December 12, 2011
TIMOTHY HOLT AND PAULA HOLT, PLAINTIFFS-APPELLANTS,
WILLIAM LAUBE, LISA LAUBE, GRANDVIEW OUTDOOR SERVICES AND
CHARLES ARNONE, D/B/A PRECISION CONSULTANTS, PRUDENTIAL RELOCATION, DEFENDANTS, AND RONALD DUNN, JOHN SWEENEY, COLDWELL BANKER AND PRIMACY CLOSING CORP., DEFENDANTS-RESPONDENTS.
On appeal from the Superior Court of New Jersey, Law Division, Morris County, Docket No. L-2358-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 27, 2011
Before Judges Messano, Yannotti and Espinosa.
Plaintiffs Timothy Holt and Paula Holt appeal from orders entered in this action granting summary judgment in favor of defendants Primacy Closing Corp. (Primacy), Ronald Dunn (Dunn), John Sweeney (Sweeney), and Coldwell Banker (Coldwell). Plaintiffs also appeal from an order denying their motion for leave to file an amended complaint. We affirm.
This action arises from the following facts. Defendants William Laube and Lisa Laube (the Laubes) owned certain real property in the Township of Montville (Township). In 2000 to 2001, Grandview Landscape Services, Inc. (GLS), an entity in which Sweeney and Dunn had ownership interests, replaced retaining walls on the Laubes' property. In October 2002, Kyle Russell, a Coldwell real estate agent, inspected the property and analyzed the condition and future marketability of the property. Russell did not identify any visible problems with the property. On October 17, 2002, Coldwell listed the property for sale.
On October 20, 2002, the Laubes completed and signed a Seller's Disclosure Statement (SDS), in which they asserted, among other things, that all of the retaining walls on the property were replaced in 2000-2001. In the section of the SDS entitled "Additions/Remodels," the Laubes responded "No" to the question "Have you made any additions, structural changes, or other alterations to the property?" Because they answered "No" to that question, the Laubes did not respond to the following question, which required them to state whether they had obtained "all necessary permits and approvals" and whether "all work [was] in compliance with building codes[.]"
At or around this time, plaintiffs were informed that the Laubes wanted to sell their home. Plaintiffs contacted the Laubes directly and arranged to visit the property. Plaintiffs were pleased with the property and wanted to buy it. They contacted their broker, Pam Houston of Re/Max Realty, and asked her to prepare a contract for the purchase of the property. On October 21, 2002, plaintiffs signed a purchase offer, and plaintiffs were provided with the Laubes' SDS for their review.
In November 2002, plaintiffs engaged Precision Consultants (Precision) to inspect the property. Charles Arnone (Arnone), a licensed home inspector for Precision, issued a report dated November 23, 2002. In his report, Arnone did not identify any structural problems with the walls supporting the patio or the front steps.
In December 2002, the Laubes transferred title to the property to Primacy. The Laubes also executed an affidavit of title, in which they stated, among other things, that they owned the property since 1999, and that "[n]o additions, alterations or improvements [had] been made to the property since June 1999[.]" In the affidavit of title, the Laubes also indicated that they had "always obtained all necessary permits and certificates of occupancy."
In January 2003, Primacy transferred title to the property to plaintiffs. Plaintiffs were provided with a complete copy of the Laubes' SDS. On January 28, 2003, Primacy executed an affidavit of title, which stated that Primacy owned the property since December 17, 2002. Primacy also executed a disclosure statement which stated that it was "a relocation company, ha[d] not lived in the property, and [made] no representations, guarantees or warranties regarding the property or its condition."
According to plaintiffs, in June 2003, a portion of the retaining wall on the right side of the property began to collapse. Plaintiffs contacted the Laubes, who gave them Sweeney's name. Plaintiffs contacted Sweeney and asked him to perform certain repairs to the retaining walls. Sweeney performed the work at a cost of about $8,000.
Plaintiffs allege that other problems with the retaining walls came to light. They retained Allied Engineering Associates (Allied) to evaluate the walls. Allied issued a report dated June 8, 2006, which stated, among other things, that "most of the walls on the property are deficient" with "large gaps between the blocks." Allied's report also stated that "all the walls on the property have to be replaced" as well as the front steps and the landing.
On August 5, 2008, plaintiffs filed a complaint in the Law Division against the Laubes, Dunn, Sweeney, Grandview Outdoor Services (GOS), Coldwell, Prudential, Primacy and Arnone (doing business as Precision). Plaintiffs asserted claims against the Laubes, Dunn, Sweeney, GOS, Arnone, Coldwell and Primacy under the Consumer Fraud Act, N.J.S.A. 56:8-1 to -20 (CFA). They also asserted claims against the Laubes, Coldwell, Prudential and Arnone for negligence and negligent misrepresentation; and claims against all defendants for breach of the implied covenant of good faith and fair dealing and unjust enrichment. In addition, plaintiffs asserted fraud claims against the Laubes, Coldwell, Prudential and Primacy.
On September 14, 2009, with leave of court, plaintiffs filed an amended complaint, which deleted the claims against Prudential. The claims against the Laubes were resolved, and plaintiffs dismissed their claims against Arnone and Precision. The other defendants filed motions for summary judgment, and plaintiffs filed a motion seeking leave to file an amended complaint to substitute GLS for GOS and add a negligence claim against GLS. The trial court granted summary judgment to Dunn and Sweeney, Primacy and Coldwell. The court also denied plaintiffs' motion for leave to file an amended complaint. This appeal followed.
Plaintiffs argue that the trial court erred by granting summary judgment in favor of Dunn and Sweeney on the CFA claims asserted against them. We disagree.
The CFA "is intended to protect consumers from deception and fraud, 'even when committed in good faith.'" Ji v. Palmer, 333 N.J. Super. 451, 461 (App. Div. 2000) (quoting Gennari v. Weichert Co. Realtors, 148 N.J. 582, 604 (1997)). To establish a prima facie case under the CFA, a plaintiff must show "1) unlawful conduct by defendant; 2) an ascertainable loss by plaintiff; and 3) a causal relationship between the unlawful conduct and the ascertainable loss." Bosland v. Warnock Dodge, Inc., 197 N.J. 543, 557 (2009). Unlawful conduct under the CFA can consist of "an affirmative act, an omission, or a violation of an administrative regulation." Gennari, supra, 148 N.J. at 605.
Here, plaintiffs claim that Dunn and Sweeney are liable under the CFA because, when it constructed the retaining walls for the Laubes in 1999, GLS violated the "Home Improvement Practices" regulations promulgated by the Attorney General pursuant to the CFA, which declare certain acts or omissions to be violations of the CFA. N.J.A.C. 13:45A-16.1 to 16.2. Strict liability is imposed for violations of these regulations "regardless of intent or moral culpability[.]" Cox v. Sears Roebuck & Co., 138 N.J. 2, 18-19 (1994).
Plaintiffs allege that Dunn and Sweeney violated N.J.A.C. 13:45A-16.2(a)(10)(i) because they failed to obtain necessary building and construction permits for the work. Plaintiffs additionally allege that Dunn and Sweeney violated N.J.A.C. 13:45A-16.2(a)(3)(iv) by substituting products or materials for those specified in the contract. Plaintiffs claim that Dunn and Sweeney are personally liable for the losses causally related to these regulatory violations because they had ownership interests in GLS.*fn1
Plaintiffs alleged that Dunn and Sweeney violated N.J.A.C. 13:45A-16.2(10)(i) because GLS rebuilt the retaining walls for the Laubes without obtaining the necessary municipal approvals. In support of that contention, plaintiffs relied upon a certification by Mark J. Mantyla (Mantyla), the Township's Assistant Township Engineer.
In his certification, Mantyla asserted that since 2007, the Township has required the zoning officer to issue permits for "the erection or alteration of any wall . . . ." He stated that in 2000 to 2001, a plan had to be submitted to the Township's engineering department for the construction of any wall exceeding four feet in height. Mantyla relied upon Section 16.28.020(e) of the Township's Municipal Code (Code) as authority for his assertions.
However, the trial court correctly found that, at the time the retaining walls were built on the Laubes' property, the Code did not require a permit or approval by the Township's engineering department. The court noted that Section 16.28.020(e) of the Code establishes requirements for subdivisions and did not apply to the construction of the retaining walls on the Laubes' property in 2000-2001.
Plaintiffs argued, however, that a permit was required by Section 16.44.170(A)(1) of the Township's Code. The trial court determined, however, that plaintiffs failed to establish that Section 16.44.170(A)(1) had been in effect when GLS performed the work for the Laubes. The court further determined that this section of the Code did not require a permit from the engineering department or "anyone else" for the construction of the retaining walls on the Laube property in 2000-2001.
The court's conclusions were supported by the plain language of the Code as well as an affidavit by Brian Laird (Laird), the Township's construction official, dated August 10, 2010. Laird stated that while the Township's construction department began to require the issuance of permits for the construction or reconstruction of certain retaining walls since 2009, there was no such requirement during or prior to 2001.
We are therefore satisfied that the trial court correctly determined that plaintiffs' claim that Dunn and Sweeney violated the CFA by failing to obtain a permit required for the construction of the retaining walls for the Laubes in 2000-2001 was without any basis in fact.
Plaintiffs additionally claimed that Dunn and Sweeney violated N.J.A.C. 13:45A-16.2(a)(3)(iv) by substituting products or materials for those specified in the contract and by falsely representing to the Laubes that the retaining walls would be constructed in accordance with the manufacturer's specifications and material. The trial court determined that there was no causal relationship between these alleged violations of the CFA and any loss sustained by plaintiffs. The record supports the court's determination.
Plaintiffs testified that when they purchased the Laubes' property, they did not rely upon any representations made by Dunn or Sweeney with regard to the retaining walls. At his deposition, Timothy Holt stated that, prior to or at closing, there were no discussions concerning the retaining walls, "[o]ther than the fact that they looked great[.]"
Furthermore, at her deposition, Patricia Holt testified that prior to or at closing, no one made any representations to her regarding the retaining walls. In addition, William Laube testified that he did not personally make any representations to plaintiffs concerning the retaining walls. He also stated that before the closing plaintiffs never posed any questions to him regarding the retaining walls.
Plaintiffs argue, however, that Dunn and Sweeney should be held liable for representations the Laubes made in their SDS regarding the walls. However, as the trial court stated in its August 6, 2010, decision from the bench, Dunn and Sweeney "had nothing to do with" the SDS. The court determined that plaintiffs did not buy the property in reliance upon any statement made by Sweeney, Dunn, Primacy or the Laubes concerning the retaining walls. The record supports that determination.
The trial court's decision is supported by Chattin v. Cape May Greene, Inc., 216 N.J. Super. 618 (App. Div.), certif. denied, 107 N.J. 148 (1987). In that case, the plaintiffs purchased homes built with windows that were allegedly defective. Id. at 622. We held that homeowners who received oral or written representations concerning the windows could pursue claims under the CFA against the builder, but subsequent purchasers of the home who had no contact with the builder could not do so. Id. at 641.
Here, the evidence established that plaintiffs had no contact with GLS and never received any oral or written representations concerning the retaining walls before they purchased the Laubes' property. Thus, there was no causal relationship between the alleged CFA violations by Dunn and Sweeney and any loss that plaintiffs sustained. We are satisfied that the trial court correctly determined that plaintiffs may not pursue claims under the CFA against Dunn and Sweeney based on any alleged misrepresentations made to the Laubes concerning the work.
The trial court's decision also is supported by Marrone v. Greer & Polman Construction, Inc., 405 N.J. Super. 288 (App. Div. 2009). There, the plaintiffs asserted CFA claims against the manufacturer and distributor of exterior cladding, which had been applied to their house when it was constructed. Id. at 290-91. The plaintiffs purchased the house eight years later, believing that it was clad with stucco. Id. at 291. The plaintiffs later learned that the cladding on the home was not stucco and was defective. Id. at 291-92.
The plaintiffs in Marrone conceded, however, that they had no contact with the defendant manufacturer and distributor of the cladding and did not receive or rely upon any information or representation concerning the cladding. Id. at 291. We held that, under these circumstances, the plaintiffs could not assert CFA claims against the defendants because there was no evidence that the defendants' representations had been conveyed to them. Id. at 295. The same result applies here.
Plaintiffs nonetheless argue that Dunn and Sweeney are liable under the CFA for the alleged misrepresentations made to the Laubes concerning the retaining walls because it was foreseeable that the Laubes would sell their property. Plaintiffs contend that it is inconceivable that Dunn and Sweeney did not intend that their alleged misrepresentations would be passed along to future purchasers of the property.
In support of these contentions, plaintiffs rely upon Neveroski v. Blair, 141 N.J. Super. 365 (App. Div. 1976). In Neveroski, the plaintiffs purchased a home and several months later found that it was infested with termites. Id. at 369. The plaintiffs asserted claims under the CFA against the service company that treated the premises and certified before the closing that the premises were termite-free. Id. at 369-70. We affirmed the judgment entered against the service company. Id. at 381.
In our opinion, we noted that a claimant need not have a direct contractual relationship with the seller of a product or service in order to support a claim under the CFA. Id. at 376.
We stated that the service company was liable under the CFA because it had issued a false and misleading document stating that a visual inspection of the property revealed no evidence of termite infestation, knowing and intending that the plaintiffs and others would rely on that document. Id. at 381.
In our view, plaintiffs' reliance upon Neveroski is misplaced. Plaintiffs' claims against Dunn and Sweeney fail because there is no evidence that Dunn and Sweeney knew or intended that plaintiffs and others would rely upon the alleged misrepresentations concerning the walls. Indeed, there is no evidence that the Laubes intended to sell their home when they had the walls replaced.
In support of their argument, plaintiffs also rely upon Perth Amboy Iron Works, Inc. v. Am. Home Assurance Co., 226 N.J. Super. 200 (App. Div. 1988), aff'd o.b., 118 N.J. 249 (1990). In that case, one of the plaintiffs purchased a sport fishing boat and leased the craft to the other plaintiff. Id. at 204-05. The plaintiffs asserted claims under the CFA against the manufacturer and distributor of the engines, as well as the seller of the boat. Id. at 207-09.
The plaintiffs in Perth Amboy Iron Works alleged that the manufacturer of the boat's engines knew that its distributor's modifications of the engines rendered them unsafe and defective.
Id. at 207. They further alleged that the seller induced the plaintiff to purchase the boat by making knowing and false representations concerning, among other things, its speed and seaworthiness; and the seller concealed the boat's prior fire damage and structural defects. Ibid. We held that the plaintiffs could assert CFA claims against the seller of the boat, as well as the manufacturer and distributor of the boat's engines. Id. at 209-11.
We held that the plaintiffs did not have to establish privity of contract with the manufacturer and distributor of the engines to support their claims under the CFA. Id. at 210-11. We stated that the CFA encompassed "the acts of remote suppliers, including suppliers of component parts, whose products are passed on to a buyer and whose representations are made to or intended to be conveyed to the buyer." Id. at 211. In this case, however, there is no evidence that Dunn and Sweeny made representations concerning the retaining walls built for the Laubes with the intention that they would be conveyed to plaintiffs.
We note additionally that the fact that plaintiffs are asserting CFA claims against Dunn and Sweeney for regulatory violations does not compel a contrary result here. As we stated previously, to support a CFA claim, a plaintiff must establish unlawful conduct, an ascertainable loss and a causal relationship between the unlawful conduct and the ascertainable loss. Bosland, supra, 197 N.J. at 557.
Proof of a regulatory violation is proof of unlawful conduct. Gennari, supra, 148 N.J. at 605. A CFA plaintiff still must show a causal relationship between the regulatory violation and the ascertainable loss. Bosland, supra, 197 N.J. at 560. Here, plaintiffs failed to establish the requisite causal relationship between their alleged ascertainable loss and the claimed regulatory violations.
We are therefore satisfied that the trial court correctly concluded that Dunn and Sweeney were entitled to summary judgment on the claims asserted against them under the CFA.*fn2
We turn to plaintiffs' contention that the trial court erred by granting Primacy's motion for summary judgment on the CFA claims. Again, we disagree.
Plaintiffs allege that Primacy violated the CFA by making affirmative misrepresentations in its affidavit of title. As noted previously, in that document, Primacy stated that it owned the subject property since December 17, 2002 and "[n]o additions, alterations or improvements are now being made or have been made to this property" since Primacy purchased it. Primacy also stated that it has "always obtained all necessary permits and certificates of occupancy."
These statements were not false. It is undisputed that, during the brief period of time it owned the property, Primacy did not make any "additions, alterations or improvements" to the property and had obtained "all necessary permits and certificates of occupancy." The evidence therefore does not support plaintiffs' claim that Primacy made an affirmative misrepresentation in violation of the CFA.
Plaintiffs nevertheless allege that Primacy is liable under the CFA for affirmative misrepresentations allegedly made by the Laubes in their SDS, which Primacy had provided to plaintiffs. However, those statements were made by the Laubes, not Primacy. Moreover, as we have explained, the Laubes did not falsely state in their SDS that they had obtained all permits required for the construction of the retaining walls. At the time the retaining walls were constructed, the Township did not require a permit or engineering approvals for the work.
In support of their appeal, plaintiffs rely upon Ji, supra, 333 N.J. Super. 451. In that case, the plaintiffs purchased a four-unit residential property which was in a zone where only single-family dwellings were permitted. Id. at 454. The plaintiffs alleged that the seller's real estate brokers failed to obtain a certificate of land use before title was transferred, as required by the municipality's land use ordinance. Ibid.
The sales contract required the seller to provide certificates of occupancy and land use at closing. Id. at 455. The certificate of land use was not produced at the closing. Ibid. The plaintiffs closed title and were thereafter charged by the municipality for failing to receive an approved certificate of land use for the four units. Ibid.
The plaintiffs brought CFA claims against the seller and the brokers. Id. at 454. Among other things, they alleged that the brokers made affirmative misrepresentations when they reviewed the owner's profit and loss figures with them. Id. at 461. The plaintiffs asserted that, by doing so, the brokers had reinforced the seller's misrepresentation that the property could be used as a four-unit residential property. Ibid. We rejected that contention. Ibid. We stated that review of the cash flow generated by the units "was hardly a misrepresentation regarding the zoning regulation of the property." Ibid.
The plaintiffs also argued that the broker's statements during the closing were affirmative misrepresentations. Id. at 461. The broker had added the provision of the contract requiring the seller to produce the certificates of occupancy and land use at the closing. Id. at 461-62. The broker testified that he knew the difference between the certificates. Id. at 462. When the seller failed to produce the certificate of land use at the closing, the broker told the plaintiffs that the certificate of occupancy looked "acceptable" to him. Ibid.
We held that the broker's statement might be actionable under the CFA. Id. at 462-63. We observed that the broker's statement was false because it suggested that the certificate of occupancy satisfied the municipality's requirement that a certificate of land use be obtained before closing of title. Id. at 462-63. We noted, however, that it could not be determined if the broker was liable because the trial court had not resolved several issues, specifically, whether the broker's statement was material and whether the statement induced the plaintiffs to close title. Ibid.
We are satisfied that plaintiffs' reliance upon Ji is misplaced. Here, Primacy did not make any representations as to whether the Laubes had obtained all permits required for the construction of the retaining walls on their retaining walls.
Although Primacy furnished plaintiffs with a copy of the Laubes' SDS, Primacy never indicated that the Laubes' statements were accurate or acceptable. In addition, Primacy's affidavit of title made clear that any representations it made related to the period of time in which it owned the property, not before.
We therefore conclude that the trial court correctly determined that Primacy was entitled to summary judgment.
We next consider plaintiffs' contention that the trial court erred by dismissing their CFA claims against Coldwell. Plaintiffs assert that the Laubes made inconsistent statements on their SDS and Coldwell had a duty to investigate those inconsistencies. Plaintiffs claim that these inconsistent statements constitute affirmative material misrepresentations by Coldwell that violate the CFA. We are not persuaded by these arguments.
Where, as here, a CFA claim is based on an affirmative misrepresentation, plaintiffs must show that the statement was material to the transaction and was made to induce the purchase. Gennari v. Weichert Realtors, 288 N.J. Super. 504, 535 (App. Div. 1996), aff'd as modified, 148 N.J. 582, 607 (1997). When the claim is based on an omission, the plaintiffs must show that the defendant had actual knowledge of the material fact and acted knowingly with an intent to deceive. Cox, supra, 138 N.J. at 18.
As we have explained, in their SDS, the Laubes did not falsely state that they had obtained all required permits for the construction of the retaining walls on their property. A permit was not required for the work. Furthermore, there is no basis for a claim against Coldwell based on a failure to disclose material facts regarding any deficiency in the retaining walls. As the trial court noted, there was no evidence that Coldwell was aware of any problem with the retaining walls and acted to conceal it.
We are therefore convinced that the trial court correctly determined that Coldwell was entitled to summary judgment.
Plaintiffs additionally argue that the trial court abused its discretion by refusing to permit it to file a second amended complaint substituting GLS for GOS and to assert a negligence claim against GLS.
Rule 4:9-1 provides that, after a responsive pleading is filed, a party may amend its pleading "only by written consent of the adverse party or by leave of court which shall be freely given in the interest of justice." The decision to grant or deny a motion to amend rests in the sound discretion of the trial court. Kernan v. One Washington Park Urban Renewal Assocs., 154 N.J. 437, 457 (1998).
Plaintiffs' motion for leave to file a second amended complaint was not filed until March 17, 2010. When the court considered the motion on June 8, 2010, discovery in the case had been concluded, the matter had been submitted to arbitration, and the case was scheduled for trial. The court concluded that it was too late to amend the complaint. We agree.
It should be noted that plaintiffs had been aware early in this litigation that GOS was not the entity that constructed the retaining walls on the Laubes' property in 2000-2001. In January 2009, Dunn's attorney wrote several letters to plaintiffs' attorneys stating that GLS was the entity that constructed the retaining walls at the Laube property and GLS had been dissolved in 2007. In February 2009, Sweeney's attorney wrote to plaintiffs' attorney and also stated that the GLS had performed the work at the Laube property.
Plaintiffs waited until March 2010 to file their motion to amend. Their only explanation for failing to act sooner was inadvertence on the part of their attorneys. This is not a valid explanation for the failure to seek leave to amend the complaint earlier in the litigation.
Furthermore, plaintiffs sought leave to a assert a claim against GLS for negligent construction, whereas the prior claims against Dunn and Sweeney had been based on violations of the CFA. The trial court pointed out that the assertion of a new claim against a new party would require additional discovery that could take several months. We are convinced that, under the circumstances, the court did not abuse its discretion by denying plaintiffs' motion to amend.