Garvey v. Township of Wall

• Court: New Jersey Superior Court — Appellate Division
• Writing for the Court: SKILLMAN
• Citation: Garvey v. Township of Wall, 696 A.2d 71, 303 N.J.Super. 93 (N.J. Super. App. Div. 1997)
• Decision Date: 07 July 1997
• Parties: Gerald GARVEY, Plaintiff-Appellant, v. TOWNSHIP OF WALL, Defendant-Respondent.

Page 93

303 N.J.Super. 93

696 A.2d 71

Gerald GARVEY, Plaintiff-Appellant, v. TOWNSHIP OF WALL, Defendant-Respondent.

Superior Court of New Jersey Appellate Division.

Argued March 19, 1997.

Decided July 7, 1997.

Thomas A. McKinney, Hawthorne, for appellant (Waldman, Renda & McKinney, attorneys; Mr. McKinney, on the brief).

Roger J. McLaughlin, Neptune, for respondent (McLaughlin, Bennett, Gelson & Cramer, attorneys; Mr. McLaughlin, of counsel; Erinn McCrohan, on the brief).

Before Judges SKILLMAN, A.A. RODRIGUEZ and CUFF.

The opinion of the court was delivered by

SKILLMAN, J.A.D.

Plaintiff, a resident of Wall Township and a municipal water user, filed this action in lieu of prerogative writs claiming that the Township's practice of providing water free of charge to municipal buildings violates N.J.S.A. 40A:31-10. The trial court granted the Township's motion to dismiss the complaint on the basis of res judicata and the entire controversy doctrine. We reverse.

The prior action which the trial court held to bar this action challenged the retroactive application of Township Ordinance No. 51-1990, which increased the charges that the Township imposes upon water users who consume more than a specified amount of water. That action was certified as a class action, with the class consisting of all the Township's water users including plaintiff. During discovery, the Township provided the class representatives with documents which alluded to the Township's practice of providing water free of charge to municipal buildings. However, the class representatives did not amend their complaint to assert any claim based on this practice. Consequently, the pretrial order indicated that the case involved solely the retroactive application of Ordinance No. 51-1990. After a hearing relating to liability only, the trial court issued a written decision which concluded that the retroactive application of the increased rates provided by Ordinance No. 51 was unconstitutional. The court subsequently heard two days of testimony regarding damages, which involved the amount of the refund to be awarded water users in light of the declaration of invalidity of the retroactive application of Ordinance No. 51. During this hearing, the Township's Superintendent of Public Works testified that the Township does not pay for the water provided to its buildings. After the trial court ruled that any refund it might order could be charged as an expense in the calculation of the rates charged water users, the parties entered into a settlement pursuant to which the class representatives agreed to waive any claim for a refund and to limit their claim to counsel fees. The class' counsel subsequently filed a fee application, which argued that the Township rather than municipal water users should be required to pay any counsel fee award because the Township had been receiving water free of charge. The court approved the settlement and awarded counsel fees, which the Township was required to pay but "allowed to absorb" in the Department of Water's rate base.

Shortly after the conclusion of the class action, plaintiff brought this action, claiming that the Township's policy of providing water free of charge to municipal buildings violates N.J.S.A. 40A:31-10, which requires a municipal water facility to establish rates which are "uniform and equitable for the same type and class of use or service." The complaint seeks injunctive relief, compelling the Township to commence paying for water from general revenues in accordance with the rates applicable to other municipal water users. The complaint also seeks monetary relief, requiring the municipality to pay for the water used in its buildings from January 1, 1990 through the date of final judgment.

The trial court granted defendant's motion to dismiss the complaint, concluding that plaintiff is precluded from maintaining this action "on the basis of res judicata and the entire controversy doctrine" because the class representatives in the class action became aware that the Township was furnishing water to municipal buildings free of charge during the litigation but failed to amend their complaint to challenge this practice.

We conclude that the trial court misapplied the res judicata and entire controversy doctrines and that plaintiff's complaint should be decided on its merits.

"The doctrine of res judicata 'contemplates that when a controversy between parties is once fairly litigated and determined it is no longer open to relitigation.' " Culver v. Insurance Co. of N. Am., 115 N.J. 451, 460, 559 A.2d 400 (1989) (quoting Lubliner v. Board of Alcoholic Beverage Control, 33 N.J. 428, 435, 165 A.2d 163 (1960)). "The application of res judicata doctrine requires substantially similar or identical causes of action and issues, parties, and relief sought." Ibid. "To decide if two causes of action are the same, the court must consider: '(1) whether the acts complained of and the demand for relief are the same (that is, whether the wrong for which redress is sought is the same in both actions); (2) whether the theory of recovery is the same; (3) whether the witnesses and documents necessary at trial are the same (that is, whether the same evidence necessary to maintain the second action would have been sufficient to support the first); and (4) whether the material facts alleged are the same.' " Id. at 461-62, 165 A.2d 163 (quoting United States v. Athlone Indus., Inc., 746 F.2d 977, 984 (3d Cir.1984)); see also Restatement (Second) of Judgment § 24(2) (1981).

Applying these criteria, it is clear that this action is not barred by res judicata even though the court rendered a final judgment in the class action, plaintiff was a member of the class on whose behalf the prior action was maintained, and the Township was the defendant in both actions. First, while the relief sought in the class action was to prevent the retroactive application of an ordinance requiring municipal water users to pay higher rates, plaintiff's action seeks to prevent the Township from furnishing water to its own buildings free of charge. Second, while the theories of recovery in the class action were that retroactive application of the ordinance increasing water rates was ultra vires and unconstitutional, plaintiff's action rests on the theory that N.J.S.A. 40A:31-10 does not permit a municipal water facility to furnish water to municipal buildings free of charge. Third, while the class action was based on evidence that the Township imposed charges for water use under Ordinance No. 51 for a time period prior to the ordinance's adoption, this action is based on evidence that the Township furnishes water to municipal buildings free of charge. Finally, while the material fact alleged in the class action was that the ordinance increasing the charges imposed for water use had been applied retroactively, the material fact alleged in this case is that the Township furnishes water to municipal buildings free of charge. Therefore, the class action and this action present separate causes of action grounded on different factual allegations and the judgment entered in the class action does not bar this action on the basis of res judicata.

We turn next to the Township's primary argument, which is that the entire controversy doctrine precludes plaintiff from maintaining this action. The entire controversy doctrine only requires the joinder of claims which "arise from related facts or the same transaction or series of transactions." DiTrolio v. Antiles, 142 N.J. 253, 267, 662 A.2d 494 (1995). Thus, the determination whether claims must be joined in a single action depends on whether the claims "arise[ ] from a core set of related factual circumstances." Id. at 272, 662 A.2d 494. In the absence of such a factual nexus, a party is not required to join all of his claims in a single action. See Joel v. Morrocco, 147 N.J. 546, 548-50, 688 A.2d 1036 (1997); Illiano v. Seaview Orthopedics, 299 N.J.Super. 99, 106-07, 690 A.2d 662 (App.Div.1997); Wm. Blanchard Co. v. Beach Concrete Co., 150 N.J.Super. 277, 293, 375 A.2d 675 (App.Div.), certif. denied, 75 N.J. 528, 384 A.2d 507 [696 A.2d 75] (1977); Hnath v. Hnath, 47 N.J.Super. 461, 470, 136 A.2d 286 (App.Div.1957).

Although the prior class action and the present action both relate to the charges which the Township imposes (or fails to impose) for municipal water, the two actions do not arise out of the same or closely related factual circumstances. As previously discussed, the class action was based solely on the retroactive application of Ordinance No. 51-1990, which increased the charges imposed upon municipal water users. The only fact which the plaintiffs had to prove in that action was that the Township had applied the ordinance retroactively, and the only relief which plaintiffs sought was a refund for their 1990 water use of the difference between the charges imposed under the prior rate ordinance and the charges imposed under Ordinance No. 51. On the other hand, the only fact plaintiff relies upon to establish this cause of action is that the Township provides water to municipal buildings without charge, and he seeks both an injunction prohibiting the municipality from continuing this practice and a monetary award representing the amount of money the municipality should have paid for water from 1990 to the date of judgment. ¹ In addition, unlike the class action, the present action is not based on Ordinance No. 51 or any other municipal legislative enactment but rather upon a long-standing municipal practice of providing free water to its own buildings. Moreover, the present action does not involve any claim regarding the rates charged municipal water users, but instead asserts that the Township illegally provides water to its...