JOHN FIORETTI v. THOMAS J. CANGIALOSI, ESQ.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0039-07T10039-07T1

JOHN FIORETTI, CONRAD

FIORETTI, and ELI COMPANY,

Plaintiffs-Respondents,

v.

THOMAS J. CANGIALOSI, ESQ., SCHUMANN,

HANLON, DOHERTY, McGROSSIN &

PAOLINO, P.C.,

Defendants/Third-Party

Plaintiffs-Respondents,

and

CHICAGO TITLE INSURANCE COMPANY;

MELVIN L. GOLD ASSOCIATES, INC./

PENSION PLAN NO. 2; MELVIN GOLD

INDIVIDUALLY; AND PANEPINTO, PAOLINO

& DOHERTY, ESQ.,

Defendants/Third-Party

Plaintiffs,

v.

IRVING TOBIN AND GLUCK & TOBIN,

Third-Party Defendants-

Appellants.

________________________________________________________________

 

Submitted January 12, 2009 - Decided

Before Judges Lisa, Reisner and

Sapp-Peterson.

On appeal from the Superior Court of New Jersey, Law Division, Morris County, Docket No. L-2898-03.

Gluck & Tobin, attorneys for appellants (Irving Tobin, on the brief).

O'Donnell, Piechta, attorneys for respondents Thomas J. Cangialosi, Esq. and Schumann, Hanlon, Doherty, McCrossin & Paolino, P.C. (Leon B. Piechta, of counsel and on the brief).

Respondent John Fioretti has not filed a brief.

PER CURIAM

Third-party defendant, Irving Tobin, appeals from a $17,000.08 judgment entered against him in favor of third-party plaintiff, Thomas J. Cangialosi, on May 2, 2007 after a bench trial. We find unpersuasive the numerous arguments Tobin presents on appeal, and we affirm.

I

Cangialosi and Tobin are attorneys. In the 1980s, Cangialosi represented a condominium development in Jersey City known as Sherman Estates. The fifty-four unit condominium project was encumbered by two mortgages. The first was a $5 million construction loan from United Jersey Bank Commercial Trust. The second mortgage, in the amount of $500,000, was held by Melvin L. Gold Associates, Inc. Pension Plan No. 2 (Pension Plan). Tobin represented the Pension Plan.

Plaintiffs, Conrad and John Fioretti, purchased unit D-2 from Sherman Estates in July 1988 for $139,900. Cangialosi represented them in the purchase. To obtain clear title, both mortgage liens would have to be released with respect to unit D-2. The second mortgage lien was not released, and the discovery years later of that circumstance and the events that transpired to obtain the release became the subject matter of this litigation and provided the basis for the judgment now under review.

The condominium developer's public offering statement provided:

The property is also encumbered by a second mortgage give[n] to Pension Plan Number 2, Melvin L. Gold, Trustee, in the principal amount of $500,000. This lender agrees to release its lien on all encumbered units for nominal consideration until the construction loan referred to above is paid in full. Thereafter, this second mortgage will become a first lien on the property and the lender will release its lien on the remaining units upon the payment of $100,000 principal, plus any accrued unpaid interest as of the date of release.

[Emphasis added.]

Cangialosi testified that when a unit was sold, he would contact Tobin and send him a partial release covering the unit being conveyed, and Tobin would have the release executed and returned. The release would recite only nominal consideration of $1, and no money would change hands.

Tobin testified that he believed the mortgage required the payment of $4000 plus 16% interest compounded monthly in order to obtain a release. He relied upon a provision to that effect in a mortgage document. However, the mortgage upon which he relied covered a different property in Newark.

Judge Steven F. Smith, Jr. presided over the trial. He found Cangialosi's testimony credible and Tobin's incredible. Further, documentary evidence was produced at trial demonstrating that a series of releases signed by Melvin Gold for other units in the Sherman Estates development during that timeframe were executed for the nominal amount of $1. Cangialosi testified that those releases were issued for that nominal consideration only.

In connection with the Fiorettis' purchase of unit D-2, Cangialosi corresponded with Tobin on July 21, 1988, sending him the partial release for the unit. However, the release was never executed or returned. Tobin did not advise Cangialosi there was any problem with signing the release, nor did he ask for any modification of the release document. Cangialosi apparently did nothing further to get the release. The Fiorettis completed settlement, unaware of any problems with the release of the second mortgage.

In 2001, the Fiorettis transferred unit D-2 to an entity they owned, Eli Company, which then entered into a contract to sell the unit to a third party, Melissa Southwell. Eli Company retained Rosemary Gencarelli to represent it in the transaction. When a title search revealed that the Pension Plan mortgage remained a lien on the property, Gencarelli contacted Tobin. In a November 8, 2001 letter, she offered $500 for a release of the mortgage. Tobin told Gencarelli that more than $300,000 was due on the Pension Plan mortgage and the Pension Plan would be willing to accept $20,000 for a release. After negotiations, Eli Company agreed to pay $15,000 for the release. In her March 4, 2002 letter to Tobin, Gencarelli stated that "this payment is made without prejudice to any of my client's rights which are expressly reserved herein." The $15,000 was paid by check payable to Tobin's law firm. Thus, payment was made under protest.

Tobin testified that the check was deposited in his firm's trust account and that he withheld approximately $2000 to $4000 in fees, and turned over the remainder of the money to Melvin Gold. Judge Smith ordered Tobin to submit records of the receipt and disbursement of the funds, but Tobin did not comply.

The dispute regarding release of the Pension Plan mortgage caused a delay of about five months in completing settlement, thus resulting in additional damages to the Fiorettis, over and above the $15,000 they were required to pay.

Contrary to Tobin's trial testimony that Gold instructed him to demand the $20,000 payment for the release, Gold gave deposition testimony to the contrary, stating that he left the decisions about the negotiations up to Tobin. The record reflects that by the time of the 2001 events, the Pension Plan was an inactive or defunct corporation. Based upon the evidence presented and drawing inferences from that evidence, Judge Smith found that in 2001 there was no viable Pension Plan, Tobin extorted this money from the Fiorettis, and divided it up with Gold.

The Fiorettis produced at trial attorney Anthony Ambrosio, as a legal malpractice expert. He testified that the general standard for demonstrating legal malpractice is that an attorney must exercise the reasonable degree of skill normally exercised by attorneys in similar circumstances, and that if the attorney deviates from that skill requirement, the deviation must actually result in damages.

Ambrosio testified that Cangialosi had deviated from the standard of care and committed legal malpractice by failing to remove the second mortgage lien. This was such a clear deviation that he did not believe expert testimony was necessary, as it would be clear to a lay person that an attorney could be held accountable for not providing lien-free title. He further testified that Cangialosi's negligent conduct was a direct cause of the Fiorettis' damages.

When cross-examined by counsel for Cangialosi, Ambrosio testified that a claim for contribution can be made even in the absence of privity between a lawyer and the plaintiff, as long as there is established reliance upon that lawyer's doing something, where that reliance is reasonable, and something happened by virtue of that reliance. Tobin had a duty to get the release signed and returned to Cangialosi, or to proffer a reason why the release would not or could not be signed. Further, Cangialosi had a right to rely on the fact that Tobin would in fact respond and do what he was required to do. Tobin's conduct, therefore, was a direct cause of the Fiorettis' losses.

Finally, Ambrosio testified that Tobin's conduct "in extracting $15,000 when he was asked as a lawyer to do an administerial [sic] act" to provide a release that should have been provided previously "had no justification." However, Tobin's conduct did not excuse or relieve Cangialosi, as Cangialosi still had a continuing duty to get a lien-free title for his client. But at the same time, Cangialosi clearly had a right to rely upon another lawyer providing that which is a ministerial act to obtain a release within a reasonable amount of time.

At the conclusion of the trial, Judge Smith set forth his findings in an oral decision on January 4, 2007. He found that although there was some testimony regarding other properties that were subject to the Pension Plan mortgage that were released for higher sums of money, "they were probably held separate and apart from the Sherman Avenue properties and the Sherman Avenue properties had a history of release for the nominal consideration mentioned." The judge found that settlement was supposed to take place conveying unit D-2 from Eli Company to Southwell in September 2001, but was delayed until March 2002 because of the negotiations to obtain a release. The $15,000 check for the release was made payable to Tobin's law firm and deposited into his trust account. The judge found that Tobin's failure and unwillingness to produce the trust account records reflecting receipt and disbursement of the money allowed him to draw the inference that the money was divided between Tobin and Gold individually, and no portion went to the Pension Plan, which was inactive or defunct.

The judge found that this was an improper windfall to Tobin and Gold, and they essentially extorted money from the Fiorettis to which they were not entitled. The judge further found that Cangialosi and Tobin both owed a duty to the Fiorettis to obtain and file the release of the Pension Plan lien. Cangialosi breached the duty by not obtaining the release and not advising his clients that he had not obtained it. Cangialosi's breach caused damage to his clients.

The judge further concluded that, although expert testimony was presented, it was not necessary because it was clear that the attorneys involved had a duty to have liens discharged and deliver clear title. For the reasons we will discuss more fully later in this opinion, the judge found that Cangialosi was entitled to contribution from Tobin pursuant to the third-party complaint.

In addition to the $15,000, the judge determined that the Fiorettis and Eli Company were entitled to carrying charges for the five-month delay. The May 2, 2007 judgment therefore awarded those parties $17,277 against Cangialosi.

The judgment included a provision that judgment be entered in favor of Cangialosi against Tobin in the amount of $17,000.08, together with costs and post-judgment interest. This appeal followed.

II

Tobin presents the following arguments on appeal:

POINT I

THIRD PARTY PLAINTIFF[']S COMPLAINT SHOULD BE DISMISSED BECAUSE OF FAILURE TO FILE AN AFFIDAVIT OF MERIT WHICH IS REQUIRED BY N.J.S.A. 2A:53A-27.

POINT II

NO TESTIMONY EITHER AS TO FACT OR EXPERT OPINION PROVED ANY NEGLIGENCE OR PROFESSIONAL MISCONDUCT ON THE PART OF DEFENDANTS IRVING TOBIN OR GLUCK & TOBIN.

POINT III

NO PRIVITY OF CONTRACT EXISTS BETWEEN PLAINTIFFS AND THIRD PARTY DEFENDANT IRVING TOBIN; NO PRIVITY OF CONTRACT EXISTS BETWEEN THIRD PARTY PLAINTIFF THOMAS J. CANGI[A]LOSI WITH THIRD PARTY DEFENDANT IRVING TOBIN. THEREFORE NO MALPRACTICE CAN EXIST ON THE PART OF IRVING TOBIN OR GLUCK & TOBIN.

POINT IV

THE CONDUCT OF THIRD PARTY DEFENDANTS, EVEN IF SAME WERE MISCONDUCT, WOULD NOT RESULT IN A CLAIM OF THIRD PARTY PLAINTIFFS AGAINST THIRD PARTY DEFENDANTS.

POINT V

ANY ACTIONS OF ALLEGED WRONGDOING ON THE PART OF MELVIN L. GOLD ASSOCIATES, INC. PENSION PLAN #2 OR DEFENDANT CANGI[A]LOSI OR THIRD PARTY DEFENDANTS IRVING TOBIN AND GLUCK & TOBIN ARE NOT ACTIONABLE DUE TO THE STATUTE OF LIMITATIONS. IF NO CLAIM IS POSSIBLE AGAINST MELVIN L. GOLD ASSOCIATES PENSION PLAN #2, THEN NO ACTION IS POSSIBLE AGAINST THIRD PARTY DEFENDANTS ACTING AS ITS ATTORNEY.

POINT VI

THERE WAS NO DUTY ON THE PART OF MELVIN L. GOLD ASSOCIATES, INC. PENSION PLAN #2 TO GIVE A RELEASE OF ANY PART OF THE MORTGAGE WITHOUT PAYMENT IN ACCORDANCE WITH THE MORTGAGE TERMS. PAROL EVIDENCE IS NOT PERMITTED TO CONTRADICT THE WRITTEN TERMS OF THE MORTGAGE.

POINT VII

PLAINTIFFS RECEIVED TITLE TO THEIR UNIT FROM SHERMAN ESTATES ASSOCIATES, L.P., AT WHICH TIME THE MELVIN L. GOLD ASSOCIATES, INC. PENSION PLAN AND TRUST #2 WAS IN EXISTENCE AND UNPAID. MELVIN L. GOLD ASSOCIATES, INC. PENSION PLAN #2 WAS NOT INVOLVED IN THAT TRANSACTION AND ANY CLAIM OF THE PLAINTIFFS SHOULD BE AGAINST THEIR GRANTOR. MELVIN L. GOLD ASSOCIATES, INC. PENSION PLAN AND TRUST #2 IS NOT RESPONSIBLE FOR THE DEFECTIVE TITLE OF GRANTORS, NO JUDGMENT CAN BE ENTERED AGAINST MELVIN L. GOLD ASSOCIATES, INC. PENSION PLAN AND TRUST #2 AND THUS NO LIABILITY CAN ATTACH TO THIRD PARTY DEFENDANTS IRVING TOBIN AND GLUCK & TOBIN.

POINT VIII

THE PARTIES ENTERED INTO A VALID BINDING AGREEMENT WITH THE FULL CONSIDERATION BARGAINED FOR BEING EXCHANGED BETWEEN THE PARTIES.

POINT IX

PLAINTIFFS HAVE SETTLED WITH ONE OF THE DEFENDANTS. THIS SETTLEMENT MAY HAVE SATISFIED ALL PLAINTIFFS' CLAIMS OR ALLEGED LOSSES. PLAINTIFFS CANNOT COLLECT TWICE FOR ALLEGED DAMAGES.

POINT X

THE PLAINTIFFS FAILED TO INCLUDE A NECESSARY PARTY AS A DEFENDANT IN THIS ACTION. SINCE THAT PARTY WOULD BE LIABLE TO PLAINTIFFS, THE COMPLAINT OF PLAINTIFFS MUST FAIL AND THUS COMPLAINT OF THIRD PARTY PLAINTIFFS AGAINST THIRD PARTY DEFENDANTS MUST FAIL. [NOT RAISED BELOW.]

POINT XI

THERE IS AN ACCORD AND SATISFACTION BETWEEN THE PARTIES.

POINT XII

NO JUDGMENT WAS RENDERED AGAINST MELVIN L. GOLD ASSOCIATES, INC./PENSION PLAN #2, ONE OF THE DEFENDANTS. THEREFORE, NO JUDGMENT CAN EXIST AGAINST HIS ATTORNEY IRVING TOBIN, ESQ.

POINT XIII

THIRD PARTY PLAINTIFFS SHOULD NOT HAVE BEEN PERMITTED TO FILE A CROSS-CLAIM SO LATE IN THE PROCEEDINGS.

POINT XIV

THE COURT ADMITTED [HEARSAY] AND OTHER EVIDENCE THAT SHOULD NOT HAVE BEEN ADMITTED. THE DECISION SHOULD BE REVERSED BECAUSE IT IS BASED ON IMPROPER EVIDENCE.

POINT XV

THE DECISION SHOULD BE REVERSED BECAUSE IT IS AGAINST THE WEIGHT OF THE EVIDENCE.

III

Tobin's first argument is that the third-party complaint against him should have been dismissed for failure to file an affidavit of merit as required by N.J.S.A. 2A:53A-27. Judge Smith rejected this argument, and so do we. The Affidavit of Merit Statute became effective on June 29, 1995 and is applicable "to causes of action which occur on or after the effective date of this act." L. 1995, c. 139, 5. In determining the applicability of the statute, "the critical inquiry is whether the actual conduct underlying the claim took place before the effective date of the [Affidavit of Merit Statute]." Christie v. Jeney, 167 N.J. 509, 511 (2001). The determinative factor is whether the majority of the "legally-significant facts" occurred prior to June 29, 1995. Id. at 519. In this case, the majority of the legally significant facts occurred in 1988. Therefore, no affidavit of merit was required.

Further, an affidavit of merit is not required in a common knowledge malpractice case when expert testimony is not necessary to establish that the actions of the professional fell outside acceptable professional standards of practice. Hubbard v. Reed, 168 N.J. 387, 390 (2001); Palanque v. Lambert-Woolley, 168 N.J. 398, 406 (2001). As we will discuss in the next section of this opinion, we agree with Judge Smith's conclusion that this was a common knowledge case.

IV

In his second point, Tobin argues that the judge's findings were not supported by adequate, substantial and credible evidence because there was no testimony proving any negligence or professional misconduct on his part. He contends he was acting in accordance with his client's instructions and there was an absence of expert testimony establishing his negligence.

In his third point, Tobin argues that he could not have committed malpractice against the Fiorettis or Cangialosi because no "privity of contract" existed between any of those parties and him. In essence, Tobin's argument is that he owed no duty to the Fiorettis or Cangialosi. And, in his Point XV, Tobin argues that the judge's decision was against the weight of the evidence.

A trial judge's findings are generally "binding on appeal when supported by adequate, substantial and credible evidence." Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974). From our review of the record, we are satisfied that Judge Smith's findings are well-supported by ample record evidence.

To prevail on a legal malpractice claim, a plaintiff must prove "(1) the existence of an attorney-client relationship creating a duty of care by the defendant attorney, (2) the breach of that duty by the defendant, and (3) proximate causation of the damages claimed by the plaintiff." McGrogan v. Till, 167 N.J. 414, 425 (2001).

With respect to the first element, it is by now well- established that attorneys owe a duty not only to their clients, "but also to third parties such as the court and opposing counsel." LaBracio Family P'ship v. 1239 Roosevelt Ave., Inc., 340 N.J. Super. 155, 162 (App. Div. 2001). "Attorneys may also owe such duties to an adverse party." Ibid. Thus, "attorneys may owe a limited duty in favor of specific non-clients." Petrillo v. Bachenberg, 139 N.J. 472, 479 (1995). This is so when an attorney knows or should know that non-clients will rely on the attorney's representations and the non-clients are not too remote from the attorney to be entitled to protection. Id. at 483-84.

Applying these principles, we find no error in Judge Smith's conclusion that Tobin owed a duty of care to the Fiorettis and Cangialosi. That duty consisted of the obligation to execute and return the release of the Pension Plan mortgage to Cangialosi in 1988, or to advise or communicate with Cangialosi or the Fiorettis that the release would not be coming or any reasons why the release would not be signed. Tobin also had a duty in 2001 to return the executed release. However, instead of returning the release, he communicated to Gencarelli that he represented the Pension Plan and he embarked upon negotiations to extract a payment for the release. At that time, the Pension Plan was a defunct or inactive corporation, and Tobin did not advise Gencarelli of that. Notwithstanding entitlement to the release in 1988 for only nominal consideration, Tobin extracted $15,000 for its payment in 2001.

Expert testimony is not required to establish an attorney's duty of care "where the duty is so basic that it may be determined by the court as a matter of law." Brizak v. Needle, 239 N.J. Super. 415, 429 (App. Div.), certif. denied, 122 N.J. 164 (1990). Thus, expert testimony is not necessary to establish proximate cause where the causal relationship between the attorney's legal malpractice and the client's loss is obvious. Sommers v. McKinney, 287 N.J. Super. 1, 11 (App. Div. 1996). Typically, "if the adequacy of an investigation or the soundness of an opinion is the issue, a jury will usually require the assistance of an expert opinion." Ibid.; see also Stewart v. Sbarro, 142 N.J. Super. 581, 591-92 (App. Div.) (expert testimony not needed where attorney failed to execute and record bond and mortgage), certif. denied, 72 N.J. 459 (1976).

This was a straightforward case in which an attorney had an obligation to return a release to which someone was entitled, and in which a duty was so basic that it could be determined by the court as a matter of law. The issue here did not involve the soundness of an opinion or the adequacy of an investigation.

Judge Smith's finding that Tobin breached his duty was well supported by adequate, substantial and credible evidence. As we have stated, the judge found Tobin's testimony incredible and Cangialosi's credible; he also found Gencarelli's credible. Based upon his assessment of the testimony rendered by those individuals, he properly found that Tobin failed to do what he was required, namely to deliver the executed release for nominal consideration.

Finally, the judge correctly found that the breach proximately caused the Fiorettis' damages. They would not have had any damages if Tobin had returned the release in 1988. And, if he would have done so promptly when requested in 2001, any damages would have been minimal.

Accordingly, we conclude that the elements of attorney malpractice were proven and well supported by the record evidence.

V

We now address the argument raised in Tobin's Point V, that any claims against the Pension Plan, Cangialosi, or Tobin were not actionable because the statute of limitations had run. He argues that the actionable conduct occurred in 1988 and the third party complaint was filed against him on July 27, 2006, beyond the limitation period. We disagree.

Cangialosi's contribution claim against Tobin did not begin to run until the Fiorettis recovered a judgment from Cangialosi. Mettinger v. Globe Slicing Mach. Co., 153 N.J. 371, 387 (1998). Therefore, because Cangialosi's claim against Tobin for contribution was filed before the Fiorettis obtained a judgment against Cangialosi, the contribution claim had not yet begun to accrue and was not time-barred.

The claim was not time-barred for another reason as well. The limitation period did not begin to run until the Fiorettis discovered the malpractice in 2001. Under the discovery rule, the limitation period "begins to run only when the client suffers actual damage and discovers, or through the use of reasonable diligence should discover, the facts essential to the malpractice claim." Grunwald v. Bronkesh, 131 N.J. 483, 494 (1993). In the case before us, the attorney malpractice occurred in 1988 when the release of the Pension Plan mortgage was not executed and returned to Cangialosi, and in 2001 when Tobin demanded $15,000 in exchange for an executed release. However, the Fiorettis did not suffer actual damage or discover the facts essential to the malpractice claim until 2001. The initial complaint was filed on October 27, 2003, well within the limitation period. And, Cangialosi's third-party complaint against Tobin was filed on July 27, 2006, also within the limitation period.

VI

In his Point VI, Tobin argues there was no duty on the part of the Pension Plan to give a release of any part of the mortgage without payment according to the mortgage terms. He argues that the terms of the mortgage stated it would be discharged upon payment of $100,000 in principal plus interest, but this money was never paid. He further argues that another provision of the mortgage allowed for releases of condominium units for a payment of $4000 principal per unit. Tobin argues that parol evidence should not have been permitted to contradict these written terms in the mortgage. We disagree.

Judge Smith's finding that the Fiorettis were entitled to the executed release for nominal consideration is well supported by the record. The terms of the mortgage were not clear regarding how releases for the individual units in the Sherman Estates development were to be secured, and thus the judge did not mistakenly exercise his discretion in considering Cangialosi's testimony on this issue.

When reading a contract, the court's "goal is to discover the intention of the parties." Marchak v. Claridge Commons, Inc., 134 N.J. 275, 282 (1993). The court accomplishes this by considering the contractual terms, the surrounding circumstances, and the purpose of the contract. Ibid.

In Conway v. 287 Corporate Center Associates, 187 N.J. 259, 268 (2006), the New Jersey Supreme Court discussed the parol evidence rule, noting that, in general, it "prohibits the introduction of evidence that tends to alter an integrated written document." The Court explained:

[W]e permit a broad use of extrinsic evidence to achieve the ultimate goal of discovering the intent of the parties. Extrinsic evidence may be used to uncover the true meaning of contractual terms. It is only after the meaning of the contract is discerned that the parol evidence rule comes into play to prohibit the introduction of extrinsic evidence to vary the terms of the contract.

[Id. at 270.]

We find no error in Judge Smith's consideration of Cangialosi's testimony that mortgage releases on units in the building were to be given for nominal consideration.

Tobin asserts that the mortgage language clearly stated that releases were to be given in exchange for a payment of $4000. However, the judge found that this provision likely related to condominium units in Newark, and not units in the Sherman Oaks development. The provision cited by Tobin states in full:

As the primary collateral for this Mortgage Note, 759 Summer Avenue Urban Renewal Co., a New Jersey Limited Partnership, which is a related entity of the Mortgagor herein, is giving the Mortgagee herein, a Second Mortgage on property located at 759- 773 Summer Avenue and 57-73 Halleck Street, Newark, New Jersey subject to the terms and conditions contained in that Mortgage and as stated herein. 759 Summer Avenue Urban Renewal Co. has obtained approvals to construct 132 condominium units at the Newark property referred to above. First, the Mortgagee herein agrees to subordinate this Mortgage to a construction loan for all hard and soft costs for the condominium project in an amount of not less that $7,000,000.00. The Mortgagee shall execute any additional documents that may be requested by the Mortgagor or Mortgagor's First Mortgage - Construction Lender to further evidence same. Second, the Mortgagee agrees to a per unit release formula of $4,000.00 principal payment per condominium unit plus all accrued interest to date of release on only that $4,000.00 principal payment from the date hereof until the date of the release of the unit.

Judge Smith's interpretation of this provision of the contract is a reasonable one, and should not be disturbed.

Tobin also argues that the mortgage could only be discharged upon payment of $100,000 principal. However, that provision of the mortgage states that "the Mortgagor shall pay to Mortgagee the sum of $100,000.00 principal plus all interest due for that $100,000.00 principal payment due on that date." This provision referred to repayment of the mortgage by the mortgagee, and did not provide the way in which individual units were to be released from the mortgage.

Thus, contrary to Tobin's argument, the terms of the mortgage were not clear as to how the individual units in the Sherman Estates development were to obtain releases from the Pension Plan mortgage, and thus the judge did not mistakenly exercise his discretion in considering other evidence to make a determination as to how these releases were to be obtained.

The public offering statement for the building stated that individual units were to be released for nominal consideration. Also, Cangialosi testified that other units in the building were released from the Gold mortgage for nominal consideration and supporting documentary evidence was produced. And, the judge found Tobin's testimony that releases were only given for a payment of $4000 not to be credible.

VII

In his Point XIII, Tobin argues that Cangialosi should not have been permitted to file a third-party complaint against him so late in the proceeding, namely two years and six months after Cangialosi filed his original answer. Tobin claims he was prejudiced in that he received answers to interrogatories only a few days before trial.

These are the circumstances underlying this argument. The Fiorettis commenced the litigation on October 27, 2003. Tobin filed an answer on behalf of the Pension Plan and Gold individually on March 24, 2004. Therefore, in his capacity as counsel for parties to the suit, Tobin was involved in the litigation from the beginning. As such, he was fully familiar with the issues, discovery, the positions of the parties, and the like.

When the case came before Judge Dumont for trial on May 25, 2006, Cangialosi moved to amend his pleadings to file a third-party complaint against Tobin on a theory of contribution. Cangialosi's attorney stated his legal theory was "that when an attorney makes a representation that he will undertake to perform a responsibility, be it whatever, that the attorney owes a duty of care to another attorney to fulfill that representation." He further stated he did not believe any additional discovery was necessary, other than submitting an amended expert report.

Judge Dumont, although recognizing that the motion was made at a late stage in the litigation, granted it. He disqualified Tobin from representing the Pension Plan. And, noting that the trial of the case was going to be adjourned in any event, the judge saw no reason why all issues should not be resolved at the same time.

An order was entered allowing the filing of a third-party complaint, and Cangialosi filed it on July 27, 2006. The case was then tried before Judge Smith on October 17 and 18, 2006.

Ordinarily, a third-party complaint must be filed within ninety days after service of the original answer, but the time period may be enlarged by leave of court. R. 4:8-1(a). "The grant or denial of a motion for leave to proceed against a third-party defendant is a matter left to the sound discretion of the trial judge." Scott v. Garber, 82 N.J. Super. 446, 451 (App. Div. 1964). Generally, the denial of such a motion is sustainable if made on the ground that allowing the third-party complaint would complicate the proofs and thus it would be better to keep the two matters separate, that it would delay trial, or that it would unduly prejudice the litigants. Ibid.; Du-Wel Products, Inc. v. U.S. Fire Ins. Co., 236 N.J. Super. 349, 364 (App. Div. 1989), certif. denied, 121 N.J. 617 (1990).

It was not until the May 25, 2006 court proceeding that Cangialosi was made aware that the Pension Plan was either an inactive or defunct corporation, and that Tobin negotiated for the $15,000 on behalf of that corporation. Under the circumstances, we find no mistaken exercise of discretion in allowing Cangialosi's claim against Tobin to proceed when it did. Doing so did not complicate the proofs because the contribution claim involved many of the same facts and was based on much of the same testimony as Fiorettis' claims. Allowing the third-party complaint achieved the goal of having all issues resolved in one proceeding, and it did not delay the trial.

Moreover, Tobin gives no explanation as to how he was prejudiced. Scott, supra, 82 N.J. Super. at 451. He acknowledges that trial was adjourned so he would have time to serve interrogatories, and then states, without explanation, that he was prejudiced because answers to interrogatories were returned only eleven days before trial.

Tobin provides no information regarding these discovery issues in the record or in his statement of facts. Further, as we have stated, Tobin was involved in this litigation from its beginning and was thoroughly familiar with all aspects of it. He does not explain what additional information he would have requested if given more time to do so.

Accordingly, we are satisfied there was no prejudice to Tobin and the judge did not mistakenly exercise his discretion in allowing Cangialosi to file a late third-party complaint.

VIII

The argument Tobin raises in Points IV, VII, VIII, IX, X, XI, XII and XIV lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

Affirmed.

Chicago Title Insurance Company was originally named by the Fiorettis as a defendant. The Fiorettis settled their claim against Chicago Title. The terms are not disclosed in the record before us.

The judge found there was "approximately a 50/50 split of this money between [Tobin] and Melvin Gold," notwithstanding Tobin's testimony that he withheld approximately $2000 to $4000 and distributed the balance to Gold.

The judge also found that Cangialosi was entitled to contribution from Gold. However, Gold had earlier been dismissed from the case. The Pension Plan was unrepresented at trial, and no final judgment was entered against the Pension Plan.

The judgment also awarded the Fiorettis and Eli Company counsel fees against Cangialosi, which is not implicated in this appeal.

Although the judgment amount is slightly at variance with the figures expressed by the judge in his oral decision, we consider the terms of the written judgment controlling. See Glaser v. Downes, 126 N.J. Super. 10, 16 (App. Div. 1973), certif. denied, 64 N.J. 513 (1974) (holding that appeals are taken from judgments, not from oral opinions).

(continued)

(continued)

27

A-0039-07T1

February 25, 2009