NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2659-15T4
HAUL ROAD HOLDINGS, INC.,
and POLYMERIC RESOURCES
CORP.,
Plaintiffs-Appellants,
v.
TOWNSHIP OF WAYNE,
Defendant-Respondent.
____________________________
Argued telephonically October 18, 2017 –
Decided August 13, 2018
Before Judges Simonelli and Gooden Brown.
On appeal from Superior Court of New Jersey,
Law Division, Passaic County, Docket No.
L-1866-13.
Norman I. Klein argued the cause for
appellants (Carlet, Garrison, Klein & Zaretsky,
LLP, attorneys; Norman I. Klein and Virginia
T. Shea, on the briefs).
Matthew J. Giacobbe, Township Attorney, argued
the cause for respondent (Matthew J. Giacobbe,
attorney; Lisa M. Scorsolini, Assistant
Township Attorney, on the brief).
PER CURIAM
Plaintiffs Polymeric Resources Corp. (PRC) and Haul Road
Holdings, Inc. (HRH) sued defendant Township of Wayne (Township),
alleging that from 1996 to 2013, the Township overcharged them for
water and sewer usage fees. Plaintiffs sought recovery of the
overcharges. Following a two-day bench trial, the trial court
entered judgment in favor of the Township. Plaintiffs now appeal
that judgment entered on November 16, 2015, and the January 19,
2016 order denying their motion for reconsideration. We affirm.
We glean the following facts from the bench trial conducted
on July 27, and 29, 2015, during which two witnesses testified for
plaintiffs, Sol Schlesinger,1 PRC's president, and Arthur Quint,
PRC's Vice President and Chief Financial Officer. Heather Vitz-
Del Rio, the Township's Director of Public Works and Superintendent
of Water and Sewer for the Township since 2002, testified for the
Township.
PRC, a compounder of thermal plastics, rented property
located at 55 Haul Road in Wayne from HRH, a wholly owned
subsidiary of PRC. The property included a well approximately 500
feet deep, a sump pit into which water from the well was pumped
and flowed through a pipe connecting the well and the sump pit,
1
Sol Schlesinger alternately appears as Saul Slessinger in the
record.
2 A-2659-15T4
machinery to process the materials, twenty-five to fifty feet vats
with heated water2 to melt the thermal plastics, warehouse space,
a shipping and receiving area, and administrative offices.
According to Schlesinger, the company employed about fifty people
during the day and twenty people during the night shift.
Generally, to operate, PRC used water from its well for
production and water supplied by the Township for domestic use.
PRC also utilized the Township's sewer system for any water
discharged back into the sewer system. Pursuant to Township
Ordinance No. 17-2006, the Township based water service charges
on gallons consumed, which rates increased every year from 2006
through 2010, after which they remained the same throughout the
time period in question. Under the Ordinance, the Township billed
customers for the first 12,000 gallons of water supplied at a flat
fee based on the size of the meter. The water rates then increased
according to three tiers of use in excess of 12,000 gallons as
follows: 12,000 to 30,000 gallons, 30,000 to 80,000 gallons, and
80,000 gallons and above. At each tier, a different rate applied
for every thousand gallons supplied. For example, in 2010, at the
first tier, the Township charged $5.53 per one thousand gallons;
2
Schlesinger estimated that the vats held about 200 gallons of
water.
3 A-2659-15T4
at the second tier, $5.60 per one thousand gallons; and at the
third tier, $5.67 per one thousand gallons.
Additionally, the Township charged commercial and industrial
properties, like PRC, sewer service fees based on actual water
usage. Every quarter, the Township charged the property a flat
fee of $99 in addition to $4.20 for every one thousand gallons
above 23,700 gallons used each quarter. If the water supplied did
not flow back through the sewer system, the Township calculated
its sewer service fees by deducting that amount of water from the
recorded consumption total. A sewer deduct meter measured the
amount of water supplied by the Township to the facility that did
not flow back through the sewer system. The water supply generally
flowed in one direction but could flow backwards through the sewer
system if a backflow preventer, licensed by the State and inspected
by the Township, was not installed on the line. PRC had no
backflow preventer.
In order to measure water and sewer charges, the Township
installed three separate meters at the PRC facility. A main flow
meter, located in an exterior pit, recorded the amount of water
the Township supplied to PRC through a two-inch line. Once the
water entered the facility, it dispersed into three different
directions. One line supplied water to the boiler room, where
water was used for heat and air conditioning. This line was
4 A-2659-15T4
metered with a 5/8 inch sewer deduct meter. A second line supplied
water to the production area for use in the cooling towers and had
a two-inch sewer deduct meter. A valve controlled the flow of
water to this line, which remained locked with a chain unless a
manager manually opened it to allow the flow of Township water to
PRC's production process. When that occurred, the purpose of the
deduct meter was to subtract that amount of water from the water
coming in on the main flow meter. A third line provided water for
general domestic use, such as water for the restrooms, kitchen
sinks, laboratory sinks, and emergency showers. That line was not
separately metered.
In a drawing identified as P-5 in evidence, Schlesinger
described the water system as it flowed through the PRC facility.
According to Schlesinger, PRC primarily used water from its well
in its production process. The well produced about 125 gallons
of water per minute. However, the well had no meter or other
device attached to it to measure the amount of water supplied.
PRC used water in the cooling towers in its production process to
cool the plastic extruders.3 Water was recirculated through the
3
Schlesinger described an extruder as "basically a long spiral
screw about [twenty] to [twenty-five] feet long . . . with a barrel
around it, made of . . . hardened steel . . . with heater bands,
which brings the temperature up to about 600 degrees." The
extruder "melts the product and then . . . pumps it out to a series
5 A-2659-15T4
cooling towers and then either recycled in the cooling towers or
lost through evaporation. Depending on the time of year and
temperature, some percentage of water was inevitably lost due to
evaporation and replaced by well water or, on some occasions, by
Township water. PRC had no methodology for measuring evaporation.
According to Schlesinger, in the past thirty years, PRC had
to use Township water in its production process on only three or
four occasions to compensate for a water shortage from the well.
Those occasions occurred when there were problems with the well,
including instances where the well collapsed, the pump broke and
needed to be replaced, or a drought caused a low water table. For
example, in February 2015, the well was shut down for approximately
two weeks because a pump and pipe had to be replaced, resulting
in PRC relying exclusively on Township water.
When PRC used Township water in its production process to
replace or supplement water normally supplied by its well, the
water eventually evaporated or overflowed onto the ground, but did
not travel back through the sewer system. Schlesinger testified
that from 2000 to the present, he was unaware of any broken water
of holes and dye[,]" which are then "taken into water bath[s]
where [they] get solidified and from the water bath . . . to a
pelletizer, which basically chops it into little pebbles" which
are then dried, packaged and shipped to customers for use as
"injection molding[.]"
6 A-2659-15T4
lines, other than a minor leak in one of the hydra lines that was
repaired on the same day.
Prior to 1996, PRC's quarterly billings for water usage ranged
from roughly $2300 to $6000. However, from 1996 until the last
quarter of 2012, the bills increased substantially with the 2012
fourth quarter bill totaling over $22,000.4 Over that time period,
PRC amassed a delinquent account of over $200,000. In early 2013,
PRC began the process of refinancing its debt and was required to
pay the delinquent water bill in order to facilitate the
refinancing. Prior to paying, PRC representatives met with
Township officials to question the billings, claiming that they
were billed based on estimates rather than "actual" meter readings.
After investigating the meters and verifying the meter readings,
the Township maintained the billings were accurate.
According to Vitz-Del Rio, the Township billed PRC quarterly
for water and sewer charges based on meter readings. Initially,
Township employees physically entered the property, read the
meters directly from the dial, and manually entered the reading
into a book. Later, the meter readings were upgraded to "the ARB
system[,]" which meant the meter readers had to physically touch
every remote to obtain a meter reading. Thereafter, radio
4
The first quarter bill for 2013 reverted to approximately $4600.
7 A-2659-15T4
frequency remotes were installed, allowing meter readers to pick
up readings from a remote device connected to the meters and wired
to a radio frequency located on the outside of the PRC building.
Meter readers then used a hand-held wand-like device to record the
reading on the meters without having to physically touch the meters
or access the buildings.
After the meter readers collected the readings in their hand-
held units, the data was downloaded onto a computer, after which
it was transferred to the Township's billing software. Bills for
properties with more than two meters, like PRC, were produced
manually from the Township's billing software because the software
could only bill for two meters per account. The meter reading
report used to produce the bills specified the meter reading,
water usage, any usage in excess of 12,000 gallons and the type
of reading for each quarter. The number in the water usage column
was calculated by deducting the previous quarter’s reading from
the current quarter’s reading. If an estimate was used, it was
designated with an "E" in the column titled "Est Flag."
According to Vitz-Del Rio, none of the bills for any of the
meters at the PRC facility were estimates but were, in fact, actual
readings. She also testified that the installation of the radio
frequency remotes did not affect the functionality of the meters.
In upgrading to the new system, the Township had to change only
8 A-2659-15T4
the dial on the top of one of the meters at the PRC facility, but
the other two meters remained unaltered. Vitz-Del Rio confirmed
that from 2008 to 2015, PRC's meters were not changed or repaired
by the Township and she was unaware of any malfunction. She
explained that ordinarily, the water consumption registered on the
sewer deduct meters should not exceed the consumption registered
on the main in-flow meter, but attributed such an occurrence to
"something else . . . being introduced" into the system.
Nonetheless, PRC claimed that from 1996 to 2013, the Township
overcharged them for water and sewer usage fees, and, after it
complained, the Township repaired the defective meters, resulting
in subsequent bills reflecting accurate charges. To support its
claim, in P-3 in evidence, Quint calculated PRC's domestic water
usage by subtracting the meter reading on the meter measuring the
amount of water the Township supplied from the readings on the
sewer deduct meters measuring the amount of water flowing from the
production and boiler lines. According to Quint, prior to 2013,
the Township billed PRC for approximately one to two million
gallons of water each quarter. However, after 2013, the domestic
water usage noted in Quint’s calculations reflected that the
Township billed PRC for approximately 98,000 to 481,000 gallons
of water for domestic use. The amount of water supplied to the
boiler line also decreased significantly.
9 A-2659-15T4
Based on the change in domestic and boiler water usage
reflected in the billings before and after 2013, in May 2013, PRC
filed a complaint against the Township, which was later amended,
alleging breach of contract, breach of the covenant of good faith
and fair dealing, unjust enrichment, and negligence. PRC claimed
that since 1996, the Township had overcharged it for water service
charges and sewer fees by allowing the sewer deduct meters located
on the property to either malfunction or remain in a state of
disrepair or by failing to read the meters correctly. It also
claimed the water and sewer bills issued by the Township were
estimates, rather than actual readings of their water and sewer
usage consumption. The Township filed a contesting answer and
affirmative defenses, including failure to state a claim for which
relief can be granted.
At trial, Quint calculated PRC's damages in a chart identified
as P-1 in evidence. For each bill, Quint divided the gallons of
water the Township supplied and billed PRC by PRC's production,
in pounds, for that quarter. He then divided the gallons of water
the Township billed PRC for water flowing through the sewer system
by PRC's production, in pounds, for that quarter. The production
numbers he used reflected production that was completed using both
the Township's water and PRC's well water. For each quarter,
10 A-2659-15T4
Quint added those two ratios (water consumed/production + water
in sewer system/production) together.
For the contested billing period from 1995 to the first
quarter of 2013, he averaged the total ratios he had calculated
for each quarter. He did the same for the non-contested billing
period from the second quarter of 2013 to the first quarter of
2015. To calculate the damages, he multiplied the difference of
those two averages by the total water and sewer charges the
Township billed PRC during the contested time period, amounting
to $361,107 in damages. This analysis did not include missing
bills or the bill from the first quarter of 2015 during which time
PRC admittedly relied exclusively on the Township's water supply
in its production process because its well was in disrepair. 5 It
also did not account for the amount of water PRC used from its
well, evaporation rates or increasing billing rates.
Following the bench trial, in a November 16, 2015 written
decision and accompanying order, the trial judge awarded final
judgment in favor of the Township and dismissed the complaint with
prejudice. Preliminarily, the judge noted that he "considered the
evidence presented by the parties including trial testimony,
5
Notably, the billing for this quarter reflected water
consumption totaling 2,240,000 gallons, which was approximately
the same amount as the challenged quarters.
11 A-2659-15T4
exhibits, proposed findings of facts, conclusions of law and
arguments of counsel."
In rejecting plaintiffs' claim that the Township breached the
implied covenant of good faith and fair dealing, the judge
determined that plaintiffs produced "no evidence that the Township
has acted in bad faith or with improper motive." Further, citing
Callano v. Oakwood Park Homes Corporation, 91 N.J. Super. 105
(App. Div. 1996), the judge determined that "[p]laintiffs'
assertion of breach of contract based on a valid contractual
relationship with the Township preclude[d] an equitable claim for
unjust enrichment." Regarding the negligence claim, the judge
concluded that plaintiffs "produced no evidence, expert or
otherwise, to support a claim sounding in negligence." The judge
rejected plaintiffs' "argument that [res ipsa loquitur] applie[d]"
because "the meters in question were not under exclusive possession
and control of the Township."
Turning to the breach of contract claim, the judge noted
there was no "dispute that a contractual relationship existed
between [the parties,]" in that "[t]he Township provided water and
sewer services and the [p]laintiffs paid for those [services]
based on the Township's billing." The judge also acknowledged the
existence of an implied contract between the parties for the
Township to provide and bill for sewer services "in accordance
12 A-2659-15T4
with [Wayne, N.J., Code § 159-18 (2013)]." According to the judge,
"[§] 159-18 requires that 'the user . . . supply the necessary
metering devices to measure the flow that enters the Township
system.'" Further, under Section 159-18B, "[w]here the water is
taken from a source other than the Township water system, such
source shall be metered by the user, and the quarterly sewer
[charge] will be based on the reading of that meter."
The judge continued that
[b]ased on Code 159-18, the [p]laintiffs as
"users" are obligated to supply the metering
devices on their premises. They are further
obligated to meter their well as a second
source of water on their premises.
Thus, [p]laintiffs' claims that the
Township breached its contract by supplying
defective or malfunctioning meters to
[p]laintiffs fails based upon Code 159-18
alone. It was not the Township's obligation
to supply the meters. More importantly,
however, is this [c]ourt's finding that
[p]laintiffs have produced absolutely no
evidence to show that any of the meters
malfunctioned or were defective in any way.
This [c]ourt was presented with no proof
of actual repairs or replacement of any of the
meters. Thus, what is left for the [c]ourt
to consider is whether the Township breached
its contract by improperly billing
[p]laintiffs for the water and sewer services
provided.
Initially, the judge determined that based on Vitz-Del Rio's
testimony, it was undisputed that the Township billings were based
13 A-2659-15T4
on "actual readings and not estimates." The judge also
acknowledged that "PRC's domestic use of water has remained
relatively constant over the years." The judge noted further that
plaintiffs' alleged breach of contract claim was "based entirely
on the actual bills and reports prepared by the Township" and the
billing analysis presented in P-1, which included seventy-six
quarterly bills dating back to 1995, seventy of which were
challenged by plaintiffs. The judge pointed out that plaintiffs
did not challenge the remaining six bills from April 6, 2013, to
January 13, 2015.
In addressing alleged billing inconsistencies, the judge
recounted Schlesinger's and Quint's testimony "alleg[ing] mistakes
in the billing."
For example, both reviewed an actual bill
generated for the fourth quarter of 2012
. . . . That bill listed the water consumption
at 2,325,000 gallons. When compared to the
Township's account report . . . , there was a
discrepancy since [the report] listed water
consumption at 200,000 gallons for the same
period. It is clear that these two documents
are inconsistent. However, it is not clear
that the actual bill . . . was incorrect. It
is certainly possible that the Township's
account report was incorrect. In fact, the
evidence produced in this case seems to
support the billing number (2,325,000
gallons).
Similarly, turning to the sewer charges, the judge explained:
14 A-2659-15T4
A review of P-1 . . . shows that the
$7,795.00 billed that quarter for sewer
charges was not inconsistent with the sewer
bills for previous quarters and in fact was
less than the sewer charges for five of the
previous eight quarters (10/15/2000 to
7/13/2012). Further the $12,984 billed that
same quarter for water was less than the water
charges for six of the previous eight
quarters.
Based on this analysis, the judge was "simply unable to conclude
from the highlighted billing inconsistencies that the plaintiffs[]
were in fact overcharged." Thus, the judge found that plaintiffs
"failed to establish a breach of contract by a preponderance of
the evidence submitted."
The judge continued that even if plaintiffs had proven a
cause of action, the claim would still fail because "[p]laintiffs
failed to adequately prove damages." According to the judge,
"[p]laintiffs produced no expert analysis regarding damages" but
instead, submitted Quint's "calculation of damages [using] a ratio
that he created using [plaintiffs'] own production numbers[,]"
which analysis admittedly omitted "the rate increases" prescribed
by the Township Ordinance and omitted plaintiffs' unmetered "well
water usage[.]" The judge found "Quint's analysis to be nothing
more than mere speculation" and concluded that "[t]he proofs [did]
not adequately explain how that ratio was developed" or "support
15 A-2659-15T4
his alleged correlation between production and [plaintiffs'] use
of Township water."
Additionally, the judge determined that "the damages sought
by [p]laintiffs would be significantly limited by the applicable
statute of limitations to those damages sustained after May 23,
2007[,] which [was] six years prior to the filing of the
[c]omplaint. . . ." According to the judge, because "damages for
a period beyond the six[-]year statute of limitations were not
presented 'on the face of the complaint,' . . . the Township's
failure to specifically assert a statute of limitations bar as a
defense [did] not act as a waiver at the time of trial" because
the Township pled "'failure to state a claim upon which relief can
be granted' as an affirmative defense." Finally, the judge noted
that plaintiffs' September 30, 2015 motion in limine "seeking an
order permitting the . . . admission into evidence [of] an
affirmation of . . . Quint" with an accompanying exhibit or "[i]n
the alternative . . . to re-open the trial[,]" was "improper as
it was made two months after the trial ended" and plaintiffs had
the opportunity to present the evidence at the trial.
Plaintiffs moved for reconsideration pursuant to Rule 4:49-
2, asserting that the court misinterpreted Section 159-18, and
overlooked evidence, specifically P-3 in evidence, which was
Quint's calculation of water for domestic use from a summary of
16 A-2659-15T4
bills from July 15, 2009 to July 13, 2015, with a breakdown of
water consumption for flow, production, boiler and domestic use.
On January 19, 2016, in an oral decision, the judge denied
plaintiffs' motion. The judge determined that he did, in fact,
review exhibit P-3, explaining,
I did not mention P-3 in my decision. I didn’t
mention a lot of specific documents. I do
mention in my opinion that I considered all
of the evidence that was marked at trial,
which included P-3 . . . .
[A]lthough I didn’t mention it, . . . the
information was reviewed, so there’s no need
for me to reconsider under [Rule] 4:49-2 based
upon P-3.
The judge reiterated that plaintiffs failed to meet their
burden of proof and again rejected plaintiffs' claim that proof
of billing inconsistencies indicated the Township overcharged PRC.
In addition, the judge specified that Section 159-18 had very
little effect in and of itself on his ultimate decision. According
to the judge:
[W]ith regard to the inconsistencies, . . .
[t]here were clearly some discrepancies when
you compared the bills to the [T]ownship
reports. . . . But . . . I . . . focused on
what was the total bill[.] What were the bills
for sewer and what were the bills for water
over this period of time and it was a
significant period of time, even if I were to
limit everything to the [s]tatute of
[l]imitation time period.
17 A-2659-15T4
And my decision was based upon all of
that review. . . . [P]laintiff[s] simply
didn't meet its burden with regard to a breach
of contract claim. . . . But I want to be
clear that this decision didn't turn on . . .
my reading of that ordinance.
[T]he ordinance . . . based upon my
interpretation, requires a meter for the well,
but that in and of itself really has very
little effect on my ultimate conclusion in the
case. Because this is about what was metered
and whether or not there was an appropriate
bill for those meters. . . .
[So] . . . [t]his really was . . . a defective
billing case . . . .
As to damages, the judge reiterated:
I [also] pointed out that since I didn't find
a breach of contract[,] I didn't have to get
to damages. But . . . even if I had found by
a preponderance of the evidence that [there]
was a breach, . . . I couldn't come up with a
firm amount on the damages.
Finally, regarding plaintiffs' in limine motion, the judge stated:
I didn’t think [the in limine motion] was
appropriate. But more importantly[,] it
didn't really change the evidence in the case.
I had P-1. . . . [T]his extra information
. . . that [plaintiffs' counsel] tried to
. . . bring after the trial was completed was
really just kind of . . . a further explanation
. . . of some of the evidence that I already
considered.
This appeal followed.
On appeal, plaintiffs raise the following points for our
consideration:
18 A-2659-15T4
POINT I6
THE COURT’S FINDING THAT ACTUAL DOMESTIC WATER
USAGE REMAINED CONSTANT SHOULD HAVE GENERATED
A FINDING THAT THE TOWN OVERBILLED PRC, AS THE
TOWNSHIP’S BILLING DATA SHOWED A MARKED
DECLINE IN DOMESTIC [CONSUMPTION] AFTER PRC
COMPLAINED OF OVERBILLING.
POINT II
THE COURT ERRED IN MISAPPLING A MUNICIPAL
ORDINANCE.
POINT III
THE COURT ERRED IN FAILING TO CONSIDER PRC’S
PROFFER OF DAMAGES.
POINT IV
THE COURT ERRED BELOW IN APPLYING THE STATUTE
OF LIMITATIONS WHEN THE TOWNSHIP WAIVED SUCH
AFFIRMATIVE DEFENSE.
POINT V
THE COURT ERRED BELOW IN FAILING TO CONSIDER
PRC’S SUBMISSION REGARDING TRUNCATED DAMAGES.
We have considered these arguments in light of the record and
applicable legal principles. We reject each of the points raised
and affirm.
Our review of a trial court's fact-finding in a non-jury case
is limited. Seidman v. Clifton Sav. Bank, S.L.A., 205 N.J. 150,
169 (2011). "The general rule is that findings by the trial court
6
We have condensed the points for clarity.
19 A-2659-15T4
are binding on appeal when supported by adequate, substantial,
credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998).
We owe "deference to those findings of the trial judge which are
substantially influenced by [the judge's] opportunity to hear and
see the witnesses and to have the 'feel' of the case, which a
reviewing court cannot enjoy." State v. Locurto, 157 N.J. 463,
471 (1999) (quoting State v. Johnson, 42 N.J. 146, 161 (1964)).
We "do not disturb the factual findings and legal conclusions of
the trial judge unless we are convinced that they are so manifestly
unsupported by or inconsistent with the competent, relevant and
reasonably credible evidence as to offend the interests of justice.
. . ." Rova Farms Resort, Inc. v. Inv'rs Ins. Co., 65 N.J. 474,
484 (1974) (quoting Fagliarone v. Twp. of N. Bergen, 78 N.J. Super.
154, 155 (App. Div. 1963)).
Similarly, our standard of review on a motion for
reconsideration is deferential. "Motions for reconsideration are
governed by Rule 4:49-2, which provides that the decision to grant
or deny a motion for reconsideration rests within the sound
discretion of the trial court." Pitney Bowes Bank, Inc. v. ABC
Caging Fulfillment, 440 N.J. Super. 378, 382 (App. Div. 2015).
"Reconsideration should be used only where '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
20 A-2659-15T4
not consider, or failed to appreciate the significance of
probative, competent evidence.'" Ibid. (alterations in original)
(quoting Capital Fin. Co. of Delaware Valley, Inc. v. Asterbadi,
398 N.J. Super. 299, 310 (App. Div. 2008)). "Thus, a trial court's
reconsideration decision will be left undisturbed unless it
represents a clear abuse of discretion." Ibid. An abuse of
discretion "arises when a decision is 'made without a rational
explanation, inexplicably departed from established policies, or
rested on an impermissible basis.'" Flagg v. Essex Cty. Prosecutor,
171 N.J. 561, 571 (2002) (quoting Achacoso-Sanchez v. Immigration
& Naturalization Serv., 779 F.2d 1260, 1265 (7th Cir. 1985)).
Plaintiffs' arguments on appeal are directed at the judge's
rejection of their breach of contract claim. In a claim for breach
of contract,
[o]ur law imposes on a plaintiff the burden
to prove four elements: first, that "[t]he
parties entered into a contract containing
certain terms"; second, that "plaintiff[s] did
what the contract required [them] to do";
third, that "defendant[s] did not do what the
contract required [them] to do[,]" defined as
a "breach of the contract"; and fourth, that
"defendant[s'] breach, or failure to do what
the contract required, caused a loss to the
plaintiff[s]."
[Globe Motor Co. v. Igdalev, 225 N.J. 469, 482
(2016) (alterations in original) (quoting
Model Jury Charge (Civil), § 4.10A "The
Contract Claim-Generally" (May 1998)).]
21 A-2659-15T4
Here, plaintiffs failed to carry their burden of proof to
establish all the elements of their cause of action. We are
satisfied that the judge's factual findings and legal conclusions
to that effect are supported by the record, and the judge's denial
of plaintiffs' motion for reconsideration reflects an appropriate
exercise of discretion.
Plaintiffs argue the trial judge did not "fully and
adequately" consider the data in P-3, which "clearly show[ed] that
domestic water usage decreased dramatically shortly after the
Township inspected its water meters and its billing in January
2013." According to plaintiffs, "[s]ince the change was not
accounted for by PRC's usage, it had to be the result of defective
meters or . . . billing errors." Additionally, plaintiffs assert
the judge failed to adequately consider the multiple
inconsistencies contained within the bills themselves.
Viewed through the lens of the deferential standard we accord
the judge's factual findings, we discern no basis for intervention.
In ruling on the motion for reconsideration, the judge confirmed
that he considered P-3. The judge also underscored that plaintiffs
produced no evidence demonstrating that any of the meters
malfunctioned or were defective. Additionally, while
acknowledging inconsistencies between the Township's billing
records and its internal reports, the judge was unable to conclude
22 A-2659-15T4
given the other evidence in the case that the billing
inconsistencies proved that the plaintiffs were overcharged.
Next, plaintiffs argue that the judge erred in applying
Section 159-18 "to dismiss PRC's claim that the Township supplied
defective or malfunctioning meters." According to plaintiffs,
because the Ordinance "pertains only to discharge of well water
to 'sewers,' and does not pertain to water supplied by the
Township[,]" the judge either misinterpreted the Ordinance "as
requiring a property owner to supply its own water meters" or
"failed to appreciate the significance of the probative evidence
that PRC's well water never entered the sewer system." We
disagree.
"The established rules of statutory construction govern the
interpretation of a municipal ordinance." Twp. of Pennsauken v.
Schad, 160 N.J. 156, 170 (1999). Therefore, courts interpret an
ordinance to "effectuate the legislative intent in light of the
language used and the objects sought to be achieved." Ibid.
(quoting Merin v. Maglaki, 126 N.J. 430, 435 (1992)). First,
courts examine the ordinance's language. Ibid. If it is clear
and unambiguous, a plain meaning reading of the ordinance governs.
Ibid. If it is susceptible to at least two different
interpretations, the court must look at extrinsic evidence such
as its purpose and legislative history and the overall statutory
23 A-2659-15T4
scheme. Ibid. "Above all, the [c]ourt must seek to effectuate
the 'fundamental purpose for which the legislation was enacted.'"
Ibid. (quoting N.J. Builders, Owners & Managers Ass'n v. Blair,
60 N.J. 330, 338 (1972)). We review questions of law such as
these de novo. Allstate Ins. Co. v. Northfield Med. Ctr., P.C.,
228 N.J. 596, 619 (2017).
Section 159-18 governs the Township's sewer rental fees for
commercial and industrial properties and provides that:
The user will supply the necessary metering
devices to measure the flow that enters the
Township system. Where the water is taken
from a source other than the Township water
system, such source shall be metered by the
user, and the quarterly sewer charge will be
based on the reading of that meter.
We agree with the judge's interpretation of the Ordinance.
Contrary to plaintiffs' assertion, the ordinance does not qualify
"necessary metering devices" by stating that users must provide
only discharge meters or only provide a meter if they anticipate
water entering the sewer system. Rather, the ordinance expressly
states that metering devices are required to measure the flow into
the sewer system – not if the water flows into the sewer system.
(Emphasis added). Otherwise, the Township would have no way to
verify sewer rental fees other than by relying on a customer's
claims.
24 A-2659-15T4
Furthermore, the ordinance specifies that users "will supply"
the necessary metering devices, and requires the user to supply
the meter "[w]here the water is taken from a source other than the
Township water system[.]" Thus, the ordinance requires that
plaintiffs, as the potential users of the sewer system, supply any
meters necessary to measure the flow of water into the sewer
system, regardless of the amount or the source. In any event, the
judge's finding was predominantly based on plaintiffs producing
"no evidence to show that any of the meters malfunctioned or were
defective in any way[,]" more so than the application of the
ordinance.
Plaintiffs' remaining arguments attack the judge's findings
with respect to damages. However, because we conclude that
plaintiffs failed to establish the requisite breach of the
contract, we need not address plaintiffs' remaining arguments.
Affirmed.
25 A-2659-15T4
HAUL ROAD HOLDINGS, INC. VS. TOWNSHIP OF WAYNE (L-1866-13, PASSAIC COUNTY AND STATEWIDE)
Combined Opinion