On appeal from Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-2519-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 23, 2009
Before Judges Payne and C.L. Miniman.
Plaintiffs Mark A. Godfrey and Deloy Godfrey appeal from a September 23, 2008, order denying their motion for reconsideration of four orders entered between February 14, 2006, and January 28, 2008, and granting the cross-motion of defendant Christopher Martin, individually and trading as Martin Builders & Renovators, seeking dismissal of the complaint with prejudice as to all defendants.
The four orders as to which reconsideration was sought are
(1) an order of February 14, 2006, requiring arbitration of plaintiffs' Consumer Fraud Act*fn1 (CFA) claims but denying dismissal of their complaint; (2) a mediation referral order of March 27, 2006, entered pursuant to Rule 1:40-1, which required completion of mediation within ninety days; (3) a January 24, 2008, order dismissing plaintiffs' complaint without prejudice but with leave to vacate if some unspecified proceeding did not dispose of the case; and (4) a virtually identical order of January 28, 2008, dismissing plaintiffs' complaint without prejudice but with leave to vacate if some unspecified proceeding did not dispose of the case.
At the heart of the procedural dispute here are arbitration agreements contained in the architectural-services agreement to which plaintiffs and defendants Gary Mertz and Mertz Architects, P.C. (collectively Mertz), are parties, and in the home-improvement contract to which plaintiffs and Martin are parties.*fn2
On May 2, 2001, plaintiffs accepted a proposal for architectural services to be performed by Mertz. The attached Proposal Criteria provided in pertinent part in ¶ 7 as follows:
Claims, disputes or other matters in question between the parties to this Agreement arising out of or relating to this Agreement or breach thereof shall be subject to and decided by arbitration in accordance with the Construction Industry Arbitration Rules of the American Arbitration Association [AAA] currently in effect unless the parties mutually agree otherwise. No arbitration arising out of or relating to this Agreement shall include, by consolidation, join[der] or in any other manner, an additional person or entity not a party to this Agreement except by written consent containing a specific reference to this Agreement signed by the Owner, Architect, and any other person or entity sought to be joined.... In no event shall the demand for arbitration be made after the date when institution of legal or equitable proceedings based on such claim, dispute or other matter in question would be barred by the applicable statutes of limitations. The award rendered by the arbitrator or arbitrators shall be final and judgment may be entered upon it in accordance with applicable law in any court having jurisdiction thereof.
The August 6, 2001, Contractor's Work Assignment Agreement between plaintiffs and Martin more simply provided:
The parties agree that any action to enforce this agreement or any duties or obligations arising out of it shall be submitted to the [AAA], pursuant to the Construction Industry Dispute Resolution Procedures. The prevailing party in such proceeding, shall receive in addition to all other rights and remedies, any reasonable costs and expenses [in]curred in such proceedings, including reasonable attorney fees.
The complaint in this matter was filed on September 22, 2005, and summonses were issued on November 18, 2005. Martin appeared and moved to dismiss on November 30, 2005. On December 27, 2005, Mertz filed a cross-motion to dismiss. On January 5, 2006, counsel for Manyoke wrote to the judge advising that his client was willing to voluntarily submit the matter to arbitration. On January 12, 2006, counsel for plaintiffs advised the court that they had decided to consent to a single arbitration proceeding with all defendants in the case. The judge placed his decision on the record on February 6, 2006.
The judge explained that Martin sought to dismiss plaintiffs' CFA claim for failure to state a claim on which relief could be granted and to dismiss the balance of their claims because of the arbitration clause in the home-improvement agreement. He observed that Mertz had filed a cross-motion but that it had been withdrawn because the parties were going to arbitration. He further noted that plaintiffs contended that neither arbitration clause was applicable. However, he found that both arbitration clauses were sufficiently broadly worded to encompass the CFA claims because they arose out of the failure to perform under the contracts. He also found that the allegations of the complaint were ...