MIDDLEBROOKS & SHAPIRO, P.C. v. DOROTHY BONANNO

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1990-04T51990-04T5

MIDDLEBROOKS & SHAPIRO, P.C.,

Plaintiff/Third-Party

Plaintiff-Appellant,

v.

DOROTHY BONANNO,

Defendant,

and

KEITH MCKENNA; MCKENNA, MULCAHY

& MCKENNA, LLP; ANTHONY AMBROSIO;

ANTHONY AMBROSIO, P.C.; AMBROSIO,

KYREAKAKIS, DILORENZO, MORAFF &

MCKENNA; FRANK CERRATA, C.P.A.,

Third-Party Defendants-

Respondents.

 

Argued December 13, 2005 - Decided March 30, 2006

Before Judges Kestin, Lefelt and Hoens.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-9493-02.

Andrew R. Turner argued the cause for appellant (Turner Law Firm, attorneys; Mr. Turner, of counsel and on the brief).

Dean R. Lospinoso argued the cause for respondents Keith McKenna and McKenna, Mulcahy & McKenna, LLP (Riker Danzig Scherer Hyland & Perretti, attorneys; Lance J. Kalik, of counsel and on the brief; Mr. Lospinoso, on the brief).

Frank Magaletta argued the cause for respondent Frank Cerreta (Moscowitz & Novin, attorneys; Mr. Magaletta, on the brief).

Respondents Anthony P. Ambrosio and Ambrosio Kyreakakis, DiLorenzo, Moraff & McKenna did not file a brief.

PER CURIAM

Plaintiff Middlebrooks & Shapiro, P.C. (M&S) appeals from four Law Division orders. The March 5, 2004 order granted summary judgment in favor of third-party defendants Keith A. McKenna (McKenna) and McKenna, Mulcahy & McKenna, LLP (the McKenna firm). The April 8, 2004 order granted summary judgment in favor of third-party defendant Frank Cerreta. The October 1, 2004 order dismissed the third-party complaint as against third-party defendants Anthony P. Ambrosio (Ambrosio) and Ambrosio, Kyreakakis, DiLorenzo, Moraff & McKenna (the Ambrosio firm). The December 7, 2004 order denied the motion by M&S for reconsideration of each of the foregoing orders. We reverse and remand.

Although the issues on appeal are relatively narrow, they cannot be understood outside of the context of the long-running litigation in which they arose. Defendant Dorothy Bonanno and Joseph Bonanno were divorced in 1990. Following their divorce, they were engaged in litigating a series of post-judgment matters. In 1998, there were five matters actively in dispute as between the two of them. During June of that year, defendant Dorothy Bonanno retained M&S to represent her interests in two of those matters, referred to by the parties as the bankruptcy case, In re Joseph Bonanno, Case No. 91-30364, and the chancery case, 23 Commerce Road, L.P. v. West Essex Mgmt. Corp., Docket No. ESX-C-142-98 (Ch. Div. 1998).

According to M&S, defendant Dorothy Bonanno also retained Ambrosio and McKenna, who at the time were both partners in the Ambrosio firm, to represent her in the bankruptcy case and in the chancery case. M&S asserts, based on pleadings filed in those matters and its billing records, that McKenna, Ambrosio and the Ambrosio firm were involved along with M&S in most of the substantive discussions and decisions relating to the two matters. M&S also asserts that McKenna then left the Ambrosio firm and joined or created the McKenna firm through which he continued to provide advice to defendant Dorothy Bonanno. M&S ceased representing defendant Dorothy Bonanno on July 24, 2001. McKenna and the McKenna firm continued to represent defendant Dorothy Bonanno thereafter and did so in connection with some of the issues that are before us on appeal.

In October 2002, M&S filed its complaint against defendant Dorothy Bonanno seeking payment for professional fees that it asserts were still outstanding for work performed on the bankruptcy case and the chancery case. In response, defendant Dorothy Bonanno, represented by McKenna and the McKenna firm, filed an answer and a counterclaim sounding in legal malpractice. M&S timely filed its answer to the counterclaim, denying that it had committed malpractice. On April 2, 2003, defendant Dorothy Bonanno served an affidavit of merit. See N.J.S.A. 2A:53A-27.

In August 2003, M&S served and filed its third-party complaint in which it sought contribution and indemnification from each of the named third-party defendants. Although the third-party defendants are all lawyers and their law firms or, in the case of Cerreta, purportedly an accountant, M&S did not serve an affidavit of merit in support of the claims in the third-party complaint. Thereafter, each of the named third-party defendants moved for summary judgment or dismissal on the grounds that the claims against each were governed by the Affidavit of Merit Statute and that the failure of M&S to serve an affidavit of merit as to each of them was fatal to the continuation of the claims raised in the third-party pleading. The separately filed and argued motions were each granted in the orders now before us on appeal. Thereafter, the motion by M&S for reconsideration was denied and the dismissal of the third-party complaint was certified as final. See R. 4:42-2. On that basis, M&S pursues this appeal.

The central question raised on appeal as it relates to McKenna and his firm and to Ambrosio and his firm is whether our recent decision in Diocese of Metuchen v. Prisco & Edwards, 374 N.J. Super. 409 (App. Div. 2005), governs the claims by M&S so as to relieve it of the obligation to serve an affidavit of merit. M&S contends that this matter is governed by the Diocese decision because its claims against these third parties sound in contribution and indemnification.

McKenna and his firm raise three arguments on appeal in response to the M&S assertions. First, McKenna and his firm contend that they were successors to M&S on the matters as a result of which there can be no claim against them in contribution or indemnification. See Olds v. Donnelly, 150 N.J. 424, 443 (1997); Malewich v. Zacharias, 196 N.J. Super. 372 (App. Div. 1984). Second, they argue that they were not true joint tortfeasors, see N.J.S.A. 2A:53A-1, as to which a claim for contribution might lie. See Cherry Hill Manor Assocs. v. Faugno, 182 N.J. 64, 72 (2004). Finally, they assert that the Diocese decision does not apply to this third-party complaint because it alleges acts separate from those raised in the counterclaim.

We need not address again in detail the analytical underpinnings of our decision in Diocese. Rather, we note that the allegations of the third-party complaint as they relate to McKenna and his firm and as they relate to Ambrosio and his firm fall within the scope of that analysis. Our review of the record on appeal demonstrates that there were pleadings that were filed bearing the names of M&S along with McKenna, Ambrosio and their respective firms. Moreover, it appears from the billing records maintained by M&S that there were numerous communications and discussions concerning the bankruptcy case and the chancery case among the M&S attorneys and these third-party defendants throughout the time when M&S was representing defendant Dorothy Bonanno. Our understanding of the assertions of malpractice raised in the counterclaim in light of these documents compels us to conclude, as in Diocese, that M&S has filed a pleading that asserts a claim for contribution and indemnification.

We do not imply that the Diocese decision automatically applies merely because a party asserts that it has a claim in contribution or indemnification. We recognize that ultimately McKenna and his firm may be able to demonstrate that some or all of the acts alleged to have been malpractice were acts of M&S alone. To be sure, in that event, the claim by M&S for contribution would fail, at least in part. The decision about whether a pleading falls within the scope of our Diocese decision, however, does not turn on an evaluation of the eventual likely success of the claim. Rather, having evaluated the record for evidence on which to base a principled analysis of the true nature of the claim being raised in the third-party complaint, see Diocese, supra, 374 N.J. Super. at 416, we conclude that it falls within the doctrine we identified in Diocese. We therefore reverse the orders of March 5, 2004 and October 1, 2004 and we reverse the December 7, 2004 order to the extent that it related to the two lawyers and their firms.

We reverse as well the order of April 8, 2004, albeit for a different reason. In that order, the Law Division judge concluded that the claims against third-party defendant Frank Cerreta also fell within the reach of the Affidavit of Merit statute and dismissed those claims for want of a qualifying affidavit of merit. It is undisputed that Cerreta was included in the third-party complaint because of the role he played as a financial advisor to defendant Dorothy Bonanno. Cerreta was identified in the third-party complaint as a certified public accountant, a profession to which the Affidavit of Merit Statute applies. See N.J.S.A. 2A:53A-26a. It is undisputed, however, that Cerreta is not a "licensed person" to whom any part of the statute applies, N.J.S.A. 2A:53A-27, but instead is an unlicensed financial advisor. As a result, M&S was not required to serve an affidavit of merit concerning Cerreta. The order granting him the protection of that statute was simply based on a mistaken assertion of fact. Therefore the April 8, 2004 order and the December 7, 2004 order to the extent that it relates to third-party defendant Cerreta are reversed.

Reversed and remanded.

 

The parties do not dispute that M&S complied with the pre-suit notice obligations that are the necessary prerequisites for instituting this litigation. See R. 1:20A-6.

Neither Ambrosio nor his firm filed a brief for our consideration. We discern no ground in the record on which to conclude that the arguments that might have been raised by those third-parties would be different from those raised by McKenna and his firm in any event.

(continued)

(continued)

8

A-1990-04T5

March 30, 2006