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Waller v. Lomax

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


July 8, 2010

JAMES J. WALLER AND SHEILA A. WALLER, PLAINTIFFS-APPELLANTS,
v.
JOSEPH LOMAX, LOMAX REALTY, FIVE STAR REMODELING, ROSE MARTIN, AND NEW JERSEY TITLE INSURANCE COMPANY, DEFENDANTS, AND LLOYDS & HANSON TITLE AGENCY, LLC, DEFENDANT-RESPONDENT.

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Docket No. L-3854-07.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted June 22, 2010

Before Judges Fisher and Reisner.

This action has its genesis in the closing of a real estate contract -- at which no party was represented by an attorney --for the sale of property in Atlantic City. In this appeal, plaintiffs argue among other things that they were not required to serve an affidavit of merit with regard to their claims against defendant Lloyds & Hanson Title Agency, LLC (Lloyds & Hanson). We reject that argument and affirm.

The original complaint filed by plaintiffs, who are the sellers of the property, alleged that defendants Joseph Lomax, Lomax Realty, Five Star Remodeling and Rose Martin breached the contract of sale and engaged in consumer fraud and common law fraud because plaintiffs did not receive funds to which they were entitled at the closing. On July 21, 2008, a default judgment was entered in favor of plaintiffs and against all defendants at the time in the amount of $108,011.38.

Although this default judgment resolved all issues as to all parties, plaintiff was somehow permitted on March 25, 2009 to file an amended complaint against Lloyds & Hanson and New Jersey Title Insurance Company (NJ Title). Plaintiffs alleged in the amended complaint that Lloyds & Hanson and NJ Title "failed to perform their contracted duty to deliver to the plaintiff[s] the funds owed to them." Plaintiffs also alleged that these new defendants:

were negligent in the performance of their obligation as settlement agents and title insurers by failing to provide the plaintiff[s] with their proceeds from the sale of their real property and for failing to adequately set forth the distribution of the proceeds on the settlement statement which negligence resulted in a loss of no less than $108,000 to the plaintiffs.

Lloyds & Hanson, a title insurance agent, moved for dismissal. It argued that, because it is a licensed professional, plaintiffs were required to timely serve an affidavit of merit pursuant to N.J.S.A. 2A:53A-27.*fn1 Judge Nelson C. Johnson granted the motion for reasons set forth in his written opinion of September 11, 2009, as supplemented by his letter dated October 6, 2009. We affirm substantially for the reasons set forth in Judge Nelson's written opinions. Plaintiffs' argument that Lloyds & Hanson's role at this South Jersey closing was the same or similar as that of an attorney actually supports Lloyds & Hanson's position. If an attorney had participated in the closing and a suit had been brought against that attorney in the same circumstances, an affidavit of merit would have been required.

Lastly, we note that in this appeal plaintiffs also urge that their claims against Lloyds & Hanson could be proven without expert testimony. Although this argument appears not to have been asserted in the trial court, which would counsel against our consideration of it here, see Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973), we find insufficient merit in the argument to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

Affirmed.


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