JOHN J. BRUNETTI v. OLD BRIDGE MUNICIPAL UTILITIES AUTHORITY

 


                 NOT FOR PUBLICATION WITHOUT THE
                APPROVAL OF THE APPELLATE DIVISION

                                    SUPERIOR COURT OF NEW JERSEY
                                    APPELLATE DIVISION
                                    DOCKET NO. A-4576-13T3

JOHN J. BRUNETTI and
MIDTOWN WATER COMPANY,

     Plaintiffs-Respondents,

v.

OLD BRIDGE MUNICIPAL
UTILITIES AUTHORITY,

     Defendant-Appellant.
______________________________

         Submitted September 17, 2015 – Decided September 22, 2015

         Before Judges Fasciale and Higbee.

         On appeal from Superior Court of New Jersey,
         Law Division, Middlesex County, Docket No.
         L-3392-13.

         Granata & Zaccardi, attorneys for appellant
         (Louis E. Granata, on the brief).

         Hill   Wallack,   L.L.P.,  attorneys   for
         respondents (Eric I. Abraham, of counsel;
         Mr. Abraham and Christina L. Saveriano, on
         the brief).

PER CURIAM

     Defendant Old Bridge Municipal Authority appeals from that

part of a June 3, 2014 order granting summary judgment to John

J. Brunetti (Brunetti) and Midtown Water Company (Midtown Water)

(collectively   plaintiffs)   declaring   that   plaintiffs   are   not
required to pay defendant for certain water-connection fees (the

fees).    We reject the claims of error and affirm.

       Plaintiffs own approximately 2500 acres of property (the

property)      in    Old   Bridge        Township.          The   New    Jersey      Board    of

Public Utilities issued a franchise to Midtown Water for the

diversion, treatment, and distribution of water in a defined

area of the property (the franchise area).                              A local ordinance

(the ordinance) and a map described and showed the parameters of

the    franchise       area.        In     1986,      Midtown      Water    and   defendant

entered into a contract allowing Midtown Water "to construct all

lines    and   facilities          needed    in      the    franchise       area,"    without

requiring Midtown Water to pay the fees (the 1986 agreement).

       Plaintiffs filed this complaint pursuant to the New Jersey

Declaratory Judgment Act, 
N.J.S.A. 2A:16-50 to -62, seeking a

ruling that they are not obligated to pay the fees relating to

an    apartment      complex       known    as       Toby   Gardens     Apartments       (Toby

Gardens).       Plaintiffs moved for summary judgment, arguing that

they were under no obligation to pay the fees for Toby Gardens

because it is located within the franchise area and covered by

the     1986    agreement.               Judge       Arthur       Bergman     agreed      with

plaintiffs,         issuing    a   lengthy       written      opinion       supporting       the

order under review.




                                                 2                                    A-4576-13T3
      On appeal, defendant argues primarily that Judge Bergman's

conclusion that the 1986 agreement had no limitations period was

erroneous,       and    defendant         further       contends       that       the     1986

agreement       expired.         Defendant       also   argues     that    fact         issues

preclude    a     finding     that    Toby   Gardens      is     located      within          the

franchise       area.       Defendant's          contentions      on    appeal          are    a

repetition of what defendant raised before the judge.

      We    conclude        that      defendant's        arguments        are       without

sufficient merit to warrant discussion in a written opinion, R.

2:11-3(e)(1)(E),        and      affirm    substantially         for    the   thoughtful

reasons    expressed        by    Judge    Bergman.        We     add   the       following

remarks.

      In reviewing a grant of summary judgment, we apply the same

standard under Rule 4:46-2(c) that governed the trial court.

Wilson ex rel. Manzano v. City of Jersey City, 
209 N.J. 558, 564

(2012).      We    must     "consider      whether      the     competent     evidential

materials presented, when viewed in the light most favorable to

the   non-moving        party,     are    sufficient       to    permit       a    rational

factfinder to resolve the alleged disputed issue in favor of the

non-moving party."          Brill v. Guardian Life Ins. Co. of Am., 
142 N.J. 520, 540 (1995).                We accord no deference to the motion

judge's conclusions on issues of law, Manalapan Realty, L.P. v.




                                             3                                      A-4576-13T3
Twp. Comm. of Manalapan, 
140 N.J. 366, 378 (1995), which we

review de novo.        Applying these standards, we see no error.

       As to defendant's first point, that the 1986 agreement had

expired, the judge properly construed its plain and unambiguous

terms.     See Schor v. FMS Fin. Corp., 
357 N.J. Super. 185, 191

(App. Div. 2002) (explaining that a contract must be given its

plain    and    ordinary   meaning).             The     judge    properly      relied       on

paragraph six of the 1986 agreement, which indicates that relief

from    paying   the    fees    applied      to    the     franchise     area        "at   any

time."      Defendant's        contention         that    the     1986   agreement         had

expired is therefore without merit.

       As to defendant's second point, that fact issues preclude

the     entry    of    summary        judgment,          Judge     Bergman      correctly

interpreted      the    map     and    plain       language        of    the    ordinance

verifying that Toby Gardens is located in the franchise area.

The     ordinance      describes       the       franchise        area   as     including

"property on both sides" of Routes 18 and 9, and "property on

the east side" of Route 34.                The map clearly depicts the scope

of the franchise area.          The intersection of Cherry Hill Lane and

Ehlers Lane, the location of Toby Gardens, is within the written

description      as    depicted       on   the     map.          Further,      Old     Bridge

Township's official tax map designates Toby Gardens within the

franchise area.




                                             4                                       A-4576-13T3
Affirmed.




            5   A-4576-13T3