Sadej v. Arturi
| Decision Date | 07 May 2019 |
| Docket Number | DOCKET NO. A-1424-16T1 |
| Parties | JESSE D. SADEJ, Plaintiff, and CARLA SADEJ, Plaintiff-Appellant, v. ANTHONY X. ARTURI, JR., ESQ., BARRY S. GUAGLARDI, ESQ., and ARTURI, D'ARGENIO, GUAGLARDI & MELITI, LLP, Defendants-Respondents. |
| Court | New Jersey Superior Court — Appellate Division |
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
Before Judges Simonelli, Whipple and Firko.
On appeal from Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-2077-12.
Mitchell B. Seidman argued the cause for appellant (Seidman & Pincus, LLC, attorneys; Mitchell B. Seidman and Andrew J. Pincus, on the briefs).
Walter F. Kawalec, III, argued the cause for respondents (Marshall Dennehey Warner Coleman and Goggin, LLC, attorneys; Walter F. Kawalec, III, and Howard B. Mankoff, on the brief).
In this legal malpractice matter, plaintiff Carla Sadej appeals from various orders and a final judgment entered after a jury verdict in favor of defendants Barry S. Guaglardi, Esq. and Arturi, D'Argenio, Guaglardi & Meliti, LLP (collectively defendants). We affirm.
In August 2001, plaintiff and her husband, Jesse Sadej (Sadej),1 filed five pages of plans with the Borough of Seaside Park (Borough) outlining the scope of the improvements they sought to make on their eight-bedroom Victorian home. The improvements included expanding the house and existing detached garage, connecting the expanded garage to the house, and constructing an in-ground pool.
In August 2001, Borough zoning official Michael Marcinczyk issued a zoning approval notice for the improvements, and Borough Construction Code official James Erdman reviewed and approved the plans. Erdman initialed and dated each of the five pages of the plans, wrote the words "Inspector Job Copy" in red ink, attached the Building Department's red sticker on the first page of one set of plans, and gave that set of plans to Sadej to be kept on site. Erdman retained a copy of the plans for the Borough and issued a construction permit. Thereafter, the Sadejs obtained a mortgage to pay for the improvements and commenced construction in accordance with the approved plans.
Approximately eight months later, on April 17, 2002, Erdman issued a stop work order to the Sadejs for "lost zoning approval." At that point, the Sadejs had completed approximately eighty percent of the improvements at a cost of $268,219. The Sadejs did not stop the construction, and on April 18, 2002, the police escorted the contractors off the site.
On May 2, 2002, Borough Administrator Joseph J. Delaney, Jr. met with Sadej in Delaney's office. Delaney told Sadej that Erdman issued the stop work order because the construction did not conform to the plans the Borough had on file. Delaney also explained that the Borough's land use policy did not permit connection of a detached garage to the main dwelling because the Borough was trying to discourage having renters in garages.
It is undisputed that the plans the Borough had on file differed from the set of plans Erdman gave to Sadej. The second, third, fourth, and fifth pages of the plan the Borough had on file did not have Erdman's initials and date notations on them, and the fifth page contained different wording and a different drawing regarding the expansion of the garage, connection of the garage to the house, and rear yard setback. Sadej told plaintiff that the Borough had "fraudulently altered" the plans and Delaney had threatened Sadej by stating that a contractor had gone bankrupt by challenging the Borough in litigation. The individual who altered the plans was not identified, and it was not determined whether the alteration was an intentional fraud or an innocent mistake.
In any event, on May 8, 2002, the Borough filed a verified complaint and order to show cause in the Chancery Division seeking to restrain the Sadejs from any further construction, compel them to dismantle the improvements already made without valid permits or approvals, and pay the Borough's attorney's fees and costs. Relying on the altered plans, the Borough alleged that the Sadejs had "substantially increased the scope, intensity, use and character" of the improvements Further, Erdman alleged in a supporting certification that the Sadejs had "substantially deviated from the plans submitted as part of the original construction permit." Erdman attached a copy of the altered plans, but not the original plans, to his certification.
On May 9, 2002, the court issued an order temporarily restraining the Sadejs from any further construction. That same day, Sadej sent a letter to Delaney, the Borough mayor and council, and the police chief alleging his plans had been fraudulently altered to support the Borough's position that the Sadejs' construction activities constituted building code and zoning violations.
The Sadejs retained defendants to represent them in the underlying action. In a May 16, 2002 order, the court granted the Sadejs' application to lift the temporary restraints, but advised them "that any continued construction on the site shall proceed at [their] peril."
Approximately one year later, on May 28, 2003, defendants, on the Sadejs' behalf, filed an answer to the Borough's complaint and asserted separate defenses, including promissory and equitable estoppel. The Sadejs also asserted a counterclaim against the Borough for declaratory judgment, promissory estoppel/detrimental reliance and fraud. Defendants did not file a notice of tort claim with the Borough pursuant to the New Jersey Tort Claims Act, N.J.S.A. 59:1-1 to 12-3. The Borough filed an answer to the counterclaim and asserted separate defenses, including the two-year statute of limitations (SOL) and the Sadejs' failure to file a notice of tort claim.
On October 3, 2003, the Sadejs filed an amended answer, affirmative defenses, and an amended counterclaim reasserting claims against the Borough for declaratory judgment and promissory estoppel/detrimental reliance, and adding a claim under 42 U.S.C. § 1983 for the deprivation of their property rights. The Sadejs did not reassert a fraud claim.
In three separate May 10, 2004 orders, the court granted the Sadejs' motion for partial summary judgment, finding the improvements did not violate the Borough's zoning ordinance regarding building height, rear yard setback, and side yard setback. However, the judge also granted the Borough's motion for partial summary judgment, finding the improvements violated the building coverage zoning ordinance - a violation the Borough did not assert in its complaint. The court found the building, which it determined included the existing attached porch, violated the maximum allowable building coverage. The court ordered the building coverage zoning violation to proceed to trial along with the Sadejs' separate defenses and counterclaim.
On May 13, 2004, five days after the SOL expired, the Sadejs filed a second amended counterclaim against the Borough and a third-party complaint against the Borough's mayor and council, Erdman, Marcinczyk, and Delaney, both individually and as municipal officials, for declaratory judgment, estoppel, violation of 42 U.S.C. § 1983, fraud, malicious prosecution, and malicious abuse of process.
The Borough and municipal officials filed a motion for summary judgment and to dismiss the second amended counterclaim and third-party complaint based on the SOL and the Sadejs' failure to file a notice of tort claim. Thereafter, on July 9, 2004, the Sadejs filed a notice of tort claim with the Borough.
The case was transferred to the Law Division, where the court granted the motion and dismissed the second amended counterclaim and third-party complaint with prejudice. The court found the asserted causes of action were barred by the two-year SOL because they accrued prior to May 9, 2002, the date of both Sadej's letter to Delaney, and the Borough mayor, council and police chief and the date the Chancery court issued the restraining order. The court also found the Sadejs failed to timely file a notice of tort claim with the Borough.
The court subsequently denied the Sadejs' motion for reconsideration making the additional finding that the Sadejs failed to establish a prima facie case of malicious prosecution. The court determined the only remaining issue for trial was whether the Borough was estopped from enforcing the building coverage zoning violation.
The Sadejs subsequently moved for summary judgment, arguing the Borough was estopped from enforcing the building coverage zoning violation because they had, in good faith, relied on the building permit and zoning approvals issued by the Borough in making the improvements. The court granted the motion and dismissed the Borough's complaint. The court found the Borough was estopped from enforcing the building coverage zoning violation in light of the court's earlier ruling permitting the Sadejs to make the improvements to the garage as a pre-existing nonconforming use. The court explained that the Borough was estopped from arguing that the Sadejs had to remove the existing porch because "[the Borough], in essence, permitted [the Sadejs] to build a garage which caused the [building] coverage problem." Thus, the court ordered the Borough to immediately reissue the building permit and zoning approvals, and authorized the Sadejs to complete the improvements without any further permits or approvals from the Borough.
The Sadejs filed a motion to for frivolous...
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