February 3, 2009
DR. EZEGOZIE EZE, PLAINTIFF-APPELLANT,
ROWAN UNIVERSITY, DEAN EDWARD SCHOEN, DEFENDANTS-RESPONDENTS.
On appeal from Superior Court of New Jersey, Law Division, Camden County, Docket No. L-5105-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 3, 2008
Before Judges Rodríguez and Waugh.
Plaintiff Dr. Ezegozie Eze, who was denied tenure as an assistant professor in the Business School at Rowan University, appeals the dismissal with prejudice of his complaint against defendants Rowan University (University), a "public entity" within the meaning of N.J.S.A. 59:1-3 and the "State" within the meaning of N.J.S.A. 59:13-2, and the Dean of its Business School, Dr. Edward Schoen. The complaint alleged breach of express contract; breach of implied contract and the implied covenant of good faith and fair dealing; and several theories of recovery sounding in tort. The complaint was dismissed for failure to comply with the notice provisions of the New Jersey Contractual Liability Act, N.J.S.A. 59:13-1 to -10, and the New Jersey Tort Claims Act, N.J.S.A. 59:1-1 to :12-3. On this appeal, Eze appeals only the dismissal of his claims sounding in contract, arguing that he substantially complied with the notice requirements of N.J.S.A. 59:13-5. We agree and reverse.
We glean the following facts from the record. Eze was hired by the University in September 1999 as an assistant professor in the Business School's Department of Management and Information Systems (Department). It was a temporary, non-tenure track position for academic year 1999-2000. He was then rehired as an assistant professor, again in a non-tenure track position, for the academic years 2000-2001 and 2001-2002.
During the academic year 2001-2002, Eze applied for and was appointed as an assistant professor in a tenure track position for the 2002-2003 academic year. Pursuant to N.J.S.A. 18A:60- 8(b), even though Eze's first three academic years at Rowan had been in non-tenure track positions, his prior service as a full-time faculty member counted toward tenure. See Dugan v. Stockton State Coll., 245 N.J. Super. 567, 573 (App. Div. 1991).
On June 5, 2003, Schoen recommended Eze for reappointment, which would give him a tenured position. At the same time, Schoen pointed out to Eze what he perceived to be certain problems with his performance. In September 2003, Schoen urged Eze to postpone filing his tenure application from fall 2003 to spring 2004 to provide him the opportunity to raise his student evaluation scores. Eze was also advised to consider taking a year off to "reset" the tenure clock. In March 2004, Schoen wrote to Eze confirming certain guarantees with respect to his position if he took the year off, but explaining that the decision to do so was solely up to him. Eze chose not to take a break in service and applied for reappointment with tenure.
On April 15, 2004, the Department's Recontracting and Tenure Committee (Department Committee) issued its recommendation that Eze be recontracted at the rank of assistant professor with tenure. Of the six members of the Department Committee, three voted to recontract, two abstained from voting, and one voted not to recontract. The members of the Department Committee issued reports explaining their various positions and the reasons for them.
Eze's application for tenure and the Department Committee's recommendation were forwarded to the University Senate Tenure and Recontracting Committee (University Senate Committee), which recommended that Eze not be recontracted. The vote was one vote for recontracting, nine against, and one abstention. There were majority and minority reports explaining the positions of each grouping.
The report of the University Senate Committee and related documents were forwarded to the University's President, Dr. Donald Farish, and the University's Provost, Dr. Helen Giles-Gee. In May 2004, Giles-Gee wrote a letter to Farish, stating that she would not recommend Eze for tenure.
On June 10, 2004, Eze met with Farish to discuss his tenure application and his concerns about the process. Eze gave Farish a twelve page document, dated June 7, 2004, setting forth his position. By letter dated June 24, 2004, Farish advised Eze that he had reviewed his file in depth, considered the points made by Eze in his submission, and concluded that he did not find any unfairness in the procedures nor errors in judgment with respect to the negative recommendations concerning Eze's tenure application. He stated that he agreed with those who had evaluated Eze's file and that he did not recommend tenure because the data provided to him failed to support a positive determination.*fn1
On August 12, 2004, Eze's union, the American Federation of Teachers (AFT), filed a grievance on Eze's behalf, alleging that there had been union contract violations in connection with Eze's candidacy for tenure. On September 4, 2004, Farish wrote to the AFT denying the grievance and rejecting the alternative remedy sought, which was a break in service and an opportunity to reapply for tenure. The union grievance was not pursued further.
In November 2004, Eze filed a verified complaint with the New Jersey Division of Civil Rights (Division), alleging that he was denied tenure and discharged because of his race (black) and his national origin (Nigerian). On March 16, 2006, the Division issued a finding of no probable cause. In July 2006, the United States Equal Employment Opportunity Commission adopted the Division's finding.
In July 2006, Eze filed his complaint in the present action, alleging breach of express contract; breach of implied contract and implied covenant of good faith and fair dealing; fraud, deceit, and misrepresentation; and intentional infliction of emotional distress.
Appellant never filed formal notices of claim with the University or any other state entity. Consequently, defendants moved to dismiss the complaint for failure to comply with the notice requirements for suits against the State. The motion was granted. The motion judge stated his reasons as follows:
Here's the thing, under the Court rules, the plaintiff has the right to file a motion for reconsideration whether I explicitly indicate on the record that I would entertain it is not even required, in other words. A disgruntled party has 20 days after the entry of a final judgment order to file a motion for reconsideration.
The only reason why I raise it is that I'm less then 95 percent confident that this is the right result only in the sense that I'm not -- I haven't reviewed the information that Mr. Eze conveyed within that 90-day period to Rowan University to see whether or not all the information that would have otherwise been contained, or at least would have been in substantial compliance with the information required under the New Jersey Tort Claims Act and/or the New Jersey Contractual Liability Act was in those collateral documents.
The reasons why I haven't gone through that analysis is because the one case that I saw that dealt with -- kind of dealt with this issue, Guzman [v. City of Perth Amboy, 214 N.J. Super. 167 (App. Div. 1986)], reflected that even a lawsuit within that 90-day period wouldn't do the trick. so it's certainly counter-intuitive if a lawsuit which tells the public entity, you are being sued -- don't worry about whether or not I might sue you, you're being sued --wouldn't do the trick.
And I'm inviting Mr. Pemberton to file a motion for reconsideration if he's ever able to find any published decisions that deal with the Court saying, look, what we have here is substantial compliance, even though no tort claims notice, no document captioned "tort claims notice" or notice under New Jersey Contractual Liability Act was filed/served on the public entity that the trial courts ought to consider these collateral documents as the substantial equivalent of that.
And if there are cases that deal with it, we'll see how close the case is to this case, and then we'll go on to some of the nuances of the case. If there aren't cases, then Guzman controls. It seems to me my hands are tied.
Although the motion judge invited a motion for reconsideration, Eze filed an appeal.*fn2 As noted previously, he does not challenge the dismissal of his tort causes of action for failure to comply with the notice provisions of the Tort Claims Act. Instead, his appeal addresses only the dismissal of his contractual claims for failure to comply with N.J.S.A. 59:13-5.
With that factual background, we turn to the legal aspect of the issue before us. N.J.S.A. 59:13-5 (emphasis added) provides as follows:
It shall be the responsibility of parties contracting with the State to promptly notify the State in writing of any situation or occurrence which may potentially result in the submission of a claim against the State. Except as otherwise provided in [N.J.S.A. 59:13-6], no notice of claim for breach of contract, either express or implied in fact, shall be filed with the contracting agency later than 90 days after the accrual of such claim. A notice of claim shall include the following information: the name of the claimant, the nature of the claim, specific reasons for making the claim, and the total dollar amount of the claim if known. After the expiration of 90 days from the date the notice of claim is received by the contracting agency, the claimant may file suit in a court of competent jurisdiction of the State of New Jersey.
In all contract claims against the State, the claimant shall be forever barred from recovering against the State if:
a. he fails to notify the appropriate contracting agency within 90 days of accrual of his claim except as otherwise provided in [N.J.S.A. 59:13-5] hereof; or
b. he fails to file suit within 2 years of accrual of his claims or within 1 year after completion of the contract giving rise to paid claim, whichever may be later; or
c. the claimant accepts personally or through his agent or legal representative any award, compromise or settlement made by the State of New Jersey.
The notice provision is "specifically intended to give state agencies an opportunity to determine the merits of the claims for the possibility of a settlement, as well as to investigate the claims for the purpose of preparing for trial." Frapaul Constr. Co. v. New Jersey Dep't of Transp., 175 N.J. Super. 84, 92 (App. Div. 1980) (citing Hous. Auth. of Newark v. Sagner, 142 N.J. Super. 332, 343 (App. Div. 1976)). Accord County of Morris v. Fauver, 153 N.J. 80, 106-07 (1998).
Eze contends that he substantially complied with those statutory requirements by virtue of the following documents: (1) his June 7, 2004, letter to Farish; (2) his August 2004 union grievance; and (3) his November 2004 complaint to the Division. Eze's June 7, 2004, letter to Farish, outlining what he contends were procedural and contractual breaches with respect to the tenure process, was delivered to Farish within ninety days of the Giles-Gee's May 26, 2004, letter to Farish stating that she was not recommending Eze for tenure. The union grievance, alleging violations of the union contract, was filed within ninety days of Farish's June 24, 2004, letter denying Eze tenure. The civil rights complaint, however, was not filed within the ninety-day period following the denial of tenure, and, consequently, cannot be considered as substantially complying with the notice requirement.
In dismissing the complaint, the trial judge relied upon Guzman v. City of Perth Amboy, 214 N.J. Super. 167 (App. Div. 1986). That case held that the filing of a complaint against a public entity does not itself comply with the notice requirements of the Tort Claims Act. Id. at 172. Eze is not, however, asserting that the filling of his complaint provided the required notice. The primary issue in Guzman was whether a notice sent by certified mail was to be considered timely if mailed during the ninety-day period when it was not actually received during that period. We held that timely mailing by certified mail was sufficient, but remanded for a plenary hearing on the issue of the date of mailing. Because there is no question in this case that the defendants received the June 2004 letter to Farish and the August 2004 union grievance, Guzman, which does not address the issue of substantial compliance, is simply inapposite.
We are satisfied that Eze substantially complied with the notice requirements of N.J.S.A. 59:13-5. See Anske v. Borough of Palisades Park, 139 N.J. Super. 342, 347 (App. Div. 1976) (citing Lameiro v. West New York Bd. of Educ., 136 N.J. Super. 585 (Law Div. 1975)).
Substantial compliance, however, is based on the notion that substantially all of the required information has been given to those to whom the notice should be given and that it has been given in a form which should alert the recipient to the fact that a claim is being asserted against the sovereign. To put it another way, substantial compliance means that the notice has been given in a way, which though technically defective, substantially satisfies the purposes for which notices of claims are required. Notification requirements have been recognized as serving two purposes: (1) to allow at least six months for administrative review so as to permit settlement of meritorious claims, and (2) to provide prompt notice in order to permit adequate investigation and proper defense. [Lameiro, supra, 136 N.J. Super. at 588.]
We are satisfied that the defendants were well aware that Eze claimed that his contractual rights had been violated in connection with the denial of his application for reappointment with tenure. They had ample opportunity to review his assertions, to enter into a settlement if they wished to do so, and to gather information that would be useful in litigation.
The statutory purpose of the notice requirement was thereby satisfied.
Whether Eze knew at the time that he was filing a "notice of claim" is beside the point; the core issue is whether the defendants received notice that he had a contract claim. We hold that they did receive such notice and that Eze is entitled to alleviation from "the hardship and unjust consequences which attend technical defeats of otherwise valid claims." Anske, supra, 139 N.J. Super. at 347. In so holding, of course, we do not express any opinion about the actual merits of his claims.
We note that the defendants have also raised the issue of the statute of limitations in their brief on appeal. The limitations period would be two years from the date of accrual pursuant to N.J.S.A. 59:13-5. Because the statute of limitations was not the basis of the ruling below, we do not address it in this opinion. We note only that the complaint appears to have been filed on June 23, 2006, and that Farish's letter was dated June 24, 2004.
In summary, we vacate the order dismissing the complaint with prejudice for failure to comply with the notice provisions of N.J.S.A. 59:13-5, but only as the claims sounding in contract. We remand the matter to the trial court for further proceedings.
Reversed and remanded.