Before Judges Muir, Jr., Wallace, Jr., and Lesemann.
The opinion of the court was delivered by: Lesemann, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 5, 1999
On appeal from the Superior Court of New Jersey, Law Division, Essex County.
Plaintiff, Ralph W. Holmin, appeals from a judgment dismissing his claim that defendants had fraudulently induced him to leave his prior job and accept employment with defendant TRW, Inc. (TRW). The dismissal was based on application of a six year statute of limitations and a determination that the limitation period began to run when plaintiff was told that his employment was to be terminated, rather than thirteen days later, when he completed his last day of work. While the precise issue is one of novel impression in this State, we are satisfied that under settled principles, a statutory limitation period respecting a cause of action does not commence until that cause of action accrues; that the cause of action alleged here (fraud) accrued only when plaintiff was damaged by the actual termination of his employment; and that, accordingly, the six-year period began to run on plaintiff's last day of work. Since the complaint was filed within six years of that date (although more than six years after plaintiff was told he was to be terminated), we reverse the dismissal of the complaint.
The trial court's decision came in response to a motion under R. 4:6-2(e) to dismiss plaintiff's complaint for "failure to state a claim upon which relief can be granted." On such a motion, all well pleaded allegations of the complaint are accepted as true and the matter is to be resolved based on the pleadings themselves. See Rieder v. State Dept. of Transp., 221 N.J. Super. 547 (App. Div. 1987); see also Velantzas v. Colgate-Palmolive Co., 109 N.J. 189 (1988). On that basis, the operative facts of the case can be simply stated.
At some point prior to November 11, 1991, the individual defendants, Carmine Coppola, Ruth E. Miller and Arthur B. Branstine (all "upper management" personnel with the Customer Service Division (CSD) of TRW), solicited plaintiff to leave his job with Mitsubishi Bank and come to work for TRW. They assured him that, such employment would be continuous and terminable only for just and sufficient cause and that if plaintiff conscientiously and diligently performed his job duties he would have a secure future with CSD and TRW. They did not tell him that CSD was having financial difficulty, that it was being considered for sale, that plaintiff's [intended] position . . . would be eliminated within a short time after his employment, . . . that plaintiff's security with TRW and/CSD would almost immediately be in jeopardy upon beginning employment, and that plaintiff would be chosen for termination shortly after beginning employment because both he and his position would be deemed to have the "least impact" upon CSD's business needs in regard to a reduction in it's workforce.
In addition, plaintiff charged, during the interview process defendant Ruth Miller specifically told plaintiff that because he was the only person in his department there was no chance that he could be laid off.
Plaintiff asserts that in reliance on those representations, he left Mitsubishi and accepted the job with TRW. He also charges that none of defendant's statements were true. In fact, CSD was experiencing financial difficulties at the time, and TRW was considering selling the division. In addition, he claims he was hired to undertake a particular project, and that TRW/CSD intended to terminate his employment once that job was completed. The job security he was promised was non-existent, and shortly after working with TRW, his position was eliminated. He asserts that had he known the truth, he would never have left his prior job and begun a new position with TRW. That move, he says, was induced by defendants' false and fraudulent representations which were made with knowledge that they were false and with the intention that he act upon them. He also says that in fact, he did act upon them. In its key provision, as it relates to the statute of limitations, plaintiff's complaint states that, on or about February 28, 1992, defendant, through its authorized agents and employees, advised plaintiff that his position was being eliminated and that he was being terminated by CSD and defendant TRW effective March 13, 1992 which was the last date of plaintiff's employment.
It concludes that, As a direct and proximate result of the defendants' fraudulently inducing plaintiff into its employment and misrepresenting the solvency of and financial integrity of CSD and plaintiff's security within same, plaintiff incurred and has suffered and continues to suffer definite and substantial detriment as a result of his reliance and termination.
On defendants' motion to dismiss the complaint, *fn1 the court was presented with a letter dated February 28, 1992, from TRW to plaintiff, headed "Separation Arrangements." *fn2 The letter, signed by defendant Miller who is identified as "Regional HR" (presumably Human Resources) Manager, begins by saying, "This letter will confirm your discussion with Carmine Coppola and provide a summary of your separation arrangements." The first paragraph is entitled "Notice Period" and in its significant portion says:
Your last day of work will be March 13, 1992. Although this is the official last day worked, in most cases there is no general expectation that you will report to work for the entire notice period, even though you will be paid for the entire notice period. You are encouraged to effect closure in your work area as soon as possible in order to be able to use the remaining time for your own transition issues. During this time, Human Resources will provide you with support in your job search, . . . .
The letter also includes a paragraph entitled "Problem Resolution Process," reading as follows:
If you have any questions about your selection for layoff, you are encouraged to contact your Regional Human Resources Manager. If you wish to file a complaint, your Regional Human Resources Manager will explain CSD's Employee Grievance process.
On March 10, 1992, plaintiff filed such a grievance. On March 13, 1992, he worked his last day with TRW. On April 15, 1992, his grievance was denied.
Plaintiff filed his complaint on March 11, 1998--less than six years after his last day of work, but more than six years after the February 28, 1992 letter. He claims the six year statute of limitations contained in N.J.S.A. 2A:14-1, should be measured from his last day of work, March 13, 1992, rather than February 28, 1992. Alternatively, he claims that the limitation period should have been equitably tolled while his grievance was pending between March 10, 1992 and April 15, 1992. Since we agree with plaintiff's first contention, we need not resolve the second.
The statutory language and well-established case law, make clear that the six year statute of limitations period is to be measured from the date a plaintiff's cause of action accrues. See N.J.S.A. 2A:14-1:
Every action at law for . . . any tortious injury to the rights of another . . ., shall be commenced within six years next after the cause of any such action shall have accrued. See also Fernandi v. Strully, 35 N.J. 434, 449 (1961); Hartford Accident and Indem. Co. v. Baker, 208 N.J. Super. 131, 135-36 (Law Div. 1985). It is also clear that the date when a cause of action is deemed to have "accrued" is "the date upon which the right to institute and maintain a suit first arises." Hartford, supra, 208 N.J. Super. at 135-36.
Here, the asserted cause of action is fraud, which is sometimes called "deceit." The essential elements of that tort have been set out in countless cases. See, e.g., Gennari v. Weichert Co. Realtors, 148 N.J. 582, 610 (1997), describing the five elements as, (1) a material misrepresentation of a pre- sently existing or past fact; (2) knowledge or belief by the defendant of its falsity; (3) an intention that the other person rely on it; (4) reasonable reliance thereon by the other person; and (5) resulting damages. See also Jewish Ctr. of Sussex County v. Whale, 86 N.J. 619, 626 (1981); Louis Schlesinger Co. v. Wilson, 22 N.J. 576, 585-86 (1956)(referring to the "proverbial" five elements of deceit).
Thus, "[a]ctual damages are an element of the cause of action for fraud or deceit." Nappe v. Anschelewitz, Barr, Ansell & Bonello, 189 N.J. Super. 347, 354 (App. Div. 1983), aff'd in part and rev'd in part, 97 N.J. 37 (1984); *fn3 see also Labus v. Navistar Int'l Transp. Corp., 740 F. Supp. 1053 (D. N.J. 1990) (applying New Jersey tort law). Until a plaintiff has suffered "damages," therefore, he cannot maintain a suit for damages ...