On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, L-1292-01.
Before Judges King, Lintner, Lisa.
The opinion of the court was delivered by: Lisa, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Plaintiff, Juanita Mango, appeals from a summary judgment dismissing her complaint against defendants, McClaren Streets, doing business as M. Streets Cesspool Service (Streets), Turner Dean Century 21 Realty and Mary Dean (Dean), and Warren Pierce, Jr. (designated in the pleadings as Pierce Construction) (Pierce). Plaintiff's claim arises out of her purchase of a previously owned and occupied home. Dean served in the capacity of a dual real estate agent. The agreement of sale required a septic system certification. At Mango's request, Dean arranged for an inspection and the issuance of the certification. Dean selected Streets for this purpose. The buyer and seller consummated settlement. Shortly thereafter, the septic system malfunctioned. Mango hired Pierce to perform remedial work, but terminated her agreement with him and hired a different contractor to complete the job. Plaintiff's complaint seeks damages for the cost of replacing the septic system, and other related costs, on theories against the various defendants of breach of contract, common law fraud, and violation of the Consumer Fraud Act, N.J.S.A. 56:8-1 to -106 (CFA).*fn1
On appeal, plaintiff argues: (1) the trial court erred in concluding that Streets did not make any representation to plaintiff, and summary judgment was improperly granted to Streets because plaintiff made out a prima facie showing of consumer fraud and common law fraud against him; (2) summary judgment was improperly granted to Dean, because plaintiff made a prima facie showing that Dean was negligent and breached a fiduciary duty to plaintiff in selecting Streets for the septic inspection and certification; (3) summary judgment was improperly granted to Pierce, because the issue of delays by Pierce in performing the construction work was a jury issue; and (4) the trial judge erred in rendering her decision on the summary judgment motions before completion of discovery. We agree with plaintiff's argument with respect to the CFA claim against Streets, and we remand for trial on that issue. We reject plaintiff's remaining arguments, and in all other respects affirm the summary judgment order.
Desiring to sell her home, defendant Katherine Pierce-Coombs contacted Darlene Williams, an employee of Dean, for assistance. Williams listed the home in early June 2000. She conducted a walk-through of the property with Pierce-Coombs on June 7, 2000. In connection with the listing, Pierce-Coombs completed a"Property Owner Disclosure Statement," on which she provided a negative answer to the question,"Do you know of any problems relating to the Septic Tank or Cesspool or sewer system?" At about the same time, Mango contacted Mary Dean expressing her interest in purchasing a home. On June 8, 2000, Mary Dean showed the home to Mango. Mango made an offer on the property the next day.
On June 10, 2000, Mango and Pierce-Coombs signed a sales agreement for the price of $124,000.00. In a"Proposal to Purchase Memorandum," Pierce-Coombs agreed to provide a satisfactory septic certification. The sales agreement provided similar assurances. Specifically, the agreement stated:
The SELLER will pay for a currently-dated satisfactory septic certification to be issued by a licensed plumber or a qualified septic service company of the BUYERS choice.
In addition, the SELLER will pay to have the septic system pumped out by a qualified septic system service company if such is required in order for the certification to be issued. Should the inspection of the septic system reveal any problems that the SELLER is unwilling to correct, the BUYER/SELLER may choose to declare this contract null and void and of no further effect. If either party agrees to pay to correct any problems, the other party cannot cancel this contract under this paragraph. Although this provision allowed Mango to choose the party to provide the certification, Mango deferred the choice to Dean. On June 30, 2000, Dean contacted Streets for this purpose. McClaren Streets, the principal employee of Streets, had been in the septic system business for approximately forty-three years. Dean utilized his services several times a month to conduct inspections and issue certifications regarding septic systems in conjunction with real estate sales. No permit or license is required to perform these services, but Streets was the holder a DEP permit to haul waste.
On July 5, 2000, Streets and his assistant came to the property, located and uncovered the septic tank, and pumped it down to observe whether any water came back from the field bed. Because no water came back, they did not dig up the distribution boxes or field beds. Streets had Pierce-Coombs flush a toilet in the house, and concluded the system was flowing suitably. According to Streets,"all these tests were OK and nothing was wrong which indicated to me that the tank and system were in working order." Streets takes the position that he ordinarily does not inspect the entire field. If water is coming back into the tank, he will not certify the system. Instead, he will send someone else to dig up the field.
After completing his inspection, Streets provided a document entitled"Septic System Certification," which states:
On the above date the Septic Tank at the above named property was pumped and inspected. The Septic Tank and Septic System appeared to be in working order on this date.
This Certification for the Septic System is for the date of inspection only. The Certification shall not survive the sale of the said property, nor shall this Certification be effective unless both the Seller and the Buyer sign same at the bottom of this Certification.
NO WARRANTIES OR GUARANTIES ARE MADE AS TO THE CONDITION NOR THE CONTINUED WORKING ORDER OF THE FIELD BED, CONNECTING PIPES NOR THE SEPTIC TANK.
The closing occurred on July 28, 2000. During the weeks following her return from vacation, in late August or early September, Mango began to experience problems with the septic system. She contacted Dean, who in turn contacted Streets, who returned to the property on September 6, 2000 and re-pumped the tank. This proved to be only a temporary solution, and on November 13, 2000, Mango had the property inspected by another contractor, FAVS Corp. This contractor concluded that a new field bed needed to be installed. In performing its inspection and making its analysis, FAVS performed the following work:
Entire system was located and uncovered. Water was found to be over baffles and [distribution box] lid. Pipes in [distribution box] were completely clogged. System was pumped and pressure washed, including field drain lines. System was treated with 15 gallons of septic treatment to assist in clearing clogged lines. System was flushed with water and monitored. On six separate occasions system was inspected. At no time was water level any lower than 2 inches from top of field drain lines. This is an indication that the fieldbed is perking slightly but not adequately for a 2 bedroom dwelling.
To remedy the situation, Dean recommended to Mango that she call Pierce, who is in the business of installing septic systems and performing excavating work. On April 13, 2001, Pierce informed Mango that it would cost $2,500 to replace the drain field bed. Mango agreed, and Pierce began the work on April 17, 2001, after receiving a $1,200 payment from Mango. According to Mango, Pierce"came onto my property and dug up the front yard... and piled up all the dirt around the system." After Pierce's commencement of the work, an official from the Cumberland County Health Department inspected the system and informed Mango that the septic system needed to be redesigned.
On May 8, 2001, Mango entered into an agreement with Johnson Design Associates to perform the re-design work. The drawings were picked up and ready for Pierce to begin the installation of the redesigned field bed on May 18, 2001. As required by the re-design plans, Pierce delivered and unloaded additional dirt to the site. This occurred on May 25, 2001, at which time Mango made an additional payment of $1,050. However, within approximately the next week, Mango unilaterally terminated her contract with Pierce and decided to obtain the services of another contractor to complete the work. She did so, and the new contractor completed the work within about one week.
On the last day of discovery, Mango obtained an expert report from Sandford S. Mersky, P.E., of South Jersey Engineers, LLC. In a detailed five-and-one-half page single-spaced report, issued November 5, 2002, Mersky criticized the procedures used by Streets in conducting his inspection as being totally inadequate. Mersky explained the design and functioning of a septic system, including its various component parts. He explained the usual causes of system failure and the methods utilized by an inspector to determine the source of the ...