Opinion
A-2174-20
12-23-2022
CESAR SABINO and LOURDES JAIME, Plaintiffs, v. WEST NEW YORK BOARD OF EDUCATION, JOHN FAUTA, and CLARA HERRERA, Defendants-Respondents/ Cross-Appellants, and JULIO MOREJON, Plaintiff-Appellant/ Cross-Respondent, and TOWNSHIP OF WEST NEW YORK, Defendant-Respondent.
Thomas M. Rogers and Peter C. LaGreca argued the cause for appellant/cross-respondent Julio Morejon (Caruso Smith Picini, PC, attorneys; Thomas M. Rogers, of counsel and on the briefs). Roshan D. Shah argued the cause for respondents/cross-appellants West New York Board of Education, John Fauta, and Clara Herrera (Anderson &Shah, LLC, attorneys; Roshan D. Shah, of counsel and on the briefs; Erin Donegan, on the briefs). Matthew R. Tavares argued the cause for respondent Township of West New York (Rainone Coughlin Minchello, LLC, attorneys; Matthew R. Tavares, of counsel and on the brief).
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.
Argued December 19, 2022
On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-0583-18.
Thomas M. Rogers and Peter C. LaGreca argued the cause for appellant/cross-respondent Julio Morejon (Caruso Smith Picini, PC, attorneys; Thomas M. Rogers, of counsel and on the briefs).
Roshan D. Shah argued the cause for respondents/cross-appellants West New York Board of Education, John Fauta, and Clara Herrera (Anderson &Shah, LLC, attorneys; Roshan D. Shah, of counsel and on the briefs; Erin Donegan, on the briefs).
Matthew R. Tavares argued the cause for respondent Township of West New York (Rainone Coughlin Minchello, LLC, attorneys; Matthew R. Tavares, of counsel and on the brief).
Before Judges Haas and Mitterhoff.
PER CURIAM
Plaintiff Julio Morejon appeals from the Law Division's February 24, 2021 order granting summary judgment to defendants West New York Board of Education, John Fauta, and Clara Herrera (collectively Board defendants), and defendant Township of West New York (Town). In so ruling, the court dismissed plaintiff's claims that: (1) the Board defendants breached his employment contract by terminating him as the Board's attorney before his term expired; (2) the Town violated the New Jersey Civil Rights Act (NJCRA), N.J.S.A. 10:6-2 by passing a resolution authorizing the filing of an ethics complaint against him; and (3) all defendants violated N.J.S.A. 2C:41 -1(c) of New Jersey's Racketeer Influenced and Corrupt Organization Act (NJRICO) by engaging and conspiring to engage in a pattern of racketeering intended to retaliate against and silence him. The Board defendants filed a cross-appeal challenging the court's August 14, 2018 order denying their motion to dismiss and its January 2, 2019 order denying their motion for reconsideration. For the reasons that follow, we affirm the court's February 24, 2021 order granting defendants' motions for summary judgment and dismissing all of plaintiff's claims against them. In light of that decision, we do not address the Board defendants' cross-appeal.
I.
The procedural history and material facts of this case are fully set forth in the trial court's sixty-page written decision. However, we begin by summarizing them here.
Plaintiffs position as Town attorney
Plaintiff has been practicing law in New Jersey since 1986. He currently serves as an Administrative Law Judge (ALJ) in the Office of Administrative Law (OAL).
In 2010, Felix Roque was a candidate who was campaigning to unseat the Town's mayor, Silverio Vega, in an upcoming election. Roque asked plaintiff to work on his campaign and, in return, allowed plaintiff to use office space in Roque's building for his law practice. In May 2011, Roque and his slate of Commissioners won the election and the Commissioners selected Roque as the new mayor. Thereafter, the Commission passed a resolution appointing plaintiff for a one-year term as the Town attorney, with Joe DeMarco serving as an assistant Town attorney.
The Town is governed by a Commission comprised of five Commissioners who are elected to four-year terms on a concurrent basis. N.J.S.A. 40:72-1 and N.J.S.A. 40:72-10. Each Commissioner is responsible for one of five departments within the Town. After election, the Commissioners meet and select one of the five of them to serve as mayor.
At his deposition, plaintiff testified that during and after the campaign, Roque accused the Board of being "corrupt" and "stealing money from the town." To display his discontent with the Board, in June 2011, Roque coordinated an effort with the Commissioners to go to the next Board meeting and be disruptive. Plaintiff went to the meeting but refused to go inside because he considered the protest to be unruly behavior, and he did not believe it was appropriate for the Town attorney to participate in such conduct. After the meeting, DeMarco told plaintiff that plaintiff had made a mistake because now Roque "doesn't think you're loyal to him."
Within a short time, Roque was openly expressing his displeasure with plaintiff. Roque told plaintiff he wanted "a bulldog," and plaintiff was not a bulldog. In plaintiff's view, Roque wanted him to do things that were "not appropriate or maybe should be done a different way." More specifically, Roque wanted plaintiff to help him influence Board decisions, particularly with respect to employment decisions. According to plaintiff, Roque did not understand that plaintiff was not his personal attorney, and he did not understand that under civil service rules, there were repercussions for certain employment actions. When plaintiff explained that employees could not be terminated at will, Roque became upset with plaintiff and accused him of being disloyal.
According to plaintiff, Roque pressured the Board to create a clerk position for one individual with a $40,000 yearly salary, but this person was not qualified for the job. Plaintiff voiced his opinion to Roque and the Commissioners. In response, Roque stopped including plaintiff in conversations about this potential hire and instead consulted DeMarco. Roque also: secured the reappointment of a Board member, who had been removed by Vega; created the title of deputy mayor for another individual and then convinced the Board to hire that person's wife; and had the Board give a job to Roque's girlfriend's mother. According to plaintiff, Roque also created a "hit list" of disloyal Board members who Roque wanted removed, demoted, or transferred. Plaintiff refused to cooperate.
On December 6, 2011, Roque wrote plaintiff a letter terminating his employment as Town attorney "effective immediately." Roque reminded plaintiff of his ethical duty of confidentiality and said: "These rules of ethics are to be strictly complied with." He asked plaintiff to return all files to the Town.
Plaintiff was not surprised by the letter because his relationship with Roque had deteriorated. Within a week, he complied with Roque's request to return all documents.
Plaintiffs position as general counsel to the Board
Because plaintiff suspected that Roque might terminate him as Town counsel, in early December 2011 plaintiff submitted a response to a request for qualifications (RFQ) for a general counsel position with the Board. He listed his fee rate as $145 per hour.
In mid-December 2011, the Board voted to approve plaintiff as general counsel and passed a resolution appointing him for a term that ran from December 2011 to June 30, 2012, with an hourly rate of $145, not to exceed $60,000 total. The resolution the Board passed said: "BE IT RESOLVED that, this Board authorizes the award of a Professional Service Contract to the Law Office of Julio Morejon, LLC for appropriate Professional Legal General Services for the 2011-2012 School Year in an amount not to exceed $60,000 at a rate of $145.00 per hour."
Plaintiff did not recall seeing any document that guaranteed him a certain amount of work, and he did not believe that any such document existed. He also did not have any contract for employment or professional services agreement with the Board. But he considered himself in-house counsel for the Board.
One of plaintiff's first assignments was to respond to an application for emergent relief filed by Cosmo Cirillo before an ALJ. Plaintiff explained that Roque had precipitated Cirillo's termination from the Board, and Cirillo was attempting to regain his position. Plaintiff defended the termination decision at a hearing, and the ALJ ruled in the Board's favor. After the hearing, plaintiff called Roque to inform him of the result, and Roque said: "Good, good, I'm glad, . . . you better do more things like that. I don't want you, you know, I don't trust you but I'm gonna give you a chance" to "prov[e] [your]self."
Then, on February 14, 2012, plaintiff learned that Roque was attempting to remove him as Board attorney. The following day, the Board had a meeting scheduled and plaintiff arrived early to talk to Fauta, who was the Board superintendent, and another individual. They asked him to leave and not be a part of the meeting because Roque did not want him involved. Plaintiff recalled asking them: "So I become the sacrificial lamb" and they replied: "I'm sorry." Plaintiff left without attending the meeting.
On March 1, 2012, Fauta wrote plaintiff a letter directing him to discontinue his work for the Board. Plaintiff complied.
Plaintiffs disclosure in the DeMarquet lawsuit
Sometime prior to 2017 (plaintiff did not specify a date), plaintiff disclosed information to attorney Louis Zayas, who represented Dominique DeMarquet, a former Board employee, in her lawsuit against Roque, the Town, and the Board. While the record does not contain specific details on the information plaintiff provided, plaintiff never disputed that he obtained the information while serving as the Town's attorney but insisted that "[s]ome . . . if not all of" the information was public information. The information was useful to DeMarquet's case as well as this case (initially Zayas represented plaintiff in this suit).
See DeMarquet v. Roque, Docket No. A-1251-15 (App. Div. Nov. 17, 2017).
In December 2017, Zayas wrote to the Town's attorney in the DeMarquet case, and said that he was adding plaintiff to the witness list. Zayas explained that plaintiff had relevant information that he obtained while serving "as former town attorney."
On January 11, 2018, the Town's attorney wrote plaintiff a letter referencing Zayas's letter and underscored that the Town never waived the attorney-client or work-product privileges and that it considered his disclosures to Zayas to violate both privileges. The Town also demanded that plaintiff turn over all documents concerning matters in which he was involved as Town attorney and that he maintain confidentiality of the information he received as Town attorney.
The following month, on February 15, 2018, the Town adopted a resolution authorizing the filing of an ethics complaint against plaintiff. The resolution alleged that "credible evidence" established that plaintiff had "disclosed privileged and confidential information which he obtained in his role as Town Attorney" to an attorney who represented DeMarquet in her lawsuit against Roque, the Town, and the Board. The resolution said that the Town never consented to the disclosure of confidential and privileged information and that it believed plaintiff's disclosure violated Rules of Professional Conduct 1.9 and 4.4(b), as well as the attorney-client privilege and duty of loyalty. The resolution authorized a law firm to file a complaint with the OAL, where plaintiff now worked, and with Supreme Court of New Jersey.
Plaintiff claimed the Town could have made an ethics referral without passing a formal resolution, which, he noted, was a public document. He believed the Town passed the resolution to retaliate against him and humiliate him. He agreed that official actions were done by way of resolution, but claimed that because there had been a resolution appointing him as counsel, any decision regarding that appointment did not have to be done by resolution.
The OAL Advisory Committee held a hearing on the ethics charge, found it substantiated, and recommended a public reprimand. The OAL Director then authorized a public reprimand of plaintiff.
At his deposition, plaintiff asserted that the judge in the DeMarquet case ruled that he could testify about the information he passed along to DeMarquet's attorney. When pressed by defense counsel, however, plaintiff conceded the judge in that case never issued a ruling on the ethics issue.
In February 2018, plaintiff, together with two other Board employees, Cesar Sabino and Lourdes Jaime, filed a complaint against the Board defendants and the Town, alleging that they had been terminated for political or retaliatory reasons. Two months later, plaintiffs filed an amended complaint. As noted above, plaintiff claimed the Board defendants breached his employment contract, the Town violated the NJCRA, and all defendants violated NJRICO.
The trial court granted defendants' motions for summary judgment and dismissed Sabino's and Jaime's claims. They did not appeal these decisions and, therefore, we do not address them in this opinion.
In June 2018, the Board defendants filed a motion to dismiss plaintiff's claims against them and the trial court denied this motion on August 14, 2018. The court denied the Board defendants' motion for reconsideration on August 14, 2018.
Following oral argument, the court granted defendants' motions for summary judgment on February 24, 2021, and dismissed plaintiff's complaint. This appeal followed.
II.
In Point One of his brief, plaintiff contends that the trial court erred in granting the Board defendants' motion for summary judgment on his breach of contract claims. Plaintiff argues that he established that the Board terminated him before the expiration of his contract term and, therefore, he has a claim for damages under Nelson v. Elizabeth Board of Education, 466 N.J.Super. 325 (App. Div. 2021). Because the Nelson decision is readily distinguishable from the case at hand, we disagree.
Our review of a trial court's grant of summary judgment is de novo, applying the same legal standard as the trial court. RSI Bank v. Providence Mut. Fire Ins. Co., 234 N.J. 459, 472 (2018) (citing Bhagat v. Bhagat, 217 N.J. 22, 38 (2014)). Under that standard, summary judgment will be granted when "the competent evidential materials submitted by the parties," viewed in the light most favorable to the non-moving party, show that there are no "genuine issues of material fact" and that "the moving party is entitled to summary judgment as a matter of law." Grande v. Saint Clare's Health Sys., 230 N.J. 1, 24 (2017) (quoting Bhagat, 217 N.J. at 38); see also R. 4:46-2(c).
"An issue of material fact is 'genuine only if, considering the burden of persuasion at trial, the evidence submitted by the parties on the motion, together with all legitimate inferences therefrom favoring the non-moving party, would require submission of the issue to the trier of fact.'" Ibid. (quoting Bhagat, 217 N.J. at 38). We owe no special deference to the motion judge's legal analysis. RSI Bank, 234 N.J. at 472 (quoting Templo Fuente De Vida Corp. v. Nat'l Union Fire Ins. Co., 224 N.J. 189, 199 (2016)).
Under New Jersey law, an enforceable contract is formed when the "parties agree on essential terms and manifest an intention to be bound by those terms." Weichert Co. Realtors v. Ryan, 128 N.J. 427, 435 (1992). "To establish a claim for breach of contract, a plaintiff must provide proof of 'a valid contract between the parties, the opposing party's failure to perform a defined obligation under the contract, and a breach causing the claimant to sustain[] damages.'" Nelson, 466 N.J.Super. at 342 (quoting EnviroFinance Grp., LLC v. Envtl. Barrier Co., 440 N.J.Super. 325, 345 (App. Div. 2015)).
Where the terms of a contract have been violated, the "breaching party 'is liable for all of the natural and probable consequences of the breach of that contract.'" Id. at 342-43 (quoting Totaro, Duffy, Cannova &Co. v. Lane, Middleton &Co., 191 N.J. 1, 13 (2007)). The goal is "to put the injured party in as good a position as . . . if performance had been rendered." Totaro, Duffy, Cannova &Co., 191 N.J. at 13 (quoting Donovan v. Bachstadt, 91 N.J. 434, 444 (1982)).
In the employment context, either party may terminate the employment relationship at will unless a contract provides otherwise. Nelson, 466 N.J.Super. at 339. Where the employee is an attorney, the employer/client always retains the ability to terminate the attorney at any time because "[a] client is not forced to entrust matters to an unwanted lawyer." Id. at 336-37 (quoting Cohen v. Radio-Electronics Officers Union, Dist. 3, 146 N.J. 140, 157 (1996) and Restatement of the Law Governing Lawyers § 44 cmt. b (Am. Law Inst. Proposed Final Draft No.11996)). Consistent with this principle is R.P.C. 1.16(a)(3), which instructs that "a lawyer shall not represent a client or, where representation has commenced, shall withdraw from the representation of a client if . . . the lawyer is discharged." A contract provision that precludes an employer/client's right to discharge an attorney will be deemed unenforceable as inconsistent with ethical principles. Cohen, 146 N.J. at 156.
However, in limited circumstances, a discharged attorney/employee may assert a claim for damages where the attorney and client had a contract of employment for a set term or duration and the client breached the agreement by terminating the relationship before expiration of the term. Id. at 157-58; Nelson, 466 N.J.Super. at 339-40.
In this case, the trial court granted summary judgment to the Board defendants, reasoning that an attorney can be discharged at any time, for any reason, and citing R.P.C. 1.16(a)(3) and Cohen, 146 N.J. at 157. The court agreed with plaintiff that the resolution appointing him as Board attorney created a contractual relationship, but held that this contractual relationship did not, and indeed could not, infringe on the Board's right to terminate him at will. The court did not address whether plaintiff had a claim for damages pursuant to the recently issued Nelson opinion.
Nelson was issued on January 26, 2021, after the parties had argued the motions for summary judgment on January 7 and 11, 2021. The trial court rendered its decision on February 24, 2021, which was a month after Nelson. We assume the parties did not bring the Nelson opinion to the court's attention.
On appeal, plaintiff contends that he established a claim for damages under Nelson because the Board terminated him on March 1, 2012, before his contractual term of employment expired on June 30, 2012. However, Nelson does not support plaintiff's claim because unlike the contract in that case, plaintiff's contract did not guarantee any income for the term of the agreement and did not condition termination on just cause.
The Elizabeth Board of Education (the EBE) hired Nelson to serve as outside counsel in 2003 and 2004 after he responded to an RFP. Nelson, 466 N.J.Super. at 331. In 2005, the EBE hired Nelson as general counsel pursuant to a separate RFP. Ibid. The court said that during this period (2003 to 2005), Nelson did not have an employment contract, thus suggesting that a board's acceptance of a response to an RFP, by itself, does not create an employment contract. Ibid.
The parties' relationship changed in 2009 when "the [EBE] hired Nelson to a full-time, salaried in-house position as board counsel and the parties executed a one-year employment contract which was renewed annually through June 2012." Ibid. During the last two years of this contract period (2011 and 2012), the EBE "was served with several state and federal grand jury subpoenas related to its administration of the National School Lunch Program and other investigations which led to the filing of criminal charges against several [EBE] members, including its president." Ibid. In light of these proceedings, the EBE Superintendent proposed to Nelson a "three-year employment contract to ensure 'stability in the back offices.'" Ibid.
Thereafter, Nelson and the EBE began negotiations, during which EBE was represented by another attorney. Ibid. The negotiations resulted in a three-year employment contract, which was the contract at issue in the case. Ibid. This contract provided Nelson an annual salary of $175,000 with 2.5% yearly increases and said that the EBE could not terminate Nelson before expiration of the three-year term absent just cause, which the agreement defined as "the occurrence or existence of" the following:
A) a material breach of your [(i.e., Nelson's)] obligations under this agreement including, without limitation, refusal or failure to comply with reasonable directions communicated to you in writing by the
Board, which material breach you fail to cure within fifteen calendar days of your receipt of notice of such breach;
B) conviction of a felony or a crime involving moral turpitude; and
C) gross negligence or intentional misconduct in the performance of your duties under this agreement.[Id. at 332.]
In April 2013, Nelson was arrested in relation to the school-lunch-program investigation. Id. at 332. Nelson claimed that "the arrest stemmed from his failure to produce a single responsive document out of approximately 'one million' documents requested in multiple subpoenas." Ibid. The EBE placed him on paid administrative leave pending a formal investigation. Ibid.
In December 2013, Nelson was indicted on counts of conspiracy, official misconduct, tampering with public records, fabricating evidence, and hindering prosecution. Ibid. The following month, the EBE sent him a letter terminating his employment, eighteen months before expiration of the three-year term. Ibid. His salary for that period would have totaled $273,546.88. Ibid.
After a six-week criminal trial, Nelson was acquitted of all charges. Id. at 333. He then filed suit against the EBE for breach of contract and equitable relief under a theory of promissory estoppel. Ibid.
The EBE moved to dismiss the complaint, and then for summary judgment, claiming that the contract was unenforceable as inconsistent with R.P.C. 1.16(a)(3), which allows a client to terminate an attorney for any reason at any time. Ibid. The trial court found that Nelson had established a valid claim for breach of the employment contract, which specifically limited termination to just cause occurrences, none of which included the charging of crimes by indictment. Id. at 334. The trial court explained that while the EBE was free to discharge Nelson under R.P.C. 1.16(a)(3), the rule did "not provide immunity for [the EBE] from a breach of contract claim, or the damages stemming from said breach." Id. at 333. After a bench trial, the court concluded that the EBE had breached the contract and awarded him damages for lost wages. Id. at 334.
The Appellate Division affirmed. Id. at 337-39. The court found that while R.P.C. 1.16(a)(3) allows a client, including an employer of in-house counsel, to terminate at any time, the rule is silent on whether the attorney can recover damages for termination based on breach of contract. Id. at 337. The court concluded that breach of contract claims are permissible, so long as they do not infringe on the employer-client's right to discharge at will and are limited to a claim for damages resulting from the breach. Id. at 338-39. The court explained:
To conclude otherwise would effectively eviscerate an in-house counsel's basic contract rights. Indeed, arms-length negotiated employment contracts, like the agreement here, would be rendered illusory, as an employer would be permitted to fire counsel without cause and ramification, effectively converting in-house lawyers with employment agreements to at-will employees contrary to New Jersey law.[Id. at 339.]
The Appellate Division agreed with the trial court that the EBE's terminating Nelson because he had been indicted did not comport with the just cause provision of the contract and constituted a breach. Id. at 343. While Nelson could not force the EBE to maintain his employment, he could recover damages for wrongful termination based on the contract terms. Id. at 337.
Nelson provides plaintiff no support because, unlike Nelson, plaintiff and the Board did not have an employment contract that guaranteed employment and salary for a specific term, absent termination for cause. The only document relating to plaintiff's employment is the resolution accepting plaintiff's bid for services at a rate of $145 per hour, not to exceed $60,000, through June 30, 2012. The resolution did not rise to the level of an employment contract. It did not guarantee work to plaintiff, did not provide for a definite salary, and did not condition discharge on just cause, unlike Nelson's contract. Thus, there was no basis upon which plaintiff can claim that he is entitled to damages. The Board, as his client, retained the right to discharge him at will, and the resolution provided no basis for a damages claim based on an early or wrongful discharge.
Therefore, we affirm the trial court's order granting the Board defendants summary judgment on plaintiff's breach of contract claim because plaintiff failed to establish a contractual basis for damages.
III.
In Points Two through Five, plaintiff argues that the trial court erred in granting the Town's motion for summary judgment on his NJCRA cause of action, which alleged retaliation for seeking redress from the court. This contention lacks merit.
Similar to the federal civil rights statute 42 U.S.C. § 1983, the NJCRA affords a private right of action against those who, while acting under color of law, either deprive another of a state or federal right or interfere with one's right "by threats, intimidation, coercion or force." Lapolla v. Cnty. of Union, 449 N.J.Super. 288, 306 (App. Div. 2017) (quoting Felicioni v. Admin. Office of Courts, 404 N.J.Super. 382, 400 (App. Div. 2008)). To that affect, the NJCRA provides:
Any person who has been deprived of any substantive due process or equal protection rights, privileges or immunities secured by the Constitution or laws of the United States, or any substantive rights, privileges or
immunities secured by the Constitution or laws of this State, or whose exercise or enjoyment of those substantive rights, privileges or immunities has been interfered with or attempted to be interfered with, by threats, intimidation or coercion by a person acting under color of law, may bring a civil action for damages and for injunctive or other appropriate relief. The penalty provided in subsection e. of this section shall be applicable to a violation of this subsection.
[N.J.S.A. 10:6-2(c).]
Generally, to establish a civil rights retaliation claim, a plaintiff must prove: "(1) that he engaged in constitutionally-protected activity; (2) that the government responded with retaliation; and (3) that the protected activity caused the retaliation." Eichenlaub v. Twp. of Indiana, 385 F.3d 274, 282 (3d Cir. 2004).
In this case, plaintiff argued that the Town adopted the resolution authorizing the filing of an ethics complaint against him in retaliation for asserting his First Amendment right to seek redress from the court by initiating this lawsuit. Plaintiff claimed that the ethics complaint could have been filed by anyone without a resolution and argued that the purpose of the resolution was to publicly humiliate him.
The trial court found no evidence to support plaintiff's claim of retaliation. The court noted that a municipality acts through the enactment of resolutions and that the Town had not interfered with, or hindered, plaintiff's right to file the current suit. Moreover, to the extent his claim was based on the First Amendment right to speak by testifying, the court underscored that plaintiff had no protected right to disclose privileged communication that he obtained from his former client.
On appeal, plaintiff presents the same arguments he unsuccessfully raised before the trial court. He claims the Town adopted the resolution authorizing an ethics complaint to retaliate against him for filing suit against the Board and exposing Roque's politically motivated actions, and he reiterates his belief that anyone could have filed the complaint without a resolution being in place. He believes the resolution was meant to publicly humiliate him, and he claims that he established enough evidence from which a jury could have found his claim substantiated. We disagree.
Plaintiff presented no evidence to establish that the Town's resolution was based on retaliatory animus. While plaintiff contends that an ethics complaint could have been filed by any Town official without the need for a resolution, he fails to recognize that the Town initiated the complaint as his former client and that "[a] public body may only act by resolution or ordinance." Kress v. LaVilla, 335 N.J.Super. 400, 410 (App. Div. 2000) (quoting Midtown Prop., Inc. v. Twp. of Madison, 68 N.J.Super. 197, 208 (Law Div.1961)).
While plaintiff believes the complaint was retaliatory, the record simply does not support that allegation. The Town passed the resolution authorizing the ethics complaint one month after learning that plaintiff intended to testify to information he acquired as former Town attorney, and the ethics complaint was later substantiated by the OAL Director. No evidence showed that the Town or the Board interfered with plaintiff's ability to file and prosecute this suit.
Therefore, the trial court correctly granted the Town's motion for summary judgment and properly dismissed plaintiff's NJCRA retaliation claim.
IV.
In Point Six of his brief, plaintiff argues that the trial court erred in granting defendants' motions for summary judgment on his claims that they violated the NJRICO by engaging in a pattern of racketeering and a conspiracy to engage in racketeering. For the reasons that follow, we also reject this contention.
The Legislature adopted the NJRICO to "prevent, disrupt and eliminate the infiltration of organized crime type activities," which, it found, are "substantial in nature" and "annually drain[] millions of dollars from this State's economy." N.J.S.A. 2C:41-1.14(b) and (c). To attain its goal, the NJRICO subjects certain enumerated acts to criminal prosecution and sanctions by way of a civil right of action. N.J.S.A. 2C:41-1.14(c), -3 and -4.
In relevant part, the NJRICO makes it unlawful for "any person employed by or associated with any enterprise engaged in or activities of which affect trade or commerce to conduct or participate, directly or indirectly, in the conduct of the enterprise's affairs through a pattern of racketeering activity or collection of unlawful debt." N.J.S.A. 2C:41-2(c). It is also unlawful for "any person to conspire as defined by N.J.S.A 2C:5-2, to violate any of the provisions of this section." N.J.S.A. 2C:41-2(d).
Pursuant to N.J.S.A. 2C:41-1(b) and (c), "person" means "any individual or entity or enterprise as defined herein holding or capable of holding a legal or beneficial interest in property," and "enterprise" "includes any individual, sole proprietorship, partnership, corporation, . . . or other legal entity, . . . and . . . governmental . . . entities." N.J.S.A. 2C:41-1(a) lists numerous State crimes that constitute "racketeering activity" and includes "any conduct defined as 'racketeering activity' under Title 18, U.S.C. § 1961(1)(A), (B) and (D)." Witness tampering and obstruction of justice are among the offenses listed in 18 U.S.C. § 1961(1)(B). Under the federal statutes, witness tampering refers to the use of "intimidation, threat[s], or corruptly persuad[ing] another person" to "influence, delay, or prevent the testimony of any person in an official proceeding." 18 U.S.C. § 1512(b). Obstruction of justice refers to any act intended to "influence, obstruct, or impede, the due administration of justice." 18 U.S.C. § 1503(a).
Under the NJRICO, a pattern of racketeering activity refers to "at least two incidents of racketeering conduct . . . the last of which shall have occurred within 10 years . . . after a prior incident of racketeering activity," and there must be "[a] showing that the incidents of racketeering activity embrace criminal conduct that has either the same or similar purposes, results, participants or victims or methods of commission or are otherwise interrelated by distinguishing characteristics and are not isolated incidents." N.J.S.A. 2C:41-1(d)(1) and (2).
In his complaint, plaintiff argued that the Town engaged in a pattern of racketeering activity by: sending him the January 11, 2018 letter reminding him of the attorney-client privilege and reasserting the privilege; passing the resolution authorizing the filing of an ethics complaint against plaintiff; and filing the ethics complaint. Plaintiff claims that these acts were intended to intimidate, silence, and humiliate him because he had agreed to testify in the DeMarquet litigation, and thus amounted to witness tampering and obstruction of justice.
The trial court found that plaintiff presented no evidence of racketeering and granted defendants' motions for summary judgment. In so ruling, the court noted that the Town's actions in sending plaintiff a letter reminding him of his ethical duty and invoking the attorney-client privilege, passing a resolution authorizing the filing of an ethics complaint, and filing the ethics complaint were lawful acts, and no evidence supported plaintiff's claim that their purpose was to intimidate plaintiff, tamper with any witness, or obstruct the judicial process.
The trial court also agreed with the Town's argument that a public entity may not be held civilly liable under the NJRICO, and its argument that the litigation privilege afforded the Town immunity. Because we agree with the court's conclusion that plaintiff failed to present any evidence supporting his NJRICO claim, we do not address the court's alternative bases for its ruling.
On appeal, plaintiff makes the same arguments he made before the trial court. He contends that the court erroneously made all inferences in favor of defendants, contrary to the summary judgment standard. We disagree.
After reviewing the record, we are satisfied plaintiff failed to establish any evidence of racketeering activity by defendants. As the trial court found, neither the letter reminding plaintiff of his ethical duty nor the resolution authorizing the filing of an ethics complaint, or the ethics complaint itself, supported a finding of witness tampering or obstruction of justice. These acts were all lawful, and no evidence supported plaintiff's belief that they were motivated by an unlawful intent.
v.
In light of our affirmance of the trial court's grant of summary judgment to all of the defendants, we do not address the Board defendants' cross-appeal asserting that the trial court erred by denying their earlier motion to dismiss plaintiff's NJRICO claims. A party appeals a judgment, not a decision, and here judgment was entered in the Board defendants' favor. Do-Wop Corp. v. City of Rahway, 168 N.J. 191, 199 (2001); Price v. Hudson Heights Dev., LLC, 417 N.J.Super. 462, 466 (App. Div. 2011). Thus, there is no judgment for these defendants to challenge in their cross-appeal.
Affirmed.