Opinion
DOCKET NO. A-4466-11T4
07-11-2013
431 ROUTE 206, LLC, Plaintiff-Appellant, v. TOWNSHIP OF MONTAGUE, Defendant-Respondent.
Erik A. Hassing argued the cause for appellant (Hassing & DeFilippis, LLP, attorneys; Mr. Hassing, on the briefs). John J. Abromitis argued the cause for respondent (Courter, Kobert & Cohen, PC, attorneys; Mr. Abromitis, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Simonelli and Accurso.
On appeal from the Superior Court of New Jersey, Law Division, Sussex County, Docket No. L-0267-10.
Erik A. Hassing argued the cause for appellant (Hassing & DeFilippis, LLP, attorneys; Mr. Hassing, on the briefs).
John J. Abromitis argued the cause for respondent (Courter, Kobert & Cohen, PC, attorneys; Mr. Abromitis, on the brief). PER CURIAM
This matter involves a twenty-four-inch reinforced concrete drainage pipe (the 24-inch pipe) that an employee of defendant Township of Montague (Township) installed in the early 1970's on private property located at 431 Route 206 at the intersection of Hill Road (the property). The property's owner, plaintiff 431 Route 206, LLC, alleged that the pipe's defective design and/or negligent construction caused the pipe to fail, allowing water to escape, which destroyed the septic system and damaged buildings on the property. Plaintiff appeals from the March 26, 2012 order, which granted the Township's motion for reconsideration of the trial judge's initial partial denial of the Township's motion for summary judgment. On reconsideration, the judge concluded the ten-year statute of repose, N.J.S.A. 2A:14-1.1a, barred plaintiff's claims. We agree and affirm.
The record contains the following facts germane to our analysis of the legal issues.
Prior to the early 1970's, the property had no drainage system. Water flowed onto the property from both Hill Road and a pipe running from a pond located on the other side of the road (the pond pipe) and formed an open swale or stream on the property. The water traversed through the property as a stream and then drained off the property under Route 206 to a swamp northwest of Route 206.
Sometime in the 1970's, a Township employee, Arthur Hagg (Hagg), installed the 24-inch pipe on a portion of the property. The pipe consisted of six to eight-foot sections running approximately four hundred feet and connected by male and female joints. The pipe entered the property from under Hill Road, ran underground through the property, and exited the property under Route 206. Water from the open swale/stream channeled into the pipe. The pipe then carried the water off the property underground and under Route 206. Plaintiff's expert engineer, Allen Campbell, testified at deposition that
In 1979, the Township made improvements to Route 206, including drainage improvements. The Township installed a pipe down the length of Hill Road. That pipe and the pond pipe were connected to the 24-inch pipe to de-water the property. This eliminated the open swale/stream on the property.
the 24-inch pipe on the subject property is an enhancement to the property, in that it dewaters it, and it conveys the water through it. Then any water not gotten into that pipe and not on the surface of the land would be conveyed through the pipe more readily, being a benefit to the land. (Emphasis added.)
In 2006, plaintiff purchased the property via a bankruptcy proceeding, intending to renovate and repair the restaurant, office building and motel located on it. One of plaintiff's principles, Allen P. Johns, III (Johns), an excavator and septic system installer/repairman, looked at the septic system's pump tank and saw it was not working. Plaintiff had no licensed professional inspect the septic system prior to the purchase.
The restaurant and office building front Route 206 and the motel is located at the rear of the property. The buildings may have existed since the 1950s or at least since 1963. At the time of the closing, the restaurant had not been in operation for at least a year.
Sometime in 2008, plaintiff retained Campbell to evaluate the septic system. During a July 2008 site evaluation, Campbell found two septic tanks near the motel and a septic tank and pump tank behind the restaurant. The septic tanks by the motel were useable, but the tanks behind the restaurant were not useable due to high water conditions in the surrounding area. He determined the septic system was installed sometime prior to 1963, and recommended that plaintiff replace it.
In October 2009, the 24-inch pipe was uncovered during excavation of the septic system. Campbell determined that the pipe was not functioning properly and caused the high water condition that damaged the tanks behind the restaurant. He opined that the pipe was defectively designed and/or negligently constructed in that: (1) it had open joints, which allowed water to escape; (2) was not backfilled with stone, which allowed for soil to enter and clog the pipe; and (3) was reverse pitched in the middle portion of its length, which limited the velocity of flow through the pipe thereby preventing debris to be passed through to the basin along Route 206.
At deposition, Campbell retracted his criticism of the open joints, testifying that in the 1970's, open joints were the preferred method to de-water property and they would not be sealed in a de-watering situation. He also admitted the septic system was at least forty-five years old; a septic system has a useful life of approximately thirty-five years; he did not know when the septic system began to fail; and the 24-inch pipe may have benefitted both the property owner and the Township.
Plaintiff replaced the 24-inch pipe and installed a new septic system. Plaintiff filed a complaint against the Township, seeking damages for casting damaging waters; easement owner damaging servient estate; conversion; property tortiously damaged; municipal government destruction of private property; unlawful taking; inverse condemnation; and lost profits.
Plaintiff later conceded the conversion claim lacked merit. Plaintiff does not challenge the dismissal of that claim.
The Township filed a summary judgment motion, arguing, in part, that the statute of repose barred plaintiff's claims. The judge strictly interpreted the statute to apply only to contractors, architects, surveyors and their surety. Because there was no evidence that Hagg was a contractor or architect, the judge concluded the statute did not apply. The judge denied the motion as to plaintiff's casting damaging water, implied easement, unlawful taking and inverse condemnation claims.
The Township also raised other arguments in its summary judgment and reconsideration motions not pertinent to this appeal. This appeal only concerns the March 26, 2012 order, which granted the Township's motion for reconsideration based solely on the statute of repose. The Township did not cross-appeal. Thus, we decline to address the arguments in the Township's merits brief that relate to issues other than the statute of repose. See Walrond v. County of Somerset, 382 N.J. Super. 227, 231 n.2 (App. Div. 2006) (noting that if a respondent's argument goes beyond the scope of the lower court's decision, it will not be entertained on appeal unless asserted within a separate cross-appeal).
The judge granted the motion as to plaintiff's conversion, municipal government destruction of property and lost profits claims, and dismissed those claims with prejudice. Plaintiff does not appeal from that determination.
The Township filed a motion for reconsideration, arguing that the judge erroneously interpreted and applied the statute of repose. The judge agreed. He determined that he had construed the statute too strictly and should have applied it broadly, as required by Rosenberg v. Town of N. Bergen, 61 N.J. 190 (1972). This appeal followed.
On appeal, plaintiff contends that the Township failed to meet the standards for reconsideration. Plaintiff also contends the statute of repose does not apply to its remaining claims because: (1) plaintiff did not assert that the defective pipe created a dangerous or unsafe condition on the property; (2) Hagg did not fall within the category of protected individuals, and (3) Hagg's work was so deficient he should not be afforded the statute's protection.
We decline to address plaintiff's additional arguments that: (1) the statute does not apply because the Township owned the pipe; and (2) the statute only applies to negligent design or construction and not to negligent maintenance. The record does not reflect that plaintiff raised these arguments before the trial judge and they do not concern the court's jurisdiction or involve a matter of public interest. Alloway v. Gen. Marine Indus., L.P., 149 N.J. 620, 643 (1997).
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With respect to a motion for reconsideration, we have determined,
Reconsideration itself is a matter within the sound discretion of the [c]ourt, to be exercised in the interest of justice[.] It is not appropriate merely because a litigant is dissatisfied with a decision of the court or wishes to reargue a motion, but should be utilized only for those cases which fall into that narrow corridor in which 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.We will not disturb a trial judge's denial of a motion for reconsideration absent an abuse of discretion. Id. at 289. Applying this standard, we discern no reason to disturb the judge's grant of reconsideration, as we conclude he expressed his initial decision on a palpably incorrect basis.
[Palombi v. Palombi, 414 N.J. Super. 274, 288 (App. Div. 2010) (citations omitted) (internal quotation marks omitted).]
The statute of repose provides, in relevant part, that:
No action, whether in contract, in tort, or otherwise, to recover damages for any"Unlike a statute of limitations, the Statute of Repose 'does not bar a cause of action; its effect, rather, is to prevent what might otherwise be a cause of action[] from ever arising.'" Daidone v. Buterick Bulkheading, 191 N.J. 557, 564-65 (2007) (quoting Rosenberg, supra, 61 N.J. at 199). The statute commands that "injury occurring more than ten years after the negligent act allegedly responsible for the harm[] forms no basis for recovery." Id. at 565 (internal quotations omitted). The statute "reflects the legislative preference, from a public policy standpoint, for finality in construction-related claims." Id. at 567. Consequently, our courts "have read the statute broadly to accomplish this purpose[.]" Ibid. (citations and internal quotation marks omitted). The Court has held that the statute should be construed to apply "to all who can, by a sensible reading of the words of the act, be brought within its ambit." Rosenberg, supra, 61 N.J. at 198.
deficiency in the design, planning, surveying, supervision or construction of an improvement to real property, or for any injury to property, real or personal, or for an injury to the person, or for bodily injury or wrongful death, arising out of the defective and unsafe condition of an improvement to real property, nor any action for contribution or indemnity for damages sustained on account of such injury, shall be brought against any person performing or furnishing the design, planning, surveying, supervision of construction or construction of such improvement to real property, more than 10 years after the performance or furnishing of such services and construction. This limitation shall serve as a bar to all such actions, both governmental and private, but shall not apply to actions against any person in actual possession and control as owner, tenant, or otherwise, of the improvement at the time the defective and unsafe condition of such improvement constitutes the proximate cause of the injury or damage for which the action is brought.
[N.J.S.A. 2A:14-1.1a (emphasis added).]
To receive the protection of the statute of repose, a defendant must show that:
(1) the injury sustained by plaintiff resulted from a defective and unsafe condition of an improvement to real property;An "improvement" to real property is one that "'enhances the use of the property, involves the expenditure of labor or money, is more than mere repair or replacement, adds to the value of the property, and is permanent in nature.'" Ebert v. S. Jersey Gas Co., 157 N.J. 135, 139 (1999) (quoting Van Den Hul v. Baltic Farmers Elevator Co., 716 F.2d 504, 508 (8th Cir. 1983)).
(2) [defendant was] responsible for performing or furnishing the design, planning, surveying, supervision of construction, or construction of the improvement; and
(3) the injury occurred more than ten years after the performance or furnishing of the services.
[Dziewiecki v. Bakula, 180 N.J. 528, 531-32 (2004).]
The statute of repose is triggered without the need to show an unsafe condition "[i]f improvements to property made in accordance with a defective design would render that property unable to be used for the purpose for which it was designed[.]" Newark Beth Israel Medical Center v. Gruzen, 124 N.J. 357, 365 (1991). The statute is also triggered where the construction of the improvement created "a situation hazardous to the well-being and safety of . . . property coming into contact with the improvement." Id. at 366; see also Port Imperial Condo. Ass'n., Inc. v. K. Hovanian Port Imperial Urban Renewal, 419 N.J. Super. 459, 466, 474 (App. Div. 2011) (applying the statute of repose to construction that caused property damage).
Drainage pipes that de-water property are unquestionably improvements to real property. See Kotlarich v. Ramsey, 51 N.J. Super. 520, 544 (App. Div. 1958) (recognizing that the installation of adequate drainage was critical to land development). Even Campbell conceded the 24-inch pipe was an "enhancement" to the property that benefitted the land.
In addition, Campbell opined that the pipe's defective design and/or negligent construction destroyed the septic system, rendering it unusable, and damaged the buildings, rendering them uninhabitable. Thus, it was not necessary to show that the pipe was dangerous or unsafe. Newark Beth Israel Medical Center, supra, 124 N.J. at 365-66; Port Imperial Condo. Ass'n., Inc., supra, 419 N.J. Super. at 466, 474. The statute was triggered because plaintiff alleged the pipe's defective design rendered the property unable to be used for the purpose for which it was designed, and the pipe's construction damaged the property and created a situation hazardous to the property's well-being.
The second element of the statutory test is also satisfied. The record amply shows that Hagg, a Township employee, fell within the category of "any person performing or furnishing the . . . construction of [the] improvement." N.J.S.A. 2A:14-1.1a; Dziewiecki, supra, 180 N.J. at 531-32. He was responsible for performing or furnishing the design or construction of the pipe on the Township's behalf. The quality of his work is irrelevant to the statute's applicability.
Finally, there is no dispute that the injury occurred more than ten years after construction of the 24-inch pipe. Thus, the third statutory element is satisfied. Principles of equitable tolling cannot suspend the ten-year statutory period of repose, even if the alleged defect was latent and not discoverable until after the ten years has run. Russo Farms v. Bd. of Educ. Of Vineland, 144 N.J. 84, 116, 119 (1996); see also Trinity Church v. Lawson-Bell, 394 N.J. Super. 159, 176-77 (App. Div. 2007). Accordingly, the statute of repose barred plaintiff's claims.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION