NOT FOR PUBLICATION WITHOUT THE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
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4915-14T2
BOROUGH OF WEST WILDWOOD,
Plaintiff-Appellant,
v.
HERBERT C. FREDERICK, PAUL J.
BALDINI, ESQ., and PAUL J.
BALDINI, P.A., and ON NOTICE
TO THE FOLLOWING INDISPENSABLE
PARTIES: DOROTHY TOMLIN, THE
COMMITTEE TO RECALL HERBERT C.
FREDERICK, JACQUELINE FERENTZ,
WILLIAM M. NULL and ROBERT W.
FELTWELL,
Defendants/Third-party
Plaintiffs-Respondents,
v.
MUNICIPAL EXCESS LIABILITY
JOINT INSURANCE FUND and
SCIBAL ASSOCIATES, INC.,
Third-Party Defendants.
____________________________________
Submitted October 6, 2016 – Decided July 14, 2017
Before Judges Lihotz and O'Connor.
On appeal from Superior Court of New Jersey,
Chancery Division, Cape May County, Docket
No. C-0057-13.
Jacobs & Barbone, P.A., attorneys for
appellant (Louis M. Barbone and YooNieh Ahn,
on the brief).
Goldenberg, Mackler, Sayegh, Mintz, Pfeffer,
Bonchi & Gill, attorneys for respondent
Herbert C. Frederick (Mark Pfeffer, on the
brief).
Paul J. Baldini, respondent pro se.
PER CURIAM
Plaintiff Borough of West Wildwood (municipality) appeals
from a June 10, 2015 General Equity Part order denying its and
granting defendants Herbert C. Frederick's and Paul J.
Baldini's, Esq., motions for summary judgment.1 We affirm.
We briefly recount the salient facts. The municipality is
organized under the Walsh Act commission form of government,
N.J.S.A. 40:70-1 to 40:76-27. In May 2008, Frederick was
elected as one of the municipality's three commissioners.
During his four-year term as commissioner, he also served as
mayor.
Soon after Frederick was elected, a complaint was filed
challenging the election results. Frederick and another
1
A provision in the order also granted summary judgment
dismissal to third-party defendants Municipal Excess Liability
Joint Insurance Fund and Scibal Associates, Inc. This provision
in the order was not appealed.
2 A-4915-14T2
commissioner, who also won the election, retained Baldini to
defend them. That matter was withdrawn by the plaintiffs soon
after the trial commenced in June 2008. Around this time,
Baldini was appointed as the municipality's attorney.
In November 2009, the municipal clerk, defendant Dorothy
Tomlin, determined there was a sufficient number of signatures
on recall petitions to recall Frederick's election. Tomlin
scheduled a recall election for early 2010. In December 2009,
Frederick filed a three-count complaint against Tomlin, the
municipality, and others. In count one, Frederick primarily
alleged Tomlin committed multiple violations of the Uniform
Recall Election Law, N.J.S.A. 19:27A-1 to -18, in her capacity
as a recall election official. See N.J.S.A. 19:27A-3.
These alleged violations included, but were not limited to,
improperly certifying filed notices of intention to recall
Frederick; validating recall petitions that contained the
signatures of unregistered and nonresident voters; failing to
timely serve Frederick with copies of the certified filed
petitions; and affording Frederick only five days to challenge
Tomlin's certification. Among other things, Frederick sought
nullification of the recall petitions, cancellation of the
recall election, compensatory damages, and counsel fees.
3 A-4915-14T2
In count two of his complaint, Frederick alleged defendants
violated his civil rights under the New Jersey Civil Rights Act,
N.J.S.A. 10:6-1 to -2, specifically, N.J.S.A. 10:6-2(c). In
count three, he contended defendants engaged in a civil
conspiracy. Before trial, count one was bifurcated from the
other counts. In February 2010, Frederick prevailed at trial on
count one, and the court entered judgment nullifying the recall
petitions and cancelling the recall election. The court
reserved decision on the remaining relief Frederick sought in
count one until the remaining counts were adjudicated.
In December 2010, the entire matter settled before a trial
commenced on counts two and three. Third-party defendant
Municipal Excess Liability Joint Insurance Fund (MELJIF), which
provided insurance coverage for the municipality, negotiated a
settlement with Frederick through his attorney. In exchange for
MELJIF paying $30,000 to his attorney for his counsel fees,
Frederick agreed to dismiss his entire complaint with prejudice.2
MELJIF also agreed to pay $25,000 toward Tomlin's counsel fees.
Significantly, in addition, MELJIF agreed it would not seek
any contribution from the municipality toward the settlement,
2
Although we could not locate in the record the precise amount
of legal fees Frederick incurred as a result of litigating the
first count, at the time the court rendered its decision on this
count in February 2010, his attorney sent an email to MELJIF's
agent, third-party defendant Scibal Associates, Inc., stating
Frederick's attorney's fees were "approaching $30K."
4 A-4915-14T2
including having to make any copayment or contribution from its
self-insured reserve. In other words, after Frederick prevailed
on the first count alleging wrongful acts on the part of its
municipal clerk, a count Frederick had little choice but to
prosecute expeditiously, the municipality was spared from having
to contribute any of its own funds to resolve the entire matter.
In May 2012, MELJIF inadvertently billed the municipality
for a portion of the amount MELJIF paid to settle the matter.
By September 2012, MELJIF discovered its error and retracted the
bill. In November 2013, the municipality filed the within
matter against Frederick, Baldini, and Paul J. Baldini, P.A.,
seeking various relief. Among other things, the municipality
sought: (1) the rescission and nullification of the settlement
agreement on the ground the board of commissioners never
reviewed or ratified the agreement; (2) a declaration Frederick
and Baldini engaged in official misconduct; (3) a declaration
the settlement agreement was a nullity because it was entered in
violation of the law and public policy; and (4) Frederick and
Baldini be compelled to return the settlement monies paid on
their behalf. Significantly, although the municipality sought
the agreement be rescinded as to Frederick and Baldini, it did
not similarly request the agreement be rescinded as to Tomlin.
5 A-4915-14T2
After the close of discovery, plaintiff's motion for
summary judgment was denied and defendants' cross-motion for
summary judgment dismissal was granted. For the reasons set
forth in his forty-six page written opinion, Judge Raymond A.
Batten either denied or determined he could not, as a matter of
law, rule upon the relief plaintiff sought in its complaint, and
dismissed it with prejudice.
On appeal, plaintiff contends the trial court erred because
it failed to find the agreement a nullity at inception and,
further, that the agreement and payments made pursuant to the
agreement were tainted by "blatant" acts of official misconduct
committed by Frederick and Baldini. We reject these arguments,
and affirm for substantially the same reasons as set forth in
Judge Batten's thorough and well-reasoned written opinion. See
R. 2:11-3(e)(1)(A).
Affirmed.
6 A-4915-14T2
BOROUGH OF WEST WILDWOOD VS. HERBERT C. FREDERICK,ET AL. VS. MUNICIPAL EXCESS LIABILITY JOINT INSURANCE FUND (C-0057-13, CAPE MAY COUNTY AND STATEWIDE)
Combined Opinion