                NOT FOR PUBLICATION WITHOUT THE
               APPROVAL OF THE APPELLATE DIVISION

                                    SUPERIOR COURT OF NEW JERSEY
                                    APPELLATE DIVISION
                                    DOCKET NO. A-2899-13T2

STATE OF NEW JERSEY, by the
COMMISSIONER OF TRANSPORTATION,        APPROVED FOR PUBLICATION

     Plaintiff-Appellant,                 February 26, 2015

                                         APPELLATE DIVISION
v.

CHERRY HILL MITSUBISHI, INC., a
New Jersey Corporation; FOULKE
MANAGEMENT CORPORATION, a New
Jersey Corporation, d/b/a Cherry
Hill Triplex, Cherry Hill Dodge,
Cherry Hill Kia and Cherry Hill
Mitsubishi; CHERRY HILL DODGE, INC.,
a New Jersey Corporation,

     Defendants/Third-Party
     Plaintiffs-Respondents,

v.

VICTOR AKPU; THE COMMISSIONER OF
THE DEPARTMENT OF TRANSPORTATION,

     Third-Party Defendants-
     Appellants.


         Submitted October 1, 2014 – Decided February 26, 2015

         Before Judges Alvarez, Waugh, and Maven.

         On appeal from the Superior Court of New
         Jersey, Law Division, Camden County, Docket
         No. L-3489-13.

         John J. Hoffman, Acting Attorney General,
         attorney for appellants (Melissa H. Raksa,
         Assistant Attorney General, of counsel;
           Sharon Price-Cates, Deputy Attorney General,
           on the brief).

           Capehart   &    Scatchard,   attorneys    for
           respondent (Laura D. Ruccolo, on the brief).

    The opinion of the court was delivered by

ALVAREZ, P.J.A.D.

    The State of New Jersey filed a Rule 4:67 summary action1 to

compel removal of encroachments on a portion of its Route 70

right-of-way in Cherry Hill.          See N.J.S.A. 27:7-44.1.2                  On the

return   date,    the     trial   judge       denied    the     State's    requested

relief, and granted defendant Foulke Management, which operates

three    car     dealerships      adjoining          the       right-of-way,       the

opportunity to file responsive pleadings.

    Foulke       Management's       second           counterclaim         named      as

defendants: the Commissioner of the Department of Transportation

(DOT); Victor Akpu, the Director of the DOT's Division of Right-

of-Way   and     Access    Management;         and     "John    Does[]     in     their

individual     capacities[.]"        The      counterclaim        sought    monetary

1
  The State's appendix does not include a copy of the original
complaint or order to show cause.
2
  "Whenever any encroachment may exist without warrant of law in
any road when taken over as a State highway, the Commissioner
[of the Department of Transportation] shall notify the Attorney
General, who shall proceed to cause the same to be removed as by
law provided. . . . . Any such violation may be removed from any
State highway as a trespass by a civil action brought by the
Commissioner in the Superior Court.    The court may proceed in
the action in a summary manner or otherwise."



                                          2                                  A-2899-13T2
damages for the alleged violation of Foulke Management's equal

protection rights under the Fourteenth Amendment of the United

States Constitution, 42 U.S.C.A. § 1983, and the New Jersey

Constitution.         It also included a count for unjust enrichment

based     on    Foulke    Management's         maintenance     of   the    State's

property, and a count for injunctive relief.                  The State promptly

moved   to     dismiss   the     counterclaim,       on   grounds   of    qualified

immunity, for "failure to state a claim upon which relief can be

granted."       See R. 4:6-2(e).     The trial judge denied that motion.

    After        we    granted     the    State      leave    to    pursue     this

interlocutory appeal from that decision, Rule 2:2-4, the State

renewed its request to the trial judge for a stay of discovery.

The judge refused, noting that if the State did not complete

discovery within seventeen days, "the court will hear a motion

on sanctions."         We stayed that order on the State's emergent

application.

    We now reverse and dismiss the counterclaim.                    We remand so

the State can proceed in its action for removal.

                                          I

    Summarizing the facts, a citizen wrote several letters to

the DOT complaining of Foulke Management's encroachments on the

relevant section of Route 70, alleging that they impaired the

ability    of    emergency     vehicles       to   traverse   the   right-of-way.




                                          3                                A-2899-13T2
After some months, apparently in response to these letters, the

State ordered Foulke Management to remove the encroachments or

face the $100 daily penalty authorized by statute.                        See N.J.S.A.

27:7-44.1.

       In the litigation, Foulke Management's principal certified

that   the     author      of    the    letters      had,   for   some    years,      been

unsuccessfully attempting to sell him his adjoining land for an

inflated price, and that this was the actual motive behind the

correspondence.           Foulke Management's principal also certified

that    the     cars      parked       on    unpaved    areas     in    front    of    its

dealerships had been removed.

       Earlier,      in      2005,     the   dealership     obtained      a     "sidewalk

permit"       from     the      DOT    in    order     to   reconfigure         hardscape

incidental to the remodeling of its showrooms.                         It is not clear

if the compensation sought by way of counterclaim, on the theory

of unjust enrichment, includes the maintenance of blacktop and

landscaping in the sidewalk permit area or relates to some other

part of the right-of-way.               Additionally, at oral argument before

the trial judge, Foulke Management's counsel asserted that the

engineering       survey        it    submitted      with   the    2005    application




                                               4                                 A-2899-13T2
conflicted with the metes-and-bounds description in the State's

deed to the right-of-way.3

                                     II

      Motions to dismiss for failure to state a claim require the

complaint be searched in depth and with liberality to determine

if there is any "cause of action [] 'suggested' by the facts."

Printing-Mart Morristown v. Sharp Elecs. Corp., 116 N.J. 739,

746 (1989).       The inquiry is limited to "examining the legal

sufficiency of the facts alleged on the face of the complaint."

Ibid.   On appeal, review is plenary and we owe no deference to

the trial judge's conclusions.                Rezem Family Assocs., LP v.

Borough of Millstone, 423 N.J. Super. 103, 114 (App. Div.),

certif. denied, 208 N.J. 366 (2011).

      Foulke Management is entitled to every reasonable inference

of fact, but the counterclaim will nonetheless be dismissed if,

after applying these principles, no cause of action emerges.

See   ibid.       Dismissal   is   the       appropriate   remedy      where   the

pleading   does    not   establish   a       colorable   claim   and    discovery

would not develop one.        Camden Cnty. Energy Recovery Assocs. v.

N.J. Dep't of Envtl. Prot., 320 N.J. Super. 59, 64 (App. Div.

1999), aff’d o.b., 170 N.J. 246 (2001).


3
  The State gained title to the right-of-way in 1989 following
condemnation proceedings.



                                         5                               A-2899-13T2
                                                A.

       Turning to the State's assertion of qualified immunity as

grounds for dismissal, it is well-established that the doctrine

balances      the    need       to   hold   public         officials    accountable       for

improperly exercising their power against the need to protect

them    from      civil     liability        when         they    perform   their    duties

reasonably.         Gormley v. Wood-El, 218 N.J. 72, 113 (2014).                          The

question      should       be    determined          as   early    as   possible    in    the

litigation.          Wildoner v. Borough of Ramsey, 162 N.J. 375, 387

(2000).      The issue of whether qualified immunity applies raises

a "matter of law to be decided by a court, preferably on a

properly supported motion for summary judgment or dismissal."

Gormley, supra, 218 N.J. at 113 (citation omitted) (internal

quotation marks omitted).                   Qualified immunity protects public

officials from suit, rather than merely providing them with a

defense      to     liability.            Id.    at       113.      Thus,    the    State's

application to dismiss the counterclaim for failure to state a

claim   on     the    grounds        of   qualified         immunity,    because    of    the

protection the doctrine extends to State officials, was made at

the procedurally optimal stage.

       In    order    to    determine        whether        government      officials     are

entitled to qualified immunity, courts employ the two-pronged

test outlined in Saucier v. Katz, 533 U.S. 194, 200, 121 S. Ct.




                                                6                                   A-2899-13T2
2151,   2155,     150   L. Ed. 2d     272,     281    (2001),     rev'd    on    other

grounds in Pearson v. Callahan, 555 U.S. 223, 236 129 S. Ct.

808, 818, 172 L. Ed. 2d 565, 576 (2009).                 We ask (1) "whether a

constitutional      right    would    have     been    violated     on    the    facts

alleged" and (2) "whether the right was clearly established."

Saucier, supra, 533 U.S. at 200, 121 S. Ct. at 2155, 150 L. Ed.

2d at 281.      In Pearson, the Supreme Court held that the sequence

in which the Saucier factors are considered is not mandatory,

and that judges "should be permitted to exercise their sound

discretion in deciding which of the two prongs of [] qualified

immunity     []   should     be     addressed        first   in    light    of     the

circumstances in the particular case at hand."                    Pearson, supra,

129 S. Ct. at 818.

    In     this   case,     we    address    the     first   question     raised    in

Saucier —— whether Foulke Management has a constitutional right

to continue to encroach.            Foulke Management asserts a property

interest in its ability to encroach upon the government's fee

simple ownership of a right-of-way.                  It further alleges it is

being dealt with in a discriminatory fashion, and its vested

property   interest     harmed,      because    other    businesses       along    the

roadway who are similarly in the State's right-of-way are not

being compelled to relocate.




                                        7                                   A-2899-13T2
    Although     Foulke    Management   might   have   had   a   potential

adverse interest claim against a private party because of its

years of use of the right-of-way, and therefore a potentially

ascertainable interest in the area of encroachment, that cannot

be the case here.         No such claim can be brought against the

State.   Patton v. North Jersey Dist. Water Supply Com., 93 N.J.

180, 190 (1983) (citing Quinlan v. Fair Haven, 102 N.J.L. 443,

446 (E. & A. 1925); Cross v. Mayor of Morristown, 18 N.J. Eq.

305, 310-13 (Ch. 1867)) ("It is well-established that adverse

possession does not run against the State.").

    Foulke Management has not provided us with any support for

the proposition that it has a vested, protected, or even legally

cognizable property interest in continuing to encroach on State

lands.   It is a notion that on its face lacks merit.               Having

concluded that Foulke Management has "no constitutional right

[that]   would    have     been   violated"     were   its   allegations

established, it, of necessity, fails to meet the first Saucier

prong.   Saucier, supra, 533 U.S. at 200, 121 S. Ct. at 2156, 150

L. Ed. 2d at 281.         Thus, as a matter of law, the Commissioner

and Akpu are entitled to qualified immunity because they had no

reason to know Foulke Management had any interest, much less a

constitutional right, which would be violated by the removal

proceeding.




                                    8                             A-2899-13T2
      Even if Foulke Management could demonstrate at trial that

the DOT is mistaken as to the contours of its right-of-way, that

does not suffice to strip DOT officials of qualified immunity.

A mistake does not expose the named officials to a suit for

monetary     damages     or   entitle    the    claimant    to      continue      the

litigation against them for the purpose of establishing that a

mistake occurred.

      As the United States Supreme Court has explained, "[t]he

protection of qualified immunity applies regardless of whether

the government official's error is 'a mistake of law, a mistake

of   fact,    or   a   mistake   based   on    mixed    questions    of    law   and

fact.'"      Pearson, supra, 555 U.S. at 231, 129 S. Ct. 815, 172 L.

Ed. 2d at 573 (quoting Groh v. Ramirez, 540 U.S. 551, 567, 124

S. Ct. 1284, 1295, 157 L. Ed. 2d 1068, 1084 (2004) (Kennedy, J.,

dissenting)).

      Therefore,        after     searching       the     counterclaim           with

liberality, and viewing the facts in the light most favorable to

Foulke Management, we find no cause of action exists.                     Qualified

immunity protects DOT personnel from the counterclaim, and it

must be dismissed.

                                         B.

      In relevant part, the New Jersey Contractual Liability Act

("CLA") provides that "[t]he State of New Jersey hereby waives its




                                         9                                 A-2899-13T2
sovereign       immunity       from     liability      arising     out       of    an     express

contract or a contract implied in fact . . . provided, however,

that there shall be no recovery against the State . . . for claims

based upon . . . contracts implied in law."                              N.J.S.A. 59:13-3

(emphasis added).          A "contract implied in fact" is merely one kind

of "express contract," while the terms "contract implied in law"

and   "quasi-contract"          are     nearly      synonymous.4       The    implied-in-law

contract is an equitable remedy for unjust enrichment.

       "[T]he [CLA] effects a limited waiver of sovereign immunity"

in contract disputes.             Cty. of Hudson v. State, 208 N.J. 1, 13

(2011).     The CLA does not, however, waive sovereign immunity except

as    to   those    "suits      based    on    an    express    contract          or    contracts

implied in fact."          Allen v. Fauver, 167 N.J. 69, 77 (2001).                            The

equitable       remedy     of     an      implied-in-law         contract          for     unjust

enrichment would arise only when one party has conferred a benefit

on    another      and   the    denial    of     recovery      would    be    unjust.          See

Weichert Co. Realtors v. Ryan, 128 N.J. 427, 437 (1992).                                 That is

4
  1-1 Corbin on Contracts § 1.20 (Matthew Bender ed. 2014).     See
West Caldwell v. Caldwell, 26 N.J. 9, 28 (1958) ("[A] quasi-
contractual obligation is created by the law, for reasons of
justice, without regard to expressions of assent by either words or
acts; the legal relations between contractors are dependent upon
the interpretation of their expressions of assent; in quasi-
contract the relations of the parties are not dependent on such
interpretation."   (emphasis  added)   (internal  quotation   marks
omitted)); Restatement (Second) of Contracts ch. 1, § 4, cmt. b
(1981) ("[U]nlike true contracts, quasi-contracts are not based on
the apparent intention of the parties to undertake the performances
in question, nor are they promises. They are obligations created by
law for reasons of justice." (emphasis added)).



                                               10                                        A-2899-13T2
the claim Foulke Management raises here.           We therefore also hold

that the CLA bars Foulke Management from any recovery for alleged

unjust enrichment, as the only basis for such relief is a contract

implied in law.

                                      C.

     Injunctive   relief   may   be    available   even   where   qualified

immunity protects public officials from suits for money damages.

See Gormley, supra, 218 N.J. at 115-16.       If the State is unable to

establish that Foulke Management is trespassing within its boundary

lines, however, then Foulke Management has the right to continue

its use free from further legal action by the State.         No injunctive

relief would therefore be necessary and, on this record, we see no

other basis for such relief.

     Reversed and remanded.




                                      11                           A-2899-13T2
