October 7, 2008
CARLOS MOLINA, PLAINTIFF,
WANDA WINGOOD, BRYANT WINGOOD, MISTAKENLY DESIGNATED AS BRIAN WINGOOD,*FN1 DEFENDANTS, AND MICHELLE M. SIMMSPARRIS, DEFENDANT-APPELLANT, AND FGC COMMERCIAL MORTGAGE FINANCE, D/B/A FREMONT MORTGAGE, DEFENDANT/INTERVENOR-RESPONDENT, AND WANDA AUSTIN-WINGOOD, THIRD-PARTY PLAINTIFF,
STEWART TITLE GUARANTY COMPANY, THIRD-PARTY DEFENDANT-RESPONDENT,
WANDA AUSTIN-WINGOOD, PLAINTIFF-RESPONDENT,
CARLOS MOLINA, JULIA FANA/MOLINA, DEFENDANTS-RESPONDENTS.
On appeal from the Superior Court of New Jersey, Chancery Division, Bergen County, Docket No. C-29-06 and C-36-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 10, 2008
Before Judges Parrillo, Lihotz and Messano.
Appellant Michelle M. SimmsParris, an attorney-at-law and defendant in one of two consolidated matters below, appeals from the trial court's entry of an order dated March 12, 2007 that 1) "revoked and rescinded and deemed Void Ab Initio" a certain deed central to the underlying litigation; and 2) ordered defendant to show cause as to why she should not be referred to the "appropriate District Ethics Committee."
The underlying litigation arose when plaintiff Carlos Molina negotiated the sale of his property located at 392 Marlboro Road, Englewood, to his neighbor, defendant Wanda Austin-Wingood. The parties executed a sales contract for the property on October 20, 2005 with a tentative closing date of November 15, 2005.
Molina alleged that the transaction was essentially a mechanism whereby his soon-to-be ex-wife, Julia Fana, who apparently had poor credit, could ultimately own the home. According to Molina, Fana was going to remain in the property pursuant to a use and occupancy agreement with the ultimate goal of re-purchasing the property from Austin-Wingood in the near future when Fana's credit rating had been rehabilitated and she qualified for a mortgage. Austin-Wingood's husband, defendant Bryant Wingood, who was a real estate and mortgage broker, was going to secure a mortgage for Fana. Molina was to pay the closing costs of the original transaction, as well as a "transaction fee" to defendants.
SimmsParris, representing Austin-Wingood in the purchase, prepared the use and occupancy agreement and delivered it to Molina's attorney. Molina, who was about to leave the country, reviewed the document with his attorney and apparently indicated that some of its provisions were inconsistent with the understanding he had reached with defendants. Molina executed a deed and affidavit of title. He instructed his counsel to turn the documents over to Wingood that evening, along with a lease that was to substitute for the use and occupancy agreement and was to be signed by defendants and Fana. It was anticipated that Molina would not attend the closing, but Fana would, and the lease would be executed and the sale closed.
A dispute arose over the ancillary documents, i.e., whether the use and occupancy agreement or the lease should be executed by Fana and defendants. The dispute continued past the November 4 closing date and on November 15, 2005, without notice to Molina or his attorney, Austin-Wingood, represented by appellant, executed the necessary mortgage documents and the mortgage proceeds received from intervenor FGC Commercial Mortgage Finance d/b/a Fremont Mortgage (Fremont), were deposited in appellant's trust account. A second closing date, November 17, was apparently scheduled, though it is disputed whether Molina's counsel was able to actually confirm that the closing was to occur. On November 23, 2005, as disputes regarding the lease and use and occupancy agreement continued, Molina instructed his attorney to cancel the contract for sale. On that same day, plaintiff's counsel informed appellant the contract was cancelled.
Austin-Wingood filed a complaint for specific performance against Molina and Fana. Several days later, Molina filed a verified complaint and order to show cause seeking injunctive relief against Austin-Wingood, Wingood, and appellant. In the interim, it was disclosed that appellant had paid off the existing mortgage that Molina had on the property using the Fremont mortgage proceeds.*fn2 Molina amended his verified complaint to add a count alleging legal malpractice against appellant.
Judge Peter E. Doyne entered a consent order on February 21, 2006 that consolidated the two actions and temporarily enjoined all parties from taking any action to transfer or record title to the premises. The parties filed their respective answers to the complaints, and Judge Doyne considered plaintiff's request for continued restraints on the return date of the order to show cause, as well as the parties' other requests for dispositive relief. In a concise written opinion, Judge Doyne concluded factual disputes foreclosed final disposition of the complaints, and he continued the temporary injunction on the transfer of title pending trial.
On April 24, 2006, Fremont was permitted to intervene. Fremont filed a cross-claim against Austin-Wingood and appellant on April 27, 2006, and a counterclaim against Molina demanding reimbursement of its loan proceeds or imposition of an equitable mortgage. On July 28, 2006, Austin-Wingood filed an amended answer to Molina's complaint, a cross-claim against appellant, and a third-party complaint against Stewart Title Guaranty Company (Stewart). Judge Doyne issued a mediation order on September 28, 2006. On October 31, 2006, the parties mediated their disputes before retired judge Gerald C. Escala. In a letter dated November 6, 2006, Escala laid out the terms of a settlement reached at mediation. Among other things, the agreement required title in the property to remain with Molina, who in turn would execute a deed to Fana in anticipation of her re-financing of the property. Defendants were to receive certain amounts from a pool of settlement proceeds contributed by Stewart and appellant, who was to make a $4000 cash payment.
On November 17, 2006, Cassandra T. Savoy, an attorney who had represented appellant at the mediation, faxed Judge Doyne a message stating "[appellant] arrived at my office this afternoon to advise me that she has changed her mind about the settlement. She believes in good conscience, she simply can not settle." Judge Doyne responded by letter dated November 22, 2006 that "the Court deems the matter settled and shall await the appropriate order." He invited any applications "to enforce and/or vacate the settlement as may be prosecuted." On December 1, 2006, no motions to enforce or vacate the settlement having been filed, Judge Doyne entered an order dismissing the litigation.
On December 8, 2006, appellant recorded the November deed conveying the property from Molina to Austin-Wingood. Appellant altered the original deed as executed by Molina, adding her own name and signature to the "Prepared by" designation on the deed, and attesting to Molina's signature, though he did not sign the deed in her presence. Appellant also prepared and executed an affidavit of consideration indicating the deed was exempt from the realty transfer tax because it was filed "[i]n specific performance of a final judgment by way of court order dated December 1, 2006." Appellant did so without any notice to the parties or the court.
In late January, Wingood and Austin-Wingood moved to enforce the terms of the settlement complaining that Fana had failed to obtain mortgage financing as required. Appellant, now representing herself as a result of a substitution of attorney filed by herself and Savoy, supported the enforcement of the settlement as to the relief sought by Austin-Wingood and Wingood, noting the request did not "affect Michelle M. SimmsParris or her interests." However, she claimed in her certification that Savoy did not have her authority to settle the litigation and urged that the motion otherwise should be denied. Notably, appellant never indicated that she had already filed Molina's November deed for the property, nor did she move to vacate the settlement.
On February 16, 2007, appellant appeared along with other counsel and argued the motion to enforce. Though we have not been provided with a transcript of the proceedings, Judge Doyne apparently concluded the terms of the settlement reached at mediation should be enforced. On February 22, 2007, in response to the circulation of a proposed order by counsel for Austin-Wingood, appellant wrote to Judge Doyne objecting to the proposed order because she "never agreed to the terms contained in the settlement . . . ." On February 26, 2007, Judge Doyne issued an order enforcing the settlement as set forth after mediation. It provided that "[t]itle to the property will remain with  Molina, and he will deed his interest to [Fana], who will simultaneously refinance such a transfer." The order further provided that in the event appellant refused to make her $4000 contribution to the settlement, "she w[ould] be severed from the settlement agreement and the remaining parties may pursue a claim against [her.]" The order specifically noted that no motion had been filed by appellant seeking to vacate the settlement.
By March 8, 2007, the December deed transferring the property to Austin-Wingood had been discovered, and Molina's counsel faxed an Order to Show Cause with temporary restraints to Judge Doyne asking to void the deed. Judge Doyne ordered the matter be heard on March 12, 2007. Appellant refused to appear, instead sending a letter to Judge Doyne in which she "respectfully decline[d] to voluntarily avail herself to the jurisdiction of the court for the underlying matter." Appellant again claimed that she "never agreed to the terms of the purported settlement agreement that was allegedly entered into by the parties[,]" claiming she "became aware of the other parties' settlement agreement in February 2007." After conducting a hearing with counsel for the other parties, Judge Doyne entered an order revoking, rescinding and deeming the deed void ab initio, and ordering appellant to show cause why the matter should not be referred to the appropriate District Ethics Committee. This appeal followed.*fn3
Appellant contends 1) that Judge Doyne did not have jurisdiction to enter the order under review because the litigation had been dismissed; 2) that Molina was barred from seeking to void the deed by application of the entire controversy doctrine (ECD); 3) that the judge could not consider Molina's request as a "summary action" under Rule 4:67; 4) that the entry of the March 12, 2007 order was "clear and unequivocal reversible error"; 5) that the judge had no legal basis to void "a valid deed"; and 6) that her due process rights were violated by entry of the order. We have considered the arguments appellant raises in light of the record and applicable legal standards and conclude they lack sufficient merit to warrant extensive discussion in this opinion. R. 2:11-3(e)(1)(E). We affirm and add only these brief comments.
Appellant has not appealed from the February 26, 2007 order that enforced the terms of the settlement reached at mediation. It is axiomatic that a trial court always retains jurisdiction to enforce its orders, Joseph Harris and Sons, Inc. v. Van Loan, 23 N.J. 466, 469 (1957), and absent fraud, coercion, deception, undue pressure, or incompetency, "[a] settlement between parties to a lawsuit is a contract like any other contract . . . which a court . . . should honor and enforce as it does other contracts." Jennings v. Reed, 381 N.J. Super. 217, 227 (App. Div. 2005) (citations omitted). Therefore, when Judge Doyne entertained Molina's request for relief, it was in the context of enforcing the prior order that in turn enforced the settlement reached by the parties leading to the dismissal of the complaints. That dismissal was not an adjudication on the merits, R. 4:37-1(b), and in no way altered the court's ability to enforce its prior order in a reasonable fashion. Molina's request to void the prior deed clearly served the purposes of the settlement because it permitted him to convey the property to Fana as contemplated by the parties' agreement.
Appellant's ECD argument is equally unavailing. Without discussing the doctrine extensively, we note that its application precludes a litigant from subsequently asserting claims he could have brought in a prior proceeding. R. 4:30A. We have explicitly held, however, that "the entire controversy doctrine does not apply to post-judgment motions to enforce litigant's rights." Irish Pub v. Stover, 364 N.J. Super. 351, 357 (App. Div. 2003). Both the original motion to enforce the settlement brought by Austin-Wingood, and the subsequent order to show cause brought by Molina, were efforts to enforce the settlement, and neither was barred by the ECD.
Appellant's arguments that the order under review was the product of some procedural infirmity, or otherwise was erroneously entered on its merits, are unpersuasive. Citing Rule 4:67-3, Molina's attorney filed the order to show cause as a "summary proceeding." Appellant correctly points out that the matter was not a "summary procedure" as contemplated by Rule 4:67, and that the appropriate procedural mechanisms contemplated by the rule were not employed. However, none of that matters in our opinion. After the entry of the February 26 order, requiring title to remain with Molina, appellant failed to notify the judge or the other parties that she had secretly recorded a deed in Austin-Wingood's favor in December 2006. She was clearly obligated to do so, and therefore, any mechanism utilized to bring this information to the judge's attention and rectify the situation was warranted. Moreover, appellant was on notice of the hearing, chose not to attend, and filed opposition with the court challenging its jurisdiction. Her procedural arguments are meritless.
Appellant's substantive arguments regarding the judge's decision to void the deed are unavailing. Having never told Judge Doyne in the first place that she secretly recorded a deed in December, appellant never raised the argument that the deed was in fact legally sufficient below. We therefore do not consider the contention. Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973). Moreover, the December deed was not properly executed and delivered, a prerequisite of the transfer of title to real estate. See H.K. v. Dept. of Human Svcs., 184 N.J. 367, 382 (2005).
Lastly, appellant argues that she was denied her due process rights because Judge Doyne "ordered [her] to appear at a hearing wherein the subject matter . . . related to attorney ethics." She claims the judge had no authority to do so. Rule 1:18, however, provides "it shall be the duty of every judge to abide by and to enforce the provisions of the Rules of Professional Conduct . . . and the provisions of R. 1:15 and R. 1:17." Appellant concedes that Judge Doyne had the obligation to report conduct he reasonably believed violated those rules.
By providing appellant with an opportunity to appear in the future and explain why her conduct should not be referred to the local district ethics committee in the March 12, 2007 order, Judge Doyne was providing her with more, not less, process than she was due.