March 2, 2009
MICHAEL S. KIMM, ESQ., PLAINTIFF-APPELLANT,
SEOK JIN KIM AND HWANG SUK GO, DEFENDANTS/THIRD-PARTY PLAINTIFFS-RESPONDENTS,
SE HWAN PARK AND MI OK LEE, THIRD-PARTY DEFENDANTS.
On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-16-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 13, 2009
Before Judges Wefing, Parker and Yannotti.
Plaintiff appeals from (1) a judgment entered by the Law Division on October 19, 2007, following a jury trial, which awarded defendants $24,487.33, with interest, on their counterclaim against plaintiff for legal malpractice; (2) an order entered on November 16, 2007, which denied plaintiff's motion for judgment notwithstanding the verdict; (3) an order entered on December 7, 2007, which awarded defendants attorney's fees and costs in the amount of $11,234.76; and (4) various rulings made by the trial court during this litigation. For the reasons that follow, we affirm.
In May 2003, plaintiff Michael S. Kimm filed a complaint against defendants Seok Jin Kim (Kim) and his wife Hwang Suk Go (Go) in the Special Civil Part, alleging that defendants breached an agreement to pay legal expenses in the amount of $8,487.50 that were incurred by plaintiff's clients, Se Hwan Park (Park) and his wife Mi Ok Lee (Lee). Defendants filed an answer denying liability and asserted counterclaims against plaintiff for consumer fraud, fraud, and legal malpractice. Defendants also asserted a third-party claim against Park and Lee for consumer fraud and fraud.
The claims arose out of the purchase by defendants of a house, which was placed in the names of Park and Lee. Plaintiff alleged that defendants agreed to pay the cost for the legal advice rendered to Park and Lee with regard to that transaction. Defendants claimed that they placed the property in Park's and Lee's names because plaintiff erroneously advised them that, as Korean nationals, they could not purchase property in the United States. Defendants also claimed that Park and/or Lee made false representations to them with regard to the transaction, which they relied upon to their detriment.
In August 2003, the Special Civil Part dismissed plaintiff's complaint because he had not provided defendants with notice pursuant to Rule 1:20A-6 that defendants had a right to seek arbitration regarding the fees that plaintiff claimed were owed to him. At some point thereafter, the matter was transferred to the Civil Part of the Law Division. In November 2005, plaintiff provided defendants with the Rule 1:20A-6 notice, and in February 2007, plaintiff filed a motion to reinstate his claims against defendants. On February 16, 2007, the trial court entered an order granting plaintiff's motion.
In August 2007, plaintiff filed a motion for summary judgment on defendants' counterclaims, and Park and Lee filed a motion to dismiss the third-party complaint filed by defendants.
The court considered the motions on September 17 and September 18, 2007. The court dismissed defendants' consumer fraud claim against plaintiff but denied plaintiff's motion for summary judgment on defendants' fraud and legal malpractice claims. The court also denied Park's and Lee's motion to dismiss defendants' consumer fraud and fraud claims.
The remaining claims were tried before a jury. At the trial, plaintiff testified that Park and Lee were his clients from late August 2001 to early April 2003. He said that Lee first contacted him on August 22, 2001 and said that she was "doing a favor" for defendants. Plaintiff said that Lee told him that, although defendants were paying all of the costs to purchase a house in Little Ferry, Park and Lee intended to have title to the property placed in their names. Lee also said that defendants had agreed to pay his fees "after everything was done."
Plaintiff further testified that, in November or December 2001, defendants retained Sung B. Rim (Rim) to act as their attorney. According to plaintiff, Rim had demanded that Lee sign a promissory note. Plaintiff called Rim and objected to his communicating with Lee. Thereafter, defendants retained Frederic Shauger (Shauger) to act as their attorney. At some point, Park and Lee agreed to transfer title to the house to defendants.
Plaintiff said that, in July 2002, Shauger provided him with a draft agreement for the "sale" of the property by Park and Lee to defendants. Plaintiff replied to Shauger's draft in a letter dated August 20, 2002.
In his letter, plaintiff stated that the draft was generally "acceptable" but he wanted language included in the contract indicating that Park and Lee had purchased the property in defendants' names "as a personal favor" because defendants "were in the process of transitioning to the United States from the Republic of Korea[.]" Plaintiff also told Shauger that he wanted defendants to execute an addendum to the contract, which stated that defendants would indemnify and hold Park and Lee harmless from any expenses that they had incurred with regard to the house, an automobile purchased in Park's name, a cell phone purchased in Lee's name, related insurance policies, as well as related legal fees, professional fees, and out-of-pocket costs. Shauger drafted the addendum and provided it to Kimm.
Plaintiff testified that the addendum was intended to cover all expenses and claims that Park and Lee might have "for doing the house, doing the car, doing the cell phone, doing the insurance for [the] benefit of Kim and Go even after the closing had occurred[.]" Plaintiff conceded, however, that he never received a signed addendum from defendants.
Even so, the second closing was scheduled to take place on April 3, 2003. On the day before the closing, plaintiff provided Shauger with a bill in the amount of $8,487.50 for the services plaintiff had rendered to Park and Lee. Defendants refused to pay plaintiff's bill.
In a letter dated April 2, 2003 to Shauger, plaintiff said that there "appears to be some confusion about [his] fees." He wrote that defendants had advised Park and Lee "from the very outset" that they would pay plaintiff's fee. He stated that the addendum to the contract "was intended to address such issues as professional fees and other expenses that may be incurred by Park/Lee." The closing took place on April 3, 2003; plaintiff's fees were not paid.
On cross-examination, plaintiff testified that Kim called him from Korea in late August 2001. Plaintiff stated that, in the phone call, he did not advise Kim that he could not purchase property in the United States. According to plaintiff, Kim called him merely to thank him for the work that plaintiff was doing for "his wife's friends[,] who were putting their names on the hook to help [defendants] make the transition into the United States[.]" Plaintiff testified that Kim never called him again.
Plaintiff also testified on cross-examination that he never stated that Korean nationals could not purchase property in the United States. However, plaintiff conceded that, in his complaint, he had alleged that, "In August 2001, defendants, who are Korean nationals who could not purchase property in the United States, obtained the assistance of plaintiff's client, Mi Ok Lee, and her husband to purchase the house" in Little Ferry. Plaintiff testified that the statements were different. He stated that he told Lee that defendants would have a problem purchasing the house because they did not have bank accountS, social security numbers or money.
Go testified that in July 2001, she traveled with her son from Korea to the United States so that he could participate in a piano competition in Ohio. Lee provided assistance to Go and her son and went with them to Ohio for the competition. Defendants decided to allow their son to remain in the United States to study, and Go initially resided with Lee while her son attended school. Lee rented Go a room in her home.
Go testified that, at some point, she asked Lee to find her another place to rent. Lee told Go that there was no place in the area for rent and there was only one house available for purchase. Lee took Go to see the house and Go made a $1,000 deposit on the house. Go testified that Lee told her that she would not be able to purchase the house because she had a tourist visa and did not have any credit standing.
Go told Lee that she could pay for the house in cash but Lee said that the cash could be "traced" and therefore a mortgage was required. Lee said that she would take out a mortgage on the property. Lee informed Go that she would have to pay all of the costs required to purchase the house, including expenses and closing costs.
Go said that her husband was initially opposed to purchasing the house but he eventually agreed to purchase the house on the terms suggested by Lee. In addition to agreeing to buy the house, Go purchased an automobile with Park's assistance. Go paid $25,000 for the car and title to the vehicle was placed in Park's name. In addition, Go purchased a cell phone in Lee's name.
The closing on the house took place on November 2, 2001. Go was present. One day after the closing, Go learned that, contrary to what Lee had told her, a Korean citizen visiting the United States with a tourist visa could purchase property in this country. Go confronted Lee with this information. Lee said that, as far as she knew, a person with only a tourist visa could not purchase property in the United States. Lee told Go that she should discuss the matter with plaintiff. Go asked Lee to transfer title to the house to defendants.
Go retained Rim to arrange for the transfer of title. Rim failed to do so. Go then retained Shauger to act as her attorney. Although Shauger provided plaintiff with a draft of an agreement to transfer title from Park and Lee to defendants, Go and Kim never signed the agreement. Nevertheless, at a closing that took place on April 3, 2003, Park and Lee transferred title to the property to defendants. Go stated that, at the closing, she paid closing costs of $12,482 and a mortgage pre-payment penalty in the amount of $12,004.63.
Kim also testified. He said that it was his understanding that his wife had arranged with Lee to purchase the house in Little Ferry. Kim stated that he and Go agreed to pay all of the costs to acquire the house but Lee and Park would hold title to the property. Kim discussed purchasing the house with Lee. He said that, at first, he did not want to buy it. However, Kim again spoke to Lee and she convinced him to go forward with the purchase. Kim gave Lee about $108,000 towards the purchase price.
Kim further testified that he discussed the purchase of the house with plaintiff in a telephone call that Kim placed from Korea. Kim stated that he wanted to be sure that plaintiff was aware that he was sending money for the purchase of the house. According to Kim, in the phone call, plaintiff told him that Kim was "not able to purchase the home because you're a foreigner." Plaintiff told Kim to be "thankful" that Lee was "buying" the house for defendants.
Kim stated that he would never have allowed title to the property to be placed in Park's and Lee's names if he knew that he and Go could purchase property in the United States in their own names. Kim said that, shortly after the first closing, he learned that he and Go could legally purchase property in the United States. Kim also testified that defendants incurred additional expenses of $24,487.33 for the second closing.
Lee testified as well. She stated that Go asked her to purchase the house for defendants. Lee retained plaintiff to provide her with legal advice on how she could protect herself in the transaction. Lee denied that she told Go that Korean nationals could not own real estate in the United States. She said, however, that defendants' purchase of the property presented a "problem" because defendants did not have a credit history, social security numbers or a bank account, and there were limits on the amount of money defendants could transfer to the United States.
William H. Michelson (Michelson) testified as defendants' legal malpractice expert. He stated that, under the applicable rules of professional conduct, attorneys are only permitted to charge their clients a reasonable fee and they must communicate the basis for the fee in writing. Michelson testified that plaintiff's April 3, 2003 bill for services was "outrageous." He asserted that plaintiff's bill was "full of charges that are probably way in excess of the actual time that [plaintiff] put in on it." He also said that plaintiff's hourly rate of $350 an hour was "totally unreasonable."
Michelson additionally testified that plaintiff did not have a right to charge defendants fees because defendants were not his clients and plaintiff had no basis to look to them for payment. He said that defendants had never agreed in writing to pay the legal expenses incurred by Park and Lee and therefore the statute of frauds barred plaintiff from asserting his claim for fees against defendants.
Michelson also stated that, if plaintiff had advised Park and Lee about the potential for liability arising from their purchase of the house, car and cell phone for defendants, that would only be a "tiny fraction" of what was covered by the bill. He said that plaintiff had charged his clients twenty-four-and- a-quarter hours for rendering advice that should have only taken twenty-four-and-a-quarter minutes.
In addition, Michelson testified that it was his understanding that plaintiff told Kim that "foreigners or resident aliens . . . cannot own real estate in the United States and[,] therefore, if [defendants] wanted to buy a house, they were going to have to do it in somebody else's name." Michelson said that, if plaintiff gave Kim that advice, it was incorrect and constituted negligence.
Michelson explained that, even though defendants were not plaintiff's clients, plaintiff owed defendants a duty not to mislead them in any way and to give them truthful information in connection with the purchase of the home. He noted that defendants were "coming into the country brand new with a certain arrangement in mind, about how they were going to get settled and where were they going to live." He said that, although defendants were not plaintiff's clients, plaintiff's involvement with the transaction nevertheless had an impact upon them.
Michelson further opined that plaintiff had breached his duty to defendants by giving Kim misinformation in the telephone conversation. He stated that defendants had sustained damages as a result of plaintiff's breach because they had incurred legal expenses in this lawsuit as well as expenses in the second closing, "which should not have occurred[.]"
The jury determined that defendants were not contractually obligated to pay plaintiff's fees. The jury also determined that, under the circumstances, plaintiff owed defendants a duty and that plaintiff deviated from the accepted standard of legal practice with regard to defendants. The jury found that plaintiff's deviation proximately caused damages to defendants, and awarded them $25,000.
The jury also found that Park and/or Lee made material misrepresentations to defendants in order to induce them to place title to the house in the names of Park and Lee. The jury found that the representations were false and Park and/or Lee knew that the representations were false. The jury additionally determined that Park and/or Lee intended to deceive defendants, that defendants reasonably and justifiably relied upon the representations and were induced to take action based on the representations. The jury found that defendants were damaged thereby and awarded them $24,487.32.*fn1
On October 19, 2007, the court entered a judgment in accordance with the jury's verdict. Although the jury had awarded defendants $25,000 on their legal malpractice claim against plaintiff, the court molded the verdict to conform to the evidence and awarded defendants $24,487.33, with interest from the date of the judgment.
The judgment further provided that defendants were entitled to counsel fees and the costs of this litigation against plaintiff and required defendants to file an application for those fees and costs. The judgment awarded defendants $24,487.33 on their fraud claim against Park and Lee.
Park and Lee filed a motion for judgment notwithstanding the verdict. In addition, plaintiff filed a motion for judgment notwithstanding the verdict or a new trial. The court considered those motions on November 16, 2007. For the reasons stated on the record on that date, the court denied the motions. Defendants also made a motion for the award of attorney's fees and costs incurred in pursuing their legal malpractice claim. That motion was heard on December 7, 2007. The court awarded defendants attorney's fees and costs in the amount of $11,234.76. The court entered an order on December 7, 2007 memorializing its decision on the motion.
Plaintiff filed his notice of appeal on December 18, 2007. The trial court stayed the judgment against plaintiff pending disposition of this appeal. Park and Lee have not appealed from the judgment against them.
Plaintiff raises the following issues for our consideration:
POINT I THE LAW DIVISION ERRED IN FAILING TO GRANT JUDGMENT IN FAVOR OF KIMM, GIVEN THE LACK OF EVIDENCE OF ANY ATTORNEY-CLIENT RELATIONSHIP BETWEEN PLAINTIFF AND DEFENDANTS AND GIVEN KIMM'S ENTITLEMENT TO HIS CLAIM FOR REIMBURSEMENT OF LEGAL FEES INCURRED BY HIS CLIENTS PARK/LEE.
A. Summary Judgment Should Have Been Granted at Trial.
B. Directed Verdict Should Have Been Granted at Trial.
C. Kimm's Motion [for] J.N.O.V. Should Have Been Granted.
POINT II THE LAW DIVISION'S SIGNIFICANT TRIAL ERRORS WRONGFULLY TAINTED THE JURY TO RETURN A VERDICT ADVERSE TO KIMM WITHOUT ADEQUATE EVIDENTIARY SUPPORT.
A. The Trial Judge's Assistance to [Defendants'] Counsel.
B. The Use of Venomous Testimony from an Alleged Expert.
C. The Erroneous Ruling as to the Statute of Frauds Defense to the Fred Shauger Reimbursement Addendum.
D. Other Improper Evidentiary Rulings in the Case.
POINT III DEFENDANTS['] ILLEGAL ACTS INCLUDING MONEY LAUNDERING SHOULD HAVE PRECLUDED ANY RECOVERY IN ORDER TO MAINTAIN THE INTEGRITY OF THE COURTS.
POINT IV SINCE THE AGREEMENT TO REIMBURSE PARK/LEE'S EXPENSES WERE UNDERTAKEN BY FRED SHAUGER, PLAINTIFF'S CLAIM SHOULD HAVE BEEN SUSTAINED.
We turn first to plaintiff's contention that the trial court erred by denying his motion for summary judgment, his motion for a directed verdict, and his motion for judgment notwithstanding the verdict.
A. Summary Judgment
When reviewing an order granting or denying summary judgment, we apply the same standards that are applied by the trial court when ruling on a motion seeking that relief. Liberty Surplus Ins. Corp., Inc. v. Nowell Amoroso, P.A., 189 N.J. 436, 445-46 (2007); Stoffels v. Harmony Hill Farm, 389 N.J. Super. 207, 209 (App. Div. 2006). Summary judgment may be granted when there are no genuine issues of material fact, and the moving party is entitled to judgment as a matter of law. R. 4:46-2(c); Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). Our court rules provide that, "[a]n issue of fact is genuine only if, considering the burden of persuasion at trial, the evidence submitted by the parties on the motion, together with all legitimate inferences therefrom favoring the non-moving party, would require submission of the issue to the trier of fact." R. 4:46-2(c).
"If there exists a single, unavoidable resolution of the alleged disputed issue of fact, that issue should be considered insufficient to constitute a 'genuine' issue of material fact for purposes of Rule 4:46-2." Brill, supra, 142 N.J. at 540 (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 2511, 91 L.Ed. 2d 202, 213 (1986)). Summary judgment should only be granted when the evidence on a material issue of fact "'is so one-sided that one party must prevail as a matter of law.'" Ibid. (quoting Liberty Lobby, supra, 477 U.S. at 252, 106 S.Ct. at 2512, 91 L.Ed. 2d at 214).
In August 2007, plaintiff filed a motion seeking summary judgment on defendants' counterclaims. Plaintiff argued that defendants failed to present sufficient evidence to establish liability or damages on their claims. In support of his motion, plaintiff submitted a certification in which he stated that defendants' assertion that they had relied upon his advice was "categorically false." Defendants opposed the motion and submitted a certification by Go dated August 7, 2003, as well as Michelson's report.
We reject plaintiff's assertion that the trial court erred by denying his motion for summary judgment. As the evidential materials before the trial court on the motion made clear, there were genuine issues of material fact as to whether plaintiff provided erroneous legal advice to defendants and whether defendants sustained monetary damages by relying upon any such advice.
Plaintiff asserts that defendants' legal malpractice claim was deficient because Michelson's expert report constituted a "net opinion." We disagree. "The 'net opinion' rule renders inadmissible any opinion consisting of bare conclusions that are unsupported by factual evidence." Froom v. Perel, 377 N.J. Super. 298, 317 (App. Div.) (citing Buckelew v. Grossbard, 87 N.J. 512, 514 (1981)), certif. denied, 185 N.J. 267 (2005). "An expert must 'give the why and wherefore' of his or her opinion, rather than a mere conclusion." Ibid. (quoting Jimenez v. GNOC Corp., 286 N.J. Super. 533, 540 (App. Div.), certif. denied, 145 N.J. 374 (1996)).
Although plaintiff argued that defendants were never his clients and he never provided them with legal advice, defendants said otherwise. Thus, there was factual support for Michelson's opinions. Moreover, in his report, Michelson thoroughly detailed the "why and wherefore" of his opinions.
Plaintiff also maintains that defendants' legal malpractice claim was legally deficient because he was not retained to act as defendants' attorney. Again, we disagree.
"[T]here are circumstances in which an attorney may owe a duty to a third party with whom the attorney does not have a contractual relationship." Banco Popular No. Am. v. Gandi, 184 N.J. 161, 179 (2005) (citing Petrillo v. Bachenberg, 139 N.J. 472 (1995)). Indeed, "'attorneys may owe a duty of care to non-clients when the attorneys know, or should know, that non-clients will rely on the attorneys['] representations and the non-clients are not too remote from the attorneys to be entitled to protection.'" Id. at 180 (quoting Petrillo, supra, 139 N.J. at 483-84).
In opposing plaintiff's summary judgment motion, defendants proffered sufficient evidence to support their legal malpractice claim. If, as defendants maintained, plaintiff had provided legal advice to Kim regarding defendants' ability to acquire property in the United States, plaintiff had a duty to provide defendants with accurate and reliable information. Id. at 181 (citing Petrillo, supra, 139 N.J. at 487). Furthermore, if proven, defendants' evidence was sufficient to establish that plaintiff knew or should have known that defendants would rely upon his advice, the advice was erroneous, and defendants were damaged by relying on that advice.
Plaintiff additionally asserts that Kim admitted at trial that plaintiff had never provided him with legal advice. However, Kim's trial testimony has no bearing whatsoever on the question of whether the trial court should have granted plaintiff's summary judgment motion prior to the trial. In any event, plaintiff's characterization of Kim's testimony is simply wrong. As we stated previously, Kim testified at trial that plaintiff had advised him that he was "not able to purchase the home because [he was] a foreigner."
Plaintiff also contends that the trial court should have granted his motion for summary judgment because Go provided what plaintiff claims were "perjurious" certifications in this case.*fn2
This contention is without merit. At trial, plaintiff questioned Go about certain statements in her certifications. Even if Go's certifications included statements that she later admitted were incorrect, any inconsistency between those certifications and her trial testimony could not have been apparent at the time the trial court considered the summary judgment motion.
B. Directed Verdict/J.N.O.V.
We turn next to plaintiff's argument that the trial court erred by denying his motion pursuant to Rule 4:37-2(b) during the trial for a directed verdict and his post-trial motion for judgment notwithstanding the verdict pursuant to Rule 4:40-2(b).*fn3
The standards for determining motions made pursuant to Rules 4:37-2(b) and 4:40-2(b) are the same. Verdicchio v. Ricca, 179 N.J. 1, 30 (2004). In considering such motions, the court must accept "as true all of the evidence which supports the position of the party defending against the motion and [accord that party] the benefit of all inferences which can reasonably and legitimately be deduced therefrom[.]" Ibid. (quoting Estate of Roach v. TRW, Inc., 164 N.J. 598, 612 (2000)). If "reasonable minds could differ, the motion must be denied." Ibid. (quoting Estate of Roach, supra, 164 N.J. at 612).
We are convinced that the trial court correctly applied this standard and its decisions to deny plaintiff's motions for a directed verdict and judgment notwithstanding the verdict are unassailable. Defendants presented sufficient evidence at trial to support a judgment in their favor on their legal malpractice claim. As we pointed out previously, Kim testified that plaintiff advised him that defendants could not legally own property in the United States. Defendants maintained that they went forward with the first closing based on this advice. As a consequence, title to the property was placed in the names of Park and Lee, despite the fact that defendants were paying all of the costs to acquire the property.
Michelson's expert testimony also provided support for defendants' claim. He explained that, under the circumstances, plaintiff owed a duty of care to provide defendants with reliable information and breached that duty by providing them with erroneous legal advice. The evidence further supported a finding that defendants had sustained damages as a result of their reliance upon plaintiff's erroneous legal advice, specifically the costs required to have the property re-titled in their own names and to pay the pre-payment penalty on the mortgage taken out by Park and Lee.
Plaintiff argues that the evidence presented at trial shows that Kim never relied upon any advice from him. Plaintiff bases this contention upon the following testimony: on direct examination, defense counsel asked Kim whether plaintiff had ever given him "advice regarding how to protect [his] investment." Kim said, "No, no advice." It is clear, however, that plaintiff's reliance upon this portion of Kim's testimony is misplaced. According to Kim, plaintiff did not give him any advice on how he could "protect" his investment but Kim stated without qualification that plaintiff told him that he was "not able to purchase the home because [he was] a foreigner."
Plaintiff also argues that defendants' entire counterclaim rests upon one "alleged" phone call that Kim could not remember in detail. The record shows that Kim did not recall certain details about the telephone call, such as the phone number he called, or the exact time of day when he made the call. Kim did, however, recall that he called plaintiff in the morning, Korean-time, and a female answered the phone for plaintiff. More important, Kim recalled the specific advice that plaintiff had given to him. Whether Kim's testimony was credible or not was a matter for the jury to decide.
Plaintiff also argues that, even if he had given the advice as Kim claimed, defendants could not have suffered any damage as a result of that advice because the phone call occurred one day before the first closing. Plaintiff insists that, at that point in time, it was too late for plaintiffs to back out of the agreement. We cannot say, however, what would have occurred if defendants had backed out of the contract and Park and Lee had refused to close on the purchase of the home on November 2, 2001. We are convinced that there was sufficient evidence from which a jury could reasonably find that plaintiff had given Kim erroneous advice and plaintiff's advice was a proximate cause of the damages sustained by defendants.
Plaintiff additionally contends that defendants could not have been harmed by any erroneous advice he had provided prior to the first closing because three attorneys represented them after that time. Plaintiff also states that there is no evidence that defendants were ever "coerced" into proceeding with the second closing.
These contentions also fail. There is no credible evidence that any of defendants' attorneys advised them with regard to the real estate transaction prior to the first closing. Based on the evidence presented at trial, the jury could reasonably find that, were it not for plaintiff's erroneous legal advice, the property would not have been titled in Park's and Lee's names.
Furthermore, the fact that defendants were not "coerced" into participating in the second closing is irrelevant. The evidence supported a finding that defendants were required to participate in the second closing in order to obtain title to property that they would have placed in their own names from the outset had it not been for plaintiff's erroneous legal advice.
We next consider plaintiff's argument that the judgment for defendants should be reversed because of certain alleged trial errors. Plaintiff contends that the judge improperly provided "assistance" to defendants' attorney. At times, the judge intervened in the questioning of Go and Michelson. We are satisfied, however, that the judge's intervention did not rise to the level of improper assistance.
Plaintiff also contends that the trial court erroneously permitted Michelson to provide "venomous" testimony that impugned plaintiff and inflamed the jury. The record shows that the court admonished Michelson and said that it would consider declaring a mistrial if the witness continued making such remarks. Michelson's testimony continued and, from time to time, plaintiff objected to Michelson's testimony but he did not again seek a mistrial.
Notwithstanding plaintiff's argument to the contrary, there is no indication that the jury was "inflamed" by Michelson's remarks. In our judgment, the trial court addressed the issue appropriately and a mistrial was not required under these circumstances.
Plaintiff also contends that the trial court erred by telling the jury that there was an issue as to whether the statute of frauds barred plaintiff from pursuing his claim against defendants for the services he provided to Park and Lee. This contention also is without merit.
Here, plaintiff was seeking to enforce an agreement by defendants to pay legal expenses incurred by third parties. The statute of frauds provides in pertinent part that, to be enforceable, "[a] promise to be liable for the obligation of another person . . . shall be in writing signed by the person assuming the liability or by that person's agent." N.J.S.A. 25:1-15. The statute does not apply, however, when the promisor's primary object is to serve the promisor's own interest or purpose. Walder, Sondak, Berkeley & Brogan v. Lipari, 300 N.J. Super. 67, 76 (App. Div.) (citing Schoor Assoc. v. Holmdel Heights Constr. Co., 68 N.J. 95, 102 (1975)), certif. denied, 151 N.J. 77 (1997).
Plaintiff argues that the HUD-1 form completed at the second closing represents a signed agreement by defendants to pay the legal expenses incurred by Park and Lee. Plaintiff contends that the addendum prepared by Shauger was "incorporated" in the HUD-1 form and the addendum should have been deemed "adopted and signed" by defendants, thereby eliminating any issue as to the statute of frauds. Plaintiff says that, "[b]y telling the jury that the statute of frauds was an issue, the trial court confused the jury's finding that the agreement had been breached." We disagree.
It is undisputed that defendants never signed the addendum. Although the HUD-1 form was signed by the parties at the second closing, that document does not make any reference to plaintiff's legal expenses. Thus, the evidence does not support plaintiff's assertion that the addendum was "incorporated" in the HUD-1 form and should be deemed "adopted and signed" by defendants.
In our view, the trial court properly instructed the jury that the statute of frauds was an issue to be considered. The court told the jury that, even though defendants had not signed the addendum, they could be liable if the jury were to find that defendants orally agreed to pay plaintiff's fees and defendants' primary object in making that agreement was to benefit themselves. The judge's instructions were legally correct and fully in accord with the evidence.
Plaintiff additionally maintains that the court erred by permitting defendants' attorney to ask leading questions, allowing Michelson to testify about plaintiff's violations of the rules of professional conduct, and permitting defendants to call Lee as a witness even though she had not been identified as a potential witness in the pre-trial submissions. Plaintiff further maintains that defendants' counterclaim should have been dismissed because defendants purportedly engaged in "money laundering" when they transferred funds to the United States to purchase the house. We are convinced that these contentions are without sufficient merit to warrant discussion in this opinion.