THE HOUSING AUTHORITY OF THE CITY OF NEW BRUNSWICK v. FREDERICK W. HALELUK

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5942-06T3

THE HOUSING AUTHORITY OF

THE CITY OF NEW BRUNSWICK,

acting as redevelopment agency,

Plaintiff-Respondent,

v.

FREDERICK W. HALELUK,

Defendant-Appellant,

and

UNITED TRUST BANK, f/k/a UNITED

NATIONAL BANK; NEW MILLENNIUM

BANK; THE CITY OF NEW BRUNSWICK;

AMERICAN TAX FUNDING, LLC; THE

STATE OF NEW JERSEY; MR. ICE

BUCKET, INC., possibly d/b/a

SHELTON WARE; VINYL MAID

SWIMMING POOLS; and PAPERWORKS,

Defendants.

________________________________

 

Submitted February 10, 2009 - Decided

Before Judges Parker, Yannotti and LeWinn.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-2542-02.

Barbara Schwartz, attorney for appellant.

Wilentz, Goldman & Spitzer, P.A., attorneys for respondent (Frederick J. Dennehey and Christine D. Petruzzell, of counsel and on the brief).

PER CURIAM

In this condemnation proceeding, defendant Frederick W. Haleluk appeals from the June 8, 2007 order of the Law Division denying his motion for reconsideration of the March 30, 2007 order, which had denied defendant's motion for a new trial, for relief from judgment pursuant to Rule 4:50-1 and other relief based upon claims of conflict of interest involving plaintiff's counsel's firm, Wilentz, Goldman & Spitzer, P.A., (the Wilentz firm) and Middlesex County Counsel, Thomas F. Kelso. We affirm substantially for the reasons set forth by Judge James P. Hurley in his decision rendered from the bench on June 8, 2007.

The background of this matter may be summarized as follows. On January 24, 2001, pursuant to a redevelopment agreement between plaintiff, Housing Authority of the City of New Brunswick (Housing Authority), and its designated redeveloper, New Brunswick-Jersey Urban Renewal, L.L.C., (Redeveloper), plaintiff's attorney wrote to defendant offering to purchase certain property owned by him for the sum of $630,000; this price was based upon the property's fair market value as set forth in an appraisal provided to defendant with the offer letter.

Negotiations thereafter took place between the parties; however, no agreement could be reached on the purchase price and on March 6, 2002, plaintiff commenced condemnation proceedings. On March 25, 2002, plaintiff acquired title to the property by filing a Declaration of Taking in the underlying condemnation action and depositing the sum of $630,000 with the court.

On May 23, 2002, defendant filed a responsive pleading, which included objections to the condemnation proceeding based upon the Housing Authority's alleged failure to negotiate in good faith. On June 4, 2002, defendant moved on short notice for leave to conduct discovery, which the court granted. The parties thereupon engaged in extensive discovery and submitted "briefs and affidavits to the court regarding plaintiff's authority to condemn." On August 5, 2002, the trial judge entered an order confirming the Housing Authority's authority to "exercise[] its power of eminent domain," and appointing three condemnation commissioners. In a December 11, 2002 decision, the commissioners awarded defendant the sum of $640,000 as just compensation for the property.

On January 8, 2003, defendant appealed from the commissioners' award, and the condemnation matter proceeded to a jury trial in January 2004 before Judge Hurley. The jury returned a verdict in the amount of $795,000, which the trial judge entered as a final judgment on January 22, 2004. On January 26, 2004, defendant moved for a new trial claiming trial errors; the judge denied that motion.

On March 5, 2004, defendant filed a notice of appeal from the judgment fixing compensation at $795,000 and from the order denying his motion for a new trial. On June 8, 2004, however, defendant's counsel requested that the appeal be withdrawn and advised us that the parties had reached a settlement of the matter. On July 27, 2004, we entered an order dismissing the appeal; however, on September 2, 2004, defendant moved to vacate that dismissal order. On November 8, 2004, we granted defendant's motion, reinstated the appeal and remanded the matter to the trial court for a determination as to whether a final settlement of the matter had been reached.

On remand, Judge Hurley determined that the parties had entered into a global settlement of all issues relating to plaintiff's condemnation of defendant's property. The judge memorialized this decision in a letter opinion dated December 17, 2004, and entered an order to that effect on January 4, 2005. Defendant thereupon filed a amended notice of appeal to include that order.

On January 20, 2006, we affirmed in their entirety Judge Hurley's findings and conclusions that a settlement had been reached by the parties, and remanded the matter to the trial court for enforcement of the settlement. Housing Auth. of the City of New Brunswick v. Haleluk, No. A-3536-03 (App. Div. January 20, 2006) (slip op. at 6). Pursuant to that remand, plaintiff's attorneys attempted final resolution of the matter by proffering a consent order to defendant. Defendant refused to enter into that consent order, however, and objected to giving the required releases.

On October 5, 2006, defendant moved pro se before the trial judge to withdraw funds from the court. Plaintiff cross-moved for an order enforcing the settlement and awarding counsel fees. Defendant then moved for a new trial seeking to overturn our decision of January 20, 2006; defendant also sought to refer this matter to the Office of the Attorney General for criminal investigation.

In an opinion rendered from the bench on November 17, 2006, Judge Hurley permitted defendant to withdraw funds from the court and denied defendant's other requests. The judge noted that defendant had been well represented by his counsel at trial and concluded that defendant had no grounds to justify his failure to abide by the outcome of the appeal. On January 26, 2007, Judge Hurley issued an order granting counsel fees to plaintiff in the amount of $2250 in connection with the prior motions.

On February 15, 2007, defendant moved pro se for reconsideration of the January 26 order. On March 14, 2007, new counsel entered an appearance on behalf of defendant and filed a supplemental motion seeking a new trial and relief from the condemnation judgment, claiming non-waivable conflicts of interest among the Housing Authority, the Wilentz firm and Middlesex County.

In a decision rendered from the bench on March 30, 2007, Judge Hurley found defendant's various conflict of interest arguments "to be, at very best, circuitous," adding that Middlesex County was in no way involved in the redevelopment project that first gave rise to the condemnation of defendant's property. The judge noted that "the County [wa]s not directly involved in this case. There's no benefit to the County in that regard."

The judge noted further that throughout the condemnation litigation and settlement proceedings, defendant was represented by independent counsel and "had the opportunity to present . . . any allegations of bad faith in order to defeat the taking of the property" when that property was targeted for redevelopment. The judge further observed that defendant had a jury trial to determine the condemnation award for his property and at that trial, defendant had the opportunity to present his evidence as to the property's value.

The judge also noted that defendant was "absolutely out of time to bring" a request to void the condemnation order "because other actions [had] been taken[,]" and to void the case ab initio would dramatically impact innocent third parties, such as the Redeveloper, mortgage companies and the current and potential tenants of the redevelopment construction in progress. The judge concluded:

There is no . . . indication for me to even establish and find that a prima facie basis exists to even give [defendant] . . . the opportunity to have . . . discovery on the th[e] issue [of conflicts of interest]. . . . There has to be some showing to establish some conflict that would impact the validity of this action and there has been no showing of any such [conflict].

In his reconsideration motion filed on April 17, 2007, defendant once again asserted "fraud and . . . misconduct of [the Housing Authority] as an adverse party[,]" and contended that "the judgment [wa]s void in this matter due to non-waivable conflicts of interest." Judge Hurley heard oral argument on this motion on June 8, 2007, at which time defendant asserted that all prior proceedings should be declared void because of a conflict of interest which caused "everyone [to be] deceived."

Judge Hurley reiterated that "there has to be at least a prima facie basis to establish that there is a conflict of interest, such conflict so significant as to taint the proceedings that have been undertaken." The judge once again noted the complete lack of evidence supporting the conflict of interest claim; noted again that there had been a jury trial; and concluded that "th[is] was not a situation in which the conflict, . . . as counsel for the defendant alleges, biase[d] the effect of the negotiations for the purchase . . . . Those are . . . issues that should have been brought initially when the condemnation action was undertaken." Judge Hurley emphasized that "any alleged conflict that could have occurred . . . [was] diluted by the fact that this matter went to a jury and there [was] no allegation that . . . there were any conflicts affecting the jury."

The judge found further that there was "nothing new that ha[d] been brought forth in this case to . . . convince [him] that everything that ha[d] happened from the inception of this matter should be set aside and should be started anew[,]" adding, "There is a policy in the State of New Jersey to give finality to judgments."

On appeal, defendant raises eleven claims of error, many of which overlap and present repetitious arguments. The gravamen of defendant's claim of conflict of interest is as follows:

Plaintiff and its counsel, John Hoffman, Esq., managing partner for [the Wilentz firm], . . . and [c]ounty counsel Thomas Kelso, Esq., . . . secreted from defendant that while Wilentz was representing plaintiff in this action [it] was at the same time representing the [R]edeveloper and its partners Jack Morris, Sheryl Weingarten and Allen Weingarten, . . . in their individual capacities and as partners in their various business capacities, . . . thereby engaging in dual representation and non-waivable and prohibited conflict of interest requiring a voiding of this condemnation.

We have fully considered defendant's arguments in light of the record and the applicable legal principles, and we are satisfied that these contentions are without merit.

As Judge Hurley noted over the course of his various decisions, defendant failed to produce any evidence of: (1) a conflict of interest significant enough to "taint" the proceedings; and (2) prejudice to defendant purportedly resulting from such a conflict.

We are satisfied that Judge Hurley properly denied defendant's motion for reconsideration, as defendant failed to "state with specificity the basis on which it [was] made, including a statement of the matters or controlling decisions which counsel believe[d] the court ha[d] overlooked or as to which it ha[d] erred." R. 4:49-2. The judge determined that defendant had advanced no reason compelling reconsideration of his order of March 30, 2007. The record supports this determination. Additionally, defendant fails to address how he was prejudiced by a settlement that incorporated the jury award of $795,000, which was $165,000 higher than the commissioners' initial determination.

Even assuming, as defendant maintains, that the Wilentz firm represented both the Housing Authority in this case and the Redeveloper in various other matters, defendant has failed to demonstrate how this constituted a conflict of interest in this matter; there does not appear to be any conflict in the positions taken by the Housing Authority and/or the Redeveloper throughout the condemnation proceedings. In any event, defendant has brought no such conflicts to our attention. Moreover, the Redeveloper was not a party to this case.

Moreover, defendant first raised this conflict of interest claim in a motion filed by newly-retained counsel on or about March 14, 2007. That motion sought a new trial and relief from Judge Hurley's order of January 4, 2005, which had memorialized the parties' "valid and effective settlement," and, in addition to payment of the compensation noted, provided for the "[e]xecution of a general release of claims by all named parties, including the Redeveloper as an additional releasor/releasee." Thus, defendant's motion was untimely. Rule 4:50-1 provides that

the court may relieve a party . . . from a final judgment or order for the following reasons: (a) mistake, inadvertence, surprise or excusable neglect; (b) newly discovered evidence which would probably alter the judgment or order and which by due diligence could not have been discovered in time to move for a new trial under R. 4:49; (c) fraud . . . , misrepresentation, or other misconduct of an adverse party; (d) the judgment or order is void; (e) the judgment or order has been satisfied, released or discharged, or a prior judgment or order upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment or order should have prospective application; or (f) any other reason justifying relief from the operation of the judgment or order.

Rule 4:50-2 states that a motion for relief from judgment "shall be made within a reasonable time, and for reasons (a), (b) and (c) of R. 4:50-1 not more than one year after the judgment, order or proceeding was entered or taken."

Notwithstanding defendant's failure to comply with the time limits required by this rule, however, Judge Hurley considered and decided his March 14, 2007 motion on the merits. The judge considered the merits of defendant's claims for a second time in denying his motion for reconsideration. We are satisfied that Judge Hurley gave comprehensive and thorough consideration to defendant's allegations.

Finally, in light of the litigious history of this matter, all of which was initiated by defendant, we are satisfied that the trial judge properly awarded the Housing Authority $2250 in counsel fees in connection with defendant's post-settlement motions.

Defendant's remaining arguments "are without sufficient merit to warrant discussion" in this opinion. R. 2:11-3(e)(1)(E). Judge Hurley's decisions are "based on findings of fact which are adequately supported by evidence[.]" R. 2:11-3(e)(1)(A). Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974).

Affirmed.

 

(continued)

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A-5942-06T3

August 12, 2009