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J.J. Nugent Co. v. Sagner

Decided: June 24, 1977.

J.J. NUGENT CO., A CORPORATION OF THE STATE OF NEW JERSEY, AND JOHN J. DUNN CONSTRUCTION CO., A CORPORATION OF THE STATE OF NEW JERSEY, A JOINT VENTURE, PLAINTIFFS-RESPONDENTS,
v.
ALAN SAGNER, COMMISSIONER OF THE NEW JERSEY DEPARTMENT OF TRANSPORTATION, DEFENDANT-APPELLANT



Lora, Crane and Michels.

Per Curiam

[151 NJSuper Page 191] On November 12, 1975 plaintiffs J.J. Nugent Co. and John J. Dunn Construction Co., a joint venture, filed a complaint in Superior Court, Law Division, Atlantic County, against defendant Alan Sagner, Commissioner of the New Jersey Department of Transportation, seeking damages for alleged breach of contract. The suit is brought under the New Jersey Contractual Liability Act, N.J.S.A. 59:13-1 et seq. , and arises out of plaintiffs' participation in the construction of a section of Route 95 in Mercer County. N.J.S.A. 59:13-4 provides that all suits filed

against the State under the act shall be in accordance with the rules governing the courts of New Jersey.

On January 26, 1976, pursuant to R. 4:3-3(a) (1) & (3), defendant moved to change the venue from Atlantic County to Mercer County on the ground that venue had not been laid in accordance with R. 4:3-2(a) (2) and on the further ground that a change of venue was required in the interest of justice in light of the severe burden and inconvenience which trial in Atlantic County would pose to defendant. It is undisputed that the work was performed in Mercer County; the cause of action arose in that County; the contract was signed there, and defendant and the records of the job are located there.

Leave to appeal from the trial judge's denial of the motion was granted by this court on August 4, 1976.

A motion for change of venue is governed by R. 4:3-3(a) which provides in pertinent part for such change "if the venue is not laid in accordance with R. 4:3-2 or for the convenience of parties and witnesses in the interest of justice."

R. 4:3-2 provides that:

Venue shall be laid by the plaintiff in Superior Court actions as follows: * * * (2) actions not affecting real property which are brought by or against municipal corporations, counties, public agencies or officials, in the county in which the cause of action arose; (3) except as otherwise provided in [other rules not pertinent to this case] the venue in all other actions in the Superior Court shall be laid in the county in which the cause of action arose, or in which any party to the action resides at the time of its commencement, or in which the summons was served upon a nonresident defendant.

Venue was laid in Atlantic County, the residence of one of the plaintiffs. The cause of action arose in Mercer County. The trial judge ruled that venue was laid in accordance with R. 4:3-2(a) because subsection (3) and not (2) applies to the circumstances of this case. Specifically, the trial judge found that defendant is not a "public officer" nor is the Department of Transportation a "public agency" within the

meaning of subsection (2). J.J. Nugent Co. v. Sagner , 141 N.J. Super. 591, 596 (Law Div. 1976).

In reviewing the status of the prior law as well as the general state of the law at the time the rule was promulgated, the trial judge was attempting to ascertain whether there was "something about the language [of the rule] or its effect" which would compel him to construe it other than according to it the generally accepted meaning of its words. Downey v. Jersey City Bd. of Ed. , 74 N.J. Super. 548, 552 (App. Div. 1962). Stated differently, the trial judge was seeking to construe the rule, giving "due regard [for] the old law, the mischief resulting therefrom, and the enacted legislative remedy for the eradication of the evil." Health Dept. v. Sol Schnoll Dressed Poultry Co. , 102 N.J. Super. 172, 176 (App. Div. 1968). The application of these principles led the judge to conclude that there was no evidence that the rule at issue here was specifically designed to remedy abusive practices in suits against the State.

The trial judge further concluded that the existence of the doctrine of sovereign immunity in 1949 when the court rules, and in particular R. 4:3-2(a)(2), were adopted, did not strongly support the view advanced by plaintiffs that the draftsmen did not contemplate a direct suit against a branch of government and never intended to include the State and its officials within the terms "public agency or official" in R. 4:3-2(a)(2). We agree with the trial judge's conclusion in this regard and note that while sovereign immunity was still the general rule, some limitations thereon had already been established by legislation and judicial decree. Moreover, the venue rule in question applies to suits "by or against" a public agency or official, a clear indication that the draftsmen did not have the doctrine of sovereign ...


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