DAVID SCHINDEL, ETC. VS. GARY FEITLIN, ESQ. (L-3017-19, BERGEN COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-2888-19

DAVID SCHINDEL, individually
and as executor of the estate of
ARNOLD SCHINDEL, deceased,

Plaintiff-Appellant/
Cross-Respondent,

v.

GARY FEITLIN, ESQ.,

Defendant-Respondent/
Cross-Appellant,

and

GARY FEITLIN, ESQ.,

Third-Party Plaintiff,

v.

HINDY O'BRIEN,1

1
O'Brien has not participated in this appeal or cross-appeal, and the parties do
not raise any arguments regarding O'Brien.
 Third-Party Defendant
-Respondent.
____________________________

Argued February 22, 2021 – Decided June 11, 2021

Before Judges Messano, Hoffman, and Smith.

On appeal from the Superior Court of New Jersey, Law
Division, Bergen County, Docket No. L-3017-19.

Robert W. McAndrew argued the cause for appellant
(McAndrew Vuotto, LLC, attorneys; Robert W.
McAndrew, of counsel and on the briefs; Michael R.
McAndrew, on the brief).

Jeffrey S. Leonard argued the cause for respondent
(Lewis Brisbois Bisgaard & Smith, LLP, attorneys;
Meredith Kaplan Stoma, of counsel; Jeffrey S. Leonard,
on the briefs).

PER CURIAM

Plaintiff David Schindel is the son of Arnold Schindel. Pursuant to a July

2014 will, Arnold made specific monetary bequests to his son and to a friend,

Hindy O'Brien, a woman Arnold befriended and who was not a relative. The

will bequeathed the bulk of Arnold's estate to David, and designated David and

O'Brien as co-executors.2 A second December 2015 will, among other things,

bequeathed Arnold's residuary estate in equal shares to plaintiff and O'Brien. A

2
We apologize for the informality of using first names, but we do so to avoid
any confusion.
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third May 2016 will contained a number of specific bequests, including $25,000

to plaintiff, bequeathed the bulk of the residue of the estate to O'Brien and

designated her as executrix of the will. Defendant Gary Feitlin, a New Jersey

attorney, drafted all three wills for Arnold.

In November 2016, Arnold died, and O'Brien offered the May 2016 will

to probate; plaintiff filed a caveat and litigation ensued (the Probate Case). In

his answer and counterclaim, plaintiff alleged that Arnold lacked the

testamentary capacity to have executed the May 2016 will, and it was the

product of O'Brien's undue influence. Plaintiff affirmatively sought to admit the

July 2014 will to probate and an order designating him sole executor of the

estate.

Plaintiff's probate counsel deposed defendant, who was not attorney of

record for O'Brien or the estate in the Probate Case and was represented by his

partner at the deposition. As to some questions, defendant generally asserted

attorney-client privilege, claiming he was serving as O'Brien's attorney

regarding administration of Arnold's estate and was "co-counsel" in the

litigation; plaintiff's probate counsel did not seek judicial intervention to settle

the issue. When defendant requested compensation for his attendance at two

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days of deposition, plaintiff's probate's counsel refused based on defendant's

assertion that he was "co-counsel" in the Probate Case.

Plaintiff and O'Brien entered a settlement agreement (the Release), which

by its terms released the attorneys for the parties from any and all claims or

causes of action arising from or pertaining to the Probate Case, including those

claims "which could have been asserted" in the Probate Case. The court entered

an order in June 2018 probating the July 2014 will, enforcing the terms of the

settlement, and dismissing the litigation.

Plaintiff then filed this complaint against defendant, alleging legal

malpractice. Plaintiff claimed that when defendant prepared the May 2016 will,

he either knew or should have known that Arnold lacked testamentary capacity

or was subjected to O'Brien's undue influence.

Defendant moved to dismiss the complaint based on the Release. The Law

Division judge's August 21, 2019 order denied defendant's motion without

prejudice. Defendant then filed his answer and a third-party complaint against

O'Brien for contribution and indemnification. When O'Brien moved to dismiss

the third-party complaint, defendant filed a cross-motion seeking dismissal of

plaintiff's complaint pursuant to the entire controversy doctrine (ECD). After

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oral argument, relying primarily on the reasoning of an unpublished decision

from our court, the judge granted both motions.

Plaintiff moved for reconsideration, which the judge denied. In his written

statement of reasons, the judge said that he had not relied upon the Release in

granting defendant's motion to dismiss pursuant to the ECD or in denying

plaintiff's motion for reconsideration. Nonetheless, the judge noted that

plaintiff's probate attorney had "accepted [defendant's] representation that he

was co-counsel for O'Brien" in the Probate Case, and that the "clear . . . language

releases the parties . . . and attorneys . . . from liability."

Plaintiff appeals. He contends that the ECD does not apply to proceedings

in probate, and, even if it does, given the doctrine's equitable nature, the ECD

should not bar his complaint because defendant has not suffered substantial

prejudice. Plaintiff also argues that when denying his motion for

reconsideration, the judge erroneously concluded the malpractice action had

accrued prior to or contemporaneously with the Probate Case, and plaintiff made

a strategic choice not to file the claim. Alternatively, plaintiff contends the

judge should have applied the discovery rule and held a Lopez3 hearing to

ascertain the accrual date.

3
Lopez v. Swyer, 62 N.J. 267 (1973).
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 In opposing plaintiff's arguments and urging us to affirm, defendant

contends the ECD applies in probate proceedings, and he has suffered

substantial prejudice because of plaintiff's failure to press his malpractice claim

at the same time he litigated the Probate Case. In his cross-appeal, defendant

argues that the judge was wrong to deny his initial motion to dismiss, because

defendant served as co-counsel for O'Brien in the Probate Case, and the

Release's language is clear and unambiguous. As a result of the settlement,

defendant contends plaintiff released all claims he may have had against

defendant sounding in legal malpractice.

In opposition to the cross-appeal, plaintiff contends the judge properly

denied defendant's motion to dismiss based on the terms of the Release , given

the lack of any evidence regarding the parties' intent in executing th e Release.

He also argues that public policy demands any release of potential malpractice

claim be a "specific and knowing" relinquishment.

We have considered the arguments and affirm.

I.

The ECD reflects a "long-held preference that related claims and matters

arising among related parties be adjudicated together rather than in separate,

successive, fragmented, or piecemeal litigation." Kent Motor Cars, Inc. v.

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Reynolds & Reynolds Co., 207 N.J. 428, 443 (2011). As codified in Rule 4:30A,

the ECD "embodies the principle that the adjudication of a legal controversy

should occur in one litigation in only one court; accordingly, all parties involved

in a litigation should at the very least present in that proceeding all of their

claims and defenses that are related to the underlying controversy." Wadeer v.

N.J. Mfrs. Ins. Co., 220 N.J. 591, 604–05 (2015) (quoting Highland Lakes

Country Club & Cmty. Ass'n v. Nicastro, 201 N.J. 123, 125 (2009)).

In its current iteration, Rule 4:30A does not mandate the joinder of parties.

Pressler & Verniero, Current N.J. Court Rules, cmt. 1 on R. 4:30A (2021).

However, Rule 4:5-1(b)(2) requires a party to certify in his initial pleading "the

names of any non-party who should be joined in the action . . . or who is subject

to joinder . . . because of potential liability to any party on the basis of the same

transactional facts." (emphasis added). The disclosure requirement ensures that

the "ultimate authority to control the joinder of parties and claims remains with

the court; the parties may not choose to withhold related aspects of a claim from

consideration." Kent Motor Cars, 207 N.J. at 446 (citing Hobart Bros. Co. v.

Nat'l Union Fire Ins. Co., 354 N.J. Super. 229, 240–41 (App. Div. 2002)). The

court may dismiss a successive action brought by a party who failed to comply

with the Rule if "the failure of compliance was inexcusable and the right of the

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undisclosed party to defend the successive action has been substantially

prejudiced by not having been identified in the prior action." R. 4:5-1(b)(2)

(emphases added); see Alpha Beauty Distribs., Inc. v. Winn-Dixie Stores, Inc.,

425 N.J. Super. 94, 101 (App. Div. 2012) (explaining the Rule's limitations

regarding dismissal of a "successive action").

"The [ECD] . . . is constrained by principles of equity. It 'does not apply

to unknown or unaccrued claims.'" Dimitrakopoulos v. Borrus, Goldin, Foley,

Vignuolo, Hyman & Stahl, PC, 237 N.J. 91, 99 (2019) (quoting Wadeer, 220

N.J. at 606). Additionally, a party "may avoid the [ECD] by demonstrating that

the prior forum did not afford 'a fair and reasonable opportunity to have fully

litigated' the . . . claim." Ibid. (quoting Gelber v. Zito P'ship, 147 N.J. 561, 565

(1997)). "In considering whether application of the doctrine is fair, courts

should consider fairness to the court system as a whole, as well as to all parties."

Wadeer, 220 N.J. at 605 (citing DiTrolio v. Antiles, 142 N.J. 253, 273–74

(1995)).

Plaintiff admittedly did not comply with Rule 4:5-1(b)(2) when he filed

his initial pleading in the Probate Case but argues it was unnecessary because

defendant "had no material interest in the outcome of that proceeding[,]" and

"was a fact witness; nothing more, nothing less." However, in considering

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application of the ECD, a court's "initial inquiry is whether [the multiple claims]

'arise from related facts or the same transaction or series of transactions.'"

Dimitrakopoulos, 237 N.J. at 109 (quoting DiTrolio, 142 N.J. at 267). "The

[ECD] does not mandate that successive claims share common legal issues in

order for the doctrine to bar a subsequent action." Ibid. (citing Wadeer, 220 N.J.

at 605; DiTrolio, 142 N.J. at 271). Here, plaintiff's malpractice complaint had

two specific claims: defendant knew or should have known that Arnold lacked

testamentary capacity when he executed the May 2016 will; or, alternatively,

defendant knew or should have known that O'Brien had exerted undue influence

over Arnold to materially change the disposition of his estate in her favor. Those

are the exact same contentions plaintiff raised in the Probate Case, and it is

indisputable that the two "distinct claims . . . arise from interrelated facts." Ibid.

(quoting DiTrolio, 142 N.J. at 271).

As a corollary to this contention, plaintiff argues that his malpractice

action did not accrue until after the Probate Case was settled, and, without

further discovery, the judge made factual findings that plaintiff strategically

delayed filing the malpractice case. Plaintiff argues the judge should have

applied the discovery rule and held a Lopez hearing. The arguments lack

sufficient merit to warrant discussion. R. 2:11-3(e)(1)(E).

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 It suffices to say the accrual date in the legal malpractice setting is when

"the essential facts of the malpractice claim are reasonably discoverable" and

the client "sustain[s] actual damage." Dimitrakopoulos, 237 N.J. at 116 (first

quoting Vastano v. Algeier, 178 N.J. 230, 242 (2003), then citing Olds v.

Donnelly, 150 N.J. 424, 437 (2012)). Plaintiff knew defendant had drafted all

three wills, and he knew that the May 2016 will detrimentally affected plaintiff's

share of the estate and his executorship. Plaintiff had standing to pursue a legal

malpractice claim at that point in time. See Pivnick v. Beck, 326 N.J. Super.

474, 483 (App. Div. 1999) (rejecting the defendant attorney's argument that the

plaintiff-intended beneficiary did not have standing to file legal malpractice

claim based on alleged failure to express testator's intent in a will).

Plaintiff also argues that because the Probate Case was not the appropriate

forum to assert his legal malpractice claim, the ECD cannot serve as a basis to

dismiss his complaint. Plaintiff's contention is two-fold. He argues that the

Court has carved out from the ECD legal malpractice claims that arise in the

context of probate litigation. We disagree.

In support of the first prong of his argument, plaintiff relies primarily upon

the Court's holding in Higgins v. Thurber, 205 N.J. 227 (2011). There, the trial

court dismissed the plaintiffs' legal malpractice claim after the defendant-

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attorney intervened at the last minute in a probate proceeding to settle the

account of an estate trust formed by the plaintiffs' deceased father. Id. at 228–

29. We reversed concluding the ECD did not apply, and the Court affirmed for

the reasons cited in Judge Fisher's decision. Id. at 229 (citing Higgins v.

Thurber, 413 N.J. Super. 1, 5 (App. Div. 2010)). The Court explained:

An action to settle an account on an estate trust is
a formalistic proceeding, unique to probate. See R.
4:87-1(a). Its stylized format involves a line-by-line
review on the exceptions to an accounting. In the
context of this and like proceedings in probate, the
[ECD] is out of place. See Perry v. Tuzzio, 288 N.J.
Super. 223, 229 (App. Div. 1996). The Appellate
Division in the present case rightly detected that it
would be anomalous to assume that Thurber's
intervention in the specialized probate accounting
proceeding that focused on the executor somehow
converted the proceeding into an action binding as to
any and all other potential actions in respect of other
parties. . . . While it certainly may be permissible for a
chancery court to expand a probate proceeding to
encompass a claim of legal malpractice, that was not
done here.

[Ibid. (emphases added).]

The Court closed by stating that the ECD "generally ha[s] no place in probate

proceedings, for the reasons expressed by Judge Pressler in Perry." Ibid.

Plaintiff's reliance on Higgins is misplaced because the initial proceeding

(for ECD purposes) in that case was a summary accounting, a "formalistic

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proceeding" in a "stylized format" that focused "on the executor." Ibid. The

Probate Case here was plaintiff's full-scale assault on the 2016 will in which

plaintiff's claims of competency and undue influence were subject to discovery

and fully litigated prior to settlement. Moreover, the Court in Higgins explicitly

recognized the appropriateness in some instances of "expand[ing] a probate

proceeding to encompass a claim of legal malpractice." Ibid. This is especially

so when the probate proceeding exceeds the scope of the court's summary review

of an executor's accounting. In short, there is no carved-out exception from the

ECD for probate proceedings. See, e.g., In re Estate of Gabrellian, 372 N.J.

Super. 432, 444 (App. Div. 2004) (applying ECD to bar successive suits

challenging will).

We also find unavailing plaintiff's claim that his right to a jury trial on his

malpractice claim would be abrogated if he were forced to pursue it in the same

forum as his challenge to the 2016 will. Clearly, the Court in Higgins found it

"permissible" for a chancery court to expand the probate proceedings to include

such a claim. 205 N.J. at 229. The Court has long recognized that the Chancery

Division may conduct jury trials:

Whether the action be brought in the Law Division or
the Chancery Division, all issues of fact triable as of
right by a jury shall be decided by a jury, unless the
right to jury trial be waived . . . . It is within the

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 contemplation of the Constitution and the rules that a
jury trial may be had in the Chancery Division of the
Superior Court . . . .

[O'Neill v. Vreeland, 6 N.J. 158, 167–68 (1951).]

Our rules also permit a court on its own initiative to "try with an advisory jury

any issue not triable of right by a jury." R. 4:35-2. The malpractice claim here

could have been tried by a jury in the Chancery court, with the trial judge

utilizing the jury strictly in an advisory capacity on the issues of t estamentary

capacity and undue influence. See, e.g., Chance v. McCann, 405 N.J. Super.

547, 570 n.9 (App. Div. 2009) (recognizing court's ability to "seek the guidance

of the jury trying the substantive issues as an advisory jury" when deciding issue

of laches which "must be made by the trial judge" (citing R. 4:35-2)); 5 N.J.

Practice, Wills And Administration, § 137, at 349–50 (Alfred C. Clapp) (rev. 3d

ed. 1982) (noting that although there is no right to a trial by jury in a probate

action, the court on its own initiative "may try with an advisory jury any issue

of fact not triable of right by a jury").

In sum, we reject plaintiff's assertions that his malpractice claim was

unknown or had not yet accrued when he filed his counterclaim in the Probate

Case, or that the Chancery Division, Probate Part, could not have provided him

with a fair forum for disposition of his complaint against defendant. We

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conclude plaintiff's failure to assert the claim, or at least advise the court of "any

non-party who should be joined in the action . . . or who is subject to joinder

. . . because of potential liability to any party on the basis of the same

transactional facts" as required by Rule 4:5-1(b)(2) was "inexcusable." Ibid.

Plaintiff argues that defendant suffered no substantial prejudice from this

inexcusable failure. We have said that "[s]ubstantial prejudice in th[e] context

[of Rule 4:5-1(b)(2)] means substantial prejudice in maintaining one's defense.

Generally, that implies the loss of witnesses, the loss of evidence, fading

memories, and the like." Mitchell v. Procini, PA, 331 N.J. Super. 445, 454 (App.

Div. 2000) (citing Blank v. City of Elizabeth, 318 N.J. Super. 106, 114–15 (App.

Div.), aff'd as mod., 162 N.J. 150 (1999)); see also Kent Motor Cars, 207 N.J.

at 446 (citing Mitchell with approval).

However, a claim of substantial prejudice is not limited to the loss of

available evidence and proofs needed to mount a defense; substantial prejudice

may result from a party's inexcusable failure and the resulting "potential impact

of the particular legal framework in which the claims in th[e] litigation have

been brought." Kent Motor Cars, 207 N.J. at 448. For example, in Kent Motor

Cars, the Court found no "substantial prejudice" to the defendant resulted from

the loss of emails and other evidence after the initial litigation. Id. at 448–49.

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However, the Court concluded non-compliance with Rule 4:5-1(b)(2) resulted

in substantial prejudice to the defendant, which now faced exposure "to a

trebling of damages already trebled" in the preceding litigation, "as well as to a

trebling of attorneys' fees." Id. at 450.

In Gelber, the Court recognized that "[t]he notice requirements of Rule

4:5-1 require conduct on the part of attorneys for reasons not limited to joinder

of actions. Joinder is but one goal of the [ECD]." 147 N.J. at 566. In that case,

the plaintiff homeowners breached their continuing duty to notify other parties

and the court of other pending litigation or arbitration pursuant to Rule 4:5-1.

Id. at 563–64. While their malpractice lawsuit against the defendant architect

was pending, the plaintiffs successfully obtained an arbitration award against

the contractor, who made the renovations that were the subject of the suit against

the architect. Ibid. The defendant claimed that the plaintiffs were attempting to

"double dip." Id. at 564.

The Court noted that had the architect been informed of the pending

arbitration, it "might have chosen to invoke the arbitration clause in its own

contract." Id. at 565. It found prejudice where the "failure to give notice

deprived both the [defendant] and the court of the opportunity to . . . manage or

otherwise coordinate the two proceedings." Id. at 566. This "warrant[ed] a

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measured application of the [ECD]," requiring a remand for the trial court to

dismiss the plaintiffs' claims except "those . . . against the architect that are

entirely factually separable from claims related to work performed by the

contractor." Id. at 566, 569 (emphasis added).

Here, plaintiff contends defendant suffered no substantial prejudice from

the failure to bring the malpractice claim in conjunction with the will contest.

At oral argument before the Law Division judge, counsel noted, for example,

that much of the necessary discovery had already taken place.4

Defendant, however, argues that in addition to the inherent unfairness of

now having to answer plaintiff's malpractice allegations after already being

deposed for two days in the Probate Case, he is substantially prejudiced by the

current posture of the litigation. For example, if successful, plaintiff's claim for

damages would potentially include attorney's fees for both the Probate Case and

the malpractice case. Additionally, plaintiff's counsel noted in oral argument

before the Law Division judge that he would have a claim for damages that

4
In his brief, defendant asserts that plaintiff's counsel "admitted at the oral
arguments [before the Law Division judge] that the decision to hold back the
legal malpractice claim against [defendant] caused [defendant] substantial
prejudice." We have carefully reviewed the transcript of the arguments; no such
admission was ever made by plaintiff's counsel. We admonish defense counsel
for this mischaracterization of the record.
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resulted from the settlement reached with O'Brien, to the extent it diminished

plaintiff's share of the estate, increased O'Brien's share from that set out in the

2014 will or required plaintiff to expend sums to settle the estate and have the

2014 will probated. We need not divine the full nature and quantum of claimed

damages which plaintiff will assert; however, since he was not a party in the

Probate Case, defendant had no say in fashioning the settlement and the terms

of the Release. Most importantly, he had no ability to make sure the Release

expressly applied to him, and that plaintiff waived any and all claims against

defendant.

"The 'polestar of the application of the [ECD] is judicial "fairness."'"

Wadeer, 220 N.J. at 605 (quoting DiTrolio, 142 N.J. at 272). "Put simply,

'[f]airness in the application of the [ECD] focuses on the litigation pos ture of

the respective parties and whether all of their claims and defenses could be most

soundly and appropriately litigated and disposed of in a single comprehensive

adjudication.'" Id. at 606 (first alteration in original) (quoting DiTrolio, 142 N.J.

at 277). In our opinion, defendant has been substantially prejudiced by "the

particular legal framework in which the claims in this litigation have been

brought." Kent Motor Cars, 207 N.J. at 448.

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 We affirm the Law Division's February 14, 2020 order dismissing

plaintiff's complaint.

II.

Given this conclusion, we need not decide the cross-appeal which

challenges the judge's interlocutory August 2019 order denying defendant's

motion to dismiss plaintiff's complaint based on the Release. However, we take

this opportunity to address the procedural aspects of what occurred to dissuade

any similar recurrence in our trial courts.

In his oral decision denying defendant's motion to dismiss based on the

Release, the judge properly recognized that defendant was relying on "matters

outside the pleading[s]," Rule 4:6-2(e), and applied summary judgment

standards. Ibid. The record before him at that time was quite limited. It

contained the Release and order from the Probate Case, some of defendant's

deposition testimony in that litigation, the letter from plaintiff's counsel in the

Probate Case refusing to compensate defendant for his appearance at depositions

based on assertion of the attorney-client privilege, and two letters defendant

wrote to third parties as representing O'Brien in her capacity as the named

representative of Arnold's estate. Notably, defendant never raised the release as

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an affirmative defense in his answer and third-party complaint. See R. 4:5-4

(requiring a responsive pleading to "specifically and separately [with] a

statement of facts" raise certain affirmative defenses, including "release").

Plaintiff countered with a certification, citing other portions of the

deposition testimony in which defendant clearly stated he was representing the

estate, not O'Brien. Plaintiff noted that defendant was represented by separate

counsel at the deposition. Plaintiff categorically stated that he never understood

defendant to be representing O'Brien in the Probate Case and never intended to

release any claims he may have had against defendant when he settled the

Probate Case.

Based on the record then before him, the judge reasoned:

I can't tell right now who a party was to the probate
matter. The attorneys that are released are the attorneys
for the parties and I don’t know if the Estate is
considered a party or not. I'm led to believe it is not.
It's the people who are trying to probate the [w]ill.

....

I don't know what the intent was here. . . . It is
. . . vague enough for me to say I'm not granting at this
time.

When defendant subsequently moved to dismiss the complaint based on

the ECD, he offered no further argument that the Release included him within

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its terms. O'Brien's counsel premised her argument to dismiss the third-party

complaint entirely on the Release, and, in so doing, alluded to defendant's status

as "co-counsel" in the Probate Case.

The parties accommodated our post-argument request and filed a

supplemental joint appendix that included their filings in support of and in

opposition to defendant's motion to dismiss based on the ECD. Defendant's

motion brief makes no argument regarding the Release. In fact, at oral

argument, defense counsel acknowledged the judge's earlier decision was "law

of the case," and he never sought reconsideration of the August 2019 order.

Plaintiff never addressed the Release in his motion for reconsideration of

the order dismissing the complaint based on the ECD. For unexplained reasons,

the judge nevertheless included in his written decision: "[T]he court observes

(on subsequent reflection) and restates that plaintiff's probate counsel accepted

[defendant's] representation that he was co-counsel for O'Brien. That being said,

the clear release language releases . . . [defendant] from liability." The judge

did not, however, issue an order reversing his earlier order denying defendant's

motion to dismiss based on the terms of the Release.

Clearly, "where a litigation has not terminated, an interlocutory order is

always subject to revision where the judge believes it would be just to do so."

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Lombardi v. Masso, 207 N.J. 517, 536 (2011). However, "where a judge is

inclined to revisit a prior interlocutory order, what is critical is that he provide

the parties a fair opportunity to be heard on the subject." Id. at 537. That did

not happen here. To the extent the judge "on subsequent reflection" was

considering additional evidence in the motion record developed through

O'Brien's motion to dismiss or the argument of counsel on that motion, it was

improper to do so without notice to the parties.

However, "it is well-settled that appeals are taken from orders and

judgments and not from opinions, oral decisions, informal written decisions, or

reasons given for the ultimate conclusion." Hayes v. Delamotte, 231 N.J. 373,

387 (2018) (quoting Do-Wop Corp. v. City of Rahway, 168 N.J. 191, 199

(2001)). The only order before us on cross-appeal is the August 2019 order

denying defendant's motion to dismiss without prejudice, and we review that

based solely on what was before the judge at that time. See Ji v. Palmer, 333

N.J. Super. 451, 463–64 (App. Div. 2000) (noting an appellate court limits it

review to the motion record (citing Bilotti v. Accurate Forming Corp., 39 N.J.

184, 188 (1963))).

"[A] release is merely a form of contract and the general rules that apply

to contract interpretation apply to releases." Sweeney v. Sweeney, 405 N.J.

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Super. 586, 597 (App. Div. 2009) (alteration in original) (quoting Domanske v.

Rapid-Am. Corp., 330 N.J. Super. 241, 246 (App. Div. 2000)). "A release is

effective only as to the parties executing it in their individual or precise

representative capacities and only as to the cause of action therein specified."

Pressler & Verniero, cmt. 32.2 on R. 4:5-4.

We need not expound too much on the critical preliminary issue, i.e., was

defendant an attorney for a party in the Probate Case? Whether an attorney-

client relationship exists is a factual determination, Froom v. Perel, 377 N.J.

Super. 298, 310–12 (App. Div. 2005), and the relationship may arise by

implication, even when the attorney's representation is not expressly

"articulated, in writing or speech." In re Palmieri, 76 N.J. 51, 58–59 (1978).

We apply the same standard the motion judge applied when deciding

defendant's motion to dismiss based on the Release. Globe Motor Co. v. Igdalev,

225 N.J. 469, 479 (2016). Like "the trial court[, we] must 'consider whether the

competent evidential materials presented, when viewed in the light most

favorable to the non-moving party,'" here, plaintiff, "are sufficient to permit a

rational factfinder to resolve the alleged disputed issue in favor of the non-

moving party." Friedman v. Martinez, 242 N.J. 449, 472 (2020) (quoting Brill

v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995)). Based on the

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evidence in the motion record at the time, the judge properly denied the motion

to dismiss based on the Release.

Affirmed on the appeal and cross-appeal.

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