On appeal from the Superior Court of New Jersey, Law Division, Camden County, Docket No. L-6834-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Sabatino and Alvarez.
This matter involves a lawsuit by homeowners against the builders who sold them their residence. The homeowners, plaintiffs Marc and Lisa Stahl, appeal the Law Division's order of February 2, 2007 granting summary judgment to defendants. The order was predicated upon the Law Division's finding, on the written submissions, that plaintiffs' complaint was time-barred under the applicable statute of limitations. We vacate the order, and remand for an evidentiary hearing for the Law Division to reconsider whether the limitations period should be extended under the "discovery" doctrine of Lopez v. Swyer, 62 N.J. 267, 274 (1973).
Although the facts will be developed more on remand, the following chronology from the existing record is relevant to our consideration of the issues on appeal.
In May 1998, plaintiffs signed a contract to purchase a new home from defendant Sybig C.F.S., Inc. ("Sybig"), a home construction company. The contract was signed by defendant Samuel*fn1 Girlya, president of Sybig.*fn2 The house, which is located in Cherry Hill, had a purchase price of $375,000.
At the time plaintiffs first viewed the house and agreed to purchase it, its construction was substantially complete, with the exception of flooring, plumbing, and other interior fixtures. Plaintiffs contend that, at that time, the exterior of the house was represented by the seller as "100% completed." An appendix to the sales contract, entitled "[I]tems included in the construction," specified that the home was built with a "Synthetic Stucco exterior."
As part of their purchase, plaintiffs received from defendants a limited warranty for new construction through the Home Buyers Warranty program ("HBW"), N.J.S.A. 46:3B-3. This included a one-year warranty on workmanship and materials, a two-year warranty on systems, and a ten-year warranty against "major structural defects." Through the HBW program, the builders serve as the warrantors, with the contingent protection of HBW. In order to offer this type of warranty, defendants had to meet HBW's "builder approval guidelines."
Plaintiffs acquired title to the house at a closing on August 14, 1998. Shortly after moving into their new home, plaintiffs discovered various defects. Consequently, on April 11, 1999, plaintiffs sent defendant Girlya a letter, pursuant to the HBW warranty instructions, enumerating a punch list of the deficiencies that plaintiffs had found. Plaintiffs requested that Girlya repair the problems.
The April 11 letter, which was signed by Marc Stahl, enumerated eight items. Listed first among those were "[e]xterior blisters of the [o]utside 'Thorolastic'*fn3 Stucco Finish of House." In relevant part, his letter stated:
As mentioned to you verbally, there is a significant problem with blistering of the external finish of the house. These blisters are as wide as [three] inches in width and appear repeatedly along the entire back wall of the house where the frame of the house meets the foundation. This blistering is also occurring on the right wall on the front porch and the arch way around the back sliding back door.
I have talked with two different representatives from THORO[,] the manufacturer[,] as well as a local distributor of the product. All three experts have indicated this is not normal and proper application of the product never results in blisters occurring. Since these blisters do exist, it is their collective opinion that these blisters can only occur if either (1) the product was not properly applied or (2) there is negative pressure creating the blisters which usually occurs because water/moisture has gotten between the Thorolastic finish and the frame/masonry of the house. They all indicated the cause must be corrected and the finish be redone.
[I]f the above defects in workmanship are not corrected within two weeks upon receipt of this letter, I will have no choice but to file this ...