Opinion
DOCKET NO. A-0725-12T4
04-21-2015
LEVINE, STALLER, SKLAR, CHAN, BROWN & DONNELLY, P.A., Plaintiff-Respondent/Cross-Appellant, v. CITY OF ATLANTIC CITY, Defendant-Appellant/Cross-Respondent.
DeCotiis, Fitzpatrick & Cole, LLP, attorneys for appellant/cross-respondent (Susan E. Volkert and Daniel E. Zwillenberg, on the briefs). Levine, Staller, Sklar, Chan & Brown, P.A., respondent/cross-appellant pro se (Mary Beth Clark and David J. Azotea, on the briefs).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Alvarez, Waugh, and Carroll. On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Docket No. L-6363-10. DeCotiis, Fitzpatrick & Cole, LLP, attorneys for appellant/cross-respondent (Susan E. Volkert and Daniel E. Zwillenberg, on the briefs). Levine, Staller, Sklar, Chan & Brown, P.A., respondent/cross-appellant pro se (Mary Beth Clark and David J. Azotea, on the briefs). PER CURIAM
Defendant City of Atlantic City (the City) appeals from the Law Division's June 11, 2012 award of $629,307.98 in legal fees to plaintiff Levine, Staller, Sklar, Chan, Brown & Donnelly, P.A. (the Firm), and also appeals the September 18, 2012 order denying reconsideration. The Law Division judge granted summary judgment on count five of the complaint, in which the Firm sought relief by way of quantum meruit for services rendered to certain highly placed City employees sued in the performance of their duties. We reverse and remand for further proceedings in accordance with this opinion.
The City objected to the form of final judgment, but it was signed in less than five days. See R. 4:42-1(c). By letter, the Firm subsequently agreed to dismiss the remaining counts of the complaint without prejudice despite the omission of language to that effect in the judgment. No order implementing this agreement was ever signed. Our decision effectively reinstates the Firm's complaint in its entirety.
As we discuss below, certain other orders are also reversed by this decision. These include the trial court's dismissal of the City's counterclaim alleging that state and local laws were violated by the Firm "regarding procurement of legal services for indemnification of City employees," and seeking disgorgement of prior payments. The counterclaim is thus reinstated.
The Law Division judge also dismissed the City's third-party complaint against the former Chief of Police, John Mooney, III, Fire Chief Dennis Brooks, and former Assistant Business Administrator Domenic F. Cappella, Sr., which sought recovery, based on allegedly unlawful employment documents, for "all pay[ments] and benefits conferred upon" the third-party defendants, including fees the City previously paid to the Firm. We reinstate the third-party complaint.
The City also appeals from the denial of its motion to dismiss the Firm's complaint because it failed to join two indispensable parties, Mooney and Brooks. We reverse that order as well, remanding for reconsideration prior to trial. By the remand, we do not mean to suggest the motion's outcome.
The Firm cross-appeals two orders. The first denied immediate payment of outstanding fees. This issue is made moot by our decision. The second denied payment at the Firm's higher private-client hourly rate, instead of at the City's set rate for payment to outside counsel. We deny the Firm's cross-appeal regarding hourly rates.
Our Clerk's Office sought confirmation that the Firm did not represent Mooney, Brooks, or Cappella individually. In response, the Firm filed a supplemental letter brief which addressed standing. We do not consider the brief, both because of the procedural irregularity in its filing and because the issue of standing was not included in either notice of appeal.
In this matter, the facts can be briefly summarized, but a lengthy, detailed discussion of the convoluted procedural history is necessary. We address them in that order.
I
On November 3, 2008, interim Mayor Scott Evans signed a memorandum of understanding (MOU) with Mooney. The MOU stated that it was retroactive to January 1, 2006, and effective through December 31, 2012, or until renegotiated. Mooney had earlier filed an employment action against the City, and the MOU was signed pursuant to the February 21, 2006 settlement.
The MOU stated that the City would provide Mooney with legal counsel "in the defense of charges filed against him in the performance of his duties." The MOU further provided that Mooney had the unrestricted right to select counsel to represent him in those actions, "subject to the approval of the City, [which] approval shall not be unreasonably withheld . . . [and] subject to applicable City ordinance[s] and state statutes."
A few days earlier, Evans had signed an MOU with Brooks. The record does not indicate why the MOU was negotiated at that time. Evans had been a battalion fire chief under Brooks when Evans was appointed interim mayor. The Brooks MOU was retroactive to January 1, 2007, and was effective to December 31, 2012. It too provided that Brooks was entitled to counsel of his choice in litigation related to the performance of his duties. That MOU also stated the City would not unreasonably withhold approval of Brooks's choice of counsel but, unlike Mooney's MOU, made no reference to his selection being subject to either local ordinance or State statute.
The record does not include any similar document authorizing Cappella to select counsel. In the other lawsuits in which the Firm represented high-ranking City employees, it appears, although not entirely clear from the extensive record, that at times an assistant City Solicitor requested in writing that the Firm act as outside counsel. The actual City Solicitor changed at least three times during the relevant timeframe.
After a special election held in November 2008, Lorenzo Langford became mayor, replacing Evans. Robert Tarver, who served as the City's Solicitor from November 2008 to December 2009, wrote to the Firm on March 3, 2009, to advise that he was unable to locate any "pay-to-play" or "law against discrimination" compliance documents. The Firm responded, as it maintained throughout this litigation, that since it represented individuals and not the City, those laws did not apply to it, and the documentation was therefore unnecessary. After this exchange, the City's fee payments "became sporadic, eventually ceasing altogether by October 2009."
On May 26, 2009, and October 30, 2009, an assistant City Solicitor wrote to the Firm requesting representation for Brooks in two separate lawsuits. By letters dated September 15, 2009, and October 30, 2009, an assistant City Solicitor requested that the Firm represent Mooney in two separate actions.
When a new City Solicitor succeeded Tarver, he too unsuccessfully requested "pay-to-play" and "law against discrimination" documentation. Nonetheless, on March 5, 2010, an assistant City Solicitor wrote to the Firm regarding representation for Mooney. The Firm was paid, in substantially lesser amounts than were billed, only through October 2009.
All the letters specified that the Firm would be paid the City's standard rate for outside counsel in single-defendant cases. The rate was higher for the defense of two or more employees.
In January 2010, the City created the position of Public Safety Director, and sent Mooney a layoff notice shortly thereafter. The Firm sued the City on Mooney's behalf, alleging his layoff and the ordinance creating the position were retaliation for his support of Langford's political opponents.
On May 17, 2010, the Firm filed a complaint against the City on Brooks's behalf. He too alleged he was effectively demoted by the creation of the Public Safety Director position in retaliation for his failure to support Langford.
II
In June and August 2010, pursuant to Rule 1:20A-6, the Firm sent the City twenty-six "pre-action notices" alleging that the City had failed to pay legal fees for representations it authorized.
On October 15, 2010, the Firm filed this complaint, alleging that the City had stopped paying its fees in October 2009 without explanation or prior notice. The City responded by motion to dismiss the complaint for failure to join indispensable parties or, in the alternative, to sever claims to collect fees charged for the Firm's representation of Mooney and Brooks. The basis for the motion was that both had active employment-related litigation pending against the City at the time, and the Firm was representing them in those actions.
The Firm cross-moved to proceed summarily, submitting a certification from David Azotea, an associate. He was one of the attorneys "responsible for the handling of the firm's legal defense of [the City's] employees as authorized by the City."
The judge denied the City's motion to dismiss or sever claims. Instead, the judge granted the Firm's motion to proceed summarily and issued an order to show cause as to why outstanding attorney's fees should not be paid immediately.
In the judge's written decision, although he acknowledged the City's arguments, he did not explain why none had merit. Instead, he reasoned that because the City knew or should have known that services were necessary to indemnify Brooks and Mooney, it benefitted, "albeit indirectly," and therefore should be liable for the reasonable costs of defending the employees. The judge disagreed that the Firm's claims regarding Mooney and Brooks should be severed and joined in their pending individual employment actions against the City.
Thereafter, on April 8, 2011, the City sought to serve deposition notices on several attorneys at the Firm, including John Donnelly, Mary Beth Clark, and Azotea, as well as a paralegal, Beverly Frank. In response to the notices, the Firm sought a protective order, contending that depositions should be taken only from Donnelly and Clark because he was the originating attorney and she the "responsible billing attorney." The Firm also contended that depositions should be limited to the issue of damages. The City, in addition to opposing the restrictions contained in the proposed protective order, argued that depositions were necessary to explore the circumstances surrounding the Firm's hiring, the billing attorney's roles in each of the twenty-one lawsuits in which they had represented City employees and claimed fees, and the extent of communications with the City.
Before the court decided the issue of the subject matter for deposition, the Firm served the City with a notice to produce records for thirty-two civil cases regarding work performed by sixteen separate law firms. The notice to produce included correspondence, authorizations, council resolutions, e-mails, memoranda, minutes, telephone messages, notes of telephone calls and meetings, bills for legal services, and copies of checks.
On May 16, 2011, without any accompanying statement of reasons, the judge granted the Firm's motion for a protective order. He permitted only Donnelly and Clark to be deposed, and limited the subject matter "to relevant non-privileged information concerning damages." The City was granted the right to file a motion to expand the scope of future depositions if the depositions of those two attorneys did not generate "all relevant information." No limitations were placed on the Firm's discovery requests.
The City's answer included a counterclaim for disgorgement and a jury demand. It alleged the Firm had been unjustly enriched, and that its legal services violated ordinances, state statutes, and government contract procurement procedures, of which the firm and its clients had actual knowledge.
The counterclaim also asserted that the Mooney and Brooks MOUs were procured through corruption and fraud and were contrary to public policy. The City sought, among other things, contribution and indemnification from Mooney and Brooks to the extent it would be required to pay legal fees to the Firm based on the MOUs. The City also sought to recoup previous payments made to the Firm.
On May 16, 2011, the City filed a third-party complaint against Brooks, Mooney, and Cappella. It asserted that the MOUs were unlawful because they were never ratified or approved by the City council. The third-party complaint alleged that Brooks, Mooney, and Cappella had breached their fiduciary duty to the City by their ultra vires actions in retaining the Firm's services to be paid for by public funds in the absence of a contract, or compliance with applicable law, or approval by way of City council resolution. The third-party complaint also sought disgorgement of the unjust enrichment allegedly gained by the third-party defendants as a result of the Firm's representation.
On the return date of the motion for reconsideration of the decision granting the Firm's application to proceed summarily and denying the City's application to dismiss or sever claims, the City argued that the court had erred in its legal determination that the Firm was entitled to fees. The City premised its argument on the following: that the operative facts were in dispute; that the Firm was ineligible to proceed summarily because it sought unliquidated money damages; that the court had assumed the fees were provided legally and with justification; and that the court misapplied the law of quantum meruit since the Firm's insistence that an agreement existed with the City precluded an award of damages on that basis. The City again asserted that the Firm's defense of many employees "was either totally unnecessary or duplicative of other defense counsel's efforts." The Firm cross-moved for the City to pay fees in three ongoing matters in which it was appearing on behalf of City employees.
On June 29, 2011, reconsideration was partially granted. In a six-page opinion, the judge agreed there were disputes of fact as to whether a contract existed between the parties, and "whether the authorization of legal counsel was properly retained." The judge precluded the Firm from seeking summary judgment on the basis of any alleged contract with the City, finding that material issues of fact existed which "should be determined by a jury."
The judge again denied the City's application to dismiss or to sever claims regarding fees paid on behalf of Brooks and Mooney. He also denied the Firm's cross-motion to compel immediate payment of attorney's fees.
In the interim, the Firm filed successive motions for dismissal: on June 16, 2011, of the City's counterclaim (although the legal basis for the motion is unclear from the record) and on July 5, 2011, acting as attorney for third-party defendants Mooney, Brooks, and Capella, to dismiss the third-party complaint with prejudice for failure to state a claim. On July 6, 2011, the Firm filed a motion to dismiss defendant's answer, and a second motion to dismiss the counterclaim on the basis that defendant's discovery responses were deficient.
On July 19, 2011, the court granted the Firm's June 16 motion to dismiss the City's counterclaim, treating it as unopposed. Additional motions followed relating to discovery and the Firm's continuing demand for immediate payment.
On August 4, 2011, the judge granted the Firm's July 5 motion to dismiss the third-party complaint. The judge explicitly noted that he would not consider the City's opposition because it was filed nine days after the motion's return date. Shortly thereafter the City moved for reconsideration, arguing that the third-party defendants had never entered an appearance, that the Firm's representation of them in the proceedings raised the specter of a potential conflict, and that there was no notice that Brooks, Mooney, and Cappella had waived any potential conflict. In fact, Cappella was represented by a separate attorney who had not entered an appearance in the matter.
The City also moved for reconsideration of the dismissal of its counterclaim. The City's counsel asserted that the opposition documents had been timely prepared, and that the inadvertent failure to timely file was due to a clerical error discovered only when the attorney received the dismissal order.
On August 16, 2011, the Firm wrote to the judge to confirm that oral argument on motions having a return date of August 19 had been rescheduled for August 18, a day earlier. These motions included the Firm's applications for reconsideration and the City's motions to quash subpoenas. The City responded that counsel would not be available on August 18 and requested that all the motions be carried to the following week and considered at that time.
The next event from the record appears to be an order dated September 8, 2011, staying all pending motions and all discovery. The preamble to the order recites that the court and counsel conferenced the matter off the record in chambers, and having "determined this matter shall proceed as follows," the Firm was to file a motion for summary judgment by September 8, 2011. The order also recited that "[the City] may file and serve a cross-motion for summary judgment pursuant to Rule 1:6-3(b)."
On that same date, September 8, 2011, the Firm filed a motion for partial summary judgment solely on count five, based on principles of quantum meruit. In support of its application, the Firm attached a 512-paragraph document purporting to contain undisputed material facts. Less than one hundred of those paragraphs actually recite facts with supporting citations to the record. The introductory paragraph states: "All factual allegations set forth below, unless other citation is indicated, are supported by the [c]ertification of David J. Azotea, [] submitted in support of this motion."
In addition to identifying himself as a licensed New Jersey attorney, Azotea says:
2. I am associated with the law firm Levine, Staller . . . and am one of the attorneys responsible for the handling of this matter on behalf of Levine Staller.
3. I make this Certification in Support of Plaintiff's Motion for Partial Summary Judgment based on my personal knowledge of the factual statements contained therein.
4. I was significantly involved with all the cases that are the subject of this litigation, and, in most cases, did much of the work involved therein.
5. As such, I am fully familiar with the factual assertions made in Plaintiff's application for Partial Summary Judgment.
6. Paragraphs 1 through 514 [sic] of Plaintiff's Brief in Support of its Motion for Partial Summary Judgment are true to the best of my personal knowledge and belief with the exception of the Exhibit references attached to the Certification of Jenna M. Cook. The Exhibits have been separately certified by Jenna Cook[.]
The exhibits attached to Cook's certification included Atlantic City council resolutions, to which were attached printouts listing authorized wire transfer batch payments to dozens of companies, including the Firm. Cook certified that the batch payment resolutions "demonstrate[ the] City Council's knowledge that it was paying [the Firm]'s legal billings and ratification." Also attached were documents related to the cases for which the Firm sought fees, including joint defense agreements executed by representatives of the City, substitutions of attorney, and ledger pages reflecting payments that the Firm had received for those cases.
The Firm's statement of undisputed material facts generally described the circumstances of each case for which it demanded payment. It also alleged that the City never revoked authorization for the representations, nor did it inform the Firm that it would not be paid. The Firm provided a total amount due for legal fees and costs as to each case. These totals are not supported by documentary evidence other than Azotea's certification.
On September 26, 2011, the City filed a cross-motion seeking summary judgment dismissing the entire complaint. The City's response to the Firm's motion consisted of a twenty-three-paragraph statement that did not individually address each paragraph contained in the Firm's submission; rather, this statement asserted different "undisputed" facts supported with documentary evidence including an appendix. The City submitted that same statement as its own statement of undisputed facts in support of the cross-motion for summary judgment.
The City alleged, among other things, that the Firm had made political contributions to Evans and to former City councilman Marty Small, who had been a candidate for mayor. Small's campaign treasurer was one of the partners at the Firm while it represented the City's employees. The City contended that these contributions made the Firm ineligible to receive payment.
In support of this claim, the City submitted the transcript of a police interview of one of the Firm's partners, in which the partner described his actions as Small's treasurer. The City also provided a series of 2005, 2007, and 2008 contribution reports from the New Jersey Election Law Enforcement Commission regarding the Firm's donations to Evans's campaign and to those of several other individuals who ran for Atlantic City council.
Additionally, the City submitted a chart comparing billings allegedly duplicated by those of other outside attorneys who were working pursuant to a joint defense agreement. The City's attorney certified the chart was prepared at "my request" by "my office."
In response, the Firm requested a stay of the City's summary judgment motion because it improperly went beyond the scope of its own motion by seeking dismissal of the entire complaint, rather than solely addressing count five. Furthermore, the Firm contended that should the judge grant its request for an award of damages as to count five on a theory of quantum meruit, the City's cross-motion would be moot. Additionally, the Firm sought sanctions against the City for its alleged failure to comply with the summary judgment rules.
The City objected that the court's prior order had specifically authorized the filing of a motion for summary judgment and that the Firm's statement of material facts lacked the record support and references required by the rules. The City requested oral argument on the motions.
On October 18, 2011, the Firm notified the City that the court had granted a stay of the City's motion. The City wrote to the judge, objecting that its motion for summary judgment complied with Rule 4:46-1 and that there was no basis in law for the court to "stay" a properly filed motion in these circumstances. The City reiterated its objection to any reliance upon Azotea's certification in the court's deliberative process because it did not comply with the requirements of Rule 1:6-6.
The City again asked for oral argument and indicated it was unaware of the scheduled return date for the motion, originally October 6, 2011. On October 25, 2011, the Firm requested a date for oral argument.
On November 3, 2011, the Firm notified the court that the City's two lead counsel were unavailable the following day, which was apparently the rescheduled date, and that it was awaiting a response as to whether another City attorney would be available. In the letter, the Firm suggested that additional attorneys from the City's office would be able to attend. That same day, the Firm faxed a letter to the City's counsel stating that the judge had advised that oral argument would proceed the next day "with or without an appearance from defense counsel."
When oral argument was conducted on November 4, 2011, the City's attorney informed the judge that it learned of the argument date only from the prior day's communications. The judge responded that he had told the City's counsel "weeks ago" that oral argument had been scheduled for November 4. This despite the fact that the Firm's letter to the court asking for an argument date had only been sent on October 25, and that it was not until November 3 that the Firm advised the court of its efforts to secure the City's presence for oral argument the following day.
During oral argument, the judge confirmed that he had granted the Firm's ex parte request to stay the City's cross-motion for summary judgment. When counsel attempted to elicit clarification as to the effect and meaning of the stay, the judge replied "No. I want to deal with the plaintiff's motion first." The judge said he would not even consider the City's argument for judgment in its favor on the quantum meruit claim.
On December 23, 2011, the judge issued a written opinion granting the Firm's motion for partial summary judgment and dismissing the City's cross-motion. The opinion opens with the phrase, "This case is of a collection matter."
The opinion reiterated the City's arguments in opposition to the Firm's motion for partial summary judgment as well as in support of its own cross-motion for summary judgment. Nonetheless, the judge said the Firm's statement of material facts was deemed "admitted" by the City because it had "entirely disregarded" the rule that a party who opposed a motion for summary judgment "has an affirmative duty to respond to the movant's facts." In addition, the judge said the City "failed to come forward with sworn, supported, and credible material facts that contradict [the Firm's] undisputed facts." Therefore, the judge found the issue of whether the Firm was entitled to compensation on its quantum meruit claim to be one of law.
The court reasoned that it "was tasked with making a determination as to whether it is fair and equitable to allow the [City] to wait until after substantial services have been performed by the [Firm] to refuse to pay for its services based upon hyper-technicalities that the City failed to address." After listing the four elements that must be established to allow recovery under a theory of quantum meruit, the court said that the Firm:
has proven its prima facie case as it is undisputed that: (1) the [Firm] performed services in good faith and in accordance with its appointment by the City Solicitor;
(2) the City ratified, relied upon, and benefitted from [the Firm]'s representation of City employees to satisfy the City's obligation to defend and indemnify those employees; (3) [the Firm] billed and were being paid on a monthly basis . . .; and (4) [the Firm] can establish the reasonable value of its services.Further, the court was "persuaded that because [the] City's authorization was never revoked or disavowed, its retention of these benefits without payment would be unjust."
The judge rejected as "lacking" the City's argument that the Firm was ineligible to receive payment based on its reported campaign contributions. Citing Wanaque Borough Sewerage Authority v. West Milford, 144 N.J. 564 (1996), and Summer Cottagers' Ass'n of Cape May v. City of Cape May, 19 N.J. 493 (1955), he concluded that he "cannot ignore the overwhelming inequity in allowing the City to benefit from the [Firm]'s representation without payment." He provided no further legal analysis.
The court found the record "sufficient to support a motion for summary judgment" and, without explanation, said that "the City's cross motion for summary judgment nullifies any arguments made to the contrary." The judge concluded: "[The Firm] provided [] representation to City employees and not the City directly. Accordingly, the City must pay for these services." The court ordered the Firm to file an application setting forth "all costs and legal fees."
On December 29, 2011, the court issued individual orders that declared moot the City's motions to: reconsider the August 4, 2011 order dismissing the third-party complaint; vacate the court's July 19, 2011 order dismissing its counterclaim; prohibit further discovery requests absent court order; extend the time for discovery; and quash the subpoena to Scibal Associates. The court also found moot: the Firm's motions for sanctions, the Firm's motion for reconsideration of the court's March 25, 2011 order, and the City's answer.
A service retained by the City to issue and record payments for services and goods purchased by the City.
The Firm subsequently filed a motion for entry of judgment in the amount of $856,553.15 on the basis that, under a theory of quantum meruit, it was entitled to fees based on its standard hourly rate, not the outside counsel rate it theoretically agreed to with the City when it undertook each representation. The Firm also sought prejudgment interest.
The City responded that damages should be decided by a jury and that the Firm should not be entitled to an hourly rate greater than it would have obtained under the alleged contract. The City also contended that the Firm was not entitled to fees for representing Mooney in a case referred to as Lawton v. Mitchell, since the Firm had been notified its services were unnecessary and that the City's attorney would represent him. The City further objected that costs were not itemized, and that no prejudgment interest should be awarded where the Firm's recovery was not based on a contract.
On May 10, 2012, the court issued a written decision and order granting the Firm's motion for judgment. The judge declined to consider issues already decided in the motion for partial summary judgment, including:
[The Firm]'s failure to mitigate damages, [the Firm]'s inability to profit from its circumvention of the law, the duplicative nature of [the Firm]'s work, [the Firm]'s inability to profit from its defense of individual defendants who were not entitled to defense or indemnification, and [the Firm's] entitlement to fees in the Lawton matter.However, the summary judgment decision had not discussed these issues. Furthermore, the court rejected the City's argument that the Firm could not recover for cases that it did not plead in its complaint because New Jersey is a "notice pleading state" and the City was on notice of the Firm's claim in general.
The judge also found that the reasonable value of the Firm's services was, in fact, the "contract sum" that the parties had previously agreed upon and that it was entitled to judgment "based upon its contract rates." He nonetheless reasoned that the "reasonable value" of the Firm's services must be evaluated in a two-step analysis. First, the court would examine "what is deserved by [the Firm] based upon its contribution to the outcome of the [c]ases in [i]ssue." Secondly, the court must determine the reasonableness of the fees under the factors set forth in RPC 1.5(a). The Glick guidelines would be employed in completing the first step, which might entitle the Firm to a fee higher than its standard hourly rate.
Glick v. Barclays De Zoete Wedd, Inc., 300 N.J. Super. 299 (App. Div. 1997).
In considering the RPC 1.5(a) factors, the judge found that the Firm had submitted timely bills "and there was never any objection by either side." The court described the City's "waiver" as being the intentional and voluntary relinquishment of a known right. That "equitable principle" prevented the City from denying that it accepted the Firm's services and, at the same time, prevented the Firm from receiving damages that substantially exceeded what the City would have spent for a defense by another area law firm. The parties' "course of conduct" therefore established the reasonable value of the Firm's services to be "the contract price" that the Firm billed to the City during the course of the representation.
Additionally, the judge determined that the Firm had established "the entirety" of its billings, "including costs, time spent[,] and commensurate work." The City, in his view, had failed to challenge the Firm's alleged overbilling with an affidavit from an individual with personal knowledge of the cases. The court ordered the Firm to resubmit its fee calculations in conformance with the court's decision.
On May 30, 2012, the City filed a notice of motion for reconsideration of the court's May 10, 2012 order, based on documents that it had recently discovered and that it said proved the City had advised the Firm, as of March 3, 2009, that it could no longer "process any matters" related to its services as of that date. The documents also purported to demonstrate that as of May 13, 2009, the Firm was no longer authorized to continue to represent Chief Mooney in Lawton v. Mitchell.
That same day, the Firm submitted its proposed order for judgment in the amount of $629,307.98. On June 8, 2012, the City submitted its opposition to the proposed order on the basis that the Firm sought judgment based in part on a $75 hourly paralegal rate and that none of the City council resolutions authorized a paralegal rate greater than $35 per hour. On June 11, 2012, the court issued its final judgment awarding the Firm $629,307.98.
On July 2, 2012, the City filed a notice of motion for reconsideration of the court's December 23, 2011 order granting the Firm partial summary judgment and of the June 11, 2012 award. The City alleged that the June 11, 2012 order included payment for over $100,000 in fees that the Firm had previously stated it was not seeking as part of the litigation.
On September 14, 2012, the judge heard oral argument on the motions. The court denied the requests with the comment: "I don't see any basis to grant the request. This has been going on long enough." The judge did not discuss the matter further and refused to stay entry of final judgment.
On September 18, 2012, the court signed an order denying the motions for reconsideration and entering final judgment in the Firm's favor in the amount of $629,307.98 plus interest. The order stated: "[T]his Final Judgment adjudicates all claims by the parties in this action." In a letter dated September 20, 2012, the City objected to the form of order and requested that the court include a provision dismissing the Firm's remaining counts with prejudice, but the order had already been signed.
On September 24, 2012, the Firm agreed to dismiss the remaining counts without prejudice. The City requested that the judge sign a new form of order to reflect the dismissal, but he never did so.
The City raises the following points for our consideration on appeal:
I. THE TRIAL COURT ERRED IN GRANTING PLAINTIFF SUMMARY JUDGMENT ON A THEORY OF QUANTUM MERUIT
A. Our courts do not permit collection in quantum meruit by a law firm violating contracting law
B. New Jersey's Pay to Play Statute is an absolute bar to recovery
C. Even if quantum meruit were available as a matter of law, Plaintiff cannot prove entitlement
D. The trial court erred by deeming Plaintiff's Statement of Material Facts Admitted
II. THE TRIAL COURT ERRED IN GRANTING PLAINTIFF'S MOTION FOR ENTRY OF JUDGMENT
A. The trial court erred by not submitting the question of Plaintiff's damages to the jury
B. The trial court erred by not permitting the City to depose and cross examine Plaintiff's employees on the inconsistencies in Plaintiff's proofs
C. The trial court erred in ignoring Plaintiff's duty to mitigate damages
D. The trial court erred by permitting Plaintiff to recover profit, as opposed to costs on its quantum meruit claim
E. The trial court erred by awarding the "Balance Forward" claimed on the invoices, but not supported by time records
F. The trial court erred in granting Plaintiff damages for "costs" because it provided no evidence in support
G. The trial court should not have awarded damages for the matter of Lawton v. Mitchell, et al. because Plaintiff was on notice that its services were unnecessary
H. Plaintiff cannot recover damages for the matter of Steele, Crouch v. Cappella because it was not pled in the Complaint and because no pre-action notice was provided
I. The trial court erred in awarding prejudgment interest
J. The trial court erred in refusing to reconsider its June 11, 2012 Order
III. THE TRIAL COURT ERRED IN A NUMBER OF PROCEDURAL AND DISPOSITIVE MOTIONS PREJUDICING THE CITY AND LEADING TO AN UNJUST OUTCOME
A. The trial court erred by refusing to dismiss the Complaint for failure to join
B. The trial court erred by refusing to sever those claims relating to services provided to Mooney and Brooks
C. The trial court erred by dismissing the City's Third-Party Complaint and refusing to reconsider that decision
D. The trial court erred by dismissing the City's Counterclaim and failing to reconsider that Decision
E. The trial court erred by continually short-circuiting the City's attempts to present its case
The Firm raises the following points for our consideration on cross-appeal:
II. DEFENDANT'S FAILURE TO COMPLY WITH THE COURT RULES BELOW AND ON THIS APPEAL MANDATES AFFIRMANCE OF THE TRIAL COURT'S DECISION AND DISMISSAL OF THIS APPEAL
A. The Trial Court Correctly Held That Plaintiff's Statement of Material Facts Was Admissible And Deemed Admitted
B. Defendant's Violation of The Appellate Rules Requires Dismissal
III. THE TRIAL COURT'S RULING IN FAVOR OF PLAINTIFF ON ITS QUANTUM MERUIT CLAIM MUST BE AFFIRMED
A. Plaintiff has Proven A Prima Facie Case Entitling It to Recovery Under Quantum Meruit
B. Local Public Contracts Law Does Not Bar Plaintiff's Recovery
C. Plaintiff's Recovery Is Not Barred by Pay-to-Play
D. The Trial Court's Credibility Determinations Regarding Defendant's Facts Is Irrelevant, As Defendant
Failed To Come Forth With Any Disputed Facts On The Motion For Partial Summary Judgment
IV. THE TRIAL COURT'S OTHER RULINGS WERE PROPER AND MUST BE AFFIRMED
A. The Trial Court Correctly Granted Judgment On Plaintiff's Damages
B. The Trial Court Correctly Limited The Depositions Of Plaintiff's Employees In This Summary Action
C. The Trial Court Properly Considered Mitigation of Damages
D. Plaintiff's Fees Were Adequately Supported In The Record And Must Be Affirmed
E. The Trial Court Correctly Awarded the "Balance Forward," As It Was Adequately Supported In The Record
F. The Trial Court Correctly Granted Plaintiff Damages For "Costs."
G. The Trial Court Properly Awarded Damages for Lawton v. Mitchell, et al
H. The Trial Court Properly Awarded Damages for Steele, Crouch v. Cappella
I. The Trial Court Properly Awarded Prejudgment Interest
J. The Trial Court Correctly Denied Reconsideration of Its June 11, 2012 Order Awarding Plaintiff Judgment
V. THE TRIAL COURT DID NOT ERR PROCEDURALLY AND DID NOT PREJUDICE THE DEFENDANT
A. The Trial Court Did Not Err By Refusing To Dismiss Plaintiff's Complaint Under Joinder
B. The Trial Court Did Not Err In Denying Defendant's Motion To Sever Claims Relating To Chiefs Mooney And Brooks
C. The Trial Court Properly Dismissed The City's Third-Party Complaint
D. The Trial Court Properly Dismissed The Defendant's Counterclaim
E. The Trial Court Did Not Prevent Defendant From Presenting Its Case
VI. THE TRIAL COURT ERRED IN FAILING TO ORDER THE CITY TO IMMEDIATELY RESUME AND BRING CURRENT ITS PAYMENTS FOR LEGAL SERVICES RENDERED IN THE DEFENSE OF CITY EMPLOYEES WHILE SUIT WAS PENDING UNDER IN THE MATTER OF THE STATE GRAND JURY INVESTIGATION
VII. THE TRIAL COURT ERRED IN FAILING TO CALCULATE QUANTUM MERUIT DAMAGES BASED UPON THE PLAINTIFF LAW FIRM'S USUAL, REASONABLE AND CUSTOMARY RATES
The Firm's first point deals only with the applicable standard of review.
III
A.
Summary judgment motion practice is designed "to separate real issues from issues about which there is no serious dispute." Shelcusky v. Garjulio, 172 N.J. 185, 200-01 (2002). A party's motion for summary judgment "must be granted if '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.'" Henry v. N.J. Dep't of Human Servs., 204 N.J. 320, 329 (2010) (quoting R. 4:46-2). The role of both the trial and appellate courts in determining whether it is proper to grant a motion for summary judgment is the same: "[R]eview the competent evidential materials submitted by the parties to identify whether there are genuine issues of material fact and, if not, whether the moving party is entitled to summary judgment as a matter of law." Bhagat v. Bhagat, 217 N.J. 22, 38 (2014). In doing so, the court is required to view that evidence in the light most favorable to the non-moving party. Manahawkin Convalescent v. O'Neill, 217 N.J. 99, 115 (2014).
The court rules require that a party seeking summary judgment submit a statement of material facts "as to which the movant contends there is no genuine issue together with a citation to the portion of the motion record establishing the fact or demonstrating that it is uncontroverted." R. 4:46-2(a). The citation to the record "shall identify the document and shall specify the pages and paragraphs or lines thereof or the specific portions of exhibits relied on." Ibid. Furthermore, "all material facts in the movant's statement which are sufficiently supported will be deemed admitted for purposes of the motion only, unless specifically disputed by citation conforming to the requirements of paragraph (a) demonstrating the existence of a genuine issue as to the fact." R. 4:46-2(b).
The rule allows parties to submit affidavits in support of the motion. R. 4:46-2(a). But any such affidavit must comply with the requirements of Rule 1:6-6. Claypotch v. Heller, Inc., 360 N.J. Super. 472, 488 (App. Div. 2003). That rule specifies that an affidavit must be "made on personal knowledge" and "set[] forth only facts which are admissible in evidence to which the affiant is competent to testify." R. 1:6-6. When "an affidavit supporting a factual assertion in a statement of material facts does not comply with Rule 1:6-6, the assertion is not 'sufficiently supported' and thus will not be 'deemed admitted' even though it is not contested by a responding statement." Claypotch, supra, 360 N.J. Super. at 489.
B.
The City contends the judge erred in granting the Firm quantum meruit fees which, although characterized as partial summary judgment, effectively disposed of all the issues in the case.
Initially, we disagree with the judge's decision to deem the Firm's statement of material facts as admitted. A number of the allegations contained in that statement were general, no more than recitations of law. Although specific fee amounts were requested for specific cases, these totals were not supported by documentary evidence. Furthermore, Azotea was the voice of the Firm in its statement, yet billing records submitted after the summary judgment motion established that on some cases for which he certified the facts based on his "personal knowledge," he performed minimal work. He also did not have supervisory authority over some of the cases, or if he did, it is not indicated in the record.
Indeed, when the Firm obtained the protective order limiting the City's depositions to Donnelly and Clark, it was based on Clark's assertion that Azotea had no responsibility for the origination or billing of the cases. This raises an inherent contradiction that the court ignored. If the City was limited to deposing Donnelly and Clark, because only they had relevant information, then surely Azotea's lengthy statement of material facts could not have been "true to the best of [his] personal knowledge and belief" as required by the summary judgment rule.
Additionally, the judge failed to view the evidence in the light most favorable to the City, the non-moving party. In finding that the Firm acted in "good faith," the judge ignored the ongoing legal dispute regarding the Firm's compliance with the City's ordinances and State statutes. He also ignored the factual allegation of whether the designation of the Firm as the attorney for Mooney and Brooks was procured through corruption and fraud.
This is not to characterize the City's own submission as conforming to the rules. To some extent those submissions also suffered from reliance on statements of law and general statements unsupported by citations to the record.
When the submissions on motions for summary judgment do not comply with the rules, however, the court should not accept the moving party's assertions as true and ignore the non-moving party's responses. It is simply inexplicable that the court considered the Firm's motion for partial summary judgment, which effectively disposed of the entire matter, while "stay[ing]" the City's own application. If the court was concerned about the timing of the City's responding pleadings, and fairness to the Firm, the matter should have been delayed and other sanctions considered.
To summarize, the judge improperly deemed the Firm's statement of material facts to comply with the rules, or to have been admitted by the City. He also failed to view the facts in the light most favorable to the City as the non-moving party, while ignoring the City's proofs in their entirety. Accordingly, we reverse the grant of summary judgment on count five.
C.
Because we reverse the grant of summary judgment, we will not address the City's multiple claims of error regarding the judge's decision about damages. We observe, however, that at a minimum, given that the payor is a public entity and the substantial amount involved, a proof hearing was necessary. There were issues regarding mitigation of damages, disputes about hourly rates for paralegals, and the fact that a portion of the award, $63,379.90 for costs and disbursements, was not even itemized. The issue of damages is thus one that should not have been decided simply on written submissions.
The Law Division judge altogether ignored the City's objections to the amounts the Firm sought, except for the hourly rate. The judge did not even discuss the City's objections. It treated the Firm's submissions as though they constituted evidence of liquidated damages that only required mathematical calculations based solely on billing records.
Liquidated damages are damages that have "been made certain and fixed either by the act and agreement of the parties or by operation of law to a sum which cannot be changed by the proof." Sema v. Automall 46, Inc., 384 N.J. Super. 145, 153 (App. Div. 2006) (quoting 22 Am. Jur. 2d Damages § 489 (2003)). Unliquidated damages have been defined as "Damages that cannot be determined by a fixed formula and must be established by a judge or jury." Black's Law Dictionary 449 (9th ed. 2009).
Damages generally are considered to be unliquidated "where they are an uncertain quantity, depending on no fixed standard, referred to the wise discretion of a jury, and can never be made certain except by accord or verdict." Schettino v. Roizman Dev., Inc., 158 N.J. 476, 486 (1999) (quoting 25 C.J.S. Damages § 2 (1966)).
By definition, the damages awarded in quantum meruit cannot be deemed to be liquidated damages, because such an award is based on the reasonable value of the services. Starkey, Kelly, Blaney & White v. Estate of Nicolaysen, 172 N.J. 60, 68 (2008). The fact that the court found the reasonable hourly rate to be the City's contract rate did not convert the unliquidated damages into liquidated damages.
In considering the Firm's motion for partial summary judgment, the court declined to consider the City's response. Even so, a proof hearing should have been conducted because the damages were unliquidated. "It is axiomatic that where, following the entry of a default, a plaintiff seeks unliquidated damages, judgment should not ordinarily be entered without a proof hearing." Chakravarti v. Pegasus Consulting Grp., Inc., 393 N.J. Super. 203, 210 (App. Div. 2007). A defendant who has relinquished the right to present affirmative proofs nevertheless retains the right to challenge a plaintiff's evidence in a proof hearing by way of cross-examination and argument. Id. at 211. In this case, the reason the judge appeared to ignore the City's response is unclear.
The City, in addition to disputing the Firm's right to collect any portion of its claimed fees, disputed specific aspects of the amount claimed. A fair resolution required a proof hearing.
D.
In light of our decision that the complaint must be reinstated, the trial court must also revisit the issue of whether Brooks and Mooney should be joined as indispensable parties. In this case, the judge gave short shrift to the question, and appeared to mistakenly rely on the permissive joinder rule, as opposed to analyzing the request under Rule 4:28-1(a) and Rule 4:29-1(b).
New Jersey's court rules embody the "long-held preference" in this State "that related claims and matters arising among related parties be adjudicated together rather than in separate, successive, fragmented, or piecemeal litigation." Kent Motor Cars, Inc. v. Reynolds & Reynolds Co., 207 N.J. 428, 443 (2011). Parties may neither withhold related aspects of a claim from consideration, nor decline to reveal the existence of other parties in an attempt to gain an advantage. Id. at 446.
Parties are required by Rule 4:5-1(b)(2) to disclose to the court by certification in their first pleading "the names of any non-party who should be joined in the action pursuant to Rule 4:28 or who is subject to joinder pursuant to Rule 4:29-1(b) because of potential liability to any party on the basis of the same transactional facts." During the course of the litigation, the parties remain obligated to disclose a change in those facts as certified. Ibid. The Firm's complaint certified that Brooks, Mooney, and Cappella, among other individuals, were "non-parties who may be subject to joinder."
In this case, the City sought dismissal of the complaint because of the Firm's failure to join Brooks and Mooney. On remand, the City may renew its application for the judge to assess whether joinder was appropriate for any of the parties that the Firm named under the proper rules.
Apparently in unrelated litigation, the MOUs with Mooney and Brooks have been separately determined to be enforceable. Although the record is not entirely clear on the point, it does not appear that the question of the validity of the agreements regarding legal representation was addressed. Although that resolution may make the issue of severance moot, it does not necessarily dispose of the issue of joinder.
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E.
The City claims the trial court also erred in dismissing its third-party complaint against Mooney, Brooks, and Cappella, and its counterclaim raising similar allegations. We agree.
The Firm sought dismissal of the third-party complaint on the basis that it failed to state a claim upon which relief could be granted. The third-party complaint was dismissed, however, not because of that contention, but because the judge refused to consider the City's untimely opposition. Likewise, the Firm sought dismissal of the City's counterclaim based on its deficient discovery responses, but the trial court simply granted the dismissal motion as "[u]nopposed."
A court's obligation to make findings of fact and explain its conclusions of law on interlocutory motions is necessary, even if the application is unopposed. See Allstate Ins. Co. v. Fisher, 408 N.J. Super. 289, 300 (App. Div. 2009) (the fact that a summary judgment motion is unopposed does not excuse the trial court's obligation under Rule 1:7-4 to correlate the undisputed facts to legal conclusions). Thus the trial court abused its discretion by dismissing the City's counterclaim without explaining its factual findings and legal conclusions.
As for the motion to dismiss the City's third-party complaint, where the City's opposition was filed untimely, the court had alternatives that would have avoided consideration of the Firm's demand in a factual vacuum. Certainly, sanctions could have been imposed short of deciding the issue by default. Until courts have exhausted all means of performing their shepherding function which do not terminate or prejudice a case, "they ought not to bar a litigant's way to the courtroom." Audubon Volunteer Fire Co. No. 1 v. Church Constr. Co., 206 N.J. Super. 405, 407 (App. Div. 1986).
Thus the court abused its discretion by declining to consider the City's opposition papers, and then dismissing the third-party complaint without explanation. The third-party complaint alleged corruption and self-dealing that certainly had, at a minimum, implications as to the Firm's entitlement to quantum meruit recovery. Since the court did not exhaust its options with regard to sanctions for the late submission, and instead chose to effectively decide the matter on a default basis, we reverse and reinstate the third-party complaint. Likewise, since the court failed to comply with Rule 1:7-4, we reverse and reinstate the counterclaim.
We take no position as to whether the Firm's legal contentions, or some other grounds, may actually warrant dismissal. This reinstatement merely returns the parties to the position they were in before the Firm's motion was decided. Should the Firm renew its application, the question regarding the City's third-party complaint and counterclaim must be decided on the merits.
F.
We briefly touch upon the issue of the City's claim that the Firm's failure to comply with the Local Public Contracts Law (LPCL) and the pay-to-play laws are an absolute bar to recovery under a theory of quantum meruit. The Firm's response, as we have said, is that it had no obligation to comply with pay-to-play laws, and that the LPCL did not apply as its only contractual relationship was with individual employees, meaning there was no valid contract between it and the City.
On this record, it would be inappropriate to consider these important questions other than to remind the parties that the trial court never determined whether a contract existed. It granted the Firm relief solely on the issue of quantum meruit.
Arguably, the evidence in this case establishes that the parties had an express contract for the City to compensate the Firm for legal services rendered to its employees. The City issued authorization letters to the Firm as litigation was filed. In each instance, the Firm undertook the representation. Hence the parties may have formed an express contract for payment of fees in exchange for legal services. Under the authority of Kress v. La Villa, 335 N.J. Super. 400, 408-09 (App. Div. 2000), certif. denied, 168 N.J. 289 (2001), an actual contract for legal services not in compliance with the LPCL would, however, be void.
The City contends that these contracts should have been awarded by resolution with accompanying statement of reasons, a newspaper notice, and other statutory requirements. See N.J.S.A. 40A:11-5(1)(a)(i). Such steps were not taken.
The court in Kress noted, however, that the plaintiffs in that case could have recovered on a quasi-contractual basis, in other words, on a claim of quantum meruit. 335 N.J. Super. at 411. The reason we rejected recovery in Kress is that there was no basis to conclude that the municipality had been unjustly enriched at the expense of the law firm or the clients. Ibid. Thus failure to comply with the LPCL may render a contract void and unenforceable, but that fact alone does not necessarily bar recovery in quantum meruit. The parties should have the opportunity to fully develop their positions on a more complete record before such a decision is made.
Under the pay-to-play laws, a municipality may not enter into a contract with an anticipated value greater than $17,500, except one that has been awarded through a fair and open bidding process, when the business entity during the preceding year made a contribution reportable under the Campaign Contributions and Expenditures Reporting Act
to any municipal committee of a political party in that municipality if a member of that political party is serving in an elective public office of that municipality when the contract is awarded or to any candidate committee of any person serving in an elective public office of that municipality when the contract is awarded.
[N.J.S.A. 19:44A-20.5.]
Furthermore, a business entity that already has entered into a contract with an anticipated value greater than $17,500 is similarly restricted from making a reportable contribution
to any municipal committee of a political party in that municipality if a member of that political party is serving in an elective public office of that municipality when the contract is awarded or to any candidate committee of any person serving in an elective public office of that municipality when the contract is awarded, during the term of that contract.
[Ibid.]
Nor may the specified committees accept such contributions during the term of the business entity's contract with the municipality. Ibid.
The statute also provides a strict penalty for continued willful violations:
A business entity which is determined by the Election Law Enforcement Commission to have willfully and intentionally made a contribution or failed to reveal a contribution in violation of this act may be liable to a penalty of up to the value of its contract with the public entity and may be debarred by the State Treasurer from contracting with any public entity for up to five years.
[N.J.S.A. 19:44A-20.10 (emphasis added).]
The incomplete record at this juncture is not one upon which we should decide the significant issue of whether the pay-to-play laws apply. As an aside, however, we do not agree with the City that the disgorgement provision in the law alone bars quantum meruit recovery. See N.J.S.A. 19:44A-20.10.
That statutory penalty can be imposed only upon the Election Law Enforcement Commission's determination that the contribution or failure to reveal a contribution was made "willfully and intentionally . . . in violation of this act." Ibid. The language of the statute renders those decisions, whether to impose a penalty and, if so, upon which contracts, permissive. A business entity in violation "may" be liable in an amount up to the value of the contract. Ibid.
The judge simply ignored the City's claim that the agreement regarding legal services was procured through fraud. Again, on this record, no conclusion should be drawn as to whether that claim can survive summary judgment or reach a jury.
G.
We briefly address the Firm's cross-appeal. The Firm claims that it was entitled, under a theory of quantum meruit, to a higher hourly rate than was agreed to between the parties pursuant to the guidelines in Glick, supra, 300 N.J. Super. at 311. We do not agree that the Glick guidelines apply.
Glick relates to cases involving work by successive attorneys, and a determination as to the extent to which that labor contributes to the final outcome. Ibid. Furthermore, Glick involved a quantum meruit award in the context of a potential contingent fee agreement no longer in effect negotiated by an attorney who did not ultimately resolve the matter. Ibid. On this record, therefore, no equitable basis exists for an award of a higher hourly rate than ordinarily paid by the City to outside counsel.
H.
The Firm also contends that it has the right to immediate payment given our Supreme Court's holding in In re State Grand Jury Investigation, 200 N.J. 481 (2009). In that case, the Court said:
Once a third-party payer commits to pay for the representation of another, the third-party payer shall not be relieved of its continuing obligations to pay without leave of court brought on prior written notice to the lawyer and the client. In such
an application, the third-party payer shall bear the burden of proving that its obligation to continue to pay for the representation should cease; the fact that the lawyer and the client have elected to pursue a course of conduct deemed in the client's best interests but disadvantageous to the third-party payer shall not be sufficient reason to discontinue the third-party payer's continuing obligation of payment. If a third-party payer fails to pay an employee's legal fees and expenses when due, the employee shall have the right, via a summary action, for an order to show cause why the third-party payer should not be ordered to pay those fees and expenses.Again, we consider the case to be inapposite because its facts are distinct from the facts at hand.
[Id. at 496-97.]
In In re State Grand Jury, a grand jury was investigating whether a corporate contractor had submitted fraudulent invoices for services to a county government. Id. at 486. The investigation focused on three of the contractor's employees. The corporation entered into three separate retainer agreements with separate lawyers for each employee, and a fourth agreement for another firm to represent former and current employees not targeted by the investigation. Ibid.
Thus the law firms, pursuant to the retainer agreement entered into with the corporation, represented the employees believing that their professional obligation was solely to the individual. In order to preserve the attorney-client privilege, although detailed invoices would be submitted to the employee, only summary invoices were sent to the company.
In this case, however, the City never incurred the unconditional responsibility for the payment of the Firm's fees undertaken by the corporation in In re State Grand Jury. The authorization letters did no more than direct that the representation take place, assuming the employee had not acted with actual fraud or actual malice and was not guilty of willful or intentional misconduct. The letters also required that the acts complained of occur within the employee's scope of employment. It was not the absolute obligation and commitment found to exist in In re State Grand Jury.
Finally, the Firm knew or should have known that its payment agreement with the City might be subject to the requirements of the LPCL, the pay-to-play laws, and the City Code. Again, unlike the private agreements that formed the basis for the Court's decision in In re State Grand Jury, supra, 200 N.J. at 486, the Firm's entitlement to payment was arguably conditioned upon compliance with multiple laws and procedures, none of which were satisfied. Although those deficiencies may not ultimately foreclose the Firm's right to obtain payment under quantum meruit principles, they create additional conditions on the Firm's entitlement to payment that were not included in the Court's analysis in In re State Grand Jury.
Accordingly, we reverse the award of summary judgment on count five, and reinstate the Firm's complaint in its entirety. We also reverse the dismissal of the City's counterclaim and reinstate it, along with the third-party complaint. We further direct that the trial court revisit the issue of mandatory joinder and discovery. We deny the Firm's cross-appeal on the issues of hourly rates and immediate payment.
Reversed and remanded. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION