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

NOT FOR PUBLICATION WITHOUT THE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
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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
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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.
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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.
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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.
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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
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"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
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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.
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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
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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
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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.
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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
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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
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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.
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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
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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.
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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)).
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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
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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
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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
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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
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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
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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.
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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.
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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.
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39
Affirmed, in part, and reversed and remanded, in part. We do not retain
jurisdiction.
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40