ANWAR QARMOUT AND KENNETH ELLMAN v. RICH CONSTRUCTION CO., INC., et al.



NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1126-05T11126-05T1

ANWAR QARMOUT AND KENNETH

ELLMAN,

Plaintiffs-Appellants,

v.

RICH CONSTRUCTION CO., INC., a

corporation formed under the laws

of Pennsylvania and operating in

the State of New Jersey and

ROOSEVELT REBIMBAS, SR., RICHARD N.

DISTLER, BRUNO L. CAVALLO and LAURIE A.

LIGHTKEP, Individually and as

corporate officers or employees of Rich

Construction Co. Inc.,

Defendants,

and

THE TOWN OF NEWTON, CAMILLE FURGIUELE

and DEBRA LOCKWOOD in her/their official

and individual capacity,

Defendants-Respondents.

________________________________________________________________


Submitted January 9, 2007 - Decided March 5, 2007

Before Judges Lisa and Grall.

On appeal from the Superior Court of New Jersey, Law Division, Sussex County, L-513-99.

Anwar Qarmout and Kenneth Ellman, appellants pro se.

Gebhardt & Kiefer, attorneys for respondents (William J. Rudnik, on the brief).

PER CURIAM

Plaintiffs, owners of a vacant lot in the Town of Newton, brought this action against various parties seeking damages resulting from the illegal dumping of solid waste on their property. The party that actually dumped the waste, Rich Construction Co., Inc. (Rich), defaulted, and, after a proof hearing, plaintiff obtained a substantial monetary judgment for compensatory and punitive damages against Rich and several of its officers. According to plaintiffs, that judgment is uncollectible. The trial judge granted summary judgment dismissing the complaint as to defendants, Town of Newton, its zoning officer, Debra Lockwood, and its town manager, Camille Furgiuele. Plaintiffs appeal from that order, entered on March 10, 2005. Plaintiffs also appeal from an order entered on November 22, 2002 denying their motion to file a second amended complaint. Upon our review of the record, we find no error in either of the orders appealed from, and we affirm.

On May 26, 1998, Newton entered into a contract with Rich for the construction of a water distribution system improvement. Rich then entered into an oral agreement with plaintiff, Anwar Qarmout, to dump clean "fill" on plaintiffs' property. This would render the property more suitable for development by filling a low area.

Over the next several months, Rich proceeded to dump substantial quantities of fill material on plaintiffs' property. The material included construction debris, such as asphalt, water valves, pipes, concrete, tree stumps, and the like. However, after loads were dumped, Rich apparently excavated in a manner to bury the debris items and make it appear from the surface that the material was clean. Qarmout has a business near the property and passed the property on a daily basis. He contends he was not aware that there was any debris being dumped. There was no evidence in this record to support plaintiffs' allegation that any town officials were aware that construction debris was being dumped on plaintiffs' property.

The contract between Rich and Newton required Rich to dispose of all materials from the project in compliance with State law at an authorized disposal site. Newton officials, including its engineer, Harold Pellow, did not monitor Rich's compliance with that obligation.

On October 26, 1998, after completion of all of the dumping, Lockwood was advised that a complaint had been received by Furgiuele concerning "debris" on plaintiffs' property. Lockwood contacted Newton's construction official, who advised her to refer the complaint to the Sussex County Department of Health (Department of Health), which she did. The Department of Health immediately sent a registered environmental specialist, Steven Stiansen, to inspect the property. On October 27, 1998, Stiansen issued a letter to Qarmout directing that he must remove all solid waste. Over the ensuing months, some of the materials were removed, and Stiansen monitored the progress of the removal. By July 1999, disagreements arose between Qarmout and Stiansen regarding completion of the removal process. The Department of Health assigned Environmental Health Specialists Michael Plaza and Joan Skillen to take over the project in lieu of Stiansen.

On September 8, 1999, Plaza and Skillen set a deadline of October 1, 1999 for completion of removal. On December 21, 1999, Stiansen issued a report, indicating that not all of the solid waste found on the property came from Rich Construction. Some of the materials were apparently deposited by another party, with no connection to Newton, solicited by plaintiffs.

On October 8, 1999, Skillen signed a municipal complaint against Qarmout for failure to comply with the October 1, 1999 deadline. The complaint was eventually dismissed, upon Qarmout's acknowledgement that probable cause existed for its initial issuance.

In December 1998, Qarmout contacted the New Jersey Department of Environmental Protection (DEP). On January 6, 1999, the DEP responded, stating it would endeavor to identify and investigate any haulers who dumped materials on the property. The DEP affirmed, however, that responsibility for clean up remained with plaintiffs, in accordance with the schedule imposed by the Department of Health. On July 23, 1999, the DEP again wrote to Qarmout advising that its investigation revealed that Rich had dumped solid waste on the property and, although enforcement action might be taken against Rich, plaintiffs remained responsible for removal of the solid waste. On December 14, 1999, the DEP again corresponded with Qarmout, acknowledging that it would take enforcement action against all those responsible for the dumping, but again advising that its investigation was not intended to interfere with any enforcement action initiated by the Department of Health.

Plaintiffs filed their first amended complaint on February 7, 2000. They asserted seven claims against Rich and its officers; Newton, Furgiuele and Lockwood; and Jane and John Doe, fictitious parties affiliated with Rich and Newton. The claims can be described as follows: (1) injunctive relief; (2) nuisance, trespass, negligence and gross negligence; (3) intentional fraud and false representation; (4) intentional fraudulent release and misrepresentations; (5) ongoing fraud and intentional injury; (6) slander, libel and defamation, and slander and defamation per se; and (7) civil rights violations, malicious prosecution, and abuse of process.

On April 30, 2001, the parties entered into a consent order by which Newton would remove the remaining debris, which was piled up on the property and adversely affecting "innocent neighbors." Newton would pay for the removal, without prejudice, "subject to apportionment in later proceedings in this action among those parties held to be responsible for removal of the debris." The debris was removed in September 2001. Plaintiffs were never required to reimburse Newton, which later recovered its outlay from Rich's bonding company.

By direction of the court in an order of August 10, 2001, plaintiffs were required to file an amendment to count six of the complaint to set forth with more specificity the nature of the allegations of defamation. Plaintiffs filed an amended complaint, dated September 17, 2001. However, it exceeded the scope of what was ordered. It included new parties, a jury demand, and additions to other counts of the complaint. By order of November 22, 2002, the judge denied plaintiffs' motion to authorize its second amended complaint. The order was supported by a two-page statement of reasons.

On January 23, 2003, after substantial discovery had transpired, including several lengthy depositions by plaintiffs, summary judgment motions were filed by Newton, Furgiuele and Lockwood. Oral argument was heard, and on March 10, 2005, Judge Russell granted summary judgment in favor of all three defendants by her order of March 10, 2005. The order also denied plaintiffs' cross-motion which sought time to file additional responsive papers, sought leave to conduct additional depositions, and requested sanctions of defendants' counsel and defendants for allegedly knowingly giving false statements to the court. The judge appended a twenty-page written statement of reasons to the order.

After dismissal of the claims against Newton, Furgiuele and Lockwood, the judge conducted a proof hearing on June 23 and 24, 2005 pertaining to Rich and its officers. On September 20, 2005, the judge entered final judgment in favor of plaintiffs against Rich and its four officers in the amount of $204,332.94, plus punitive damages of $100,000 against Rich and $50,000 each against the four officers. This appeal followed.

Plaintiffs argue that they had a right to amend their complaint and that summary judgment in favor of these defendants was erroneously granted. In essence, plaintiffs' assertion in this case is that Newton and its officers conspired to save money on the water distribution system improvement project by having Rich dump solid waste on plaintiffs' property. Plaintiffs further assert that to cover up the initial conspiracy, defendants instigated a non-meritorious charge brought by the Department of Health against Qarmout, and intentionally interfered with the independent investigation of the Department of Health and the DEP. Plaintiffs claim that Newton had a duty to supervise and prevent Rich from its illegal dumping and Newton and its officials should be liable for the actions of its contractor, Rich. Plaintiffs further contend that certain comments about plaintiffs purportedly made by Furgiuele, as reported in a local newspaper, were defamatory.

In her thorough written statement of reasons in support of her March 10, 2005 summary judgment order, Judge Russell rejected these contentions. She found the record devoid of any evidence that defendants instigated the prosecution in municipal court by the Department of Health or interfered with the DEP. She further found that the comments attributed to Furgiuele were not defamatory and, further, they were protected by qualified immunity. The judge found no factual support in the record that the town dumped the materials on plaintiffs' property, as plaintiffs alleged, or that town officials knew or should have known that Rich dumped the materials there. The record supports the judge's factual finding that the earliest evidence of any knowledge on the part of Newton that any materials had been dumped on plaintiffs' property was when Lockwood received the initial complaint on October 26, 1998, after all of the dumping had occurred.

With respect to the order denying plaintiffs' leave to file a second amended complaint, the judge found that the parties sought to be added were in violation of the fictitious practice rule, see R. 4:26-4, because the new parties were not agents, officers or employees of Rich or Newton. To the extent that one of the proposed new parties, Pellow, although an independent contractor, could be deemed an officer or employee (engineer) of Newton, his identity was known to plaintiffs for several years and he could not be added by way of fictitious name practice after expiration of the statute of limitations.

We are satisfied that, viewing the facts most favorably to plaintiffs, see Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995), plaintiffs' complaint against these defendants was properly dismissed. We affirm the summary judgment order of March 10, 2005 substantially for the reasons expressed by Judge Russell in her comprehensive statement of reasons attached to the order. We are further satisfied that the judge correctly applied the principles of fictitious name practice in denying plaintiffs' motion to file a second amended complaint, and we affirm her order of November 22, 2002 substantially for the reasons set forth in her attached statement of reasons. The arguments raised by plaintiffs on appeal do not warrant further discussion. R. 2:11-3(e)(1)(E).

Affirmed.



The initial complaint was filed on June 21, 1999.

(continued)

(continued)

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A-1126-05T1

March 5, 2007