SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO S . A

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A

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- 17T3 RANDAL ALLEN and GINA ALLEN, MICHAEL ANELLO and KRYSTAL ANELLO , ROBERT ANICIC and GRETCHEN ANICIC, MATTHEW ARREDONDO and MARIA ARREDONDO, NARESH ARULAMPALAM and MELANTHI ARULAMPALAM , MEREDITH BARNES and NATHAN BARNES , STEPHEN BARONE and DONNA BARONE , KIM CIFONE and MARK CIFONE , JULIUS COLINA and JENNY COLINA , PATRICK CLUNE and JENNIFER CLUNE , WILLIAM CRAIG and STACEY CRAIG , CHERIE DAVIS and KEVIN DAVIS , JOHN DISTEFANO and SHERRI DISTEFANO , BRIAN DOUGHERTY and JOSIE DOUGHERTY , ERIC HALLMAN and DAWN HALLMAN , LAUREN HARFST , KATIE HOMOLA and JASON HOMOLA , ROBERT HOSSLER and VALERIE HOSSLER , STEPHEN M. JENKINS and ANNA L . JENKINS , MICHAEL KISSEL and PATRICIA KISSEL , JOSEPH LOFTIS , MICHAEL MCCABE and LYNNE MCCABE , AJIT K. NAIR and MAYA NAIR , ROBERT SCIARROTTA and JEANNA SCIARROTTA , JAMES WILKES and LAUREN WILKES , NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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

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RICHARD YOUNG and CHERIE YOUNG , CRAIG SCHINDEWOLF and ROSEMARIE SCHINDEWOLF,
Plaintiffs

- Appellants,

v. BEAZER HOME S CORPORATION , d/b/a BEAZER HOMES GROUP,
Defendant

- Respondent

.

_________________________________________ MICHAEL CAPRIOTTI and AMY CAPRIOTTI , MARK CONNOLLY and TRACY CONNOLLY , JEFFREY HAYES , ELLIOTT HUDAK and ARLENE HUDAK , MARY KELLEY and ROBERT KELLEY , KIM MCNALLY and RYAN MCNALLY , MICHAEL PECORILLI and GINA PECORILLI , MARY KATE RACOBALDO and SALVATORE RACOBALDO , CHRIS REUTER and BRIDGET REUTER , LESLEY RHOADES , BILL STRINGER and CHERYL STRINGER , ROBERT SULLIVAN and JODI SU LLIVAN , LEILA TAGLIERI and PAUL STENNIE , JAMES D. VAITES and THERESA VAITES , CINDY VOLKMANN and RON VOLKMANN , GEORGE WANG and KATHY WU , NORA ZACIERKA and MICHAEL ZACIERKA , ROBERT THOMPSON and MARY CHRIS THOM PSON , SEAN SWEENEY and JILL SWEENEY , KATHY KOENI G

- LEE , DAN MARZANO and SHERRY MARZANO,
Plaintiffs

- Appellants,3 A

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v. BEAZER HOME S CORPORATION , d/b/a BEAZER HOMES GROUP,
Defendant

- Respondent

.

_____________________________________ ___ MICHAEL COCOZZA and BROOK COCOZZA , KIM NEGRO and ANTHONY NEGRO , LORI PASSEHL and GEOFFREY PASSEHL , SANJAY PATEL and KRISTI PATEL , KURT RIEPEN and TRACY RIEPEN , BRIAN RIGGS and JENNIFER RIGGS , KEITH TARTAGLIONE and LYNDSEY TARTAGLIONE , and BYRON WELLS and KIMBERLY WELLS,
Plaintiffs

- Appellants,

v. BEAZER HOME S CORPO RATION , d/b/a BEAZER HOMES GROUP,
Defendant

- Respondent

.

_____________________ ___________________

Submitted September 10, 2019

– Decided Before Judges Fisher, Gilson and Rose. On appeal from the Superior Court of New Jersey, Law Division, Gloucester County, Docket Nos. L

- 00 57

- 16, L

- 00 5

- 16 and L

- 00 12

- 16. Salmon Ricchezza Singer & Turchi LLP , and More Marrone LLC, attorneys for appellants (Joseph L. September 24, 20194 A

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. Marrone, on the brief).
Arch er & Greiner PC, attorneys for respondent (William L eo Ryan and Benjamin D. Morgan, on the brief).
PER CURIAM
Plaintiffs in these three consolidated action s bought homes in Gloucester County that were constructed and sold to them by defendant Beazer Hom es Corp oration

. Their three complaints allege a single cause of action, which
asserts that Beazer violated the Consumer Fraud Act, N.J.S.A. 56:8

- 1 to

- 210, by concealing information about the homes' septic systems. Some plaintiffs voluntarily dismissed their claims. The claims of another group of p l aintiffs were dismissed through application of the statute of repose , N.J.S.A. 2A:14

- 1.1.
And t he claims of the remaining plaintiffs were dismissed by way o f summary jud gment; t he motion judge concluded these plaintiffs failed to show that Beazer committed an unlawful business practice or that they suffered an ascertainable loss. We find no error in the disposition of these claims and affirm. Factually, plaintiffs alleg e d that Beazer never disclos ed it had installed infiltrator systems , which had only been in use in the industry for twenty years, instead of stone and pipe systems , which allegedly can be expected to last a minimum of twenty

- five years and up to fifty or m ore years. In their complaints,5 A

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p laintiffs contend ed that because of the c onsiderable expense of replacing a septic system, the failur e to disclose the type of septic system installed was
material to the ir decision to purchase.
Plaintiffs' three complain ts were filed on December 24, 2015 . T he parties stipulated the homes of forty

- se ven plaintiffs were completed more than ten
years before the suits were filed, so Beazer argued the se claims were barred by the statute of repose, which prohibits the commence ment of an action based on a "deficiency in the design . . . or construction of an improv ement to real property . . . against any person performing or furnishing the design . . . or construction of such improvement to real property . . . more than 10 years after the performance or furnishing of such services and construction." N.J.S.A.
2A:14

- 1.1. Plaintiff s contend the motion judge misconstrued or misapplied this statute. We disagree and affirm the order granting Beazer's motion for summary judgment as t o forty

- seven plaintiffs on this ground substantially for the reasons set forth by Judge Richard J. Geiger in his thorough and w ell

- reasoned written
decision. We add just a few comments.
E ven though plaintiffs alleged only a CFA violatio n

– thereby focusi ng on what they claim was an unlawful sales practice rather than on a faulty design or
construction defect

– the statute of repose still applies because it is the design6 A

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and instal lation of what plaintiffs allege is a less than desirable septic system
that lies at the heart of the ir claim s
. In enacting the statute of repose, the Legislature sought to "limit" what it found to be an undesirable course the law had taken in applying the discovery rule, abandoning the completed

- and

accepted rule, an d otherwise expanding the liability of contractors, b uilders, planners and designers

. Horosz v. Alps Estates , Inc. , 136 N.J. 124, 128 (1994) ;

s ee also Ebert v. So. Jersey Gas Co. , 157 N.J. 135, 138 (1999)

. In examining the legislative intent, t he Supreme Court deter mined that the statute of repose should apply broadly

. Horosz , 136 N.J. at 129; Newark Beth Israel Med. Ctr. v. Gruzen & Partners , 124 N.J. 357, 363 (1991). W e are satisfied this broad scope
should also envelope a CFA action that emanates from the design or construction
of the item sold in the challenged transaction . Indeed, the very language of the statute of repose supports a broad application regardless of how a plaintiff
couches the cause of action because the Legislature declared that "[n]o action, whether in contract, in tort, or otherwise " may be brought regarding such an alleged defect more than ten years after the completion of construction. N.J.S.A.
2A:14

- 1.1 (emphasis added) . In applying these principles , Judge G eiger correctly dismissed the claims of those plaintiffs whose homes were constructed more than ten years before the y filed their complaints.7 A

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After further discovery, Judge James R. Swift granted summary judgment in favor of Beazer on the remaining claims. In his written decision, the judge recognized that even though two of the remaining plaintiffs had replaced their septic system s and three other systems required min or repair, not one of the se plaintiffs pro duced an expert report to support a claim that the original ly
installed system was defective . He also determined that the other pla intiffs had not presented any problem at all with their systems, which, at the tim e of his decision, were between eight and twelve years old. Other than the generalities alleged by plaintiffs' expert about the comparative life expectancies of stone and pipe systems and infiltra tion systems , the expert found no fault in the design,
inst allation or function of the systems Beazer installed. The judge als o recognized that plaintiff s provided no expert report or other
evidence t o demonstrate that homes with an infiltration system of the type installed by Beazer have a diminished value when compared to those with stone and pipe systems. Plaintiffs did provide a n expert report that esti mated the cost of replacing plaintiffs' existing systems with a "traditional" system , but no expert opined that such a replacement should occur.
Like the motio n judge, we find plaintiffs' claim that Beazer had a duty to inform them of the nature of the septic system similar to a CFA claim we found8 A

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wanting in Perkins v. DaimlerChrysler Corp. , 383 N.J. Super. 99 (App. Div. 2006). Beazer constructed and sol d a hom e with a system designed by a licensed engineer and approved for use in this State. It had no obligation to inform the buye rs of the type of system installed.
For these reasons , and substantially for th e reasons set forth by Judge Swift in his comprehensi ve and thoughtful written decision, we conclude that plai ntiffs' CFA claim s were properly dismissed

. Affirmed.