On appeal from the Superior Court of New Jersey, Law Division, Morris County, Docket No. L-1588-00.
Before Judges Pressler, Ciancia*fn1 and R. B.
The opinion of the court was delivered by: R. B. Coleman, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
We granted leave to defendant Structural Stone & Brick Company (Structural Stone) to appeal from the October 16, 2002, interlocutory order of the Law Division, Morris County, denying its motion for summary judgment. At issue is whether the claims asserted by plaintiff Felice DiIorio for economic losses arising out of the deterioration of the stone façade of his residence are governed by the four year statute of limitation of the Uniform Commercial Code (U.C.C.), N.J.S.A. 12A:2-725(1), or by the six year statute of limitations applicable to tortious injury to real or personal property, N.J.S.A. 2A:14-1. The motion judge ruled the six year statute of limitation applied and gave the following as the reasons for his order:
This is a product liability case [and] not governed by the U.C.C. Statute of Limitation.
[Plaintiff] bought a house containing arguably defective stones not fit for exterior use which resulted in damage to [plaintiff's] house. Thus there was damage to the entire house (leaks, deterioration, etc.) and not just to stones. [Plaintiff] purchased a house not individual stones [and] the stones are an integral part of the house, a"fixture."
Fact questions exist as to [Consumer Fraud Act] [and] punitive damages.
Based upon our careful consideration of the defendant's arguments in light of the record and the applicable law, we agree that plaintiffs' claims are governed by the six year statute of limitations; however, in our view the transaction was primarily one for the professional services of a builder in which Structural Stone supplied stone incidental to the contract for the construction of residential premises. We also agree with the motion judge that fact questions preclude the dismissal of plaintiff's claims asserted under the Consumer Fraud Act, N.J.S.A. 56:8-1 to -20. We, therefore, affirm the denial of defendant's motion to dismiss. We remand the denial of Structural Stone's alternative motion for reconsideration of the order dismissing its third party complaint against its supplier, Western Carolina Stone Center and Supply Inc. (Western Carolina).
On a motion for summary judgment, the trial court properly views the facts in the light most favorable to non-movant giving him the benefit of all legitimate inferences. R. 4:46-2(c); Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). So viewed, the record establishes that in April 1994, plaintiff entered into an agreement with Two J. Development Corp. and Jerald A. Hurwitz (collectively referred to as the builder) for the construction of a home in a luxury residential development. One of the features plaintiff desired in the home was a stone façade. In the fall of 1994, the builder arranged for plaintiff to visit his stone supplier, Structural Stone. There, plaintiff met with Thomas Loungo, who showed him displays and affirmatively represented to him that all of the stones in those displays were of high quality and suitable for use on the exterior of a home. He said plaintiff's choice was purely a matter of personal taste. Plaintiff made his selection and in due course, construction was completed. There was no separate and discrete transaction between plaintiff and Structural Stone. The stone was included as part of plaintiff's agreement with the builder for the cost of construction of the home.
Plaintiff closed title on his new home on May 17, 1995. In the spring of 1996, he first noticed problems. The stone began to flake and to exhibit a"crystallization effect." Plaintiff informed the builder, who did a visual inspection and told plaintiff the stone needed to be sealed. Later that spring, Tom Luongo of Structural Stone also examined the stone. He reiterated what the builder had told plaintiff, that the stone simply needed to be sealed. Because the builder failed to follow up on his promise to seal the stone, in the spring of 1997 plaintiff retained a different contractor to apply a sealant. The problem continued. The initial flaking was like dust, but eventually"large pieces of stone were falling off. The stone was flaking like it was a piece of cheese being sliced." The stones seemed porous, permitting moisture to infiltrate the home causing staining, flaking and shearing of the interior and exterior stone. Finally, the stone had to be removed and replaced. This resulted in other damage to the house, the deck and the landscaping.
On February 18, 1997, plaintiff and another couple who had purchased a home constructed by the builder in the same residential development commenced a civil action against the builder and the realty company that had promoted their real estate transactions. Among other things, plaintiff complained about the exterior and interior stone flaking off. Shortly before that civil action was to be listed for trial, plaintiff moved for leave to amend his complaint to add Structural Stone as an additional party. By order dated October 25, 1999, that requested relief was"denied without prejudice to plaintiffs' right to assert such claims in a subsequent litigation."*fn2
Plaintiff commenced this action on May 19, 2000. Structural Stone was the only named defendant. On September 18, 2001, Structural Stone moved for an order permitting it to file a third party complaint or in the alternative to dismiss plaintiff's complaint under the entire controversy doctrine. The motion to dismiss was denied, but leave was granted permitting Structural Stone to file the third party complaint against Western Carolina and the builder. On August 16, 2002, Western Carolina moved to dismiss Structural Stone's third party complaint contending that its claim was barred by the four year statute of limitations of the U.C.C., N.J.S.A. 12A:2-725(1). That motion was granted. Structural Stone then moved to dismiss plaintiff's complaint, contending that his complaint should likewise be barred by the U.C.C. statute of limitations. This appeal ensued upon leave granted from the denial of that motion and the denial of Structural Stone's request for reconsideration of the dismissal of its third party complaint against Western Carolina.
At the outset, we reject defendant's argument that plaintiff's complaint should have been dismissed under the entire controversy doctrine. Plaintiff's claim was expressly preserved in the order denying his motion for leave to join Structural Stone in the original action against the builder. "[T]he polestar for the application of the [entire controversy] doctrine is'[j]udicial fairness.'" Interchange State Bank v. Veglia, 286 N.J. Super. 164, 189 (App. Div. 1995), certif. denied, 144 N.J. 377 (1996)."[A] party whose constituent claim arises during the pendency of the action risks its loss unless he apprises the court and his adversary of its existence and submits to judicial discretion the determination of whether it should be joined in that action or reserved." Brown v. Brown, 208 N.J. Super. 372, 382 (App. Div. 1986). Where, as here, the court has ...