STEFANO J. TOMEO, III v. WILLIAM R. EDLESTON

NOT FOR PUBLICATION WITHOUT THE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.


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      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.
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      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.




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      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,'


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'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




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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


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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)




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(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.
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      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.




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