Strawn v. Canuso
| Decision Date | 22 February 1994 |
| Citation | 638 A.2d 141,271 N.J.Super. 88 |
| Parties | , 62 USLW 2557, 24 Envtl. L. Rep. 20,774 Joanne STRAWN, Gerald L. Strawn, Tracey A. Strawn and Brandon M. Strawn, by their guardian ad litem, Joanne Strawn, Russell C. Burton and Brett C. Burton, by his guardian ad litem, Russell C. Burton, William Helbling, Anthony Alvarez, Rita Alvarez, Lisa Alvarez, John M. Gaven, Sr., Annette M. Gaven, and John M. Gaven, Jr., Young D. Kim, Julia S. Kim, and Patrick Kim and Roy Kim by their guardian ad litem, Young Kim, Albert Williams, Evelyn Williams, and Stephen Williams, Plaintiffs-Appellants, Cross-Respondents, and Marie C. Incollingo, Anthony F. Incollingo, Michelle M. Incollingo, Nancy Ann Incollingo, Frank Carnot, Raeffaela Carnot, William Dennis, Jacqueline Dennis, Nicole M. Dennis and Farrah D. Dennis, by their guardian ad litem, Jacqueline Dennis, Michael Powell, Amy Powell and Molly Powell, by their guardian ad litem, Dorothy Powell, Michael J. Vitarelli, Sr., Lois A. Vitarelli and Jacqueline Vitarelli, Leslie Vitarelli, Michael Vitarelli, Jr., by their guardian ad litem Lois Vitarelli, Christopher Conti, Elayne Conti, Dana Marie Conti and Gina Christine Conti, by their guardian ad litem Elayne Conti, Eugene E. Jaron, Ann T. Jaron, Kathleen A. Jaron, Stephen M. Jaron, Paul M. Kramer, Patricia G. Kramer, by their guardian ad litem Patricia Kramer, Sandy Oblena, Estrella Oblena, Nathaniel Oblena, and Michael Oblena by their guardian ad litem Sandy Oblena, Anthony Chapman, Catharine Chapman, David Chapman and Adriane Chapman by their guardian ad litem Catharine Chapman, Jay Agnes, Jacqueline Agnes, Robert Lewis, Celine Lewis, and Stephanie Lewis, by her guardian ad litem Robert Lewis, Trudy Becmer, Edmund Becmer, Debra Muraca, Frank Muraca, David Bard, Ruth Bard, Howard Friedman, Mariano A. Pinizzotto, and Marie Rose Pinizzotto by her guardian ad litem Mariano A. Pinizzotto, Chester A. Riddick, Jr., Carmelita D. Riddick, Todd Riddick, and Allen Riddick, by her guardian ad litem Carmelita D. Riddick, Martin V. Goldstein, |
| Court | New Jersey Superior Court — Appellate Division |
Mark R. Rosen, Haddonfield, argued the cause for appellants (Mesirov, Gelman, Jaffe, Cramer & Jamieson, and Williams, Cuker & Casper, attorneys; Mr. Rosen, Mark R. Cuker and Alan H. Casper, of counsel, and on the brief).
Alan Greenberg, Marlton, argued the cause for defendants-respondents (Rawle & Henderson, attorneys; Mr. Greenberg, Tina L. Nugent and Joanne Stipick, of counsel; Ms. Nugent and Ms. Stipick, on the brief).
Gregory R. McCloskey, Moorestown, argued the cause for defendant-respondent, cross-appellant Fox & Lazo Inc. Realtors (Begley, McCloskey & Gaskill, attorneys; Mr. McCloskey and David E. Ewan, on the brief).
Before Judges COLEMAN, THOMAS and LEVY.
The opinion of the court was delivered by
COLEMAN, P.J.A.D.
The crucial and novel issues raised in this class action litigation are whether (1) a builder and selling brokers of new homes have a duty to disclose to potential buyers the existence of a nearby closed landfill, (2) consumer fraud claims should be tried before a jury, and (3) class action certification should have been granted. We conclude that under the circumstances, a duty to disclose exists and class action certification should have been granted. An advisory jury should try the consumer fraud claims.
On May 5, 1987, plaintiffs filed a class action complaint on behalf of between 150 and 200 families who purchased homes in Voorhees Township, Camden County, near a closed landfill. The homes are located in a development known as the Woods of Voorhees and Las Brisas, which is an extension of the Alluvium development. The complaint alleges, among other things, that the market value of the homes was diminished at the time of purchase due to their close proximity to the closed Buzby Landfill, suspected of containing toxic waste. The complaint also alleges common law fraud, negligent misrepresentations and concealment, and violations of the New Jersey Consumer Fraud Act.
Defendants-respondents John B. Canuso, Sr., John B. Canuso, Jr., two officers of Canuso Management Corporation, and Canetic Corporation, were the builders of the homes. Canetic Corporation also marketed the homes during 1984 and early 1985. Defendant-respondent Fox & Lazo, Inc. Realtors was the selling broker from early 1985 through August 1, 1986. Thereafter, the homes were marketed by defendant Weichert Realtors through 1987.
Although plaintiffs filed a motion for class action certification on October 16, 1987, the decision denying the motion was not rendered until March 5, 1991, followed by an order entered on July 16, 1991. The same application was denied again in 1992. Eventually, the judge granted summary judgments dismissing all claims of seven families: Alvarez, Burton, Gaven, Helbling, Kim, Strawn and Williams. The judge also ruled that all claims of each plaintiff-family should be severed from the claims of all other plaintiffs and the remaining nineteen plaintiff-families awaiting trials on common law fraud and Consumer Fraud Act claims are entitled to jury trials on both claims. The seven plaintiff-families whose cases have been dismissed entirely have appealed, and defendant Fox & Lazo has cross-appealed from the order which permits a jury trial on the Consumer Fraud Act claims.
The homes involved in this protracted litigation were constructed in the early to mid 1980's near the eastern boundary of a 56 acre landfill known as the Buzby Landfill. The gravamen of the litigation requires us to focus on whether any reasonable basis existed to require defendants to disclose the existence of the landfill. Since appellants' complaint was dismissed on summary judgment motions, we must examine the facts in a light most favorable to the plaintiffs. Ruvolo v. American Cas. Co., 39 N.J. 490, 499, 189 A.2d 204 (1963).
None of the plaintiff-appellant families knew about the existence of the landfill at the time they purchased their homes. Defendant Canuso, Sr., on the other hand, allegedly knew about the landfill while it was still operational and before the homes were built. Defendants utilized sales promotion brochures, newspaper advertisements and a fact sheet to sell the homes. The brochures described the Woods of Voorhees as follows: "Here you can own an exciting John B. Canuso home in the midst of a heavily treed forest." A brochure for Las Brisas stated it was a continuation of the 600 acre Alluvium development of Some of the plaintiffs allege that one of the brochures stated the residents could go "hiking in the woods." We have not been able to locate a legible copy of this statement in the appendix.
During the spring of 1985, the Philadelphia Inquirer newspaper carried an advertisement for the Woods which depicted two children running toward a home. A caption in bold print stated "Daddy's Home." Underneath the caption, the following appeared: "You can enjoy the contentment and satisfaction of knowing your children are growing in the healthy, fresh, country air of this ideal wooded community." The brochures emphasized the existence of off-site amenities such as country clubs and shopping malls. However, neither the brochures, the newspaper advertisements nor any sales personnel mentioned that a landfill is located within half a mile of some of the homes. Each appellant-family asserts that it relied upon the brochures and the advertisements in purchasing its home.
The land used for the landfill was owned by RCA and Voorhees Township. The landfill was operated between 1972 and 1978 by the Buzby Brothers. The landfill was primarily used as a dumping ground for vegetative waste, municipal refuse, liquid septage and solid waste. Despite the stated purposes, there is evidence that it was also used for the disposal of chemical waste. A hazardous waste site investigation conducted by the federal Environmental Protection Agency (EPA) in May 1980 is part of the evidence plaintiffs rely upon to establish the presence of hazardous waste in the landfill.
This EPA report contains the assertion that RCA, which owned other property adjacent to the eastern end of the landfill, intended to build a number of homes on this eighty-five acre tract, each with its own well for drinking water. The author commented that
Although the landfill was not registered to accept chemical industrial waste, the New Jersey Department of Environmental Protection and Energy (NJDEPE) received reports from people who had seen tankers of chemicals dumping their loads there. Indeed, a 1979 aerial photograph of one area of the RCA-owned portion appeared to show twenty to thirty unidentified fifty-five gallon drums at the site. Furthermore, the Buzby Brothers wrote letters dated May 1971 and March...
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