On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-4020-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Payne and Baxter.
By leave granted, defendant Marie Carty (Marie)*fn1 appeals from a January 7, 2011 Law Division order that disqualified her attorney, Edwin R. Matthews, and his firm Bourne, Noll & Kenyon, from representing her in the present matter based upon the judge's conclusion that Matthews had a conflict of interest. We reverse.
The judge's conclusion that Matthews's disqualification was required arises from a matter having its genesis in 2004. The question before us is whether Matthews's representation of Henry Hammond in 2004 bars Matthews from representing Marie in 2010, in light of the fact that Hammond and Marie participated in a real estate transaction in 2004 during which Matthews represented Hammond. Hammond and Marie are co-defendants in the present matter.
In August 2004, Matthews was retained to represent Hammond, as well as Lauren Carty and Christopher Reid, who was Lauren's husband, in connection with their purchase of a residential property in Little Silver. The total purchase price was $555,000. Although all three applied for the $500,000 mortgage, the mortgage was issued solely in Hammond's name, because he was the only person qualified. Although the original contract purchasers were Hammond, Lauren and Reid, the title insurance company insisted that only Hammond take title to the property because he was the only person named on the mortgage. Hammond's purchase of the Little Silver property closed on September 15, 2004, with Matthews as his attorney.
At a hearing conducted on Hammond's motion to disqualify Matthews, Hammond testified that the only time he and Matthews met concerning the 2004 real estate transaction was at the closing that took place in Florham Park, at which Marie was also present. According to Hammond, he did not learn that he wouldbe the sole purchaser of the property until Marie told him so in the car on the way to Matthews's office. Matthews was not present in the car.
Hammond contradicted himself on the question of whether Marie repeated that information in Matthews's presence. Regardless of when he first learned that he would be the sole party on the mortgage, and whether Matthews was present during Hammond's discussion of the subject with Marie, Hammond does not contend that he provided any confidential information to Matthews during the real estate transaction involving the Little Silver property. Matthews did, however, review the closing documents with him, and acted as the settlement agent.
We now describe the relevant facts concerning the present litigation. In 1986, Marie served as the property manager for the Wellington Place Condominium Association (Association), an entity whose membership consists of condominium owners at One Wellington Place in Aberdeen. When Marie began her service as property manager, she was an employee of Wellington Place; however in 2000 or 2001, she opened her own property management firm known as Property Maintenance Associates, Inc. (PMA), through which she supplied property management services to the Association. While serving as the on-site property manager for the Association, her duties included collecting maintenance fee payments, hiring contractors and paying the bills submitted by contractors and vendors. In 2001 or 2002, Marie assigned to her daughter Lauren the responsibilities of on-site manager, at which time Lauren took over the duties previously performed by Marie.
Beginning in August 2006, contractors began contacting members of the Association's Board of Trustees regarding invoices they had submitted that had remained unpaid for a considerable period of time. In September 2006, the pool contractor notified a Board member that when he received checks from PMA in payment for services rendered, there were insufficient funds in the Wellington Place account to cover the amount of the checks.
Also in September 2006, an employee of Brown & Brown Insurance contacted Board member Artie Martino to report that the premises liability insurance issued by Brown & Brown to the Association was in danger of lapsing because the premium remained unpaid. Brown & Brown advised Martino that Lauren had provided various excuses for the lack of payment, ranging from problems with the mail, to the bank having made a wire transfer to the wrong account number.
Martino confronted Marie about these financial irregularities, directed her to attend the next Board meeting onSeptember 23, 2006 and to bring with her all of the financial records of the Association for the past year. At the Board meeting, neither ...