Unpublished Opinions for the Week of June 26, 2017

07-2-3508 O’Malley v. Neary, N.J. Super. App. Div. (per curiam) (12 pp.) Appellants were retained by respondent to represent him in a federal criminal prosecution; separate representations were executed for investigatory services and appeals regarding the same prosecution. Respondent subsequently sued and settled with the second firm for breach of contract. Following settlement, respondent sued appellant alleging breach of contract and breach of the duty of good faith and fair dealing. Appellant moved for, and was denied, dismissal arguing respondent’s failure to name him in the first suit barred the instant action under the entire controversy doctrine. On appeal, the court affirmed finding insufficient proofs to warrant dismissal pursuant to the entire controversy doctrine. The court noted the parameters of Rule 4:5-1(b)(2) mandated that, with the initial pleading, each party submit a certification advising the court if any other action was pending or contemplated that related to the controversy before the court. Here, at this early stage of litigation, the court was unable to determine if respondent’s failure to notify appellant of being a potential party was inexcusable under Rule 4:5-1(b)(2). Accordingly, the court affirmed denial of dismissal as it was unable to determine whether failure to comply with the Rule’s notice requirement was inexcusable or caused substantial prejudice.

07-2-3521 Ciaglia v. West Long Branch Zoning Bd. of Adjustment, N.J. Super. App. Div. (per curiam) (12 pp.) Following a jury trial awarding just compensation to respondent in his eminent domain action, respondent submitted a revised motion in support of counsel fees. Appellant objected arguing that the motion was untimely and an award of counsel fees was not mandatory, but discretionary under N.J.S.A. 20:3-26(c). In response, respondent contended the twenty-day timeframe set forth in Rule 4:49-2 was inapplicable as the final judgment order anticipated that the court would retain jurisdiction to hear his motion. In its decision to award fees, the trial court noted that N.J.S.A. 20:3-26(c) mandated the award of counsel fees, that the application was timely when viewed through the clear intention of the parties, and the fees sought were reasonable. On appeal, the court affirmed holding the trial court’s order stated that it was “a Final Judgment as to all issues, except that the [respondent] may file a timely motion for . . . fees and expenses.” The order further recognized a decision had not been made on whether “such a motion should or should not be granted.” Moreover, the court noted the same judge who issued the “Order for Final Judgment” also presided over the application for counsel fees and was, therefore, in a position to understand the intention between the parties at the time of the order. Finally, the court affirmed holding the trial court determined the reasonableness of the fees based on the record and detailed analysis.