JASON BOCHNIAK AND DOMONIE BOCHNIAK, jointly and severally, Plaintiffs,
BLENHEIM AT BAY POINTE, LLC, Defendant
ORDER DENYING DEFENDANT BLENHEIM'S MOTION FOR SUMMARY JUDGMENT
ERIC M. DAVIS JUDGE
Upon consideration of the Motion for Summary Judgment (the "Motion") filed by Defendant Blenheim at Bay Pointe, LLC ("Blenheim"); the response to the Motion filed by Plaintiffs Jason and Domonie Bochniak; the record before the Court; for the reasons set forth on the record at the pretrial conference held on February 27, 2013; and for the reasons which follow,
IT IS FOUND AND DETERMINED that:
1. In an Opinion issued on May 31, 2011, the Court declined to find that an arbitration provision contained in the Home Buyer's Warranty was applicable and a basis for dismissal of the Bochniaks' Complaint because the Bochniaks presented a colorable argument that the Home Buyer's Warranty is unconscionable. The Court determined that further factual development was necessary on the validity of the arbitration provision and whether the Home Buyer's Warranty provided the Bochniaks an exclusive remedy. In its holding, the Court also considered that the question of whether a contract or a contractual provision is unconscionable is ordinarily one for a trier of fact. Neither party has since presented evidence relating to the unconscionability of the Home Buyer's Warranty to the Court. Therefore, a genuine issue of material fact remains as to whether the Home Buyer's Warranty executed by the parties was unconscionable in whole or in part.
2. The Bochniaks allege that Blenheim committed fraudulent misrepresentation, fraudulent concealment, and consumer fraud with respect to the quality of Blenheim's workmanship and whether it corrected defects. The Bochniaks filed their Complaint five years and seven months after Blenheim conducted a one-year post-closing inspection of the Bochniaks' home. Because the Agreement of Sale was executed under seal, it is subject to a twenty-year statute of limitations. The Home Buyer's Warranty was not executed under seal and is subject to the three-year statute of limitations for contracts.Since the Bochniaks' allegations of fraudulent misrepresentation, fraudulent concealment, and consumer fraud remain unresolved, a genuine issue of material fact exists as to whether the three-year statute of limitations applicable to claims arising from the Home Buyer's Warranty was tolled by the discovery rule; and
3. Based upon the Affidavit of Jason E. Bochniak,  Mr. Bochniak notified Blenheim of various defects, and Blenheim, in response, attempted to repair the defects and provided assurances that the defects were cured. The Limited Warranty, Representations and Disclaimer and the Home Buyer's Warranty call for the Bochniaks to submit complaints of defects to Blenheim in writing. Blenheim contends that summary judgment is appropriate because Blenheim did not receive written complaints from the Bochniaks until January 31, 2010. However, a genuine issue of material fact exists as to whether Blenheim acquiesced in deviating from the terms of the Limited Warranty, Representations and Disclaimer and the Home Buyer's Warranty by making repairs and providing assurances in response to the Bochniaks' oral complaints of defects.
4. The Court therefore has determined that genuine issues as to material facts exist and that Blenheim is not otherwise entitled to judgment as a matter of law.
IT IS SO ORDERED that, for the reasons set forth in this Order and on
the record at the February 27, 2013 pretrial ...