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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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consolidated matters below, appeals from the trial court's entry of an order dated March 12, 2007 that 1) "revoked and rescinded and deemed Void Ab Initio" a certain deed central to the underlying litigation; and 2) ordered defendant to show cause as to why she should not be referred to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 ...