SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION DOCKET NO. A-1727- 22 ADAR ALEPH, LLC, Plaintiff-Appellant,

v. TDJP PROPERTIES, LLC, Defendant-Respondent.

_________________________

Submitted January 30, 2024

– Decided February 16, 2024 Before Judges Smith and Perez Friscia. On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Docket No. L

- 2118

- 22. Law Office of Michael C. Schonberger, LLC, attorney s for appellant (Michael C. Schonberger, of counsel a nd on the briefs). Law Offices of Honig & Greenberg, LLC, attorneys fo r respondent (Adam D. Greenberg, on the brief).
PER CURIAM NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court.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 parti es in the case and its use in other cases is limite d. R. 1:36- 3.2 A- 1727

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Plaintiff Adar Aleph, LLC (Adar) appeals from a De cember 16, 2022 Law Division order, which granted defendant TDJP Properties, LLC 's (TDJP) motion to dismiss Adar's complaint for failure to state a claim. We affirm. These parties are before us for a second time. In our prior opinion, w e detailed the relevant facts and procedural history regarding the parties' underlying tax sale foreclosure. See TDJP Properti es, LLC, v. Adar Aleph,
LLC , No. A- 1198 -20 (App. Div. Apr. 13, 2022) (slip op. at 2- 5) . Therefore, we only recite the salient facts here

. I.
TDJP initiated a tax sale foreclosure as the assignee of a tax sale certificate for Adar's property in Barnegat. Id. 2- 3. The Chancery judge entered final judgment in favor of TDJP after Adar failed to answ er the complaint. Id. at 3. When TDJP acquired the property, it was vacant and dilapidated. The property had no working utilities, a faulty roof, and major interior damage. After TDJP began repairing the property, Adar moved to vacate final judgment and redeem the tax sale certificate. Ibid . On October 16, 2020, a Chancery judge vacated final judgment, permitting r edemption conditioned "on the payment of reasonable costs and fees." See id. at 4. Adar redeemed the tax sale certificate and regained title to the property. The judge denied TDJP 's3 A- 1727

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motion for reconsideration and TDJP appealed from the memorializing order. Id. at 5. While TDJP's appeal was pending, Adar began renovat ing the property. Adar allegedly improved the roof, flooring, kitchen cabinets, counters, walls, kitchen appliances, and plumbing system. Adar obta ined a certificate of
occupancy , leased the property, and collected rent. After Adar 's alleged $93,700
in improvements, the property 's value increased. On April 13, 2022, we reversed the judge's order va cating final judgment and revested title to TDJP . On September 26, Adar filed a one-count Law Division complaint against TDJP alleging unjust enrichment a nd seeking recovery of "thousands of dollars" expended for imp rovements. On October 31, TDJP moved to dismiss the complaint for failure to state a claim in lieu of an answer, which Adar opposed. On December 16, 2022, w ithout hearing argument, 1 the motion judge granted TDJP's motion. The order provided a one -sentence written statement of reasons: "The [c]omplaint is dismissed pursuant to [Rule] 4:6-2(e) and the New Jersey Appellate Division's decision in [Wilmington Savings Fund Soc'y, FSB

1 Adar argues the motion judge failed to hold oral argument, pursuant to Rule 1:6 -2(d), but the record does not show argument was requested.4 A- 1727

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for Pretium Mortgage Acquisition Trust v. Daw, 469 N.J. Super. 437 (App. Div. 2021) ]." On appeal, Adar argues the judge erred because: re liance on Wilmington Savings was misplaced as it concerns mortgage foreclosures rather than tax sale foreclosures; and the complaint adequately pleaded an unjust enrichment claim against TDJP

. II. We review de novo a motion to dismiss for failure t o state a claim upon which relief can be granted under Rule 4:6 -2(e). Baskin v. P.C. Richard & Son,
LLC , 246 N.J. 157, 171 (2021). "A reviewing court mus t examine 'the legal sufficiency of the facts alleged on the face of the complai nt,' giving the plaintiff the benefit of 'every reasonable inference of fact. '" Ibi d. (quoting Dimitrakopoulos v. Borrus, Goldin, Foley, Vignuolo, Hyman & Stahl, P.C., 237 N.J. 91, 107 (2019)). Courts should search the com plaint thoroughly "and with liberality to ascertain whether the fundament of a cause of action may be gleaned even from an obscure statement of claim, opportunit y being given to amend if necessary." Ibid. (quoting Printing Mart-Morristown v. Sharp Elecs. C orp., 116 N.J. 739, 746 (1989)). In this early stage of liti gation, we are not concerned with a pleading party's ability to prove its allega tions. Printing Mart, 116 N.J.5 A- 1727

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at 746. However, "pleadings reciting mere conclusions wit hout facts . . . do not justify a lawsuit," and warrant dismissal. Neuwirth v. State, 476 N.J. Super. 377, 390 (App. Div. 2023) (alteration in original) (quoting Glass v. Suburban Restoration Co., 317 N.J. Super. 574, 582 (App. Div . 1998)). "The essential test is 'whether a cause of action i s suggested by the facts. '" Sashihara v. Nobel Learning Cmtys., Inc., 461 N.J. Super. 195, 200 (App. Div. 2019) (internal quotation marks omitted) (quoting P rinting Mart, 116 N.J. at 746). But "if the complaint states no claim that s upports relief, and discovery will not give rise to such a claim, the action shou ld be dismissed." Dimitrakopoulos, 237 N.J. at 107. "A trial court's interpretation of the law and the legal consequences that flow from established fact s are not entitled to any special deference." Manalapan Realty, L.P. v. Twp. Comm. of Manalapan , 140
N.J. 366, 378 (1995). Our Supreme Court has long recognized "two competing public policy goals" embodied in the New Jersey Tax Sale Law (TSL ), N.J.S.A. 54:5-1 to -137: "one to enhance the tax-collecting ability o f municipalities by encouraging tax sale foreclosures and the other to protect property owners from the devastating consequences of foreclosure." Simo n v. Cronecker, 189 N.J. 304, 315 ( 2007) . A tax sale certificate is created when a municip ality enforces6 A- 1727

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a tax lien prescribed by the procedure set forth in N.J.S.A. 54:5-19. Varsolona v. Breen Cap. Servs. Corp., 180 N.J. 605, 617 (2004) (quoting Savage v. Weissman, 355 N.J. Super. 429, 435-36 (2002)). The c ourt has long recognized the interest in promoting marketability of tax sale certificates. See BV001 REO Blocker, LLC v. 53 W. Somerset St. Props., LLC , 467 N.J. Super. 117, 128 (App. Div. 2021). In Cronecker , our Supreme Court further "acknowledge[d] that the primary goal of the [TSL] is to encourage the sale of tax certificates." 189 N.J. at 331 (citing N.J.S.A. 54:5

- 85 ). Pursuant to the TSL, a tax sale certificate holder acquires certain rights, includi ng the right " to acquire title by foreclosing the equity of redemption of all outstan ding interests, including that of the property owner." In re Princeton Off. Park L.P. v. Plymouth Park Tax Servs., LLC, 218 N.J. 52, 63 (2014) (quoting Varsol ona, 180 N.J. at 618). Once final judgment is entered, the right of redemp tion in a tax sale foreclosure action is extinguish ed . N.J.S.A. 54:5- 87 . As a result of a "final judgment of foreclosure under the [TSL]," a tax cer tificate holder "is vest[ed] title to the property in fee simple." Town of Phill ipsburg v. Block 1508, Lot 12 , 380 N.J. Super. 159, 166 (App. Div. 2005); N.J.S.A. 54:5-87. Historically, once title vested to the tax certificate holder, any out standing rights to equity or value
in the property were extinguished. In re Princeton, 218 N.J. at 63.7 A- 1727

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The United States Supreme Court in Tyler v. Hennepin County held the confiscation of a property owner's e quity in a tax-related foreclosure violated the Fifth Amendment Takings Clause, reason ing that there was "no opportunity for the taxpayer to recover the excess value[] once absolute title ha[d] transferred." 598 U.S. 631, 644 (2023). 2 We recently held "retroactive pipeline application of the holding in Tyler to the TSL [wa] s mandated because the Court constitutionally recognized a property owner's inte rest in surplus equity." 257

- 261 20th Ave. Realty, LLC v. Roberto ,
___ N.J. Super.

___ ,
___ (App. Div. Dec. 4, 2023) (slip op. at 23).
III. While Adar correctly contends our decision in Wilmi ngton Sav ings involve d a mortgage foreclosure and this is a tax sale for eclosure, we glean the judge's reliance was based on the premise that Adar 's unjust enrichment claim was insufficient because, accepting every inference , a quasi-contract was not asserted. In Wilmington Sav ings , we held a mortgage lender or its assignee ha d a duty under the implied covenant of good faith and fair dealing to timely advise a borrower regarding its application of insurance p roceeds received

. 469 N.J.

2 After the parties' briefs were filed, TDJP filed a supplemental letter, pursuant to Rule 2:6 -11(d), refuting the application of Tyler

.8 A- 1727

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Super. at 455. We further held that the homeowner's quantum meruit and unjust enrichment claims for repair costs were precluded u nder the parties' mortgage contract because no "equitable basis to warrant" re imbursement existed. Id. at 46 0-6 1. "Recovery based on quasi-contract, sometimes referr ed to as a contract implied- in -law, 'is wholly unlike an express or implied- in -fact contract in that it is "imposed by the law for the purpose of bringing about justice without reference to the intention of the parties."'" Weichert Co. Realtors v. Ryan, 128
N.J. 427, 437 (1992) (quoting Saint Barnabas Med. Ctr. v. County of Essex , 111 N.J. 67, 79 (1988)). Notwithstanding the judge's terse statement of reasons,

see Rule 1:7 -4(a), 3 we conclude the judge's reference to Wilmington Sa vings pertained to Adar's failure to allege an equitable basis for relief. "The doctrine of unjust enrichment rests on the equ itable principle that a person shall not be allowed to enrich himself unjus tly at the expense of another." Goldsmith v. Camden Cnty. Surrogate's Of f. , 408 N.J. Super. 376, 382 (App. Div. 2009) (quoting Assocs. Com. Corp. v. Wallia, 2 11 N.J. Super. 231, 243 (App. Div. 1986)). To prove a claim for unjust enr ichment, a party must

3 Rule 1:7 -4(a) requires courts to make "[r]equired [f]inding s," in "an opinion or memorandum decision, either written or oral," wh ich "find[s] the facts and state[s] its conclusions of law . . . on every moti on decided by a written order that is appealable as of right . . ."9 A- 1727

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demonstrate that the opposing party "received a ben efit and that retention of that benefit without payment would be unjust." Iliadis v . Wal-Mart Stores, Inc., 191 N.J. 88, 110 (2007) (quoting VRG Corp. v. GKN Realt y Corp., 135 N.J. 539, 554 (1994)). "That quasi-contract doctrine also 'r equires that plaintiff show that it expected remuneration from . . . defendant at th e time it performed or conferred a benefit on defendant and that the failu re of remuneration enriched defendant beyond its contractual rights.'" Thieme v. Aucoin-Thieme, 227 N.J. 269, 288 (2016) (quoting Iliadis, 191 N.J. at 110). We reject Adar's contention that it stated a claim against TDJP for unjust enrichment for the value of the property improvemen ts. The claim evinces a fundamental misunderstanding of the doctrine of unj ust enrichment. Notably, Adar's complaint does not allege any expectation of remuneration from TDJP. Adar was notified of TDJP 's appeal , which sou ght reversal of the Chancery judge's order vacating final judgment. Y et , it knowingly made improvements with the possibility of a reversal pending; thus, Adar accept ed the risk. According ly, giving(?) Adar every reasonable inference from the fact s alleged in support of its quasi-contract claim for unjust enrichment , we discern "no basis for relief" was pleaded. See Sparroween, LLC v. Tw p. of W. Caldwell, 452 N.J.10 A- 1727

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Super. 329, 339 (App. Div. 2017) (quoting J.D. ex rel. Scipio-Derrick v. Davy , 415 N.J. Super. 375, 397 (App. Div. 2010)). Finally, we note the December 16, 2022 order does n ot state that the complaint was dismissed with prejudice. Dismissal of a complaint for failure to state a claim pursuant to Rule 4:6 -2(e) is "ordinarily without prejudice." Smith v. SBC Commc'ns, 178 N.J. 265, 282 (2004) ; see also Pressler & Verniero, Current N.J. Court Rules, cmt. 4.1.1 on R. 4:6 -2(e) (2024) ("[A] dismissal for failure to state a claim is [ordinarily] without pr ejudice."). "Under [Rule] 2:2

- 3(a)(1), an appeal as of right may be taken to the Appellate Division only from a 'final judgment.'" Vitanza v. James, 397 N.J. Super. 516, 518 (App. Div. 2008) (quoting Janicky v. Point Bay Fuel, Inc., 396 N.J. Super. 545, 939 (Ap p. Div.
2007 )). Nevertheless, because dismissal of this appeal woul d cause undue delay at this juncture, we sua sponte grant leave to appe al nunc pro tunc the order to dismiss. See R. 2:4 -4(b)(2); see also Medcor, Inc. v. Finley, 179 N.J. Super. 142, 144-45 (App. Div. 1981) (holding this court ha s discretion on whether to grant leave to appeal from an interlocutory order). We therefore modify the court's order to reflect that the complaint has bee n dismissed without prejudice.11 A- 1727

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The court's order of December 16, 2022, is affirmed as modified. We remand to the motion judge for the limited purpose of modifying the order of dismissal to provide that Adar's complaint is dismi ssed without prejudice. To the extent not addressed, Adar's remaining argum ents lack sufficient merit to warrant discussion in our written opinion. R. 2:11 -3(e)(1)(E). Affirmed as modified and remanded for correction of the order. We do not retain jurisdiction.