RICHARD HEWSON, et al. v. ALLIANCE BIBLE CHURCH, ALLIANCE BIBLE CHURCH, INC., et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1272-05T31272-05T3

RICHARD HEWSON, SHELLY HEWSON,

ARTHUR MUGLIA, FRED NAWTROTZKI,

HELGA NAWTROTZKI, ANTHONY H.

DRAGONI, JR., JOYCE A. DRAGONI,

CHARLEE HARRIS, MARTIN S. HARRIS,

LUIS NOGUEIRA, PAULA NOGUEIRA,

ROBERT PAPANDREA, PATRICIA PAPANDREA,

MICHELE CIMILUCA, MICHAEL DAMIANO,

and ELAINE DAMIANO,

Plaintiffs-Appellants,

v.

ALLIANCE BIBLE CHURCH, ALLIANCE

BIBLE CHURCH, INC., TRUSTEES OF

THE CHRISTIAN AND MISSIONARY ALLIANCE

OF PLAINFIELD, NEW JERSEY, and/or ALLIANCE

BIBLE CHURCH OF WARREN, NEW JERSEY OF THE

CHRISTIAN AND MISSIONARY ALLIANCE,

INC., REVEREND BRENT HAGGARTY, PAUL

BARNISH, and TOWNSHIP OF WARREN

PLANNING BOARD,

Defendants-Respondents.

________________________________________________________________

 

Submitted November 28, 2006 - Decided January 19, 2007

Before Judges Lisa and Grall.

On appeal from the Superior Court of New Jersey, Law Division, Somerset County, L-734-03.

Barbara Schwartz, attorney for appellants.

Hill Wallack, attorneys for respondent Alliance Bible Church (Donald R. Daines and John R. Tatulli, on the brief).

Vanderbilt and Siegel, attorneys for respondent Township of Warren Planning Board (Alan A. Siegel, on the brief).

Respondents, Trustees of the Christian and Missionary Alliance of Plainfield, New Jersey, Alliance Bible Church of Warren, New Jersey of the Christian and Missionary Alliance, Inc., Reverend Brent Haggarty, Paul Barnish, did not file a brief.

PER CURIAM

Plaintiffs brought an action in lieu of prerogative writs against the Warren Township Planning Board (Board), Alliance Bible Church (Church), and other parties challenging the validity of the Board's approval of the Church's land use application allowing it to convert an existing dwelling into administrative offices, granting a bulk variance for an existing condition relating to a detached garage, and approving the merger of two lots. The trial court vacated the approvals, not upon consideration of the merits, but because the attorney representing the Church, Lawrence Vastola, also represented the Board in an unrelated case during the same timeframe. Finding an apparent conflict of interest, Judge Julie Marino entered an order on December 21, 2004 voiding the approvals.

The law firm of Hill Wallack was then substituted as counsel for the Church and moved for reconsideration. Plaintiffs opposed the motion and filed a motion of their own seeking counsel fees and other relief. Judge Marino denied the motions of both parties by her order of February 25, 2005, supported by a written statement of reasons dated February 18, 2005.

At about the same time, plaintiffs filed a separate motion also seeking counsel fees and other relief. That motion was ultimately heard by Judge Fred Kumpf. He denied the motion by his order of September 26, 2005, supported by a written statement of reasons dated September 23, 2005.

Plaintiffs appeal from Judge Marino's order of February 25, 2005 and Judge Kumpf's order of September 26, 2005.

In their trial court motions, plaintiffs claimed they were entitled to counsel fees and costs under the frivolous litigation statute, N.J.S.A. 2A:15-59.1, R. 1:4-8, and the inherent power of the court to award counsel fees in appropriate cases. The other relief requested by plaintiffs in these motions included a determination that Vastola's conflict was an actual conflict, as opposed to merely an apparent one, and relief against many other entities and individuals who were not parties to the action. For reasons clearly articulated in their written statements of reasons, Judges Marino and Kumpf determined that defendants did not act in bad faith, or with intent to harass or delay. They also noted procedural defects in plaintiffs' fee applications. Accordingly, they determined plaintiffs were not entitled to a counsel fee award. The judges declined to convene a plenary hearing to determine whether Vastola's conflict was an actual one, because the finding of an apparent conflict, which was ascertainable based upon the papers, was sufficient to grant the relief requested by plaintiffs in this litigation, namely voiding the Board's approvals. Finally, the judges determined that they lacked jurisdiction to grant relief against entities and individuals who were not parties.

The chronology of events and circumstances forming the basis of Vastola's conflict were summarized by Judge Marino in her letter opinion dated October 20, 2004, which provided the basis for her order of December 21, 2004, as follows:

The conflict alleged by [plaintiffs' counsel] is that Mr. Vastola represented both Alliance Bible Church and the Township of Warren and Planning Board concurrently, although in separate matters. Accordingly, Plaintiff urges that due to the dual representation and attendant conflict, the Board's approval of Alliances' application for a variance must be set aside by this court.

The basic facts as they relate to the instant action and the motion by Plaintiff are that in or around 1977, Mr. Vastola acted as counsel to Warren Township and the Planning Board in a matter known as Joan H. Facey and John W. Kraus v. The Township of Warren and the Planning Board of the Township of Warren, SOM L 1590-97.

Mr. Vastola agreed to this representation because John Coley, Esq., Warren Township Counsel had a conflict in that matter that prevented his involvement in that action.

Although the case was tried in 1998, no decision was rendered by the trial Judge, Judge Robert Guterl because a relevant case was then before the Supreme Court and Judge Guterl determined to await the Supreme Court's opinion before rendering a decision.

Judge Guterl died in 2001 without having issued a decision. At that time apparently, Mr. Coley's conflict had resolved and he assumed representation in the matter.

Unfortunately, no substitution of counsel was filed by Mr. Coley or Mr. Vastola until May 16, 2002. Prior to that time, in or around February 2002, Mr. Vastola began representing Alliance Bible Church and filed the major conceptual site plan and the application which is the subject matter of the case at bar.

In November, 2001, Alliance filed an application for development seeking to convert the use of one of the existing dwellings on its property from a residence to that of church administration. Alliance also sought a bulk variance for an existing condition relating to a detached garage located on the property. In addition, Alliance also proposed to merge two of the designated tax lots for its property into one.

The matter came on to be heard before the defendant Planning Board of the Township of Warren, hereinafter Board, on April 8, 2002 and ultimately concluded on July 8, 2002 at which time the application was approved. A resolution memorializing the Board's decision was adopted on August 12, 2002. Due to an oversight, the Board's secretary did not publish notice of the August 12, 2002 memorialization. On April 11, 2003, Plaintiffs filed an action to, inter alia, overturn the action of the Board. After a case management conference that action was dismissed without prejudice and the present action followed.

Mr. Vastola has represented to the Court that his involvement with the Facey v. Warren matter virtually ceased when Mr. Coley took over the case in August 2001. Nonetheless, it does not appear that Mr. Vastola was copied on correspondence during the time he was representing Alliance Bible Church and may have been minimally involved.

Plaintiffs present the following arguments on appeal:

POINT I

THIS COURT SHOULD AWARD ATTORNEY FEES IN FAVOR OF PLAINTIFFS AGAINST BOTH MR. VASTOLA AND DEFENDANT.

A. THE COURT SHOULD AWARD ATTORNEY FEES PURSUANT TO THE COURT'S INHERENT POWERS.

i. JUDGE MARINO FOUND THAT MR. VASTOLA ENGAGED IN ILLEGAL DUAL REPRESENTATION. ILLEGAL DUAL REPRESENTATION IS BASED ON BAD FAITH AS A MATTER OF LAW.

ii. THE COURT SHOULD AWARD ATTORNEYS FEES TO PLAINTIFFS BASED ON THE PRINCIPALS OF PRIVATE ATTORNEY GENERAL AND UNJUST ENRICHMENT.

POINT II

MR. VASTOLA WAIVED HIS RIGHT TO OBTAIN SEPARATE COUNSEL AND HAVE HIS RIGHTS BE REPRESENTED SEPARATE FROM DEFENDANT'S ON THE ISSUES RELATING TO HIS ILLEGAL DUAL REPRESENTATION. HE CANNOT INSULATE HIMSELF [FROM] LIABILITY THEREFORE BECAUSE HE IS NO LONGER DEFENDANT'S COUNSEL.

POINT III

MR. SEIGEL MUST BE ESTOPPED FROM ADVOCATING FOR MR. VASTOLA DUE TO THE FACT THAT MR. SEIGEL REPRESENTS THE PLANNING BOARD, THE INTERESTS OF WHICH MAY BE IN CONFLICT WITH MR. VASTOLA'S

POINT IV

MR. SEIGEL AND THE DiFRANCESCO LAW FIRM MUST RECUSE THEMSELVES [FROM] THIS CASE DUE TO THEIR OWN POTENTIAL CONFLICTS OF INTEREST.

POINT V

WHETHER MR. VASTOLA'S ILLEGAL DUAL REPRESENTATION REFLECTS ACTUAL CONFLICT IS CENTRAL TO THE AWARD OF ATTORNEY'S FEES.

POINT VI

THIS COURT SHOULD ASSESS ATTORNEY FEES AGAINST THE TOWNSHIP AND PLANNING BOARD.

POINT VII

THIS COURT UNDER ITS INHERENT POWERS MUST OVERRULE THE VARIOUS DECISIONS [FROM] THE STATE, COUNTY AND LOCAL BOARDS INFECTED BY THE APPEARANCE OF IMPROPRIETY THAT IT HAS FOUND.

These arguments lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

Based upon our review of the record, we are satisfied that the findings made by Judges Marino and Kumpf are well supported by the record, that they correctly applied the governing legal principles, and there is no error in the determinations they made. We affirm Judge Marino's February 25, 2005 order substantially for the reasons set forth in her written statement of reasons dated February 18, 2005. We affirm Judge Kumpf's order of September 26, 2005 substantially for the reasons set forth in his written statement of reasons dated September 23, 2005.

Affirmed.

 

In the notice of appeal, plaintiffs also assert they are appealing Judge Marino's December 21, 2004 order. However, that order merely vacated the approvals granted by the Board, thus granting relief in plaintiffs' favor.

(continued)

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A-1272-05T3

January 19, 2007