Daily Development for Friday, October 22, 2004
by: Patrick A. Randolph, Jr.
Elmer F. Pierson Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin Kansas City, Missouri dirt@umkc.edu

CONSTRUCTION LAW; STATUTE OF LIMITATIONS; UCC ARTICLE 2: A consumer’s purchase of stone for the façade of his house is either a real estate transaction or a purchase of services and not a purchase of goods covered by the UCC. Thus the UCC statute of limitations does not apply to claims based upon flaws in the stone.

DiIorio v. Structural Stone & Brick Co., 2004 WL 690436 (N.J. Super. Ct. App. Div. 2004).

Plaintiff entered into a contract in which a builder agreed to construct a luxury home according to his specifications. Plaintiff wanted the builder to build the house with a façade of stone, and he selected the stone from the builder’s supplier. However, the plaintiff did not enter into a separate agreement with the stone supplier. A few months after the house was constructed, the stone façade began to flake causing significant damage.

Plaintiff commenced an action against the builder and the stone supplier approximately five years after the façade began to flake. The critical issue was whether the four-year statute of limitations under the UCC or the six-year statute of limitations under the Consumer Fraud Act governed the plaintiff’s action.

The court denied summary judgment to the defendants, holding that the transaction in question was primarily a real estate transaction not covered by the UCC or, alternatively, a service transaction—hiring a builder to construct a stone façade—that also is not covered by the UCC. Since the purchase of goods, in this case stone, was incidental to the purpose of the transaction, the court ruled that the transaction was governed by the Consumer Fraud Act rather than by the UCC.

Comment: Although a simple case, the editor selected this as a DD because he believes the facts might be rather common and the result, in the editor’s view, a bit surprising. Note, however, that the Consumer Fraud Act at issue here has a rather long statute of limitations. In other jurisdictions, one might not find a six year statute to select as an alternative to the UCC.

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