On appeal from the Superior Court of New Jersey, Law Division, Passaic County.
Dreier and Baime. The opinion of the court was delivered by Dreier, J.A.D.
Defendant Paul Bechtel appeals from a summary judgment entered in favor of plaintiff Ramapo Bank, and from the denial of his motion to reopen the judgment on the grounds of newly discovered evidence. Based upon his written guaranty, he was held liable to plaintiff for the full amount owing to the Bank from Dantel Associates, Inc.
On June 8, 1981, plaintiff Ramapo Bank loaned $204,000 to Dantel Associates, Inc. Dantel Associates' two principals, defendants
Paul Bechtel and Daniel Rebish, and the third-party defendant, Anthony Trobiano, each signed a "Continuing Guaranty" personally guaranteeing payment of the loan. In November 1985 Dantel Associates defaulted on the loan payments, and in February 1986 plaintiff filed a complaint electing to collect the balance only from Bechtel and Rebish. Bechtel filed a third-party complaint against Trobiano asserting that if a judgment was rendered, Trobiano would be equally liable. In June 1986 the Bank filed a motion for summary judgment.
Defendant Bechtel began strongly to suspect that the Bank had made a specific agreement with Trobiano not to pursue him for any money due on the loan. Trobiano's certification accompanying the summary judgment motion mentioned that he understood that he "could never be held jointly responsible for any amount which remained due and owing upon any default of Rebish and Bechtel on the original loan." Also, attached to a proposed settlement document, forwarded to defendant from the Bank on September 23, 1986, was a letter dated March 27, 1986 from the Bank's attorneys to Trobiano which stated:
Several months ago, Pete Eddy prepared a document for you to sign which confirmed your prior guaranty and which would authorize Ramapo not to pursue your guaranty while chasing Bechtel, et al. . . . Although Ramapo will not be pressing any claim against you in this action, I'd like you to confirm that you have no objection to our representing Ramapo in this action.
On September 25, 1986 based on this information, defendant Bechtel filed a motion seeking leave to amend his pleadings to file an amended answer and third-party complaint alleging fraud in the inducement as a defense to the Bank's claim and as a separate claim against Trobiano. On September 26, 1986, the trial judge entered summary judgment in favor of the Bank, refusing to consider defendant's moving papers.
At the suggestion of the court, defendant filed a motion to set aside the judgment based on newly discovered evidence; but on October 24, 1986, the court denied the motion holding that as a matter of law there was no newly discovered evidence. The
court, however, permitted defendant to file an amended third-party claim against Trobiano.
In February 1987 a final judgment of $89,269.19 plus $9,685.30 in attorney fees was entered against defendant.*fn1 On April 6, 1987 the court entered partial summary judgment in favor of Bechtel and against Trobiano for $49,477.24, one-half of the amount Bechtel owed to the Bank. Since Bechtel's claim of fraud was still awaiting trial, discovery continued and included a deposition of Trobiano, affidavits of the two brokers who arranged the sale and an affidavit of the bank officer who arranged the financing. From this discovery, available to us under our order expanding the record, it appears that prior to the loan there was a specific agreement between the Bank and ...