On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-6262-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 10, 2011 -
Before Judges Grall, C.L. Miniman and LeWinn.
Plaintiff Stevonne Wilson entered into a contract to purchase from a developer-builder a new home to be built on a lot subject to the bylaws of the Woodfield Estates Homeowners Association (the Association). The contract was executed in July 2000 and the transaction closed on July 18, 2001. On July 17, 2007, Wilson filed a complaint seeking damages for misrepresentations in connection with the construction and sale of the home, construction defects and overcharging of Association fees. She alleged breach of contract, negligence, common law fraud and violations of the Consumer Fraud Act (CFA), N.J.S.A. 56:8-1 to -20, and the Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -42. Wilson named several defendants: the developer-builder defendants - Woodfield Developers, L.L.C., its agents Jonathan Frieder and Roy Lomassaro, Woodfields at Princeton Highlands and Garden Homes; the Association and its property managers; the municipality and its inspectors; and an employee of the Department of Community Affairs. The Association filed a counterclaim seeking payment of dues owed. As of June 30, 2009, all claims as to all parties were resolved, and Wilson filed a notice of appeal on August 11, 2009.
On appeal, Wilson argues that the judge erred in granting the developer-builder defendants' motion to dismiss her claims in accordance with an arbitration clause in the sales contract. She also contends that the judge erred in awarding the Association $9450.96 in counsel fees because the Association accepted $365.63 to settle its counterclaim. Wilson does not raise any issue involving another party. As the issues are distinct, we address the judge's determinations regarding arbitration and counsel fees separately.
We first consider the builder-developer defendants' (hereinafter defendants) claim that we lack jurisdiction to hear Wilson's appeal from the order compelling arbitration because it was not timely filed. We reject the argument.
The order compelling arbitration of Wilson's claims against defendants was entered on October 19, 2007. On April 14, 2008, through its decision in Wein v. Morris, 194 N.J. 364 (2008), the Supreme Court prospectively amended Rule 2:2-3 to add orders compelling arbitration to the list of those that are deemed appealable as of right regardless of whether all claims as to all parties have been resolved. Id. at 380.
Because the rule established was "new," the Court gave it purely prospective application and did not apply the new rule in that case. Ibid. When a rule is purely prospective, it applies "'only to cases whose operative facts arise after the new rule is announced.'" State v. Feal, 194 N.J. 293, 308 (2008) (quoting State v. Burstein, 85 N.J. 394, 403 (1981)). Here, the "operative" fact is the entry of the order compelling arbitration and that occurred before, not after, the new rule in Wein was announced. See GMAC v. Pittella, ___ N.J. ___, ___ (2011) (slip op. at 30) (holding that orders denying arbitration are also appealable as of right and that from the date of the decision in GMAC forward, the time for appeal from an order denying arbitration starts on the date the order is entered). Thus, Wilson's appeal was not subject to Wein's new rule and was properly filed within forty-five days of the last order that resolved an outstanding claim. R. 2:4-1(a); N.J. Schs. Constr. Corp. v. Lopez, 412 N.J. Super. 298, 308 (App. Div. 2010). We have jurisdiction to review the order compelling arbitration.
Wilson's complaint included these allegations relevant to her claims against defendants and we must accept them as true. Printing Mart-Morristown v. Sharp Elecs., 116 N.J. 739, 746 (1989). Defendants made and she relied on affirmative misrepresentations in connection with the sale of her home - misrepresentations about the quality of construction and materials, square footage of the residence, and amenities to be made available to members of the Association such as recreational facilities. Additionally, defendants withheld information material to her decision to purchase the lot and home - wetlands and groundwater conditions on- and off-site that led to regular flooding. She was dissatisfied with conditions she observed during the final walkthrough, but due to her race and gender she was pressured and coerced to close with a threat of per diem charges. After closing, she suffered from problems such as water gushing onto the sidewalks and ponding in the side and rear lawns. Her basement flooded twice, and she learned that essential support beams were not installed and the foundation was cracked and unstable.
The arbitration clause at issue on this appeal was included in the contract of sale. The terms of that contract were negotiated by Wilson's attorney. On Wilson's behalf, her lawyer sought, among other amendments not relevant here, removal of the arbitration clause and of a clause addressing dispute resolution under the New Home Warranty and Builders' Registration Act, N.J.S.A. 46:3B-1 to -20. Although defendants refused to delete those ...