KATHY PINERA v. the County of Bergen

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2781-04T32781-04T3

KATHY PINERA, a taxpayer of

the County of Bergen,

Plaintiff-Appellant,

v.

COUNTY OF BERGEN; DENNIS

MCNERNY; BERGEN COUNTY

EXECUTIVE; BOARD OF CHOSEN

FREEHOLDERS and PONY EXPRESS

ENTERTAINMENT, INC.,

Defendants-Respondents.

________________________________________________________________

 

Argued September 27, 2005 - Decided

Before Judge Lefelt, Hoens and R. B.

Coleman.

On appeal from the Superior Court of

New Jersey, Law Division, Bergen

County, Docket No. L-14137-04.

Dennis G. Polizzi argued the cause

for appellant.

Janine S. Colletti, Assistant County

Counsel, argued the cause for

respondents County of Bergen, Dennis

McNerney, Bergen County Executive,

and Board of Chosen Freeholders

(Esther Suarez, County Counsel,

attorney; Ms. Colletti, on the brief).

Joseph C. Noto argued the cause for

respondent Pony Express Entertainment,

Inc.

PER CURIAM

The Bergen County Board of Chosen Freeholders, by resolution, awarded a contract to Pony Express Entertainment, Inc. for the operation and management of the county owned Saddle Ridge Horseback Riding Center at Campgaw Mountain County Reservation. Pony Express was the only bidder seeking a contract for the riding center, which houses horses and provides horseback riding and boarding services for a fee. The Pony Express contract was for a twelve month term with two options for additional twelve and thirty-six month terms. Toward the end of the first option period, plaintiff, Kathy Pinera, filed a verified complaint in lieu of prerogative writs and order to show cause, claiming that the County improperly exercised the first option and that therefore the County could not exercise the second option as Pony Express's contract had terminated. Plaintiff therefore argued in the trial court that the County must re-bid the contract and allow her to participate in the new bidding process. Judge Donohue rejected plaintiff's claims, and she appeals. We affirm.

The term of the contract in question was January 1, 2003 through December 31, 2003. The first option, if exercised by the County, was to begin on January 1, 2004 and end on December 31, 2004. The second option, if exercised by the County, was to begin on January 1, 2005 and end on December 31, 2007. The original term and options, along with the rental fees and other financial obligations, were noted in the County's resolution awarding the contract to Pony Express.

Sometime in the late summer of 2004, when preparing a resolution for execution of the contract's second option, the County discovered that it had not formally exercised the first option, though Pony Express had stayed on and was operating the riding center under the terms as specified in the original resolution.

On October 21, 2004, the County Executive ostensibly exercised the first option by signing a contract dated December 18, 2002, the date of the original contract. On December 1, 2004, the Board passed a formal resolution, recognizing that Pony Express had held over, and authorizing the County Executive to exercise the second option and renew the contract for three more years.

On December 10, 2004, plaintiff filed an order to show cause and complaint in lieu of prerogative writs with the trial court, seeking to have the contract re-bid. It is from dismissal of this action that plaintiff appealed.

On appeal, plaintiff argues that: (1) the County Executive had no authority to enter into the contract with Pony Express on October 21, 2004; (2) Pony Express breached its contract with Bergen County; (3) the County must re-bid the contract; and (4) N.J.S.A. 40A:11-15 does not authorize a five-year contract.

We find it unnecessary to address specifically each of plaintiff's arguments because we agree with Judge Donohue that plaintiff's claim was barred under R. 4:69-6.

Rule 4:69-6(a) provides that "[n]o action in lieu of prerogative writs shall be commenced later than 45 days after the accrual of the right to review[.]" Here, plaintiff contends that the Pony Express contract terminated because the County failed to exercise the first option properly. Plaintiff argues that she challenged the second option shortly after the County passed its resolution exercising the option and within 45 days of the date the second option contract was received by Pony Express. However, the claimed defect relates exclusively to the County's failure to exercise the first option in timely and proper fashion.

Plaintiff's claim, therefore, accrued on January 1, 2004, the date the first option term began, and not upon the actual exercise of the second option. Plaintiff had forty-five days to commence her action from the start of the first option period. Instead, she did not seek relief until December 10, 2004, almost a year after her cause of action had accrued.

"In general, ignorance of the existence of a cause of action will not prevent the running of a period of limitations except when there has been concealment." Reilly v. Brice, 109 N.J. 555, 559 (1988). The record does not reflect any concealment by the County. The information that the first option had not been exercised was known at the time. Although plaintiff may not have been aware of the failure at the start of the first option period, the information was readily available had she inquired.

The pertinent time frame may be relaxed when the interests of justice require. R. 4:69-6(c). In this case, however, justice requires just the opposite, that the rule not be relaxed.

That is so for several reasons, including the following. The County is pleased with the manner in which Pony Express is performing the contract. Pony Express has invested in various improvements, and a re-bidding would be costly and unfair, especially considering that the current contract will terminate by its terms in 2007. In addition, the County would incur re-bidding expense, without any guarantee that a more favorable contract would ensue should plaintiff join the bidding. The resulting confusion caused by the need to re-bid may also frustrate the public's use of this facility. In conclusion, the public interest in re-bidding this contract is not sufficiently strong to require relaxation of the applicable time frame.

 
Affirmed.

(continued)

(continued)

6

A-2781-04T3

October 18, 2005