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THE LAW OFFICES OF GOLD, ALBANESE, BARLETTI & VELAZQUEZ v. JERSEY CITY MUNICIPAL UTILITIES AUTHORITY

December 1, 2010

THE LAW OFFICES OF GOLD, ALBANESE, BARLETTI & VELAZQUEZ, PLAINTIFF-APPELLANT,
v.
JERSEY CITY MUNICIPAL UTILITIES AUTHORITY, ITS AGENTS, SERVANTS, AND/OR EMPLOYEES, EXECUTIVE DIRECTOR THOMAS KANE, CHAIRMAN HOWARD JACKSON, COMMISSIONER MARGARET DOYLE, COMMISSIONER GEORGE KELLY, COMMISSIONER KATHLEEN HARTYE, COMMISSIONER EILEEN GAUGHAN, FIRST ALTERNATE COMMISSIONER WILLIAM MACCHI, SECOND ALTERNATE COMMISSIONER JANET GAITA, INDIVIDUALLY AND IN THEIR OFFICIAL CAPACITIES AS COMMISSIONERS OF THE JERSEY CITY MUNICIPAL UTILITY AUTHORITY, DEFENDANTS-RESPONDENTS.



On appeal from Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-5270-05.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted November 3, 2010 - Decided

Before Judges Parrillo and Espinosa.

The law firm of Gold, Albanese, Barletti & Velazquez (Gold or plaintiff) appeals from a Law Division order denying its application for attorney's fees associated with its litigation against defendant Jersey City Municipal Utilities Authority (JCMUA) seeking payment of outstanding bills for legal services. We affirm.

This is the third time this dispute over legal fees between Gold and the JCMUA has come before this court. The salient facts were briefly summarized in our recent unpublished opinion, Law Offices of Gold, Albanese, Barletti & Velazquez v. Jersey City Municipal Utilities Authority, Docket No. A-5849-07 (App. Div. July 24, 2009) (Gold II), certif. denied, 200 N.J. 548 (2009):

In short, the dispute arises from two agreements for the performance of legal services by Gold that were reached in June 2004. The Authority authorized the retention of Gold by resolution. Each agreement contained a provision that acknowledged that the parties were unable to "anticipate the amount of legal services that may be required under [the] Agreement." A pre-approved amount of fees was allocated to each agreement with a total pre-approved amount of $115,000. [slip op. at 2.]

Gold filed a complaint against the JCMUA on October 20, 2005, for unpaid legal fees in the amount of $162,551.53, representing $64,213.55 due on the balance of the professional services contract*fn1 executed pursuant to the Local Public Contracts Law, N.J.S.A. 40A:11-1 to -51, and $98,337.98 in excess of the pre-approved amount of fees under the agreement. On summary judgment, the Law Division found the JCMUA was obligated to pay only $64,213.55. On appeal, we reversed and remanded for further proceedings, including discovery to determine the proper amount Gold was entitled to recover. Law Offices of Gold, Albanese, Barletti & Velazquez v. Jersey City Mun. Utils. Auth., Docket No. A-0875-06 (App. Div. Mar. 13, 2008) (slip op. at 9) (Gold I).

Following a bench trial, the Law Division entered judgment in favor of Gold for the $98,537.98 sum in dispute and, in addition, for $74,797.82 in counsel fees pursuant to N.J.S.A. 59:9-5. On appeal, we affirmed the former award on unjust enrichment grounds, but reversed and remanded for a "full and fair consideration of plaintiff's application for attorney's fees pursuant to N.J.S.A. 59:9-5, consistent with the applicable principles set forth in Furey v. County of Ocean, 287 N.J.

Super. 42, 46 (App. Div.), certif. denied, 144 N.J. 379 (1996)." Gold II, supra, slip op. at 7. On remand, the Law Division judge denied Gold's application for attorneys' fees, finding no entitlement "under N.J.S.A. 59:9-5 or any other statute or law":

I specifically find that N.J.S.A. 59:9-5 is not applicable to this matter because N.J.S.A. 59:1-4 and relevant case law provide that claims against public entities that sound in contract are not governed by the New Jersey Tort Claims Act, N.J.S.A. 59:1-1, et seq. N.J.S.A. 59:1-4 provides that: "[n]othing in this act shall affect liability based on contract or the right to obtain relief other than damages against the public entity or its employees." To consider Plaintiff's application for counsel fees pursuant to N.J.S.A. 59:9-5, when this statute does not govern the instant matter, would be inconsistent with the holding in Furey since doing so would prove inconsistent with the statute's purpose and the Legislature's intent that the awarding of such fees serve the public interest.

Here, the instant matter is not based upon negligence, loss or destruction of property or any other type of "tort liability." This is a case for the collection of legal fees from a former public entity client for legal services performed by Plaintiff, and this dispute sounds clearly in contract. For the foregoing reasons, I find that the Tort Claims Act does not govern this case and N.J.S.A. 59:9-5 is not applicable.

I further find that no other statute or law would provide for the granting of attorney's fees to Plaintiff. Rule 4:42-9 sets forth limited actions in which an award of attorney's fees are permissible, but the ...


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