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Diernisse v. Borough of Westwood


December 24, 2009


On appeal from the Superior Court of New Jersey, Law Division, Bergen County, L-1495-01.

Per curiam.


Argued December 7, 2009

Before Judges Reisner and Chambers.

This appeal arises from a long-running dispute between plaintiffs Hans and Anita Diernisse and defendant Borough of Westwood over improvements to a sewage pumping facility. After a plenary hearing, Judge Jonathan Harris determined that the Borough's engineering plans complied with a February 17, 2006 consent order requiring installation of a redundant back-up system to prevent sewage overflows, and he directed the Borough to implement those plans. Plaintiffs appeal from the judge's March 13, 2008 order memorializing his decision, and from the April 25, 2008 order denying their motion for reconsideration.*fn1

We affirm.


We reviewed the history of this case in detail in an earlier opinion, Diernisse v. Borough of Westwood, No. A-2329-03 (App Div. April 13, 2005). In summary, plaintiffs sued the Borough to obtain "damages and injunctive relief as a result of repeated backups of raw sewage in their residence" due to failures in the municipal sewage pumps. (slip op. at 1-2). In our earlier opinion, we affirmed the award of damages to plaintiffs, but reversed the denial of injunctive relief. We remanded the case to a different trial judge for a hearing on the injunction issue. On remand, the matter was assigned to Judge Harris.

On remand, the parties reached a settlement on the injunction application, which was placed on the record on December 5, 2005 and memorialized in a consent order dated February 17, 2006. In the course of putting the settlement on the record on December 5, Mr. Diernisse*fn2 and his counsel both indicated that a gravity system would be best, but because the Borough's engineer had convinced Mr. Diernisse that a gravity system was not practicable, plaintiffs were settling for the Borough's agreement to install a mechanical back-up pumping system. Notably, in explaining to the judge why he was reluctantly accepting his own expert's opinion, Mr. Diernisse stated "of course I haven't done any civil - - and I don't claim to be an expert."

The parties agreed that the Borough's retained engineering firm, Boswell Engineering, would submit its design and specifications to plaintiffs' engineer, Stephen Gamelsky, for approval before the Borough implemented those plans. The consent order provided that if the proposed improvements would cost more than $30,000, Boswell could devise a more cost effective proposal and attempt to obtain Gamelsky's agreement, but if they could not agree, the Borough would install a system acceptable to Gamelsky. The order specifically required installation of "a redundant pump and generator" and could not be a system with only a limited duration capacity.

After the parties were unable to resolve disagreements over Boswell's proposed design, the Borough filed a motion to clarify its obligations under the consent order, and plaintiffs filed a motion to enforce the order. At the oral argument on September 21, 2007, the court construed the consent order as requiring that Gamelsky approve the Borough's plans. The parties disagreed as to whether Gamelsky had reviewed and approved the plans. The judge advised the parties that if they did not settle their differences, he would hold a plenary hearing to determine whether plaintiffs and Gamelsky had unreasonably withheld approval of the Borough's plans. Mr. Diernisse agreed to a plenary hearing, although he indicated that he would prefer that it be held on a more expedited schedule than the court proposed.

At the plenary hearing, the Borough presented extensive testimony from Stephen Boswell, a licensed engineer with extensive experience in designing sewage and water-pumping stations. According to Boswell, he initially designed a system with a third, large-capacity back-up pump, with multiple electric generator back-up systems, so that even if the regular pumps failed, or the regular electric supply failed, the system could still handle up to two and one half times the expected water flow during peak storm conditions. Boswell explained in detailed why the system he had designed would be effective in preventing future sewage back-ups. Boswell testified that the Borough was ready to put that system out for bid, but hesitated to do so because there was a better, non-mechanical system available.

Boswell testified that because the mechanical system would cost $300,000, which was ten times the cost anticipated in the consent order, he had designed an alternate system. Boswell explained the alternate plan as follows. Faced with the large potential cost of a mechanical system, Boswell re-considered the possibility of designing a gravity system, which was what he believed Mr. Diernisse had wanted from the beginning. He explained that a gravity system was preferable because it has no parts that can fail the way a mechanical pumping system can. According to Boswell, a gravity system would cost about the same as the redundant mechanical system, and would eliminate the need for the mechanical pumping station.

Boswell testified that when he discussed the gravity system proposal with Gamelsky in August 2006, "he approved. No engineer . . . would ever prefer to use a mechanical system over gravity if gravity works." However, shortly thereafter, Mr. Diernisse told Boswell that Gamelsky was "no longer involved" and that Boswell should not talk to Gamelsky any more.

In his testimony, Boswell also explained that in case of severe flooding the Borough planned to reach the pumping station by boat, which was the method used in other municipalities. He also explained why he had rejected plaintiffs' proposal that the Borough build a bridge to the pumping station. According to Boswell, based on his experience with the Department of Environmental Protection (DEP) and its regulations, the DEP would never approve the construction of a bridge in the flood plain area where the station was located.

The mayor of Westwood, called as plaintiff's witness, testified that the gravity system would better serve the public interest, because it was less likely to fail than a mechanical system. He explained that the public interest was affected, because flooding and sewer backups affected not only plaintiffs, but their neighbors as well. He also testified that the mayor of River Vale was willing to allow Westwood to extend the piping for a gravity sewer system into River Vale. This accommodation would be necessary, because the closest manhole at a lower elevation than the pump station wells was in River Vale.

In response, Mr. Diernisse attempted to present evidence that the proposed mechanical improvements to the pumping station would not work, because the pumps would not have sufficient capacity to handle the expected volume of flood waters. However, in an oral opinion placed on the record on February 6, 2008, the judge sustained defense counsel's objection to this testimony. The judge found that Mr. Diernisse was not qualified as an engineering expert because he was not a licensed engineer and had no experience in designing sewer systems apart from a year or two of work he did for the New York City public schools forty years ago.*fn3

Earlier in the trial, the judge also precluded Mr. Diernisse from introducing evidence that would have served as the foundation for his proposed expert testimony. His opinions were primarily based on information contained in documents produced by a manufacturing firm in Kansas, and he did not propose to present any legally competent evidence of the facts included in those documents. The judge held that the manufacturing documents were inadmissible hearsay. He also noted that Mr. Diernisse had not used the documents to cross-examine Boswell.

In an oral opinion placed on the record on March 4, 2008, Judge Harris credited Boswell's expert testimony that the redundant pumping system would function as it was designed to do. He also accepted Boswell's testimony that it was not practicable to build a bridge to the pumping station to make it reachable in case of severe flooding. However, the judge rejected Boswell's testimony concerning the proposed gravity system. He accepted plaintiffs' objection that the gravity proposal was inconsistent with the consent order and that plaintiffs were entitled to have the settlement implemented immediately.

The judge declined to award damages for contempt or aid of litigants' rights, finding that the Borough had understandable reasons for trying to pursue the gravity option in light of Gamelsky's approval. Judge Harris ordered the Borough to implement the mechanical improvements to the pumping station forthwith. In an order dated April 25, 2008, he declined to reconsider his decision, concluding that plaintiffs had not met the standard set forth in Cummings v. Bahr, 295 N.J. Super. 374, 384 (App. Div. 1996).

At oral argument of this appeal, counsel advised us that the improvements to the pump station had been completed and, as of that date, there had been no new sewage back-up incidents.


On this appeal, plaintiffs contend that the judge should have let Mr. Diernisse testify as an expert witness. They also disagree with Boswell's opinion about the capacity of the proposed system; contend that the trial court erred in crediting Boswell's opinions; and claim Boswell rendered net opinions. They further argue that the court should have imposed sanctions on the Borough for delays in implementing the consent order. We find no merit in these contentions.

Our review of Judge Harris's factual findings is limited to determining whether they are supported by substantial credible evidence. See Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 483-84 (1974). We owe particular deference to the trial judge's credibility findings, in this case, his decision to credit Boswell's opinions on the effectiveness of the proposed mechanical pumping improvements. See State v. Locurto, 157 N.J. 463, 474 (1999). We review the judge's evidentiary rulings, including his decision to admit or exclude expert testimony, for abuse of discretion. See State v. Ravenell, 43 N.J. 171, 182 (1964); State v. Krivacska, 341 N.J. Super. 1, 33 (App. Div.), certif. denied, 170 N.J. 206 (2001), cert. denied, 535 U.S. 1012, 122 S.Ct. 1594, 152 L.Ed. 2d 510 (2002).

Based on our review of the record, we find no abuse of discretion in the trial judge's ruling that Mr. Diernisse was not qualified to testify as an engineering expert. See N.J.R.E. 702. We agree with the reasons stated by Judge Harris. We add only the following comments. Mr. Diernisse was not a licensed engineer, and his minimal experience with sewage systems related to the design of public schools and was from four decades before the trial. Moreover, he had no legally competent factual evidence on which to base his proposed opinions concerning the capacity and functioning of the pump system. Plaintiffs could have produced expert testimony from Gamelsky, whom Mr. Diernisse claimed was still working for them, but they chose not to do so.

We likewise find no basis to disturb Judge Harris's decision to credit Boswell's detailed and well-explained expert testimony concerning the proposed mechanical pump system. Nor do we find any abuse of discretion in the judge's decision not to impose financial penalties on the Borough for delay in implementing the consent order. Plaintiffs' remaining appellate arguments are largely unsupported by citations to record evidence and are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).


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