BULL DOG TRANSPORTATION, INC. v. CITY OF NEWARK and NORWARD CORPORATION t/a C & J TOWING SERVICE -Respondent Cross-
Annotate this CaseNOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-5856-07T3
BULL DOG TRANSPORTATION, INC.
d/b/a BULL DOG WRECKER SERVICE,
Plaintiff-Appellant/
Cross-Respondent,
v.
CITY OF NEWARK,
Defendant-Respondent,
and
NORWARD CORPORATION t/a C & J
TOWING SERVICE,
Defendant-Respondent/
Cross-Appellant.
______________________________________________________________
Argued January 6, 2010 Decided May 13, 2010
Before Judges Graves and Newman.
On appeal from Superior Court of New Jersey,
Law Division, Civil Part, Essex County,
Docket No. L-8341-07.
William J. Pollinger argued the cause for
appellant/cross-respondent Bull Dog
Transportation, Inc.
Avion Benjamin argued the cause for
respondent City of Newark (Diego F. Navas,
Assistant Corporation Counsel, of counsel
and on the brief).
Stephen Schnitzer argued the cause for
respondent/cross-appellant C & J Towing
Service.
PER CURIAM
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
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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
A-5856-07T3
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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
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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)
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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 warranto, prohibitions, and mandamus) into one
actionwhich 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
375 N.J.
mandamus. Selobyt v. Keough-Dwyer Corr. Facility,
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.
A-5856-07T3
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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
Pressler, Current N.J. Court Rules, comment 7.3
circumstances."
A-5856-07T3
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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-
Brunetti, supra,
68 N.J. at 586. In the present matter,
6(c).
however, we are satisfied that Bull Dog's complaint asserted a
private interestan economic interestrather 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.
A-5856-07T3
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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
nonprevailing 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
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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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