MARK P. JIORLE, individually and on behalf of MARK P. JIORLE Self-Directed Individual Retirement Account, MID-OHIO SECURITIES, Trustee, Plaintiff-Appellant,
PHILIP J. MAENZA and PHILIP J. MAENZA, P.C., Defendants/Third-Party Plaintiffs-Respondents,
CAROLYN MORTAGE SERVICES, INC., EDWARD J. MUPO and CAROL J. MUPO, Third-Party Defendants.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 17, 2013
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-7558-08.
J. Llewellyn Mathews argued the cause for appellant (Mr. Mathews, attorney and on the brief; Kit Applegate, on the brief).
Matthew P. O'Malley argued the cause for respondents (Tompkins, McGuire, Wachenfeld & Barry, LLP, attorneys; Mr. O'Malley, Gabriella Garofalo-Johnson and Leon B. Piechta, on the brief).
Respondents Carolyn Mortgage Services, Edward J. Mupo and Carol J. Mupo has not filed a brief.
Before Judges Messano and Sabatino.
In our prior opinion, Jiorle v. Mupo, No. A-2390-06 (App. Div. Aug. 26, 2009), we detailed the facts that set the stage for this legal malpractice action filed by plaintiff Mark Jiorle against defendants Philip J. Maenza and Philip J. Maenza, P.C.Because the procedural histories of that litigation and this are important in resolving this appeal, we recite them at length.
Plaintiff filed his complaint against Carolyn Mortgage Services, Inc., Edward J. and Carol J. Mupo, and Anthony Billeci on January 24, 2005 (the Mupo action). Although defendant was not named as a party, he clearly was an important witness. See Jiorle, supra, slip op. at 4-9. Defendant was deposed on February 7, 2006.
Shortly thereafter, on March 14, plaintiff filed a "Supplemental Certification Under Rule 4:5-1." Counsel certified:
Based on testimony given by . . . [defendant] . . . at his deposition . . . [defendant] may be liable . . . on the basis of the same transactional facts which form the basis of [p]laintiff['s] claims against [the Mupos] . . . in this action. Accordingly, [defendant] may be a person who should be joined in this action pursuant to R. 4:28 or who is subject to joinder pursuant to R. 4:29-1(b). . . . [P]laintiff do[es] not intend to move to join [defendant] in this action, but reserve[s] the right to file a separate action against [defendant].
Neither the court nor any party in the Mupo action sought to join defendant in the litigation.
The Mupo action was tried between May 30 and June 20, 2006. Plaintiff was ultimately successful in obtaining a judgment against Edward J. Mupo, which we affirmed ...