Kemp v. Brandau

Decision Date21 April 2022
Docket NumberA-4161-19
PartiesCHRISTOPHER KEMP and the Estate of NUNZIO CONSALVO, Plaintiffs-Appellants, v. THE ESTATE OF MARIJANE BRANDAU, PATRICK LEWIS, in both his individual capacity and as executor of the Estate of MARIJANE BRANDAU, SCOTT STOGNER, in both his individual capacity and as executor of the Estate of MARIJANE BRANDAU, GRACE M. ROONEY, REAL ESTATE CONSULTANTS, LLC, d/b/a REALTY EXECUTIVES EXCEPTIONAL REALTORS POMPTON PLAINS, Defendants-Respondents, and CAVEAT EMPTOR HOME INSPECTORS, LLC, Defendant, and GRACE M. ROONEY, REAL ESTATE CONSULTANTS, LLC, d/b/a REALTY EXECUTIVES EXCEPTIONAL REALTORS POMPTON PLAINS, Third-Party Plaintiffs-Respondents, v. COLDWELL BANKER RESIDENTIAL BROKERAGE and DONNA NELSON, Third-Party Defendants-Respondents.
CourtNew Jersey Superior Court – 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.

Argued December 8, 2021

Joshua M. Lurie argued the cause for appellants (Lurie Strupinsky LLP, attorneys; Joshua M. Lurie, on the briefs).

Jeffrey Arons argued the cause for respondents the Estate of Marijane Brandau, Patrick Lewis, and Scott Stogner (Arons & Arons, LLC, attorneys; Jeffrey Arons, on the brief).

Martin J. McAndrew argued the cause for respondents Grace M. Rooney and Real Estate Consultants, LLC d/b/a Realty Executives Exceptional Realtors Pompton Plains (O'Connor Kimball, LLP, attorneys; Martin J. McAndrew and Michael S. Soule, on the brief).

Before Judges Gilson, Gooden Brown, and Gummer.

PER CURIAM

In this "as-is" residential-property-sale case, plaintiffs Christopher Kemp[1]and the Estate of Nunzio Consalvo[2] appeal orders granting the summary-judgment motions of defendants the Estate of Marijane Brandau, Patrick Lewis, and Scott Stogner[3] (the Estate defendants) and defendants Grace M. Rooney and Real Estate Consultants, LLC (the Real Estate defendants). We affirm.

I.

We glean these facts from the summary-judgment record, viewing them in the light most favorable to plaintiffs, the parties opposing summary judgment. See Richter v. Oakland Bd. of Educ., 246 N.J. 507, 515 (2021) (citing Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995)).

A.

In 2015, the Kemps wanted to purchase a "fixer-upper" house, which was "structurally sound but outdated that [they] could update . . . ." At that time, Christopher worked in general construction and was employed as a foreman by Vento Tile, responsible for overseeing and performing demolition, interior framing, insulation, drywall, and roofing work. Real estate agent Donna Nelson of Coldwell Banker Residential Brokerage assisted them in their search.

The Kemps saw on Zillow a property located in Butler Township listed for sale for $400, 000. Marijane Brandau had owned the property. After Brandau died testate on October 22, 2016, the property became an asset of her estate. Her sons, defendants Lewis and Stogner, were appointed executors of her will. The property was listed for sale by defendant Real Estate Consultants, LLC, and its affiliated real estate agent defendant Rooney.

Christopher attended an "open house" event at the property in November 2016. During that initial visit, he met and spoke with Rooney, who described herself as Brandau's "close personal friend[]." At the open house, Christopher made several observations about the house. In the right ground-floor bedroom, he identified water damage that had caused a three foot by three foot "[g]iant wet stain on the wall" with softened sheetrock wet to the touch. Additionally, he saw "obvious animal stains," mold, and signs the hardwood flooring and tiles needed to be replaced. According to Christopher, Rooney attributed the damage to the right ground-floor bedroom wall to the house having an insufficient number of downspouts. She informed him she had received a $2, 500 estimate to repair the right ground-floor bedroom wall and opined the entire house could be renovated for approximately $15, 000. Christopher did not believe Rooney's assessment was accurate; based on his professional experience and research, he believed the renovation would be more expensive. In a certification submitted in opposition to the Real Estate defendants' motion for summary judgment, Christopher certified Rooney's belief that "updates would total about $15, 000.00 . . . was preposterous." Because Christopher felt the property was overpriced for its condition, the Kemps did not make an offer to purchase it.

Several months later, the list price of the property was reduced to $345, 000. Kris, her father Nunzio Consalvo, and her mother attended another open house at the property in March 2017. At the open house, Kris discussed with Rooney and other attendees some issues regarding the house. When Kris asked about water stains around a living room skylight, Rooney said the skylight just needed to be resealed and she was looking into having that work done. She attributed water stains, a hole in the wall, and a recently patched hole in the ceiling of the right ground-floor bedroom to "water from downspouts." She stated a hole in the garage's ceiling was caused by a leaky pipe and told attendees at the open house she had received "estimates and everything was minor."

The Kemps returned to the property with Nelson on March 6, 2017. Christopher found the house to be in "[a]bout the same" condition as he had seen before. He noticed the house had no open walls.

B.

The next day, Christopher, as a buyer, signed an "as-is" sales contract to purchase the property for $346, 000. Consalvo, as a buyer, and Lewis and Stogner, on behalf of Brandau's estate, which was the seller, signed it the following day. In the contract, the buyers

acknowledge[d] that the [p]roperty is being sold in an "as is" condition and that this [c]ontract is entered into based upon the knowledge of [the buyers] as to the value of the land and whatever buildings are upon the [p]roperty, and not on any representation made by [s]eller, [b]rokers or their agents as to character or quality of the [p]roperty.

Under the contract's terms, the brokers and salespersons were described as having had "no special training, knowledge or experience with regard to discovering and/or evaluating physical defects," including "structural defects, . . . and other types of insect infestation or damage caused by such infestation." A section of the contract entitled "ADDITIONAL CONTRACTUAL PROVISIONS" contained the following language: "[p]roperty sold strictly 'as is' with the exception of structural and wood pest infestation."

The buyers had the right to have the property "inspected and evaluated by 'qualified inspectors' . . . for the purpose of determining the existence of any physical defects or environmental conditions." If the inspector reported "any physical defects or environmental conditions (other than radon or woodboring insects)," the seller had to notify the buyers in writing within seven days of receipt of the report that it would "correct or cure any of the defects set forth" in the report. If the seller failed to agree to cure or correct the defects or if "the environmental condition at the [p]roperty . . . is incurable and of such significance as to unreasonably endanger the health of [the buyers]," the buyers had "the right to void this [c]ontract by notifying [the s]eller in writing within seven (7) calendar days." If the buyers did not void the contract in that time period, they "waived" their "right to cancel this [c]ontract and this [c]ontract shall remain in full force," with the seller being "under no obligation to correct or cure any of the defects set forth in the inspections."

The contract also gave the buyers the "right to have the [p]roperty inspected by a licensed exterminating company of [the buyers'] choice, for the purpose of determining if the [p]roperty is free from infestation and damage from termites or other wood destroying insects." If the exterminating company's report indicated "infestation or damage" and the cost to cure the infestation or to repair and treat the property exceeded one percent of the purchase price, the buyers or the sellers had the right to "void" the contract within seven days of delivery of the report. If the buyers and seller did not agree about who would pay those costs and neither side timely voided the contract, the buyers would "be deemed to have waived [their] right to terminate this [c]ontract and will bear the cost to cure."

On March 24, 2017, the Kemps retained Caveat Emptor Home Inspectors (Caveat) to "perform a visual inspection of the home/building . . . ." At the time of the inspection, the hole in the right ground-floor bedroom wall was closed but, according to Kris, "[y]ou could see it was fresh." Kris was told by either her attorney or Nelson that the issues surrounding the hole had been fixed.

In a report dated March 26, 2017, Caveat identified multiple "defective" aspects of the home, which "need[ed] immediate repair or replacement" and were "unable to perform [their] intended function." Caveat found the ceiling and walls in the foyer to be defective with evidence of past or present water staining. Caveat described a skylight as being "[d]efective," noting "[m]oisture stains" on the surrounding drywall and "[w]ater leakage." Caveat stated "[foyer s]kylight [l]eaking roof. Moisture present. Replace roof." Caveat recommended a "qualified roofing contractor" be retained "to evaluate and estimate repairs."

In the right ground-floor bedroom, Caveat found the ceiling to...

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