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Lane v. Schmied

February 11, 2008

JONATHAN LANE AND ROBIN LANE, PLAINTIFFS-APPELLANTS/CROSS-RESPONDENTS,
v.
ARNOLD SCHMIED AND ANGELA M. SCHMIED, DEFENDANTS-RESPONDENTS/CROSS-APPELLANTS, AND GALAXY REAL ESTATE, INC., NANCY BUNIN, GUARDIAN HOME, OMAR DUARTE, ILEANA DUARTE, VITTORIO LA PIRA, ROSE LA PIRA, HARESH SAVALIA, SHANTA SAVALIA, AND JEFF COSTA, DEFENDANTS.



On appeal from the Superior Court of New Jersey, Chancery Division, Bergen County, Docket No. C-39-07.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued: January 16, 2008

Before Judges Cuff, Lisa and Simonelli.

Plaintiffs Jonathan and Robin Lane purchased a house and soon thereafter experienced water problems in their yard. Plaintiffs filed a complaint against neighboring property owners, the home inspector, and the real estate broker. Plaintiffs also named the former owners of the property, Arnold and Angela Schmied, as defendants and sought rescission of the contract of sale or damages. The matter proceeded to trial solely against the former owners of the property. Following a bench trial, a judgment of no cause for action was entered in favor of defendants Schmied. It is from this judgment that plaintiffs appeal. We affirm.

Plaintiffs alleged that Jonathan Lane asked Angela Schmied a direct question on two occasions about the history of water problems on the property and that she replied that there were no problems. At trial, Jonathan Lane testified that the first conversation about water on the property occurred when Angela Schmied and he were standing near a pond located on a neighbor's property. According to Jonathan Lane,

A: I had asked if they had a mosquito problem on the property. [] I asked this pond, is it an issue, and she told me it wasn't a stagnant pond, that the neighbor had a switch she could flip on and it moved the water and they never had any problems.

Q: Any other issue you discussed?

A: She told me there weren't water problems on the property. One time the property had been flooded during Hurricane Floyd and everybody in the neighborhood had basically been flooded as well and after Hurricane Floyd they decided to put in a 30 to $35,000 system and they were assured that wouldn't happen after.

At their second meeting, Jonathan Lane stated that "she told me exactly the same thing she told me the first time . . . and they were putting something in to fix it and that was pretty much it."

Arnold Schmied testified that Jonathan Lane asked him nothing about drainage issues. Angela Schmied testified that at the time she and her husband purchased the house from the company for which her husband worked, they were satisfied that the drainage problem had been rectified. She recounted the design and installation of a drainage system that included piping and two catch basins and the installation of a silt fence along the property line.

When defendants listed the house for sale, Angela Schmied testified that the drainage issue had been fixed, and "we had a slight conversation or minimal conversation with [the listing agent] where she had asked me something and I wasn't quite sure what she said and I said, do you mean the water situation with the pool, and she said when was that and I said a year ago."

Angela Schmied related a single conversation with Jonathan Lane during his visit to the house as follows:

A. Yes, we were outside in the back yard and we were discussing the catch basin, I believe, with the home inspector, and he asked me if I thought there would be any future water problems or something like that, and I said to him I think you shouldn't have any ...


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