On appeal from the Superior Court of New Jersey, Law Division, Gloucester County, Docket No. L-1791-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 4, 2011
Before Judges Yannotti, Espinosa and Kennedy.
Plaintiff Charles Larkey, Jr. (Larkey) appeals from an order entered by the trial court on September 10, 2010, granting summary judgment, dismissing his complaint for consumer fraud, common law fraud, "violation of the covenant of good faith and fair dealing" and negligence against a realtor and a real estate agency that represented the seller of a house plaintiff and his wife purchased in Clayton, New Jersey in 2008. We affirm essentially for the reasons set forth by Judge Anne McDonnell, and we add only the following comments.
On October 24, 2008, plaintiffs Charles and Misty Larkey filed a
complaint asserting claims against Bless Roofing, Steve Harvey, Remax
Realtors (All Pros) ("Remax"), Robert Walton and Ronald Yacovelli. The
complaint asserted that on April 3, 2008, the "plaintiffs"*fn1
entered into a contract with Ronald Yacovelli to purchase a
residential property in Clayton, New Jersey. Plaintiffs claimed that
Yacovelli "failed to disclose the water damage to the roof and home"
and that Robert Walton, an agent for the selling realtor, Remax,
allowed the property to be sold "knowing there was damage to the
roof/home" and "intentionally concealed improper conditions of the
home." Plaintiffs asserted
that Bless Roofing, and its agent, Steve Harvey, "fraudulently and
negligently certified a faulty roof and has [sic] since failed to
stand by the warranty and contract provided therein." Plaintiffs
alleged they were unaware of the defects before purchasing the home
and only discovered a "defect" after moving into the premises. The
facts before the trial court on summary judgment are set forth below.
On April 3, 2008, Larkey entered into a contract with Ronald Yacovelli to purchase property in Clayton, New Jersey. The purchase price was $148,000 and the contract allowed Larkey to undertake a home inspection of the property at his own expense. Although the property was sold "as is," the contract further provided that if plaintiff undertook such an inspection and discovered "deficiencies" he retained the right to declare the contract terminated unless the seller agreed to make such repairs at its own cost and expense prior to closing.
Although plaintiff was aware of his right to be represented by counsel and to undertake his own home inspection, he elected to do neither. Rather, he chose to rely on an earlier inspection of the home made for another potential purchaser by JFM Inspections, Inc. (JFM). Plaintiff's realtor provided JFM's report to the plaintiff and neither Walton nor anyone else at Remax Realtors (All Pros) (Remax) made any representations to Larkey respecting the condition of the roof. All relevant communications respecting the condition of the property occurred exclusively between William Kempton of Century 21 Hearst Realty, Inc., Larkey's real estate agent, and Walton of Remax, the seller's realtor.
The home inspection report prepared by JFM noted "immediate concerns/defects" respecting the roof and the flashing. It noted that the flat roof has a low point which "represents a ponding area" and the adjacent fascia is "loose and not sealed." The report then "recommend[ed] a follow-up roof certification for the roof system by a licensed roofer" and a "follow-up investigation by a licensed roofer to determine whether the chimney needs to be flashed."
Larkey reviewed the report and recalled that "in here somewhere it says a re-certification should be done and [the roof] should be checked to make sure it meets town code." Larkey never discussed the roof with Walton but instead relied upon his own realtor to relay his concerns about the roof.
On April 11, 2008, Kempton sent to Walton a facsimile which read, in pertinent part: "Please find in this transmission the buyer's request for repairs. Based on our conversation, you indicated that the seller would take care of the roof...[.]"
Included with the facsimile, was a formal "repair request form" which stated, in pertinent part: "Based on the home inspection performed by JFM Inspections, Inc. on 3/21/08, I'm requesting the following repairs done by a certified contractor: (1) roof inspected and certified."*fn2 Kempton followed this up with a second communication to Walton on April 22, 2008, which stated, in part, "please respond in writing to indicate the repairs that the buyers are requesting (i.e. roof, crawl space electrical) will be done..."
Prior to closing, Bless Roofing provided a written "roof certification" respecting the property. The certification stated:
The roof located at . . . in Clayton has been inspected by Bless Roofing Co. It is my professional opinion that I certified [sic] that the roof has no leaks and no water damage. I ...