On appeal from Superior Court of New Jersey, Law Division, Middlesex County, No. L-564-01.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Wefing and Grall.
Richard B. Huykman appeals from a trial court order entered September 18, 2008. Huykman's notice of appeal also refers to a judgment entered October 2, 2003. As that judgment has already been affirmed by this court, Sacco v. Maziarz, No. A-1847-03T1, (App. Div. Feb. 21, 2006), certif. denied, 188 N.J. 217 (2006), we shall refer to it only to the extent necessary to understand Huykman's contentions in this appeal. After reviewing the record in light of the contentions advanced on appeal, we affirm.
This matter has a convoluted factual and procedural history which must be set forth. In 1992 Huykman sued Gregory Sacco and Richard W. Sacco in connection with a claim related to a race horse. In 1995, each of the Saccos filed for personal bankruptcy protection and Huykman began an adversary proceeding in the bankruptcy court, seeking to prevent the Saccos' discharge of the debt he asserted. The Saccos retained defendant John Maziarz, Esq. to represent them in that adversary proceeding. Before that adversary proceeding was concluded, the parties negotiated a settlement, a portion of which included a judgment against the Saccos and in favor of Huykman for $320,000, to be paid in the following manner: $25,000 by October 1, 1999 and $2,000 per month, starting on October 15, 1999, and for six years thereafter. The settlement agreement also provided that the Saccos were to provide signed releases with respect to claims between themselves and their prior attorneys, as well as their current contact information. We set forth in detail in our earlier opinion what transpired next.
On August 10, 1999, the Saccos, in accordance with paragraphs 3(c) and 3(e) of the settlement agreement, forwarded the releases and their personal contact information to Maziarz, their attorney. However, because the releases that were being forwarded contained confidentiality provisions as between the Saccos and their former attorneys, they asked Maziarz to advise them about whether their obligations to that previous attorney precluded providing the releases to Huykman . . . . Maziarz did not thereafter provide either the releases or the personal contact information to Huykman as required by the settlement agreement. Instead, Maziarz sought permission from the Bankruptcy Court judge to file the releases with him and asked him to decide whether providing the releases to Huykman would violate the confidentiality provision.
Late in September, the Bankruptcy Court judge approved the settlement agreement. On October 20, 1999, the judge denied Maziarz's motion concerning the confidentiality clause, and directed the Saccos to provide the releases that day. In addition, he ordered them to provide "a written statement containing their current home addresses, both physical and mailing, and their current telephone numbers for home and work" no later than October 25, 1999. Within hours of the hearing during which these directives were issued, Maziarz sent Huykman five pages of materials by fax transmission. According to Maziarz's testimony at trial, the first four pages were the release and the final page set forth the contact information. According to Huykman, the page giving the contact information was not provided to him as directed. Instead, he received a copy of a letter he had previously sent to Alan Gorski, an attorney who had earlier represented the Saccos.
On October 31, 1999, Huykman wrote to Maziarz, advising him that he had received the releases as directed but had never been provided with the personal contact information. He enclosed a subpoena pursuant to which he expected to receive documents relating to the personal contact information and relating to the efforts by the Saccos to comply with the Bankruptcy Court's order. According to Maziarz, he did not learn that the contact information had not been received by Huykman until November 1999, at which time he was served with Huykman's motion in the Bankruptcy Court seeking to establish that the Saccos had breached the settlement agreement and requesting entry of the full amount of the judgment. On December 10, 1999, Maziarz provided Huykman with the personal contact information about the Saccos. It is undisputed that by that time, the Saccos had paid Huykman a total of $59,000 toward the agreed upon settlement.
By order dated February 4, 2000, the Bankruptcy Court judge granted Huykman's motion, finding that the Saccos had failed to provide their personal contact information to Huykman as they had agreed. The judge therefore ordered that "[the] confessed judgments are due and payable in full and that judgment be entered against [plaintiffs] Gregory D. Sacco and Richard W. Sacco in the amount of $320,000 to Richard B. Huykman . . . ." The judge imposed a sanction on Maziarz in the amount of $275.60 as well.
The Saccos then sued Maziarz for malpractice. While that suit was in progress, Huykman contacted the Saccos and proposed to assist them in pursuing their malpractice claim in exchange for their agreement to pay to him any sums they recovered from Maziarz to reduce Huykman's judgment against them. The Saccos agreed to this proposal.
In June 2002, Huykman filed a motion to intervene in that malpractice action. The trial court granted his motion in July 2002 and in August, Maziarz filed a third-party complaint against Huykman. In our earlier decision, we summarized Huykman's claim of negligence as not timely alerting him "that the personal contact information had not been transmitted that led to the failure of the settlement agreement and the entry of the judgment." Huykman filed an answer to this third-party complaint, denying any responsibility.
Trial did not commence until nearly a year later, in July 2003. In that trial, the attorney representing the Saccos sought to amend the pleading to assert a direct claim against Huykman. Huykman consented to this; the trial court questioned him on the record as to his understanding of the amendment and his voluntary acquiescence. The trial court pointed out to him the change in positions that would flow from this amendment and that if he objected, it would grant a mistrial.
The jury unanimously found: (i) Maziarz deviated from the legal standard of care, (ii) Huykman was negligent and (iii) both actions proximately caused plaintiff's breach. The jury determined total liability amounted to $438,732, exclusive of attorney's fees and interest, of which Maziarz was responsible for three percent and Huykman for ninety-seven percent. ...