NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-1244-16T2
DENNIS AIELLO,
Plaintiff-Appellant/ Cross-Respondent,
v.
ZBIGNIEW ZAWISTOWSKI and TEAM PRECISION AUTO, LLC, d/b/a Precision Chrysler Jeep Dodge Ram, a Limited Liability Company,
Defendants-Respondents/ Cross-Appellants, and
BRUCE WAINWRIGHT and JUSTIN WAINWRIGHT,
Defendants. _______________________________
Argued February 13, 2018 – Decided July 11, 2018
Before Judges Fisher, Sumners and Moynihan.
On appeal from Superior Court of New Jersey, Chancery Division, Morris County, Docket No. C-000128-15.
Batya G. Wernick argued the cause for appellant/cross-respondent. Steven C. Schechter argued the cause for respondents/cross-appellants.
PER CURIAM
Plaintiff Dennis Aiello appeals the Chancery Division order
granting summary judgment dismissal of his complaint against
defendants, Zbigniew Zawistowski, Team Precision Auto, LLC, d/b/a
Precision Chrysler Jeep Dodge Ram, a limited liability company,
alleging entitlement to a fifty-percent ownership interest in
Precision Chrysler Jeep Dodge Ram (the dealership). Because the
trial court failed to properly apply the summary judgment standard
by viewing the verbal agreement contention in the light most
favorable to plaintiff, we reverse. In addition, Zawistowski and
Team Precision Auto (collectively Team Precision) cross-appeal an
order denying its motion for sanctions against plaintiff. Given
our reversal that reinstates plaintiff's complaint, we affirm the
order.
I
When reviewing an order granting summary judgment, we apply
"the same standard governing the trial court." Oyola v. Xing Lan
Liu, 431 N.J. Super. 493, 497 (App. Div. 2013). A court should
only grant summary judgment when the record reveals "no genuine
issue as to any material fact" and "the moving party is entitled
to a judgment or order as a matter of law." R. 4:46-2(c). Summary
2 A-1244-16T2 judgment should be denied when determination of material disputed
facts depends primarily on credibility evaluations. Petersen v.
Twp. of Raritan, 418 N.J. Super. 125, 132 (App. Div. 2011). The
facts alleged by the parties should be viewed in the light most
favorable to the opposing party. Brill v. Guardian Life Ins. Co.
of Am., 142 N.J. 520, 523 (1995). We accord no deference to the
trial judge's legal conclusions. Nicholas v. Mynster, 213 N.J.
463, 478 (2013) (citations omitted).
Plaintiff's breach of contract claim sought a fifty-percent
ownership interest in Butler Chrysler Jeep Dodge, owned by Bruce
Wainwright and Justin Wainwright, based upon an oral agreement he
contended he made with Zawistowski and Bruce Wainwright in April
2011. Three months later, Butler Chrysler Jeep Dodge was acquired
by Team Precision Auto, LLC, owned by Zawistowski, who renamed it
Precision Chrysler Jeep Dodge Ram – without any mention of
plaintiff in the final ownership documents.
In December 2012, plaintiff filed for Chapter Seven
bankruptcy but did not indicate he had any pending interest in the
dealership or cause of actions against defendants in his filing.
However, a month later, he filed a personal property amendment to
include a "breach of contract suit against former business
partner," for other contingent and unliquidated claims.
3 A-1244-16T2 In 2015, four years after the dealership was purchased,
plaintiff filed suit asserting breach of a partnership agreement
and sought: monetary damages; a declaratory judgment that he owned
fifty percent of Team Precision Auto, LLC and the dealership; and
an accounting of all of the dealership's earnings, profits and
assets. Following discovery, the court granted defendants'
summary judgment motions dismissing plaintiff's complaint.1
The court dismissed plaintiff's breach of contract claim
because, in its view, there was no evidence that he had an
agreement to purchase an interest in the dealership. The court
reasoned:
The only . . . evidence of an agreement is [plaintiff] saying, oh, I had an agreement, that's it. There is nothing else.
. . . .
But there's . . . absolutely not a shred of evidence in here to support the allegations of [plaintiff]. There are no material facts in dispute. . . . [H]e doesn’t even know what the terms of the agreements were. That's pretty clear from his own deposition.
So the matter is dismissed, with prejudice. This matter is over. There are no material facts in dispute.
One doesn’t get two bites of the apple, in a sense. You get [to] say something in
1 A separate order of the same date granting summary judgment in favor of defendants Bruce Wainwright and Justin Wainwright was not appealed.
4 A-1244-16T2 discovery, but . . . if it doesn’t prove your cause of action, you don’t get a second chance to try it at trial.
There's not a shred of evidence here to support [plaintiff's] allegation.
Because the court failed to view the evidence in the light
most favorable to plaintiff, it erred in granting summary judgment
to defendants. Plaintiff's deposition testimony asserted
sufficient facts to defeat summary judgment. He stated that in
2011, after Zawistowski declined his proposal to finance a used
car business, he introduced Zawistowski to the Wainwrights, who
were interested in selling Butler Chrysler Jeep Dodge. When the
parties met, plaintiff contended it was agreed that Zawistowski
would set up a company – eventually, Team Precision Auto, LLC –
with his money to purchase the dealership and plaintiff would
manage the company and have a fifty percent share of its proceeds
and assets. A year later, the purchase was consummated with the
dealership taking on a name, Precision Chrysler Jeep Dodge Ram.
In an initial draft of the asset sale agreement and lease
assignment agreement prepared by the Wainwrights' counsel,
plaintiff was included as a purchaser; however, Zawistowski's
counsel advised that plaintiff's name should be deleted from the
documents. Plaintiff's name was not on the final ownership
documents. Nevertheless, plaintiff relied upon emails with
5 A-1244-16T2 Zawistowski's counsel - not to prove the creation of a business
entity with Zawistowski, but to support his assertion that there
was an agreement, which stated he was a party to the acquisition
of the dealership.
Apparently, the court did not believe plaintiff's deposition
testimony, which in deciding summary judgment – not sitting as a
factfinder at trial – was an inappropriate determination of his
credibility. At trial in the Chancery Division, the court as
factfinder would be in a position to credit plaintiff's contentions
– and discredit defendants' testimony – that he had an ownership
stake in the new dealership. Additionally, while the lack of a
written partnership agreement could plausibly undermine
plaintiff's trial proofs, a written document is not necessary to
prove the existence of an agreement. See Presten v. Sailer, 225
N.J.
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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-1244-16T2
DENNIS AIELLO,
Plaintiff-Appellant/ Cross-Respondent,
v.
ZBIGNIEW ZAWISTOWSKI and TEAM PRECISION AUTO, LLC, d/b/a Precision Chrysler Jeep Dodge Ram, a Limited Liability Company,
Defendants-Respondents/ Cross-Appellants, and
BRUCE WAINWRIGHT and JUSTIN WAINWRIGHT,
Defendants. _______________________________
Argued February 13, 2018 – Decided July 11, 2018
Before Judges Fisher, Sumners and Moynihan.
On appeal from Superior Court of New Jersey, Chancery Division, Morris County, Docket No. C-000128-15.
Batya G. Wernick argued the cause for appellant/cross-respondent. Steven C. Schechter argued the cause for respondents/cross-appellants.
PER CURIAM
Plaintiff Dennis Aiello appeals the Chancery Division order
granting summary judgment dismissal of his complaint against
defendants, Zbigniew Zawistowski, Team Precision Auto, LLC, d/b/a
Precision Chrysler Jeep Dodge Ram, a limited liability company,
alleging entitlement to a fifty-percent ownership interest in
Precision Chrysler Jeep Dodge Ram (the dealership). Because the
trial court failed to properly apply the summary judgment standard
by viewing the verbal agreement contention in the light most
favorable to plaintiff, we reverse. In addition, Zawistowski and
Team Precision Auto (collectively Team Precision) cross-appeal an
order denying its motion for sanctions against plaintiff. Given
our reversal that reinstates plaintiff's complaint, we affirm the
order.
I
When reviewing an order granting summary judgment, we apply
"the same standard governing the trial court." Oyola v. Xing Lan
Liu, 431 N.J. Super. 493, 497 (App. Div. 2013). A court should
only grant summary judgment when the record reveals "no genuine
issue as to any material fact" and "the moving party is entitled
to a judgment or order as a matter of law." R. 4:46-2(c). Summary
2 A-1244-16T2 judgment should be denied when determination of material disputed
facts depends primarily on credibility evaluations. Petersen v.
Twp. of Raritan, 418 N.J. Super. 125, 132 (App. Div. 2011). The
facts alleged by the parties should be viewed in the light most
favorable to the opposing party. Brill v. Guardian Life Ins. Co.
of Am., 142 N.J. 520, 523 (1995). We accord no deference to the
trial judge's legal conclusions. Nicholas v. Mynster, 213 N.J.
463, 478 (2013) (citations omitted).
Plaintiff's breach of contract claim sought a fifty-percent
ownership interest in Butler Chrysler Jeep Dodge, owned by Bruce
Wainwright and Justin Wainwright, based upon an oral agreement he
contended he made with Zawistowski and Bruce Wainwright in April
2011. Three months later, Butler Chrysler Jeep Dodge was acquired
by Team Precision Auto, LLC, owned by Zawistowski, who renamed it
Precision Chrysler Jeep Dodge Ram – without any mention of
plaintiff in the final ownership documents.
In December 2012, plaintiff filed for Chapter Seven
bankruptcy but did not indicate he had any pending interest in the
dealership or cause of actions against defendants in his filing.
However, a month later, he filed a personal property amendment to
include a "breach of contract suit against former business
partner," for other contingent and unliquidated claims.
3 A-1244-16T2 In 2015, four years after the dealership was purchased,
plaintiff filed suit asserting breach of a partnership agreement
and sought: monetary damages; a declaratory judgment that he owned
fifty percent of Team Precision Auto, LLC and the dealership; and
an accounting of all of the dealership's earnings, profits and
assets. Following discovery, the court granted defendants'
summary judgment motions dismissing plaintiff's complaint.1
The court dismissed plaintiff's breach of contract claim
because, in its view, there was no evidence that he had an
agreement to purchase an interest in the dealership. The court
reasoned:
The only . . . evidence of an agreement is [plaintiff] saying, oh, I had an agreement, that's it. There is nothing else.
. . . .
But there's . . . absolutely not a shred of evidence in here to support the allegations of [plaintiff]. There are no material facts in dispute. . . . [H]e doesn’t even know what the terms of the agreements were. That's pretty clear from his own deposition.
So the matter is dismissed, with prejudice. This matter is over. There are no material facts in dispute.
One doesn’t get two bites of the apple, in a sense. You get [to] say something in
1 A separate order of the same date granting summary judgment in favor of defendants Bruce Wainwright and Justin Wainwright was not appealed.
4 A-1244-16T2 discovery, but . . . if it doesn’t prove your cause of action, you don’t get a second chance to try it at trial.
There's not a shred of evidence here to support [plaintiff's] allegation.
Because the court failed to view the evidence in the light
most favorable to plaintiff, it erred in granting summary judgment
to defendants. Plaintiff's deposition testimony asserted
sufficient facts to defeat summary judgment. He stated that in
2011, after Zawistowski declined his proposal to finance a used
car business, he introduced Zawistowski to the Wainwrights, who
were interested in selling Butler Chrysler Jeep Dodge. When the
parties met, plaintiff contended it was agreed that Zawistowski
would set up a company – eventually, Team Precision Auto, LLC –
with his money to purchase the dealership and plaintiff would
manage the company and have a fifty percent share of its proceeds
and assets. A year later, the purchase was consummated with the
dealership taking on a name, Precision Chrysler Jeep Dodge Ram.
In an initial draft of the asset sale agreement and lease
assignment agreement prepared by the Wainwrights' counsel,
plaintiff was included as a purchaser; however, Zawistowski's
counsel advised that plaintiff's name should be deleted from the
documents. Plaintiff's name was not on the final ownership
documents. Nevertheless, plaintiff relied upon emails with
5 A-1244-16T2 Zawistowski's counsel - not to prove the creation of a business
entity with Zawistowski, but to support his assertion that there
was an agreement, which stated he was a party to the acquisition
of the dealership.
Apparently, the court did not believe plaintiff's deposition
testimony, which in deciding summary judgment – not sitting as a
factfinder at trial – was an inappropriate determination of his
credibility. At trial in the Chancery Division, the court as
factfinder would be in a position to credit plaintiff's contentions
– and discredit defendants' testimony – that he had an ownership
stake in the new dealership. Additionally, while the lack of a
written partnership agreement could plausibly undermine
plaintiff's trial proofs, a written document is not necessary to
prove the existence of an agreement. See Presten v. Sailer, 225
N.J. Super. 178, 191-93 (App. Div. 1988) (recognizing that a
partnership or joint venture need not be formalized in writing,
and can be inferred from conduct). Yet, there were some emails
memorializing plaintiff's contention that he had an interest in
the dealership.
We find no merit to defendants' argument that plaintiff lacked
standing and should be judicially estopped from pursuing this
action due to his failure to identify this breach of contract
claim when he filed for bankruptcy. The doctrine of judicial
6 A-1244-16T2 estoppel is "an equitable doctrine precluding a party from
asserting a position in a case that contradicts or is inconsistent
with a position previously asserted by the party in the case or a
related legal proceeding." Newell v. Hudson, 376 N.J. Super. 29,
38 (App. Div. 2005) (citation omitted). First, the court did not
base its grant of summary judgment on this ground considering it
did not set forth any factual and legal findings; merely stating:
"There's the bankruptcy issue; there's the issue of judicial
estoppel." Second, less than two months after plaintiff filed his
bankruptcy petition, and well in advance of filing this action,
he amended it to include the within claim – even though he provided
scant detail in doing so.
We are likewise unmoved by the argument that plaintiff's
claim is lacking because he is not a licensed car dealer or
authorized by the Chief Administrator of the Motor Vehicle
Commission under N.J.S.A. 39:10-19 to operate a car dealership.
Nor do we find merit in the assertion that plaintiff can have no
interest in the dealership because his previous convictions of
theft, conspiracy, and fraud would have prevented him from
obtaining a license. And, we also find no merit to the argument
that plaintiff's claim is barred under the doctrine of laches
because he waited until 2015 to file suit when he has known since
2011 that defendants denied his claim that he had an interest in
7 A-1244-16T2 the dealership. The court addressed neither argument in granting
summary judgment; as such, we do not address them. Moreover, as
for laches, which "is an equitable doctrine, operating as an
affirmative defense that precludes relief when there is an
'unexplainable and inexcusable delay' in exercising a right, which
results in prejudice to another party," Fox v. Millman, 210 N.J.
401, 417-18 (2012) (quoting Cty. of Morris v. Fauver, 153 N.J. 80,
105 (1998)), there is no evidence that Team Precision was
prejudiced by plaintiff's four-year delay in seeking judicial
relief.
II
After defendants were granted summary judgment, a different
court denied Team Precision's motion for sanctions under N.J.S.A.
2A:15-59.1 and Rule 1:4-8, for filing a frivolous action. The
court found that "[p]laintiff did demonstrate there [were] some
discussions with respect to the alleged agreement, and that
[p]laintiff was involved in the transaction in 2011. Therefore,
while [p]laintiff's case was weak, it does not give rise to
frivolousness." Given our conclusion that it was error for the
first court to grant summary judgment, there is no basis to disturb
the denial of sanctions. Moreover, even if we approved the summary
judgment dismissal of plaintiff's complaint, we would have still
agreed with the denial of sanctions, as there is nothing in the
8 A-1244-16T2 record indicating the court abused its discretion. See McDaniel
v. Man Wai Lee, 419 N.J. Super. 482, 498 (App. Div. 2011) (A
decision to award fees "will be reversed on appeal only if it 'was
not premised upon consideration of all relevant factors, was based
upon consideration of irrelevant or inappropriate factors, or
amounts to a clear error in judgment.'") (quoting Masone v. Levine,
382 N.J. Super. 181, 193 (App. Div. 2005)).
Reversed in part, affirmed in part, and remanded for further
proceedings consistent with this opinion. We do not retain
jurisdiction.
9 A-1244-16T2