On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Docket No. L-453-10.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Sabatino and Alvarez.
Defendants Matthew F. Doran, P.E. ("Doran"), and Doran Engineering, P.A. ("Doran Engineering") (collectively, "the engineering defendants"), and co-defendant, the City of Northfield ("the City"), appeal the trial court's respective orders dismissing the complaint of plaintiff, Jack Trocki Development Co., LLC, "without prejudice," and declining on reconsideration, as defendants had requested, to make those dismissals "with prejudice." The City also appeals a separate generic order of the trial court that had the apparent effect of dismissing all pending claims, including its affirmative claims against plaintiff.
For the reasons that follow, we vacate the orders dismissing plaintiff's complaint against the City and the engineering defendants without prejudice, and remand for further proceedings. On remand, the parties shall develop the record more fully with respect to the timing and accrual of plaintiff's alleged damages. The trial court thereafter should re-examine the timeliness of plaintiff's claims under the Tort Claims Act, N.J.S.A. 59:1-1 to 12-3 (the "TCA"). Additionally, we vacate the generic order insofar as it may be read to dismiss the City's counterclaim, and remand for additional proceedings to adjudicate that reinstated counterclaim.
The limited record before us contains the following pertinent factual allegations and procedural history.
Plaintiff is a real estate developer. Prior to the present dispute, plaintiff owned property in the City on Burton Avenue. Plaintiff obtained approval from the City*fn1 to subdivide the property, on certain conditions, into thirty-eight residential lots, and to construct single-family homes on those lots. The project became known as "Burton Estates."
As part of the conditions of subdivision approval, plaintiff was required by the City to post a performance guarantee ("the bond") and a cash deposit. Plaintiff posted the bond through a letter of credit issued by the Sun National Bank and also made the required cash deposit. In addition, the City required plaintiff to make certain physical improvements, including street paving, curb work, landscaping, basins, sewers, and water lines. Plaintiff also had to satisfy the requirements for the project in accordance with engineering specifications issued by Doran in his capacity as the municipality's engineer.
The development project then went forward. Plaintiff transferred title to all but two of the thirty-eight lots to NVR, Inc. ("NVR"), a Virginia corporation doing business in New Jersey as "Ryan Homes." Ryan Homes built homes on thirty-six of the lots. Meanwhile, the bond and the cash deposit were reduced in part as the project progressed, although substantial balances remained outstanding.
According to its complaint, plaintiff completed the improvements required for the project and Doran, on behalf of the City, accepted as satisfactory all of the improvements as they were installed. Thereafter, in March 2007, plaintiff requested the City to release the balance remaining on the bond and also to return the remaining funds deposited in escrow.
The City declined to release the bond or return the remaining cash deposit to plaintiff, apparently because it was dissatisfied with certain aspects of the subdivision improvements and it wanted additional work performed. As reflected in its counterclaim, the City contended that "certain improvements, mainly but not limited to road improvements, within the Burton Estates development were not constructed in accordance with the [subdivision] approvals and/or standards and specifications[.]" The City consequently demanded that plaintiff redo the improvements or otherwise rectify the perceived deficiencies.
Plaintiff rejected the City's demand that it perform additional work on the project. According to plaintiff's submissions, during the course of the project, the City and Doran had allowed Ryan Homes and the Burton Estates Homeowners Association ("the homeowners' association") to change the driveways in the development by raising the homes' elevations, and also to build larger homes with more impervious coverage. Those permitted deviations from the original plans for the project, according to plaintiff, caused a change in the slopes, leading to drainage issues that required the repair of basins and other on-site work. Plaintiff further alleged that the increase in impervious surface violated the CAFRA permit that had been issued by the State for the development.
The City and the engineering defendants disagreed with plaintiff's contention that the additional remedial work required in the development had been prompted by any negligent or improper acts on their part. The City insisted that plaintiff correct the problems, and declined to release the remaining amounts on the bond and the cash deposit. In particular, after standing water was observed along a gutter line, Doran sent plaintiff a letter on November 28, 2006,*fn2 which apparently recommended that plaintiff obtain an as-built survey of the entire development before proceeding with additional work. Doran also sent plaintiff a preliminary punch list on April 2, 2007,*fn3 identifying various items that allegedly needed to be corrected before there would be any further reduction of the bond.
During the course of the parties' interactions about these disputed issues before the filing of the complaint, plaintiff sent a letter to the City's attorney on August 9, 2007. Doran was copied on the letter in his capacity as municipal engineer, as was the City's administrator. The letter, in its entirety, reads as follows:
May this letter serve as a formal request that a conflict engineer and attorney be designated to resolve the remaining Burton Estates issues. The bonded site has been plagued with egregious oversights by the City of Northfield for the duration of this project.
Site plans have been changed for the entire project without the permission of the land owner (Jack Trocki Development) and without planning board approval. There is no documentation in the building department that the site plan changes were ever approved and Doran Engineering still provided verbal authorization. The revised plan that was approved by the city engineer is in violation of the CAFRA permit that exists on the site.
We demand a conflict attorney and engineer due to these enumerated problems and others including the unlawful holding of the entire project bond. Jack [Trocki] Development expects full reimbursement for damages. If these items are not resolved
Jack Trocki Development will be submitting a formal complaint to the New Jersey Office of Attorney General, Division of Consumer Affairs and State Board of ...