KIEJDAN FAMILY, LLC v. BOROUGH OF WOODBINE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

KIEJDAN FAMILY, LLC,

Plaintiff-Respondent,

v.

BOROUGH OF WOODBINE,

Defendant-Appellant.

__________________________________

May 26, 2015

Submitted September 9, 2014 Decided

Before Judges Nugent and Manahan.

On appeal from Superior Court of New Jersey, Law Division, Cape May County, Docket No. L-312-10.

Richard P. Tonetta, attorney for appellant.

David A. Spitalnick, attorney for respondent.

PER CURIAM

Defendant Borough of Woodbine appeals from two trial court orders, one denying its summary judgment motion, the other entering judgment following a non-jury trial, based on N.J.S.A. 40:66-1.3(a). The statute requires a municipality that provides solid waste collection services to its residents to reimburse multifamily dwellings for the cost of providing such service, up to the amount the municipality would have expended had it provided such services directly to the multifamily dwelling. As an alternative to reimbursement, the statute permits a municipality to provide solid waste collection services to multifamily dwellings in the same manner as provided to the residents who live along public roads and streets.

Plaintiff owns a multifamily apartment complex in the Borough.1 The Borough denied plaintiff the statutory reimbursement, asserting that it would pick up solid waste at plaintiff's apartment complex provided residents placed their trash at "curbside," a task plaintiff claimed was impractical and inimical to the public health. After a two-day trial, the trial court entered judgment in favor of plaintiff. The Borough appealed. We affirm.

The procedural history of this case is undisputed. In March 2010, Kiejdan Family, LLC, the owner of several apartment complexes, filed a two-count "collection" complaint against defendant, Borough of Woodbine, and the Borough of Somerdale seeking reimbursement for solid waste removal at multifamily dwellings in those municipalities. Because venue was improperly laid in Atlantic County, Kiejdan refiled its action against the Borough of Woodbine in Cape May County.2 The Borough answered. Following amendments to the pleadings, discovery and other proceedings not now in dispute, the Borough moved for summary judgment, claiming the complaint was untimely filed and barred by the equitable doctrine of laches. The trial court denied the Borough's motion in part and granted it in part, limiting damages to those accruing after December 20, 2007.3 Following a two-day non-jury trial, the court found in favor of plaintiff and entered a judgment of $55,709.70 "for the collection of solid waste for the years 2008 through and including 2012."

The parties' proofs at trial centered around the Borough of Woodbine's ordinance concerning collection of solid waste and the statute previously mentioned, N.J.S.A. 40:66-1.3. The Borough's code defined the term "refuse" to include household waste. The code required residents to "set out" refuse for collection on the day scheduled for such collection or the evening before. Receptacles "for use by a single person or family unit" were required to have a capacity not to exceed thirty gallons, be watertight and leakproof, be constructed of metal or plastic, and be equipped with a pull handle and tight-fitting lid. Trash bags were permitted "provided that the same are placed curbside not sooner than 6:00 a.m. on the day of collection." The code also provided that receptacles "for refuse from multiple dwelling units may have a greater capacity than that prescribed [for use by a single family unit] provided that that they are leakproof, constructed of metal or plastic, equipped for being handled by motorized equipment, [and] cleaned and sanitized as needed after emptying."

The statute, N.J.S.A. 40:66-1.3(a) states

Except as otherwise provided in subsection b. of this section, when solid waste collection services are provided to the residents of a municipality, the governing body of that municipality shall reimburse a multifamily dwelling for the actual cost to the multifamily dwelling of providing that service, but not more than the amount that the municipality would have expended on the solid waste collection services if provided by the municipality directly to the multifamily dwelling, calculated as if the dwelling units were located along public roads and streets and the service provided curbside. Alternatively, when solid waste collection services are provided to the residents of a municipality, the governing body of the municipality shall provide the solid waste collection services in the same manner as provided to the residents of the municipality who live along public roads and streets.

In December 2007, an executive property manager of Woodbine Manor's management company submitted invoices Woodbine Manor had incurred for trash collection in 2006 and demanded payment "pursuant to Rule 40:66-1.4(a)[.]" The letter presumably referred to N.J.S.A. 40:66-1.4(a), which states in pertinent part that

when a municipal governing body determines not to provide solid waste collection services to a multifamily dwelling, it shall enter into a written agreement with the multifamily dwelling to annually reimburse the multifamily dwelling in an amount not to exceed the cost that would be incurred by the municipality in providing those services.

On December 20, 2007 the date the court established on summary judgment as the commencement date of plaintiff's action the Borough's solicitor wrote to plaintiff and denied plaintiff's reimbursement claim. The solicitor's letter stated in part

The matter of the Borough's trash collection obligations has been raised by representatives of the Woodbine Manor in the past and has been dealt with. Again, the Borough must emphasize and reiterate that it is a curbside collection community which makes no distinctions concerning the nature of the residential parties and entities along its streets and roads. The issue of disparate treatment was raised in the matter of WHS Realty [v.] Town of Morristown, 323 N.J. Super. 553 (App. Div. 1999). However, the New Jersey Supreme Court in the matter of Pleasure Bay [Apts. v.] City of Long Branch, 66 N.J. 79 (1974) decided that a municipality's right to limit its garbage service to curbside collection was a legitimate exercise of municipal prerogative and did not constitute a denial of due process or equal protection to owners of garden apartment complexes.

In keeping with that Supreme Court holding, [N.J.S.A.] 40:66-1 (which you have failed to cite in your correspondence) has legislatively reaffirmed the curbside collection exemption, providing in pertinent part as follows

"A municipal governing body that establishes a system for the collection or disposal of solid waste . . . in its discretion, may limit service furnished by it to curbside collection along public streets or roads that have been dedicated to and accepted by the municipality. The municipal governing body may also refuse to enter upon private property to remove solid waste from dumpsters or other solid waste containers. . . ."

The statute goes on to provide that reimbursement to a property owner who does not receive municipal service under such a curbside collection system is strictly a matter "in its (the municipality's) sole discretion." There is accordingly no statutory mandate for a curbside collection community such as Woodbine to reimburse the trash collection expenses of a garden apartment complex such as the Woodbine Manor.

Plaintiff filed its complaint more than a year later, on May 28, 2010.

The parties' proofs at trial centered around whether the "curbside collection system" referenced in the solicitor's letter provided a viable alternative to the Borough reimbursing Woodbine Manor as required by N.J.S.A. 40:66-1.3(a) and -1.4(a).

Plaintiff developed the following facts through its documentary evidence and its two witnesses, the apartment complex's manager, Connie Tucci, and an expert on waste management and its analysis with respect to property management. According to Tucci, the eight buildings in Woodbine Manor contained twenty one-bedroom, seventy-two two-bedroom, and ten three-bedroom affordable housing units. The eight buildings front on a rectangular drive with one building on each end and three buildings on each side. One side of the property is parallel to Webster Street, a two-lane road, which is the closest street to the property. The Woodbine Manor complex is, however, set back from Webster Street. From Webster Street, there is only one entrance to the Woodbine Manor complex.

Woodbine Manor tenants take their trash, or solid waste, to one of four three-yard or eight two-yard dumpsters. Each dumpster is on a cement slab surrounded by a fence. A thirteenth, ten-yard dumpster is located between two buildings but is used to collect only bulk items, such as furniture. A company called Waste Management empties the dumpsters on Mondays and Fridays, except for the ten-yarder, and hauls the solid waste away. The dumpsters are full on Friday, but not full on Monday. Tucci testified that it would be a disaster not to collect the trash on Fridays. Picking up the trash twice per week is necessary.

Recycling generated by Woodbine Manor residents was deposited in recycling containers that were at the same locations as the dumpsters. Waste Management did not collect and haul the recycling; a company called Blue Diamond picked up the recyclables.

In July 2008, Woodbine Manor contracted with Waste Management to haul the solid waste from the dumpsters. The original contract was for three years and continued thereafter at an increased rate. Plaintiff introduced into evidence a list of the fees paid to Waste Management through November 2012. Plaintiff's expert, Robert Willis, opined that Woodbine Manor's 101 children and 128 adults produced approximately three pounds of solid waste per person per day. Based on his calculations, the complex produced forty-four cubic yards of solid waste per week; the precise amount of cubic yards that could be placed in the dumpsters. Willis concluded that without a significant change in the capacity of the dumpsters, one "pick up" by a hauler per week would be inadequate to dispose of the solid waste generated by Woodbine Manor. Willis also explained that if trash were to accumulate in the summer for three or four days, there would be decomposing and, consequently, rodents and maggots.

Willis also opined that it would be inefficient, unsightly, and unsanitary to require Woodbine Manor to place its residents' solid waste along Webster Street in thirty-gallon containers on the designated day for collection by the Borough. He calculated that residents would need 286 thirty-gallon containers to place at curbside the solid waste currently being placed in dumpsters. Willis posited that the 286 containers would be "scattered about" or "all over" the property during the week and would have to be hauled out to Webster Street on Sunday evenings or Monday mornings. Additionally, Willis believed animals in the area would attempt to upset the containers. He also noted that squirrels can chew through a bag very quickly.

In Willis' professional opinion, "you couldn't put 286 cans out there unless you started at 5:00 or 4:30 to get them out by 7:00." According to the municipal ordinance, trash has to be curbside on collection day by 7:00 in the morning. Willis concluded that to place 286 thirty-gallon containers along the Webster Street curb might be feasible, but would be "unsafe, unsanitary and utterly inefficient."

In contrast, the current method of hauling solid waste from multifamily complexes was the most efficient, sightly, and sanitary. Willis explained that in terms of efficiency, he explained that the methodology for collecting solid waste in multifamily housing facilities was, as in the case of Woodbine Manor, having residents deposit trash in dumpsters and having the dumpsters emptied by commercial haulers. Imposing a residential methodology curbside collection of small containers on a multifamily development would prolong collection time threefold or fourfold.

Imposing the residential method on a multi-housing facility would also be unsightly and unsanitary. Woodbine Manor's eight enclosures, properly maintained and supervised, would be replaced by 286 containers around the property, which would be unsightly. Willis bolstered his testimony with photographs depicting containers in residential sections of the municipality that had been spilled or tipped over.

Addressing costs, Willis calculated that "it costs . . . the Borough $236.08 per residential unit per year for the collection of solid waste and bulk, and it costs Woodbine Manor $141 and some change." In arriving at his calculation, Willis used Waste Management billings for the year 2010.

The Borough also produced two witnesses: James Gurdgiel, a municipal utilities authority employee who also ran the Borough's Public Works Department, and Robert E. Webster, an employee of Blue Diamond Disposal, a solid waste hauler that hauls municipal, commercial, and industrial solid waste, including the recycling for Woodbine Manor. Gurdgiel was familiar with the Borough's solid waste collection services. Blue Diamond was the Borough's current solid waste and recycling hauler; it collected Woodbine Manor's recyclables.

Gurdgiel was familiar with the Borough's "tonnage reports," and the "Type 10" regular household residential trash and garbage tonnage generated by Borough residents and some restaurants. Gurdgiel reviewed the "tipping fees," that is, the cost per ton to dump trash in the Cape May County Landfill: $60.75 per ton in 2008, $63 per ton in 2009, $64 per ton in 2010, and $65.95 per ton in 2011 and 2012. The Borough's contract with Blue Diamond did not include tipping fees; the Borough paid them separately.

The Borough also presented the testimony of Robert E. Webster, a Blue Diamond Disposal employee and an expert on solid waste management and collection. Webster had worked for several companies, including Waste Management from 1985 to 1987. During that time, Waste Management serviced multifamily units that used trash cans rather than dumpsters. Webster had considerable experience with the operations of solid waste haulers, including bidding on municipal contracts. In 2009, when Webster began working for Blue Diamond, he became the manager for the "Woodbine location" where he was in charge of safety, municipal bids, commercial, and sales. The service area included single family homes, multifamily units, apartments, and condominiums. Blue Diamond's contract with the Borough required Blue Diamond to collect solid waste and recyclables generated by Woodbine Manor.

Blue Diamond picked up and hauled recyclables from the Woodbine Manor complex. The recyclable containers were in enclosed, fenced areas of the complex with the solid waste dumpsters. Blue Diamond did not, however, remove and haul solid waste from Woodbine Manor because the complex was under contract with Waste Management to haul its solid waste. According to Webster, when Blue Diamond bid on collecting solid waste for Woodbine Manor it was bidding on collecting the residents' trash out of trashcans; there was no mention of dumpsters.

The Borough's code required residents to place their trash in containers with a capacity of not more than thirty gallons. Webster considered such containers, which he identified as "regular trashcan[s,]" to be sanitary. The Borough's code also required an apartment complex to supply containers if the complex had three or more units. The code permitted containers utilized at multifamily complexes to have a capacity greater than thirty gallons.

To support his opinion that a multifamily complex using a trashcan for each unit was easily serviced, Webster cited a multifamily complex serviced by Blue Diamond with approximately 200 units. Blue Diamond "roll[ed] through with a residential truck and . . . pick[ed] up the trash at the curb." By curb, he meant on the property of the multi-family complex; that is, within the property, not on the street. Webster cited three other examples in Cape May County.

Webster disagreed with Willis's opinion that the practice of using plastic bags is unsanitary. According to Webster, the practice is sanitary provided the bags are secure and placed in a safe way. "[I]t's commonplace everywhere."

Webster had worked at Waste Management and had been involved in picking up trash from Woodbine Manor. When he worked for Waste Management, Woodbine Manor had two-yard containers only. The containers were "plenty" for the trash, though Waste Management picked them up twice each week.

Webster also testified that he observed the dumpsters at Woodbine Manor during the times Blue Diamond hauled Woodbine Manor's recycling. According to him, the lids on the dumpsters were not closed; they were wide open. Most of the dumpsters were "maybe a third, one or two of them may have been half full . . . . A couple of them were stone empty." According to Webster, "[s]ometimes you'd have a loaded container but most of the time they're not completely loaded[.]" Webster concluded that Waste Management's dumpsters at Woodbine Manor were being "over-serviced," that is, they were not being used to full capacity and dumping them two times a week "may be a stretch."

Webster also opined that trash could be picked up from Woodbine Manor once each week if the trash were placed in forty-four "totes" instead of the dumpsters. A tote is a 95-gallon, trashcan on wheels that is water tight and can be emptied in a truck by use of a winch attached to the truck; that is, by an automated system. Webster testified that emptying totes was as safe, if not safer than emptying the dumpsters, and totes were as presentable as dumpsters. Webster also testified that it would take approximately twenty minutes to one-half hour to empty forty-four to fifty totes.

Significantly, Webster did not recommend lining thirty-gallon containers along Webster Street for collection. In his opinion, that practice would create a problem controlling who actually generated the trash, how Woodbine Manor could "put it out," and would create a problem for code enforcement to identify those responsible for violations. The practice would also present an inconvenience to Woodbine Manor residents. Webster thought it would only take approximately twenty minutes to pick up 150 thirty-gallon trashcans. He conceded however, that picking up the trash on Webster Street would affect traffic and create a potential safety issue.

Webster estimated that Woodbine Manor generated one and one-half tons of solid waste weekly. Based on Blue Diamond's bid to collect the trash at Woodbine Manor, Webster testified that the cost was "$5.02 per month per unit, $512 a month for the entire complex," $6,144.48 as an annual cost. Webster's calculation was based on the number of units, the amount Blue Diamond was being paid, and the price per unit.

Based on the parties' proofs, the trial court concluded that requiring Woodbine Manor to place solid waste curbside along Webster Street was not a reasonable statutory alternative to reimbursing Woodbine Manor for solid waste collection. Based on an aerial photograph of the property that had been admitted into evidence, the court noted that the property "spans the width of three blocks before factoring in the lengthy driveway to Webster [Street]." The court determined that requiring Woodbine Manor "to haul the solid waste of 102 units from eight buildings, some of which are more than a block away from the driveway which itself is nearly a block long, is to unreasonably impose on the tenants of [Woodbine] Manor a task that no other Woodbine resident must endure." The court also found that requiring Woodbine Manor

to transport waste from the dwelling units to enclosures to Webster [Street] and up to 150 containers to be lined up along Webster [Street] is not consistent with the Borough's objective to provide a clean and sanitary solid waste pickup or to shelter the public from the dangers of accumulating refuse.

Additionally, the court found that placing 150 thirty-gallon containers along the street created a safety hazard for the road and a health hazard for surrounding properties as well as for Woodbine Manor's residents.

The trial court concluded that plaintiff was entitled to be reimbursed for disposal of its solid waste but rejected plaintiff's valuation of the cost to the Borough and accepted the Borough's proofs as to cost. Based on its acceptance of the testimony of the Borough's expert, Webster, the court computed the amount it would have cost the Borough to collect at curbside Woodbine solid waste for the years 2008 through 2012, added tipping fees, and entered judgment against the Borough in the amount of $55,709.70. The Borough appealed.

On appeal, the Borough presents the following arguments

I. [A] MUNICIPAL ORDINANCE HAS A STRONG PRESUMPTION OF VALIDITY AND THE BURDEN IS ON THE PARTY CHALLENGING THE VALIDITY OF THE ORDINANCE TO SHOW BY CLEAR AND CONVINCING EVIDENCE THAT IT IS UNREASONABLE, ARBITRARY OR CAPRICIOUS.

II. [N.J.S.A.] 40:66-1.3 DOES NOT PERMIT A MULTI-FAMILY DWELLING TO CHOOSE BETWEEN UTILIZING MUNICIPAL WASTE COLLECTION AND REIMBURSEMENT FOR THEIR COSTS OF THE SAME. THE CHOOSING IS LEFT TO THE MUNICIPALITY.

III. WOODBINE MANOR'S CLAIM IS ONE IN LIEU OF PREROGATIVE WRIT AND NOT A COLLECTION CASE AS DESCRIBED BY THE COURT BELOW WHICH REQUIRED AN ACTION BE COMMENCED WITHIN 45 DAYS OF THE ACCRUAL OF A CAUSE OF ACTION IN ACCORDANCE WITH RULE 4:69-6.

IV. AN ACTION IS LIEU OF PREROGATIVE WRIT MUST BE BROUGHT NOT LATER THAN 45 DAYS AFTER THE ACCRUAL OF THE RIGHTS OF REVIEW, HEARING OR RELIEF CLAIMED. AS SUCH, PLAINTIFF RESPONDENT'S CLAIM IS BARRED IN ACCORDANCE WITH [RULE 4:69-6].

V. THE PLAINTIFF RESPONDENT'S CAUSE OF ACTION SHOULD BE DISMISSED PURSUANT TO THE DOCTRINE OF LACHES.

VI. ASSUMING ARGUENDO, IF IT IS DETERMINED THAT THE COURT BELOW IS CORRECT AND THAT PLAINTIFF RESPONDENT IS ENTITLED TO REIMBURSEMENT, DAMAGES MUST BE CALCULATED FROM THE DATE OF COMPLAINT.

The scope of our review of a judgment entered at the close of a non-jury case is limited. Sebring Assocs. v. Coyle, 347 N.J. Super. 414, 424 (App. Div.), certif. denied, 172 N.J. 355 (2002). When evaluating the basis for the decision, "we will defer to [the] trial court's factual findings, particularly those influenced by the court's opportunity to assess witness testimony firsthand . . . ." Willingboro Mall, Ltd. v. 240/242 Franklin Ave., L.L.C., 215 N.J. 242, 253 (2013). We owe no such deference, however, to a trial court's conclusions of law. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J 366, 378 (1995). With these principles in mind, we turn to the Borough's first two arguments.

To be sure, "[a] strong presumption of validity accompanies municipal ordinances enacted pursuant to the police power." Berk Cohen Assocs. at Rustic Vill., LLC v. Borough of Clayton, 199 N.J. 432, 446 (2009) (citing Brown v. City of Newark, 113 N.J. 565, 571 (1989)). The parties here do not dispute that proposition. Rather, they dispute whether plaintiff made a clear showing that the Borough's curbside scheme as applied to Woodbine Manor failed to present a viable option to reimbursement under the statute. The trial court concluded that plaintiff had made such a showing. Based on our review of applicable law and the trial court's factual determinations, we agree.

In Pleasure Bay Apts., the Court explained what process is due a property owner in a municipality that collects its residents' solid waste

All that a property owner is entitled to is that the municipal action -- here the determination to limit the municipal service to curbside collection of garbage and refuse -- not deny him due process and the equal protection of the laws.

The guaranty of due process as it applies to cases of the type here under consideration requires only that a law shall not be unreasonable, arbitrary or capricious, and that the means selected shall bear a rational relation to the legislative object sought to be obtained. . . . Similarly, the constitutional requirement of equal protection is met by legislation that treats all persons within a class reasonably selected, in a like or similar manner.

[Pleasure Bay Apts., supra, 66 N.J. at 91 (quoting Robson v. Rodriquez, 26 N.J. 517, 522-23 (1958)).]

Nonetheless, the solid waste management measures a municipality employs must be "designed to enhance rather than undermine public safety, health and welfare." Berk Cohen, supra, 199 N.J. at 447 (internal quotation marks omitted). Consequently, if a municipality insists on curbside pickup at a multifamily, garden apartment complex, and the owner has made a clear showing that the municipality's "curbside" collection method as to that complex bears no rational relation to the legislative policy of "shielding the public from the hazards associated with accumulating refuse[,]" ibid. (citing Pleasure Bay Apts., supra, 66 N.J. at 91), the municipality's policy as applied to such complex is a violation of due process, arbitrary and not a viable option under N.J.S.A. 4:66-1.3(a).

Here, based not only on plaintiff's proofs, but also on the concession of the Borough's expert that curbside collection on Webster Street would have posed a safety hazard, the trial court concluded that curbside collection of Woodbine Manor solid waste from Webster Street did not provide a viable statutory alternative to reimbursement. The trial court's findings were supported by ample credible evidence in the record.

The Borough does not argue that curbside pickup on Webster Street was a viable option. Rather, it argues that the statutory choice is the Borough's to make, and because Blue Diamond is willing to pick up solid waste within the Woodbine Manor complex, such pick-up falls within the concept of "curbside." That argument overlooks the solicitor's letter rejecting plaintiff's reimbursement claim as well as the trial court's factual determination, fully supported by the evidence, that the Borough did not offer that option to Woodbine Manor. The trial court did, however, state explicitly that if the Borough offers to collect solid waste from within the complex, then Woodbine Manor will not be entitled to reimbursement.

In short, the trial court's opinion that the Borough had not offered Woodbine Manor a reasonable alternative to statutory reimbursement and that curbside collection on Webster Street was arbitrary is supported by ample credible evidence in the record and based on a correct interpretation of our Supreme Court's pronouncements. Accordingly, we affirm.

The arguments in the Borough's four remaining points are without sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(1)(E). We add only the following brief comments.

The Borough contends that notwithstanding plaintiff's characterization of its complaint as a collection action, the complaint was actually one in lieu of the prerogative writ of mandamus, because it sought to compel the Borough to comply with a statute. "Mandamus . . . was a high prerogative writ at common law directed to any natural person, corporation or inferior court within the jurisdiction requiring performance of some act." McKenna v. N.J. Highway Auth., 19 N.J. 270, 275 (1955) (citation omitted). Here, plaintiff sought money damages for expenses it had incurred to collect solid waste, not to compel the municipality to perform a ministerial act. To the extent plaintiff's complaint could be construed as one challenging the constitutionality of a municipal ordinance, it can be characterized as either a declaratory judgment action or an action in lieu of prerogative writs. See Ballantyne House Assocs. v. City of Newark, 269 N.J. Super. 322, 330 (App. Div. 1993) (citations omitted). But the Borough has not made that argument. Moreover, the uniform declaratory judgments law, N.J.S.A. 2A:16-50 to -62 does not contain a statute of limitations, and the forty-five day limitation period for filing prerogative writ actions are enlargeable if the interest of justice so requires. Ibid. (quoting R. 4:69-6).

Similarly, declaratory judgments challenging the constitutionality of legislative enactments are "not ordinarily subject to a defense of laches," ibid., and the Borough has demonstrated no cognizable prejudice, see Mancini v. Twp. of Teaneck, 179 N.J. 425, 437 (2004).

Affirmed.

1 The pleadings identify plaintiff as Kiejdan Family, LLC. During the proceedings in the trial court, the court granted plaintiff's motion to amend the complaint to rename plaintiff as Woodbine Manor Apartments Limited Partnership without amending the caption. Accordingly, we refer either to "plaintiff" or "Woodbine Manor."

2 Plaintiff did not include the Borough of Somerdale when it refiled its action against the Borough of Woodbine.

3 Plaintiff has not appealed from the order limiting damages to those accruing after December 20, 2007.