State of New Jersey, by the Commissioner of Transportation v. Cherry Hill Mitsubishi, Inc.

110 A.3d 92, 439 N.J. Super. 462

• Court: New Jersey Superior Court Appellate Division
• Decided: February 26, 2015
• Docket: A-2899-13
• Status: Published

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-2899-13T2

STATE OF NEW JERSEY, by the COMMISSIONER OF TRANSPORTATION, APPROVED FOR PUBLICATION

Plaintiff-Appellant, February 26, 2015

APPELLATE DIVISION v.

CHERRY HILL MITSUBISHI, INC., a New Jersey Corporation; FOULKE MANAGEMENT CORPORATION, a New Jersey Corporation, d/b/a Cherry Hill Triplex, Cherry Hill Dodge, Cherry Hill Kia and Cherry Hill Mitsubishi; CHERRY HILL DODGE, INC., a New Jersey Corporation,

Defendants/Third-Party Plaintiffs-Respondents,

v.

VICTOR AKPU; THE COMMISSIONER OF THE DEPARTMENT OF TRANSPORTATION,

Third-Party Defendants- Appellants.

Submitted October 1, 2014 – Decided February 26, 2015

Before Judges Alvarez, Waugh, and Maven.

On appeal from the Superior Court of New Jersey, Law Division, Camden County, Docket No. L-3489-13.

John J. Hoffman, Acting Attorney General, attorney for appellants (Melissa H. Raksa, Assistant Attorney General, of counsel; Sharon Price-Cates, Deputy Attorney General, on the brief).

Capehart & Scatchard, attorneys for respondent (Laura D. Ruccolo, on the brief).

The opinion of the court was delivered by

ALVAREZ, P.J.A.D.

The State of New Jersey filed a Rule 4:67 summary action1 to

compel removal of encroachments on a portion of its Route 70

right-of-way in Cherry Hill. See N.J.S.A. 27:7-44.1.2 On the

return date, the trial judge denied the State's requested

relief, and granted defendant Foulke Management, which operates

three car dealerships adjoining the right-of-way, the

opportunity to file responsive pleadings.

Foulke Management's second counterclaim named as

defendants: the Commissioner of the Department of Transportation

(DOT); Victor Akpu, the Director of the DOT's Division of Right-

of-Way and Access Management; and "John Does[] in their

individual capacities[.]" The counterclaim sought monetary

1 The State's appendix does not include a copy of the original complaint or order to show cause. 2 "Whenever any encroachment may exist without warrant of law in any road when taken over as a State highway, the Commissioner [of the Department of Transportation] shall notify the Attorney General, who shall proceed to cause the same to be removed as by law provided. . . . . Any such violation may be removed from any State highway as a trespass by a civil action brought by the Commissioner in the Superior Court. The court may proceed in the action in a summary manner or otherwise."

2 A-2899-13T2 damages for the alleged violation of Foulke Management's equal

protection rights under the Fourteenth Amendment of the United

States Constitution, 42 U.S.C.A. § 1983, and the New Jersey

Constitution. It also included a count for unjust enrichment

based on Foulke Management's maintenance of the State's

property, and a count for injunctive relief. The State promptly

moved to dismiss the counterclaim, on grounds of qualified

immunity, for "failure to state a claim upon which relief can be

granted." See R. 4:6-2(e). The trial judge denied that motion.

After we granted the State leave to pursue this

interlocutory appeal from that decision, Rule 2:2-4, the State

renewed its request to the trial judge for a stay of discovery.

The judge refused, noting that if the State did not complete

discovery within seventeen days, "the court will hear a motion

on sanctions." We stayed that order on the State's emergent

application.

We now reverse and dismiss the counterclaim. We remand so

the State can proceed in its action for removal.

I

Summarizing the facts, a citizen wrote several letters to

the DOT complaining of Foulke Management's encroachments on the

relevant section of Route 70, alleging that they impaired the

ability of emergency vehicles to traverse the right-of-way.

3 A-2899-13T2 After some months, apparently in response to these letters, the

State ordered Foulke Management to remove the encroachments or

face the $100 daily penalty authorized by statute. See N.J.S.A.

27:7-44.1.

In the litigation, Foulke Management's principal certified

that the author of the letters had, for some years, been

unsuccessfully attempting to sell him his adjoining land for an

inflated price, and that this was the actual motive behind the

correspondence. Foulke Management's principal also certified

that the cars parked on unpaved areas in front of its

dealerships had been removed.

Earlier, in 2005, the dealership obtained a "sidewalk

permit" from the DOT in order to reconfigure hardscape

incidental to the remodeling of its showrooms. It is not clear

if the compensation sought by way of counterclaim, on the theory

of unjust enrichment, includes the maintenance of blacktop and

landscaping in the sidewalk permit area or relates to some other

part of the right-of-way. Additionally, at oral argument before

the trial judge, Foulke Management's counsel asserted that the

engineering survey it submitted with the 2005 application

4 A-2899-13T2 conflicted with the metes-and-bounds description in the State's

deed to the right-of-way.3

II

Motions to dismiss for failure to state a claim require the

complaint be searched in depth and with liberality to determine

if there is any "cause of action [] 'suggested' by the facts."

Printing-Mart Morristown v. Sharp Elecs. Corp., 116 N.J. 739,

746 (1989). The inquiry is limited to "examining the legal

sufficiency of the facts alleged on the face of the complaint."

Ibid. On appeal, review is plenary and we owe no deference to

the trial judge's conclusions. Rezem Family Assocs., LP v.

Borough of Millstone, 423 N.J. Super. 103, 114 (App. Div.),

certif. denied, 208 N.J. 366 (2011).

Foulke Management is entitled to every reasonable inference

of fact, but the counterclaim will nonetheless be dismissed if,

after applying these principles, no cause of action emerges.

See ibid. Dismissal is the appropriate remedy where the

pleading does not establish a colorable claim and discovery

would not develop one. Camden Cnty. Energy Recovery Assocs. v.

N.J. Dep't of Envtl. Prot., 320 N.J. Super. 59, 64 (App. Div.

1999), aff’d o.b., 170 N.J. 246 (2001).

3 The State gained title to the right-of-way in 1989 following condemnation proceedings.

5 A-2899-13T2 A.

Turning to the State's assertion of qualified immunity as

grounds for dismissal, it is well-established that the doctrine

balances the need to hold public officials accountable for

improperly exercising their power against the need to protect

them from civil liability when they perform their duties

reasonably. Gormley v. Wood-El, 218 N.J. 72, 113 (2014). The

question should be determined as early as possible in the

litigation. Wildoner v. Borough of Ramsey, 162 N.J. 375, 387

(2000). The issue of whether qualified immunity applies raises

a "matter of law to be decided by a court, preferably on a

properly supported motion for summary judgment or dismissal."

Gormley, supra, 218 N.J. at 113 (citation omitted) (internal

quotation marks omitted). Qualified immunity protects public

officials from suit, rather than merely providing them with a

defense to liability. Id. at 113. Thus, the State's

application to dismiss the counterclaim for failure to state a

claim on the grounds of qualified immunity, because of the

protection the doctrine extends to State officials, was made at

the procedurally optimal stage.

In order to determine whether government officials are

entitled to qualified immunity, courts employ the two-pronged

test outlined in Saucier v. Katz, 533 U.S. 194, 200, 121 S. Ct.

6 A-2899-13T2 2151, 2155, 150 L. Ed. 2d 272, 281 (2001), rev'd on other

grounds in Pearson v. Callahan, 555 U.S. 223, 236 129 S. Ct.

808, 818, 172 L. Ed. 2d 565, 576 (2009). We ask (1) "whether a

constitutional right would have been violated on the facts

alleged" and (2) "whether the right was clearly established."

Saucier, supra, 533 U.S. at 200, 121 S. Ct. at 2155, 150 L. Ed.

2d at 281. In Pearson, the Supreme Court held that the sequence

in which the Saucier factors are considered is not mandatory,

and that judges "should be permitted to exercise their sound

discretion in deciding which of the two prongs of [] qualified

immunity [] should be addressed first in light of the

circumstances in the particular case at hand." Pearson, supra,

129 S. Ct. at 818.

In this case, we address the first question raised in

Saucier —— whether Foulke Management has a constitutional right

to continue to encroach. Foulke Management asserts a property

interest in its ability to encroach upon the government's fee

simple ownership of a right-of-way. It further alleges it is

being dealt with in a discriminatory fashion, and its vested

property interest harmed, because other businesses along the

roadway who are similarly in the State's right-of-way are not

being compelled to relocate.

7 A-2899-13T2 Although Foulke Management might have had a potential

adverse interest claim against a private party because of its

years of use of the right-of-way, and therefore a potentially

ascertainable interest in the area of encroachment, that cannot

be the case here. No such claim can be brought against the

State. Patton v. North Jersey Dist. Water Supply Com., 93 N.J.

180, 190 (1983) (citing Quinlan v. Fair Haven, 102 N.J.L. 443,

446 (E. & A. 1925); Cross v. Mayor of Morristown, 18 N.J. Eq.

305, 310-13 (Ch. 1867)) ("It is well-established that adverse

possession does not run against the State.").

Foulke Management has not provided us with any support for

the proposition that it has a vested, protected, or even legally

cognizable property interest in continuing to encroach on State

lands. It is a notion that on its face lacks merit. Having

concluded that Foulke Management has "no constitutional right

[that] would have been violated" were its allegations

established, it, of necessity, fails to meet the first Saucier

prong. Saucier, supra, 533 U.S. at 200, 121 S. Ct. at 2156, 150

L. Ed. 2d at 281. Thus, as a matter of law, the Commissioner

and Akpu are entitled to qualified immunity because they had no

reason to know Foulke Management had any interest, much less a

constitutional right, which would be violated by the removal

proceeding.

8 A-2899-13T2 Even if Foulke Management could demonstrate at trial that

the DOT is mistaken as to the contours of its right-of-way, that

does not suffice to strip DOT officials of qualified immunity.

A mistake does not expose the named officials to a suit for

monetary damages or entitle the claimant to continue the

litigation against them for the purpose of establishing that a

mistake occurred.

As the United States Supreme Court has explained, "[t]he

protection of qualified immunity applies regardless of whether

the government official's error is 'a mistake of law, a mistake

of fact, or a mistake based on mixed questions of law and

fact.'" Pearson, supra, 555 U.S. at 231, 129 S. Ct. 815, 172 L.

Ed. 2d at 573 (quoting Groh v. Ramirez, 540 U.S. 551, 567, 124

S. Ct. 1284, 1295, 157 L. Ed. 2d 1068, 1084 (2004) (Kennedy, J.,

dissenting)).

Therefore, after searching the counterclaim with

liberality, and viewing the facts in the light most favorable to

Foulke Management, we find no cause of action exists. Qualified

immunity protects DOT personnel from the counterclaim, and it

must be dismissed.

B.

In relevant part, the New Jersey Contractual Liability Act

("CLA") provides that "[t]he State of New Jersey hereby waives its

9 A-2899-13T2 sovereign immunity from liability arising out of an express

contract or a contract implied in fact . . . provided, however,

that there shall be no recovery against the State . . . for claims

based upon . . . contracts implied in law." N.J.S.A. 59:13-3

(emphasis added). A "contract implied in fact" is merely one kind

of "express contract," while the terms "contract implied in law"

and "quasi-contract" are nearly synonymous.4 The implied-in-law

contract is an equitable remedy for unjust enrichment.

"[T]he [CLA] effects a limited waiver of sovereign immunity"

in contract disputes. Cty. of Hudson v. State, 208 N.J. 1, 13

(2011). The CLA does not, however, waive sovereign immunity except

as to those "suits based on an express contract or contracts

implied in fact." Allen v. Fauver, 167 N.J. 69, 77 (2001). The

equitable remedy of an implied-in-law contract for unjust

enrichment would arise only when one party has conferred a benefit

on another and the denial of recovery would be unjust. See

Weichert Co. Realtors v. Ryan, 128 N.J. 427, 437 (1992). That is

4 1-1 Corbin on Contracts § 1.20 (Matthew Bender ed. 2014). See West Caldwell v. Caldwell, 26 N.J. 9, 28 (1958) ("[A] quasi- contractual obligation is created by the law, for reasons of justice, without regard to expressions of assent by either words or acts; the legal relations between contractors are dependent upon the interpretation of their expressions of assent; in quasi- contract the relations of the parties are not dependent on such interpretation." (emphasis added) (internal quotation marks omitted)); Restatement (Second) of Contracts ch. 1, § 4, cmt. b (1981) ("[U]nlike true contracts, quasi-contracts are not based on the apparent intention of the parties to undertake the performances in question, nor are they promises. They are obligations created by law for reasons of justice." (emphasis added)).

10 A-2899-13T2 the claim Foulke Management raises here. We therefore also hold

that the CLA bars Foulke Management from any recovery for alleged

unjust enrichment, as the only basis for such relief is a contract

implied in law.

C.

Injunctive relief may be available even where qualified

immunity protects public officials from suits for money damages.

See Gormley, supra, 218 N.J. at 115-16. If the State is unable to

establish that Foulke Management is trespassing within its boundary

lines, however, then Foulke Management has the right to continue

its use free from further legal action by the State. No injunctive

relief would therefore be necessary and, on this record, we see no

other basis for such relief.

Reversed and remanded.

11 A-2899-13T2