NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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,
2 A-5422-12T3 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).]
3 A-5422-12T3 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
7 A-5422-12T3 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
9 A-5422-12T3 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.
16 A-5422-12T3