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Grzymala v. McKeon

July 31, 2007

RONALD GRZYMALA AND KATHRYN A. GRZYMALA, PLAINTIFFS-APPELLANTS,
v.
DONALD A. MCKEON, SR., MARY JO MCKEON AND YALE ENTERPRISES, L.L.C., D/B/A RE/MAX SUBURBAN, DEFENDANTS,
AND HARRIETS OIL SERVICE AND PEASE ENGINEERING, INC., DEFENDANTS-RESPONDENTS.



On appeal from Superior Court of New Jersey, Law Division, Burlington County, Docket No. L-328-03.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued April 24, 2007

Before Judges Coburn, R. B. Coleman and Gilroy.

Plaintiffs Ronald Grzymala and Kathryn A. Grzymala appeal from: 1) the July 22, 2005, order of the Law Division, granting summary judgment to Pease Engineering, Inc. (Pease Engineering)*fn1 ; 2) the February 3, 2006, order dismissing Count Twelve of the amended complaint as to Harriets Oil Service (Harriets); and 3) a second order of February 3, 2006, denying their cross-motion for leave to file a second amended complaint.*fn2 We affirm in part and reverse in part.

This action arises from plaintiffs' purchase of a single-family dwelling at 8 Carolyn Lane, Southampton, from defendants Donald A. McKeon, Sr., and Mary Jo McKeon on July 27, 2001, following plaintiffs' post-closing discovery that soil, surrounding a portion of the home's foundation located underneath a wooden deck, was contaminated by fuel oil. On February 25, 2003, plaintiffs filed an amended complaint against defendants: McKeons; Harriets, a retail fuel oil company that had delivered fuel oil to the premises during both the McKeons' and plaintiffs' ownership; Pease Engineering, plaintiffs' home inspection company; and Yale Enterprises, LLC, d/b/a Re/Max Suburban (Re/Max), the McKeons' real estate broker.

The first eleven counts of the amended complaint sought damages for property damage only. Counts One through Four asserted negligence, gross negligence, negligent misrepresentation, and intentional misrepresentation against the McKeons. Counts Five through Seven asserted gross negligence, intentional misconduct, and willful, wanton, and reckless misconduct against Harriets. Counts Eight and Nine asserted negligence and gross negligence against Pease Engineering. Counts Ten and Eleven asserted negligence and negligent misrepresentation against Re/Max. Finally, Count Twelve asserted a personal injury claim on behalf of Ronald against all defendants.

On June 23, 2003, the McKeons filed a motion to dismiss the amended complaint. On August 22, 2003, the motion was granted as to Count Twelve, but was denied as to Counts One through Four.*fn3 A confirming order was entered the same day. Following settlement on the property damage claims against Harriets, plaintiffs filed a stipulation of dismissal, dismissing Counts Five through Seven of the amended complaint. The stipulation provided in pertinent part that "[i]t is stipulated and agreed by the parties that this dismissal shall not affect, nor be deemed a dismissal of, [p]laintiffs' claims for personal injury under the amended complaint . . . ." On May 5, 2005, Pease Engineering moved for summary judgment, contending that it had not deviated from its standard of care as a home inspection company, and it was not required to inspect the underground storage tank (UST) or surrounding soil. The motion was granted on July 22, 2005, and a confirming order was entered that day. On November 21, 2005, a stipulation of dismissal with prejudice was filed as to Re/Max.

On December 23, 2005, the McKeons filed a motion for summary judgment seeking to dismiss the property damage claims asserted against them. On January 17, 2006, Harriets filed a motion seeking to dismiss Count Twelve, the only remaining count against it, contending that the count did not state a cause of action for personal injury as evidenced by the court's grant of the McKeons' prior motion on August 22, 2003. Plaintiff opposed, contending that Count Twelve stated a claim for personal injuries; and in the alternative, plaintiffs' cross-moved to file a second amended complaint seeking to assert a personal injury claim on behalf of Ronald. The trial court granted Harriets' motion; denied the McKeons' motion without prejudice; and denied plaintiffs' motion for leave to file a second amended complaint. Confirming orders were entered on February 3, 2006. On March 5, 2006, a stipulation of dismissal was filed, dismissing the complaint with prejudice as to the McKeons.

On appeal plaintiffs argue:

POINT I.

THERE ARE CLEAR ISSUES OF MATERIAL FACT THAT PRECLUDED PEASE [ENGINEERING] FROM OBTAINING A DISMISSAL IN THIS LAWSUIT.

POINT II.

THE COURT INCORRECTLY RULED THAT PLAINTIFFS' CLAIMS AGAINST HARRIET[S] FOR PHYSICAL ...


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