LAUREEN COLE-PARKER VS. FIDELITY NATIONAL TITLE INSURANCE COMPANY (L-4276-15, MONMOUTH COUNTY AND STATEWIDE) ( 2018 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4872-15T4
LAUREEN COLE-PARKER,
Plaintiff-Appellant,
v.
FIDELITY NATIONAL TITLE
INSURANCE COMPANY,
Defendant-Respondent,
and
STATE OF NEW JERSEY,
Defendant.
___________________________
Argued November 29, 2017 – Decided July 9, 2018
Before Judges Fuentes, Koblitz and Manahan.
On appeal from Superior Court of New Jersey,
Law Division, Monmouth County, Docket No. L-
4276-15.
Mark J. Molz argued the cause for appellant
(Law Office of Mark J. Molz, attorneys; Mark
J. Molz, on the brief).
Hugh A. Keffer argued the cause for respondent
(Fidelity National Law Group, attorneys; Hugh
A. Keffer, on the brief).
PER CURIAM
On November 17, 2015, plaintiff Laureen Cole-Parker filed a
civil action in the Law Division in Monmouth County against
defendant Fidelity National Title Insurance Company (Fidelity),
as the successor of Lawyers Title Insurance Corporation, seeking
indemnification under a title insurance policy issued on February
11, 2004. The matter came before Judge Katie A. Gummer on April
29, 2016, to consider plaintiff's motion for leave to amend the
complaint and Fidelity's cross-motion for summary judgment.
After considering the arguments of counsel, Judge Gummer
allowed plaintiff to submit a revised amended pleading and
adjourned the disposition of Fidelity's cross-motion for summary
judgment. Plaintiff submitted the revised amended complaint on
May 3, 2016. Two days later, Fidelity responded, arguing the
court should grant its motion and dismiss plaintiff's complaint
as a matter of law under the six-year statute of limitations
applicable to causes of action predicated on breach of contract
claims. N.J.S.A. 2A:14-1.
In an oral decision delivered from the bench on June 1, 2016,
Judge Gummer reviewed plaintiff's factual allegations and legal
arguments, and noted that despite the dipositive nature of
Fidelity's argument, "[p]laintiff failed to address that argument
in her opposition, and effectively then waived any argument
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thereto." Judge Gummer then provided the following explanation
for granting Fidelity's motion for summary judgment:
Noting that a six[-]year statute of
limitation[s] applies to a breach of contract
. . . claim . . . , [see] N.J.S.A. 2A:14-1,
and given that this contract was issued in
2003, and that plaintiff was apparently aware
of an issue with [the] title such that she
filed the lawsuit against her real estate
attorney in 2006, the [c]ourt finds that the
statute of limitation[s] bars her claim.
In this appeal, plaintiff argues Judge Gummer erred in denying
a motion to amend the complaint, Fidelity's cross-motion for
summary judgment was not ripe, and the six-year statute of
limitations does not bar plaintiff's claims. We reject these
arguments and affirm substantially for the reasons expressed by
Judge Gummer in her June 1, 2016 oral decision. We add only the
following brief comments.
We review a trial court's decision to grant summary judgment
de novo, using the standards codified in Rule 4:46-2(c) and refined
by the Court in Brill v. Guardian Life Ins. Co. of Am., 142 N.J.
520, 540 (1995). The following core facts are not disputed.
Plaintiff purchased this property from her sister in 2003. Nine
months earlier, the State of New Jersey docketed a judgment against
plaintiff in the amount of $7270.63. The judgment created a lien
on the property.
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The attorney who represented plaintiff in the purchase of
this property retained Lawyers Title Insurance Corporation, now
Fidelity, to determine whether there were any encumbrances or
other claims recorded against the property. The judgment search
performed on November 7, 2003 by the title company revealed only
the 2003 judgment. Plaintiff's counsel ordered a payoff settlement
from the State and escrowed the funds necessary to pay off the
judgment and cleared the title. Counsel submitted these funds to
the State. Unfortunately, the State did not issue a satisfaction
of judgment document suitable for recording in the County Register
of Deeds.
The title policy issued by Fidelity excludes title risks
"created, allowed, or agreed" by the holder, and that are known
to the holder but not Fidelity on the policy date unless they
appeared in the public records. The policy specifically identified
this judgment lien and stated that it did not cover "loss, costs,
attorneys' fees and expenses" resulting from it. Plaintiff signed
and acknowledged this exclusion. Of particular relevance here,
Judge Gummer found:
Plaintiff signed an affidavit of title to
Fidelity, [(1)] admitting the State's judgment
was against her and not against another person
with the same name; and [(2)] promising . . .
that her mortgage company would receive a
first lien on the property.
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. . . .
According to a search performed by Fidelity
on [New Jersey's Automated Case Management
System] for other claims filed by plaintiff,
plaintiff filed a lawsuit in 2006 against her
real estate attorney and his firm accusing
them of failing to forward funds to the State
to pay the judgment. That lawsuit was
resolved.
These uncontested facts show plaintiff's complaint against
Fidelity filed on November 17, 2015 is barred by the six-year
statute of limitations applicable to all claims based on breach
of contract. N.J.S.A. 2A:14-1. Plaintiff did not contest this
dispositive legal issue in response to Fidelity's summary judgment
motion. Judge Gummer correctly noted plaintiff's failure to
dispute this issue. Plaintiff's remaining arguments lack
sufficient merit to warrant discussion in a written opinion. R.
2:11-3(e)(1)(E).
Affirmed.
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