On appeal from the Superior Court of New Jersey, Law Division, Mercer County, L-2363-04.
The opinion of the court was delivered by: S.L. Reisner, J.A.D
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Lintner, S.L. Reisner and C.L. Miniman.
Plaintiff Trinity Church appeals from four trial court orders dismissing on summary judgment its complaint against an architect and several other defendants based on alleged construction defects. We conclude that plaintiff's complaint was properly dismissed because it was filed beyond the statute of limitations which, by contract, commenced on the date of substantial completion of the construction project. While we agree with plaintiff that the standard contract clauses abrogating the discovery rule are subject to equitable tolling, plaintiff did not establish a factual basis for equitable relief. Therefore, we affirm.
In 1994, Trinity Church (Trinity) contracted with defendants Atkin Olshin Lawson-Bell (AOL-B or architect) and E. Allen Reeves, Inc. (general contractor), who in turn subcontracted with defendants Bruce E. Brooks & Associates (HVAC and plumbing) and Gallo Masonry, L.L.C. (mason), and third-party defendant Maria Isabel G. Beas (mason consultant).*fn2 The contracts were for renovations to Trinity's historic church located in Princeton, New Jersey, and construction of an addition to the structure.
The relevant contracts, which were also incorporated by reference in the subcontracts, contained clauses providing that the statute of limitations for any cause of action arising under the contracts would run from the date of "Substantial Completion." The architect's contract provided:
Causes of action between the parties to this Agreement pertaining to acts or failures to act shall be deemed to have accrued and the applicable statutes of limitations shall commence to run not later than either the date of Substantial Completion for acts or failures to act occurring prior to Substantial Completion, or the date of issuance of the final Certificate for Payment for acts or failures to act occurring after Substantial Completion.
The general contractor's contract similarly provided:
As to acts or failures to act occurring prior to the relevant date of Substantial Completion, any applicable statute of limitations shall commence to run and any alleged cause of action shall be deemed to have accrued in any and all events not later than such date of Substantial Completion[.]
By their terms, the contracts pertaining to the architect and its subcontractors are governed by Pennsylvania law, which provides a four-year statute of limitations for construction contract lawsuits, 42 PA. CONS. STAT. § 5525(a)(8) (2006), while those of the general contractor and its subcontractors are governed by New Jersey law, which has a six-year limitation period. N.J.S.A. 2A:14-1. See Gustine Uniontown Assocs. v. Anthony Crane Rental, Inc., 842 A.2d 334, 349 (Pa. 2004).
The parties signed a certificate establishing August 1, 1997, as the date of substantial completion of the project. Trinity first noticed problems with the construction in April 2000, particularly problems with the mortar, and began communicating with AOL-B about those issues. The parties, including Reeves and Beas, held a series of meetings at which they discussed possible causes of the problems and possible solutions. Finally, AOL-B hired a consultant, 1:1:6 Technologies, Inc., which investigated and issued a lengthy report in September 2002 detailing the problems it discovered with the construction. Trinity received a copy of the report, but it neither filed suit at that time nor undertook any investigation of its own.
Two years later, on September 13, 2004, Trinity filed a two-count complaint, alleging that a defective mortar had been used in the construction and that the HVAC and plumbing work had been done in a defective manner, causing a mold problem and water damage in the building. After filing suit, Trinity hired an engineering consulting firm to evaluate the construction; this firm issued a report on August 24, 2005, and a second report on October 13, 2005. In September and October 2005, defendants filed motions for summary judgment seeking dismissal of the complaint on statute of limitations grounds. On October 18, 2005, Trinity filed a motion for leave to amend its complaint to "clarify" the existing counts of the complaint, to add defendants, and to add a count concerning defective lamination of the church doors and a count concerning "defects in the wall structure of the Church" based on Trinity's expert reports.
After filing its initial opposition to summary judgment, Trinity changed attorneys on October 25, 2005, and the return date of the summary judgment motions was extended to January 6, 2006. Trinity filed supplemental opposition papers on November 23, 2005. Although its initial motion brief contended generally that discovery was incomplete, none of Trinity's motion submissions indicated specifically what further discovery it needed. The record is barren of any motions by Trinity to compel discovery from other parties. On the other hand, Trinity was in default of its discovery obligations until its new counsel provided discovery in response to a court order.
In an oral opinion placed on the record on January 6, 2006, Judge Jacobson granted summary judgment. Relying on Harbor Court Associates v. Leo A. Daly Co., 179 F.3d 147 (4th Cir. 1999), and College of Notre Dame of Maryland, Inc. v. Morabito Consultants, Inc., 752 A.2d 265 (Md. Ct. Spec. App. 2000), she concluded that, in the "Substantial Completion" clauses of the contracts, Trinity bargained away its right to invoke the discovery rule as a means of avoiding the bar of the statute of limitations. Addressing Trinity's claims for equitable relief from the bar of the statute, she reasoned that "[t]here's no claim in this complaint for fraud. There's no claim even for misrepresentation." She also noted that no such claims appeared in the proposed amended complaint which was the subject of plaintiff's motion.
Judge Jacobson found no evidence that defendants had tried to mislead Trinity or to convince plaintiff not to file a lawsuit. She reasoned that the 2002 report from 1:1:6 Technologies revealed "significant cracking" and other problems with the construction, and this should have put plaintiff on notice to investigate and/or file a lawsuit at that time. The judge rejected Trinity's estoppel claim: "[H]ow can I estop the defendants when they were the ones providing most of the information to the plaintiff regarding problems at the church within the New Jersey statute of limitations[?]" She found that "the church had information that there were problems with the work . . . well within the statute of limitations and for whatever reason, which is not clear on the record, they did not file the lawsuit until after the statute of limitations had lapsed." She concluded that no further discovery was warranted and that summary judgment should be granted.
[T]o allow further discovery at this point seems to me to be simply a fishing expedition. . . .
. . . [T]here has been discovery . . . [and] opportunities for discovery and nothing in any of the documents that I've seen suggests that the kind of conduct necessary for an estoppel was present here.
. . . And to suggest now that the significance of the latent defects alone should be enough to undo the original contract, AIA contract, to [undo] the church's signing off on the date of substantial completion, I think would effectively destroy the consistency that parties on both sides have a right to rely upon in situations of this nature.
Our review of a trial court's grant of summary judgment is de novo, using the Brill standard ...