Wreden v. Twp. of Lafayette

• Decision Date: 17 June 2014
• Citation: 436 N.J.Super. 117,92 A.3d 681
• Parties: Herbert WREDEN and Karen Wreden, Plaintiffs–Appellants, v. TOWNSHIP OF LAFAYETTE, Defendant–Respondent, and Snook's Excavating, Inc., and Finelli Consulting Engineers, Inc., Defendants.
• Court: New Jersey Superior Court

436 N.J.Super. 117

92 A.3d 681

Herbert WREDEN and Karen Wreden, Plaintiffs–Appellants,

v. TOWNSHIP OF LAFAYETTE, Defendant–Respondent,andSnook's Excavating, Inc., and Finelli Consulting Engineers, Inc., Defendants.

Superior Court of New Jersey, Appellate Division.

Argued June 4, 2014.

Decided June 17, 2014.

Lisa Nichole Roskos argued the cause for appellants (Andrew M. Wubbenhorst, LLC, Kinnelon, attorneys; Ms. Roskos, on the briefs).

Roy E. Kurnos, Morristown, argued the cause for respondent (Belsole and Kurnos, LLC, attorneys; Mr. Kurnos, on the brief).

Before Judges FUENTES, FASCIALE and HAAS.

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, 563 A.2d 31 (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, 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 describedin Subparagraphs C and D above.

[ (Emphasis added).]

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 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 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 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 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, 7 A.3d 780 (App.Div....