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Cedar Knolls Estates, L.L.C. v. Analan, Inc.

Superior Court of New Jersey, Appellate Division

July 23, 2013

CEDAR KNOLLS ESTATES, L.L.C., a New Jersey Limited Liability Company, and STANLEY T. OLMAND, an individual, Plaintiffs,
v.
ANALAN, INC., a New Jersey Corporation, and ALLAN FIORE, an individual, Defendants-Appellants, and ONE TWELVE CORPORATION, a New Jersey Corporation, Defendant-Respondent, and A. FIORE SERVICES, INC., a New Jersey Corporation, ANDREW FIORE, an individual, C & H ENVIRONMENTAL, INC., a New Jersey Limited Liability Company, and MARY R. ESPOSITO, an individual, Defendants, and ANALAN, INC., a New Jersey Corporation, ALLAN FIORE, A. FIORE SERVICES, INC., and ANDREW FIORE, Third-Party Plaintiffs,
v.
GAROFOLO & PRYOR, P.A., GAROFOLO ZIERAK & O'NEILL, P.A., ROBERT C. GAROFOLO, Third-Party Defendants.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued May 13, 2013

On appeal from the Superior Court of New Jersey, Law Division, Morris County, Docket No. L-2790-05.

Edward J. Gilhooly argued the cause for appellants.

Craig S. Provorny argued the cause for respondent One Twelve Corporation (Herold Law, P.A., attorneys; Mr. Provorny, on the brief).

Before Judges Graves and Guadagno.

PER CURIAM

Analan, Inc. and Allan Fiore, appeal from a judgment ordering them to pay attorneys' fees and costs incurred by respondent One Twelve Corporation. When the parties were last before us on the same issue, we remanded the matter to the trial court "to determine the amount of attorneys' fees and costs that One Twelve is entitled to receive." Cedar Knolls Estates, LLC v. Analan, Inc., No. A-5754-09 (App. Div. Dec. 16, 2011) (slip op. at 10).

We repeat the essential facts from our prior opinion:

In 1996, One Twelve sued Fiore, an adjacent property owner, alleging that Fiore had contaminated property owned by One Twelve. That lawsuit was resolved in 1999 when Analan (a corporation owned by Fiore and his brother) agreed to purchase One Twelve's property for $125, 000; Analan and Fiore agreed to be solely responsible for the cost of remediating the contamination; and Analan and Fiore further agreed to "defend, indemnify and hold harmless [One Twelve] from and against all obligations, liabilities, damages, costs, fines, penalties, losses and expenses, including reasonable attorney fees and expert witness fees, under, in connection with, arising from or relating to Environmental Liabilities."
In 2001, Analan sold the property to Cedar Knolls, and in 2005, Cedar Knolls filed the present action against Analan, Fiore, and One Twelve to recover the costs incurred by Cedar Knolls to remediate the contaminated property. On November 22, 2005, Herold and Haines, P.A., filed an answer and counterclaim on behalf of One Twelve together with a cross-claim against Analan and Fiore alleging they were obligated to defend and indemnify One Twelve, and to hold it harmless for any and all environmental liabilities. Pursuant to a consent order dated March 9, 2006, Analan and Fiore "agreed to defend, indemnify and hold harmless One Twelve in the Litigation." Consequently, One Twelve's cross-claim was dismissed subject to reinstatement in the event that Analan or Fiore failed to comply with the terms of the consent order.
Counsel for Analan and Fiore represented One Twelve for more than two years (from February 2006 until August 2008) before claiming a conflict of interest. On August 20, 2008, Edward Gilhooly filed a substitution of attorney stating that he would represent only Analan and Fiore, and Herold and Haines resumed the defense of One Twelve. In April 2009, Herold Law, P.A., substituted in for Herold and Haines.
One Twelve and Cedar Knolls eventually agreed to release their claims against each other. One Twelve sought reimbursement for its legal fees and costs from Analan and Fiore. Thereafter, on August 12, 2009, One Twelve filed a motion to enforce litigant's rights. Included with One Twelve's motion was a copy of a "Client Ledger Report" from Herold Law showing that it had been ...

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