O'CONNOR, J.A.D

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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. Before Judges Leone and O'Connor. On appeal from Superior Court of New Jersey, Law Division, Burlington County, Docket No. L-0926-11. Daniel D. Fisher, Sr. appellant pro se. Madden & Madden, P.A., attorneys for respondent (Regina M. Philipps, on the brief). The opinion of the court was delivered by O'CONNOR, J.A.D

Plaintiff Daniel D. Fisher, Sr., appeals from an April 10, 2015 Law Division order granting defendant Eastampton Board of Education summary judgment dismissing his amended complaint, because it was not filed before the statute of limitations expired. We affirm.

I

Plaintiff contends he inherited land from his mother in 1999. The land is immediately adjacent to property owned by defendant. Defendant contests plaintiff is the owner of this property; however, we do not address this question because it was not decided by the trial court. Further, the resolution of this dispute is unnecessary to dispense with the issues on appeal. For the purpose of this appeal only, we assume plaintiff is the owner of the subject property.

Plaintiff claims that, for many years, structures on defendant's property caused flooding on his property. His amended complaint informs that, in 1976, defendant macadamized a parking lot on its property, which caused periodic flooding on the southerly portion of what is now plaintiff's land. At the time, plaintiff's parents owned the land. Plaintiff maintains defendant failed to build a retention basin to catch any stormwater that ran off the parking lot.

Plaintiff's parents sued defendant over the flooding and the matter settled. In 1998, defendant expanded and macadamized another parking lot, which caused stormwater to run off onto the eastern portion of plaintiff's land and flood when it rains.

Plaintiff filed a complaint on March 14, 2011, and an amended complaint on July 25, 2011, in which he asserted a claim for inverse condemnation, as well as nuisance and other causes of action sounding in tort. Plaintiff sought both damages and injunctive relief. He also alleged defendant violated the "State Storm Water Section of the Clean Air Act," and cited various federal statutes he claimed entitled him to attorney's fees and injunctive relief. On August 16, 2013, the court entered an order granting defendant's motion for summary judgment and dismissing plaintiff's amended complaint with prejudice.

On November 21, 2013, the court granted plaintiff's motion for reconsideration of the August 16, 2013 order, and reinstated plaintiff's claims for "equitable relief, inverse condemnation and constitutional claims" and "litigation expenses." No other claims were revived. The reinstated constitutional and equitable relief claims are merely those associated with inverse condemnation. Plaintiff does not challenge the August 16, 2013 or November 21, 2013 orders.

On April 10, 2015, the court entered an order granting defendant's motion for summary judgment on the plaintiff's remaining claims, and dismissing plaintiff's complaint with prejudice. In its motion, defendant contended plaintiff did not have standing to assert an action for inverse condemnation. Specifically, defendant maintained plaintiff was not the titled owner of the land plaintiff claims defendant had wrongfully taken.

Defendant also contended plaintiff was aware it may have caused the flooding on the subject property, yet failed to file a complaint before the six-year statute of limitations expired. See N.J.S.A. 2A:14-1. In support of its argument plaintiff knew or should have known defendant was at fault for the flooding, defendant cited a portion of plaintiff's deposition testimony in which plaintiff testified he knew in 1999 defendant's actions caused the subject flooding.

In his response to defendant's motion for summary judgment, plaintiff did not dispute he had been aware since 1999 defendant caused the flooding. However, plaintiff claimed that because he was embroiled in probate litigation with his siblings over his mother's estate and preoccupied with other matters, he was unable to file a complaint until 2011.

The trial court declined to decide the question whether plaintiff was the owner of the subject property, but did find plaintiff's complaint was time barred. The court determined that, in the "late 90s," plaintiff believed the parking lot on defendant's property caused stormwater to accumulate and run onto and flood his property, yet did not file a complaint against defendant for twelve years. The court considered plaintiff's reasons for not filing a timely complaint, but concluded none was a defense for failing to file his complaint within the six-year statute of limitations under N.J.S.A. 2A:14-1, and dismissed the complaint with prejudice.

II

On appeal, plaintiff argues he is the owner of the property he inherited from his mother and requests we resolve the question of his ownership. Second, he contends he did not file a complaint before the statute of limitations expired because he was litigating the probate matter for five and one-half years and, during that time, the ownership of the property was in question. Third, although not raised in his response to defendant's motion for summary judgment, plaintiff now argues his complaint is not time-barred because the

storm waters that come off of the two parking lots are a repetitive nuisance which has been committed it implicitly holds that defendant is committing new tort, including new breach of duty, each day, triggering new statute of limitations; this new tort is an alleged present failure to remove the nuisance [.] . . . The "continuing violation theory" serves as an exception to a statute of limitations under New Jersey law when an individual experiences a continual cumulative pattern of tortuous conduct[.]

We "review[] an order granting summary judgment in accordance with the same standard as the motion judge." Bhagat v. Bhagat, 217 N.J. 22, 38 (2014). We "must review the competent evidential materials submitted by the parties to identify whether there are genuine issues of material fact and, if not, whether the moving party is entitled to summary judgment as a matter of law." Ibid.; see also Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995); R. 4:46-2(c). A trial court's determination that a party is entitled to summary judgment as a matter of law is "not entitled to any special deference," and is subject to de novo review. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

First, we decline plaintiff's invitation to settle the question whether he owns the subject property. The trial court did not decide this issue and we decline to do so in the first instance. Duddy v. Gov't Emps. Ins. Co., 421 N.J. Super. 214, 221 (App. Div. 2011).

On the question whether the complaint is time-barred, we note the trial court was not confronted with any material questions of fact to resolve, making the matter ripe for summary judgment. See R. 4:46-2(c). There is no dispute that, as of 1999, plaintiff was aware defendant's actions caused the flooding of his property, yet did not file a complaint against it for twelve years. N.J.S.A. 2A:14-1 requires a party to institute an action for inverse condemnation within six years of the time the claim accrues. Klumpp v. Borough of Avalon, 202 N.J. 390, 406-07 (2010). The statute of limitations expired, at the latest, sometime in 2005.

Plaintiff states he refrained from filing his complaint for five and one-half years because, while the probate matter was pending, he did not know if he was the owner of the property. First, even assuming the pendency of the probate matter tolled the statute of limitations - a question we do not decide — the probate matter persisted only five and one-half years out of the twelve that lapsed between the time plaintiff inherited the property in 1999 and filed his complaint against defendant in 2011. Plaintiff does not explain why he did not file a complaint against defendant in the six and one-half years the probate matter was not pending.

Second, as defendant pointed out to the trial court, plaintiff admitted during his deposition he refrained from filing a complaint against defendant because plaintiff did not wish to share with his siblings any damages he recovered from defendant, in the event he prevailed against defendant and the probate court determined his siblings co-owned the subject property. We agree with the trial court none of plaintiff's reasons for failing to file a complaint before the statute of limitations excused his untimely filing.

Finally, plaintiff now contends his complaint cannot be deemed time-barred because defendant creates a nuisance every time it rains and stormwater runs off its parking lot and onto plaintiff's property. Thus, plaintiff maintains, a new cause of action accrues every time defendant causes plaintiff's property to flood, making every flood defendant caused within six years of the day he filed his complaint timely.

We reject this argument. In its August 16, 2013 order, the trial court dismissed all tort claims, which included the claim for nuisance. Plaintiff has not challenged the August 16, 2013 order, or the provision in the November 21, 2013 order denying reconsideration of the court's decision to dismiss all tort claims. Plaintiff has never asserted any continuing violation theory with respect to his claim of inverse condemnation.

To the extent any argument raised by plaintiff has not been explicitly addressed in this opinion, it is because we are satisfied the argument lacks sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.

CLERK OF THE APPELLATE DIVISION