On appeal from Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-200-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Payne and Baxter.
When the Doric Apartments were built on Manhattan Avenue in Union City in the 1960s, Hudson County permitted the developer to expand the structure's parking lot by digging back into the Palisades and then installing a retaining wall on County property that supported the County's roadway and sidewalk. The wall gave way in a storm on April 17, 2007, as did a County-owned wall further along Manhattan Avenue, compromising Manhattan Avenue and its adjoining sidewalk and causing the road to be closed.
The County performed repairs, including reconstruction of the Doric's wall, and then sought to charge the Doric for its costs. When the Doric refused to make payment, the County sued, alleging negligent maintenance and unjust enrichment. Prior to trial, the claim of negligent maintenance was dismissed as factually unsupported. Following a jury trial, the jury found that the Doric had been unjustly enriched in the amount of $112,106, which the court later increased to $123,437 to account for prejudgment interest.
Before trial took place, the County had applied to the New Jersey Department of Transportation (NJDOT) for Federal Highway Administration (FHWA) emergency relief, submitting proof of $169,719.82 in costs incurred in the demolition and reconstruction of the Doric's wall and $368,035.42 in costs incurred in the demolition and reconstruction of the County's wall. At the time of trial, the County's FHWA application remained pending. The jury's verdict was entered on July 13, 2009 and amended on August 21, 2009.
On September 25, 2009, Demetrio Arencibia, the Assistant Hudson County Engineer wrote to Eileen Schack, an employee of the NJDOT stating:
The payment voucher for $537,755.24 with supporting payment documentation was delivered to your attention yesterday.
As explained, the County is attempting to collect payment from the Doric Apartments for part of the Doric wall costs. The County recently obtained a Judgment (Docket No. HUD-L-200-08) for $112,106.00 plus interest and costs against the Doric. Please let me know how this Judgment could affect the payment voucher as submitted. You might need to verify with your finance or legal departments.
If you need any further information, please let me know.
Despite notice of the judgment, on December 9, 2009, the County received from the NJDOT a check for $537,755.24 as reimbursement for the County's total costs of $552,195.24 to repair the two walls, less $14,440 in non-reimbursable costs.
Upon notification to the Doric of the payment, the Doric moved pursuant to Rule 4:50-1 to modify the amended judgment or mark it as satisfied as the result of the County's receipt of reimbursement. On February 16, 2010, prior to the hearing on the Doric's motion, the motion judge asked the County's counsel to determine the NJDOT's position "with respect to this reimbursement, whether [it] had any interest in intervening or otherwise." Counsel drafted a letter, dated February 17, 2010, informing the NJDOT of the Doric's motion,*fn1 but had heard nothing from the agency at the time of the motion hearing on March 5, 2010.
Following argument, the Doric's motion was granted pursuant to Rule 4:50-1(b) (new evidence) and (f) (any other reason justifying relief from the operation of the judgment). The judge found, in light of the NJDOT's reimbursement of the County's expense for demolition and repair of the Doric wall, that the County could not claim that the Doric had been "unjustly" enriched to the County's detriment ...