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Daidone v. Bulkheading

June 26, 2007

JOHN DAIDONE AND LAURA DAIDONE, HIS WIFE, PLAINTIFFS-APPELLANTS,
v.
BUTERICK BULKHEADING, SCOTT LEPLEY, LEPLEY DESIGN GROUP AND LEPLEY-MCCORRY ARCHITECTS AIA, P.C., DEFENDANTS-RESPONDENTS, AND JOHN DOE, A FICTITIOUS NAME REPRESENTING A LICENSED PROFESSIONAL ENGINEER RESPONSIBLE FOR REVIEWING AND CERTIFYING CONSTRUCTION AND CERTAIN RECORDS, DEFENDANT.



On certification to the Superior Court, Appellate Division.

SYLLABUS BY THE COURT

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).

The issue in this appeal is whether the start of the ten-year period under the Statute of Repose, N.J.S.A. 2A:14-1.1(a), which provides that no action for deficient design or construction of an improvement to real property may be brought "more than 10 years after the performance or furnishing of such services and construction," should be delayed until the date that a certificate of occupancy is issued, even though the designer or contractor completed his or her work at an earlier date.

Commencing sometime prior to February 1993, plaintiffs John and Laura Daidone took steps to build their home in Lacey Township. Acting as their own general contractor, they hired defendants Scott Lepley, Lepley Design Group, and Lepley-McCorry ArchitectsAIA, P.C. (collectively, Lepley) to provide the architectural design for the home. Lepley prepared and certified the architectural plans, which included a foundation piling system to support the house. The Lacey Township Construction Official approved the plans on June 23, 1993. Once the plans were approved, Lepley had no further role in the design or construction of the Daidone's home. The Daidones also contracted with defendant Buterick Bulkheading to install the foundation pilings. Buterick completed installation of the pilings and invoiced the Daidones for its work. On May 24, 1994, the Daidones paid Buterick's invoice in full. Once its piling services were completed, Buterick performed no further work on the Daidones' home. Construction of the home was completed, and a certificate of occupancy was issued on June 14, 1994. The Daidones then moved in to their home.

Beginning in 1999, the Daidones experienced many problems caused by the home settling on its foundations. For example, there was stress on the natural gas line and electrical panel, the hot water heater pipes ripped through the ceiling, and the sewerage waste pipe ripped out of the floor. The Daidones did not seek expert assistance until late 2001. They retained an expert to perform a subsurface investigation and geotechnical evaluation of their home. In a report dated January 2, 2002, the expert stated that the basement structure settled "due to the underlying soft soils" and that the length of the pilings "may not be enough based on the information available from the soil borings." The report did not state that the design or installation of the pilings was deficient.

Based on their expert's advice, the Daidones made repairs to their home that cost about $90,000. The repairs were completed by July 2002. The Daidones filed their complaint against Lepley and Buterick on June 2, 2004. That date was within ten years of the date they obtained a certificate of occupancy for their home, but it was over tenyears after both Lepley and Buterick had completed their services.

Lepley and Buterick filed a motion to dismiss, arguing that the Statute of Repose barred the complaint. The trial court granted the motion, finding that Lepley and Buterick completed their work more than ten years before the Daidones filed their complaint. In an unpublished opinion, the Appellate Division affirmed, holding that the ten-year statutory period begins when the architect or contractor completes its work relating to the property. The Supreme Court granted plaintiffs' petition for certification. The opinion of the court was delivered by: Justice Rivera-soto

Argued March 5, 2007

This appeal addresses a discrete issue: whether, under the circumstances present in this matter, the Statute of Repose, N.J.S.A. 2A:14-1.1, should not commence until the issuance of a certificate of occupancy notwithstanding the completion of work by subcontractors at an earlier date. In this case, plaintiffs John and Laura Daidone acted as their own general contractor and sub-contracted with several contractors to perform specific portions of the work in respect of the design and construction of their home. Among those, defendants Scott Lepley, Lepley Design Group, and Lepley-McCorry Architects AIA, P.C. (collectively, Lepley) designed plaintiffs' home, and defendant Buterick Bulkheading, Inc. installed the pilings for the home's foundation. More than ten years after both Lepley and Buterick completed their respective portions of the work, but less than ten years after a certificate of occupancy was issued for plaintiffs' home, plaintiffs sued Lepley and Buterick alleging negligence and other claims. Plaintiffs claim that the relevant start date for Statute of Repose purposes must be the date on which the certificate of occupancy issues; Lepley and Buterick assert that the start date must be when they completed their work.

The plain language of N.J.S.A. 2A:14-1.1(a) is clear: no action for deficient design or construction of an improvement to real property may be brought "more than 10 years after the performance or furnishing of such services and construction." (Emphasis supplied). If the design or construction services provided continue up to and including the date the certificate of occupancy is issued for the improvements made, then the start date for Statute of Repose purposes is the date of the certificate of occupancy. However, if the design or construction services are completed before a certificate of occupancy is issued and the designer or contractor has no further functions to perform in respect of that construction project, then the start date for Statute of Repose purposes is the date on which the designer or contractor has completed his or her portion of the work.

I.

Commencing sometime prior to February 1993, plaintiffs took steps to build their home in Forked River, Lacey Township. Although plaintiffs acted as their own general contractor,*fn1 plaintiffs hired Lepley to provide the architectural design for that home, which design included a piling system to support the structure. Lepley prepared and, on February 19, 1993, certified those plans. The Lacey Township Construction Official approved those plans on June 23, 1993. Once the plans were approved, Lepley's retention as an architect was completed, and Lepley had no continuing role or responsibilities in respect of the design or construction of plaintiffs' home. Significantly, plaintiffs did not retain Lepley to perform any construction supervisory services or the like.

After the plans were completed by Lepley and approved by Lacey Township, plaintiffs contracted with Buterick to install the foundation pilings as designed by Lepley. Buterick did so, had the completion of its work in accordance with the plans certified by a professional engineer, and invoiced plaintiffs for all work Buterick performed. On May 24, 1994, plaintiffs paid Buterick's bill in full with a check issued on the account of "DRN Contracting." Once its piling services were completed, Buterick performed no further work on plaintiffs' home. A certificate of occupancy for the home was issued on June 14, 1994 and, thereafter, plaintiffs occupied it.

Starting in 1999, five years after plaintiffs had moved into their home, plaintiffs experienced a number of problems resulting from the home settling on its foundations. According to plaintiffs, their "home settled as a result of the improper installation of the pilings supporting that home and the improper design of the ground level ...


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