ALL VISION, LLC VS. CAROLE MEDIA, LLC VS. NEW JERSEY TRANSIT CORPORATION (L-0915-09, SOMERSET COUNTY AND STATEWIDE) ( 2019 )


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  •                                 NOT FOR PUBLICATION WITHOUT THE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.
    SUPERIOR COURT OF NEW JERSEY
    APPELLATE DIVISION
    DOCKET NO. A-3378-16T4
    ALL VISION, LLC, as agent
    for New Jersey Transit Corp.,
    an instrumentality of the State
    of New Jersey,
    Plaintiff-Respondent/
    Cross-Appellant,
    v.
    CAROLE MEDIA, LLC,
    Defendant-Third-Party
    Plaintiff-Appellant/
    Cross-Respondent,
    v.
    NEW JERSEY TRANSIT
    CORPORATION, LOVE
    OUTDOOR, LLC n/k/a
    SHAMROCK OUTDOOR,
    LLC, ROBERT LAMBERT, THE
    NEW JERSEY DEPARTMENT
    OF TRANSPORTATION,
    STUART A. BROOKS and
    MICHAEL J. McGUIRE,
    Third-Party Defendants-
    Respondents.
    _____________________________
    Argued April 30, 2019 – Decided August 6, 2019
    Before Judges Hoffman, Suter and Enright.
    On appeal from the Superior Court of New Jersey, Law
    Division, Somerset County, Docket No. L-0915-09.
    Mitchell B. Seidman argued the cause for
    appellant/cross-respondent Carole Media, LLC
    (Freedman & Friedland, LLC, attorneys; Mitchell B.
    Seidman, Steven M. Friedland, and Andrew Pincus, on
    the briefs).
    Ronald L. Glick argued the cause for respondent/cross-
    appellant All Vision, LLC.
    Frank J. Marasco, Deputy Attorney General, argued the
    cause for respondent New Jersey Transit Corporation
    (Gurbir S. Grewal, Attorney General, attorney; Melissa
    Dutton Schaffer, Assistant Attorney General, of
    counsel; Frank J. Marasco, on the brief).
    Gregory F. Kotchick argued the cause for respondent
    Love Outdoor, LLC, n/k/a Shamrock Outdoor, LLC
    (Durkin & Durkin, LLC, attorneys; Gregory F.
    Kotchick, of counsel and on the brief).
    Jennifer R. Jaremback, Deputy Attorney General,
    argued the cause for respondents The New Jersey
    Department of Transportation, Stuart A. Brooks, and
    Michael J. McGuire (Gurbir S. Grewal, Attorney
    General, attorney; Melissa Dutton Schaffer, Assistant
    Attorney General, of counsel; Jennifer R. Jaremback,
    on the brief).
    A-3378-16T4
    2
    PER CURIAM
    In this litigation concerning the ownership and use of certain billboard
    sites, plaintiff All Vision, LLC (All Vision) sought back rent from defendant
    Carole Media, LLC (Carole Media), which in turn asserted claims to recover
    either the billboard structures on those sites or compensation for those
    structures. Carole Media appeals from the dismissal of its claims, while All
    Vision cross-appeals only from the dismissal of its claim for damages resulting
    from an injunction Carole Media secured in federal court. We affirm in part,
    and reverse and remand in part.
    I.
    In May 2004, All Vision began serving as the exclusive agent for New
    Jersey Transit Corporation (NJ Transit) in managing its property for outdoor
    advertising purposes, including licensing the entities which operate billboards
    on its property. Prior to All Vision's assumption of that role, Carole Media
    entered into licenses with NJ Transit to use two of the agency's sites in Wayne
    and one in Bridgewater. The licenses included the building, maintenance, and
    operation of billboard structures on each of the sites. The licenses provided for
    a five- or one-year term renewable in one-year increments and authorized
    termination on thirty days' notice.      Carole Media secured the necessary
    A-3378-16T4
    3
    approvals for erecting the billboards, financed their construction, sold
    advertising to display on them, and maintained them in working order.
    During the term of those licenses, then-Governor James McGreevey
    established a task force to "review[] New Jersey's existing policies for the sale,
    lease, development, construction and siting of billboards." Carole Media LLC
    v. N.J. Transit Corp., 
    550 F.3d 302
    , 305 (3d Cir. 2008).          The task force
    recommended "that [S]tate entities adopt competitive bidding for the lease of all
    billboard sites on public property." 
    Ibid. After a bidding
    process, NJ Transit selected All Vision to manage its
    billboard sites. 
    Ibid. The Legislature, meanwhile,
    amended the Roadside Sign
    Control and Outdoor Advertising Act, N.J.S.A. 27:5-5 to -28, requiring State
    entities to conduct public bidding before licensing its advertising space.
    N.J.S.A. 52:31-1.1a. Existing licenses could be renewed for up to five years,
    however. 
    Ibid. NJ Transit renewed
    Carole Media's existing licenses twice. Carole 
    Media, 550 F.3d at 305
    . Each of the final licenses, between Carole Media and All
    Vision as agent for NJ Transit, were to run for one year, and "thereafter as may
    be extended" in one-year increments, unless terminated.
    A-3378-16T4
    4
    The licenses specified "[a]ll signboards, structures, equipment and
    materials erected or used under this license by the Licensee shall remain its
    personal property," but in the event of termination:
    The Licensee agrees at its own expense to remove all
    signboards and advertising structures covered by this
    license within a period of thirty (30) days after the
    termination of this license or any extension thereof or
    within whatever shorter period of time may be specified
    in written notice of cancellation . . . . If the removal is
    not so completed by the Licensee, Licensor may at any
    time thereafter elect . . . to take title on behalf of NJ
    TRANSIT to said signboards and advertising structures
    without compensation to the Licensee . . . .
    [(Emphasis added).]
    Carole Media claims issues arose in fall 2005 when All Vision, intending
    to terminate the licenses and conduct public bidding, attempted to pressure
    Carole Media into transferring its permits for access to the sites from the New
    Jersey Department of Transportation (NJDOT). All Vision sent Carole Media a
    letter on March 17, 2006, advising that it would be terminating all three licenses
    effective August 31, 2006, and requiring Carole Media to remove its structures
    within thirty days of that termination, with any extensions granted "at the sole
    discretion of All Vision and NJ Transit due to the number of structures that need
    to be removed." All Vision published a request for bids for these and seventeen
    other sites in April 2006 and, notwithstanding Carole Media's submission of bids
    A-3378-16T4
    5
    for its three, ultimately awarded all twenty licenses to advertising company
    Clear Channel.    Nonetheless, Carole Media remained on the property and
    continued to pay rent.
    In July 2007, All Vision sent Carole Media a letter outlining safety
    procedures it needed to follow to remove its billboards. It required Carole Media
    to complete applications and remit payment for demolition permits from the
    New Jersey Department of Community Affairs (DCA). NJ Transit would submit
    the materials on defendant's behalf. All requested documentation would have to
    be submitted by August 17, 2007. After the deadline passed, All Vision sent
    Carole Media a final notice requiring removal of the billboards by November
    30, 2007. Defendant replied on September 28, 2007, stating it "intend[ed] to
    fully comply with the deadline."
    According to Carole Media, it undertook to deconstruct the billboards on
    the two Wayne sites in November 2007 but was ordered off the property by All
    Vision's and NJ Transit's representatives. Carole Media then informed All
    Vision that its inability to comply with the looming deadline would not
    constitute its abandonment of its billboards.     Carole Media also cancelled
    contracts with its advertisers for the sites and sought the appropriate permits
    from DCA for demolition, without success. All Vision ceased sending Carole
    A-3378-16T4
    6
    Media invoices for rent on the Wayne sites after the deadline passed, but
    defendant refused to relinquish control of the Bridgewater site and continued to
    pay rent.
    In the meantime, Carole Media pursued a takings claim in federal court
    based on All Vision's termination of the licenses, and, in December 2007,
    secured a temporary injunction from the Third Circuit with respect to the
    removal of any structures from the Wayne and Bridgewater sites. The appeal
    was dismissed, along with the injunction, in December 2008, but Clear Channel
    had withdrawn its bids when the injunction prevented All Vision and NJ Transit
    from delivering the sites.
    All Vision sent Carole Media a notice in April 2009, requesting it remove
    the structures within thirty days, demanding payment of back rent, and asserting
    All Vision could take title to the structures on NJ Transit's behalf in the event
    of noncompliance. Carole Media took steps to comply, but did not remove the
    structures.
    All Vision, on behalf of NJ Transit, filed a complaint against Carole Media
    in May 2009, seeking unpaid rent and lost revenue due to the injunction. Carole
    Media filed an answer, counterclaim, and third-party complaint against NJ
    Transit.
    A-3378-16T4
    7
    Meanwhile, All Vision reopened bidding on the properties in September
    2009 and awarded licenses for the Bridgewater and Wayne properties to
    billboard operator Love Outdoor, now known as Shamrock Outdoor
    (Shamrock). All Vision sent Carole Media a letter on April 14, 2010, permitting
    Carole Media a final chance to remove its structures from the sites within thirty
    days. Carole Media attempted to, but could not remove the structures by the
    deadline.
    In August 2010, NJDOT revoked Carole Media's permits to access the
    sites.     Carole Media protested, triggering proceedings in the Office of
    Administrative Law (OAL). When Shamrock began accessing the billboards,
    Carole Media sent a letter to NJ Transit, All Vision, and Shamrock, demanding
    they cease trespassing on or otherwise using the structures.
    With leave of court, Carole Media added Shamrock as a third-party
    defendant. All Vision and NJ Transit made a joint motion to dismiss, and in
    July 2011, Judge Yolanda Ciccone issued an order granting that motion in part ,
    dismissing Carole Media's claims for breach of contract, breach of the implied
    covenant of good faith and fair dealing, and tortious interference.
    In January 2012, the Commissioner of NJDOT issued a final
    administrative decision, concluding the revocation of Carole Media's permits
    A-3378-16T4
    8
    had been proper, thereby allowing the issuance of new permits for the sites.
    NJDOT issued NJ Transit permits for all three sites in February 2012.
    All Vision, NJ Transit, and Shamrock then filed motions for summary
    judgment in the matter under review, which the judge granted in part. With
    leave of court, however, Carole Media filed a fourth amended counterclaim and
    third-party complaint, which reasserted claims the judge previously dismissed,
    except to ground them in conduct beginning in February 2012, when the new
    permits had been issued to NJ Transit. Shamrock filed a motion to dismiss,
    which the judge granted in full. NJDOT filed for summary judgment, which the
    judge granted in part.
    Prior to the completion of discovery, Carole Media filed a motion for
    partial summary judgment seeking declaratory relief solely as to the Bridgewater
    billboard. Meanwhile, NJDOT, All Vision, and NJ Transit all filed for summary
    judgment against Carole Media in August 2016. Judge Thomas C. Miller issued
    a set of orders and opinions in October 2016, denying Carole Media's motion
    and granting All Vision, NJ Transit, and NJDOT summary judgment on all of
    Carole Media's remaining claims. All Vision's claims were later dismissed.
    Carole Media appealed and All Vision cross-appealed.
    A-3378-16T4
    9
    II.
    Carole Media argues the court erred in granting All Vision and NJ Transit
    summary judgment on Carole Media's claims for inverse condemnation, various
    torts, and unjust enrichment.
    We will affirm the grant of summary judgment where "the pleadings,
    depositions, answers to interrogatories and admissions on file, together with
    affidavits, if any, show that there is no genuine issue as to any material fact
    challenged and that the moving party is entitled to a judgment or order as a
    matter of law." R. 4:46-2(c). Like the trial court, we construe the evidence in
    the light most favorable to the nonmoving party and accord that party the benefit
    of all favorable inferences therefrom. Brill v. Guardian Life Ins. Co. of Am.,
    
    142 N.J. 520
    , 523-24, 535 (1995).
    Summary judgment is ordinarily inappropriate prior to the completion of
    discovery. Velantzas v. Colgate-Palmolive Co., Inc., 
    109 N.J. 189
    , 193 (1988).
    However, the mere availability of further discovery does not preclude granting
    judgment as a matter of law. Wellington v. Estate of Wellington, 
    359 N.J. Super. 484
    , 496 (App. Div. 2003). To prevail, the party opposing summary judgment
    must explain "with some degree of particularity the likelihood that further
    discovery will supply the missing elements of the cause of action" and impact
    A-3378-16T4
    10
    the outcome of the litigation. 
    Ibid. (quoting Auster v.
    Kinoian, 
    153 N.J. Super. 52
    , 56 (App. Div. 1977)). The information sought must be material to an already
    asserted claim, rather than meant to support the formulation of further causes of
    action. 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).
    We first address the trial court's grant of summary judgment dismissing
    Carole Media's claims for inverse condemnation.
    Our state and federal constitutions forbid the government from taking
    private property for public use without just compensation. U.S. Const. amend.
    V; N.J. Const. art. I, § 20; see also Mansoldo v. State, 
    187 N.J. 50
    , 58 (2006)
    (noting these state and federal constitutional guarantees are coextensive). A
    taking occurs where the government deprives a property owner of the use or
    ownership of its property, most directly by authorizing a physical occupation of
    the property or acquisition of its title. Yee v. Escondido, 
    503 U.S. 519
    , 522
    (1992). A governmental entity's taking of personal property entitles the owner
    to just compensation no less than a taking of real property. Warner/Elektra/Atl.
    Corp. v. Cnty. of DuPage, 
    991 F.2d 1280
    , 1285 (7th Cir. 1993). Absent any
    formal proceeding brought by that entity to effect the taking, a cause of action
    for inverse condemnation permits a property owner a means of recovery and
    A-3378-16T4
    11
    arises from the "self-executing character of the constitutional provision with
    respect to compensation." Raab v. Borough of Avalon, 
    392 N.J. Super. 499
    ,
    509-10 (App. Div. 2007) (quoting United States v. Clarke, 
    445 U.S. 253
    , 257
    (1980)).
    Carole Media alleged All Vision and NJ Transit took its billboard
    structures for public use without just compensation. But because the parties'
    rights and obligations were governed by license agreements, and because All
    Vision was not itself a governmental entity, we must decide whether Carole
    Media could maintain these claims against All Vision, and also whether the
    claims could advance, despite the underlying wrongs sounding in breach of
    contract.
    The trial court concluded the contractual relationship precluded Carole
    Media's claim for inverse condemnation. It found dispositive the decision of the
    United States Court of Federal Claims in Griffin Broadband Communications,
    Inc. v. United States, 
    79 Fed. Cl. 320
    , 323-24 (2007), which, as discussed below,
    it interpreted to plainly preclude a takings claim where an issue of breach of
    contract already existed. Because its claims were intimately related to a breach,
    the court reasoned Carole Media could not maintain the claims as a matter of
    law.
    A-3378-16T4
    12
    The trial court also determined those claims could not be asserted against
    All Vision, because All Vision, a private entity, could not perform a
    governmental action. All Vision acted only as an agent for NJ Transit, not on
    its own behalf, and never asserted ownership over any assets claimed by Carole
    Media. The court therefore awarded summary judgment to All Vision and NJ
    Transit on Carole Media's inverse condemnation claim.
    Carole Media argues All Vision and NJ Transit took the property it
    previously purchased, assembled, and maintained, without compensation by
    abusing a contractual provision granting title to NJ Transit and All Vision if it
    failed to remove the structures within thirty days following termination of the
    licenses. Further, Carole Media contends enforcement of the license agreement
    should not constitute its sole recourse for compensation. Indeed, it asserts an
    action simply to enforce the license agreements would not suffice to compensate
    defendant for the full spectrum of its loss.
    Carole Media analogizes to the circumstance where a landlord unlawfully
    holds a tenant's property following a lease, because in that instance, the tenant
    would have a claim for conversion. See Cohen v. Korol, 
    9 N.J. Super. 182
    , 185-
    86 (App. Div. 1950). Likewise, Carole Media argues it should be able to
    maintain claims for conversion and inverse condemnation. Defendant views
    A-3378-16T4
    13
    
    Griffin, 79 Fed. Cl. at 323-24
    , as inapplicable, because the property at issue
    there, the contractual rights themselves, was different from that at issue here,
    the physical billboard structures. Carole Media further argues that, unlike in
    Griffin, its claims did not involve obligations arising under the licenses, and so
    did not actually sound in contract.
    Carole Media asserts further that factual issues should have precluded the
    grant of summary judgment. Lastly, Carole Media contends the court erred in
    determining an inverse condemnation claim could not be brought against a
    private entity, asserting the law permits maintenance of an inverse
    condemnation action against such an entity so long as the property was taken for
    a public use. See Ardoin v. State, 
    679 So. 2d 928
    , 932 (La. App. Ct. 1996).
    With respect to All Vision's exposure to liability, the court explicitly
    considered and correctly rejected the reasoning of 
    Ardoin, 679 So. 2d at 932
    , on
    which Carole Media relied. Critically, the claim in that case relied on the
    Louisiana state constitution, 
    id. at 932,
    which we are not bound to follow.
    Carole Media is correct, however, that the court misinterpreted 
    Griffin, 79 Fed. Cl. at 323-24
    . There, the Army prematurely terminated a contract with an
    entity that provided cable television and related services to personnel stationed
    on or near one of its bases and, in so doing, required that the entity cease
    A-3378-16T4
    14
    operations and remove its equipment from the base. 
    Id. 322. The
    entity then
    made takings claims stemming from the Army's actions relating to the contract
    and presenting the question as to when contractual rights themselves may be the
    subject of a taking. 
    Id. 322-23. In
    the course of deciding that the particular
    claims at issue were not viable as a matter of law, the Court of Federal Claims
    explained:
    The Government's alleged failure to fulfill its contract
    obligations would constitute a breach of contract, but is
    not itself a taking of property compensable under the
    Fifth Amendment. See United States v. Winstar Corp.,
    
    518 U.S. 839
    , 868-71, 907-10 (1996); see also 
    id. at 919
                 (Scalia, J., concurring) ("Virtually every contract
    operates, not as a guarantee of particular future
    conduct, but as an assumption of liability in the event
    of nonperformance: The duty to keep a contract at
    common law means a prediction that you must pay
    damages if you do not keep it,—and nothing else."). A
    contract itself does constitute a property interest that
    potentially can be the subject of a taking. A contract is
    not considered taken, however, when the Government
    breaches a contract, but does not deprive a contract
    holder of the right to seek damages for breach of that
    contract. Castle v. United States, 
    301 F.3d 1328
    , 1342
    (Fed. Cir. 2002). As defendant argues, this situation is
    not comparable to the one in Lynch v. United States,
    
    292 U.S. 571
    (1934), in which Congress had
    "eliminated altogether a forum for advancing a breach
    of contract claim." . . . In the instant case, plaintiffs are
    free to pursue whatever remedy their agreement with
    the Army allows. No taking lies, however, because the
    Government has not engaged in any "legislative or
    administrative actions that abrogated or repudiated any
    A-3378-16T4
    15
    contract obligation or otherwise impaired [plaintiffs']
    ability to enforce [their rights] secured under the terms
    of the contract." Janicki Logging Co. v. United States,
    
    36 Fed. Cl. 338
    , 346 (1996), aff'd, 
    124 F.3d 226
    (Fed.
    Cir. 1997).
    
    [Griffin, 79 Fed. Cl. at 324
    (citations reformatted).]
    Thus, although a contract constitutes a property interest that may be taken,
    there is no taking so long as recovery could be had for the breach. 
    Ibid. The court here
    misunderstood that to mean that an inverse condemnation claim could
    never be viable so long as a related contractual claim was available. The subject
    of the taking here, at least to the extent of Carole Media's challenge of the trial
    court's decisions, is the billboard structures, not the licenses themselves, and
    nothing in Griffin precludes defendant from maintaining an inverse
    condemnation claim based on the taking of the structures, even though claims
    for breach of contract may also be available.
    Further, the taking Carole Media challenges occurred pursuant to the
    terms of a license agreement into which it voluntarily entered. The taking
    occurred without compensation, but the license terms specified that none would
    be due. It thus does not constitute a constitutional deprivation in itself. The
    alleged conduct that prevented Carole Media from removing its structures before
    it had to forfeit them made the taking possible, and so arguably caused it. But
    A-3378-16T4
    16
    whether that suffices to constitute a constitutional deprivation or just amounts
    to a breach of the implied covenant of good faith and fair dealing, see Wood v.
    N.J. Mfrs. Ins. Co., 
    206 N.J. 562
    , 577 (2011), is at least questionable.
    Regardless, aside from the incorrect ground on which the trial court relied,
    the moving parties did not assert and the court did not identify any valid ground
    for granting judgment as a matter of law outright on these claims. We therefore
    reverse the court's grant of summary judgment, but only as to Carole Media's
    inverse condemnation claims against NJ Transit and only insofar as Carole
    Media alleges a taking of the physical billboard structures, as opposed to the
    licenses or permits.
    Carole Media next argues the trial court erred in granting All Vision and
    NJ Transit summary judgment on its remaining claims for conversion, trespass,
    and civil conspiracy, because it failed to comply with notice requirements under
    the Tort Claims Act1 (TCA), and because the claims were precluded by the
    economic loss doctrine.
    The TCA broadly forbids any action "against a public entity or public
    employee under th[e] [A]ct unless the claim on which it is based [has] been
    presented in accordance with the procedure set forth" in the Act. N.J.S.A. 59:8-
    1
    N.J.S.A. 59:1-1 to 12-3.
    A-3378-16T4
    17
    3. In particular, such a claim must be "presented by the claimant or by a person
    acting on his behalf" and must include:
    a. The name and post office address of the claimant;
    b. The post-office address to which the person
    presenting the claim desires notices to be sent;
    c. The date, place and other circumstances of the
    occurrence or transaction which gave rise to the
    claim asserted;
    d. A general description of the injury, damage or
    loss incurred so far as it may be known at the time
    of presentation of the claim;
    e. The name or names of the public entity, employee
    or employees causing the injury, damage or loss,
    if known; and
    f. The amount claimed as of the date of presentation
    of the claim, including the estimated amount of
    any prospective injury, damage, or loss, insofar
    as it may be known at the time of the presentation
    of the claim, together with the basis of
    computation of the amount claimed.
    [N.J.S.A. 59:8-4.]
    A claimant must provide such notice no later than ninety days after accrual of
    the cause of action; the claimant will be "forever barred" from recovery for
    failure to comply. N.J.S.A. 59:8-8.
    A-3378-16T4
    18
    Nonetheless, we recognize these requirements are not a "trap for the
    unwary," and have permitted parties to maintain claims so long as "notice has
    been given in a way, which . . . substantially satisfies the purposes for which
    notices of claims are required." Lebron v. Sanchez, 
    407 N.J. Super. 204
    , 215-
    16 (App. Div. 2009). Specifically, those purposes are:
    (1) to allow the public entity at least six months for
    administrative review with the opportunity to settle
    meritorious claims prior to the bringing of suit; (2) to
    provide the public entity with prompt notification of a
    claim in order to adequately investigate the facts and
    prepare a defense; (3) to afford the public entity a
    chance to correct the conditions or practices which gave
    rise to the claim; and (4) to inform the State in advance
    as to the indebtedness or liability that it may be
    expected to meet.
    [Beauchamp v. Amedio, 
    164 N.J. 111
    , 121-22 (2000)
    (internal quotation marks and citation omitted).]
    Whether a given notice substantially complies with the requirements entails a
    "fact-sensitive analysis involving the assessment of all of the idiosyncratic
    details of a case." Galik v. Clara Maass Med. Ctr., 
    167 N.J. 341
    , 356 (2001)
    (quoting Cornblatt v. Barow, 
    153 N.J. 218
    , 240 (1998)).
    Carole Media relies on a letter its counsel sent to the deputy attorney
    general representing NJ Transit. The letter, which Carole Media's counsel also
    sent to all opposing counsel, did not concern notice of a claim, but rather the
    A-3378-16T4
    19
    "permitted locations for the three . . . [o]utdoor [a]dvertising [p]ermits" at issue.
    The author asserted Carole Media considered itself the owner of the billboards,
    and that it had consistently held that position in this litigation, in which the issue
    of ownership remained in dispute. He then brought up NJDOT's issuance of
    new permits for the sites, which would give NJ Transit, All Vision, or Shamrock
    the ability to access and use the billboards. The letter demanded NJ Transit, All
    Vision, and Shamrock immediately cease use of the billboards.                He then
    requested that, to the extent use continued, those entities have in place
    appropriate insurance policies for the billboards naming Carole Media as an
    additional insured. He advised further that nothing in the letter should be
    deemed an admission that Carole Media did not continue to own the billboards.
    In closing, he stated:
    All rights, claims, and defenses are reserved, including,
    but not limited to, those relating to Carole Media's
    ownership of the Billboards, and Carole Media's ability
    to seek money damages from your respective clients
    both to the extent Carole Media is damaged by their
    failure to obtain the above insurance, and to the extent
    your respective clients' [u]se of the Billboards inures to
    their financial or other benefit and/or to Carole Media's
    financial or other detriment.
    In addressing the summary judgment motion, the court acknowledged
    Carole Media had neither used the correct form required for a tort claim notice
    A-3378-16T4
    20
    nor served its letter directly on NJ Transit itself. But the court rejected that
    either of these minor defects could undermine the validity of the purported
    notice, adding it would be "hyper-technical and absurd" to hold otherwise.
    Nonetheless, the court found the letter deficient.        The letter neither
    mentioned the TCA nor the words "notice," "claim," "tort," "trespass,"
    "conversion," "civil conspiracy," or any other tort-based cause of action.
    Indeed, the court explained:
    A fair reading of the letter indicates that it is not a
    "Notice of Claim" at all, but instead a "lawyer[']s letter"
    that was part of the "positioning" and "jockeying" of
    the parties during the course of this litigation. The
    purposes of the letter appear to be to stake out a position
    and to make sure that insurance was put in place to
    protect Carole Media's interests. To now attempt to
    "long after the fact" attribute other meanings or purpose
    to the letter is simply a self-serving perversion of the
    clear language.
    The court found particularly curious that the letter, if intended as a tort
    claim notice, would be "so thoroughly disguised," given a lawyer had written it.
    In addition, the letter had been sent to other litigants as well, and that counsel's
    response merely acknowledged its receipt and disagreed with its contents
    without mentioning the TCA. The court concluded, therefore, that Carole Media
    had failed to provide adequate notice, and dismissed its claims against both NJ
    Transit and All Vision.
    A-3378-16T4
    21
    On appeal, Carole Media maintains it substantially complied with the
    notice requirements. It acknowledges its letter never identified any specific
    torts, mentioned the Act, or included most of the other key words the court
    pointed out, but asserts that none of those elements are strictly requir ed by
    relevant authority. Further, the letter did, contrary to the court's ruling, at least
    use the word "claim," mention the name of the claimant and the sender's name
    and address, provide some information as to the circumstances from which the
    claims arose, and identify NJ Transit as a responsible party. Moreover, Carole
    Media contends the court failed to appreciate the significance of counsel's near-
    immediate response, which it argues confirms counsel's understanding of the
    letter as constituting notice.
    Regardless, most of those circumstances weigh against Carole Media. The
    letter was sent to counsel in the context of already ongoing litigation. Thus, it
    is not obvious the letter meant to provide any notice of liability for further t ort
    claims redundant to those already pled, particularly in light of the author's failure
    to explicitly invoke either the statute or any specific cause of action or to at least
    mention the word "notice."
    While the language in the closing paragraph could, in isolation,
    foreshadow additional claims, context suggests those final sentences served as
    A-3378-16T4
    22
    a warning that additional damages might flow from the claims already asserted.
    There was simply no clear notice of tort claims.
    We therefore affirm the trial court's determination that the letter failed to
    satisfy the notice requirements of the TCA and that Carole Media was barred
    from bringing its claims for conversion, trespass, and civil conspiracy against
    All Vision and NJ Transit.
    Carole Media next argues the court erred in granting plaintiff summary
    judgment on its claim for unjust enrichment. However, Carole Media does not
    challenge an order issued three years earlier by Judge Ciccone dismissing a
    claim for unjust enrichment as part of the third amended complaint.
    The claim on appeal involved the same alleged injustice as the claim in its
    third amended pleading, except confined to the timeframe following NJDOT's
    issuance of new permits for access to the sites in February 2012. Judge Miller
    observed the claim presented no new facts and that nothing in the prior decision
    depended on the timeframe covered by the claim. He recognized the previous
    decision as the law of the case and saw no basis to "resurrect" this already-
    dismissed claim.
    Carole Media argues on appeal that Judge Miller's reliance on Judge
    Ciccone's earlier decision was mistaken.           Defendant acknowledges the
    A-3378-16T4
    23
    revocation of its permits and issuance of new ones to NJ Transit did bear on
    unjust enrichment claim, but not to the extent it disputed ownership of the
    billboards.   The revocation of its permits, it explains, did not "alter the
    circumstances under which [All Vision and NJ Transit] attempted to manipulate
    and force [it] to 'abandon' the billboards and thereby unjustly enrich themselves
    at [its] expense."
    But the ability to profit from use of the billboards hinges on the
    authorization. Once Carole Media's permits were revoked in a decision it did
    not appeal, it had no right to access to the property and use the billboards for its
    own profit. Carole Media does not appeal from Judge Ciccone's determination
    that the prior iteration of its unjust enrichment claim was legally deficient on
    that ground. We therefore affirm.
    Carole Media next contends the trial court erred in denying it partial
    summary judgment on its claim for declaratory relief, specifically, a declaration
    that it owned at least the Bridgewater billboard and therefore retained the right
    to remove it. Because the court not only declined to award defendant partial
    summary judgment on that claim but wound up dismissing the claim instead,
    Carole Media's arguments must also be understood to challenge the dismissal.
    A-3378-16T4
    24
    Although we do not "render advisory opinions or function in the abstract,"
    Crescent Park Tenants Ass'n v. Realty Equities Corp. of N.Y., 
    58 N.J. 98
    , 107
    (1971), we may grant declaratory relief to the extent there exists an "actual
    dispute between parties who have a sufficient stake in the outcome," N.J. Ass'n
    for Retarded Citizens, Inc. v. N.J. Dep't of Human Servs., 
    89 N.J. 234
    , 241
    (1982) (NJARC). We may issue declaratory judgment in "controversies which
    have not yet reached the stage at which the parties seek a coercive remedy."
    
    NJARC, 89 N.J. at 242
    . Declaratory judgment proceedings thereby "serve as an
    instrument of preventive justice . . . to permit adjudication of rights or status
    without the necessity of a prior breach." Rego Indus., Inc. v. Am. Modern
    Metals Corp., 
    91 N.J. Super. 447
    , 453 (App. Div. 1966). Other avenues for
    relief ordinarily leave "no reason to involve [the statute's] provisions,"
    Hammond v. Doan, 
    127 N.J. Super. 67
    , 72 (Law Div. 1974).
    The judge, citing the admonitions in 
    NJARC, 89 N.J. at 241-42
    , and Rego
    
    Industries, 91 N.J. Super. at 452
    , held that declaratory relief was not meant for
    those cases that had already ripened into fully litigated controversies in which
    coercive remedies were demanded. The judge observed this was plainly such a
    case, and therefore concluded Carole Media could not obtain declaratory relief
    A-3378-16T4
    25
    as a matter of law, denied its motion for partial summary judgment, and
    dismissed its claim.
    Defendant argues on appeal the judge misapplied NJARC. In particular,
    defendant points to the Supreme Court's conclusion that declaratory relief
    remained warranted notwithstanding that the case had a "moving record" and
    that "many changes ha[d] occurred" since its inception, 
    NJARC, 89 N.J. at 240
    ,
    243, as Carole Media contends was the case here. Carole Media also argues the
    judge failed to seriously consider the point its counsel made to that effect at oral
    argument, in favor of releasing a lengthy opinion the judge had already written.
    Carole Media claims this presents one of several instances of bias that
    undermined the trial court proceedings.         Carole Media asserts the judge
    effectively awarded NJ Transit declaratory relief by leaving them with title to
    the billboards without deciding the "critical" issue of when that title passed ,
    thereby depriving all parties of the opportunity to have their rights as to the
    billboards settled.
    First, Carole Media was not entitled to partial summary judgment on this
    claim. At the very least, whether Carole Media forfeited the billboard structures
    for failure to remove them remained a factual dispute undermining its claim to
    ownership of the structures as a matter of law. Moreover, the availability of
    A-3378-16T4
    26
    other avenues for relief, which Carole Media itself pursued, rendered
    declaratory relief superfluous and unnecessary and, as a consequence, made its
    claim for that relief subject to dismissal.
    Carole Media misreads NJARC in that regard. The plaintiffs, patients at
    a residential institution for mentally disabled individuals and an advocacy
    group, sought declaratory and injunctive relief as to the parameters of the care
    patients were entitled to pursuant to statute. 
    Id. at 237-38,
    240. The Court
    recognized the institution had undergone many changes in staffing and services
    since the case had begun, yielding a "moving record" that continued to change,
    leaving the trial record in part obsolete.    
    Id. at 240.
      However, the Court
    concluded declaratory relief was warranted not in spite of the progression or
    solidification of the dispute, as defendant's arguments presume, but because the
    parties were concerned only with their legal obligations going forward. 
    Id. at 240-43.
    Moreover, the plaintiffs no longer sought injunctive relief, because they
    believed it would be unnecessary once those obligations had been settled. 
    Id. at 242.
       In contrast, Carole Media pursued various other avenues of relief
    throughout this litigation and, indeed, seeks to revive several of them through
    this appeal.
    A-3378-16T4
    27
    As for Carole Media's complaint that the trial court wrote the bulk or
    entirety of its opinion ahead of oral argument, the record gives no indication the
    court outright ignored its point, which, in any event, was incorrect, before
    finalizing its decision. Lastly, with respect to Carole Media's contention that
    dismissal of this claim has left the parties' respective rights to the structures
    unsettled, their rights are settled as a practical matter. NJ Transit claimed
    control of the billboards pursuant to the text of the license terms, and Carole
    Media's challenge to the propriety of that action has been made and failed,
    except for the inverse condemnation claim. Therefore, we affirm the court's
    decision to dismiss Carole Media's declaratory judgment claim.
    Carole Media next argues the court erred in dismissing its claims against
    Shamrock for conversion, trespass, unjust enrichment, and civil conspiracy
    based on Shamrock's access to the properties and use of the billboard structures.
    On Shamrock's motion to dismiss these claims, the court found it clear that NJ
    Transit had maintained that it owned and had the ability to license the billboards
    at issue and Carole Media did not have the right to use the structures. The court
    reasoned that Shamrock's objectively reasonable reliance on NJ Transit's claim
    of ownership, as well as on the licenses it gained from NJ Transit through a
    public bidding process and permits from NJDOT, precluded liability for
    A-3378-16T4
    28
    trespass, conversion, or unjust enrichment.      Moreover, the claim for civil
    conspiracy was not viable because Shamrock had won a public bid and complied
    with all its legal obligations. The court therefore dismissed all these claims.
    Carole Media faults the court for concluding Shamrock could reasonably
    rely on NJ Transit's claim of ownership. It asserts the court was bound to accept
    the allegations of its counterclaims as true and that the record did not support a
    finding of justifiable reliance. Shamrock, Carole Media argues, had ample
    notice that it still claimed ownership of the billboards, most notably via All
    Vision's letter apologizing for the delay in permitting Shamrock to use the
    billboards, defendant's cease and desist letter to All Vision, NJ Transit, and
    Shamrock, and a letter in which Carole Media reiterated its claim of ownership.2
    Moreover, Carole Media contends Shamrock's reliance was irrelevant in a claim
    for conversion.
    While Carole Media is correct that the court did not strictly confine itself
    to a consideration of its pleading, a court may consider matters outside the
    pleadings, treat the motion to dismiss as one for summary judgment, and resolve
    it accordingly. R. 4:6-2. Carole Media disputes the one factual circumstance
    2
    As previously noted, Carole Media contends this letter also served as a tort
    claims notice.
    A-3378-16T4
    29
    external to its pleading that the court found determinative here – Shamrock's
    objectively reasonable reliance on NJ Transit's claim of ownership – but the
    evidence Carole Media cites is not to the contrary. All Vision's letter merely
    explained that the prior user of the sites had not yet had its permits formally
    revoked, and, except for brief access to the billboards prior to Carole Media's
    cease and desist letter, there is no indication Shamrock used the sites prior to
    the revocation of Carole Media's permits and the issuance of new permits to NJ
    Transit. As the court noted, Shamrock had been duly licensed to operate the
    sites following a public bidding process. In sum, Carole Media points to nothing
    placing Shamrock's reasonable reliance on NJ Transit's claim of ownership in
    legitimate dispute.
    However, Carole Media is correct that Shamrock's belief, assuming it was
    mistaken for purposes of the motion, Printing 
    Mart-Morristown, 116 N.J. at 746
    ,
    did not preclude Shamrock's liability for conversion.         Conversion is the
    "intentional exercise of dominion or control over a chattel which so seriously
    interferes with the right of another to control it that the actor may justly be
    required to pay the other the full value of the chattel." Chicago Title Ins. Co. v.
    Ellis, 
    409 N.J. Super. 444
    , 454 (App. Div. 2009) (quoting Restatement (Second)
    of Torts § 222A(1) (Am. Law Inst. 1965)).
    A-3378-16T4
    30
    The tort does not require "an intent to harm the rightful owner," or
    knowledge "that the [property] belongs to another." 
    Id. at 456.
    In other words,
    Shamrock's liability for conversion could not be defeated by its reasonable belief
    that it was using NJ Transit's property with legitimate permission, if the property
    actually belonged to Carole Media, as defendant claims.
    Regardless, "the mere use of the property of another without permission
    of the owner does not necessarily amount to conversion." LaPlace v. Briere,
    
    404 N.J. Super. 585
    , 595 (App. Div. 2009). On the contrary, "[t]o constitute a
    conversion of goods, there must be some repudiation by the defendant of the
    owner's right, or some exercise of dominion over them by him inconsistent with
    such right, or some act done which has the effect of destroying or changing the
    quality of the chattel." 
    Id. at 596
    (quoting Frome v. Dennis, 
    45 N.J.L. 515
    , 516
    (Sup. Ct. 1883)).
    Shamrock never claimed ownership of the billboards; NJ Transit has.
    Shamrock has used them, but only in objectively reasonable reliance on NJ
    Transit's claim of ownership and pursuant to a license duly obtained from NJ
    Transit after a public bidding process and a permit from NJDOT. Nor can that
    use be deemed "inconsistent with" defendant's claimed rights with respect to the
    property, because, as the court noted, Carole Media no longer had a permit to
    A-3378-16T4
    31
    access the property when that use occurred.          Indeed, the revocation of
    defendant's permit was upheld administratively, a result on which Shamrock
    could further reasonably rely. Thus, the court was correct that Carole Media
    had not made out a viable claim for conversion against Shamrock, even if not
    for the precise justification it gave. See Do-Wop Corp. v. City of Rahway, 
    168 N.J. 191
    , 199 (2001) (noting that "appeals are taken from orders and judgments
    and not from opinions . . . or reasons given for the ultimate conclusion").
    As for its claims for unjust enrichment, conspiracy, and trespass, Carole
    Media made no specific argument as to them on appeal, and we will not address
    such bald assertions on the merits. R. 2:11-3(e)(1)(E).
    Carole Media next contends the court erred in dismissing its counterclaims
    against NJDOT and individual agency employees on grounds of permit and good
    faith immunity under the TCA. Because we find permit immunity applied, we
    need not address Carole Media's arguments relating to good faith immunity
    under N.J.S.A. 59:3-3.
    Public entities may not be liable for an injury except to the extent
    permitted by the TCA. Tice v. Cramer, 
    133 N.J. 347
    , 355 (1993). Public
    employees may likewise claim any immunity afforded by the statute or common
    law. Fluehr v. City of Cape May, 
    159 N.J. 532
    , 539 (1999). The party asserting
    A-3378-16T4
    32
    the immunity bears the burden of demonstrating it applies. Leang v. Jersey City
    Bd. of Educ., 
    198 N.J. 557
    , 582 (2009).
    Carole Media claimed NJDOT and its employees failed to execute the law
    in good faith; aided and abetted All Vision, NJ Transit, and Shamrock in various
    torts; and conspired with the same parties to accomplish the same end. Carole
    Media alleged NJDOT and its employees violated its own unwritten policy not
    to issue a new permit until the prior billboard operator for that site removed the
    existing structures, expedited the issuance of those permits "outside the ordinary
    course of business," and knowingly issued the permits to NJ Transit,
    notwithstanding that Shamrock would be operating the billboards.
    NJDOT and its employees asserted immunity provided by the TCA. The
    relevant statute provides:
    A public employee is not liable for an injury caused by
    his issuance, denial, suspension or revocation of, or by
    his failure or refusal to issue, deny, suspend or revoke,
    any permit, license, certificate, approval, order, or
    similar authorization where he is authorized by law to
    determine whether or not such authorization should be
    issued, denied, suspended or revoked.
    [N.J.S.A. 59:3-6.]
    The TCA affords the same immunity to public entities in nearly identical
    language. N.J.S.A. 59:2-5. This immunity is "pervasive and applies to all
    A-3378-16T4
    33
    phases of the licensing function," whether discretionary or ministerial, and
    extends both to the actual act of issuance of a permit or license and the
    underlying decision-making process. Malloy v. State, 
    76 N.J. 515
    , 520 (1978).
    Carole Media maintains that permit immunity should not apply because
    its claims alleged wrongdoing independent of NJDOT's issuance of the permits.
    In that regard, Carole Media quarrels with the court's interpretation of Ball v.
    New Jersey Telephone Co., 
    207 N.J. Super. 100
    , 108-11 (App. Div. 1986),
    arguing that case concerned whether the issuance of the permit created a
    "tortious 'situation'" in the form of a dangerous condition on the property, and
    asserting that dangerous condition is analogous to the "situation" here, namely
    the claimed scheme to deprive defendant of its property.
    However, all the claims Carole Media asserted against NJDOT and its
    employees clearly implicated the permit immunity provision of the TCA. Our
    decision in Ball is not to the contrary. There, an administrator of a man's estate
    attempted to recover from the State for the man's death in an automobile accident
    allegedly attributable to the improper placement of a telephone pole on the
    wrong side of a guardrail. 
    Id. at 103.
    The State claimed immunity based on its
    issuance of a permit for the pole. We concluded the TCA was not meant to
    A-3378-16T4
    34
    "confer[] absolute tort immunity where a public entity grants a license to create
    a dangerous condition on it property." 
    Id. at 108-10.
    We further explained that, although we had "consistently applied the
    [TCA] to protect public entities against tort liability in the exercise of their
    licensing function," it was
    far different to suggest . . . that the State can clothe
    itself with immunity by merely issuing a permit
    authorizing another to create a dangerous condition on
    its property which it thereafter maintains without
    remedy. In such a case, the licensing authority of the
    State is in no sense implicated. Stated somewhat
    differently, the culpable act is not the issuance of a
    permit. Rather, it is the creation and maintenance of a
    dangerous condition upon the property and the
    "palpably unreasonable" conduct of the public entity in
    failing to remedy it.
    [Id. at 110-111 (emphasis added).]
    The same principle does not apply here. As the court noted, the facts at
    issue do not concern a dangerous condition maintained on the properties. More
    importantly, NJDOT did not engage in any course of tortious conduct or
    negligent inaction independent of its issuance of the permits. The immunity
    provision of the statute clearly applied here.
    Carole Media lastly argues the court erred in denying a motion for leave
    to amend its pleading. Once a response has been filed, a party may amend its
    A-3378-16T4
    35
    pleading only by the adverse party's written consent or by leave of court. R.
    4:9-1. Motions for leave should be liberally granted, unless the amendment
    would cause undue prejudice or be futile. Notte v. Merchants Mut. Ins. Co., 
    185 N.J. 490
    , 501 (2006). A court's decision on a motion for leave rests within its
    sound discretion and will be reviewed only for an abuse of that discretion on
    appeal. Kernan v. One Washington Park Urban Renewal Assocs., 
    154 N.J. 437
    ,
    457 (1997).
    Carole Media made the motion in question in July 2012 after a wave of
    discovery yielded numerous documents related to public bidding for state -
    owned billboard sites, which Carole Media believed provided further evidence
    of corruption in awarding use of those sites. The court had previously dismissed
    several of Carole Media's claims arising from that same alleged conduct on
    various legal – rather than factual – grounds. Following an unsuccessful motion
    for reconsideration, Carole Media moved for leave to amend its pleading to
    restore the previously dismissed claims and add new parties and claims,
    including for civil conspiracy, violation of the New Jersey Racketeer Influenced
    and Corrupt Organizations Act (RICO), N.J.S.A. 2C:41-1 to -6.2, and aiding and
    abetting both RICO and antitrust violations.
    A-3378-16T4
    36
    The court observed the new claims were merely the "old claims" that had
    already been dismissed, "just worded differently." Because the court could not
    find "anything new," it deemed the proposed amendment futile and denied the
    motion for leave.
    On appeal, Carole Media never directly refutes the court's reasoning. It
    instead accuses the court of ignoring the voluminous bidding documents it had
    recently acquired through discovery and, by implication, the merits of its claims.
    But the claims Carole Media sought to resurrect were dismissed as a legal
    matter, not a factual one, so additional evidence of the same alleged wrongdoing
    cannot, in itself, undermine the dismissal. Moreover, Carole Media does not
    explain why any of the purportedly new claims it asserted were distinct enough
    from the old ones to escape the same fate, notwithstanding that they alleged the
    same sorts of corrupt behavior based on the same factual background. Because
    the amendments would therefore have been futile, the court's denial of Carole
    Media's motion for leave was well within its discretion.
    III.
    All Vision cross-appeals from the trial court's dismissal of its claim for
    damages arising from the injunction Carole Media obtained against it in the
    federal litigation.
    A-3378-16T4
    37
    Plaintiff alleged in its complaint that the injunction prevented it from
    delivering the billboard sites to Clear Channel, forcing it to reopen the sites for
    bidding, and ultimately yielding a lower bid. Without invoking any specific
    cause of action, it demanded damages for the reduced revenue. Ahead of an
    anticipated trial, plaintiff requested a special jury instruction outlining its claim
    – that Carole Media had undisputedly obtained an injunction that was ultimately
    discharged, and that both federal and state law authorized relief as a
    consequence of this "wrongful injunction." (citing Pub. Serv. Comm'n of the
    State of Missouri v. Brashear, 
    312 U.S. 621
    , 629 (1941); Penwag v. Landau, 
    148 N.J. Super. 493
    , 501 (App. Div. 1977)).
    The court, however, understood the federal precedent on which plaintiff
    relied to limit the relief from a wrongful injunction to the value of any bond
    required as security for the injunction. Thus, if no bond was required, as was
    the case here, there could be no recovery.
    All Vision acknowledges the federal precedent on which it relied did limit
    recovery to the value of the injunction bond, but argues that that precedent
    applies only to injunctions issued at the district-court level, where the federal
    rules strictly require security for the injunction, Fed. R. Civ. P. 65(c), rather than
    A-3378-16T4
    38
    to those issued, as here, at the circuit-court level, where the rules merely permit
    the issuance of a bond, Fed. R. App. P. 8(a)(2)(E).
    However, federal law is uniformly clear that "there can be no recovery for
    damages sustained by a wrongful issuance of a preliminary injunction in the
    absence of a bond, unless the defendant sues for malicious prosecution or on a
    theory of unjust enrichment." Buddy Systems, Inc. v. Exer-Genie, Inc., 
    545 F.2d 1164
    , 1167-68 (9th Cir. 1976). The doctrine of unjust enrichment is inapplicable
    here, and All Vision does not even purport to set forth any claim for malicious
    prosecution.
    All Vision's claim for relief under State law must also fail because it also
    requires a claim for malicious prosecution. 
    Penwag, 148 N.J. Super. at 501
    .
    Again, All Vision made no such claim here.
    IV.
    We therefore reverse the trial court's grant of summary judgment on
    Carole Media's claims for inverse condemnation, specifically Counts I and XVI
    of its fourth amended pleading, but only to the extent those claims were asserted
    against NJ Transit and only to the extent they alleged a taking of the billboard
    structures rather than the licenses or permits. We affirm in all other respects,
    and remand for further proceedings.
    A-3378-16T4
    39
    Affirmed, in part, and reversed and remanded, in part. We do not retain
    jurisdiction.
    A-3378-16T4
    40