Transferred from the Superior Court of New Jersey, Law Division, Mercer County, Docket No. MER-L-833-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 10, 2007
Before Judges Lintner and Parrillo.
This matter commenced with the filing of a complaint in the Law Division by appellant Carteret Assisted Living, LLC (Carteret), alleging that respondent New Jersey Housing and Mortgage Finance Agency (Agency) breached a contract implied-in- fact and engaged in palpably unreasonable tortious conduct in rejecting appellant's bid to purchase an affordable assisting living facility, which the Agency owned and operated as the result of a loan default. Finding that the matter was actually a challenge to a final decision of a State administrative agency, the Law Division judge, in denying the State's motion to dismiss and never reaching the merits, instead transferred the matter to this court pursuant to Rule 2:2-3(a)(2) because of our exclusive jurisdiction. Appellant now argues the matter should be returned to the Law Division for jury disposition of its tort and contract claims. We disagree. Challenges to final State agency actions are within the exclusive jurisdiction of the Appellate Division, Rule 2:2-3; Rule 2:2-4, but because Carteret failed to meet the 45-day deadline of Rule 2:4-1, we now dismiss the appeal as untimely.
The facts are essentially undisputed. In October 2004, the Agency acquired title to the Carteret Senior Assisted Living Facility (facility) in Elizabeth by way of a deed in lieu of foreclosure. The facility is a 120-bed assisted living center whose housing sponsor defaulted on a $10 million mortgage that secured an Agency loan. Since the default, the Agency has been covering the facility's operating deficits.
In an attempt to sell the facility, the Agency issued a Request for Proposals (RFP) on January 5, 2005, soliciting offers from the public to purchase the facility. Among other things, the RFP directed bidders to submit their proposals to the Agency on or before February 23, 2005 at 11:00 a.m.; instructed on the appropriate format of their proposals; and gave notice that "[a]ny or all bids may be rejected when [the Agency] determines that it is in the public's best interest." Carteret submitted a timely bid in the amount of $1,018,000. Another bid, in the amount of $6 million from Ocean Healthcare Management, LLC (OHM), was also submitted, but because its package was mislabeled, was not received by the time Carteret's bid was opened. However, since the mislabeled bid package was located immediately thereafter, Carteret's representative returned to the bid opening room where, in his presence, the OHM's bid was opened. The Agency evaluated both bids and on April 20, 2005, issued a notice of intent to award to OHM, whose $6 million bid was far closer to the facility's $6.4 million appraisal. When OHM later withdrew its bid on June 1, 2005, the Agency rejected all bids on June 24, 2005.
Carteret formally protested on June 29, 2005, alleging that the winning bid was untimely and that the Agency acted improperly in both considering OHM's bid and later rejecting all bids. On July 1, 2005, the Agency's Executive Director rejected Carteret's protest in its entirety, affirming the Agency's right to reject all bids and to rebid the sale. Carteret opted not to appeal the Agency's July 1, 2005 decision denying its protest.
Subsequently, on August 16, 2005, the Agency resolicited proposals under a second RFP. Carteret was the sole bidder, submitting an identical bid of $1,018,000, which the Agency rejected on October 18, 2005. Thereafter, following discussion with the United States Department of Housing and Urban Development (HUD), the federal agency carrying the risk share insurance on the project, the Agency, as authorized by its enabling statute, advertised for a private sale of the facility. Although Carteret did not respond to this advertisement, the Agency received six offers to purchase the facility, and reached an agreement in principal with one of the offerors.
While the Agency was negotiating the final terms of the agreement, Carteret filed its suit in the Law Division on March 20, 2006, approximately nine months after its receipt of the July 1, 2005 Agency decision rejecting its bid protest. As noted, Carteret's complaint seeks specific performance, breach-of-contract damages and general damages for allegedly palpably unreasonable conduct on the Agency's part. The complaint alleges that the actions taken in the first RFP process, which were also challenged in the bid protest, constituted an "implied contract", which the Agency then breached by considering the allegedly untimely bid, and then rejecting all bids; and further that the Agency's action in twice rejecting its bid was palpably unreasonable. Following the Agency's motion to dismiss for want of jurisdiction, the Law Division judge transferred the matter here.
On appeal, Carteret argues:
I. THE AGENCY'S LETTER OF JULY 1, 2005 CANNOT QUALIFY AS A 'FINAL AGENCY ACTION' AND THUS PLAINTIFF-APPELLANT'S COMPLAINT WAS TIMELY BROUGHT.
II. PLAINTIFF-APPELLANT HAS PRESENTED A PRIMA FACIE CLAIM SOUNDING IN TORT FOR DAMAGES SUFFERED AS A RESULT OF THE AGENCY'S PALPABLY UNREASONABLE ACTIONS AND INACTIONS.
III. THE RFP/RFQ'S DEFINITIVE LANGUAGE AND PLAINTIFF-APPELLANT'S PERFORMANCE, GAVE RISE TO A CONTRACT IMPLIED IN FACT BETWEEN PLAINTIFF-APPELLANT AND ...