Filed 3/26/14 Secrest v. City of San Luis Obispo CA2/6

               NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified
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           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                  SECOND APPELLATE DISTRICT

                                                DIVISION SIX

STEPHEN SECREST et al.,                                                     2d Civil No. B243445
                                                                      (Super. Ct. No. CV060225 A & B )
     Plaintiffs and Appellants,                                           (San Luis Obispo County)

v.

CITY OF SAN LUIS OBISPO,

     Defendant and Respondent.

                   Stephen and Jeanne Secrest appeal from a judgment in favor of the
City of San Luis Obispo finding no liability on the part of the City for damage to
the Secrests' property caused by the overflow of a creek during heavy rain. We
affirm.
                                                      FACTS
                   The Secrests' San Luis Obispo home is on Conejo Avenue. Like
several other homes on Conejo Avenue, the Secrests' house lies at the bottom of a
steep watershed in an historic streambed, Andrews Creek. Prior to 1939 the creek
ran through what is now the Secrest property. In 1939 a private developer altered
the course of the streambed, diverting it from its natural path to run along the back
of the properties on Conejo Avenue. Ever since then, those properties, including
the Secrest property, have been subject to periodic flooding during rainstorms.
When water overflows the diverted streambed, it follows its natural path downhill
and across the Secrest property. It is undisputed that the Secrest property and other
properties in the Conejo neighborhood have always been subject to periodic
flooding. Former City Public Works Director David Romero testified that he first
became concerned about the flooding in the Conejo neighborhood in 1982. He also
testified that many areas in San Luis Obispo suffer flooding; so many, in fact, that
the City lacks the funds to adequately address all of them.
              The Secrests bought their property in 1993. On March 10, 1995, their
property flooded during a rainstorm. The Secrests sued both the sellers of their
property and the City, complaining that the sellers failed to disclose prior flooding
of the property, and that the City's defective maintenance of the Andrews Creek
drainage system had caused the flooding of their property. In 1997 the Secrests
settled their claims against the City in exchange for monetary damages and the
City's promise to implement modifications to the drainage system. The City also
agreed to permit the Secrests' engineer, Jim Garing, to review the modification
plans as they were developed. The settlement did not include promises by the City
to permanently resolve the drainage problems in the area or to protect the Secrests'
property from future flooding.
              Between 1997 and 2000 the City constructed substantial
modifications to the Andrews Creek drainage system. It constructed a new bypass
system and strengthened the existing "rock catcher," a device for capturing debris
and materials traveling downstream with the flow of water. Mr. Garing, the
Secrests' expert, reviewed the plans for these modifications and made comments
and suggested revisions. Some of his comments and suggestions were incorporated
into the final modifications; some were not.
              Between the flooding events of March 10, 1995, and December 31,
2004, there were 507 days of rain with virtually no flooding, an incidence of .2
percent. Some of those rainstorms were of greater magnitude and/or velocity than

                                           2
the storm of December 30/31, 2004. The drainage features constructed both before
and after the 1995 flooding functioned perfectly.
              During the rainy night of December 30/31, 2004, however, water
running down the creek once again overflowed the channel and traveled its natural
path downhill to the Secrests' property. The intrusion was less severe than that of
1995. Water did not enter the Secrests' residence, but flowed across the backyard
and into the garage. No other properties were damaged. The Secrests again sued
the City, alleging that the post-1995 modifications to the drainage system caused
their property to flood, and asserting causes of action for inverse condemnation,
dangerous condition of public property, and nuisance. They also asserted a cause of
action for injunctive relief and two causes of action for declaratory relief.
              In 2008, four years after the December 2004 flooding event, the City
commissioned a study of the Andrews Creek drainage system (the Wallace
Deficiency Study). Determination of the cause of damage to the Secrests' property
in the 2004 flooding was not a stated purpose of the study; its purpose was "to
analyze the deficiencies of the existing drainage system and to investigate several
alternatives to alleviate the deficiencies so as to provide improved flood protection
for vulnerable properties." In discussing the "sediment and debris flows" in
Andrews Creek, the report stated: "As debris settles out, it can often form a mound
at the point where loss of energy is the greatest – in the center of the channel.
Subsequent flows will then travel around the mounded obstruction, carving a new
path in the settled debris or the floodplain. This is what likely occurred in both the
1995 and 2005[sic] flood events . . . . In the 1995 event, debris flows settled out
near the Hansen Inlet, diverting flows to the west. In the 2005 [sic] storm, most of
the debris accumulated at the trash racks near the bypass. Then, because a notch in
the concrete abutment left the right bank vulnerable to overflow, floodwaters took
that path, eventually finding their way to the backyards of properties on Conejo
Avenue." (Italics added.)

                                           3
                                         The Trial
                The parties agreed to have the court try the liability phase of the trial.
At the conclusion of the Secrests' case-in-chief the City moved for judgment
pursuant to Code of Civil Procedure section 631.8 as to all six of the Secrests'
causes of action.1 The trial court granted the motion, finding that the Secrests had
failed to prove that the City's post-1995 improvements to the Andrews Creek
drainage system caused the Secrests' damage and, even if the improvements were
the cause of the damage, the Secrests had failed to prove that the improvements
were unreasonable. The court stated: "Each of Plaintiffs' causes of action requires
that Plaintiffs establish both causation and unreasonableness. Absent proof of these
two elements, the Court need not consider or address whether or not other elements
were proven. Plaintiffs' failure to prove causation and unreasonableness is fatal to
each cause of action." The court did not make express factual findings concerning
the Secrests' causes of action for injunctive and declaratory relief.
                                      DISCUSSION
                When ruling on a challenge to the trial court's judgment given under
section 631.8, the appellate court's inquiry "'". . . begins and ends with"' a
determination whether any substantial evidence exists, contradicted or
uncontradicted, which will support the findings. [Citation.]'" (Jordan v. City of
Santa Barbara (1996) 46 Cal.App.4th 1245, 1255.) Section 631.8 authorizes the
trial court to weigh evidence and make findings. (Jordan, supra, at p. 1255, citing
County of Ventura v. Marcus (1983) 139 Cal.App.3d 612, 615.) In doing so, the
court may refuse to believe witnesses and draw conclusions at odds with expert
opinion. The trial court's grant of the motion will not be reversed if its findings are
supported by substantial evidence. (Ibid.)

1
    All references are to the Code of Civil Procedure unless noted otherwise.

                                             4
                                Inverse Condemnation
              When a public entity's publicly managed flood control facilities cause
property damage, the entity "is liable only if its conduct posed an unreasonable risk
of harm to the plaintiffs, and that unreasonable conduct is a substantial cause of the
damage to plaintiff's property . . . ." (Locklin v. City of Lafayette (1994) 7 Cal.4th
327, 367 (Locklin).) The trial court thus correctly determined that proof of both
causation and unreasonableness is necessary to the Secrests' inverse condemnation
cause of action.2
                                     1. Causation
              To satisfy the causation element of inverse condemnation, the plaintiff
must prove "'a substantial cause-and-effect relationship excluding the probability
that other forces alone produced the injury.' [Citation.]" (Belair v. Riverside
County Flood Control District (1988) 47 Cal.3d 550, 559 (Belair).) "Where
independently generated forces not induced by the public flood control
improvement – such as a rainstorm – contribute to the injury, proximate cause is
established where the public improvement constitutes a substantial concurring
cause of the injury, i.e., where the injury occurred in substantial part because the
improvement failed to function as it was intended. The public improvement would
cease to be a substantial contributing factor, however, where it could be shown that
the damage would have occurred even if the project had operated perfectly, i.e.,
where the storm exceeded the project's design capacity." (Id., at pp. 559-560.)
              Substantial evidence supports the trial court's finding that the City's
post-1995 modifications to Andrews Creek were not a substantial concurring cause
of damage to the Secrests' home during the 2004 storm, i.e., that the damages
occurred "because the improvement failed to function as it was intended." (Belair,

2
  The Secrests' argument that the proper standard is one of strict liability (Albers v.
County of Los Angeles (1965) 62 Cal.2d 250) is meritless. The Supreme Court has
rejected the Albers strict liability standard in the context of public flood control
projects. (Locklin, supra, 7 Cal.4th at p. 367 ["The rule of strict liability generally
followed in inverse condemnation [citing Albers] is not applicable in this context"].)

                                           5
supra, 47 Cal.3d at pp. 559-560.) The city's witness, Jay Walter, who reviewed the
historic rain data, testified that between March 10, 1995, and December 31, 2004,
there were 507 rain days, some rain events of a larger magnitude and of longer
intensity than that which occurred on December 30/31, 2004. Walters testified that
the water that caused damage in the 2004 flooding escaped the channel at the
location of the rock catcher, just as it did in the 1995 flooding. The Secrests
presented no evidence that any feature of the drainage system functioned any
differently on December 30/31, 2004, than it had during the 507 rainstorms when
their property did not flood.
              To prove causation, the Secrests relied on the Wallace Deficiency
Study commissioned by the City in 2008 and the testimony of the author of that
study, Barry Rands. The Wallace Deficiency Study focused on a "notch" or "gap"
on one side of the rock catcher. The Wallace Study states that "because a notch in
the concrete abutment left the right bank vulnerable to overflow, floodwaters took
that path, eventually finding their way to the backyards of properties on Conejo
Avenue."
              There was no dispute that the rock catcher was the source of the
flooding in both 1995 and 2004. Nor was there any dispute that the rock catcher
was modified following the 1995 flooding: the level of the rock catcher was raised
by 12 inches, increasing its capacity to withstand the flow of water. The additional
height created a "notch" – a space between the vertical edge of the rock catcher wall
and the adjacent earth. Barry Rands described this notch as a "weak point" in the
rock catcher. Jay Walter testified, however, that the notch was not a flaw in the
rock catcher that caused water to flow toward the Secrests' property in 2004 that
would not have done so in the 1995 flood. Walter testified that the bottom of the
notch in 2004 was no lower than the top of the rock catcher in 1995, and that the
water escaped at the same location – not higher, not lower – during both flood
events. Walter also testified that a fence built by the Secrests' neighbors, the

                                           6
Moores, partially caused the Secrests' damage by causing the water to bypass the
Moore property and flow onto the Secrests' property.
              Jay Walter also offered a different theory of causation than that
posed by the Secrests. He opined that during the 2004 storm "the rainfall loosened
a large amount of sediment and debris that came down through the creek channel
into the rock catcher, essentially at one time, which, . . . essentially plugged up the
rock catcher and prevented water from getting into the bypass structure, into the two
36-inch pipes. [¶] Because of the sudden movement of that material into the rock
catcher, it minimized its effectiveness and caused water to escape out of the
channel, and then flood the downstream properties." Walter articulated the facts
upon which his opinion was based, testifying to his knowledge of illegal grading on
the Mott property upstream, and opining that "if material that had been recently
graded had become saturated, it could be moved to flow into the creek channel and
then downstream towards the rock catcher." Walter's testimony substantially
supports the trial court's finding that the City's post-1995 modifications to the
drainage system did not cause the flooding of the Secrests' property in 2004.
Although Walter's testimony conflicted with that of the Secrests' expert, Barry
Rands, the trial court was free to draw conclusions at odds with the Secrests' expert.
(County of Ventura v. Marcus, supra, 139 Cal.App.3d at p. 615.)
                              2. Unreasonable Conduct
              A public entity is liable for damage caused by its conduct "only if its
conduct posed an unreasonable risk of harm to the plaintiffs . . . ." (Locklin, supra,
7 Cal.4th at p. 367.) Even if the Secrests had met their burden of proving that the
post-1995 improvements of the Andrews Creek drainage system caused the 2004
damage to their property, they failed to show that the City's improvements posed an
unreasonable risk of harm to the Secrests.
              Whether a public agency acted reasonably is a fact-based inquiry.
(Belair, supra, 47 Cal.3d at p. 566.) In Locklin, the Supreme Court identified six
factors for use in assessing public entity liability: "(1) The overall public purpose

                                           7
being served by the improvement project; (2) the degree to which the plaintiff's loss
is offset by reciprocal benefits; (3) the availability to the public entity of feasible
alternatives with lower risks; (4) the severity of the plaintiff's damage in relation to
risk-bearing capabilities; (5) the extent to which damage of the kind the plaintiff
sustained is generally considered as a normal risk of land ownership; and (6) the
degree to which similar damage is distributed at large over other beneficiaries of the
project or is peculiar only to the plaintiff." (Locklin, supra, 7 Cal.4th at pp. 368-
369.)
              The trial court examined the City's post-1995 improvement efforts in
light of the Locklin factors and found that the City's conduct had been reasonable.
We review the court's factual findings under the substantial evidence standard.
(Paterno v. State of California (2003) 113 Cal.App.4th 998, 1023.) The application
of the appropriate legal standard to the facts properly found by the trial court is a
legal question. (Ibid.)
              Jay Walter testified that both the 1997 and the 1999-2000
modifications of the Andrews Creek drainage system were reasonable. He testified
that the modifications to the rock catcher, specifically, were a reasonable effort to
alleviate the flooding in the drainage area. While the Secrests' expert Jim Garing
testified otherwise, the trial court was free to accept Walter's testimony and to reject
Garing's. (County of Ventura v. Marcus, supra, 139 Cal.App.3d at p. 615.) The
testimony of Jay Walter is sufficient to support the trial court's findings.
              Specifically, substantial evidence supported the trial court's finding
that: the overall purpose of the drainage improvements was to reduce the number of
incidents and the extent of water escaping the channel (Locklin factor 1); the
Secrests shared in the benefits of the improvements and would, in fact, have
suffered greater and more frequent flooding damage in the absence of the
improvements (Locklin factor 2); periodic flooding is a normal risk of owning
property situated in a natural creek bed (Locklin factor 5); and damage to the
Secrests' property, although they were apparently the only owners affected in the

                                            8
2004 incident, is the sort of damage other residents of the natural streambed would
normally expect (Locklin factor 6). (Locklin, supra, 7 Cal.4th at pp. 368-369.)
               The Secrests contend that the trial court improperly weighed "the
availability . . . of feasible alternatives with lower risks" (Locklin factor 3).
(Locklin, supra, 7 Cal.4th at pp. 368-369.) The record does not support this
conclusion. Feasibility includes a consideration of costs, as well as effectiveness.
(See Bunch v. Coachella Valley Water District (1997) 15 Cal.4th 432, 451-452 [trial
court properly considered evidence of the District's limited budget and its allocation
of funds among all its activities]; Van Alstyne, Inverse Condemnation: Unintended
Physical Damage (1969) 20 Hastings L.J. 431, 491 [<http://clrc.ca.gov/pub/Printed-
Reports/Pub088.pdf.> as of 3/12/14].) The City considered several alternatives
before implementing the post-1995 improvements. Some were found to be
financially unfeasible. One option, a wall along the City's drainage easement,
would have created flooding risks for properties that had not previously been
flooded, a potential that was of particular concern to the City. Reasonableness does
not require the City to select the "best" alternative. The Secrests do not prove the
City's decision is unreasonable by identifying another alternative that might have
worked better, such as the adoption of a California Environmental Quality Act
(CEQA)-recommended safe-overflow path. In any event, there was no evidence
that such an overflow path would fully protect the Secrests' property from periodic
flooding.
               Finally, the Secrests contend that the trial court improperly considered
their failure to maintain flood insurance when weighing their damage against risk-
bearing capabilities (Locklin factor 4) and that this error requires reversal. (Locklin,
supra, 7 Cal.4th at pp. 368-369.) The trial court found that by procuring such
insurance, "[t]o a certain extent, the [Secrests] could protect themselves from some
of the loss." The trial court did not consider any other "risk-bearing capabilities" in
weighing the costs to the Secrests of protecting their property from further damage.
(Id., at pp. 368-369.) The courts have declined to consider maintenance of flood

                                             9
insurance as a measure of protecting against loss. The trial court's reference to
insurance, however, does not require reversal. There is no requirement that all six
Locklin factors must be found in favor of the City to support judgment in its favor,
nor is it necessary that all six factors be weighed equally. The "Locklin factors are
not elements of a cause of action for inverse liability, but, when balanced, indicate
whether the owner, if uncompensated would contribute more than his proper share
of the public undertaking.' [Citations.]" (Paterno v. State of California, supra, 113
Cal.App.4th at p. 1025.) The statement of decision does not indicate that the trial
court overweighted the Secrests' failure to maintain flood insurance in determining
that the City acted reasonably.
              Substantial evidence supports the trial court's finding that the Secrests
failed to prove two critical elements of their inverse condemnation cause of action:
causation and unreasonableness. The trial court thus properly granted the City's
motion for judgment on the inverse condemnation cause of action.
                      Dangerous Condition of Public Property
              The Secrests' First Amended Complaint also alleges a cause of action
for dangerous condition of public property. That cause of action also requires proof
of causation and unreasonableness. "[A] public entity is liable for injury caused by
a dangerous condition of its property if the plaintiff establishes that the property
was in a dangerous condition at the time of the injury, that the injury was
proximately caused by the dangerous condition, that the dangerous condition
created a reasonably foreseeable risk of the kind of injury which was incurred, and
that . . . [a] negligent or wrongful act or omission of an employee of the public
entity within the scope of his employment created the dangerous condition . . . ."
(Gov. Code, § 835.)
              To establish causation, a plaintiff must prove that the defendant's
conduct was a substantial factor in bringing about his or her harm. (Bowman v.
Wyatt (2010) 186 Cal.App.4th 286, 312.) The standard is indistinguishable from
the causation standard applied in inverse condemnation cases involving flood

                                           10
control – the conduct of the public entity must be a "substantial concurring cause"
of the plaintiff's damage. (Belair, supra, 47 Cal.3d at pp. 559-560.) Because
substantial evidence supports the trial court's finding that the Secrests failed to
prove that the City's post-1995 improvements caused the damage to their property
or that the post-1995 improvements created a reasonably foreseeable risk of the
kind of injury that the Secrests incurred, their dangerous condition of public
property cause of action also fails.
                                        Nuisance
              The Secrests' First Amended Complaint alleges a claim of nuisance,
citing both Civil Code sections 3479 (private nuisance) and 3480 (public nuisance).
Although each is a separate offense, both require that a defendant's conduct be a
"substantial factor" in causing plaintiff's harm. (CACI Nos. 2020, 2021.) Both torts
also require that the defendant's interference with a protected interest be
unreasonable. (San Diego Gas & Electric Co. v. Superior Court (1996) 13 Cal.4th
893, 937-938 [private nuisance]; People ex rel. Gallo v. Acuna (1997) 14 Cal.4th
1090, 1105 [public nuisance].) Because substantial evidence supports the trial
court's finding that the City's post-1995 improvements were not a substantial cause
of the damage to the Secrests' property and were not unreasonable, the Secrests
were likewise not entitled to judgment on their nuisance cause of action.
                                    Injunctive relief
              The Secrests' fourth cause of action, for injunctive relief, seeks orders
restraining the City from engaging in the "unreasonable conduct" alleged in the
inverse condemnation cause of action, specifically, obstruction of a public drainage
easement and failure to provide a "safe pathway" for floodwaters. Given our
determination that the City is not liable to the Secrests - either in tort or in inverse
condemnation – injunctive relief is not available.
              This disposes of the claim for injunctive relief pled in the First
Amended Complaint. In their opening and reply briefs, however, the Secrests
significantly shift the focus of that claim. They characterize their injunctive relief

                                            11
cause of action as one "to enforce the CEQA adopted mitigation measures for a safe
overflow path." The First Amended Complaint does not request any relief pursuant
to CEQA or allege any facts concerning CEQA violations. Accordingly, the
Secrests have waived their right to raise the CEQA issue on appeal. (American
Continental Ins. Co. v. C & Z Timber Co. (1987) 195 Cal.App.3d 1271, 1281 ["An
argument or theory will generally not be considered if it is raised for the first time
on appeal"].)
                The Secrests' argument that "[t]he existence of legal duties under
CEQA are reviewed de novo" does not require a different result. The case the
Secrests rely on, Lincoln Place Tenants Association v. City of Los Angeles (2005)
130 Cal.App.4th 1491, does not stand for this proposition. The Secrests' action
does not involve a trial court's determination of the adequacy of an environmental
impact report. Nothing in Lincoln Place Tenants Association suggests that the
Secrests are entitled to raise for the first time on appeal a question of CEQA law
that was neither pled nor litigated in the trial court and they cite no other authority
for that proposition.
                                    Declaratory Relief
                In their fifth cause of action, the Secrests seek a declaration that the
City has no right to engage in the "unreasonable conduct alleged herein." The fifth
cause of action for declaratory relief action is based on the facts that support the
Secrests' inverse condemnation claims. "The subject matter of an action and the
issues involved are determinable from the facts pleaded, rather than from the title or
prayer for relief. [Citations.]" (Luckey v. Superior Court (1930) 209 Cal. 360,
366.) The Secrests' fifth cause of action "is not, therefore, declaratory in character,
but in fact presents essentially the same issues which would be involved upon a
determination" of plaintiffs' other causes of action. (Standard Brands of California
v. Bryce (1934) 1 Cal.2d 718, 721; C.J.L. Construction, Inc. v. Universal Plumbing
(1993) 18 Cal.App.4th 376, 390-391.) In any event, because substantial evidence
supports the trial court's finding that the City did not act unreasonably in

                                            12
implementing the post-1995 improvements, the Secrests are not entitled to the
declaration they request and the trial court did not err in granting the City's motion
for judgment on this issue.
              In their sixth cause of action, the Secrests seek a declaration that the
1997 Release and Settlement Agreement between the City and the Secrests does not
impair their right to maintain this action for inverse condemnation. The issue is
moot. The trial court resolved the issue of the Secrests' entitlement to maintain this
action by trying it on the merits and specifically finding that the City's conduct was
not unreasonable and did not cause the Secrests' damages. The Secrests are not
entitled to the requested declaratory relief.
                                    DISPOSITION
              The judgment is affirmed. Costs on appeal are awarded to the City.

              NOT TO BE PUBLISHED.

                                            O'DONNELL, J.*

We concur:

              GILBERT, P. J.

              PERREN, J.

(Judge of the Superior Court of Los Angeles County, assigned by the Chief Justice
pursuant to art. 6, § 6 of the Cal. Const.)

                                           13
                              Dodie A. Harman, Judge

                     Superior Court County of San Luis Obispo

                        ______________________________

            William S. Walter for Plaintiffs and Appellants.
            Hall, Hieatt & Connely, Jay A. Hieatt and Molly E. Thurmond for
Defendant and Respondent.


15 N.J. 149 (1954)
104 A.2d 281
IN THE MATTER OF THE ESTATE OF ROBERT E. NUESE, DECEASED.
The Supreme Court of New Jersey.
Argued March 15, 1954.
Decided April 5, 1954.
*150 Mr. Thomas V. Jardine argued the cause for the appellant Robert E. Nuese (Messrs. Carey, Schenk & Jardine, attorneys).
Mr. Verling C. Enteman argued the cause for the trustee-respondent Irving Trust Company (Messrs. McCarter, English & Studer, attorneys).
The opinion of the court was delivered by BURLING, J.
This appeal emanates from a probate matter, settlement of a trustee's account, but involves solely an adjective question relating to appellate practice and procedure. The Irving Trust Company, trustee under the will of Robert E. Nuese, deceased (hereinafter called the trustee), filed its first and final account (of that portion of the decedent's estate known as the Frances B. Nuese Trust) in the Essex *151 County Court, Probate Division. Exceptions were filed by Robert E. Nuese (hereinafter called the exceptant), the sole living beneficiary of the trust estate. Trial was had and after protracted post-trial proceedings, the County Court judge having filed his opinion on April 2, 1953, In re Nuese's Estate, 25 N.J. Super. 406 (Essex Cty. Ct. 1953), judgment was entered on June 17, 1953. On September 1, 1953 the exceptant's counsel filed a notice of appeal. The Superior Court, Appellate Division, by order dated September 22, 1953 dismissed the appeal on motion of the trustee, stating in a letter memorandum "Had we the power to do so, we would have extended the time for appeal." The exceptant petitioned this court for certification, which was allowed, 14 N.J. 14 (1953).
The sole question involved on this appeal is whether the Superior Court, Appellate Division, erred in dismissing the exceptant's appeal. We are of the opinion that the notice of appeal to the Superior Court, Appellate Division, was not filed within the period required by the pertinent rules and that no special equities exist in exceptant's behalf. Therefore the dismissal of the appeal was proper.

THE RULES
To take an appeal in a case such as this an appellant was required to complete both the service and the filing (see former Rule 1:2-4(a) as amended January 1, 1952, now R.R. 1:2-8(a)) of his notice of appeal from the judgment of the County Court within 45 days after the entry thereof. Former Rule 1:2-5(a), as amended January 1, 1952 (now R.R. 1:3-1(b)), applicable to appeals to the Superior Court, Appellate Division, under former Rules 4:2-4 and 4:2-5 (now R.R. 2:2-5 and R.R. 2:3). Former Rule 1:2-5 originally provided that the running of the time for taking an appeal was initiated by the "entry of the judgment, order or determination appealed from." (Emphasis supplied.) Although former Rule 1:2-5, supra, was amended December 7, 1950 and January 1, 1952, in other respects, *152 this provision remained unchanged, and it has been continued verbatim in R.R. 1:3-1. The importance of this provision is emphasized by the exception contained in former Rule 1:2-5, supra, as originally adopted, concerning agency decisions. Subparagraph (f) of the original former Rule 1:2-5, supra, provided that the period as to agency decisions should be 30 days "* * * except here the time shall run from the date of the service of the decision of the agency." (Emphasis supplied) Further emphasis is indicated by former Rule 1:2-6 relative to tolling of time for appeal. The running of the time for appeal was not tolled by failure to serve notice of entry of judgment, either by the original rule or the amendments thereto of June 7, 1951, January 1, 1952 and January 1, 1953, nor is there such a provision in R.R. 1:3-3 (the present counterpart of former Rule 1:2-6, as amended, supra). In addition, former Rule 3:58, now R.R. 4:59, analogous to Federal Rules of Civil Procedure, Rule 58 (differing only in particulars not here pertinent), provides "The notation of a judgment in the civil docket * * * constitutes the entry of the judgment" (emphasis supplied) and the clerk of the court is required to enter the judgment "forthwith" on the signing of the judgment. Under Federal Rule 58, supra, the clerk's notation in the docket initiates the running of the time for appeal. Eg., United States v. Wissahickon Tool Works, Inc., 200 F.2d 936 (C.C.A. 2 1952). Former Rule 3:58, supra, was applicable to the County Courts under former Rule 5:2-1, both as originally adopted and as amended January 1, 1952; and R.R. 4:59, supra, is now applicable to the County Courts under R.R. 5:2-1. In the light of these provisions, this court, in In re Pfizer, 6 N.J. 233, 239 (1951) held as follows:
"It may well be that to require a dismissal of this appeal will work a hardship upon the respondents, but such a situation can afford no relief for it is a well established principle in this State that when the time for taking an appeal has run the parties to a judgment have a vested right therein which cannot subsequently be taken from them. Plahn v. Givernaud, 85 N.J. Eq. 143 (E. & A. 1915); Shade v. Colgate, 3 N.J. 91 (1949)."
*153 The necessity for compliance with the rules relating to the time for appeal also has been stressed in Korfin v. Continental Casualty Co., 5 N.J. 154, 157 (1950).
The exceptant, however, contends that the Pfizer case, supra, does not settle the construction of former Rule 3:5-1, as amended November 10, 1949 and January 1, 1952 (now R.R. 4:5-1) and former Rule 3:102-7, as amended September 15, 1948 (now R.R. 4:118-8), and that by virtue of these rules the running of the time for appeal is in effect stayed until service of notice of entry of judgment.
Former Rule 3:5-1 as amended November 10, 1949 and January 1, 1952, supra, and now R.R. 4:5-1, supra, provide:
"Unless otherwise directed by the court, every order and judgment, every pleading subsequent to the original complaint, every written motion, other than one which may be heard ex parte, and every written notice, appearance, demand, brief or memorandum of law, offer of judgment, bill of costs, and similar paper, other than a judgment signed by the clerk, shall be served upon each of the parties affected thereby, but no service need be made on parties in default for failure to appear except that pleadings asserting new or additional clauses[*] for relief against them shall be served upon them in the manner provided for service of summons." ([*]Former Rule 3:5-1 as amended used the word "claims".)
Former Rule 3:102-7, as amended September 15, 1948 (cf. R.R. 4:118-8, supra) provided:
"Immediately upon the entry of an order or judgment, the clerk in the manner provided by Rule 3:5[*] shall serve a notice of the entry by mail, except that it need not be sent by registered mail and a return receipt need not be requested, upon every party affected thereby who is not in default for failure to appear, and shall make a note in the docket of the mailing. Such mailing is sufficient notice for all purposes for which notice of the entry of an order or judgment is required by these rules; but any party in addition may serve a notice of such entry in the manner provided in Rule 3:5[*] for the service of papers. Lack of notice of the entry by the clerk does not affect the time to appeal or relieve or authorize the court to relieve a party for failure to appeal within the time allowed." (Emphasis supplied)
[*] Note: R.R. 4:118-8 deletes from the first sentence of this rule the phrase "in the manner provided by Rule 3:5." In the second sentence the reference remains but is changed to 4:5.
*154 These rules (former Rules 3:5-1 and 3:102-7, as amended, supra, now R.R. 4:5-1 and R.R. 4:118-8) are in pari materia, not only with each other, but with the rules, hereinbefore discussed, concerning entry of judgment and time for appeal. The clear import of these rules is that for the purposes of appeal the service of the notice of entry of judgment is not a sine qua non. Former Rule 3:102-7, as amended (now R.R. 4:118-8), supra, expressly so declares in unmistakable terms.
The history of former Rule 3:102-7, as amended (now R.R. 4:118-8) supra, supports the foregoing conclusion. The Tentative Draft of the Rules, circulated early in 1948, expressed the substance of Rule 3:102-7, as amended, supra, in the following language.
"Immediately upon the entry of an order or judgment the clerk shall mail a notice of the entry to the attorney for every party affected thereby who is not in default for failure to appear, or if such a party appears for himself, then to the party. The notice shall be mailed to the address of the attorney, or party, appearing on the endorsement of the last paper filed in the action on behalf of the parties; and the clerk shall make a note in the docket of the mailing. Such mailing is sufficient notice for all purposes for which notice of the entry of an order or judgment is required by these rules; but any party in addition may serve a notice of such entry in the manner provided in Rule 3:5 for the service of papers. Lack of notice of the entry by the clerk does not affect the time to appeal or relieve or authorize the court to relieve a party for failure to appeal within the time allowed, except as permitted in Rules 1:2-3 and 4:2-4."
The Tentative Draft discloses the following comment:
"1. This is Federal Civil Rule 77(d) as amended. The new practice is better than that provided for under R.S. 2:29-6 under which parties had to take notice at their peril of the pronouncement and signing of decrees.
2. Service of orders and judgments is required by Rule 3:5-1."
The Tentative Draft comments on former Rule 3:5-1 (now R.R. 4:5-1) contain comparable expressions concerning an intent to moderate (but not to abolish in toto) the former procedure of the statute, R.S. 2:29-6, supra, which provided:
*155 "Parties to suits in Chancery shall take notice, at their peril, of the filing of all pleadings, and of the pronouncement and signing of decrees."
Thus it was that the hope that the notice provision would relieve the harshness of the statutory rule was expressed, although specific construction of the rules, especially former Rule 3:102-7, as amended, supra, was not made, in Royal Blue Coaches, Inc., v. Delaware, &c., Lines, Inc., 2 N.J. 73, 77 (1949). However neither former Rule 3:102-7, supra, nor the Tentative Draft comment thereon or on former Rule 3:5-1, supra, indicated any intent to condition the finality of a judgment for purposes of appeal upon such notice. Thus it was clearly indicated that the notice was an aid to counsel and not a condition of the judgment upon which the time for appeal was based.
The United States Supreme Court construed the original Federal Civil Rule 77(d), supra, in Hill v. Hawes, 320 U.S. 520, 64 S.Ct. 334, 523, 88 L.Ed. 283, 285-286 (1944), to mean that although judgment was final for other purposes it lacked finality for the purpose of initiating the running of the time within which appeal must be taken where the notice of entry of judgment had not been given. Hill v. Hawes, supra (64 S.Ct., at p. 336, 88 L.Ed., at pp. 285-286), held:
"It is true that Rule 77(d) does not purport to attach any consequence to the failure of the clerk to give the prescribed notice; but we can think of no reason for requiring the notice if counsel in the cause are not entitled to rely upon the requirement that it be given. It may well be that the effect to be given to the rule is that, although the judgment is final for other purposes, it does not become final for the purpose of starting the running of the period for appeal until notice is sent in accordance with the rule."
However, the sentence "Lack of notice of the entry by the clerk does not affect the time to appeal or relieve or authorize the court to relieve a party for failure to appeal within the time allowed" is contained in R.R. 4:118-8, supra, and was contained in former Rule 3:102-7, as amended, supra, without *156 any reference to rules comparable to Tentative Draft Rules 1:2-3 and 4:2-4 (which references, to rules relating to tolling the period of appeal, were contained in the Tentative Draft). In passing it is observed that Tentative Draft Rule 1:2-3 (a), which was not included in former Rules 1:2-5 or 6, contained an exception relating to notice of entry of judgment, namely:
"* * * except that upon a showing of excusable neglect based on a failure of a party to learn of the entry of the judgment the Appellate Division may extend the time for appeal not exceeding 30 days from the expiration of the original time herein prescribed."
Tentative Draft Rule 4:2-4 contained no such exception and no comparable provision was promulgated in the rules effective September 15, 1948.
The original Federal Civil Rule 77(d) did not contain the clause concerning the effect of lack of notice of entry of the judgment. See 3 Moore's Federal Practice (1938), p. 3412. The Hill case, supra, construing original Federal Civil Rule 77(d), supra, was decided in 1944. Thereafter, on December 27, 1946, effective March 19, 1948, Federal Civil Rule 77(d), supra, was amended by the insertion of the above quoted sentence (i.e., the one now contained in R.R. 4:118-8, ante). No construction thereof pertinent to this question subsequent to that amendment appears to have been pronounced by the federal courts (see 28 U.S.C.A., Federal Rules Civ. Proc. Rule 77 and annotations thereto).
The 1946 amendment to Federal Rule 77(d), supra, clearly was designed to overcome effect of Hill v. Hawes, supra. This is a reasonable interpretation of the language used, and it was expressly so declared by the Federal Advisory Committee notes on Rule 77(d) as amended. See 2 Waltzinger, New Jersey Practice (1949), p. 1162. This amendment was expressly stated by the federal committee to be intended to protect the finality of judgments and therefore to confine the rule to one of courtesy rather than one affecting finality of judgments. This interpretation of our own rule was expressed in Waltzinger's comments published in 1949, i.e., *157 2 N.J. Practice, supra, Rule 3:102-7, Author's Comment, page 1161, namely:
"* * * This rule provides that lack of notice from the clerk does not affect the time to appeal meaning that the time to appeal continues even though the party has not received notice from the clerk. If an appeal is contemplated it is advisable to make an independent check of the actual date of entry of an order or judgment." (Emphasis supplied)
The reference in the amended Federal Rule 77(d), supra, to Federal Rule 5, and the counterpart reference in former Rule 3:102-7, as amended (now R.R. 4:118-8), supra, to former Rule 3:5 (now R.R. 4:5), supra, does not alter these conclusions. Federal Rule 5(a) provided for service of an order where the terms of the order required service, but Federal Rule 77(d), as amended, supra, expressly used the words that a party "may in addition serve a notice of such entry [of order or judgment] in the manner provided in Rule 5 for the service of papers" (emphasis supplied), and therefore clearly was intended to be permissive and not mandatory. Our former Rule 3:5-1 (cf. R.R. 4:5-1), supra, in the Tentative Draft differed from Federal Rule 5(a), supra, and provided: "Unless otherwise directed by the court, every order and judgment * * * shall be served upon each of the parties affected thereby * * *." This portion of the tentative rule (3:5-1) was adopted without change. The amendments of November 10, 1949 and January 1, 1952 to Rule 3:5-1, supra, have no bearing on the questions here involved and did not alter the above quoted language. The Federal Rule 5(a), supra, and our former Rule 3:5-1, originally and as amended (now R.R. 4:5-1), supra, however do not provide that failure to serve the order (or judgment), or notice thereof, delays the running of time for appeal. (Compare Tentative Draft Rule 1:2-3(a), quoted ante). Further our former Rule 3:102-7, as amended (now R.R. 4:118-8), supra, made service by a party of notice of entry of judgment on other parties permissive, viz., "any party in addition may serve a notice of such entry in the manner provided in Rule 3:5 for the service of papers." This expression *158 is the same as the comparable phrase in Federal Rule 77(d), as amended, supra. There was no express reference to former Rule 3:5-1 (now R.R. 4:5-1), supra, but merely to the general Rule 3:5 (now R.R. 4:5) entitled "Service and Filing of Pleadings and Other Papers." Clearly if the mandatory sense of Rule 3:5-1, as amended (now R.R. 4:5-1), supra, was intended to apply to the notice of entry of judgment under former Rule 3:102-7, as amended (now R.R. 4:118-8), supra, for purposes of appeal, the latter rule would have expressly referred to that specific rule rather than referring suggestively (i.e., for manner of service only) to the general former Rule 3:5 (now R.R. 4:5), supra.
The exceptant asserts that former Rule 3:60-2 (now R.R. 4:62-2) affords an avenue for relief. Former Rule 3:60-2 (now R.R. 4:62-2), supra, provides that relief from final judgment may be granted by a trial court for stated reasons including, subpar. (1), "mistake, inadvertence, surprise, or excusable neglect," and, subpar. (6), "any other reason justifying relief from the operation of the judgment or order." The same language appears in Federal Rule 60(b).
In the Hill case, supra, the lower federal court had held that lack of notice of entry of judgment under Federal Rule 77(d), supra, did not constitute ground for relief under the similar language of Federal Rule 60(b), supra. Hill v. Hawes, 76 U.S. App. D.C. 308, 132 F.2d 569 (1942). As hereinabove noted, the United States Supreme Court on the subsequent appeal held otherwise, but Federal Rule 77(d), supra, was thereafter amended, effective March 19, 1948. Considerably after the date the amendment to Federal Rule 77(d) went into effect, the United States Court of Appeals, District of Columbia Circuit, in Gilmore v. Hinman, 89 U.S. App. D.C. 165, 191 F.2d 652, 653 (1951), held in reference to Federal Rule 60(b):
"None of the reasons specified in the Rule [viz. Federal Rule 60 (b)] are present. No other reason justifying relief from the operation of the judgment appears, and a motion of this sort cannot be used as a substitute for an appeal." (Emphasis supplied)
*159 This is a sound principle to follow. Further former Rule 3:60-2 (now R.R. 4:62-2), supra, requires motion to be made thereunder "within a reasonable time." See Ditmars v. Camden Trust Co., 10 N.J. 471, 495 (1952). Compare Shammas v. Shammas, 9 N.J. 321, 327-330 (1952).
The exceptant further sought relief by relaxation of the rules relating to time for appeal. Former Rule 4:1-10 empowered the Superior Court, Appellate Division, to effect relaxation of the rules "except that the court may not extend the time for taking an appeal under Rule 4:2-5." (Compare Tentative Draft Rule 1:2-3(a), quoted ante). Former Rule 4:2-5 incorporated former Rule 1:2-5, supra, by reference. The exceptant's argument in this respect is diametrically opposed to the decision of this court in In re Pfizer, supra (6 N.J., at pp. 237-238). Former Rule 1:7-9, as amended January 1, 1952 and January 1, 1953, provided that
"* * * the court may not extend the time for taking any action under Rules 1:2-5 * * * 4:2-5 * * *, except that extension for a period not exceeding 30 days from the expiration of the time permitted in the Rule may be granted at any time upon a clear showing of good cause and the absence of prejudice." (Emphasis supplied)
The clear language of former Rule 1:7-9, as amended, supra, demonstrates that it modified both former Rule 1:2-5 and former Rule 4:2-5, and to that extent was applicable to the Superior Court, Appellate Division. Compare R.R. 1:1-8, R.R. 1:1-9, and R.R. 2:1-11.

THE EQUITIES
Even if procedurally relief were available in some circumstances it would not afford a basis for relief here. The facts demonstrate delay after the knowledge of the judgment was brought home to the exceptant during a period in which a 30-day extension of time could have been applied for (former Rule 1:7-9, as amended January 1, 1953, supra).
In the present case the trial judge's opinion was filed April 2, 1953; on May 15, 1953 the trial judge held a hearing *160 to settle the form of the judgment which hearing was attended by the exceptant's counsel; exceptant's counsel on or before May 25, 1953 submitted the form of judgment to the trial court and except for deletion of the last paragraph this appears to have been the judgment entered on June 17, 1953. The exceptant on August 22, 1953 had received a statement of account containing reference to the entry of the judgment on "6/17/53" and at that time (August 22) he still had at least a week within which to apply for a 30-day extension of time to take his appeal under a broad application of former Rule 1:7-9, as amended January 1, 1953, supra. In writing to the trustee on August 22, 1953 the exceptant expressly noted and did not disapprove the allowances to the trustee and its counsel made in the judgment and adverted to in the statement of account. Further, the affidavit of the exceptant's counsel shows that at 10:00 A.M. on August 31, 1953 exceptant's counsel had knowledge of the judgment and "immediately" confirmed this by a call to the Surrogate's office. However, he did not file a notice of appeal until the next day (76 days after the entry of the judgment).
In passing it is observed that former Rule 1:7-9, as amended January 1, 1953, supra, required "a clear showing of good cause." Cf. R.R. 1:1-9, supra. This requires more than a mere indication of a valid excuse for delay in serving and filing a notice of appeal. It requires a demonstration that there is a substantial and meritorious question involved in the appeal. Compare former Rule 1:5-4 (now R.R. 1:10-9). The exceptant asserts he had no access to the record and exhibits and could not frame any questions involved. This is without merit. The history of the entry of judgment, briefly recited, ante, demonstrates that the exceptant had knowledge of the opinion of the trial court (filed April 2, 1953  see In re Nuese's Estate, supra, 25 N.J. Super., at page 406), and had knowledge of the probable form of the judgment. He suggested no good cause for appeal as to any matter of substance. In respect to commissions and counsel fee exceptant raises no question and he asserted no objection *161 in his letter to the trustee, dated August 22, 1953, ante. The allowance to counsel was considerable, but the estate corpus appears to have exceeded $300,000 and the exceptions raised seem to have required extensive pretrial and trial effort and industry on the part of the trustee's attorneys. Judge Conlon, in his opinion in the Essex County Court, stated:
"All of the losses now complained of occurred some 15 or 20 years ago. Consequently the reconstruction of the details of the many transactions inquired into presented considerable difficulty." (25 N.J. Super., at page 409)
There is no indication that the trial court abused its discretion in the matter of allowances. Cf. Litcher v. Trust Co. of New Jersey, 11 N.J. 64, 81-82 (1952); Ditmars v. Camden Trust Co., supra (10 N.J., at page 499).
In summary, we find that the Superior Court, Appellate Division, correctly determined that it lacked the power in this case to extend the time within which to appeal beyond the period limited by former Rules 1:2-5 and 1:7-9, as amended, supra, under former Rule 4:1-10, supra.
For the reasons expressed in this opinion the order of the Superior Court, Appellate Division, dismissing the exceptant's appeal from the judgment of the Essex County Court and denying exceptant's motion for enlargement of time to appeal, is affirmed.
For affirmance  Chief Justice VANDERBILT, and Justices OLIPHANT, WACHENFELD, BURLING, JACOBS and BRENNAN  6.
For reversal  Justice HEHER  1.


968 A.2d 1280 (2009)
COM.
v.
DEMANCHE.[2]
No. 762 MAL (2008).
Supreme Court of Pennsylvania.
April 14, 2009.
Disposition of petition for allowance of appeal. Denied.
NOTES
[2]  Justice EAKIN did not participate in the consideration or decision of this matter.