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Lopez v. B & J Craftsmen

July 3, 2008

MARCIE LOPEZ, PLAINTIFF-APPELLANT,
v.
B & J CRAFTSMEN, INC., JAMES BECHTLE, AND ARTHUR MANNS HARDEN AIA, DEFENDANTS-RESPONDENTS, AND B & J CRAFTSMEN, INC. AND JAMES BECHTLE, THIRD-PARTY PLAINTIFFS-RESPONDENTS,
v.
BAINE CONTRACTING, INC., THIRD-PARTY DEFENDANT-RESPONDENT.



On appeal from Superior Court of New Jersey, Law Division, Ocean County, No. L-3499-04.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued April 2, 2008

Before Judges Wefing, R. B. Coleman, and Lyons.

Plaintiff appeals from trial court orders granting summary judgment to defendants. After reviewing the record in light of the contentions advanced on appeal, we affirm.

The dispute between the parties revolves around the design and construction of plaintiff's ocean-front home in Bay Head. Plaintiff retained defendant Arthur Manns Harden, AIA, as the architect for the project and defendant B & J Craftsmen, Inc. as the builder. Defendant James Bechtle is the principal of B & J.

Plaintiff's contract with Harden was executed in July 1992.*fn1

Harden's plans were approved by the Bay Head building department in January 1993. Construction commenced apace and a certificate of occupancy was issued on August 10, 1993. The total cost of construction was $398,277 and Harden's fee was $31,862.16. This fee included his services both for designing the residence and supervising its construction.

Almost immediately after moving into the house in August 1993, plaintiff began to experience a problem with water entering the house around sliding glass doors that entered onto a deck. Later, water got into the house at various points. Plaintiff testified that between 1995 and 1998 Harden and Bechtle returned several times to try to solve the problem but that their efforts were unsuccessful. The record indicates that Harden or individuals from his office visited the premises on various occasions between 1995 and 2003. According to plaintiff, the initial efforts involved putting in new flashing and progressed to replacing some shingles and then replacing and recaulking some windows.

In 1999 to 2000, the water infiltration increased. In September 1999 Bechtle made certain repairs for which he charged $750. These also did not solve the problem. Plaintiff testified that on one New Year's Eve water poured into the dining room. The sliding glass doors entering onto the deck above the dining room were replaced in an attempt to solve the problem. At several points, attempts were made to repair the deck, even to the point to try to change the pitch of the deck to direct water away from the house. This could not be achieved, however, because the deck was part of the original structure of the building.

According to plaintiff, none of the repairs were successful. She testified that the constant leaks required continued repairs inside the house to the walls and the floors. Plaintiff also maintained that the interior of the house was contaminated by mold as a result of the continuing incursions of water into the premises. Mold remediation was undertaken in the fall of 2003. She estimated that as of 2003, she had spent more than $100,000 in repairs and would have to spend nearly $140,000 more in future repairs.

In December 2004 plaintiff commenced this action. She included in her complaint counts for breach of contract, negligence, breach of warranty, common law fraud, and consumer fraud. Defendants moved for summary judgment on the basis of N.J.S.A. 2A:14-1.1, the ten year statute of repose. The trial court denied the motions without prejudice to permit the parties to conduct discovery. After the parties completed discovery, defendants renewed their motions for summary judgment. Plaintiff has appealed from the trial court's order granting those motions.

N.J.S.A. 2A:14-1.1 provides in pertinent part:

No action whether in contract, in tort, or otherwise to recover damages for any deficiency in the design, planning, supervision or construction of an improvement to real property, . . . shall be brought against any person performing or furnishing the design, planning, supervision of construction or construction of such improvement to real property, ...


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