SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3378-16T4

ALL VISION, LLC, as agent

for New Jersey Transit Corp.,

an instrumentality of the State 

of New Jersey,

Plaintiff-Respondent/

Cross-Appellant,

v.

CAROLE MEDIA, LLC,

Defendant-Third-Party 

Plaintiff-Appellant/

 Cross-Respondent,

v.

NEW JERSEY TRANSIT 

CORPORATION, LOVE 

OUTDOOR, LLC n/k/a 

SHAMROCK OUTDOOR, 

LLC, ROBERT LAMBERT, THE

NEW JERSEY DEPARTMENT

OF TRANSPORTATION, 

STUART A. BROOKS and

MICHAEL J. McGUIRE,

Third-Party DefendantsNOT 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.
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A-3378-16T4

Respondents.

_____________________________

Argued April 30, 2019 – Decided August 6, 2019

Before Judges Hoffman, Suter and Enright.

On appeal from the Superior Court of New Jersey, Law 

Division, Somerset County, Docket No. L-0915-09.

Mitchell B. Seidman argued the cause for

 appellant/cross-respondent Carole Media, LLC

(Freedman & Friedland, LLC, attorneys; Mitchell B. 

Seidman, Steven M. Friedland, and Andrew Pincus, on 

the briefs).

Ronald L. Glick argued the cause for respondent/crossappellant All Vision, LLC.

Frank J. Marasco, Deputy Attorney General, argued the 

cause for respondent New Jersey Transit Corporation 

(Gurbir S. Grewal, Attorney General, attorney; Melissa 

Dutton Schaffer, Assistant Attorney General, of 

counsel; Frank J. Marasco, on the brief).

Gregory F. Kotchick argued the cause for respondent 

Love Outdoor, LLC, n/k/a Shamrock Outdoor, LLC 

(Durkin & Durkin, LLC, attorneys; Gregory F. 

Kotchick, of counsel and on the brief).

Jennifer R. Jaremback, Deputy Attorney General, 

argued the cause for respondents The New Jersey 

Department of Transportation, Stuart A. Brooks, and 

Michael J. McGuire (Gurbir S. Grewal, Attorney 

General, attorney; Melissa Dutton Schaffer, Assistant 

Attorney General, of counsel; Jennifer R. Jaremback, 

on the brief).
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A-3378-16T4

PER CURIAM

In this litigation concerning the ownership and use of certain billboard 

sites, plaintiff All Vision, LLC (All Vision) sought back rent from defendant 

Carole Media, LLC (Carole Media), which in turn asserted claims to recover

either the billboard structures on those sites or compensation for those 

structures. Carole Media appeals from the dismissal of its claims, while All 

Vision cross-appeals only from the dismissal of its claim for damages resulting 

from an injunction Carole Media secured in federal court. We affirm in part, 

and reverse and remand in part.

I.

In May 2004, All Vision began serving as the exclusive agent for New 

Jersey Transit Corporation (NJ Transit) in managing its property for outdoor 

advertising purposes, including licensing the entities which operate billboards 

on its property. Prior to All Vision's assumption of that role, Carole Media

entered into licenses with NJ Transit to use two of the agency's sites in Wayne 

and one in Bridgewater. The licenses included the building, maintenance, and 

operation of billboard structures on each of the sites. The licenses provided for 

a five- or one-year term renewable in one-year increments and authorized 

termination on thirty days' notice. Carole Media secured the necessary 
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A-3378-16T4

approvals for erecting the billboards, financed their construction, sold

advertising to display on them, and maintained them in working order.

During the term of those licenses, then-Governor James McGreevey 

established a task force to "review[] New Jersey's existing policies for the sale, 

lease, development, construction and siting of billboards." Carole Media LLC 

v. N.J. Transit Corp., 550 F.3d 302, 305 (3d Cir. 2008). The task force

recommended "that [S]tate entities adopt competitive bidding for the lease of all 

billboard sites on public property." Ibid.

After a bidding process, NJ Transit selected All Vision to manage its 

billboard sites. Ibid. The Legislature, meanwhile, amended the Roadside Sign 

Control and Outdoor Advertising Act, N.J.S.A. 27:5-5 to -28, requiring State 

entities to conduct public bidding before licensing its advertising space. 

N.J.S.A. 52:31-1.1a. Existing licenses could be renewed for up to five years,

however. Ibid.

NJ Transit renewed Carole Media's existing licenses twice. Carole Media, 

550 F.3d at 305. Each of the final licenses, between Carole Media and All 

Vision as agent for NJ Transit, were to run for one year, and "thereafter as may 

be extended" in one-year increments, unless terminated.
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A-3378-16T4

The licenses specified "[a]ll signboards, structures, equipment and 

materials erected or used under this license by the Licensee shall remain its 

personal property," but in the event of termination:

The Licensee agrees at its own expense to remove all 

signboards and advertising structures covered by this 

license within a period of thirty (30) days after the 

termination of this license or any extension thereof or 

within whatever shorter period of time may be specified 

in written notice of cancellation . . . . If the removal is 

not so completed by the Licensee, Licensor may at any 

time thereafter elect . . . to take title on behalf of NJ 

TRANSIT to said signboards and advertising structures 

without compensation to the Licensee . . . .

[(Emphasis added).]

Carole Media claims issues arose in fall 2005 when All Vision, intending 

to terminate the licenses and conduct public bidding, attempted to pressure 

Carole Media into transferring its permits for access to the sites from the New 

Jersey Department of Transportation (NJDOT). All Vision sent Carole Media a 

letter on March 17, 2006, advising that it would be terminating all three licenses 

effective August 31, 2006, and requiring Carole Media to remove its structures 

within thirty days of that termination, with any extensions granted "at the sole 

discretion of All Vision and NJ Transit due to the number of structures that need 

to be removed." All Vision published a request for bids for these and seventeen 

other sites in April 2006 and, notwithstanding Carole Media's submission of bids 
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A-3378-16T4

for its three, ultimately awarded all twenty licenses to advertising company 

Clear Channel. Nonetheless, Carole Media remained on the property and

continued to pay rent. 

In July 2007, All Vision sent Carole Media a letter outlining safety 

procedures it needed to follow to remove its billboards. It required Carole Media

to complete applications and remit payment for demolition permits from the 

New Jersey Department of Community Affairs (DCA). NJ Transit would submit 

the materials on defendant's behalf. All requested documentation would have to 

be submitted by August 17, 2007. After the deadline passed, All Vision sent 

Carole Media a final notice requiring removal of the billboards by November 

30, 2007. Defendant replied on September 28, 2007, stating it "intend[ed] to 

fully comply with the deadline."

According to Carole Media, it undertook to deconstruct the billboards on 

the two Wayne sites in November 2007 but was ordered off the property by All 

Vision's and NJ Transit's representatives. Carole Media then informed All 

Vision that its inability to comply with the looming deadline would not 

constitute its abandonment of its billboards. Carole Media also cancelled 

contracts with its advertisers for the sites and sought the appropriate permits 

from DCA for demolition, without success. All Vision ceased sending Carole 
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A-3378-16T4

Media invoices for rent on the Wayne sites after the deadline passed, but 

defendant refused to relinquish control of the Bridgewater site and continued to 

pay rent.

In the meantime, Carole Media pursued a takings claim in federal court 

based on All Vision's termination of the licenses, and, in December 2007, 

secured a temporary injunction from the Third Circuit with respect to the 

removal of any structures from the Wayne and Bridgewater sites. The appeal 

was dismissed, along with the injunction, in December 2008, but Clear Channel 

had withdrawn its bids when the injunction prevented All Vision and NJ Transit 

from delivering the sites. 

All Vision sent Carole Media a notice in April 2009, requesting it remove 

the structures within thirty days, demanding payment of back rent, and asserting 

All Vision could take title to the structures on NJ Transit's behalf in the event 

of noncompliance. Carole Media took steps to comply, but did not remove the 

structures. 

All Vision, on behalf of NJ Transit, filed a complaint against Carole Media

in May 2009, seeking unpaid rent and lost revenue due to the injunction. Carole 

Media filed an answer, counterclaim, and third-party complaint against NJ 

Transit. 
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Meanwhile, All Vision reopened bidding on the properties in September 

2009 and awarded licenses for the Bridgewater and Wayne properties to 

billboard operator Love Outdoor, now known as Shamrock Outdoor 

(Shamrock). All Vision sent Carole Media a letter on April 14, 2010, permitting 

Carole Media a final chance to remove its structures from the sites within thirty 

days. Carole Media attempted to, but could not remove the structures by the 

deadline.

In August 2010, NJDOT revoked Carole Media's permits to access the 

sites. Carole Media protested, triggering proceedings in the Office of 

Administrative Law (OAL). When Shamrock began accessing the billboards,

Carole Media sent a letter to NJ Transit, All Vision, and Shamrock, demanding 

they cease trespassing on or otherwise using the structures. 

With leave of court, Carole Media added Shamrock as a third-party 

defendant. All Vision and NJ Transit made a joint motion to dismiss, and in

July 2011, Judge Yolanda Ciccone issued an order granting that motion in part,

dismissing Carole Media's claims for breach of contract, breach of the implied 

covenant of good faith and fair dealing, and tortious interference.

In January 2012, the Commissioner of NJDOT issued a final 

administrative decision, concluding the revocation of Carole Media's permits 
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A-3378-16T4

had been proper, thereby allowing the issuance of new permits for the sites. 

NJDOT issued NJ Transit permits for all three sites in February 2012. 

All Vision, NJ Transit, and Shamrock then filed motions for summary 

judgment in the matter under review, which the judge granted in part. With 

leave of court, however, Carole Media filed a fourth amended counterclaim and 

third-party complaint, which reasserted claims the judge previously dismissed, 

except to ground them in conduct beginning in February 2012, when the new 

permits had been issued to NJ Transit. Shamrock filed a motion to dismiss, 

which the judge granted in full. NJDOT filed for summary judgment, which the 

judge granted in part. 

Prior to the completion of discovery, Carole Media filed a motion for 

partial summary judgment seeking declaratory relief solely as to the Bridgewater 

billboard. Meanwhile, NJDOT, All Vision, and NJ Transit all filed for summary 

judgment against Carole Media in August 2016. Judge Thomas C. Miller issued 

a set of orders and opinions in October 2016, denying Carole Media's motion 

and granting All Vision, NJ Transit, and NJDOT summary judgment on all of 

Carole Media's remaining claims. All Vision's claims were later dismissed. 

Carole Media appealed and All Vision cross-appealed.
10 A-3378-16T4

II.

Carole Media argues the court erred in granting All Vision and NJ Transit 

summary judgment on Carole Media's claims for inverse condemnation, various 

torts, and unjust enrichment.

We will affirm the grant of summary judgment where "the pleadings, 

depositions, answers to interrogatories and admissions on file, together with 

affidavits, if any, show that there is no genuine issue as to any material fact 

challenged and that the moving party is entitled to a judgment or order as a 

matter of law." R. 4:46-2(c). Like the trial court, we construe the evidence in 

the light most favorable to the nonmoving party and accord that party the benefit 

of all favorable inferences therefrom. Brill v. Guardian Life Ins. Co. of Am., 

142 N.J. 520, 523-24, 535 (1995). 

Summary judgment is ordinarily inappropriate prior to the completion of 

discovery. Velantzas v. Colgate-Palmolive Co., Inc., 109 N.J. 189, 193 (1988). 

However, the mere availability of further discovery does not preclude granting 

judgment as a matter of law. Wellington v. Estate of Wellington, 359 N.J. Super. 

484, 496 (App. Div. 2003). To prevail, the party opposing summary judgment 

must explain "with some degree of particularity the likelihood that further 

discovery will supply the missing elements of the cause of action" and impact 
11 A-3378-16T4

the outcome of the litigation. Ibid. (quoting Auster v. Kinoian, 153 N.J. Super. 

52, 56 (App. Div. 1977)). The information sought must be material to an already 

asserted claim, rather than meant to support the formulation of further causes of 

action. 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).

We first address the trial court's grant of summary judgment dismissing 

Carole Media's claims for inverse condemnation.

Our state and federal constitutions forbid the government from taking 

private property for public use without just compensation. U.S. Const. amend. 

V; N.J. Const. art. I, § 20; see also Mansoldo v. State, 187 N.J. 50, 58 (2006) 

(noting these state and federal constitutional guarantees are coextensive). A

taking occurs where the government deprives a property owner of the use or 

ownership of its property, most directly by authorizing a physical occupation of 

the property or acquisition of its title. Yee v. Escondido, 503 U.S. 519, 522 

(1992). A governmental entity's taking of personal property entitles the owner 

to just compensation no less than a taking of real property. Warner/Elektra/Atl. 

Corp. v. Cnty. of DuPage, 991 F.2d 1280, 1285 (7th Cir. 1993). Absent any 

formal proceeding brought by that entity to effect the taking, a cause of action 

for inverse condemnation permits a property owner a means of recovery and 
12 A-3378-16T4

arises from the "self-executing character of the constitutional provision with 

respect to compensation." Raab v. Borough of Avalon, 392 N.J. Super. 499, 

509-10 (App. Div. 2007) (quoting United States v. Clarke, 445 U.S. 253, 257 

(1980)).

Carole Media alleged All Vision and NJ Transit took its billboard 

structures for public use without just compensation. But because the parties' 

rights and obligations were governed by license agreements, and because All 

Vision was not itself a governmental entity, we must decide whether Carole 

Media could maintain these claims against All Vision, and also whether the

claims could advance, despite the underlying wrongs sounding in breach of 

contract.

The trial court concluded the contractual relationship precluded Carole 

Media's claim for inverse condemnation. It found dispositive the decision of the 

United States Court of Federal Claims in Griffin Broadband Communications, 

Inc. v. United States, 79 Fed. Cl. 320, 323-24 (2007), which, as discussed below, 

it interpreted to plainly preclude a takings claim where an issue of breach of 

contract already existed. Because its claims were intimately related to a breach, 

the court reasoned Carole Media could not maintain the claims as a matter of 

law.
13 A-3378-16T4

The trial court also determined those claims could not be asserted against 

All Vision, because All Vision, a private entity, could not perform a

governmental action. All Vision acted only as an agent for NJ Transit, not on 

its own behalf, and never asserted ownership over any assets claimed by Carole 

Media. The court therefore awarded summary judgment to All Vision and NJ 

Transit on Carole Media's inverse condemnation claim. 

Carole Media argues All Vision and NJ Transit took the property it 

previously purchased, assembled, and maintained, without compensation by 

abusing a contractual provision granting title to NJ Transit and All Vision if it 

failed to remove the structures within thirty days following termination of the 

licenses. Further, Carole Media contends enforcement of the license agreement 

should not constitute its sole recourse for compensation. Indeed, it asserts an 

action simply to enforce the license agreements would not suffice to compensate 

defendant for the full spectrum of its loss.

Carole Media analogizes to the circumstance where a landlord unlawfully 

holds a tenant's property following a lease, because in that instance, the tenant 

would have a claim for conversion. See Cohen v. Korol, 9 N.J. Super. 182, 185-

86 (App. Div. 1950). Likewise, Carole Media argues it should be able to 

maintain claims for conversion and inverse condemnation. Defendant views
14 A-3378-16T4

Griffin, 79 Fed. Cl. at 323-24, as inapplicable, because the property at issue 

there, the contractual rights themselves, was different from that at issue here, 

the physical billboard structures. Carole Media further argues that, unlike in 

Griffin, its claims did not involve obligations arising under the licenses, and so 

did not actually sound in contract.

Carole Media asserts further that factual issues should have precluded the

grant of summary judgment. Lastly, Carole Media contends the court erred in 

determining an inverse condemnation claim could not be brought against a 

private entity, asserting the law permits maintenance of an inverse 

condemnation action against such an entity so long as the property was taken for 

a public use. See Ardoin v. State, 679 So. 2d 928, 932 (La. App. Ct. 1996). 

With respect to All Vision's exposure to liability, the court explicitly 

considered and correctly rejected the reasoning of Ardoin, 679 So. 2d at 932, on 

which Carole Media relied. Critically, the claim in that case relied on the 

Louisiana state constitution, id. at 932, which we are not bound to follow.

Carole Media is correct, however, that the court misinterpreted Griffin, 79 

Fed. Cl. at 323-24. There, the Army prematurely terminated a contract with an 

entity that provided cable television and related services to personnel stationed 

on or near one of its bases and, in so doing, required that the entity cease 
15 A-3378-16T4

operations and remove its equipment from the base. Id. 322. The entity then

made takings claims stemming from the Army's actions relating to the contract 

and presenting the question as to when contractual rights themselves may be the 

subject of a taking. Id. 322-23. In the course of deciding that the particular 

claims at issue were not viable as a matter of law, the Court of Federal Claims 

explained:

The Government's alleged failure to fulfill its contract 

obligations would constitute a breach of contract, but is 

not itself a taking of property compensable under the 

Fifth Amendment. See United States v. Winstar Corp., 

518 U.S. 839, 868-71, 907-10 (1996); see also id. at 919 

(Scalia, J., concurring) ("Virtually every contract 

operates, not as a guarantee of particular future 

conduct, but as an assumption of liability in the event 

of nonperformance: The duty to keep a contract at 

common law means a prediction that you must pay 

damages if you do not keep it,—and nothing else."). A 

contract itself does constitute a property interest that 

potentially can be the subject of a taking. A contract is 

not considered taken, however, when the Government 

breaches a contract, but does not deprive a contract 

holder of the right to seek damages for breach of that 

contract. Castle v. United States, 301 F. 3d 1328, 1342 

(Fed. Cir. 2002). As defendant argues, this situation is 

not comparable to the one in Lynch v. United States, 

292 U.S. 571 (1934), in which Congress had 

"eliminated altogether a forum for advancing a breach 

of contract claim." . . . In the instant case, plaintiffs are 

free to pursue whatever remedy their agreement with 

the Army allows. No taking lies, however, because the 

Government has not engaged in any "legislative or 

administrative actions that abrogated or repudiated any 
16 A-3378-16T4

contract obligation or otherwise impaired [plaintiffs'] 

ability to enforce [their rights] secured under the terms 

of the contract." Janicki Logging Co. v. United States, 

36 Fed. Cl. 338, 346 (1996), aff'd, 124 F.3d 226 (Fed. 

Cir. 1997).

[Griffin, 79 Fed. Cl. at 324 (citations reformatted).]

Thus, although a contract constitutes a property interest that may be taken, 

there is no taking so long as recovery could be had for the breach. Ibid. The 

court here misunderstood that to mean that an inverse condemnation claim could 

never be viable so long as a related contractual claim was available. The subject 

of the taking here, at least to the extent of Carole Media's challenge of the trial 

court's decisions, is the billboard structures, not the licenses themselves, and 

nothing in Griffin precludes defendant from maintaining an inverse 

condemnation claim based on the taking of the structures, even though claims 

for breach of contract may also be available.

Further, the taking Carole Media challenges occurred pursuant to the 

terms of a license agreement into which it voluntarily entered. The taking 

occurred without compensation, but the license terms specified that none would 

be due. It thus does not constitute a constitutional deprivation in itself. The 

alleged conduct that prevented Carole Media from removing its structures before 

it had to forfeit them made the taking possible, and so arguably caused it. But 
17 A-3378-16T4

whether that suffices to constitute a constitutional deprivation or just amounts 

to a breach of the implied covenant of good faith and fair dealing, see Wood v. 

N.J. Mfrs. Ins. Co., 206 N.J. 562, 577 (2011), is at least questionable.

Regardless, aside from the incorrect ground on which the trial court relied, 

the moving parties did not assert and the court did not identify any valid ground 

for granting judgment as a matter of law outright on these claims. We therefore 

reverse the court's grant of summary judgment, but only as to Carole Media's 

inverse condemnation claims against NJ Transit and only insofar as Carole 

Media alleges a taking of the physical billboard structures, as opposed to the 

licenses or permits. 

Carole Media next argues the trial court erred in granting All Vision and 

NJ Transit summary judgment on its remaining claims for conversion, trespass, 

and civil conspiracy, because it failed to comply with notice requirements under 

the Tort Claims Act1(TCA), and because the claims were precluded by the

economic loss doctrine. 

The TCA broadly forbids any action "against a public entity or public 

employee under th[e] [A]ct unless the claim on which it is based [has] been 

presented in accordance with the procedure set forth" in the Act. N.J.S.A. 59:8-

 

1

 N.J.S.A. 59:1-1 to 12-3.
18 A-3378-16T4

3. In particular, such a claim must be "presented by the claimant or by a person 

acting on his behalf" and must include:

a. The name and post office address of the claimant;

b. The post-office address to which the person 

presenting the claim desires notices to be sent;

c. The date, place and other circumstances of the 

occurrence or transaction which gave rise to the 

claim asserted;

d. A general description of the injury, damage or 

loss incurred so far as it may be known at the time 

of presentation of the claim;

e. The name or names of the public entity, employee 

or employees causing the injury, damage or loss, 

if known; and

f. The amount claimed as of the date of presentation 

of the claim, including the estimated amount of 

any prospective injury, damage, or loss, insofar 

as it may be known at the time of the presentation 

of the claim, together with the basis of 

computation of the amount claimed.

[N.J.S.A. 59:8-4.]

A claimant must provide such notice no later than ninety days after accrual of 

the cause of action; the claimant will be "forever barred" from recovery for 

failure to comply. N.J.S.A. 59:8-8.
19 A-3378-16T4

Nonetheless, we recognize these requirements are not a "trap for the 

unwary," and have permitted parties to maintain claims so long as "notice has 

been given in a way, which . . . substantially satisfies the purposes for which 

notices of claims are required." Lebron v. Sanchez, 407 N.J. Super. 204, 215-

16 (App. Div. 2009). Specifically, those purposes are:

(1) to allow the public entity at least six months for 

administrative review with the opportunity to settle 

meritorious claims prior to the bringing of suit; (2) to 

provide the public entity with prompt notification of a 

claim in order to adequately investigate the facts and 

prepare a defense; (3) to afford the public entity a 

chance to correct the conditions or practices which gave 

rise to the claim; and (4) to inform the State in advance 

as to the indebtedness or liability that it may be 

expected to meet.

[Beauchamp v. Amedio, 164 N.J. 111, 121-22 (2000) 

(internal quotation marks and citation omitted).]

Whether a given notice substantially complies with the requirements entails a 

"fact-sensitive analysis involving the assessment of all of the idiosyncratic 

details of a case." Galik v. Clara Maass Med. Ctr., 167 N.J. 341, 356 (2001) 

(quoting Cornblatt v. Barow, 153 N.J. 218, 240 (1998)).

Carole Media relies on a letter its counsel sent to the deputy attorney 

general representing NJ Transit. The letter, which Carole Media's counsel also 

sent to all opposing counsel, did not concern notice of a claim, but rather the 
20 A-3378-16T4

"permitted locations for the three . . . [o]utdoor [a]dvertising [p]ermits" at issue.

The author asserted Carole Media considered itself the owner of the billboards, 

and that it had consistently held that position in this litigation, in which the issue 

of ownership remained in dispute. He then brought up NJDOT's issuance of 

new permits for the sites, which would give NJ Transit, All Vision, or Shamrock 

the ability to access and use the billboards. The letter demanded NJ Transit, All 

Vision, and Shamrock immediately cease use of the billboards. He then 

requested that, to the extent use continued, those entities have in place 

appropriate insurance policies for the billboards naming Carole Media as an 

additional insured. He advised further that nothing in the letter should be 

deemed an admission that Carole Media did not continue to own the billboards. 

In closing, he stated:

All rights, claims, and defenses are reserved, including, 

but not limited to, those relating to Carole Media's 

ownership of the Billboards, and Carole Media's ability 

to seek money damages from your respective clients 

both to the extent Carole Media is damaged by their 

failure to obtain the above insurance, and to the extent 

your respective clients' [u]se of the Billboards inures to 

their financial or other benefit and/or to Carole Media's 

financial or other detriment.

In addressing the summary judgment motion, the court acknowledged 

Carole Media had neither used the correct form required for a tort claim notice 
21 A-3378-16T4

nor served its letter directly on NJ Transit itself. But the court rejected that 

either of these minor defects could undermine the validity of the purported 

notice, adding it would be "hyper-technical and absurd" to hold otherwise. 

Nonetheless, the court found the letter deficient. The letter neither 

mentioned the TCA nor the words "notice," "claim," "tort," "trespass," 

"conversion," "civil conspiracy," or any other tort-based cause of action. 

Indeed, the court explained:

A fair reading of the letter indicates that it is not a 

"Notice of Claim" at all, but instead a "lawyer[']s letter" 

that was part of the "positioning" and "jockeying" of 

the parties during the course of this litigation. The 

purposes of the letter appear to be to stake out a position 

and to make sure that insurance was put in place to 

protect Carole Media's interests. To now attempt to 

"long after the fact" attribute other meanings or purpose 

to the letter is simply a self-serving perversion of the 

clear language.

The court found particularly curious that the letter, if intended as a tort 

claim notice, would be "so thoroughly disguised," given a lawyer had written it. 

In addition, the letter had been sent to other litigants as well, and that counsel's 

response merely acknowledged its receipt and disagreed with its contents 

without mentioning the TCA. The court concluded, therefore, that Carole Media

had failed to provide adequate notice, and dismissed its claims against both NJ 

Transit and All Vision.
22 A-3378-16T4

On appeal, Carole Media maintains it substantially complied with the 

notice requirements. It acknowledges its letter never identified any specific 

torts, mentioned the Act, or included most of the other key words the court 

pointed out, but asserts that none of those elements are strictly required by 

relevant authority. Further, the letter did, contrary to the court's ruling, at least 

use the word "claim," mention the name of the claimant and the sender's name 

and address, provide some information as to the circumstances from which the 

claims arose, and identify NJ Transit as a responsible party. Moreover, Carole 

Media contends the court failed to appreciate the significance of counsel's nearimmediate response, which it argues confirms counsel's understanding of the 

letter as constituting notice. 

Regardless, most of those circumstances weigh against Carole Media. The

letter was sent to counsel in the context of already ongoing litigation. Thus, it 

is not obvious the letter meant to provide any notice of liability for further tort 

claims redundant to those already pled, particularly in light of the author's failure 

to explicitly invoke either the statute or any specific cause of action or to at least 

mention the word "notice." 

While the language in the closing paragraph could, in isolation, 

foreshadow additional claims, context suggests those final sentences served as 
23 A-3378-16T4

a warning that additional damages might flow from the claims already asserted. 

There was simply no clear notice of tort claims.

We therefore affirm the trial court's determination that the letter failed to 

satisfy the notice requirements of the TCA and that Carole Media was barred 

from bringing its claims for conversion, trespass, and civil conspiracy against 

All Vision and NJ Transit. 

Carole Media next argues the court erred in granting plaintiff summary 

judgment on its claim for unjust enrichment. However, Carole Media does not 

challenge an order issued three years earlier by Judge Ciccone dismissing a 

claim for unjust enrichment as part of the third amended complaint. 

The claim on appeal involved the same alleged injustice as the claim in its 

third amended pleading, except confined to the timeframe following NJDOT's 

issuance of new permits for access to the sites in February 2012. Judge Miller 

observed the claim presented no new facts and that nothing in the prior decision 

depended on the timeframe covered by the claim. He recognized the previous

decision as the law of the case and saw no basis to "resurrect" this alreadydismissed claim.

Carole Media argues on appeal that Judge Miller's reliance on Judge 

Ciccone's earlier decision was mistaken. Defendant acknowledges the
24 A-3378-16T4

revocation of its permits and issuance of new ones to NJ Transit did bear on 

unjust enrichment claim, but not to the extent it disputed ownership of the 

billboards. The revocation of its permits, it explains, did not "alter the 

circumstances under which [All Vision and NJ Transit] attempted to manipulate 

and force [it] to 'abandon' the billboards and thereby unjustly enrich themselves 

at [its] expense."

But the ability to profit from use of the billboards hinges on the 

authorization. Once Carole Media's permits were revoked in a decision it did 

not appeal, it had no right to access to the property and use the billboards for its 

own profit. Carole Media does not appeal from Judge Ciccone's determination 

that the prior iteration of its unjust enrichment claim was legally deficient on 

that ground. We therefore affirm.

Carole Media next contends the trial court erred in denying it partial 

summary judgment on its claim for declaratory relief, specifically, a declaration 

that it owned at least the Bridgewater billboard and therefore retained the right 

to remove it. Because the court not only declined to award defendant partial 

summary judgment on that claim but wound up dismissing the claim instead, 

Carole Media's arguments must also be understood to challenge the dismissal.
25 A-3378-16T4

Although we do not "render advisory opinions or function in the abstract," 

Crescent Park Tenants Ass'n v. Realty Equities Corp. of N.Y., 58 N.J. 98, 107 

(1971), we may grant declaratory relief to the extent there exists an "actual 

dispute between parties who have a sufficient stake in the outcome," N.J. Ass'n 

for Retarded Citizens, Inc. v. N.J. Dep't of Human Servs., 89 N.J. 234, 241 

(1982) (NJARC). We may issue declaratory judgment in "controversies which 

have not yet reached the stage at which the parties seek a coercive remedy." 

NJARC, 89 N.J. at 242. Declaratory judgment proceedings thereby "serve as an 

instrument of preventive justice . . . to permit adjudication of rights or status 

without the necessity of a prior breach." Rego Indus., Inc. v. Am. Modern 

Metals Corp., 91 N.J. Super. 447, 453 (App. Div. 1966). Other avenues for 

relief ordinarily leave "no reason to involve [the statute's] provisions,"

Hammond v. Doan, 127 N.J. Super. 67, 72 (Law Div. 1974). 

The judge, citing the admonitions in NJARC, 89 N.J. at 241-42, and Rego 

Industries, 91 N.J. Super. at 452, held that declaratory relief was not meant for 

those cases that had already ripened into fully litigated controversies in which 

coercive remedies were demanded. The judge observed this was plainly such a 

case, and therefore concluded Carole Media could not obtain declaratory relief 
26 A-3378-16T4

as a matter of law, denied its motion for partial summary judgment, and 

dismissed its claim.

Defendant argues on appeal the judge misapplied NJARC. In particular, 

defendant points to the Supreme Court's conclusion that declaratory relief 

remained warranted notwithstanding that the case had a "moving record" and 

that "many changes ha[d] occurred" since its inception, NJARC, 89 N.J. at 240, 

243, as Carole Media contends was the case here. Carole Media also argues the 

judge failed to seriously consider the point its counsel made to that effect at oral 

argument, in favor of releasing a lengthy opinion the judge had already written. 

Carole Media claims this presents one of several instances of bias that

undermined the trial court proceedings. Carole Media asserts the judge 

effectively awarded NJ Transit declaratory relief by leaving them with title to 

the billboards without deciding the "critical" issue of when that title passed,

thereby depriving all parties of the opportunity to have their rights as to the 

billboards settled.

First, Carole Media was not entitled to partial summary judgment on this 

claim. At the very least, whether Carole Media forfeited the billboard structures 

for failure to remove them remained a factual dispute undermining its claim to 

ownership of the structures as a matter of law. Moreover, the availability of 
27 A-3378-16T4

other avenues for relief, which Carole Media itself pursued, rendered 

declaratory relief superfluous and unnecessary and, as a consequence, made its 

claim for that relief subject to dismissal.

Carole Media misreads NJARC in that regard. The plaintiffs, patients at 

a residential institution for mentally disabled individuals and an advocacy 

group, sought declaratory and injunctive relief as to the parameters of the care 

patients were entitled to pursuant to statute. Id. at 237-38, 240. The Court 

recognized the institution had undergone many changes in staffing and services 

since the case had begun, yielding a "moving record" that continued to change,

leaving the trial record in part obsolete. Id. at 240. However, the Court 

concluded declaratory relief was warranted not in spite of the progression or 

solidification of the dispute, as defendant's arguments presume, but because the 

parties were concerned only with their legal obligations going forward. Id. at 

240-43. Moreover, the plaintiffs no longer sought injunctive relief, because they 

believed it would be unnecessary once those obligations had been settled. Id. at 

242. In contrast, Carole Media pursued various other avenues of relief 

throughout this litigation and, indeed, seeks to revive several of them through 

this appeal.
28 A-3378-16T4

As for Carole Media's complaint that the trial court wrote the bulk or 

entirety of its opinion ahead of oral argument, the record gives no indication the 

court outright ignored its point, which, in any event, was incorrect, before 

finalizing its decision. Lastly, with respect to Carole Media's contention that 

dismissal of this claim has left the parties' respective rights to the structures 

unsettled, their rights are settled as a practical matter. NJ Transit claimed 

control of the billboards pursuant to the text of the license terms, and Carole 

Media's challenge to the propriety of that action has been made and failed, 

except for the inverse condemnation claim. Therefore, we affirm the court's 

decision to dismiss Carole Media's declaratory judgment claim.

Carole Media next argues the court erred in dismissing its claims against 

Shamrock for conversion, trespass, unjust enrichment, and civil conspiracy 

based on Shamrock's access to the properties and use of the billboard structures.

On Shamrock's motion to dismiss these claims, the court found it clear that NJ 

Transit had maintained that it owned and had the ability to license the billboards 

at issue and Carole Media did not have the right to use the structures. The court 

reasoned that Shamrock's objectively reasonable reliance on NJ Transit's claim 

of ownership, as well as on the licenses it gained from NJ Transit through a 

public bidding process and permits from NJDOT, precluded liability for 
29 A-3378-16T4

trespass, conversion, or unjust enrichment. Moreover, the claim for civil 

conspiracy was not viable because Shamrock had won a public bid and complied 

with all its legal obligations. The court therefore dismissed all these claims.

Carole Media faults the court for concluding Shamrock could reasonably 

rely on NJ Transit's claim of ownership. It asserts the court was bound to accept 

the allegations of its counterclaims as true and that the record did not support a 

finding of justifiable reliance. Shamrock, Carole Media argues, had ample 

notice that it still claimed ownership of the billboards, most notably via All 

Vision's letter apologizing for the delay in permitting Shamrock to use the 

billboards, defendant's cease and desist letter to All Vision, NJ Transit, and 

Shamrock, and a letter in which Carole Media reiterated its claim of ownership.

2

 

Moreover, Carole Media contends Shamrock's reliance was irrelevant in a claim 

for conversion.

While Carole Media is correct that the court did not strictly confine itself 

to a consideration of its pleading, a court may consider matters outside the 

pleadings, treat the motion to dismiss as one for summary judgment, and resolve 

it accordingly. R. 4:6-2. Carole Media disputes the one factual circumstance

 

2

 As previously noted, Carole Media contends this letter also served as a tort 

claims notice.
30 A-3378-16T4

external to its pleading that the court found determinative here – Shamrock's 

objectively reasonable reliance on NJ Transit's claim of ownership – but the 

evidence Carole Media cites is not to the contrary. All Vision's letter merely 

explained that the prior user of the sites had not yet had its permits formally 

revoked, and, except for brief access to the billboards prior to Carole Media's 

cease and desist letter, there is no indication Shamrock used the sites prior to

the revocation of Carole Media's permits and the issuance of new permits to NJ 

Transit. As the court noted, Shamrock had been duly licensed to operate the 

sites following a public bidding process. In sum, Carole Media points to nothing 

placing Shamrock's reasonable reliance on NJ Transit's claim of ownership in 

legitimate dispute. 

However, Carole Media is correct that Shamrock's belief, assuming it was 

mistaken for purposes of the motion, Printing Mart-Morristown, 116 N.J. at 746, 

did not preclude Shamrock's liability for conversion. Conversion is the 

"intentional exercise of dominion or control over a chattel which so seriously 

interferes with the right of another to control it that the actor may justly be 

required to pay the other the full value of the chattel." Chicago Title Ins. Co. v. 

Ellis, 409 N.J. Super. 444, 454 (App. Div. 2009) (quoting Restatement (Second) 

of Torts § 222A(1) (Am. Law Inst. 1965)). 
31 A-3378-16T4

The tort does not require "an intent to harm the rightful owner," or 

knowledge "that the [property] belongs to another." Id. at 456. In other words, 

Shamrock's liability for conversion could not be defeated by its reasonable belief 

that it was using NJ Transit's property with legitimate permission, if the property 

actually belonged to Carole Media, as defendant claims.

Regardless, "the mere use of the property of another without permission 

of the owner does not necessarily amount to conversion." LaPlace v. Briere, 

404 N.J. Super. 585, 595 (App. Div. 2009). On the contrary, "[t]o constitute a 

conversion of goods, there must be some repudiation by the defendant of the 

owner's right, or some exercise of dominion over them by him inconsistent with 

such right, or some act done which has the effect of destroying or changing the 

quality of the chattel." Id. at 596 (quoting Frome v. Dennis, 45 N.J.L. 515, 516 

(Sup. Ct. 1883)). 

Shamrock never claimed ownership of the billboards; NJ Transit has. 

Shamrock has used them, but only in objectively reasonable reliance on NJ 

Transit's claim of ownership and pursuant to a license duly obtained from NJ 

Transit after a public bidding process and a permit from NJDOT. Nor can that 

use be deemed "inconsistent with" defendant's claimed rights with respect to the 

property, because, as the court noted, Carole Media no longer had a permit to 
32 A-3378-16T4

access the property when that use occurred. Indeed, the revocation of 

defendant's permit was upheld administratively, a result on which Shamrock 

could further reasonably rely. Thus, the court was correct that Carole Media

had not made out a viable claim for conversion against Shamrock, even if not 

for the precise justification it gave. See Do-Wop Corp. v. City of Rahway, 168 

N.J. 191, 199 (2001) (noting that "appeals are taken from orders and judgments 

and not from opinions . . . or reasons given for the ultimate conclusion").

As for its claims for unjust enrichment, conspiracy, and trespass, Carole 

Media made no specific argument as to them on appeal, and we will not address 

such bald assertions on the merits. R. 2:11-3(e)(1)(E). 

Carole Media next contends the court erred in dismissing its counterclaims 

against NJDOT and individual agency employees on grounds of permit and good 

faith immunity under the TCA. Because we find permit immunity applied, we 

need not address Carole Media's arguments relating to good faith immunity 

under N.J.S.A. 59:3-3. 

Public entities may not be liable for an injury except to the extent 

permitted by the TCA. Tice v. Cramer, 133 N.J. 347, 355 (1993). Public 

employees may likewise claim any immunity afforded by the statute or common 

law. Fluehr v. City of Cape May, 159 N.J. 532, 539 (1999). The party asserting 
33 A-3378-16T4

the immunity bears the burden of demonstrating it applies. Leang v. Jersey City 

Bd. of Educ., 198 N.J. 557, 582 (2009).

Carole Media claimed NJDOT and its employees failed to execute the law 

in good faith; aided and abetted All Vision, NJ Transit, and Shamrock in various 

torts; and conspired with the same parties to accomplish the same end. Carole 

Media alleged NJDOT and its employees violated its own unwritten policy not 

to issue a new permit until the prior billboard operator for that site removed the 

existing structures, expedited the issuance of those permits "outside the ordinary 

course of business," and knowingly issued the permits to NJ Transit, 

notwithstanding that Shamrock would be operating the billboards.

NJDOT and its employees asserted immunity provided by the TCA. The

relevant statute provides:

A public employee is not liable for an injury caused by 

his issuance, denial, suspension or revocation of, or by 

his failure or refusal to issue, deny, suspend or revoke, 

any permit, license, certificate, approval, order, or 

similar authorization where he is authorized by law to 

determine whether or not such authorization should be 

issued, denied, suspended or revoked.

[N.J.S.A. 59:3-6.]

The TCA affords the same immunity to public entities in nearly identical 

language. N.J.S.A. 59:2-5. This immunity is "pervasive and applies to all 
34 A-3378-16T4

phases of the licensing function," whether discretionary or ministerial, and 

extends both to the actual act of issuance of a permit or license and the 

underlying decision-making process. Malloy v. State, 76 N.J. 515, 520 (1978). 

Carole Media maintains that permit immunity should not apply because

its claims alleged wrongdoing independent of NJDOT's issuance of the permits.

In that regard, Carole Media quarrels with the court's interpretation of Ball v. 

New Jersey Telephone Co., 207 N.J. Super. 100, 108-11 (App. Div. 1986), 

arguing that case concerned whether the issuance of the permit created a 

"tortious 'situation'" in the form of a dangerous condition on the property, and 

asserting that dangerous condition is analogous to the "situation" here, namely 

the claimed scheme to deprive defendant of its property. 

However, all the claims Carole Media asserted against NJDOT and its 

employees clearly implicated the permit immunity provision of the TCA. Our

decision in Ball is not to the contrary. There, an administrator of a man's estate 

attempted to recover from the State for the man's death in an automobile accident 

allegedly attributable to the improper placement of a telephone pole on the 

wrong side of a guardrail. Id. at 103. The State claimed immunity based on its 

issuance of a permit for the pole. We concluded the TCA was not meant to 
35 A-3378-16T4

"confer[] absolute tort immunity where a public entity grants a license to create 

a dangerous condition on it property." Id. at 108-10.

We further explained that, although we had "consistently applied the 

[TCA] to protect public entities against tort liability in the exercise of their 

licensing function," it was 

far different to suggest . . . that the State can clothe 

itself with immunity by merely issuing a permit 

authorizing another to create a dangerous condition on 

its property which it thereafter maintains without 

remedy. In such a case, the licensing authority of the 

State is in no sense implicated. Stated somewhat 

differently, the culpable act is not the issuance of a 

permit. Rather, it is the creation and maintenance of a 

dangerous condition upon the property and the 

"palpably unreasonable" conduct of the public entity in 

failing to remedy it.

[Id. at 110-111 (emphasis added).]

The same principle does not apply here. As the court noted, the facts at 

issue do not concern a dangerous condition maintained on the properties. More 

importantly, NJDOT did not engage in any course of tortious conduct or 

negligent inaction independent of its issuance of the permits. The immunity 

provision of the statute clearly applied here.

Carole Media lastly argues the court erred in denying a motion for leave 

to amend its pleading. Once a response has been filed, a party may amend its 
36 A-3378-16T4

pleading only by the adverse party's written consent or by leave of court. R.

4:9-1. Motions for leave should be liberally granted, unless the amendment 

would cause undue prejudice or be futile. Notte v. Merchants Mut. Ins. Co., 185 

N.J. 490, 501 (2006). A court's decision on a motion for leave rests within its 

sound discretion and will be reviewed only for an abuse of that discretion on 

appeal. Kernan v. One Washington Park Urban Renewal Assocs., 154 N.J. 437, 

457 (1997).

Carole Media made the motion in question in July 2012 after a wave of 

discovery yielded numerous documents related to public bidding for state -

owned billboard sites, which Carole Media believed provided further evidence 

of corruption in awarding use of those sites. The court had previously dismissed 

several of Carole Media's claims arising from that same alleged conduct on 

various legal – rather than factual – grounds. Following an unsuccessful motion 

for reconsideration, Carole Media moved for leave to amend its pleading to 

restore the previously dismissed claims and add new parties and claims, 

including for civil conspiracy, violation of the New Jersey Racketeer Influenced 

and Corrupt Organizations Act (RICO), N.J.S.A. 2C:41-1 to -6.2, and aiding and 

abetting both RICO and antitrust violations. 
37 A-3378-16T4

The court observed the new claims were merely the "old claims" that had 

already been dismissed, "just worded differently." Because the court could not 

find "anything new," it deemed the proposed amendment futile and denied the 

motion for leave.

On appeal, Carole Media never directly refutes the court's reasoning. It 

instead accuses the court of ignoring the voluminous bidding documents it had 

recently acquired through discovery and, by implication, the merits of its claims. 

But the claims Carole Media sought to resurrect were dismissed as a legal 

matter, not a factual one, so additional evidence of the same alleged wrongdoing 

cannot, in itself, undermine the dismissal. Moreover, Carole Media does not

explain why any of the purportedly new claims it asserted were distinct enough 

from the old ones to escape the same fate, notwithstanding that they alleged the 

same sorts of corrupt behavior based on the same factual background. Because 

the amendments would therefore have been futile, the court's denial of Carole 

Media's motion for leave was well within its discretion. 

III.

All Vision cross-appeals from the trial court's dismissal of its claim for 

damages arising from the injunction Carole Media obtained against it in the 

federal litigation. 
38 A-3378-16T4

Plaintiff alleged in its complaint that the injunction prevented it from 

delivering the billboard sites to Clear Channel, forcing it to reopen the sites for 

bidding, and ultimately yielding a lower bid. Without invoking any specific 

cause of action, it demanded damages for the reduced revenue. Ahead of an 

anticipated trial, plaintiff requested a special jury instruction outlining its claim 

– that Carole Media had undisputedly obtained an injunction that was ultimately 

discharged, and that both federal and state law authorized relief as a 

consequence of this "wrongful injunction." (citing Pub. Serv. Comm'n of the 

State of Missouri v. Brashear, 312 U.S. 621, 629 (1941); Penwag v. Landau, 148 

N.J. Super. 493, 501 (App. Div. 1977)).

The court, however, understood the federal precedent on which plaintiff 

relied to limit the relief from a wrongful injunction to the value of any bond 

required as security for the injunction. Thus, if no bond was required, as was 

the case here, there could be no recovery. 

All Vision acknowledges the federal precedent on which it relied did limit 

recovery to the value of the injunction bond, but argues that that precedent 

applies only to injunctions issued at the district-court level, where the federal 

rules strictly require security for the injunction, Fed. R. Civ. P. 65(c), rather than 
39 A-3378-16T4

to those issued, as here, at the circuit-court level, where the rules merely permit 

the issuance of a bond, Fed. R. App. P. 8(a)(2)(E). 

However, federal law is uniformly clear that "there can be no recovery for 

damages sustained by a wrongful issuance of a preliminary injunction in the 

absence of a bond, unless the defendant sues for malicious prosecution or on a 

theory of unjust enrichment." Buddy Systems, Inc. v. Exer-Genie, Inc., 545 F.2d 

1164, 1167-68 (9th Cir. 1976). The doctrine of unjust enrichment is inapplicable 

here, and All Vision does not even purport to set forth any claim for malicious 

prosecution. 

All Vision's claim for relief under State law must also fail because it also 

requires a claim for malicious prosecution. Penwag, 148 N.J. Super. at 501. 

Again, All Vision made no such claim here. 

IV.

We therefore reverse the trial court's grant of summary judgment on 

Carole Media's claims for inverse condemnation, specifically Counts I and XVI 

of its fourth amended pleading, but only to the extent those claims were asserted

against NJ Transit and only to the extent they alleged a taking of the billboard 

structures rather than the licenses or permits. We affirm in all other respects,

and remand for further proceedings.
40 A-3378-16T4

Affirmed, in part, and reversed and remanded, in part. We do not retain 

jurisdiction.