May 13, 2010
BULL DOG TRANSPORTATION, INC. D/B/A BULL DOG WRECKER SERVICE, PLAINTIFF-APPELLANT/ CROSS-RESPONDENT,
CITY OF NEWARK, DEFENDANT-RESPONDENT, AND NORWARD CORPORATION T/A C & J TOWING SERVICE, DEFENDANT-RESPONDENT/CROSS-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Civil Part, Essex County, Docket No. L-8341-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued January 6, 2010
Before Judges Graves and Newman.
Plaintiff Bull Dog Transportation, Inc., d/b/a Bull Dog Wrecker Service (Bull Dog), a towing service company located in Newark, appeals from an order dated April 10, 2009, dismissing its verified complaint in lieu of prerogative writs. In its complaint, Bull Dog challenged an emergency contract extension for towing services between defendant City of Newark (the City) and co-defendant Norward Corporation, t/a C & J Towing Services (C & J). Plaintiff sought an order compelling the City to "advertise for bids for police towing in the North and South Districts" of the City, and an order directing the City to appoint Bull Dog "as interim tower pending award of the contracts for the North and South Districts." Defendant C & J cross-appeals from an order denying its motion for litigation costs and attorney fees pursuant to the frivolous litigation statute, N.J.S.A. 2A:15-59.1. We affirm.
On September 2, 2004, the City entered into a three-year contract with defendant C & J to provide towing services for the City of Newark Police Department in the north and south districts. The term of the contract ran from September 2, 2004, through September 1, 2007. In March 2007, the City formed a committee to revise its towing ordinance because the rates charged were lower than those of neighboring municipalities. A revised ordinance with increased rates for towing and service charges was sent to the City Clerk for consideration by the City Council in June 2007. However, the City Council deferred action on the proposed ordinance and eventually tabled it. When it became clear that the proposed ordinance would not be in place by September 2, 2007, the police director declared an emergency, and C & J's contract was extended on an emergency basis to ensure there would be no disruption in towing services.
On October 18, 2007, Bull Dog filed a complaint in lieu of prerogative writs, seeking to invalidate the emergency contract and to compel the City to advertise for bids for towing services. On November 1, 2007, C & J sent a letter to Bull Dog's attorney claiming that Bull Dog's complaint was frivolous, demanding withdrawal of the complaint, and indicating C & J's intention to seek counsel fees and costs.
In January 2008, C & J moved to dismiss Bull Dog's complaint on the ground that it was time-barred because it was not commenced within forty-five days "after the accrual of the right to the review" as required by Rule 4:69-6(a). In a letter dated February 14, 2008, the attorney for the City notified the court that the City had advertised for bids for towing contracts on February 12, 2008, and argued Bull Dog's request for injunctive relief was moot.
On April 10, 2008, the court granted C & J's motion to dismiss Bull Dog's complaint but denied C & J's request for counsel fees. The order noted that the court's reasons would be placed on the record at a later date. In an oral decision on April 21, 2008, the court found there was no genuine emergency to justify the extension of C & J's contract beyond its expiration date of September 1, 2007. Nevertheless, the court dismissed Bull Dog's complaint because it was not filed within forty-five days of September 2, 2007, when the cause of action accrued. The court also determined that Bull Dog failed to qualify for additional time under Rule 4:69-6(c), which permits the court to enlarge the time for filing when "it is manifest that the interest of justice so requires."
In a letter dated August 4, 2008, the City informed the towing companies who submitted bids in response to its advertisement that it was "rejecting all bids received on March 6, 2008." The letter explained that "there will be substantial changes made in the bid specifications addressing the administrative fee and the term of the contract."
C & J appealed the denial of its motion for counsel fees and costs, and this court subsequently granted C & J's motion for a remand to allow the trial court to rule upon C & J's counsel fee application. At the remand hearing, C & J argued that Bull Dog's complaint was frivolous and that it had improperly joined C & J as an indispensable party. In an oral decision on September 29, 2008, the court rejected C & J's arguments and denied its motion. The court found that there was no evidence to support the claim that Bull Dog had acted in bad faith, and that C & J "had to be joined in the action to be bound by the decision."
On appeal, Bull Dog argues it filed its complaint as an action in lieu of mandamus to compel a government entity to perform a specific duty, which it claims "may be commenced at any time." Bull Dog further contends that because its complaint sought to compel the City to re-advertise for bids, which the City failed to do for several months after C & J's three-year contract expired, it was impossible to determine the "starting date" of the City's inaction "because there has been nothing done to trigger such period." On that basis, plaintiff claims the forty-five-day filing deadline provided in Rule 4:69-6(a) does not apply. In the alternative, Bull Dog asserts that even if Rule 4:69-6(a) is applicable, the court should have, sua sponte, enlarged the time period for filing under Rule 4:69-6(c) to confirm that the City "complied with its statutory obligations."
Traditionally, an action in lieu of mandamus was "by its very nature . . . an extraordinary writ." Joseph v. Passaic Hospital Ass'n, 26 N.J. 557, 572 (1958). Prior to the 1947 New Jersey Constitution, an action in lieu of mandamus was a type of prerogative writ used "to command performance of what is deemed to be an enforceable governmental duty." Yanuzzi v. Mayor & Council of Spring Lake, 22 N.J. 567, 570 (1956). However, the prerogative writ clause of the 1947 New Jersey Constitution, art. VI, § V, ¶ 4, "consolidates the old prerogative writs (certiorari, quo warrantor, prohibitions, and mandamus) into one action----which has come to be known as an action 'in lieu of prerogative writs.'" In re LiVolsi, 85 N.J. 576, 593 (1981). Thus, under our current court rules, a complaint in lieu of prerogative writs incorporates all former writs, not merely mandamus. Selobyt v. Keough-Dwyer Corr. Facility, 375 N.J. Super. 91, 96 (App. Div. 2005). Moreover, Rule 4:69-6(a) provides that a complaint in lieu of prerogative writs must be filed within forty-five days of the date that the cause of action arose, and there is no dispute that Bull Dog's complaint was not filed within forty-five days of September 2, 2007.
Nevertheless, Bull Dog argues the trial court should have extended the filing deadline pursuant to Rule 4:69-6(c), which permits the court to "enlarge the period of time . . . where it is manifest that the interest of justice so requires." See, e.g., Horsnall v. Washington Twp. Div. of Fire, 405 N.J. Super. 304 (App. Div. 2009) (alleged violation of statutorily and constitutionally protected right to continued employment warranted enlargement of deadline); Cafe Gallery, Inc. v. State, 189 N.J. Super. 468 (Law Div. 1983) (enlargement permitted in action challenging referenda on city's Sunday closing laws, an issue of significant public interest).
Pursuant to Rule 4:69-6(c), "certain cases were excepted from the rule governing limitation of actions. . . . These exceptions included cases involving (1) important and novel constitutional questions; (2) informal or ex parte determinations of legal questions by administrative officials; and (3) important public rather than private interests which require adjudication or clarification." Brunetti v. Borough of New Milford, 68 N.J. 576, 586 (1975) (citing Schack v. Trimble, 28 N.J. 40, 47-48 (1958)). The exceptions to the forty-five-day deadline are not exclusive, however, and "relaxation depend[s] on all relevant equitable considerations under the circumstances." Pressler, Current N.J. Court Rules, comment 7.3 on R. 4:69-7 (2010). See, e.g., Harrison Redev. Agency v. DeRose, 398 N.J. Super. 361 (App. Div. 2008) (reversing Rule 4:69-6 dismissal based on lack of notice to plaintiff of municipality's designation of his property as blighted and allowing plaintiff to contest that designation in eminent domain action despite untimely filing).
In this case, Bull Dog filed its complaint forty-six days after the cause of action accrued and contends the trial court "should have, sua sponte, extended the filing time for one day" because "the interests of the taxpayers and [the] public in general" carry such "public importance" that "justice required an extension of just one day." Because Bull Dog did not ask the trial court to extend the filing deadline, we may not reverse on that basis unless we find plain error "clearly capable of producing an unjust result." R. 2:10-2.
We recognize that "important public rather than private interests" may warrant an enlargement of time under Rule 4:69-6(c). Brunetti, supra, 68 N.J. at 586. In the present matter, however, we are satisfied that Bull Dog's complaint asserted a private interest----an economic interest----rather than an important public interest and, therefore, it failed to establish that the interest of justice required relaxation of the forty-five-day filing deadline.
In its cross-appeal, C & J contends the trial court erred in denying its motion for counsel fees and costs because Bull Dog's complaint was frivolous. A trial court's determinations on the availability and amount of fees and costs for frivolous litigation are reviewable for "abuse of discretion." Masone v. Levine, 382 N.J. Super. 181, 193 (App. Div. 2005). Reversal is warranted when "the discretionary act was not premised upon consideration of all relevant factors, was based upon consideration of irrelevant or inappropriate factors, or amounts to a clear error in judgment." Ibid.
"A party who prevails in a civil action . . . against any other party may be awarded all reasonable litigation costs and reasonable attorney fees, if the judge finds . . . that a complaint, counterclaim, cross-claim or defense of the non-prevailing person was frivolous." N.J.S.A. 2A:15-59.1(a)(1). A cause of action or defense is frivolous if it "was commenced, used or continued in bad faith, solely for the purpose of harassment, delay or malicious injury," or "was without any reasonable basis in law or equity and could not be supported by a good faith argument for an extension, modification or reversal of existing law." N.J.S.A. 2A:15-59.1(b). However, generally "each litigant bears his, her or its litigation costs even where there is litigation which is of marginal merit." Venner v. Allstate, 306 N.J. Super. 106, 113 (App. Div. 1997).
In this case, the trial court found that an award of counsel fees and costs to C & J was not warranted because Bull Dog presented a "rational argument" and had "a good faith belief in its position." We conclude that the record supports those findings, and we find no abuse of discretion by the trial court.
The appeal and cross-appeal are affirmed.
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