LAW OFFICES OF GOLD, ALBANESE BARLETTI & VELAZQUEZ v. JERSEY CITY MUNICIPAL UTILITIES AUTHORITY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5849-07T15849-07T1

LAW OFFICES OF GOLD, ALBANESE,

BARLETTI & VELAZQUEZ,

Plaintiff-Respondent,

v.

JERSEY CITY MUNICIPAL UTILITIES

AUTHORITY, ITS AGENTS, SERVANTS,

AND/OR EMPLOYEES, EXECUTIVE DIRECTOR

THOMAS KANE, CHAIRMAN HOWARD JACKSON,

COMMISSIONER MARGARET DOYLE,

COMMISSIONER GEORGE KELLY,

COMMISSIONER KATHLEEN HARTYE,

COMMISSIONER EILEEN GAUGHAN,

FIRST ALTERNATE COMMISSIONER

WILLIAM MACCHI, SECOND ALTERNATE

COMMISSIONER JANET GAITA, INDIVIDUALLY

AND IN THEIR OFFICIAL CAPACITIES AS

COMMISSIONERS' OF THE JERSEY CITY

MUNICIPAL UTILITY AUTHORITY,

Defendants-Appellants.

________________________________________________________________

 

Submitted May 6, 2009 - Decided

Before Judges Lyons and Espinosa.

On appeal from Superior Court of New Jersey, Law Division, Hudson County, Docket No. L 5270-05.

Trenk, DiPasquale, Webster, Della Fera & Sodono, P.C., attorneys for appellants

(Sam Della Fera, Jr., and Joao F. Magalhaes, of counsel and on the brief).

Law Offices of Gold, Albanese & Barletti, respondent pro se (Robert F. Gold, of counsel; James N. Barletti, on the brief).

PER CURIAM

This is the second time this dispute over legal fees between plaintiff, Law Offices of Gold, Albanese, Barletti & Velazquez ("Gold"), and defendant Jersey City Municipal Utilities Authority ("Authority") has come before this court. The facts are set forth at length in our earlier unpublished opinion, Law Offices of Gold, Albanese, Barletti & Velazquez v. Jersey City Municipal Utilities Authority, et al., Docket No. A-0875-06 (App. Div. Mar. 13, 2008), and need not be repeated at length here. In short, the dispute arises from two agreements for the performance of legal services by Gold that were reached in June 2004. The Authority authorized the retention of Gold by resolution. Each agreement contained a provision that acknowledged that the parties were unable to "anticipate the amount of legal services that may be required under [the] Agreement." A pre-approved amount of fees was allocated to each agreement with a total pre-approved amount of $115,000. In 2008, we reversed the trial court's order granting summary judgment to defendant and remanded the matter for further proceedings.

At the trial that followed, plaintiff presented the testimony of Robert Gold, Esq. Defendant rested without calling any witnesses. The trial court awarded plaintiff $98,337.98 for unpaid fees plus costs and interest. Thereafter, the trial court granted plaintiff's motion for counsel fees pursuant to N.J.S.A. 59:9-5, awarding plaintiff $74,797.82.

On appeal, defendant contends that it did not receive "proper notice" of the motion for counsel fees because the papers were delivered to "a vacant office that is not staffed." There is no indication that this issue was presented to the trial court. Neither party has complied with Rule 1:6-6 regarding this issue. Defendant did not provide a certification or any citation to the record to support its contention. In response, plaintiff has provided a copy of its proof of service from New Jersey Lawyers Service that is unsigned. Defendant appeals from the judgment and award of counsel fees. We affirm the judgment and reverse the award of counsel fees.

Defendant raises the following points on appeal:

POINT I

THE TRIAL COURT'S LEGAL CONCLUSIONS ARE UNSUSTAINABLE BECAUSE THEY ARE IN DEROGATION OF THE PUBLIC CONTRACTS LAW AND/OR THE APPELLATE DECISION.

THE JUDGMENT DOES NOT ATTRIBUTE DUE WEIGHT TO THE CONTROLLING STATUTE, COMPELS PAYMENT OF FUNDS THAT WERE NEVER AUTHORIZED, MISINTERPRETS THE AGREEMENTS, AND SETS A PRECEDENT THAT IS NOT IN THE PUBLIC INTEREST.

UNJUST ENRICHMENT SHOULD NOT BE A BASIS FOR RECOVERY WHERE BOTH STATUTE AND CONTRACT CLEARLY DEFINE RIGHTS AND OBLIGATIONS.

POINT II

THE TRIAL COURT'S FACTUAL CONCLUSIONS ARE UNSUPPORTED BY THE RECORD, AND THE JUDGMENT DOES NOT ADDRESS THE CONCERNS EXPRESSED IN THE APPELLATE DECISION.

THE JUDGMENT DOES NOT ASSES[S] WHETHER THE LEGAL MATTERS FOR WHICH UNAUTHORIZED SERVICES WERE PERFORMED WERE URGENT.

THE TRIAL COURT DID NOT ASSESS WHETHER GOLD MADE DILIGENT EFFORT TO ASSURE PAYMENT, NOR DOES IT DETERMINE WHETHER THE JCMUA PRECLUDED "CURATIVE" ACTION.

POINT III

THE TRIAL COURT FAILED TO INQUIRE INTO THE REASONABLE VALUE OF THE EXCESS SERVICES PROVIDED.

POINT IV

THE TRIAL COURT SHOULD NOT HAVE GRANTED ADDITIONAL FEES AND COSTS TO GOLD BECAUSE THE JCMUA NEVER HAD NOTICE OF GOLD'S POST-JUDGMENT MOTION FOR ATTORNEYS FEES. (Not Argued Below).

Defendant advances legal and factual challenges to the judgment. Neither have merit.

Defendant's legal challenge is based in its continued argument that N.J.S.A. 40A:11-4, a provision of the Local Public Contracts Law, N.J.S.A. 40A:11-1 to -51, precludes plaintiff's recovery of any amount of legal fees beyond that stated in the initial resolution. Defendant also argues that the equitable remedy of unjust enrichment is not available to permit recovery to plaintiff. Both these arguments were rejected in our prior opinion.

We expressly declined to adopt the view that "once Gold had billed the Authority the amounts specified in the resolution, it was obligated to perform no further work for the Authority without having first obtained an authorizing resolution." Gold, Albanese & Barletti, supra, slip op. at 7. We stated further:

Not every failure to comply with the provisions of the Local Public Contract Law, however, leads inexorably to a conclusion that a claimant may not recover. Wanaque Borough Sewerage Auth. v. Twp. of W. Milford, 144 N.J 564 (1996), and Saint Barnabas Med. Ctr. v. County of Essex, [ 111 N.J. 67, 77 (1988)] are illustrative. In both cases, the Supreme Court turned to the principles of quasi-contract to prevent one party from being unjustly enriched at the expense of the other. Wanaque Borough, supra, 144 N.J. at 575 ("[T]he key element of a quasi-contract claim is that one party has been unjustly enriched at the expense of another."). Certainly the Authority would be unjustly enriched if it received the benefit of Gold's legal services without the necessity of paying their reasonable value.

[Id. At 8.]

Therefore, the Local Public Contract Law did not pose an absolute bar to plaintiff's recovery of fees beyond the $115,000 authorized by the initial resolution. We note that defendant's argument that such a limit should apply because "the $115,000 is, as a matter of fact and law, that which was authorized to be spent," rings particularly hollow in light of the fact that the Authority paid less than half that amount, $50,786.45, for all legal services rendered. Under the circumstances presented, as described in the trial court's opinion, an award of additional fees on unjust enrichment grounds was warranted.

In challenging the factual support for the trial court's decision, defendant argues that the record does not address whether plaintiff was working on urgent matters that required Gold to provide legal services before they could be authorized pursuant to the Local Public Contracts Law. However, the record reflects that Mr. Gold, the only witness at trial, testified extensively on direct and cross-examination regarding matters that required immediate attention. He described negotiations between Honeywell and the Authority that were being monitored by former Senator Robert Torricelli, a special master appointed by a federal court; revisions to the Honeywell agreement that he was asked to complete "as quickly as you can"; reviews of bids; and numerous OPRA requests, which require a response within seven days. Mr. Gold also testified that the hourly rate charged to the Authority was within the mid-range of the fees his firm charges its clients and that the time charged for these services was reasonable. This testimony, which was not contradicted by any opposing evidence, provided adequate support for the trial court's judgment.

The award of counsel fees was made pursuant to N.J.S.A. 59:9-5, which authorizes a discretionary award of counsel fees. However, the trial court's order is not accompanied by a statement of reasons as to how the amount of the counsel fee award was made and so, we cannot determine whether the award constituted an abuse of discretion. We reverse and remand for full and fair consideration of plaintiff's application for attorney's fees pursuant to N.J.S.A. 59:9-5, consistent with the applicable principles set forth in Furey v. County of Ocean, 287 N.J. Super. 42, 46 (App. Div.), certif. denied, 144 N.J. 379 (1996):

[I]t [is] vital that the judge have in view "the underlying policy as to damages" of the Tort Claims Act, recognizing that it is to fully reimburse the economic loss of the claimant. The judge must also show an appreciation of the fact that when dealing with a governmental entity, whether insured or not, the cost is ultimately borne by the public. Thus, the judge has the task in exercising discretion of fulfilling the statutory purpose in awarding reasonable attorney's fees which are sufficient to compensate the attorney for the work performed, while seeking neither to encourage nor discourage attorneys from undertaking meritorious causes of action against the governmental entity or its employees. We are satisfied that the Legislature, in this regard, intended that the fees awarded serve the public interest as it pertains to those individuals who require redress in the context of a recognition that limited public funds are available for such purposes.

[(Citation omitted); see also RPC 1.5.]

In light of the unresolved issue regarding notice to defendant, to assist the court in making this determination and to protect the public interest, defendant should be given an opportunity to respond to the fee application.

 
The judgment of $98,337.98 plus costs and interest is affirmed. The award of counsel fees is reversed and remanded for further proceedings consistent with this opinion.

The Open Public Records Act, N.J.S.A. 47:1A-1 to -13.

(continued)

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A-5849-07T1

July 24, 2009