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Schatten v. Haws

January 9, 2008

DAVID J. SCHATTEN AND DONNA P. SCHATTEN, PLAINTIFFS-APPELLANTS,
v.
RICHARD HAWS, LORA AMOROSO HAWS, ENVIRONMENTAL HEALTH GROUP, INC., D/B/A HOME TESTING LABS, INC., ROBERT J. OLIVETO, DEFENDANTS, AND BURGDORFF REALTORS, INC., AND WEICHERT REALTORS, INC., DEFENDANTS-RESPONDENTS,



On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-9590-95.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted November 14, 2007

Before Judges Skillman, Winkelstein and Yannotti.

Plaintiffs David J. Shatten and Donna P. Shatten appeal from various orders entered in this action, including an order entered on July 21, 2006 dismissing their complaint with prejudice. We affirm.

In this action, which was commenced on August 7, 1995, plaintiffs asserted claims against defendants Richard Haws; Lora Amoroso Haws; Environmental Health Group, Inc. d/b/a Home Testing Labs, Inc.; Robert J. Oliveto; Burgdorff Realtors, Inc.; and Weichert Realtors, Inc. The claims arose from plaintiffs' purchase of certain property in South Orange, New Jersey. Richard and Lora Amoroso Haws were the sellers of the property, and Weichert and Burgdorff were the Haws' agents for the sale. Plaintiffs retained Home Testing to conduct an inspection of the premises, and Mr. Oliveto conducted the inspection. Closing on the sale occurred on August 31, 1994.

According to the complaint, Mr. and Ms. Haws knew of but "willfully, intentionally and fraudulently" failed to disclose the existence of certain "structural and cosmetic defects" in the house, including defective electrical wiring, defective pipe and duct work, and a defective outside deck. Plaintiffs alleged that Home Testing failed to conduct an adequate inspection of the property. Plaintiffs claimed that they had been forced to expend substantial funds to correct the defects in the premises. They also claimed that Ms. Schatten sustained serious personal injuries when she tripped and fell on a sagging step on the outside deck.

Plaintiffs further alleged that Weichert and Burgdorff misrepresented and/or concealed material facts with respect to the property in violation of the Consumer Fraud Act, N.J.S.A. 56:8-1 to -20. Plaintiffs sought compensatory damages, treble damages on the consumer fraud claims, punitive damages, interest, counsel fees and costs, and such further relief deemed necessary or appropriate.

By order entered on August 31, 1998, the court granted Burgdoff's motion for partial summary judgment and dismissed all claims against Burgdorff with the exception of a claim that it failed to disclose the existence of an underground oil tank on the property. Plaintiffs filed a motion for reconsideration of the August 31, 1998 order. The motion for reconsideration was denied by order filed on September 23, 1998.

On November 4, 1998, Weichert filed a motion for partial summary judgment. The court granted the motion and entered an order on December 17, 1998, dismissing all claims against Weichert with the exception of those related to the oil tank. The order stated that the court reserved its decision on Weichert's motion on the claims regarding the deck.

Plaintiffs thereafter filed a motion for leave to appeal from the December 17, 1998 order. We denied that motion by order dated February 9, 1999. It is unclear from the record whether the matter was ever scheduled for trial. However, by letter dated April 13, 1999, plaintiffs' counsel advised the court that Ms. Schatten would be unable to appear because of a "debilitating medical condition."

There appears to have been no action in the matter until January 31, 2001, when plaintiffs filed a motion to restore the claims that were dismissed by the court's order of December 17, 1998. The court entered an order on March 2, 2001, denying that motion.

There the matter stood until February 22, 2006, when plaintiffs filed a motion to reopen the case and requested that the court schedule a case management conference. Weichert and Burgdoff opposed the motion.*fn1 The judge entered an order on March 31, 2006, which denied the motion without prejudice. The judge stated on the record that before scheduling a case management conference, he would afford Weichert and Burgdorff an opportunity to file motions to dismiss the complaint.

Weichert filed its motion to dismiss on May 16, 2006. Weichert asserted that the doctrine of laches required dismissal of the complaint. In a supporting certification, Weichert's attorney stated that after the court entered the order on March 2, 2001, all activity in the case ...


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