Opinion
DOCKET NO. A-4258-11T3
02-26-2013
LAUREN LA SANTA and MARC TUAZON, Plaintiffs-Appellants, v. MILL POINTE CONDOMINIUM ASSOCIATION, Defendant-Respondent.
Jadoo & Zalenski, LLC, attorneys for appellants (Trevor S. Jadoo, on the brief). Schenck Price Smith & King, LLP, attorneys for respondent (Steven H. Daniels, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Axelrad and Sapp-Peterson.
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-8699-10.
Jadoo & Zalenski, LLC, attorneys for appellants (Trevor S. Jadoo, on the brief).
Schenck Price Smith & King, LLP, attorneys for respondent (Steven H. Daniels, on the brief). PER CURIAM
Plaintiffs Lauren La Santa and Marc Tuazon appeal summary judgment dismissal of their complaint against defendant, Mill Pointe Condominium Association, the seller of a condominium unit, seeking damages for fraud, purposeful concealment of latent defects, and violation of the Consumer Fraud Act (CFA), N.J.S.A. 56:8-1 to -195, as well as rescission of the sales contract. Plaintiffs asserted before the trial court, and re-assert on appeal, that defendant fraudulently concealed and omitted material facts from them about the premises that were germane to the purchase, and plaintiffs' claims were substantiated with expert testimony and proof. The motion judge found plaintiffs failed to present any evidence of defendant's knowledge or omission and relied solely on mere allegations, which were insufficient to defeat a motion for summary judgment. We agree and affirm.
Plaintiff executed a contract for the purchase of a condominium unit located in Edison in which defendant was the seller. The April 29, 2010 addendums to the contract of sale provided for the right of plaintiffs to conduct radon gas, wood destroying insect, and home inspections and terminate the contract if not satisfied with the outcome. The second addendum expressly provided that the property was sold "as is" and it was "understood and agreed that no representation, either express or implied, has been made as to the condition of the premises and/or the fixtures therein except as otherwise provided therein." Plaintiffs were represented by counsel in the purchase of the unit.
Plaintiffs did not provide a copy of the initial sales agreement and makes no reference to its terms.
On May 5, 2010, plaintiffs had a home inspection performed, which included radon testing and a termite inspection, and a report was generated reflecting, for example, inspection of "structural components" and a determination that they were "functional at the time of inspection." Plaintiffs made settlement on June 30, 2010, and took possession of the property. Shortly afterwards, there was a flood caused by a common element water pipe and, during clean-up, plaintiffs discovered mold damage in their unit. Further inspection revealed the presence of asbestos and termites. None of these conditions were disclosed prior to sale.
Plaintiffs filed suit for damages and rescission, alleging that "[b]ased on several inspections by mold inspectors" they learned the "Premises experienced flooding prior to their purchase" and "the mold damage was concealed by a fresh coat of paint." They alleged defendant "concealed this pre-existing and defective condition." Plaintiffs also claimed they conducted an inspection for asbestos and confirmed its presence in the unit. Plaintiffs further claimed that an inspection by Terminix revealed that the unit had termites which had "been present for at leas[t] five years based on the extent of the wood damage"; plaintiff alleged defendant also "concealed this pre-existing and defective condition."
According to plaintiffs, the mold, asbestos, and water damage resulted in breathing and other health-related problems; defendant purposely concealed latent defects in the unit and negligently provided them false information regarding the condition and state of the unit; and defendant's actions were "fraudulent, self-dealing and unconscionable," for which they were entitled to compensatory, punitive, and treble damages, as well as rescission of the sales contract.
In response to defendant's motion for summary judgment, plaintiffs presented September 13, 2010 lab certificates identifying mold on samples taken from inside utility closets in the unit and asbestos fibers on samples taken from the mastic on the closet floor, as well as a $998.31 Terminix sales agreement for unidentified pest treatment. Plaintiffs also relied on their responses to interrogatories in which they asserted, for example, that defendant's representatives "should have known" about the pre-existing conditions and that the "proposed testimony" of various of plaintiffs' inspectors will be that the mold and termite damage and prior flooding was purposely concealed by fresh paint, new studs, and new sheet rock. Plaintiffs did not depose any of defendant's representatives and presented no firsthand information with respect to defendant's knowledge of these pre-existing conditions. Nor did plaintiffs submit any corroborative affidavits or reports from their exterminator, inspectors, or contractor. Plaintiffs also presented no medical documentation.
Tuazon's deposition testimony attached to defendant's moving papers refers to a note on the certificate, which is not evident on the copy contained in plaintiffs' appendix, stating "There was no asbestos detected in the floor tile, but it is in the mastic used to put the tiles down on the floor."
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Judge Vincent LeBlon granted summary judgment to defendant by order of March 22, 2012, explaining in an appended written opinion that even when viewing the facts in the light most favorable to plaintiffs, the non-moving party, Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995), plaintiffs "failed to set forth any evidence that the [d]efendant committed fraudulent concealment or misrepresentation of the alleged issues with the real estate property." Plaintiffs provided no expert reports to interpret the mold and asbestos analyses. Moreover, the mold samples were taken from inside the utility closet, to which plaintiffs' home inspector had access prior to settlement.
As noted by the judge, plaintiffs failed to submit any depositions, affidavits, or the like, and relied solely on the allegations contained in their interrogatory answers to support their claims of knowledge and concealment by defendant, which are insufficient to defeat a motion for summary judgment. See Petersen v. Twp. of Raritan, 418 N.J. Super. 125, 132 (App. Div. 2011) (reiterating that "[u]nsubstantiated inferences and feelings" or "[b]are conclusions in the pleadings, without factual support in tendered affidavits," are insufficient to defeat a meritorious motion for summary judgment) (internal quotation marks and citations omitted) (second alteration in original).
Judge LeBlon further noted that plaintiffs signed a contract purchasing the unit "as is," which expressly acknowledged that defendant made no representations, either express or implied, as to its condition. Moreover, plaintiffs availed themselves of their contractual right to have inspections performed on the property before closing of title. This appeal ensued.
On appeal, plaintiffs continue to make the unsubstantiated assertions that defendant concealed the previous water damage, presence of asbestos, and mold and termite infestation. Their sole "evidence" is that the unit had been freshly painted and that they observed two water lines (an old and new water line) when they started to clean up the unit after the water leak. They continue to rely on Weintraub v. Krobatsch, 64 N.J. 445, 449-55 (1974) in support of their claim of fraudulent concealment and Byrne v. Weichert Realtors, 290 N.J. Super. 126, 135 (App. Div.), certif. denied, 147 N.J. 259 (1996) in support of their claim of a knowing omission that has a capacity to mislead as violative of the CFA. Plaintiffs also claim as sufficient to withstand summary judgment the fact that their answers to interrogatories identified the names and addresses of all the inspectors "who will be called as witnesses at trial, if necessary."
We are not persuaded by plaintiffs' arguments and affirm substantially for the reasons set forth in Judge LeBlon's comprehensive written opinion. We add the following brief comments.
"[T]he elements necessary to prove fraudulent concealment on the part of a seller in a real estate action are: the deliberate concealment or nondisclosure by the seller of a material fact or defect not readily observable to the purchaser, with the buyer relying upon the seller to his detriment." State, Dep't of Envtl. Prot. v. Ventron Corp., 94 N.J. 473, 503 (1983) (citing Weintraub, supra, 64 N.J. at 455). In Weintraub, the Supreme Court reversed the grant of summary judgment to the prospective seller for recovery of the buyers' deposit after they sought to rescind the contract prior to closing upon observing that the house was roach-infested and remanded for trial. Id. at 455-57. The buyers had certified that every time they inspected the house prior to this time, the sellers had every light on. Id. at 448. This time, however, the buyers entered the house during the evening, it was unoccupied, and when they turned the lights on, they observed roaches "running in all directions, up the walls, drapes, etc." Id. at 447. The buyers reasoned that by keeping the lights on, it keeps these nocturnal insects "out of sight," and argued that the "sellers had to know they had this problem [as one] could not live in a house this infested without knowing about it." Id. at 448. The Court was convinced the buyers had presented sufficient proof to create genuine issues of fact as to whether the seller deliberately concealed or failed to disclose the roach infestation and whether such concealment or nondisclosure was of such significant danger to justify rescission. Id. at 455.
In contrast here, however, plaintiffs merely presented the fact of the adverse conditions. Presence of trace amounts of mold, asbestos fibers, or termites, in and of itself, does not impute negligence on the part of defendant. Nor did plaintiffs present any evidence of defendant's representatives' knowledge of the mold, asbestos, or termites in the unit, let alone their intentional concealment of these conditions. The record is devoid of any affidavit or report by an inspector or exterminator causally relating any of these conditions as being attributable to any negligence, wrongdoing, omission, or concealment on the part of defendant's representatives. Moreover, the mere presence of a freshly painted unit or two water lines is insufficient even under a Brill standard to create a debatable issue.
Plaintiffs bought a unit, which according to their pre-settlement inspection, was over twenty-five years old, "as is," with no express or implied representations by defendant as to its condition. They negotiated, with the assistance of counsel, an agreement that gave them the protection of inspections and the ability to terminate the contract if they were not satisfied with the outcome of the inspections. They conducted inspections and proceeded to settlement. Plaintiffs have failed to proffer anything other than bald allegations to support their claim of liability on the part of defendant.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION