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Kress v. Villa

December 04, 2000

ANTHONY KRESS, JOHN BRUNO AND BRUNO & FERRARO, PLAINTIFFS-APPELLANTS,
v.
PETER LA VILLA, INDIVIDUALLY AND IN HIS CAPACITY AS A MEMBER OF THE TOWN COUNCIL OF THE TOWN OF GUTTENBERG, WILLIAM O'DONNELL, INDIVIDUALLY AND IN HIS CAPACITY AS MAYOR OF THE TOWN OF GUTTENBERG, AND TOWN OF GUTTENBERG, DEFENDANTS-RESPONDENTS, AND NICHOLAS CICCO, DEFENDANT-APPELLANT, VINCENT TABBACHINO, DEFENDANT.



Before Judges Petrella, Newman and Braithwaite.

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

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued October 16, 2000

On appeal from the Superior Court of New Jersey, Law Division, Civil Part, Hudson County.

Plaintiffs Anthony Kress, John Bruno and Bruno & Ferraro appeal from a summary judgment dismissing their joint claims seeking $785,768.85 for legal services rendered to defendants Nicholas Cicco ("Cicco") and Vincent Tabbachino ("Tabbachino") in defending them against a federal indictment that charged, inter alia, mail fraud and "corrupt solicitation of political services to influence the distribution of municipal jobs in violation of 18 U.S.C.A. § 666(a)(1)(B)." U.S. v. Cicco, 10 F.3d 980, 981 (3d Cir. 1995). The charges arose during Cicco's tenure as the mayor of defendant Town of Guttenberg (the "Town") and Tabbachino's tenure as a member of the Town council. Plaintiffs sought payment of the fees from the Town.

Plaintiff Bruno sought, as a partner in the firm Bruno & Ferraro, $548,871.97 for representing Cicco. Plaintiff Kress sought $236,896.88 for representing Tabbachino. Plaintiffs also sued defendant Peter La Villa ("La Villa"), individually, and in his capacity as a member of the Town council when plaintiffs' claim for fees was denied by the Town. In addition, plaintiffs sued defendant William O'Donnell ("O'Donnell"), individually, and in his capacity as mayor when plaintiffs' claim for fees was denied by the Town.

Cicco also appeals from a summary judgment dismissing his cross- claim against La Villa, O'Donnell and the Town, in which Cicco sought payment for his legal fees owed to plaintiff Bruno. Tabbachino filed for bankruptcy prior to answering plaintiffs' complaint. He obtained a discharge of his debt for legal fees and plaintiff Kress dismissed his claim as to Tabbachino.

The relevant facts giving rise to these appeals are as follows. The Town employed special police officers who augmented the manpower of the regular police force. These special officers worked approximately fifteen hours per week and received hourly wages and medical benefits from the Town. In 1988, Michael Postorino ("Postorino") and Francisco Marrero ("Marrero") were special police officers.

In November 1988, shortly after the municipal elections in the Town, Postorino and Marrero were each told that there would be no more opportunities to work as special police officers until they spoke with Cicco. At a meeting with Marrero, Cicco told him that members of the council were upset with Marrero because of his failure to actively support the Town's Democratic party. Postorino was made to understand that he was similarly subject to the same criticism.

Thereafter, Marrero and Postorino conferred with a Republican political ally who arranged for the officers to meet with the Hudson County Prosecutor. Following that meeting, Postorino and Marrero agreed to tape record conversations with Cicco and Tabbachino. The transcript of the tape recordings revealed that Postorino and Marrero were not assigned work for three reasons: municipal cutbacks, their lack of support of the Democrats in the November 1988 election, and a report that Postorino had threatened a Democratic campaign worker. Postorino and Marrero were not reappointed as special police officers in January 1989.

Thereafter, the federal government obtained a twelve-count indictment against Tabbachino and Cicco. The gravamen of the indictment was that Marrero and Postorino were not reappointed as special police officers because they refused to perform political services for Cicco and Tabbachino as a condition of their employment.

Following indictment, Cicco retained Bruno to represent him and executed a written retainer agreement. Tabbachino retained Kress. Plaintiffs, by letters dated August 7, 1989, advised the Town of their representation. Essentially, the letters stated that, at the conclusion of the federal case, Cicco and Tabbachino intended to seek reimbursement for their legal fees and costs in defending against the federal indictment. The Town did not respond to plaintiffs' letters. The Town's failure to respond was treated by plaintiffs as acceptance by the Town of the terms contained in the letters. Moreover, plaintiffs contend that on September 13, 1989, the Town council held a meeting which plaintiffs attended and were given assurances and "what they reasonably believed to be an absolute commitment that the Town would pay their fees, subject to the prohibitions of law." Plaintiffs recognized that if Cicco and Tabbachino were convicted, the Town would not pay the legal fees.

The resolution of the federal indictment was the subject of two published opinions of the Third Circuit, U.S. v. Cicco, 938 F.2d 441 (3d Cir. 1991) ("Cicco I") and U.S. v. Cicco, 10 F.3d 980 (3d Cir. 1993) ("Cicco II"). Cicco and Tabbachino went to trial before a jury in the fall of 1989. In Cicco I, the Third Circuit held that the convictions of 18 U.S.C.A. § 666, an anti-bribery statute, did not apply but 18 U.S.C.A. § 601, another anti-bribery statute, clearly applied. Cicco I, 938 F.2d at 446. The result of this ruling was that Cicco and Tabbachino were guilty only of violations of 18 U.S.C.A. § 601. The Third Circuit remanded the matter to the district court to impose sentence.

Following the remand, Cicco and Tabbachino were sentenced. They appealed, resulting in Cicco II. On appeal, Cicco and Tabbachino asserted that the trial evidence was insufficient to support their convictions. Cicco II, supra, 10 F.3d at 981. Although the court found this question to be a "close call," id. at 985, the court ultimately ruled that "the evidence indicates that defendants' primary motivation in removing Marrero and Postorino from the [special police officers unit] . . . was in retaliation for their past failure to help out in the November 1988 election campaign." Id. at 986. The court then reversed the convictions, reasoning that "[u]nder the provisions of § 601, we do not punish the desire to extract political services if in fact the attempt to extract such services in the future is not made through a threat to terminate present employment or as a condition of future employment." Ibid.

Following the holding in Cicco II, plaintiffs sought payment of their legal fees from the Town. The Town refused to pay and plaintiffs commenced this litigation to compel payment. Plaintiffs sought payment on the grounds of breach of contract, promissory estoppel and common-law indemnification. Cicco filed a cross-claim to compel payment of his fees, essentially on the same grounds as plaintiffs. Following the filing of answers and defenses by all defendants except Tabbachino, the Town moved for summary judgment. The Town contended that it had not entered into any contract with plaintiffs, and therefore had not breached any contract. Further, the Town asserted that the New Jersey Constitution ...


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