HABITATE, LLC. VS. CITY OF BRIDGETON RENEWABLE JERSEY,LLC(L-517-13, CUMBERLAND COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R.1:36-3.

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2296-15T2

HABITATE, LLC and THOMAS MARTIN,
individually,

Plaintiffs-Appellants,

v.

CITY OF BRIDGETON; RENEWABLE
JERSEY, LLC,

Defendants-Respondents,

and

ROBERT REYERS and
CLAUS AND REYERS COMPANY,
a Delaware Corporation,

Defendants.

Argued May 17, 2017 – Decided July 21, 2017

Before Judges Alvarez, Accurso, and Lisa.

On appeal from the Superior Court of New
Jersey, Law Division, Cumberland County,
Docket No. L-517-13.

Keith A. Bonchi argued the cause for
appellants (Goldenberg, Mackler, Sayegh,
Mintz, Pfeffer, Bonchi & Gill, attorneys; Mr.
Bonchi, of counsel and on the briefs; Elliott
J. Almanza, on the briefs).
 Jack Plackter argued the cause for respondent
Renewable Jersey, LLC (Fox Rothschild LLP,
attorneys; Mr. Plackter, of counsel and on the
brief; Bridget A. Sykes, on the brief).

Matthew Toto argued the cause for respondent
City of Bridgeton (Traub Lieberman Straus &
Shrewsberry LLP, attorneys; Mr. Toto, on the
brief).

PER CURIAM

On May 11, 2016, a Chancery Division judge granted defendants,

the City of Bridgeton, Renewable Jersey LLC (Renewable), Robert

Reyers, and Claus and Reyers Company (CAR), summary judgment

dismissing a five-count amended complaint in lieu of prerogative

writs. The judge also denied plaintiffs, Habitate LLC and Thomas

Martin's, demand for discovery. We now reverse in part and affirm

in part.

The complaint sought damages for Bridgeton's alleged illegal

manipulation of land titles; alleged a conspiracy by Bridgeton,

Renewable, Reyers, and CAR; sought to quiet title in plaintiffs

of Bridgeton Block 132, Lot 1.02; alleged defendants engaged in

fraud; and sought a declaration that a judgment against Reyers

totaling $7975.55 was a valid lien against the land.

The initial complaint had been stayed while the related tax

sale foreclosure appeal was completed. That matter can be found

at Habitate, LLC v. R&R Holdings, LLC, No. A-4262-12 (App. Div.

2 A-2296-15T2
Feb. 6, 2015). The petition for certification was denied by the

Supreme Court on June 19, 2015. 222 N.J. 15 (2015).

We very briefly summarize the necessary facts. On July 12,

2012, Habitate obtained a default judgment in a foreclosure action

on a tax sale certificate against Block 132, Lot 1.02's record

owner, R&R Holdings, LLC (R&R). R&R had acquired the property

from Bridgeton in 2004 upon its promise to create forty full-time

jobs at the subject property. Reyers was the owner of R&R.

Thereafter, defendant Renewable, Bridgeton's redeveloper, was

granted leave to intervene in the proceeding, and redeemed the

property for $80,320, the amount due to Habitate with interest on

the tax sale certificate plus an additional $5000 payment to the

record owner. At the time Bridgeton conveyed ownership of the

land to R&R, the company had not yet been incorporated and Reyers

had nearly $194,263 in personal judgments against him.

While the first appeal involving the tax sale certificate was

pending, the defendants apparently discovered that the 2004

conveyance to R&R had been made to a non-existent corporation. As

a result on May 7, 2013, at an open council meeting, Bridgeton

adopted a resolution authorizing a corrective deed, and reissued

the deed to the property to CAR. Reyers had revived CAR, a

previously defunct corporation, in preparation to take title when

the second deed issued. Corporate paperwork was completed so that

3 A-2296-15T2
R&R quitclaimed any interest it had into CAR, and the land then

transferred from CAR to Renewable. The purpose of Bridgeton's

ordinance, the new deeds, and corporate resolutions was to ensure

that Renewable obtained clear title. Renewable is a redeveloper

whose acquisition of the property is important to a renewal project

in Bridgeton. Renewable promptly encumbered the land with a

$100,000 mortgage.

Habitate had filed the first appeal in order to challenge the

judgment allowing Renewable to intervene and redeem in the action

to foreclose on the tax sale certificate. In the earlier matter,

Habitate had suggested that the lot was valuable because, as of

2015, it had a deep water well allegedly worth $30,000, and a

sewer connection worth $500,000.

In the tax foreclosure appeal, like the Chancery judge, we

were aware of Habitate's parallel complaint in this case. We

said: "This is not to express any opinion on Habitate's pending

litigation for the harm it alleges as a result of Bridgeton's

second deed to CAR to effectuate its conveyance to Renewable."

Habitate , LLC, supra, slip op. at 18-19. In the tax sale

foreclosure matter, the Chancery judge had stated in her decision

regarding Habitate's complaint, "Fraud and other claims are best

handled in that action and not as part of the tax sale certificate

foreclosure/redemption."

4 A-2296-15T2
 Applying the doctrine of res judicata, the Chancery judge

dismissed the complaint in this case before discovery. She

concluded that since Renewable's intervention in the tax

foreclosure, and redemption of the tax sale certificate, had been

found to be lawful, and upheld on appeal, nothing further could

be adjudicated.

As to Martin's purchase of a judgment lien against Reyers,

the judge held that since the assignment to Martin was made six

months after the redemption order in the tax sale foreclosure, the

judgment did not follow the land and did not constitute a valid

lien on the property. Martin further argued that he had standing

in this case by virtue of being a citizen taxpayer of Bridgeton.

Since he offered no law in support of the proposition, the claim

was rejected.

Finally, with regard to Bridgeton, the court found that the

claims were barred by the New Jersey Tort Claims Act (TCA),

N.J.S.A. 59:1-1 to -12-3. Since the complaint was dismissed,

naturally the motion to commence discovery was denied as moot.

The Chancery judge said "[i]n taking no position [in the tax

foreclosure,] this court reserved its discretion to grant or deny

summary judgment." Now on appeal, plaintiffs raise the following

points of error:

5 A-2296-15T2
 POINT ONE
RES JUDICATA DOES NOT BAR THIS ACTION

POINT TWO
HABITATE AND THOMAS MARTIN HAVE STANDING

POINT THREE
THE CLAIMS AGAINST BRIDGETON ARE NOT BARRED
BY ANY PROVISION OF THE TORT CLAIMS ACT

A: N.J.S.A. 59:2-10 DOES NOT APPLY TO THIS
ACTION
B: N.J.S.A. 59:2-4 DOES NOT APPLY TO THIS
ACTION
C: N.J.S.A. 59:2-9 DOES NOT APPLY TO THIS
ACTION.

I.

"A ruling on summary judgment is reviewed de novo." Davis

v. Brickman Landscaping, LTD., 219 N.J. 395, 405 (2014) (citing

Manahawkin Convalescent v. O'Neill, 217 N.J. 99, 115 (2014)).

Thus, our review requires application of the same standard which

governs the trial court. Ibid. (citing Murray v. Plainfield Rescue

Squad, 210 N.J. 581, 584 (2012)).

A motion for summary judgment should be granted when there

are no genuine issues of material fact in dispute and the moving

party is entitled to judgment as a matter of law. Brill v.

Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995); R. 4:46-

2. Facts are to be viewed in a light most favorable to the non-

moving party. Brill, supra, 142 N.J. at 540.

6 A-2296-15T2
 II.

A.

Plaintiffs contend that no preclusionary doctrine bars them

from pursuing the causes of action alleged in their complaint.

But for the cause of action set forth in the fifth count by Thomas

Martin, we agree that dismissal at this stage was improper. Thus

we first address the Chancery judge's decision that the doctrine

of res judicata was dispositive. We also address her determination

that collateral estoppel and the entire controversy doctrine are

additional bars to plaintiffs' ability to pursue the matter.

Res judicata is an ancient judicial doctrine which

"contemplates that when a controversy between parties is once

fairly litigated and determined it is no longer open to

relitigation." Selective Ins. Co. v. McAllister, 327 N.J. Super.

168, 172 (App. Div.) (quoting Lubliner v. Bd. of Alcoholic Beverage

Control for City of Paterson, 33 N.J. 428, 435 (1960)), certif.

denied, 164 N.J. 188 (2000). In order for res judicata to apply,

the party asserting the doctrine must show: "(1) a final judgment

by a court of competent jurisdiction, (2) identity of issues, (3)

identity of parties, and (4) identity of the cause of

action." Brookshire Equities, LLC v. Montaquiza, 346 N.J. Super.

310, 318-319 (App. Div.) (citation omitted), certif. denied, 172

N.J. 179 (2002).

7 A-2296-15T2
 The parties in this case are essentially the same as in the

tax sale foreclosure proceeding. And the factual circumstances

that led to that lawsuit and appeal, explain this one. In our

opinion, however, there is a significant dissimilarity between the

issues raised in the two lawsuits.

Plaintiffs' action in lieu of prerogative writs alleges that

Bridgeton, conspiring with Reyers to the benefit of Renewable,

engaged in the illegal manipulation of land titles. That issue

is clearly not one encompassed by the tax sale certificate

foreclosure action. In the tax sale action, the question for

decision was whether Renewable had the right to intervene and

discharge the certificate. Although those circumstances are an

essential part of this case, they do not resolve the matter.

Plaintiffs also seek to quiet title to Block 132, Lot 1.02

in Habitate. In a manner of speaking they sought the same relief

in the tax foreclosure – but for different reasons.

The claim of fraud, although raised in the tax foreclosure

action, was found to be without merit. Obviously, that is an

issue which, although it was raised to stop Renewable's

intervention, will be resolved separately from, and on different

proofs than, the tax sale foreclosure matter. When we examine the

elements of res judicata here, there appear to be different claims

8 A-2296-15T2
in this lawsuit than those raised in the tax foreclosure matter.

Thus res judicata does not apply.

B.

"The doctrine of collateral estoppel is a branch of the

broader law of res judicata which bars relitigation of any issue

actually determined in a prior action generally between the same

parties and their privies involving a different claim or cause of

action." Selective Ins. Co., supra, 327 N.J. Super. at 173

(citation omitted). For the doctrine of collateral estoppel to

apply, the party asserting the bar must show that: "(1) the issue

to be precluded is identical to the issue decided in the prior

proceeding; (2) the issue was actually litigated in the prior

proceeding; (3) the court in the prior proceeding issued

a final judgment on the merits; (4) the determination of the issue

was essential to the prior judgment; and (5) the party against

whom the doctrine is asserted was a party to or in privity with a

party to the earlier proceeding." Olivieri v. Y.M.F. Carpet,

Inc., 186 N.J. 511, 521-522 (2006)(quoting In re Estate of Dawson,

136 N.J. 1, 20 (1994)).

The distinguishing feature of collateral estoppel is "that

it alone bars relitigation of issues in suits that arise from

different causes of action." Selective Ins. Co., supra, 327 N.J.

Super. at 173. Thus, "[r]es judicata applies when either party

9 A-2296-15T2
attempts to relitigate the same cause of action. Collateral

estoppel applies when either party attempts to relitigate facts

necessary to a prior judgment." T.W. v. A.W., 224 N.J. Super.

675, 682 (App. Div. 1988), certif. denied, 117 N.J. 44 (1989).

Since collateral estoppel is an equitable doctrine, "it should

only be applied when fairness requires." Pivnick v. Beck, 326

N.J. Super. 474, 486 (App. Div. 1999), aff'd, 165 N.J. 670 (2000).

In determining whether to apply collateral estoppel, courts should

consider the following factors:

Some of the factors favoring application of
issue preclusion are: conservation of
judicial resources; avoidance of repetitious
litigation; and prevention of waste,
harassment, uncertainty and inconsistency. In
contrast, factors disfavoring application of
collateral estoppel include: the party against
whom preclusion was sought could not have
obtained review of the judgment in the initial
action; the quality or extensiveness of the
procedures in the two actions were different;
it was not foreseeable at the time of the
initial action that the issue would arise in
subsequent litigation; and the party sought
to be precluded did not have an adequate
opportunity to obtain a full and fair
adjudication in the first action.

[Ibid. (internal citations omitted).]

The question whether collateral estoppel justifies dismissal

is more difficult than the decision regarding res judicata. The

facts are to some extent the same. But it seems unfair to find

plaintiffs are collaterally estopped from pursuing this case when,

10 A-2296-15T2
at least in part, the outcome in the that first matter is itself

the event plaintiffs claim inflicted harm upon them. We therefore

conclude that at least at this stage there is sufficient

distinction between the two causes of action to warrant

reinstatement of the complaint.

The Chancery judge's determination that the corrective deed

Bridgeton issued was valid was made within the context of a tax

sale foreclosure and for the purpose of adjudicating a dispute

limited by the statutes and rules that define the litigation. This

case includes facts and circumstances outside that narrow

corridor. Therefore at this juncture, before discovery,

collateral estoppel does not compel the dismissal of plaintiffs'

complaint.

C.

Finally, Renewable argues that summary judgment should be

affirmed because the complaint is barred by the entire controversy

doctrine. "The entire controversy doctrine bars a subsequent

action only when a prior action based on the same transactional

facts has been tried to judgment or settled." Arena v. Borough

of Jamesburg, 309 N.J. Super. 106, 111 (App. Div. 1998). However,

"[o]nly a judgment 'on the merits' will preclude a later action

on the same claim." Watkins v. Resorts Int'l Hotel & Casino, 124

N.J. 398, 415 (1991) (citation omitted).

11 A-2296-15T2
 The trial court explicitly stated that plaintiffs' fraud

claims were best dealt with in a separate proceeding. Our decision

was not meant to "express any opinion on Habitate's pending

litigation for the harm it alleges as a result of Bridgeton's

second deed to CAR to effectuate its conveyance to renewable."

Habitate, LLC, supra, slip op. at 18-19. As we have said, the

same transactional facts apply to both actions – except that in

this case the facts necessary to the tax sale foreclosure are only

part of the story. Plaintiffs here have never been afforded the

opportunity to explore conduct they allege was unlawful. Since

these issues have never been decided, and no judgment on the merits

ever issued, the doctrine does not bar the case at this stage.

III.

We agree that Habitate has standing to pursue this case as a

former tax certificate holder since Habitate contends it lost the

opportunity to acquire title to Block 132, Lot 1.02. Martin,

however, is another issue.

"Standing has been broadly construed in New Jersey as 'our

courts have considered the threshold for standing to be fairly

low.'" Triffin v. Somerset Valley Bank, 343 N.J. Super. 73, 81

(App. Div. 2001) (quoting Reaves v. Egg Harbor Twp., 277 N.J.

Super. 360, 366 (Ch. Div. 1994)). In order to obtain standing,

"a party must have a sufficient stake and real adverseness with

12 A-2296-15T2
respect to the subject matter of the litigation." Lopresti v.

Wells Fargo Bank, N.A., 435 N.J. Super. 311, 318 (App. Div.)

(internal quotation marks and citation omitted), certif. denied,

219 N.J. 629 (2014). However, courts have held that "[a] financial

interest in the outcome ordinarily is sufficient to confer

standing." Ibid. (quoting Strulowitz v. Provident Life & Cas.

Ins. Co., 357 N.J. Super. 454, 459 (App. Div.), certif. denied, 177

N.J. 220 (2003)).

Martin's interest was acquired October 25, 2013, months after

the redemption order in the tax sale foreclosure matter and the

filing of the prerogative writs action. The purchase was clearly

intended to provide Martin with standing and an interest even

after the tax sale certificate foreclosure.

Habitate alleges it suffered an ascertainable loss in being

prevented from exercising its right to foreclose on its tax sale

certificate by a scheme it claims was fraudulent. In purchasing

the tax sale certificate, it acquired the following rights:

(1) the right to receive the sum paid for the
certificate with interest at the redemption
rate for which the property was sold, up to a
maximum of 18%, N.J.S.A. 54:5-32, -58; (2)
the right to redeem from any other holder a
subsequently issued tax sale
certificate, Realty Sales Corp. v. Payne, 76
N.J. Super. 59, 61-62 (Ch. Div. 1962), aff'd
o.b., 78 N.J. Super. 504 (App. Div.), certif.
denied, 41 N.J. 162 (1963); and, most
importantly, (3) the right to acquire title

13 A-2296-15T2
 by foreclosing the equity of redemption of all
outstanding interests, including the
owner's, N.J.S.A. 54:5-86. Township of
Jefferson v. Block 447A, Lot 10, 228 N.J.
Super. 1, 4-5 (App. Div. 1988).

[Caput Mortuum, L.L.C. v. S&S Crown Servs.,
Ltd., 366 N.J. Super. 323, 336 (App. Div.
2004).]

Thus Habitate, as original holder of the certificate, had at least

the potential ability to acquire title to the property. Therefore,

it arguably has an interest in the events leading up to the

issuance of the corrective deed.

Habitate also has standing to challenge municipal action.

"New Jersey has a broad definition of standing when it comes to

challenging governmental actions[.]" Loigman v. Twp. Comm. of

Middletown, 297 N.J. Super. 287, 294 (App. Div. 1997). Moreover,

"taxpayer intervention is appropriate where there are claims of

fraud or corruption." Id. at 295. As Habitate challenges

Bridgeton's resolution authorizing the corrective deed based on

allegations of a fraudulent scheme, Habitate has standing to bring

the prerogative writs action.

Martin has standing only as to the judgment against Reyers

personally, not incidental to the events leading to the eventual

acquisition of clear title to Block 132, Lot 1.02, or in this

lawsuit. The dismissal of the fifth count is therefore affirmed.

14 A-2296-15T2
 IV.

The trial court concluded that the TCA barred any cause of

action against Bridgeton. We do not agree.

The Chancery Division judge relied on portions of the TCA

that provide that a public entity is not liable for the conduct

of its employees even if fraudulent, liable for injuries caused

by adopting a law or failing to enforce a law, or acts or omissions

resulting in a slander on the title of property. See N.J.S.A.

59:2-10; 59:2-4; 59:2-9. None of these provisions are relevant

to Habitate's claims against Bridgeton. Habitate seeks an order

voiding the resolution authorizing the issuance of a new deed to

CAR, which it alleges resulted in the "illegal manipulation of

land titles." None of those provisions in the TCA bar plaintiff's

claim. Municipal action can be vacated when it amounts to a fraud.

See Zakutansky v. Bayonne, 88 N.J. Super. 516, 526 (App. Div.

1965). "Judicial review of an ordinance is limited to the

motivation of those enacting it. So long as it is motivated by

public welfare, and is not tainted with fraud or some clear

perversion of power, there is no occasion for judicial

intervention." Ibid. But the question Habitate poses is whether

the ordinance and deed were so "tainted."

In Simon v. Deptford Twp., 272 N.J. Super. 21, 24-25 (App.

Div.), certif. denied, 137 N.J. 310 (1994), the plaintiffs brought

15 A-2296-15T2
an action in lieu of prerogative writs against the city seeking

to nullify their purchase of tax sale certificates based on mutual

mistake and fraud. Although we affirmed the dismissal of

plaintiffs' fraud claim, we noted that while the facts in that

case did not support a claim for fraud, the decision was not meant

to "undercut[] the potential viability of a documented fraud claim"

in a tax sale matter. Id. at 30. Plaintiffs have not alleged

that any specific employee engaged in fraud, and a claim for fraud

can be brought against a municipal entity seeking to vacate a

municipal action, therefore N.J.S.A. 59:2-10 also does not bar

plaintiffs' claims against Bridgeton.1

Bridgeton further asserts that N.J.S.A. 59:2-5 applies. That

section of the TCA grants immunity against injuries caused by the

enumerated actions found in the statute including "denial,

suspension, or revocation of, or by the failure or refusal to

issue, deny, suspend or revoke" permits, licenses, and similar

documents. This provision does not apply. Plaintiffs' allegations

are focused on the resolution Bridgeton adopted in order to

reconvey ownership of the land to CAR. But for that action, there

1
Bridgeton points out that N.J.S.A. 59:9-2 bars punitive damages
claim against a municipality. We agree. In their reply brief,
plaintiffs acknowledge this.

16 A-2296-15T2
would be no lawsuit. It does not fall within any of the categories

mentioned in the TCA.

To reiterate, although we affirm the dismissal of the fifth

count, in which Martin individually sought by the purchase of a

judgment to intervene, we otherwise reverse. The first four counts

of the complaint are reinstated and the matter can proceed to

discovery. Nothing in this opinion is to be construed as

indicating, one way or another, any opinion with regard to any

future motions for summary judgment or the ultimate outcome of the

case, should it be tried.

Reversed in part, but the summary dismissal of count five is

affirmed.

17 A-2296-15T2