FRED RAY FRED BRIGANTINE GULF INC FRED COMPLETE AUTO SERVICE DETAIL LIMITED LIABILITY COMPANY AND MICHAEL RAY v. CITY OF BRIGANTINE JAMES FRUGOLI AND JAMES BARBER BRIGANTINE AUTO BODY WAYNE MCLEAN GUENTHER AND SONS FRANK GUENTHER AND JEFFREY GUENTHER

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Superior Court of New Jersey, Appellate Division.

FRED RAY, FRED'S BRIGANTINE GULF, INC., FRED'S COMPLETE AUTO SERVICE & DETAIL LIMITED LIABILITY COMPANY AND MICHAEL RAY, Plaintiffs–Appellants, v. CITY OF BRIGANTINE, JAMES FRUGOLI AND JAMES BARBER, Defendants–Respondents, BRIGANTINE AUTO BODY, WAYNE MCLEAN, GUENTHER AND SONS, FRANK GUENTHER AND JEFFREY GUENTHER, Defendants.

DOCKET NO. A–4664–12T1

Decided: March 20, 2014

Before Judges Sapp–Peterson and Hoffman. Paul R. Melletz argued the cause for appellants (Begelman, Orlow & Melletz, attorneys;  Mr. Melletz, on the briefs). James R. Birchmeier argued the cause for respondents (Powell, Birchmeier & Powell, attorneys;  Mr. Birchmeier, on the brief).

Plaintiffs appeal from the summary judgment dismissal of their complaint alleging malicious interference with prospective economic advantage against defendants, the City of Brigantine (City) and its retired chief of police and retired city manager.   Plaintiffs' complaint, filed in March 2011, alleged actionable conduct occurred between 2002 and 2009;  however, plaintiffs did not file their tort claims notice until May 28 2010, well beyond the requirement that claims must be filed within ninety days from the date of accrual, as set forth in N.J.S.A. 59:8–9.   After defendants successfully moved for summary judgment based on plaintiffs' failure to provide timely notice under the New Jersey Tort Claims Act (Act),1 plaintiffs moved for reconsideration, asserting for the first time the applicability of the discovery rule.   They also attempted to supplement the record with a 2006 letter in support of a substantial compliance argument.   The motion judge rejected both arguments and denied the motion.   For the reasons that follow, we affirm the orders granting summary judgment and denying reconsideration.

I.

In 2002, plaintiff Fred Ray, owner of plaintiff Fred's Brigantine Gulf, Inc., first attempted to have his company placed on the vehicle towing rotation for the City. After Fred's Brigantine Gulf, Inc. was finally added to the rotation in 2005, Ray claims he was instructed by several members of the Brigantine Police Department that he was required to take all of the vehicles he towed to Brigantine Auto Body, a tow and repair shop owned by Wayne McLean.   When asked why towed cars were required to go to his shop, McLean told Ray, “[T]his is how it has always been.”   Unsatisfied with this response, Ray went to the city manager, defendant James Barber, with the same inquiry.   Barber provided no further explanation;  instead, he instructed Ray to discuss the matter with then-acting police chief of the City, James Frugoli.   According to Ray, Frugoli stated that “[T]his (Brigantine) was his island and that this is how things have always been.”   From 2005 to 2009, Ray followed the practice of towing all cars to Brigantine Auto Body instead of his own lot.

Significantly, in 2006, plaintiffs retained the services of A. Harold Kokes, Esq. to represent them in connection with their towing issues with the City. On October 26, 2006, Kokes wrote a letter to the City's solicitor, indicating he represented plaintiffs, and stated, in relevant part:

It has come to my attention that the City is, in all probability, running afoul of its own Ordinance Section 274–36 regarding the towing contract the City has with Guenther's Napa Auto Care Center & Towing, whose base of operations is [actually located in] the City of Pleasantville, Atlantic County.

The letter proceeded to point out four different ways the City's relationship with Guenther's violated the City's own towing ordinance.

In April of 2009, Ray ceased operating Fred's Brigantine Gulf, Inc. when he attained a business partner, William Wright, and established Fred's Complete Auto Service & Detail, LLC. At that time, Wright reviewed plaintiffs' towing records from 2005 to 2009, and questioned why all vehicles had been towed to Brigantine Auto Body. Upon learning that City police officers, and defendants Barber and Frugoli, had required all towed cars to go to one facility, Wright advised Ray this behavior was illegal.

Plaintiffs thereafter made a request for the City's towing records under the Open Public Record Act (OPRA).2  Wright certified that when he reviewed the “tow logs with Mr. Ray in or about May of 2010, it became apparent to me that the City had wrongfully deprived Mr. Ray of revenue that he would have generated from storing towed cars at his facility.”

On May 28, 2010, plaintiffs filed a tort claims notice, alleging tortious conduct and resulting damages from 2002 to 2009.   A motion seeking leave to file a late notice of claim neither preceded nor followed plaintiffs' notice, as required by N.J.S.A. 59:8–9.   On March 31, 2011, plaintiffs filed a complaint seeking damages for lost revenue for the three years they were not included in the towing rotation, and for the four years they towed all vehicles to Brigantine Auto Body instead of their own shop.

On April 17, 2012, the court granted defendants' motion for summary judgment and dismissed plaintiffs' claims against the City, Barber, and Frugoli, based upon plaintiffs' failure to comply with the notice provisions of the Act. While the judge concluded that the “continuous violation doctrine” 3 was applicable to plaintiffs' claims because plaintiffs alleged “continuous, systematic, and discriminatory conduct” from 2002 through April 2009, he found plaintiffs' claims were nevertheless barred by the Act because they accrued in April of 2009 and their tort claims notice was served on May 28, 2010, outside the one-year period for filing a late claim pursuant to N.J.S.A. 59:8–9.

Plaintiffs then moved for reconsideration, arguing for the first time that New Jersey's discovery rule applied, and that Ray did not learn of defendants' wrongful conduct until May 2010, after his new partner reviewed the City's towing records.   Alternatively, plaintiffs argued their counsel's letter sent to the City's solicitor in 2006 (submitted to the court for the first time on the reconsideration motion) was sufficient to satisfy the notice requirement of the Act. The motion judge rejected both arguments.   This appeal followed, with plaintiffs arguing the motion judge misapplied the discovery doctrine in dismissing their complaint.4

II.

In reviewing a grant of summary judgment, we apply the same standard under Rule 4:46–2(c) that governs the trial court.   See Liberty Surplus Ins. Corp. v. Nowell Amoroso, P.A., 189 N.J. 436, 445–46 (2007).   We “consider whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party.”  Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).

No action for damages based on tortious conduct of a public entity or public employee may proceed without first submitting a notice of claim as prescribed by the Act. N.J.S.A. 59:8–3 to –7. The notice of claim must be filed within ninety days of accrual of the claim.  N.J.S.A. 59:8–8.   A person who fails to file a notice of claim within ninety days, may file a late notice of claim, but only by order of the court.  N.J.S.A. 59:8–9.   The motion to file a late notice of claim must be filed within one year of the accrual of the claim, and the person seeking such relief must demonstrate the public entity or public employee will not be “substantially prejudiced” and “extraordinary circumstances” caused the delay.  Ibid.

Generally, a cause of action accrues for purposes of the statute of limitations “when any wrongful act or omission resulting in any injury, however slight, for which the law provides a remedy, occurs.”  Beauchamp v. Amedio, 164 N.J. 111, 116 (2000).   In typical cases of tortious conduct resulting in an injury, “the date of accrual will be the date of the incident on which the negligent act or omission took place.”  Id. at 117.

An exception to the notice of accrual provision is the case where the victim either is unaware that he has been injured or is unaware that a third party is responsible for his or her injuries.   See Ayers v. Jackson Twp., 106 N.J. 557, 582 (1987) (noting the discovery rule “tolls the statute until the victim discovers both the injury and the facts suggesting that a third party may be responsible”).

The “discovery rule” is an equitable principle by which the accrual of a cause of action is delayed “until the injured party discovers, or by the exercise of reasonable diligence and intelligence should have discovered[,] that he [or she] may have a basis for an actionable claim.”  Viviano v. CBS, Inc., 101 N.J. 538, 546 (1986) (quoting Lopez v. Swyer, 62 N.J. 267, 272 (1973)).   Whether a potential plaintiff exercised due diligence in discovering the injury is determined under an objective standard.  Lapka v. Porter Hayden Co., 162 N.J. 545, 555–56 (2000) (holding that “[w]e impute discovery if the plaintiff is aware of facts that would alert a reasonable person to the possibility of an actionable claim;  medical or legal certainty is not required”);  Burd v. New Jersey Tel. Co., 76 N.J. 284, 291–92 (1978) (holding the “discovery principle modifies the conventional limitations rule only to the extent of postponing the commencement of accrual of the cause of action until plaintiff learns, or reasonably should learn, the existence of that state of facts which may equate in law with a cause of action,” rather than the point in time when plaintiff learns the state of the law affording relief).

In Beauchamp, Justice Long set forth the analytical steps a court must follow to properly decide cases involving late-filed tort claim notices:

In determining whether a notice of claim under N.J.S.A. 59:8–8 has been timely filed, a sequential analysis must be undertaken.   The first task is always to determine when the claim accrued.   The discovery rule is part and parcel of such an inquiry because it can toll the date of accrual.   Once the date of accrual is ascertained, the next task is to determine whether a notice of claim was filed within ninety days.   If not, the third task is to decide whether extraordinary circumstances exist justifying a late notice․  What is important is to understand the framework of a Tort Claims notice analysis and to follow it.

[Beauchamp, supra, 164 N.J. at 118–19.]

III.

Plaintiffs filed their tort claims notice on May 28, 2010, alleging a cause of action that took place from July 2002 to April 2009, clearly beyond the ninety-day limit from the April 2009 accrual date.   Further, plaintiffs never sought leave to file a late notice of claim as permitted by N.J.S.A. 59:8–9.   However, even if they had, their filing was still not within the one-year limit for filing a late claim.   Accordingly, summary judgment in favor of defendants was clearly proper.

In their motion for reconsideration, plaintiffs' argued applicability of the discovery rule, with Ray certifying he was unaware he and his business had suffered “specific economic injury until May of 2010.”   Alternatively, plaintiffs argued that the letter sent by their counsel to the City solicitor in 2006 provided sufficient notice of plaintiff's claim to satisfy the notice requirement of the Act. However, a motion for reconsideration is not an opportunity to submit proofs that could have been presented at the time of the original motion.   See Cummings v. Bahr, 295 N.J.Super. 374, 384–85 (App.Div.1996).   As we observed in Cummings:

“Reconsideration should be utilized only for those cases which fall into that narrow corridor in which either 1) the Court has expressed its decision based upon a palpably incorrect or irrational basis, or 2) it is obvious that the Court either did not consider, or failed to appreciate the significance of probative, competent evidence․

[Id. at 384 (quoting D'Atria v. D'Atria, 242 N.J.Super. 392, 401–02 (Ch. Div.1990) (emphasis added)).]

We agree with the motion judge that “reconsideration cannot be used as a means to introduce new evidence” and that plaintiffs' attempt to submit and rely upon the 2006 letter from Kokes to the City solicitor was improper.   Regardless, the letter from plaintiffs' counsel clearly failed to substantially comply with the requirements of N.J.S.A. 59:8–4 regarding the contents of a tort claim under the Act;  it neither advised of the assertion of a claim nor provided any information relating to “prospective injury, damage, or loss[.]”  N.J.S.A. 59:8–4(f).5

As to the applicability of the discovery rule, plaintiffs assert they were unaware of potential wrongful deprivation of economic gain until May of 2010, when Ray's new business partner informed him of this economic deprivation following the review of the OPRA files.   However, the record provides no credible support for this claim.   Reviewing the facts in the light most favorable to plaintiffs, and applying sequential analysis set forth in Beauchamp, supra, 164 N.J. at 118–19, we are satisfied the motion judge correctly determined plaintiffs' cause of action for malicious interference accrued in April 2009.   At that time, Ray's new business partner informed him the City's towing practices were unlawful.   The analysis of the City's towing records received in response to the OPRA request only served to confirm this conclusion a year later;  the information supplied by the City was neither surprising nor unexpected.

Clearly, plaintiffs did not file a notice of claim within ninety days of the accrual of their claim.   We need not consider whether extraordinary circumstances exist for the late filing of plaintiffs tort claim notice as plaintiffs never filed a motion to submit a late notice of claim.   Regardless, the record indicates plaintiffs were well aware of the potential cause of action against respondents as early as 2006, long before Fred's Brigantine Gulf, Inc. closed in April 2009.

In sum, plaintiffs have failed to identify any genuine issue of material fact that would lead to different conclusions with respect to the grant of summary judgment or the denial of their motion for reconsideration.

Affirmed.

FOOTNOTES

1.  FN1. N.J.S.A. 59:1–1 to 12–3.

2.  FN2. N.J.S.A. 47:1A–1 to 18.

3.  FN3. The doctrine provides that when an individual experiences a “continual, cumulative pattern of tortious conduct, the statute of limitations does not begin to run until the wrongful action ceases.”   Roa v. Roa, 200 N.J. 555, 566 (2010) (quoting Wilson v. Wal–Mart Stores, 158 N.J. 263, 272 (1999)).

4.  FN4. The parties on this appeal are plaintiff-appellants Fred Ray and Fred's Brigantine Gulf, Inc. and defendant-respondents, the City, Barber and Frugoli.   Issues involving all other parties have been resolved.

5.  FN5. If it has any relevance, the letter indicates a basis for concluding plaintiffs were aware they were sustaining harm by the City's actions as early as 2006, almost four years before they served their tort claims notice.

PER CURIAM

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