Herbert Wreden and Karen Wreden v. Township of Lafayette , 436 N.J. Super. 117 ( 2014 )


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  •                 NOT FOR PUBLICATION WITHOUT THE
    APPROVAL OF THE APPELLATE DIVISION
    SUPERIOR COURT OF NEW JERSEY
    APPELLATE DIVISION
    DOCKET NO. A-5422-12T3
    HERBERT WREDEN and KAREN
    WREDEN,
    Plaintiffs-Appellants,          APPROVED FOR PUBLICATION
    June 17, 2014
    v.
    APPELLATE DIVISION
    TOWNSHIP OF LAFAYETTE,
    Defendant-Respondent,
    and
    SNOOK'S EXCAVATING, INC., and
    FINELLI CONSULTING ENGINEERS, INC.,
    Defendants.
    ______________________________________
    Argued June 4, 2014 – Decided June 17, 2014
    Before Judges Fuentes, Fasciale and Haas.
    On appeal from the Superior Court of New
    Jersey, Law Division, Sussex County, Docket
    No. L-460-11.
    Lisa Nichole Roskos argued the cause for
    appellants (Andrew M. Wubbenhorst, LLC,
    attorneys; Ms. Roskos, on the briefs).
    Roy   E.   Kurnos   argued   the  cause         for
    respondent    (Belsole   and   Kurnos,         LLC,
    attorneys; Mr. Kurnos, on the brief).
    The opinion of the court was delivered by
    HAAS, J.A.D.
    Plaintiffs      appeal   from     a    February   8,    2012    Law    Division
    order dismissing their complaint against defendant Township of
    Lafayette (the Township), and the court's April 23, 2012 order
    denying their motion to amend their complaint to add an inverse
    condemnation claim against the Township.              We reverse and remand.
    We discern the following facts from the face of plaintiffs'
    June 28, 2011 complaint, giving plaintiffs the benefit of all
    reasonable    factual     inferences.         Printing     Mart-Morristown        v.
    Sharp Elecs. Corp., 
    116 N.J. 739
    , 746 (1989).                      Plaintiffs own
    property in the Township, where they maintain their home, and a
    "horse barn and fields for grazing and other uses relating to
    the boarding of horses."        In 2007, the Township contracted with
    defendants    Finelli     Consulting       Engineers,      Inc.    (Finelli)     and
    Snook's Excavating, Inc. (Snook's) "to design and construct a
    retaining    wall   and    provide        water   drainage      along     [a   road]
    adjacent to Plaintiffs' property."            Plaintiffs alleged
    [t]he storm water drainage from the roadway
    and adjacent properties was designed in such
    a way as to direct water to come onto
    Plaintiffs'   property,    causing    flooding
    conditions   about   Plaintiffs'    land   and
    structures, onto Plaintiffs' septic field,
    and in such a manner so as to cause damage
    to   Plaintiffs'    property    and    inhibit
    Plaintiffs' use of same.
    Plaintiffs    asserted       "[t]he       retaining      wall      designed      and
    constructed by Defendants was defectively engineered and built,
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    lacked   appropriate   foundation       and   support,   [and]   included
    defective materials and workmanship."
    On January 28, 2008, plaintiffs served a Notice of Tort
    Claim upon the Township.   In pertinent part, the notice stated:
    C.   The date, place and other circumstances
    of the occurrence which gave rise to the
    claim asserted is that the Township of
    Lafayette   Road   Department   on  or  about
    November 12, 2007 undertook the construction
    of a retaining wall and drainage structures
    within the right of way of [a road],
    adjacent to the Claimant's property . . .,
    which increase the volume of stormwater
    runoff    and    further    concentrate   and
    accelerate the flow of stormwater runoff
    from [the road] onto the Claimant's property
    without the benefit of an easement or legal
    right to so discharge stormwater runoff onto
    the Claimant's property.
    D.   A general description of the injury,
    damage or loss incurred so far is the
    unauthorized diversion of stormwater runoff
    by means of drainage structures onto the
    Claimant's   property    causing  stormwater
    related damage and flooding of Claimant's
    property and attendant loss of property
    value due to the highly unsightly structures
    constructed by the Township.
    . . . .
    F.   The amount of the claim as of the date
    of this Notice is unknown, however, the
    claim is for a continuing trespass on
    Claimant's property and damage to Claimant's
    property   by  the   unlawful  diversion  of
    stormwater    runoff    as    described   in
    Subparagraphs C and D above.
    [(Emphasis added).]
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    In     2009,    the    retaining      wall    "collapsed         onto   Plaintiffs'
    property     sending      large     blocks       of   concrete         tumbling        onto
    Plaintiffs' property and causing an unstable and unsafe roadway
    frontage . . . in front of Plaintiffs' property."                            Plaintiffs
    alleged "[t]he conditions caused by Defendants' actions and/or
    omissions    continue[]      to    the    present,       including     the    collapsed
    wall onto [their] property, continued runoff and discharge of
    water from [the road] onto Plaintiffs' property resulting in
    flooding     and    interference          with    Plaintiffs'         use     of      their
    property."
    On June 28, 2011, plaintiffs filed their original four-
    count   complaint        against    the    Township,       Finelli      and    Snook's.
    Plaintiffs    sought      compensatory         damages    and    injunctive         relief
    relating to the alleged damage to their property due to the
    construction and collapse of the retaining wall, as well as
    damage from the Township's drainage systems that directed water
    onto their property.
    Finelli        and    Snook's    filed       answers        to    the    complaint.
    However, the Township responded by filing a motion to dismiss
    the complaint for failure to state a cause of action pursuant to
    Rule 4:6-2(e).           The Township submitted two certifications in
    support of its motion.             A Township Committee member certified
    that he authorized Finelli, the Township's engineer, "to develop
    4                                       A-5422-12T3
    plans to stabilize" the road adjacent to plaintiffs' property,
    and   that   he    later       met    with     Finelli         and    Snook's    "to   discuss
    proposed drainage improvements to" the roadway.                                 The Committee
    member     stated       he     reported        his       "findings       and     discussions"
    concerning the project to the Township Committee and that, "with
    the full authority of the Township Committee[,]" he approved the
    plan prepared by Finelli for construction of the project.                                    The
    second certification was prepared by the Township Clerk, who
    stated that plaintiffs' January 28, 2008 notice of tort claim
    was the only such notice they submitted.                            Plaintiffs opposed the
    Township's motion.
    After hearing oral argument, the judge entered an order on
    February 8, 2012 granting the Township's motion and dismissing
    plaintiffs' claims against the Township.                               In an accompanying
    written      statement         of      reasons,          the    judge     summarized         the
    allegations       set        forth     in     plaintiffs'            complaint,     but     also
    reviewed the certifications submitted by the Township.
    Although      the        judge        acknowledged         that     plaintiffs        were
    alleging     a    continuing         tort     by    the    Township,       he    stated     that
    "[t]he    Court     makes       no    determination            on    whether     the   actions
    complained of by the Plaintiffs constitute a continuing tort."
    Thus, the judge made no findings of fact concerning whether
    defendants'       actions       constituted          a    continuing       tort,       or   when
    5                                      A-5422-12T3
    plaintiffs' cause of action for their alleged continuing tort
    accrued.
    Instead,        the    judge    noted       that,    under   N.J.S.A.     59:8-8b,
    claims against a public entity are barred if the plaintiff has
    not "file[d] suit in an appropriate court of law" and "[t]wo
    years have elapsed since the accrual of the claim[.]"                       The judge
    focused solely on the date plaintiffs filed their notice of
    claim, January 28, 2008, and found that, because plaintiffs did
    not file their complaint until over three years later on June
    28, 2011, "any claims which the Plaintiffs could have brought
    under the 2008 Notice have since expired."
    At the same time, the judge's opinion states that "any tort
    claims accruing against [the Township] prior to June [28], 2009
    [are]   barred      by    N.J.S.A.    []59:8-8b         and    must   be   dismissed."
    Thus,   it    appears      the     judge    intended      that    plaintiffs       could
    proceed with any claims against the Township that arose during
    the two-year period preceding the filing of their complaint on
    June 28, 2011.           However, the judge did not address plaintiffs'
    contention        that   they    suffered       damage    to   their   property      and
    septic field from the continuous flooding caused by the project
    during this period. Instead, the judge focused solely upon the
    collapse     of    the    retaining   wall       in   2009.      Stating    that    this
    incident constituted "a new tort" and required the filing of "a
    6                                 A-5422-12T3
    new notice" of tort claim, the judge ruled that plaintiffs were
    barred from seeking damages for this incident under N.J.S.A.
    59:8-8a because they did not file such a notice within ninety
    days of the wall's collapse onto their property.
    Relying upon the Township Committee member's certification
    concerning the approval of the design plan for the project, the
    judge   also    found     that    the   Township        was    entitled       to   plan    or
    design immunity under N.J.S.A. 59:4-6.
    Plaintiffs'        litigation      continued            against     Finelli         and
    Snook's.       During the course of discovery, plaintiffs learned
    that a portion of the retaining wall and drainage system had
    actually been constructed on their property.                         Thus, plaintiffs
    filed a motion to file an amended complaint.                        In count five of
    the   amended      complaint,     plaintiffs           asserted    that   Finelli         and
    Snook's "entered onto [their] property without authorization" in
    order to construct the project.                  In count six, plaintiffs raised
    an inverse condemnation claim against the Township.
    In an April 23, 2012 order, the judge granted plaintiffs'
    motion to file an amended complaint against Finelli and Snook's,
    but   denied       the   motion   as    to       the   Township.         In    a   written
    statement of reasons, the judge stated that the February 8, 2012
    order   was    a    "final   judgment"       in    favor      of   the   Township;        the
    inverse condemnation claim raised by plaintiffs arose "out of
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    the same series of events addressed in" that order; and the
    Township   had    been   "provid[ed]   .     .   .    with   an   expectation     of
    finality."       Therefore,    the   judge       concluded     that   plaintiffs'
    motion to amend their complaint as to the Township was barred by
    the entire controversy doctrine.1           This appeal followed.
    On appeal, plaintiffs contend the judge erred in finding
    that (1) their claims against the Township for a continuing tort
    were barred by N.J.S.A. 59:8-8b; (2) they were required to file
    a new notice of tort claim in order to seek damages for the
    collapse of the retaining wall onto their property; (3) the
    Township was entitled to plan or design immunity under N.J.S.A.
    59:4-6; and (4) their inverse condemnation claim was barred by
    the   entire     controversy    doctrine.            We   agree   with   each    of
    plaintiffs' contentions.
    We review a grant of a motion to dismiss a complaint for
    failure to state a cause of action de novo, applying the same
    standard under Rule 4:6-2(e) that governed the motion court.
    See Frederick v. Smith, 
    416 N.J. Super. 594
    , 597 (App. Div.
    2010),   certif.    denied,    
    205 N.J. 317
        (2011).      A   trial   court
    should grant the dismissal "in only the rarest of instances."
    Printing 
    Mart-Morristown, supra
    , 116 N.J. at 772.                     Such review
    1
    Plaintiffs settled their claims against Finelli and Snook's and
    a final order of disposition dismissing the matter was filed on
    June 12, 2013.
    8                                  A-5422-12T3
    "is limited to examining the legal sufficiency of the facts
    alleged on the face of the complaint[,]" and, in determining
    whether dismissal under Rule 4:6-2(e) is warranted, the court
    should   not    concern   itself    with      plaintiffs'    ability    to    prove
    their allegations.        
    Id. at 746.
           If "the fundament of a cause of
    action may be gleaned even from an obscure statement of claim,"
    then the complaint should survive this preliminary stage.                     Craig
    v. Suburban Cablevision, Inc., 
    140 N.J. 623
    , 626 (1995).                       "The
    examination of a complaint's allegations of fact required by the
    aforestated principles should be one that is at once painstaking
    and   undertaken     with    a    generous      and   hospitable       approach."
    Printing 
    Mart-Morristown, supra
    , 116 N.J. at 746.
    Applying these principles to the present case, we conclude
    the judge erred in finding that plaintiffs' complaint was barred
    by the two-year statute of limitations set forth in N.J.S.A.
    59:8-8b.       Plaintiffs clearly alleged a continuing tort on the
    part of the Township.         Yet, the judge specifically declined to
    make any "determination on whether the actions complained of by
    the   Plaintiffs    constitute      a   continuing    tort."     As     discussed
    below, such a determination was absolutely critical to a proper
    resolution of this matter.
    The   "continuing      tort       doctrine,"    also     known     as    the
    "continuing      violation       doctrine,"      provides      that     when    an
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    individual is subjected to a "continual, cumulative pattern of
    tortious conduct," the statute of limitations period begins only
    when the wrongful action ceases.             Wilson v. Wal-Mart Stores, 
    158 N.J. 263
    , 272 (1999).           When a court finds that a continuing
    nuisance has been committed, the new tort is an "alleged present
    failure"   to    remove   the   nuisance,      and   "[s]ince   this   failure
    occurs each day that [defendant] does not act, the [defendant's]
    alleged tortious inaction constitutes a continuous nuisance for
    which a cause of action accrues anew each day."             Rapf v. Suffolk
    Cnty., 
    755 F.2d 282
    , 292 (2d Cir. 1985).               "Essentially, courts
    in those cases impose a duty on the defendant to remove the
    nuisance."      Russo Farms, Inc. v. Vineland Bd. of Educ., 
    144 N.J. 84
    , 100 (1996).
    In the present case, plaintiffs rely substantially on Russo
    Farms, where the Court applied the continuing nuisance doctrine
    to preclude a statute of limitations defense.               
    Id. at 104-05.
    In that case, a group of landowners sought to recover damages
    caused by flooding from the grounds of a nearby public school.
    
    Id. at 92-93.
          The Court held that the flooding of real property
    is a physical invasion which ordinarily sounds in trespass, and
    "is also a nuisance if it is repeated or of long duration."                  
    Id. at 99.
        When   a   court   finds    the   existence   of   a   continuing
    nuisance, "it implicitly holds that the defendant is committing
    10                             A-5422-12T3
    a new tort, including a new breach of duty, each day, triggering
    a new statute of limitations."             
    Ibid. As the Court
        explained      in     Russo    Farms,      whether    the
    continuing tort doctrine applies directly affects the two-year
    statute of limitations for filing an action against a public
    entity under N.J.S.A. 59:8-8b.                  
    Id. at 106-07.
          In that case,
    the plaintiffs filed a notice of tort claim against the public
    entity on August 24, 1987, but did not file their complaint
    until July 18, 1990.             
    Id. at 106.
          Because the continuing tort
    doctrine     applied,      the     Court   found     that    only    those    claims
    mentioned in the notice of claim that had accrued against the
    public entity prior to July 18, 1988, the first day of the two-
    year   period      that    ran    before   the     filing    of   the    plaintiffs'
    complaint, would be barred under N.J.S.A. 59:8-8b.                      
    Id. at 107.
    However, the claims that continuously accrued each day during
    that two-year period could proceed.                
    Ibid. In the present
    case, the judge made no determination as to
    the applicability of the continuing tort doctrine, even though
    that   theory     provided       the   underpinning    for    plaintiffs'     entire
    complaint.        Instead, he mistakenly found that because more than
    two years had passed since the filing of plaintiffs' notice of
    tort claim on January 28, 2008, all of the claims set forth in
    the    notice,     including      the    continuing    torts      plainly    alleged
    11                                A-5422-12T3
    therein, had "expired."                 Contrary to the judge's ruling, the
    date on which a notice of claim is filed does not mark the
    accrual date for a cause of action in a continuing tort case.
    Kolczycki v. City of E. Orange, 
    317 N.J. Super. 505
    , 519 (App.
    Div. 1999) (citing Russo 
    Farms, supra
    , 144 N.J. at 106-07).
    Indeed, in Russo Farms, the Court permitted the plaintiffs to
    proceed with their claims against the public entity for damages
    sustained during the two-year period preceding the filing of
    their complaint, even though their notice of tort claim had been
    filed almost three years before their complaint.                       Russo 
    Farms, supra
    , 144 N.J. at 106-07.                Because the judge did not address
    the applicability of the continuing tort doctrine in this case
    or    its    impact    on   the   accrual       date   of   plaintiffs'   cause   of
    action, we are constrained to reverse and remand for further
    proceedings.          We direct the judge to make detailed findings of
    fact and conclusions of law concerning the date of accrual of
    plaintiffs' claims and the applicability of the continuing tort
    doctrine in any future motion involving N.J.S.A. 59:8-8b.
    We also disagree with the judge's conclusion that, even if
    plaintiffs were able to assert claims against the Township for
    the two-year period prior to the filing of their complaint on
    June 28, 2011, the only tort that occurred during that period
    was    the    collapse      of    the    retaining     wall.     The    judge   also
    12                              A-5422-12T3
    mistakenly     ruled        that,    because       plaintiffs        failed       to    file     a
    second notice of claim for this "new tort" within ninety days of
    the   wall's      collapse,         plaintiffs'         claims      concerning         it    were
    barred by N.J.S.A. 59:8-8a.
    Plaintiffs        alleged      in   their     complaint        that   the        flooding
    caused by the project continued throughout the entire two-year
    period prior to the filing of their complaint, independent of
    the wall's collapse sometime in 2009.                          Thus, contrary to the
    judge's conclusion, plaintiffs' claims during this period were
    certainly not limited to the collapse of the retaining wall.
    Moreover,         a    new     notice        of     claim     was     not        required
    specifically for the wall collapse.                        As the Court observed in
    Beauchamp    v.    Amedio,         "the   'notice        of   claim'      referred          to   in
    N.J.S.A. 59:8-8 is really a misnomer.                      A person need not have or
    even contemplate filing a claim in order to trigger the notice
    provision.        It    is    more    properly          denominated    as     a    notice        of
    injury or loss."            Beauchamp v. Amedio, 
    164 N.J. 111
    , 121 (2000).
    Plaintiffs' January 28, 2008 notice of claim clearly advised the
    Township that they were alleging damages due to the flooding
    caused by "the construction of a retaining wall and drainage
    structures"       adjacent          to    their          property.          Under           these
    circumstances, the eventual collapse of the wall was merely a
    continuation       of       the   tort    plaintiffs          had   already       described,
    13                                       A-5422-12T3
    rather than "a new tort" that needed to be raised independently.
    Therefore, we conclude the judge erred by barring plaintiffs
    from seeking damages caused by the wall's collapse during the
    two-year period prior to the filing of their complaint.
    We      also   agree     with     plaintiffs'     argument     that      the   judge
    erred    in     finding    that       the   Township   was    entitled      to    plan   or
    design immunity under N.J.S.A. 59:4-6.                   In making this finding,
    the     judge     relied       upon     the    certification        of   the     Township
    Committee member concerning his approval of Finelli's plans for
    the project.         However, on a motion to dismiss under Rule 4:6-
    2(e), a judge is not permitted to look outside of the parties'
    pleadings.       If a judge relies on matters outside the pleadings,
    a Rule 4:6-2(e) motion is automatically converted into a Rule
    4:46 summary judgment motion.                 Pressler & Verniero, Current N.J.
    Court Rules, comment 4.1.2. on R. 4:6-2 (2014); see also Roa v.
    Roa, 
    200 N.J. 555
    , 562 (2010).                      The judge did not, however,
    grant the Township summary judgment.                    Rather, he dismissed the
    complaint for failure to state a claim upon which relief can be
    granted.         Thus,    we    reverse       the   judge's   conclusion         that    the
    Township was entitled to plan or design immunity at this point
    in the proceedings.2
    2
    Discovery had not been completed                     at    the    time      the   judge
    considered the Township's motion.
    14                                  A-5422-12T3
    Finally,       we    conclude      the    judge          mistakenly     exercised      his
    discretion       in        denying    plaintiffs'               motion    to    amend      their
    complaint to include an inverse condemnation claim against the
    Township.       The judge found that this new allegation was barred
    by the entire controversy doctrine.                        We disagree.
    The entire controversy doctrine
    requires a litigant to present all aspects
    of a controversy in one legal proceeding.
    It is intended to be applied to prevent a
    party from voluntarily electing to hold back
    a related component of the controversy in
    the first proceeding by precluding it from
    being raised in a subsequent proceeding
    thereafter.
    [Hobart Bros. Co. v. Nat'l Union Fire Ins.
    Co., 
    354 N.J. Super. 229
    , 240-41 (App. Div.)
    (citations and internal quotation marks
    omitted), certif. denied, 
    175 N.J. 170
                  (2002).]
    This doctrine does not support the denial of plaintiffs' motion
    to amend their complaint.              At the time the motion was filed, the
    matter    was     not       final    as    to        all    parties      and    all     issues.
    Plaintiffs'       claims        against         Finelli           and    Snook's      remained
    unresolved.       Thus, contrary to the judge's finding, no "final
    judgment" had been entered.                Therefore, in order to comply with
    the    entire    controversy         doctrine,         plaintiffs        were   required       to
    seek     to     amend       their    complaint             to     add    the    new     inverse
    condemnation claim against the Township after its existence was
    revealed during discovery in the still-ongoing litigation.                                     If
    15                                      A-5422-12T3
    plaintiffs had not done so, the doctrine would have barred them
    from   raising   it   in   a   subsequent   proceeding.   Therefore,   on
    remand the plaintiffs shall be given the opportunity to file
    their amended complaint against the Township.
    Reversed and remanded for further proceedings consistent
    with this opinion.     We do not retain jurisdiction.
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