                NOT FOR PUBLICATION WITHOUT THE
               APPROVAL OF THE APPELLATE DIVISION

                                  SUPERIOR COURT OF NEW JERSEY
                                  APPELLATE DIVISION
                                  DOCKET NO. A-5422-12T3

HERBERT WREDEN and KAREN
WREDEN,

         Plaintiffs-Appellants,          APPROVED FOR PUBLICATION

                                              June 17, 2014
v.
                                           APPELLATE DIVISION

TOWNSHIP OF LAFAYETTE,

         Defendant-Respondent,

and

SNOOK'S EXCAVATING, INC., and
FINELLI CONSULTING ENGINEERS, INC.,

          Defendants.
______________________________________

         Argued June 4, 2014 – Decided June 17, 2014

         Before Judges Fuentes, Fasciale and Haas.

         On appeal from the Superior Court of New
         Jersey, Law Division, Sussex County, Docket
         No. L-460-11.

         Lisa Nichole Roskos argued the cause for
         appellants (Andrew M. Wubbenhorst, LLC,
         attorneys; Ms. Roskos, on the briefs).

         Roy   E.   Kurnos   argued   the  cause         for
         respondent    (Belsole   and   Kurnos,         LLC,
         attorneys; Mr. Kurnos, on the brief).

         The opinion of the court was delivered by

HAAS, J.A.D.
    Plaintiffs      appeal   from     a    February   8,    2012    Law    Division

order dismissing their complaint against defendant Township of

Lafayette (the Township), and the court's April 23, 2012 order

denying their motion to amend their complaint to add an inverse

condemnation claim against the Township.              We reverse and remand.

    We discern the following facts from the face of plaintiffs'

June 28, 2011 complaint, giving plaintiffs the benefit of all

reasonable    factual     inferences.         Printing     Mart-Morristown        v.

Sharp Elecs. Corp., 116 N.J. 739, 746 (1989).                      Plaintiffs own

property in the Township, where they maintain their home, and a

"horse barn and fields for grazing and other uses relating to

the boarding of horses."        In 2007, the Township contracted with

defendants    Finelli     Consulting       Engineers,      Inc.    (Finelli)     and

Snook's Excavating, Inc. (Snook's) "to design and construct a

retaining    wall   and    provide        water   drainage      along     [a   road]

adjacent to Plaintiffs' property."            Plaintiffs alleged

            [t]he storm water drainage from the roadway
            and adjacent properties was designed in such
            a way as to direct water to come onto
            Plaintiffs'   property,    causing    flooding
            conditions   about   Plaintiffs'    land   and
            structures, onto Plaintiffs' septic field,
            and in such a manner so as to cause damage
            to   Plaintiffs'    property    and    inhibit
            Plaintiffs' use of same.

Plaintiffs    asserted       "[t]he       retaining      wall      designed      and

constructed by Defendants was defectively engineered and built,




                                          2                                A-5422-12T3
lacked   appropriate   foundation       and   support,   [and]   included

defective materials and workmanship."

    On January 28, 2008, plaintiffs served a Notice of Tort

Claim upon the Township.   In pertinent part, the notice stated:

          C.   The date, place and other circumstances
          of the occurrence which gave rise to the
          claim asserted is that the Township of
          Lafayette   Road   Department   on  or  about
          November 12, 2007 undertook the construction
          of a retaining wall and drainage structures
          within the right of way of [a road],
          adjacent to the Claimant's property . . .,
          which increase the volume of stormwater
          runoff    and    further    concentrate   and
          accelerate the flow of stormwater runoff
          from [the road] onto the Claimant's property
          without the benefit of an easement or legal
          right to so discharge stormwater runoff onto
          the Claimant's property.

          D.   A general description of the injury,
          damage or loss incurred so far is the
          unauthorized diversion of stormwater runoff
          by means of drainage structures onto the
          Claimant's   property    causing  stormwater
          related damage and flooding of Claimant's
          property and attendant loss of property
          value due to the highly unsightly structures
          constructed by the Township.

               . . . .

          F.   The amount of the claim as of the date
          of this Notice is unknown, however, the
          claim is for a continuing trespass on
          Claimant's property and damage to Claimant's
          property   by  the   unlawful  diversion  of
          stormwater    runoff    as    described   in
          Subparagraphs C and D above.

          [(Emphasis added).]




                                    3                            A-5422-12T3
    In     2009,    the    retaining      wall    "collapsed         onto   Plaintiffs'

property     sending      large     blocks       of   concrete         tumbling        onto

Plaintiffs' property and causing an unstable and unsafe roadway

frontage . . . in front of Plaintiffs' property."                            Plaintiffs

alleged "[t]he conditions caused by Defendants' actions and/or

omissions    continue[]      to    the    present,       including     the    collapsed

wall onto [their] property, continued runoff and discharge of

water from [the road] onto Plaintiffs' property resulting in

flooding     and    interference          with    Plaintiffs'         use     of      their

property."

    On June 28, 2011, plaintiffs filed their original four-

count   complaint        against    the    Township,       Finelli      and    Snook's.

Plaintiffs    sought      compensatory         damages    and    injunctive         relief

relating to the alleged damage to their property due to the

construction and collapse of the retaining wall, as well as

damage from the Township's drainage systems that directed water

onto their property.

    Finelli        and    Snook's    filed       answers        to    the    complaint.

However, the Township responded by filing a motion to dismiss

the complaint for failure to state a cause of action pursuant to

Rule 4:6-2(e).           The Township submitted two certifications in

support of its motion.             A Township Committee member certified

that he authorized Finelli, the Township's engineer, "to develop




                                           4                                       A-5422-12T3
plans to stabilize" the road adjacent to plaintiffs' property,

and   that   he    later       met    with     Finelli         and    Snook's    "to   discuss

proposed drainage improvements to" the roadway.                                 The Committee

member     stated       he     reported        his       "findings       and     discussions"

concerning the project to the Township Committee and that, "with

the full authority of the Township Committee[,]" he approved the

plan prepared by Finelli for construction of the project.                                    The

second certification was prepared by the Township Clerk, who

stated that plaintiffs' January 28, 2008 notice of tort claim

was the only such notice they submitted.                            Plaintiffs opposed the

Township's motion.

      After hearing oral argument, the judge entered an order on

February 8, 2012 granting the Township's motion and dismissing

plaintiffs' claims against the Township.                               In an accompanying

written      statement         of      reasons,          the    judge     summarized         the

allegations       set        forth     in     plaintiffs'            complaint,     but     also

reviewed the certifications submitted by the Township.

      Although      the        judge        acknowledged         that     plaintiffs        were

alleging     a    continuing         tort     by    the    Township,       he    stated     that

"[t]he    Court     makes       no    determination            on    whether     the   actions

complained of by the Plaintiffs constitute a continuing tort."

Thus, the judge made no findings of fact concerning whether

defendants'       actions       constituted          a    continuing       tort,       or   when




                                                5                                      A-5422-12T3
plaintiffs' cause of action for their alleged continuing tort

accrued.

    Instead,        the    judge    noted       that,    under   N.J.S.A.     59:8-8b,

claims against a public entity are barred if the plaintiff has

not "file[d] suit in an appropriate court of law" and "[t]wo

years have elapsed since the accrual of the claim[.]"                       The judge

focused solely on the date plaintiffs filed their notice of

claim, January 28, 2008, and found that, because plaintiffs did

not file their complaint until over three years later on June

28, 2011, "any claims which the Plaintiffs could have brought

under the 2008 Notice have since expired."

    At the same time, the judge's opinion states that "any tort

claims accruing against [the Township] prior to June [28], 2009

[are]   barred      by    N.J.S.A.    []59:8-8b         and    must   be   dismissed."

Thus,   it    appears      the     judge    intended      that    plaintiffs       could

proceed with any claims against the Township that arose during

the two-year period preceding the filing of their complaint on

June 28, 2011.           However, the judge did not address plaintiffs'

contention        that   they    suffered       damage    to   their   property      and

septic field from the continuous flooding caused by the project

during this period. Instead, the judge focused solely upon the

collapse     of    the    retaining   wall       in   2009.      Stating    that    this

incident constituted "a new tort" and required the filing of "a




                                            6                                 A-5422-12T3
new notice" of tort claim, the judge ruled that plaintiffs were

barred from seeking damages for this incident under N.J.S.A.

59:8-8a because they did not file such a notice within ninety

days of the wall's collapse onto their property.

      Relying upon the Township Committee member's certification

concerning the approval of the design plan for the project, the

judge   also    found     that    the   Township        was    entitled       to   plan    or

design immunity under N.J.S.A. 59:4-6.

      Plaintiffs'        litigation      continued            against     Finelli         and

Snook's.       During the course of discovery, plaintiffs learned

that a portion of the retaining wall and drainage system had

actually been constructed on their property.                         Thus, plaintiffs

filed a motion to file an amended complaint.                        In count five of

the   amended      complaint,     plaintiffs           asserted    that   Finelli         and

Snook's "entered onto [their] property without authorization" in

order to construct the project.                  In count six, plaintiffs raised

an inverse condemnation claim against the Township.

      In an April 23, 2012 order, the judge granted plaintiffs'

motion to file an amended complaint against Finelli and Snook's,

but   denied       the   motion   as    to       the   Township.         In    a   written

statement of reasons, the judge stated that the February 8, 2012

order   was    a    "final   judgment"       in    favor      of   the   Township;        the

inverse condemnation claim raised by plaintiffs arose "out of




                                             7                                     A-5422-12T3
the same series of events addressed in" that order; and the

Township   had    been   "provid[ed]   .     .   .    with   an   expectation     of

finality."       Therefore,    the   judge       concluded     that   plaintiffs'

motion to amend their complaint as to the Township was barred by

the entire controversy doctrine.1           This appeal followed.

      On appeal, plaintiffs contend the judge erred in finding

that (1) their claims against the Township for a continuing tort

were barred by N.J.S.A. 59:8-8b; (2) they were required to file

a new notice of tort claim in order to seek damages for the

collapse of the retaining wall onto their property; (3) the

Township was entitled to plan or design immunity under N.J.S.A.

59:4-6; and (4) their inverse condemnation claim was barred by

the   entire     controversy    doctrine.            We   agree   with   each    of

plaintiffs' contentions.

      We review a grant of a motion to dismiss a complaint for

failure to state a cause of action de novo, applying the same

standard under Rule 4:6-2(e) that governed the motion court.

See Frederick v. Smith, 416 N.J. Super. 594, 597 (App. Div.

2010),   certif.    denied,    205   N.J.    317     (2011).      A   trial   court

should grant the dismissal "in only the rarest of instances."

Printing Mart-Morristown, supra, 116 N.J. at 772.                     Such review

1
  Plaintiffs settled their claims against Finelli and Snook's and
a final order of disposition dismissing the matter was filed on
June 12, 2013.



                                       8                                  A-5422-12T3
"is limited to examining the legal sufficiency of the facts

alleged on the face of the complaint[,]" and, in determining

whether dismissal under Rule 4:6-2(e) is warranted, the court

should   not    concern   itself    with      plaintiffs'    ability    to    prove

their allegations.        Id. at 746.        If "the fundament of a cause of

action may be gleaned even from an obscure statement of claim,"

then the complaint should survive this preliminary stage.                     Craig

v. Suburban Cablevision, Inc., 140 N.J. 623, 626 (1995).                       "The

examination of a complaint's allegations of fact required by the

aforestated principles should be one that is at once painstaking

and   undertaken     with    a    generous      and   hospitable       approach."

Printing Mart-Morristown, supra, 116 N.J. at 746.

      Applying these principles to the present case, we conclude

the judge erred in finding that plaintiffs' complaint was barred

by the two-year statute of limitations set forth in N.J.S.A.

59:8-8b.       Plaintiffs clearly alleged a continuing tort on the

part of the Township.         Yet, the judge specifically declined to

make any "determination on whether the actions complained of by

the   Plaintiffs    constitute      a   continuing    tort."     As     discussed

below, such a determination was absolutely critical to a proper

resolution of this matter.

      The   "continuing      tort       doctrine,"    also     known     as    the

"continuing      violation       doctrine,"      provides      that     when    an




                                         9                               A-5422-12T3
individual is subjected to a "continual, cumulative pattern of

tortious conduct," the statute of limitations period begins only

when the wrongful action ceases.             Wilson v. Wal-Mart Stores, 158

N.J. 263, 272 (1999).           When a court finds that a continuing

nuisance has been committed, the new tort is an "alleged present

failure"   to    remove   the   nuisance,      and   "[s]ince   this   failure

occurs each day that [defendant] does not act, the [defendant's]

alleged tortious inaction constitutes a continuous nuisance for

which a cause of action accrues anew each day."             Rapf v. Suffolk

Cnty., 755 F.2d 282, 292 (2d Cir. 1985).               "Essentially, courts

in those cases impose a duty on the defendant to remove the

nuisance."      Russo Farms, Inc. v. Vineland Bd. of Educ., 144 N.J.

84, 100 (1996).

      In the present case, plaintiffs rely substantially on Russo

Farms, where the Court applied the continuing nuisance doctrine

to preclude a statute of limitations defense.               Id. at 104-05.

In that case, a group of landowners sought to recover damages

caused by flooding from the grounds of a nearby public school.

Id. at 92-93.       The Court held that the flooding of real property

is a physical invasion which ordinarily sounds in trespass, and

"is also a nuisance if it is repeated or of long duration."                  Id.

at   99.     When   a   court   finds    the   existence   of   a   continuing

nuisance, "it implicitly holds that the defendant is committing




                                        10                             A-5422-12T3
a new tort, including a new breach of duty, each day, triggering

a new statute of limitations."             Ibid.

       As   the    Court     explained      in     Russo    Farms,      whether    the

continuing tort doctrine applies directly affects the two-year

statute of limitations for filing an action against a public

entity under N.J.S.A. 59:8-8b.                  Id. at 106-07.       In that case,

the plaintiffs filed a notice of tort claim against the public

entity on August 24, 1987, but did not file their complaint

until July 18, 1990.             Id. at 106.       Because the continuing tort

doctrine     applied,      the     Court   found     that    only    those    claims

mentioned in the notice of claim that had accrued against the

public entity prior to July 18, 1988, the first day of the two-

year   period      that    ran    before   the     filing    of   the    plaintiffs'

complaint, would be barred under N.J.S.A. 59:8-8b.                      Id. at 107.

However, the claims that continuously accrued each day during

that two-year period could proceed.                Ibid.

       In the present case, the judge made no determination as to

the applicability of the continuing tort doctrine, even though

that   theory     provided       the   underpinning    for    plaintiffs'     entire

complaint.        Instead, he mistakenly found that because more than

two years had passed since the filing of plaintiffs' notice of

tort claim on January 28, 2008, all of the claims set forth in

the    notice,     including      the    continuing    torts      plainly    alleged




                                           11                                A-5422-12T3
therein, had "expired."                 Contrary to the judge's ruling, the

date on which a notice of claim is filed does not mark the

accrual date for a cause of action in a continuing tort case.

Kolczycki v. City of E. Orange, 317 N.J. Super. 505, 519 (App.

Div. 1999) (citing Russo Farms, supra, 144 N.J. at 106-07).

Indeed, in Russo Farms, the Court permitted the plaintiffs to

proceed with their claims against the public entity for damages

sustained during the two-year period preceding the filing of

their complaint, even though their notice of tort claim had been

filed almost three years before their complaint.                       Russo Farms,

supra, 144 N.J. at 106-07.                Because the judge did not address

the applicability of the continuing tort doctrine in this case

or    its    impact    on   the   accrual       date   of   plaintiffs'   cause   of

action, we are constrained to reverse and remand for further

proceedings.          We direct the judge to make detailed findings of

fact and conclusions of law concerning the date of accrual of

plaintiffs' claims and the applicability of the continuing tort

doctrine in any future motion involving N.J.S.A. 59:8-8b.

       We also disagree with the judge's conclusion that, even if

plaintiffs were able to assert claims against the Township for

the two-year period prior to the filing of their complaint on

June 28, 2011, the only tort that occurred during that period

was    the    collapse      of    the    retaining     wall.     The    judge   also




                                           12                              A-5422-12T3
mistakenly     ruled        that,    because       plaintiffs        failed       to    file     a

second notice of claim for this "new tort" within ninety days of

the   wall's      collapse,         plaintiffs'         claims      concerning         it    were

barred by N.J.S.A. 59:8-8a.

      Plaintiffs        alleged      in   their     complaint        that   the        flooding

caused by the project continued throughout the entire two-year

period prior to the filing of their complaint, independent of

the wall's collapse sometime in 2009.                          Thus, contrary to the

judge's conclusion, plaintiffs' claims during this period were

certainly not limited to the collapse of the retaining wall.

      Moreover,         a    new     notice        of     claim     was     not        required

specifically for the wall collapse.                        As the Court observed in

Beauchamp    v.    Amedio,         "the   'notice        of   claim'      referred          to   in

N.J.S.A. 59:8-8 is really a misnomer.                      A person need not have or

even contemplate filing a claim in order to trigger the notice

provision.        It    is    more    properly          denominated    as     a    notice        of

injury or loss."            Beauchamp v. Amedio, 164 N.J. 111, 121 (2000).

Plaintiffs' January 28, 2008 notice of claim clearly advised the

Township that they were alleging damages due to the flooding

caused by "the construction of a retaining wall and drainage

structures"       adjacent          to    their          property.          Under           these

circumstances, the eventual collapse of the wall was merely a

continuation       of       the   tort    plaintiffs          had   already       described,




                                              13                                       A-5422-12T3
rather than "a new tort" that needed to be raised independently.

Therefore, we conclude the judge erred by barring plaintiffs

from seeking damages caused by the wall's collapse during the

two-year period prior to the filing of their complaint.

      We      also   agree     with     plaintiffs'     argument     that      the   judge

erred    in     finding    that       the   Township   was    entitled      to    plan   or

design immunity under N.J.S.A. 59:4-6.                   In making this finding,

the     judge     relied       upon     the    certification        of   the     Township

Committee member concerning his approval of Finelli's plans for

the project.         However, on a motion to dismiss under Rule 4:6-

2(e), a judge is not permitted to look outside of the parties'

pleadings.       If a judge relies on matters outside the pleadings,

a Rule 4:6-2(e) motion is automatically converted into a Rule

4:46 summary judgment motion.                 Pressler & Verniero, Current N.J.

Court Rules, comment 4.1.2. on R. 4:6-2 (2014); see also Roa v.

Roa, 200 N.J. 555, 562 (2010).                      The judge did not, however,

grant the Township summary judgment.                    Rather, he dismissed the

complaint for failure to state a claim upon which relief can be

granted.         Thus,    we    reverse       the   judge's   conclusion         that    the

Township was entitled to plan or design immunity at this point

in the proceedings.2


2
   Discovery had not been completed                     at    the    time      the   judge
considered the Township's motion.



                                              14                                  A-5422-12T3
       Finally,       we    conclude      the    judge          mistakenly     exercised      his

discretion       in        denying    plaintiffs'               motion    to    amend      their

complaint to include an inverse condemnation claim against the

Township.       The judge found that this new allegation was barred

by the entire controversy doctrine.                        We disagree.

       The entire controversy doctrine

              requires a litigant to present all aspects
              of a controversy in one legal proceeding.
              It is intended to be applied to prevent a
              party from voluntarily electing to hold back
              a related component of the controversy in
              the first proceeding by precluding it from
              being raised in a subsequent proceeding
              thereafter.

              [Hobart Bros. Co. v. Nat'l Union Fire Ins.
              Co., 354 N.J. Super. 229, 240-41 (App. Div.)
              (citations and internal quotation marks
              omitted), certif. denied, 175 N.J. 170
              (2002).]

This doctrine does not support the denial of plaintiffs' motion

to amend their complaint.              At the time the motion was filed, the

matter    was     not       final    as    to        all    parties      and    all     issues.

Plaintiffs'       claims        against         Finelli           and    Snook's      remained

unresolved.       Thus, contrary to the judge's finding, no "final

judgment" had been entered.                Therefore, in order to comply with

the    entire    controversy         doctrine,         plaintiffs        were   required       to

seek     to     amend       their    complaint             to     add    the    new     inverse

condemnation claim against the Township after its existence was

revealed during discovery in the still-ongoing litigation.                                     If



                                                15                                      A-5422-12T3
plaintiffs had not done so, the doctrine would have barred them

from   raising   it   in   a   subsequent   proceeding.   Therefore,   on

remand the plaintiffs shall be given the opportunity to file

their amended complaint against the Township.

       Reversed and remanded for further proceedings consistent

with this opinion.     We do not retain jurisdiction.




                                     16                         A-5422-12T3
