The 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NOT FOR PUBLICATION WITHOUT THE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."
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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.
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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
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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.
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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.
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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.
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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.
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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
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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.
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