Law Div. 1974). Furthermore, the liability must be for the same injury. Finderne Management Co. v. Barrett, 355 N.J. Super. 197, 208 (App. Div. 2002). Determination of whether the liability is for the same injury requires consideration of the pleadings. Ibid. And [w]here the pleadings show separate torts, severable as to time and breaching different duties, rather than a joint tort, dismissal of the third-party action is appropriate. [Ibid.]
Contrary to R. 2:5-4(a) and R. 2:6-1(a)(1), Lookout failed to include in its appendix any of plaintiff's complaints. That alone would justify rejection of Lookout's JTCL argument. But another party has included plaintiff's second amended complaint so we will not decide this issue based on Lookout's failure to abide by the rules.
Although the complaint includes allegations against respondents sounding in products liability, its allegations against Lookout are far more extensive factually and concern actions for consumer fraud, common law fraud, breach of express and implied warranties, breach of contract, breach of fiduciary responsibility, violation of the New Jersey Planned Real Estate Development Full Disclosure Act, N.J.S.A. 45:22A-21 to -56.
In short, there is no basis for Lookout's claim that it is entitled to contribution with respect to its one million dollar settlement with plaintiff because there is no way to determine to what extent the settlement may have been based on injury caused by product defects as distinguished from injury arising from all the other causes of actions asserted against Lookout.
In addition to not serving its cross-claims on respondents, Lookout never retained an expert on products liability. Nor throughout the proceedings did it ever adopt the report of plaintiff's expert or retain his services. The time for discovery had ended and the case was ready for trial. Without an expert witness, Lookout would have been incapable of proving a products liability case against any of the respondents, which provides yet another basis for affirming the order.