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Fraser v. Bovino

December 11, 1998

ROBERT FRASER, REALTY EXECUTIVES AND JAMES D. FRANCO, PLAINTIFFS-APPELLANTS/CROSS-RESPONDENTS,
v.
JAMES J. BOVINO, EDWARD ARATA, COVENTRY SQUARE, INC., A CORPORATION OF THE STATE OF NEW JERSEY, STEVEN BOSWELL AND BOSWELL ENGINEERING CO., DEFENDANTS-RESPONDENTS/CROSS-APPELLANTS, AND MICHAEL F. REHILL, ESQ., WILLIAMSON & REHILL, P.A., W. THOMAS WATKINSON, W. THOMAS WATKINSON, III, ENGINEERING AND PLANNING, P.C., NINO D. CARIDI, ESQ., MICHAEL DEMARRAIS, ESQ., DEMARRAIS & SCHANDLER, ESQS., BARRY SIROTA, ESQ., RICHARD J. ALLEN, ESQ., AND BOROUGH OF WESTWOOD, DEFENDANTS-RESPONDENTS, AND JAMES J. BOVINO AND COVENTRY SQUARE, INC., A CORPORATION OF THE STATE OF NEW JERSEY, THIRD-PARTY PLAINTIFFS,
v.
THE TRAVELERS INSURANCE CO., SUCCESSOR TO AETNA CASUALTY & SURETY CO., THIRD-PARTY DEFENDANTS. WILLIAM P. GELNAW AND DONALD F. GELNAW, PLAINTIFFS-APPELLANTS,
v.
JAMES J. BOVINO, EDWARD ARATA, COVENTRY SQUARE, INC., A CORPORATION OF THE STATE OF NEW JERSEY, STEVEN BOSWELL AND BOSWELL ENGINEERING CO., MICHAEL F. REHILL, ESQ., WILLIAMSON & REHILL, P.A., W. THOMAS WATKINSON, W. THOMAS WATKINSON, III, ENGINEERING AND PLANNING, P.C., RICHARD J. ALLEN, ESQ., ROBERT E. MARTINI, ESQ., MARTINI & LEBOW, ESQS., AND KEVIN G. BLESSING, ESQ., DEFENDANTS-RESPONDENTS, AND JAMES J. BOVINO AND COVENTRY SQUARE, INC., A CORPORATION OF THE STATE OF NEW JERSEY, THIRD-PARTY PLAINTIFFS,
v.
THE TRAVELERS INSURANCE CO., SUCCESSOR TO AETNA CASUALTY & SURETY CO., THIRD-PARTY DEFENDANTS.



Before Judges Long, Wefing and Carchman.

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

[9]    Argued: October 20, 1998

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

These are consolidated appeals and cross-appeals, pursuant to leave granted, from orders entered by the trial court granting summary judgment to certain defendants and denying it to others. The matters share a complex, interwoven procedural and factual background that must be set forth at some length to understand fully the basis for our Conclusions. As will be explained, we conclude that the trial court correctly granted summary judgment to those defendants who so moved but erred when it denied summary judgment to the cross-appellants.

Two related complaints, which will be referred to for ease of understanding as the Fraser matter and the Gelnaw matter, were filed independently. The Fraser matter has been pursued through two separate complaints, Fraser I and Fraser II. Defendants in the each action are, for the most part, identical. Plaintiffs in the Gelnaw matter and Fraser II have the same attorney.

I.

William P. Gelnaw and Donald F. Gelnaw (Gelnaw) owned approximately 8.7 acres of land in Westwood, New Jersey. On October 6, 1989, Gelnaw signed a contract to sell the property to David B. Dinallo and Donald Palumbo for $5.5 million. The contract was contingent upon the purchasers obtaining all necessary approvals to construct at least 157 condominium units on the property. It called for a closing date no later than September 22, 1991, and provided for certain non-refundable interim payments on account. It identified Realty Executives (Realty) as the broker in the transaction, and Gelnaw acknowledged the existence of a separate agreement to pay Realty a commission. The individual in Realty's office who principally handled this transaction was Robert Fraser, a licensed real estate salesman.

Dinallo and Palumbo organized a limited partnership known as Westwood Associates (Associates) to implement this project. Associates originally contacted defendant Boswell Engineering Co. to assist in the preparation of the various engineering plans and drawings required to obtain municipal approval. Boswell Engineering Co. assigned defendants Steven Boswell and Edward Arata to this project. (Unless otherwise indicated within this opinion, "Boswell" shall encompass Boswell Engineering Co. and Messrs. Boswell and Arata.)

Defendant James J. Bovino (Bovino) is a real estate developer. He owned property adjacent to the Gelnaw land and had earlier attempted unsuccessfully to buy the land himself. He objected to the proposed development.

Bovino has had substantial business dealings with Boswell in connection with his own development projects. Gelnaw and Fraser both alleged in their respective complaints that on the day before the plans were due Boswell withdrew from participation in Associates' project in response to Bovino's request. Plans were submitted under the name and seal of another engineer, defendant W. Thomas Watkinson, with whom Associates had had no prior contact. Such request must have occurred no later than February 8, 1990, the date upon which Associates filed its initial application for municipal approval.

Further, Bovino met with Fraser and Dinallo on February 26, 1990 at the offices of Boswell Engineering and offered the sum of $200,000 for Associates to drop the project; Dinallo and Fraser refused.

The Westwood Zoning Board of Adjustment held hearings on this application on July 3, August 7, August 16 and September 6, 1990.

On October 17, 1990, before final resolution of the municipal application, Fraser filed suit (Fraser I) against Bovino, Boswell and Michael F. Rehill. Defendant Rehill is a New Jersey attorney who resides in Westwood and who appeared before the Zoning Board of Adjustment to oppose the proposed condominium project. Fraser alleged in his complaint that he was a licensed real estate broker and that the actions of these defendants in opposing this development project tortiously interfered with the real estate commissions he expected to realize from the project.On November 7, 1990, four months after submission, the Westwood Zoning Board of Adjustment passed a resolution approving the condominium project. On January 10, 1991, defendant Coventry Square, Inc. (Coventry), a corporation of which Bovino is the principal, commenced an action in lieu of prerogative writs to challenge the municipal approval. Bovino's unsuccessful legal challenge spanned three years, through three courts. It resulted in the Supreme Court's decision in Coventry Square, Inc. v. Westwood Zoning Board of Adjustment, 138 N.J. 285 (1994).

In light of the Bovino litigation, Fraser I was placed on the inactive list. Before this occurred, however, Rehill successfully moved for summary judgment and an order to that effect was entered on December 3, 1990. Fraser sought to appeal to this court from that summary judgment, but we dismissed the appeal as interlocutory on July 19, 1991.

Coventry Square's challenge delayed the project, and Dinallo and Palumbo were unable to raise the additional funds required under their contract with Gelnaw. By letter dated February 21, 1991, Dinallo and Palumbo notified the Gelnaws that they were abandoning the project.

After the Supreme Court's decision in Coventry Square, Inc., supra, the trial court removed Fraser I from the inactive list. By that time, Bovino and Coventry had determined that Fraser, despite the allegations in the complaint to the contrary, was not a licensed real estate broker at the time of the Gelnaw contract with Dinallo and Palumbo. As a result, he was precluded under N.J.S.A. 45:15-3 from maintaining an action for real estate commissions. The trial court, after extensive argument and consideration, dismissed Fraser I under R. 4:6-4(b), concluding that it was "abusive of the court." The order of dismissal, entered December 20, 1996, made the earlier summary judgment granted to Rehill final. Fraser appealed to this court from the December 20, 1996 order but did not include within his notice of appeal that earlier summary judgment in favor of Rehill. We affirmed the dismissal under R. 4:6-4(b), and the Supreme Court denied certification. 152 N.J. 11 (1997).

On February 24, 1997, Fraser filed a second complaint (Fraser II) in which James D. Franco, a licensed real estate broker who had been a principal of Realty, joined as a plaintiff. This complaint was amended on March 5, 1997 and again on March 26, 1997. In addition to those defendants originally named in Fraser I, Fraser II included the following defendants: Williamson & Rehill (the law firm of defendant Michael F. Rehill), Coventry Square, Inc., W. Thomas Watkinson, Nino D. Caridi, Esq. (the attorney who filed the complaint in Fraser I), Michael DeMarrais, Esq. (the attorney who succeeded Mr. Caridi in Fraser I), Barry Sirota, Esq., ...


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