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J.G. Ries & Sons, Inc. v. Spectraserv

March 29, 2006

J.G. RIES & SONS, INC., PLAINTIFF-APPELLANT,
v.
SPECTRASERV, INC., SANITARY WASTE CARRIER, INC., A & S TRANSPORTATION COMPANY, MODERN TRANSPORTATION COMPANY, XTRA LEASE, INC., XTRA CORPORATION, DEFENDANTS-RESPONDENTS, LINDEN ROSELLE SEWERAGE AUTHORITY AND CRUM & FORESTER INSURANCE COMPANY, DEFENDANTS. AND SPECTRASERV, INC., THIRD-PARTY PLAINTIFF-RESPONDENT,
v.
FRANK E. KEARNEY, FRANK E. KEARNEY & COMPANY, AND ROBERT J. CHITREN, THIRD-PARTY DEFENDANTS-APPELLANTS.



On appeal from Superior Court of New Jersey, Law Division, Hudson County, No. L-3192-04.

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

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Argued December 7, 2005

Before Judges Wefing, Wecker and Graves.

Plaintiff J.G. Ries & Sons, Inc. ("Ries") appeals, pursuant to leave granted, from a trial court order disqualifying the firm of Pearce Fleisig, LLC ("Pearce") from representing it in this matter. After reviewing the record in light of the contentions advanced on appeal, we reverse.

Ries owns property located at 65 Jacobus Avenue in Kearny. Defendant Spectraserv has its principal place of business on property owned by defendant Modern Transportation Company and located at 75 Jacobus Avenue. Spectraserv is in the business of receiving sewage sludge, processing it and then disposing of the resulting sludge cake. In June 2004, represented by Pearce, Ries filed suit against Spectraserv, Modern and certain of their related companies, seeking damages for the noxious odors and fumes Ries alleged were generated by Spectraserv in the course of its business operations and which Ries contended affected the use of its own property.*fn1 This lawsuit was apparently spurred, at least in part, by a tenant having vacated the property, citing those noxious odors and fumes as justification for terminating its lease. Ries joined that tenant, Xtra Lease, Inc., as a defendant in the Spectraserv litigation.

The area in question is in the portion of Kearny referred to generally as South Kearny. Trucking companies are one of the principal businesses in the area, some using their sites to maintain and operate freight terminals, some to park and store trailers. Approximately fifty of the businesses located in South Kearny banded together several years prior to the incidents giving rise to this appeal to form Lincoln North Development Corporation to advance and promote the business interests of its members and the area. Both Ries and Spectraserv are members of Lincoln North. The record before us does not include the date of Lincoln North's formation or its certificate of incorporation or bylaws.

Prior to November 2004, the South Kearny area was identified in Kearny's zoning ordinance as the South Kearny Manufacturing ("SKM") zone. In November 2004, Kearny amended its zoning ordinance and divided what had been the SKM zone into SKM-N and SKM-S zones. This amended ordinance included certain restrictions on the maintenance and operation of trucking terminals and the storage of trailers that had not been in the prior ordinance, and in December 2004, Lincoln North filed a prerogative writ action, challenging this zoning ordinance on behalf of its members. The Pearce firm, counsel to Ries in its suit against Spectraserv, represented Lincoln North in its challenge to the Kearny zoning ordinance.

In April 2005, Spectraserv filed a motion to bar Pearce from continuing as the attorney for Ries in its suit against Spectraserv. This appeal follows upon the trial court granting Spectraserv's motion.

On appeal, Ries contends that no conflict of interest exists between the Pearce firm representing it in its suit against Spectraserv, as well as representing Lincoln North in the challenge to the Kearny zoning ordinance. It asserts the authorities cited by the trial court do not support the extraordinary relief granted. Spectraserv, on the other hand, responds that a conflict of interest exists that requires the disqualification of the Pearce firm under RPC 1.7, that the firm should be disqualified because of its "aggressive litigation tactics" and that the firm should be disqualified because attorneys from the Pearce firm will be witnesses.

Before proceeding to an analysis of the issues on appeal, we note the standard governing our review of the trial court's order. Ries contends that our review is de novo and plenary, while Spectraserv frames its argument in terms of whether the trial court abused its discretion in granting the motion.

We are satisfied that Ries is correct in this regard. We view the matter as fundamentally a question of law and perceive no basis to distinguish our review in this appeal from that in any other appeal involving issues of law. Manalapan Realty, L.P. v. Twp. Comm. of the Twp. of Manalapan, 140 N.J. 366, 378 (1995); State v. Bruno, 323 N.J. Super. 322, 331-32 (App. Div. 1999) (noting that its review of a trial court order denying the State's motion to disqualify defendant's attorney was plenary, there being no dispute of fact). We agree with the analysis and approach adopted by the Third Circuit in United States v. Miller, 624 F.2d 1198 (3d Cir. 1980), in which the court considered the question of whether a conflict of interest existed to be a question of law. It noted that the issue of whether certain conduct violated a disciplinary rule was "a question of law, subject to plenary review." Id. at 1201.

I.

We turn first to the effect, if any, of Pearce representing Lincoln North, of which both Ries and Spectraserv are members, upon its ability to represent Ries in its suit against Spectraserv. The trial court, in its oral opinion, referred to two of the Rules of Professional Conduct ("RPCs"), RPC 1.7 and 1.13.

RPC 1.7(a) provides:

Except as provided in paragraph (b), a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A ...


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