Find Legal Information

                            SUPERIOR COURT OF NEW JERSEY
                            APPELLATE DIVISION
                            A-1101-93T2

SHERWOOD BAXT and SAIDA BAXT,

    Plaintiffs-Appellants,

v.

GERALD A. LILOIA and ANTHONY
J. SILVESTER,

    Defendants-Respondents.

________________________________________

        Argued: January 23, 1995 Decided: March 13, 1995
        Remanded by Supreme Court July 5, 1995.
        Resubmitted: July 17, 1995 Decided:

        Before Judges Dreier, Wefing and Braithwaite.

        On appeal from the Superior Court, Chancery Division, Hudson County and the Law Division, Bergen County.

        Helen Davis Chaitman argued the cause for appellants (Ross & Hardies, attorneys; Ms. Chaitman, Sean M. Sullivan and Kelly J. Bugle, on the brief).

        Michael R. Cole argued the cause for respondents (Riker, Danzig, Scherer, Hyland & Perretti, attorneys; Jeffrey J. Miller and Harold L. Kofman, on the brief).

        The opinion of the court was delivered by

WEFING, J.A.D.

    This matter has been remanded to us pursuant to an order of the Supreme Court of July 5, 1995 "to consider the claim of petitioners that the settlement of the underlying litigation

expressly excluded plaintiffs' claims against the attorney defendants." This court did not address that issue in its opinion since it concluded that plaintiffs had failed to state a cause of action in any event. We do not restate the facts of this matter, for they are contained within our original opinion.
    Whether plaintiffs sought to exclude claims against the attorney defendants from the settlement of the companion foreclosure action (The Summit Trust Company v. The Grove Mercantile Center, et al, A-1102-93) was not material to this court's decision that plaintiffs did not have a cause of action against these attorney defendants based solely on an allegation that the conduct of these defendants violated the Rules of Professional Conduct. Our colleague has concluded that the apparent attempt by the plaintifffs to preserve a claim against these defendants from the settlement of the underlying mortgage foreclosure action is sufficient to permit this case to go forward. In our view, however, the language plaintiffs inserted into that settlement agreement is immaterial; a party cannot preserve a claim that does not exist. We adhere to the views expressed in the opinion of March 13, 1995.