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Rosenblum v. Borough of Closter

November 13, 1995


On appeal from Superior Court of New Jersey, Law Division, Bergen County.

Approved for Publication November 13, 1995.

Before Judges Michels, Villanueva and Kimmelman. The opinion of the court was delivered by VILLANUEVA, J.A.D.

The opinion of the court was delivered by: VILLANUEVA

The opinion of the court was delivered by VILLANUEVA, J.A.D.

Plaintiff Jesse Rosenblum appeals from orders in two actions awarding attorney fees against him pursuant to the frivolous litigation statute, N.J.S.A. 2A:15-59.1 (the Statute). The actions were consolidated on the applications for attorney fees. Miele Sanitation Company (Miele) cross appeals from the denial of his motion for attorney fees pursuant to the Statute in one of the actions.

The first action, referred to as the "land transfer" action, was brought against all interested parties and challenged the transfer of land by the Borough of Closter (Borough or Closter) to Joseph Miele and Gloria Miele (the Mieles). Although the land was zoned for residential purposes, plaintiff alleged that the Mieles purchased it for use in an industrial waste operation. The court dismissed this complaint as woefully late and upon Closter's motion, granted Closter frivolous litigation fees of $4,331.21. On appeal, the Appellate Division affirmed both the dismissal of plaintiff's underlying complaint and the award of attorney fees to Closter against plaintiff and, upon Closter's motion, awarded it attorney fees of $1,500 and disbursements of $471.53 pursuant to the Statute for plaintiff's frivolous appeal. Subsequently, the Supreme Court granted plaintiff's petition for certification and "summarily remanded [the matter] to the Appellate Division for reconsideration [of the attorney fee award] in light of McKeown- Brand v. Trump Castle Hotel and Casino, 132 N.J. 546, 626 A.2d 425 (1993)." The Appellate Division again affirmed, and the Supreme Court denied certification.

The second action is referred to as the "garbage contract" action. Under an agreement dated June 12, 1991, incorporating the settlement of a prior dispute between Miele and Closter, Miele agreed to provide solid waste transfer station services to Closter for two years at a fixed rate for all waste types, notwithstanding the fact that Miele's cost to dispose of Closter's bulky waste might exceed the fixed rate charged to Closter. In this action, although plaintiff sought to set aside the contract, he sued only the Borough, deliberately omitting Miele as a defendant, allegedly because of a pending defamation suit brought by Miele against him. The garbage contract complaint alleged that the Borough's acceptance of a new contract with Miele "is injurious to the taxpayers of Closter . . . [because] the new contract forgives any funds or interest due the Borough from the prior contract." Plaintiff sought to have "the new contract, in that portion which forgives funds due the Borough on the prior contract" declared invalid and sought to require the Borough to recoup such funds.

Prior to agreeing to this settlement, Closter considered the alternatives of pursuing legal action to recoup from Miele approximately $42,000 in alleged overpayments, as well as performing solid waste disposal services itself. Closter rejected these alternatives on three grounds. First, after thorough study of the matter, including a public hearing at which time plaintiff's objections were considered, Closter decided that it would not be cost effective to conduct its own solid waste disposal services because of the costs associated with the acquisition of additional facilities, the purchase of necessary equipment and the prohibitive costs of hiring of personnel.

Second, when Closter had offered the new contract for bid in the preceding November, there were no bidders. A rebid failed to elicit any response. As Borough Councilman Farber explained:

So our alternative was to either negotiate with Mr. Miele, who was the only contractor that was interested, or to start buying our own facilities, our own equipment, to do the work ourselves. The Council has made a policy decision that it is better to negotiate with Mr. Miele - which they feel is a good contract - and anyway, I feel it's a good contract.

Third, given the uncertainty of prevailing in a recoupment action against Miele, the Borough decided that legal action was inadvisable.

At the outset, we must examine the background of the relationship that existed between plaintiff and Miele when plaintiff initiated this complaint to determine why plaintiff filed suit to set aside the garbage contract, failed to name Miele as a party to the action either at the outset or upon receipt of Closter's answer noting this deficiency and conducted lengthy and aggressive discovery against Miele and Closter, yet permitted his complaint to be dismissed with prejudice for failure to answer one Interrogatory.

As plaintiff has reiterated in numerous certifications and briefs, for three and one-half years he and Miele were embroiled in a libel action *fn1 filed by Miele against plaintiff as the result of articles plaintiff published in his "community newsletter," the Informed Citizen in Closter (I.C.I.C.).

After Miele initiated the libel suit, plaintiff filed numerous complaints and court actions implicating Miele, including the land transfer and garbage contract cases and a challenge to Miele's farmland assessment and demand for rollback taxes. *fn2 Additionally, plaintiff challenged a Department of Environmental Protection permit issued to Miele and lodged numerous complaints against him and his company with local, county, state and federal agencies for incidents dating back to mid-1988. *fn3 Finally, plaintiff's own certification attests to his enmity for Miele: "Not only is Miele the Borough Bully, who was found guilty of criminally assaulting Rosenblum and Hoppe (and hijacking their vehicle to subsequently claim a trespass), but a totalitarian Big Brother."

Plaintiff's putative purpose for commencing the garbage contract action and pursuing what he has consistently characterized as a "public interest" action was to compel the Borough to "recover an overcharge approximating $42,000 from Miele." When the case initially came on for trial on July 7, 1992, the trial Judge declared a mistrial because of plaintiff's failure to prepare his case. Despite the trial Judge's warning that plaintiff faced a difficult burden of proof, plaintiff vigorously continued to pursue the garbage contract action, engaging in extensive discovery with reference to both Closter and Miele for the next twenty months. *fn4 However, when plaintiff spent seven months opposing a trial court order requiring him to answer one Interrogatory propounded by Miele -- including filing at least three motions in the Law Division and six interlocutory motions in the Appellate Division, which were all denied -- the trial court sanctioned plaintiff's conduct. It also awarded Closter fees pursuant to R. 4:17-5(d), which are not the subject of this appeal.

As a justification for filing the law suit, plaintiff has asserted that Closter's decision to settle the overcharge dispute with Miele was detrimental to the interests of Borough taxpayers, but nonetheless he sued only Closter. The basis of plaintiff's action was a conclusory allegation of "chicanery and corruption between Miele and Closter officials, including the $42,000 overcharge by Miele on the garbage contract." Closter asserted in its answer that it had exercised its judgment pursuant to N.J.S.A. 59:2-3 and ...

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