NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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. 1:36-3.
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-5263-17T1
DANIEL MOTLEY,
Plaintiff-Appellant,
v.
RALPH L. FINELLI,
Defendant/Third-Party Plaintiff-Respondent,
STEVEN LISA, and L&B DEVELOPERS, LLC,
Third-Party Defendants. ___________________________
Argued July 8, 2019 – Decided July 16, 2019
Before Judges Yannotti and Haas.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-0834-16. Kristen Ragon argued the cause for appellant (Goldman Davis Krumholz & Dillon, PC, attorneys; Evan L. Goldman and Kristen Ragon, on the brief).
Lisa M. Leili argued the cause for respondent (Vella, Singer and Associates, PC, attorneys; Lisa M. Leili and David J. Singer, of counsel and on the briefs).
PER CURIAM
Plaintiff Daniel Motley appeals from an order entered by the Law Division
on June 8, 2018, which denied his motion for reconsideration of an order dated
April 16, 2018, which dismissed his claims against defendant Ralph L. Finelli
with prejudice. We affirm.
I.
Plaintiff and his brother are the owners of property in the Borough of
Seaside Park (the Borough). The property is located in the Borough's "R -3
zone," which restricts property to single-family uses. The property contained
two structures, which were constructed before the R-3 zone restrictions went
into effect and qualified as pre-existing, non-conforming uses. In 2008, plaintiff
made plans to renovate one of the buildings after a hot water system burst and
the structure sustained significant water damage.
Initially, plaintiff planned to add a second story to the building and filed
a use variance with the Borough's Zoning Board of Adjustment (Board), seeking
A-5263-17T1 2 to expand the nonconforming use and certain bulk variances. The Board denied
the application. Plaintiff revised his approach and hired defendant, a licensed
architect, to design the construction plans. Defendant completed the plans on
July 18, 2009.
In August 2009, plaintiff submitted an application for a zoning permit to
the Borough's zoning officer, James Mackie, seeking permission to begin
construction. On the portion of the application describing the work to be
performed, plaintiff wrote, "[r]epair [r]enovation of [e]xisting dwelling" and
"replace A/C." He attached defendant's plans to the application.
On August 28, 2009, Mackie approved the application and issued a permit
to begin construction. The permit stated there was to be "[n]o expansion of [the
structure's] dimensions[.]" The permit also stated, "[s]iding, shingles, additional
windows only – no bumpouts." Construction began thereafter.
On January 20, 2010, the Borough's code enforcement officer, Patrick
Linkovitch, telephoned plaintiff and informed him "that the construction that is
being performed is beyond the scope of [the] zoning permit." Linkovitch asked
plaintiff to meet with him at the Borough's zoning office the following day.
On January 21, 2010, plaintiff and his construction manager, Steven Lisa,
met with Linkovitch and Mackie. Plaintiff testified that Mackie told plaintiff
A-5263-17T1 3 "the building went to[o] far and [plaintiff] was going to be issued a stop order."
Mackie informed plaintiff that local ordinances prohibited renovations that
affect more than fifty percent of an existing structure.
That same day, the Borough issued an order that prohibited any further
construction on the property (the stop-work order). The stop-work order stated
that the construction on the property exceeded the scope of the construction
permit and that plaintiff needed to obtain an "update" to the permit before
continuing construction.
Defendant became aware of the stop-work order, and on January 22, 2010,
he wrote a letter to the Borough's construction office challenging the order and
detailing the scope of his design plans. Defendant stated that he "anticipate[s]
the removal of the [s]top [o]rder to be imminent."
On January 31, 2010, defendant wrote a letter to the Borough's zoning
office, detailing the construction to date and stating that he "believe[d] all of the
work has been carried out with the best interests of the owner and the [B]orough
in mind, and with respect to all applicable codes and ordinances in effect at the
date of issue." On February 4, 2010, the Borough posted a zoning violation
notice on plaintiff's property.
A-5263-17T1 4 Plaintiff challenged the stop-work order in a petition to the Borough's
Board of Adjustment (the Board), which thereafter conducted hearings on the
petition. At the hearings, defendant stated that the project involved the total
renovation of the building's interior and exterior, and the permit application
provided for replacement of the roof, frame, and finish, installation of a new
floor and staircase, as well as construction of a new upstairs bathroom.
Defendant asserted that the renovation plan would not change the existing
dimensions of the structure.
Lisa testified that the roof was removed first and as the work progressed,
it became clear that the building had more damage than initially known. He
stated that while he had hoped to retain as much of the existing walls as possible,
the condition of the building did not permit that approach. He also said that
many floor beams were rotted, and the main center beam was sagging six to
eight inches. According to Lisa, the building inspector decided that the entire
structure had to be removed.
Mackie testified that when he reviewed plaintiff's permit application and
defendant's construction plans, he believed the plans called only for the
construction of new windows, new shingles, and a new roof. Mackie stated that
as construction progressed, he realized the construction that plaintiff was
A-5263-17T1 5 undertaking did not comply with the limitations imposed by the permit or with
the Borough's zoning laws. Mackie testified that the demolition went beyond
what he had anticipated. He stated that "everything was gone and it was all new
construction."
Plaintiff testified that the plans that defendant prepared had alerted the
Borough to the possibility that he might need to remove the walls. He stated
that he had discussed with Mackie the replacement of the floor joists, insulation,
and exterior-wall framing. In addition to seeking withdrawal of the stop-work
order, plaintiff asked the Board to issue a use variance to allow him to continue
the construction.
The Board upheld the stop-work order. The Board noted that under the
relevant provision of the Borough's zoning ordinance, a pre-existing
nonconforming use may be repaired or maintained, if such repairs or
maintenance do not result in the total destruction of the property. The Board
found that Mackie had approved repairs and renovations to the existing building,
with certain limitations.
The Board stated that although the plans indicated a wooden floor and
existing roof frame would be removed and replaced, the plans did not provide
for replacement or removal of the building's walls. The Board found that the
A-5263-17T1 6 demolition and construction undertaken exceeded the zoning approvals which
had been granted, and that the creation of additional living space in the structure
constituted an impermissible expansion of the preexisting, nonconforming use.
Plaintiff appealed the Board's decision by filing an action in lieu of
prerogative writs in the Law Division. The trial court found that the evidence
presented to the Board did not demonstrate an "impermissible expansion of the
nonconforming use," and that plaintiff's renovations did not alter the dimensions
of the structure. The court set aside the stop-work order in part, and allowed
plaintiff to resume certain development of the property. The Board appealed
from the trial court's judgment.
In a published opinion, this court reversed the part of the trial court's
judgment that vacated the stop-work order. Motley v. Borough of Seaside Park
Zoning Bd. of Adjustment, 430 N.J. Super. 132, 156 (App. Div. 2013). The
court stated that the construction involved more than the partial destruction of
the building, and determined that "[a]bsent a variance, plaintiff had no right to
restore the nonconforming structure." Id. at 149.
The court also determined that plaintiff had acted improperly by
exceeding the limitations of the zoning permit. Id. at 151. The court stated,
"Mackie's notations on the permit clearly show that the authorized work was
A-5263-17T1 7 limited in nature." Ibid. The court determined that plaintiff had no legal right
to exceed what the zoning officer's permit allowed. Ibid.
Plaintiff thereafter sought review of the court's judgment by filing a
petition for certification with the Supreme Court. On September 10, 2013, the
Court denied the petition. Motley v. Borough of Seaside Park Zoning Bd. of
Adjustment, 215 N.J. 485 (2013). On February 25, 2014, the Board ordered
plaintiff to demolish the structure.
On February 4, 2016, plaintiff commenced this action, alleging that he
suffered damages as a result of defendant's "negligence and carelessness." He
claimed that "[a]s a licensed professional," defendant "knew or should have
known that removal of the walls of the front house would violate [the]
Borough['s] zoning ordinances," and that defendant "had an obligation to ensure
that his proposed [architectural] [p]lans complied with local zoning ordinances."
Plaintiff further alleged defendant "breached the requisite standard of care
relating to architectural practice," which caused him "severe damages,"
including
the loss of use and enjoyment of the [p]roperty, costs associated with the delay in being able to use, sell, or otherwise dispose of the [p]roperty, diminution in value of the [p]roperty as a result of the loss of the front house and the costs of construction work to the front house which ultimately required removal.
A-5263-17T1 8 In July 2016, defendant filed an answer, cross-claims, and various
affirmative defenses. In March 2017, defendant filed an amended answer, cross-
claims and a third-party complaint against Lisa and his construction company,
L&B Developers, LLC (L&B). Plaintiff thereafter filed an amended complaint
asserting claims against Lisa and L&B. In February 2018, the trial court
dismissed all claims against Lisa with prejudice.
On February 8, 2018, defendant filed a motion to dismiss plaintiff's
complaint, arguing that plaintiff did not file the claims against him within the
time prescribed by N.J.S.A. 2A:14-1. On March 16, 2018, the judge heard oral
argument on the motion and thereafter, filed an order, dated April 16, 2018,
which granted defendant's motion and dismissed the complaint with prejudice.
The judge found that plaintiff's cause of action accrued on January 21,
2010, when the Borough issued the stop-work order. The judge also found that
plaintiff's appeals challenging the order did not toll the running of the statute of
limitations. The judge decided that plaintiff's claims against defendant were
barred because plaintiff did not file his complaint within six years after the cause
of action accrued, as required by N.J.S.A. 2A:14-1.
On May 4, 2018, plaintiff filed a motion for reconsideration of the court's
order. In an order dated June 8, 2018, the judge denied plaintiff's motion for
A-5263-17T1 9 reconsideration. The judge found that plaintiff had not shown that in dismissing
the action, he had acted in a palpably incorrect or irrational manner. This appeal
followed.
II.
On appeal, plaintiff first argues that the "discovery rule" applies here and
tolled the running of the statute of limitations on his claim. He argues that when
the Borough issued the first stop-work order on January 21, 2010, he did not,
and could not, appreciate that he had sustained an ascertainable injury that
defendant caused. He further argues that defendant contributed to his failure to
perceive he had a potential cause of action against defendant.
We note initially that plaintiff has only appealed from the trial court's
order of June 8, 2018, which denied his motion for reconsideration.
"[R]econsideration is a matter within the sound discretion of the [c]ourt, to be
exercised in the interest of justice." Cummings v. Bahr, 295 N.J. Super. 374,
384 (App. Div. 1996) (quoting D'Atria v. D'Atria, 242 N.J. Super. 392, 401 (Ch.
Div. 1990)). A court should only grant a motion for reconsideration when
"either (1) the [c]ourt has expressed its decision based upon a palpably incorrect
or irrational basis, or (2) it is obvious that the [c]ourt either did not consider, or
failed to appreciate the significance of probative, competent evidence." Fusco
A-5263-17T1 10 v. Bd. of Educ. of Newark, 349 N.J. Super. 455, 462 (App. Div. 2002) (first
quoting D'Atria, 242 N.J. Super. at 401; and then citing R. 4:49-2).
Here, the trial court did not mistakenly exercise its discretion by denying
plaintiff's motion for reconsideration of the April 16, 2018 order, which
dismissed plaintiff's claims against defendant with prejudice. As the court
correctly noted, N.J.S.A. 2A:14-1 governs the time in which plaintiff's claims
against defendant for professional malpractice must be filed. The statute
provides that the action must be filed within six years after the cause of action
accrued. Ibid.
A cause of action for professional negligence "accrues" when a
defendant's "breach of professional duty proximately causes a plaintiff's
damages." Grunwald v. Bronkesh, 131 N.J. 483, 492 (1993) (citing Gautam v.
DeLuca, 215 N.J. Super. 388, 397 (App. Div. 1987)). "Accrual of an action is
the trigger that commences the statute-of-limitations clock." The Palisades at
Fort Lee Condominium Assoc. v. 100 Old Palisade, LLC, 230 N.J. 427, 442
(2017).
However, "[u]nder special circumstances and in the interest of justice,"
the discovery rule may apply and "postpone the accrual of a cause of action
when a plaintiff does not and cannot know the facts that constitute an actionable
A-5263-17T1 11 claim." Grunwald, 131 N.J. at 492. Under the discovery rule, "the limitations
clock does not commence until a plaintiff is able to discover, through the
exercise of reasonable diligence, the facts that form the basis for an actionable
claim against an identifiable defendant." Palisades, 230 N.J. at 435 (citing
Caravaggio v. D'Agostini, 166 N.J. 237, 246 (2001)).
In his complaint, plaintiff alleges that he retained defendant to prepare the
plans for remodeling of one of the houses on his property, which is a
nonconforming use in the Borough's R-3 residential zone that previously
suffered extensive damage. Plaintiff claims defendant prepared plans, which
anticipated "a complete renovation of the" house.
Plaintiff asserts that after the construction began, it was determined that
the walls were in "very poor condition and required replacement." Plaintiff
notes that the walls were removed and replaced. He also notes that the
Borough's code enforcement officer issued a stop-work order after the officer
discovered the extent to which plaintiff and his contractors had demolished the
front house.
Plaintiff claims that after this court reinstated the stop order, he was left
with a partially-renovated house, which he could not complete. He was ordered
to tear down what remained of the structure and fill the ground with soil. He
A-5263-17T1 12 claims defendant knew or should have known that removal of the walls from the
house would violate the Borough's zoning ordinance. He alleges that as a
licensed professional, defendant had a duty to ensure that the plans complied
with the zoning ordinance.
As noted previously, the trial court in this case determined that plaintiff's
cause of action against defendant accrued on January 21, 2010, when the
Borough issued the first stop-work order. The court decided that, as of that date,
plaintiff became aware of facts that would alert a reasonably diligent person of
the possibility he had an actionable claim against defendant. The record
supports the trial court's determination.
On January 20, 2010, Linkovitch, the Borough's code enforcement officer,
informed plaintiff that there was a problem with the construction on the
property. On January 21, 2010, plaintiff and his construction supervisor met
with Linkovitch and Mackie at the Borough's zoning office. At that meeting,
Mackie told plaintiff that the construction at the front house had exceeded the
scope of the zoning permit issued for the project and that the Borough's zoning
ordinance prohibited renovations that affect more than fifty percent of an
existing structure. That day, the Borough issued the stop-work order, which
prohibited further construction.
A-5263-17T1 13 Thus, plaintiff knew, as of January 21, 2010, that the Borough officials
had determined that construction on his property had exceeded the scope of work
allowed by the previously-issued permit. On that date, plaintiff was aware of
facts, which would place a person of reasonable diligence on notice that he had
a potential claim against defendant for professional negligence in the
preparation of the design plans. Plaintiff had sufficient facts to claim that
defendant had prepared plans that did not comply with the Borough's zoning
ordinance.
Nonetheless, plaintiff argues that on January 21, 2010, he could not
appreciate that he had sustained an ascertainable injury due to defendant's
alleged professional malpractice. He claims that when the Borough stopped the
work on January 21, 2010, the Borough provided an explanation that was
"extremely vague." According to plaintiff, the Borough's officials merely stated
that the work exceeded the scope permitted by the permit, but the stop-work
order did not specify "how or why" this was so.
Plaintiff further argues that in addition to the lack of specificity in the
stop-work order, circumstantial evidence shows that a reasonable person in this
situation would not have appreciated he may have a cause of action against
defendant for professional malpractice. Plaintiff asserts that defendant disputed
A-5263-17T1 14 the basis for the issuance of the stop-work order, and provided the Borough with
additional information regarding the suitability of the foundation and the revised
floor construction for the structure.
Plaintiff asserts that defendant later insisted that the decisions regarding
the existing building components and his directions regarding the construction
were consistent with the Borough's Code and the zoning permit. Plaintiff alleges
that defendant encouraged him to challenge the stop-work order. He argues it
was reasonable for him to believe that the Borough mistakenly issued the stop-
work order and the matter could be "easily rectified." He further argues that the
notice of tort claim he filed with the Borough shows that the Borough issued the
stop-work order on January 21, 2018 under "vague circumstances."
We are convinced, however, that the circumstances under which the
Borough issued the stop-work order, were not "vague." As of January 21, 2010,
plaintiff had sufficient information to believe he had suffered damages, and that
the damages were attributable to the design plans that defendant had prepared.
The Borough's communications on January 20 and 21, 2010, were more than
sufficient to make plaintiff aware of "the facts that form the basis for an
actionable claim against an identifiable defendant." Palisades, 230 N.J. at 435
(citing Caravaggio v. D'Agostini, 166 N.J. 237, 246 (2001)).
A-5263-17T1 15 Therefore, the trial court correctly determined that plaintiff's cause of
action against defendant accrued on January 21, 2010, and plaintiff failed to file
his complaint within the time required by the statute of limitations.
III.
Plaintiff further argues that his administrative and Chancery Division
challenges to the stop-work order tolled the running of the statute of limitations.
He argues that he did not receive an adverse decision until this court reinstated
the order on March 4, 2013. Plaintiff argues that the trial court in this matter
erred by relying upon Grunwald. We disagree.
In Grunwald, the plaintiff hired an attorney and his law firm to negotiate
an option agreement for the sale of certain property in Atlantic City. Grunwald,
131 N.J. at 488. The plaintiff's attorney prepared the agreement and provided a
sales contract to a prospective purchaser. Ibid. The prospective purchaser
signed the option agreement and the contract. Ibid.
The attorney advised the plaintiff that the prospective purchaser had
executed an enforceable contract to buy the property. Ibid. When the
prospective purchaser backed out of the agreement, the plaintiff brought an
action for specific performance or, in the alternative, damages. Ibid.
A-5263-17T1 16 The Chancery Division found the agreement was unenforceable because
the prospective purchaser had not intended to purchase the property. Ibid. This
court affirmed. Ibid. The plaintiff then filed an action against his attorney for
legal malpractice, but it was filed more than six years after the Chancery
Division's decision. Ibid. The trial court dismissed the malpractice action as
time-barred, finding that under the discovery rule, plaintiff "knew or should
have known that he had suffered damages attributable to" his attorney's
representation as soon as he became aware of the Chancery Division's decision ,
which found the contract unenforceable. Id. at 489.
This court reversed the order dismissing the complaint, finding that the
statute of limitations did not begin to run until the completion of plaintiff's
appeals in the underlying Chancery Division action and plaintiff received a
definitive answer as to whether he suffered any damages. Ibid. The court found
that "until the appellate process had run its course, plaintiff's damages were
merely speculative, because a favorable resolution of the underlying appeal
would have extinguished the damages claimed in the legal-malpractice action."
Ibid.
The Supreme Court reversed. Id. at 500. The Court stated that the legal
uncertainty regarding whether damages actually occurred "does not alter the
A-5263-17T1 17 time when the underlying injury or harm occurs and becomes cognizable for
purposes of triggering the accrual of a cause of action." Id. at 496. The Court
reasoned that a contrary holding would "undermine[] the principal consideration
behind statutes of limitations: fairness to the defendant." Id. at 496-97. The
Court held that the date on which the plaintiff became aware or should have
become aware of defendant's "fault" could "occur before or during a judicial
resolution of the underlying action." Id. at 497.
The Court also rejected plaintiff's argument that requiring the plaintiff to
file a lawsuit against his attorney at a point when it was still uncertain whether
he suffered any damages "may result in a malpractice plaintiff advocating
inconsistent positions." Id. at 499. The Court stated that this "apparent
dilemma" could be managed by "[s]taying the malpractice action pending
completion of the appellate process on the underlying claim[.]" Ibid.
Here, plaintiff argues that the facts are distinguishable from the facts
underlying the Court's decision in Grunwald. He contends that Grunwald must
be read narrowly and that it stands for the proposition that a statute of limitations
will accrue through the appellate process only when the plaintiff is appealing an
"adverse judgment."
A-5263-17T1 18 Plaintiff argues that, unlike the situation in Grunwald, he did not initially
appeal an "adverse judgment." He points out that he did not receive an "adverse
judgment" on his underlying action against the Board until the court reversed
the Law Division's order and reinstated the stop-work order halting construction
on his property. He points out that the Appellate Division rendered its decision
on March 4, 2013, and claims he filed his complaint against defendant well
within the time required by the statute of limitations.
We are not persuaded by these arguments. As we have explained, in
Grunwald, the Court held that the accrual of a cause of action is not tolled by
litigation of the underlying dispute. The Court made clear that determining
when a cause of action accrues does not depend on whether the plaintiff receives
a final judgment on the underlying cause of action. Id. at 496. In our view, the
Court's holding applies even if the plaintiff receives a favorable judgment in a
related trial court action, which is later reversed on appeal.
Therefore, under Grunwald, the relevant inquiry is "when the client
suffers damage and discovers, or through reasonable diligence should discover,
that that damage is attributable to [the defendant]." Id. at 499. For the reasons
set forth previously, plaintiff had that information on January 21, 2010, when
the Borough issued the first stop-work order. Because plaintiff did not file his
A-5263-17T1 19 complaint within six years after that date, his claims against defendant are barred
by the statute of limitations.
Affirmed.
A-5263-17T1 20