NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited . R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-2050-18T4
STEFANO J. TOMEO, III,
Plaintiff-Appellant,
v.
WILLIAM R. EDLESTON,
Defendant-Respondent. ________________________________
Submitted March 16, 2020 – Decided March 30, 2020
Before Judge Sabatino and Natali.
On appeal from the Superior Court of New Jersey, Law Division, Warren County, Docket No. L-0367-14.
Advokat & Rosenberg, attorney for appellant (Jeffrey M. Advokat, on the brief).
William R. Edleston, respondent pro se.
PER CURIAM
In this legal malpractice case, plaintiff contends his former attorney was
negligent in failing to file a home warranty claim on his behalf before the coverage period expired. The defendant attorney acknowledges he filed the
form late, but asserts his client was not harmed by his negligence because the
terms of the warranty did not cover plaintiff's claim. The trial court granted
summary judgment dismissing the malpractice action. We affirm, as we agree
with the trial court that plaintiff's claim was not covered by the warranty.
The pertinent facts and sequence of events are largely undisputed.
Plaintiff Stefano J. Tomeo bought a home in Liberty Township in November
2002. At the time of the closing, plaintiff received a limited warranty on the
home pursuant to the New Home Warranty and Builders' Registration Act,
N.J.S.A. 46:3B-1 to -20. Under the terms of the warranty, the home builder
was the warrantor during the first two years of the plan. Thereafter, a risk
retention group provided the warranty coverage for years three through ten. The
warranty was administered by Residential Warranty Corporation ("RWC").
Notably, as we will discuss, the warranty provides less coverage after years one
and two.
In the tenth year of the coverage period in 2012, plaintiff noticed what he
described as "faulty workmanship" in his home. In particular, plaintiff
discovered leakage through windows, which he alleges caused mold, and
damage to sheetrock, walls, and carpeting.
A-2050-18T4 2 About two months before the warranty expired, plaintiff contacted his
prepaid legal plan and was referred to defendant, William R. Edleston, Esq.
Edleston undertook to represent plaintiff in presenting a claim for damages
under the warranty plan to RWC.
As requested, Edleston prepared a warranty claim for plaintiff. However,
as Edleston acknowledges, the claim was not received by RWC until late
December 2012, after the ten-year warranty period had already expired. RWC
denied the claim as untimely. 1
Plaintiff filed the present malpractice action against Edleston, alleging
that he breached applicable standards of care by failing to submit the warranty
claim on time. In his effort to establish he was damaged by Edleston's
negligence, plaintiff obtained an expert report from Evolution Construction,
LLC. The author of the expert report (whose name does not appear on the
document) asserts the author has "[thirty] years of experience in the construction
industry as well as [being] educated as an Architect and Structural Engineer."
The expert inspected plaintiff's home and confirmed the water damage.
1 There is no indication that the denial was contested, and RWC is not a third - party defendant in this case. A-2050-18T4 3 Plaintiff's expert report noted, as a general principle, if a home's "vapor
barrier system is not installed properly and [lacks] other thermal moisture
protections, the home is at risk for damage caused by mold - potentially leading
to dry rot – and ultimately a major reconstruction of the home." More
specifically with respect to plaintiff's home, the report opined that "[w]ith the
amount of water damage that we have seen from onsite inspection, photos and
videos and the obvious black mold growth seen on the window sills in the
bedrooms shown, [plaintiff's] home is at major risk and needs to be corrected
immediately."
Plaintiff's expert was unable to ascertain the full severity and extent of the
structural and wood damage until the walls in the home were fully opened. The
expert did estimate the cost of repairs to be $227,664.08. The reco rd does not
divulge whether plaintiff actually undertook the recommended repairs, or had
others perform the work.
After considering the expert report and the parties' other motion
submissions, as well as oral argument, the trial court granted defendant's motion
for summary judgment. The motion judge, Hon. Thomas C. Miller, issued a
fourteen-page written opinion explaining his reasoning.
A-2050-18T4 4 Judge Miller's ruling was principally based upon two findings. First, he
found "the terms of the warranty agreement are clear and unambiguous with
regards to the type of damage that is covered during the Year [Three] to Year
[Ten] period of time." For those years, the warranty covers "what can be
described as 'structural components' only. The alleged improper construc tion of
a vapor barrier system cannot be characterized as a damage to a structural
component." Further, the judge determined that "issues that involve water leaks
or moisture intrusion are also included within the one[-]year warranty period [in
Section F] of the Performance Standards of the policy."
Second, Judge Miller emphasized that plaintiff's expert report did not
actually state that plaintiff's house sustained a major structural defect. As the
judge wrote, plaintiff's expert "appears to argue that the improper installation of
the vapor barrier allowed mold and rot to form, which independently could cause
structural damage." Although "that proposition can be theoretically advanced,
a closer review of the Evolution report does not indicate that the mold and rot
has caused structural damage—but instead [it] only opines that it could cause
structural damage." (Emphasis added).
The judge rejected plaintiff's assertion that a representative from RWC
orally stated to him that "certain items are covered[,] such as 'physical damage,'
A-2050-18T4 5 'failure of components,' 'foundation system[s],' etc." The judge declined to rely
on this hearsay because it was not supported by a certification in compliance
with Rule 1:6-6, and also because the representative's alleged oral interpretation
of the warranty contract violated the parol evidence doctrine.
Plaintiff now appeals. He contends the trial court failed to recognize
genuine issues of material fact that allegedly would show he had a viable Year
Ten warranty claim. In particular, the plaintiff contends triable issues are raised
by his expert report, the contents of his submission to RWC, and the alleged
hearsay statement of RWC's representative concerning the scope of the warranty
coverage. Plaintiff further contends the trial court's ruling is inconsistent with
case law, pointing to the Supreme Court's opinion in Weedo v. Stone-E-Brick,
Inc., 81 N.J. 233 (1979), and this court's opinion in Cypress Point Condominium
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited . R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-2050-18T4
STEFANO J. TOMEO, III,
Plaintiff-Appellant,
v.
WILLIAM R. EDLESTON,
Defendant-Respondent. ________________________________
Submitted March 16, 2020 – Decided March 30, 2020
Before Judge Sabatino and Natali.
On appeal from the Superior Court of New Jersey, Law Division, Warren County, Docket No. L-0367-14.
Advokat & Rosenberg, attorney for appellant (Jeffrey M. Advokat, on the brief).
William R. Edleston, respondent pro se.
PER CURIAM
In this legal malpractice case, plaintiff contends his former attorney was
negligent in failing to file a home warranty claim on his behalf before the coverage period expired. The defendant attorney acknowledges he filed the
form late, but asserts his client was not harmed by his negligence because the
terms of the warranty did not cover plaintiff's claim. The trial court granted
summary judgment dismissing the malpractice action. We affirm, as we agree
with the trial court that plaintiff's claim was not covered by the warranty.
The pertinent facts and sequence of events are largely undisputed.
Plaintiff Stefano J. Tomeo bought a home in Liberty Township in November
2002. At the time of the closing, plaintiff received a limited warranty on the
home pursuant to the New Home Warranty and Builders' Registration Act,
N.J.S.A. 46:3B-1 to -20. Under the terms of the warranty, the home builder
was the warrantor during the first two years of the plan. Thereafter, a risk
retention group provided the warranty coverage for years three through ten. The
warranty was administered by Residential Warranty Corporation ("RWC").
Notably, as we will discuss, the warranty provides less coverage after years one
and two.
In the tenth year of the coverage period in 2012, plaintiff noticed what he
described as "faulty workmanship" in his home. In particular, plaintiff
discovered leakage through windows, which he alleges caused mold, and
damage to sheetrock, walls, and carpeting.
A-2050-18T4 2 About two months before the warranty expired, plaintiff contacted his
prepaid legal plan and was referred to defendant, William R. Edleston, Esq.
Edleston undertook to represent plaintiff in presenting a claim for damages
under the warranty plan to RWC.
As requested, Edleston prepared a warranty claim for plaintiff. However,
as Edleston acknowledges, the claim was not received by RWC until late
December 2012, after the ten-year warranty period had already expired. RWC
denied the claim as untimely. 1
Plaintiff filed the present malpractice action against Edleston, alleging
that he breached applicable standards of care by failing to submit the warranty
claim on time. In his effort to establish he was damaged by Edleston's
negligence, plaintiff obtained an expert report from Evolution Construction,
LLC. The author of the expert report (whose name does not appear on the
document) asserts the author has "[thirty] years of experience in the construction
industry as well as [being] educated as an Architect and Structural Engineer."
The expert inspected plaintiff's home and confirmed the water damage.
1 There is no indication that the denial was contested, and RWC is not a third - party defendant in this case. A-2050-18T4 3 Plaintiff's expert report noted, as a general principle, if a home's "vapor
barrier system is not installed properly and [lacks] other thermal moisture
protections, the home is at risk for damage caused by mold - potentially leading
to dry rot – and ultimately a major reconstruction of the home." More
specifically with respect to plaintiff's home, the report opined that "[w]ith the
amount of water damage that we have seen from onsite inspection, photos and
videos and the obvious black mold growth seen on the window sills in the
bedrooms shown, [plaintiff's] home is at major risk and needs to be corrected
immediately."
Plaintiff's expert was unable to ascertain the full severity and extent of the
structural and wood damage until the walls in the home were fully opened. The
expert did estimate the cost of repairs to be $227,664.08. The reco rd does not
divulge whether plaintiff actually undertook the recommended repairs, or had
others perform the work.
After considering the expert report and the parties' other motion
submissions, as well as oral argument, the trial court granted defendant's motion
for summary judgment. The motion judge, Hon. Thomas C. Miller, issued a
fourteen-page written opinion explaining his reasoning.
A-2050-18T4 4 Judge Miller's ruling was principally based upon two findings. First, he
found "the terms of the warranty agreement are clear and unambiguous with
regards to the type of damage that is covered during the Year [Three] to Year
[Ten] period of time." For those years, the warranty covers "what can be
described as 'structural components' only. The alleged improper construc tion of
a vapor barrier system cannot be characterized as a damage to a structural
component." Further, the judge determined that "issues that involve water leaks
or moisture intrusion are also included within the one[-]year warranty period [in
Section F] of the Performance Standards of the policy."
Second, Judge Miller emphasized that plaintiff's expert report did not
actually state that plaintiff's house sustained a major structural defect. As the
judge wrote, plaintiff's expert "appears to argue that the improper installation of
the vapor barrier allowed mold and rot to form, which independently could cause
structural damage." Although "that proposition can be theoretically advanced,
a closer review of the Evolution report does not indicate that the mold and rot
has caused structural damage—but instead [it] only opines that it could cause
structural damage." (Emphasis added).
The judge rejected plaintiff's assertion that a representative from RWC
orally stated to him that "certain items are covered[,] such as 'physical damage,'
A-2050-18T4 5 'failure of components,' 'foundation system[s],' etc." The judge declined to rely
on this hearsay because it was not supported by a certification in compliance
with Rule 1:6-6, and also because the representative's alleged oral interpretation
of the warranty contract violated the parol evidence doctrine.
Plaintiff now appeals. He contends the trial court failed to recognize
genuine issues of material fact that allegedly would show he had a viable Year
Ten warranty claim. In particular, the plaintiff contends triable issues are raised
by his expert report, the contents of his submission to RWC, and the alleged
hearsay statement of RWC's representative concerning the scope of the warranty
coverage. Plaintiff further contends the trial court's ruling is inconsistent with
case law, pointing to the Supreme Court's opinion in Weedo v. Stone-E-Brick,
Inc., 81 N.J. 233 (1979), and this court's opinion in Cypress Point Condominium
Ass'n, Inc. v. Adria Towers, L.L.C., 441 N.J. Super. 369 (App. Div. 2015),
which he says favors construing insurance policies in an expansive manner.
We review the trial court's summary judgment ruling de novo, bearing in
mind the familiar principles of Rule 4:46-2 and Brill v. Guardian Life Ins. Co.
of Am., 142 N.J. 520 (1995). See also W.J.A. v. D.A., 210 N.J. 229, 237-38
(2012). Having done so, we affirm the grant of summary judgment, substantially
A-2050-18T4 6 for the sound reasons set forth in Judge Miller's December 3, 2018 written
opinion. We add several comments.
The elements of a cause of action for legal malpractice are: "(1) the
existence of an attorney-client relationship creating a duty of care by the
defendant attorney, (2) the breach of that duty by the defendant, and (3)
proximate causation of the damages claimed by the plaintiff." McGrogan v. Till,
167 N.J. 414, 425 (2001) (citing Conklin v. Hannoch Weisman, 145 N.J. 395,
416 (1996)). Here, the first two elements are apparently satisfied, but plaintiff
critically fails to establish the third element of damages proximately caused by
the attorney's negligent failure to submit the warranty on time.
We agree with the trial court that plaintiff has not demonstrated that the
damages to his home he discovered in Year Ten of the warranty are covered by
the terms of the plan. As we have already noted, the plan's coverage is more
restrictive in Years Three through Ten. In those latter years, the plan covers
only proven "major structural defects," in contrast to the broader coverage in its
earlier years.
Specifically, the limited warranty agreement provides coverage for only a
one-year duration for "defects due to nonconformity with the limited warranty
standards set forth in Section C of this book." Section C(4)(f) is labeled "thermal
A-2050-18T4 7 and moisture protection," and specifically warrants protection from defects such
as "insufficient insulation," "improperly installed louvers and vents that permit
penetration of the elements," "leaks resulting in actual trickling of water through
the walls or seeping through the floor," and "joints and cracks in exterior wall
surfaces and around openings which are not properly caulked to exclude the
entry of water."
Further, Section C(4)(g) extends coverage for only one year to "windows
which do not operate in conformity with manufacturer's design standards," "all
hardware installed on doors and windows which does not operate properly,"
"storm doors and windows which are installed and do not operate or fit properly
to provide the protection for which they are intended," and lastly, "weather[-
]stripping and seals . . . around doors and windows." These are more specific
examples of the general deficiencies alleged by plaintiff and his expert.
Pursuant to the plain language of the warranty, such deficiencies are
covered during the first year of the plan only. These items applicable terms of
the warranty limiting coverage are consistent with regulations promulgated
under the statute. See e.g., N.J.A.C. 5:32-3.2, and -3.5; see also Herman J.
Maurer v. Dep't of Cmty. Affairs, CAF 7148-14, initial decision, (Oct. 6, 2014)
A-2050-18T4 8 (ruling that water infiltration discovered after the first year of the plan was not
covered under the terms of the new home warranty program). 2
Even if, for the sake of discussion, we were to accept plaintiff's theory
that the lack of an effective installed vapor barrier was the proximate cause of
his damages, the plain language of the policy confines coverage for such water
infiltration to the first year of the plan.
Moreover, we agree with Judge Miller that the wording of plaintiff's
expert report does not state that faulty workmanship actually caused the water
leakage, but instead alludes more generally that "if" a vapor barrier is not
installed properly, then structural damage is likely to ensue. Although the report
opines that plaintiff's home is "at major risk," it does not explicitly provide the
necessary causal support for plaintiff's claim of faulty workmanship. We also
note the report is based upon an inspection performed in 2018, several years
after the warranty expired.
Plaintiff's arguments for reversal are not aided by Weedo, 81 N.J. at 233,
or by Cypress Point, 441 N.J. Super. at 369. Both opinions concern the terms
of commercial general liability insurance policies, which are not involved here.
2 This administrative decision is found at http://njlaw.rutgers.edu/collections/ oal/html/initial/caf7148-14_2.html. A-2050-18T4 9 Lastly, we concur with the motion judge's observation that the alleged oral
representation of RWC's representative about the terms of the coverage are
inadmissible against the defendant attorney under the hearsay rules, see N.J.R.E.
801(c) and 802, and also the parol evidence doctrine. See Conway v. 287 Corp.
Assocs., 187 N.J. 259, 270 (2006) (authorizing the consideration of parol
evidence only where contractual terms are ambiguous). The spoken words of
the entity's representative cannot alter the plain meaning of the warranty
provisions.
We understand plaintiff's dismay about the condition of his home and also
his former attorney's failure to take timely action. Nonetheless, plaintiff has no
viable cause of action in this case, and summary judgment was appropriately
granted in accordance with the law.
Affirmed.
A-2050-18T4 10