NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-3395-20
GREENSTAR, LLC, HOMETOWN COFFEE, LLC, RAM DONUT CORP., DOLOMA, INC., MANI DIVISION, RAM, INC., WILLIAMSTOWN DONUT, LLC, WINSLOW DONUTS, LLC, and DASHARATH PATEL,
Plaintiffs-Appellants,
v.
ALBERT K. MARMERO, ESQUIRE and LONG, MARMERO & ASSOCIATES, LLP,
Defendants-Respondents. ____________________________
Submitted September 14, 2022 – Decided October 5, 2022
Before Judges Vernoia and Natali.
On appeal from the Superior Court of New Jersey, Law Division, Gloucester County, Docket No. L-1384-18.
John C. Penberthy, III, attorney for appellants. Marmero Law, LLC, attorneys for respondents (Albert K. Marmero, on the brief).
PER CURIAM
In this appeal, plaintiffs challenge a Law Division order granting summary
judgment to defendants that dismissed their breach of contract, conversion,
breach of fiduciary duty, and unjust enrichment claims as barred by the statute
of limitations, and a separate order denying their motion for reconsideration.
Before us, plaintiffs contend the court improperly granted summary judgment
as a material factual issue existed regarding the commencement of the
limitations period. Second, plaintiffs claim the court erred in denying their
reconsideration application primarily by misapplying applicable case law and
failing to consider relevant evidence. We disagree with all these arguments and
affirm.
I.
Viewed in the light most favorable to plaintiffs, Brill v. Guardian Life Ins.
Co. of Am., 142 N.J. 520, 540 (1995), the pertinent facts are as follows.
Plaintiffs entered into an Asset Purchase Agreement on January 20, 2009, in
which they agreed to sell their nine Dunkin' Donuts franchises for a total amount
of $5,375,000. Prior to the August 17, 2009 closing, the buyers provided
A-3395-20 2 plaintiffs with $850,000, and later tendered an additional $762,500. The balance
of $3,762,500 was satisfied by a note held by plaintiffs, as reflected in the
settlement statement prepared the same day of the closing.
The settlement statement also identified a $65,800 line item entitled
"Radiant Escrow." In their complaint, plaintiffs alleged defendants "received
[those] funds . . . in trust . . . which were later to be distributed to [plaintiffs] . . .
because [plaintiffs] were required to purchase a radiant point of sale system for
[b]uyers." They further averred that the escrowed funds "would come back to
[plaintiffs] once the closing transpired and [b]uyers . . . purchased the system
with their own funds." Defendants' alleged failure to distribute the $65,800 is
the subject of the complaint and this appeal.
Over two years after the closing, on October 12, 2011, plaintiffs' former
counsel, Anthony Tabasso, Esquire, wrote to defendant Albert Marmero,
Esquire, then-counsel for the buyers. In that letter, Tabasso referenced two prior
communications between him and Marmero regarding the escrowed funds.1
Specifically, Tabasso confirmed that Marmero previously informed him that he
distributed those funds at closing. Tabasso also claimed that Marmero's prior
1 More specifically, Tabasso's October 12, 2011 letter referred to an initial correspondence by him to Marmero and a response by Marmero on May 11, 2011. Neither of these communications is contained in the record. A-3395-20 3 representation was inaccurate, as the settlement statement evidenced that
defendant did not distribute the escrowed funds on August 17, 2009. As he
explained:
With the exception of the $594.40 fee paid to your firm, each of the remaining disbursements mentioned above is listed as a separate item on the settlement sheet, payable from seller's funds (see lines 810, 1303, 1304, and 1305). However, each of these charges is listed in addition to the $65,800.00 charge listed at line 1113, "Radiant Escrow." The Radiant Escrow was to be held against the potential contingency where Dunkin' could have required the buyer to replace the radiant heat system in one of the transferred locations. The Radiant Escrow is entirely separate and distinct from the charges you list, and all of the foregoing charges were combined in line 1400 to arrive at the seller's total settlement charges. Even if the Radiant Escrow funds were disbursed as you state, this would leave an excess of $65,800.00 on the settlement sheet. While it appears correct that my clients brought check no. 1090 in the amount of $74,120.63 with them to closing, this does not address the separate amount of the Radiant Escrow, which was deducted from the proceeds of the sale. Had that amount not been deducted, my clients would only have needed a check for $8,320.63 to complete closing.2
2 Tabasso's characterization of the escrowed funds as a "contingency" is slightly inconsistent with plaintiffs' description of those funds in their complaint as a "deposit." That discrepancy has no effect on our analysis as Tabasso's characterization of the funds as a contingency would not toll or otherwise extend the accrual date beyond October 12, 2011, at the latest. A-3395-20 4 The letter concluded, "[t]o summarize, line 1113 represented an escrow.
As such, your firm is required to hold it until the buyer[s] authorized release. It
is imperative that this sum be accounted for immediately. . . . In the meantime,
my clients reserve all of their rights and remedies."
On December 3, 2018, over nine years after the transaction closed and
over seven years after Tabasso's October 12, 2011 letter, plaintiffs filed a
complaint, which, as noted, alleged that defendants breached the Asset Purchase
Agreement by failing to distribute the radiant escrow funds contrary to their role
as designated closing agents for the sale, converted the escrowed funds to their
benefit, breached their fiduciary duty owed to plaintiffs by using the escrowed
funds to their own end, and unjustly enriched themselves by retaining the
escrowed funds.
After the close of discovery, defendants moved for summary judgment
and argued that all of plaintiffs' claims were barred by the applicable six -year
statute of limitations provided for in N.J.S.A. 2A:14-1. They specifically
contended that "[a]ny and all disputes concerning the agreement to sell
[p]laintiff's businesses involving [d]efendants accrued on August 17, 2009."
Additionally, they maintained that based on Tabasso's October 12, 2011 letter,
"the latest the [p]laintiff[s] could have been aware of any such claim [was] on
A-3395-20 5 October 12, 2011." Plaintiffs failed to file timely opposition to defendants'
motion.
The court granted defendants' application and stated its reasons on the
record in an oral opinion. The court first noted that plaintiffs failed to oppose
defendants' motion. Notwithstanding that procedural infirmity, the court
considered the matter on the merits and concluded that plaintiffs ' claims were
time barred.
As to the accrual date, the court found that any cause of action related to
the escrowed funds accrued "when settlement was made on August 17, 2009."
In the alternative, the court relied on Tabasso's October 12, 2011 letter and
explained "the last possible accrual date that plaintiffs could allege was October
12, 2011" and, thus, even affording plaintiffs that later accrual date, the action
was barred by the six-year limitations period.
Three days after the court dismissed their claims, plaintiffs filed
opposition to defendants' summary judgment motion and also moved for
reconsideration one day later. In their Rule 4:46-2(b) counterstatement of
material facts, plaintiffs admitted that the closing occurred on August 17, 2009,
qualified, however, by a statement, without record or documentary support, that
"the transaction was not completed until December 12, 2013." According to
A-3395-20 6 plaintiffs, it was on this later date that an unidentified "agreement [to] pay off
the [n]ote(s) to plaintiffs was signed." Notably, the record does not include a
copy of the note or further details of the referenced agreement.
Plaintiffs also asserted it was at this time that "[p]laintiffs realized that the
deposit had not been accounted for nor returned per the August 17, 2009
settlement statement" and they did not receive an accounting from defendants
until February 2014. The 2014 accounting referenced is based on a series of
emails between Marmero and plaintiffs' former counsel, Brian Fleischer,
Esquire.
Plaintiffs maintained that "Marmero[] admit[ted] in his email to Brian
Fleischer dated February 11, 2014 . . . that there were additional legal 'expenses'
not on the HUD-1 settlement statement which Marmero prepared and for which
he applied to the radiant escrow deposit." Plaintiffs thus argued that "[t]he
statute of limitations would have been tolled until [p]laintiffs became aware of
the discrepancy" in February 2014.
In counsel's certification in support of plaintiffs' reconsideration motion,
he explained why plaintiffs failed to provide timely opposition to defendants'
motion. Counsel certified that as he was preparing opposition to defendants'
application, he "had to verify [documents] from third parties," which "took more
A-3395-20 7 time than [he] had," and "[he] should have requested an extension to answer the
motion but did not." He added that "[p]laintiffs . . . should not be penalized
because [he] misread the docket regarding the hearing date." As to the merits,
plaintiffs' counsel again asserted that plaintiffs "did not find out about what
happened to the [escrowed] funds until February of 2014." Based on this
assertion, he claimed "[t]here are obviously material issues of fact that can only
be discerned from a trial."
Further, in his accompanying letter brief, plaintiffs' counsel asserted that
the 2014 emails between Marmero and Fleischer constituted new evidence as
they "came to [his] attention only a few weeks ago and [he] had to verify this
with other counsel previously involved." Defendants filed an opposition to
plaintiffs' motion for reconsideration and a cross-motion for sanctions and
attorneys' fees pursuant to Rule 1:4-8.
After hearing oral argument, the court denied the parties' motions,
provided its reasoning on the record in an oral opinion the same day, and entered
a conforming order. The court rejected plaintiffs' argument that counsel's failure
to oppose the summary judgment motion provided a basis for reconsideration
and characterized the argument as "quite disingenuous," explaining it could
"think of no rational reason why an attorney would think" that the motion would
A-3395-20 8 be heard at the time of trial. The court also noted that plaintiffs' counsel had not
communicated with the court regarding the scheduling of the hearing or
requested an extension.
The court also rejected plaintiffs' argument that the 2014 emails
constituted newly discovered evidence. The court noted that the emails had
"been known to [plaintiffs] . . . or [their] legal representatives . . . for seven
years" and plaintiffs failed to request discovery from defendants. Relying on
Del Vecchio v. Hemberger, 388 N.J. Super. 179, 189 (App. Div. 2006), and
Hinton v. Meyers, 416 N.J. Super. 141, 150 (App. Div. 2010), the court
explained that plaintiffs' application improperly relied on "unraised facts that
were known to the movant prior to entry of judgment." Finally, the court
expressed "great doubt" as to whether the emails in question would have
changed his determination regarding the statute of limitations defense.
As noted, the court also denied defendants' cross-motion for sanctions and
attorneys' fees and explained that plaintiffs "had at least a good faith basis to
file the litigation." This appeal followed.
II.
Before us, plaintiffs argue the motion record revealed a material issue of
fact regarding the accrual date of the six-year statute of limitations and as such
A-3395-20 9 the court erred by granting defendants' application. Specifically, they claim
Tabasso's 2011 correspondence did not put them on notice that defendants used
the escrowed funds to pay their legal fees, and they did not become aware of
defendants' misappropriation until February, 2014. Plaintiffs acknowledge their
failure to raise the issue in opposition to defendants' summary judgment motion
but assert that the court should have "prob[ed] into the dispute" once it "was
brought to the court's attention in the reconsideration [motion]." Plaintiffs'
arguments are without merit.
We "review[] de novo the . . . entry of summary judgment," Manahawkin
Convalescent v. O'Neill, 217 N.J. 99, 115 (2014), applying "the same standard
as the trial court," Conley v. Guerrero, 228 N.J. 339, 346 (2017). Summary
judgment is appropriate if the record demonstrates there is "no genuine issue as
to any material fact challenged and that the moving party is entitled to a
judgment or order as a matter of law." R. 4:46-2(c); Ben Elazar v. Macrietta
Cleaners, Inc., 230 N.J. 123, 135 (2017). When determining whether there is a
genuine issue of material fact, we must consider "whether the competent
evidential materials presented, when viewed in the light most favorable to the
non-moving party, are sufficient to permit a rational factfinder to resolve the
alleged disputed issue in favor of the non-moving party." Brill, 142 N.J. at 540.
A-3395-20 10 Rule 4:46-2(a) requires that a motion for summary judgment be supported
by a statement of material facts which "cit[es] to the portion of the motion record
establishing [each] fact or demonstrating that [each fact] is uncontroverted." R.
4:46-2(a). "[A] party opposing a motion for summary judgment [must] 'file a
responding statement either admitting or disputing each of the facts in the
movant's statement.'" Claypotch v. Heller, Inc., 360 N.J. Super. 472, 488 (App.
Div. 2003) (quoting R. 4:46-2(b)).
Breach of contract, conversion, breach of fiduciary duty, and unjust
enrichment claims are all governed by a six-year statute of limitations. N.J.S.A.
2A:14-1; O'Keefe v. Snyder, 83 N.J. 478, 489 (1980) ("The fulcrum on which
the outcome turns is the statute of limitations in N.J.S.A. 2A:14-1, which
provides that an action for replevin of goods or chattels must be commenced
within six years after the accrual of the cause of action."); Dynasty Bldg. Corp.
v. Ackerman, 376 N.J. Super. 280, 286-87 (App. Div. 2005) (applying a six-year
statute of limitations to claims of conversion and breach of fiduciary duty);
Kopin v. Orange Prods., Inc., 297 N.J. Super. 353, 373-74 (App. Div. 1997)
(finding N.J.S.A. 2A:14-1's six-year limitations period applicable to quasi-
contract claims, including unjust enrichment); Est. of Ahrens v. Edgewater
Colony, Inc., 267 N.J. Super. 83, 88 (App. Div. 1993) (noting that claims
A-3395-20 11 alleging conversion of stock shares are generally covered by the six-year statute
of limitations of N.J.S.A. 2A:14-1); Iwanowa v. Ford Motor Co., 67 F. Supp. 2d
424, 473 (D.N.J. 1999) ("The statute of limitations in New Jersey for claims
sounding in restitution/unjust enrichment or quantum meruit is six years.").
The statute of limitations for any claim does not begin to run until the
claim has accrued. "[F]or purposes of determining when a cause of action
accrues, . . . the relevant question is when did the party seeking to bring the
action have an enforceable right." Metromedia Co. v. Hartz Mountain Assocs.,
139 N.J. 532, 535 (1995) (quoting Andreaggi v. Relis, 171 N.J. Super. 203, 235-
36 (Ch. Div. 1979)). In most contract actions it is "presume[d] that the parties
to a contract know the terms of their agreement and a breach is generally obvious
and detectable with any reasonable diligence." Cnty. of Morris v. Fauver, 153
N.J. 80, 110 (1998).
Here, the record fully supported the court's order granting defendants
summary judgment. It was undisputed that the sale of the nine Dunkin' Donuts
franchises closed on August 17, 2009. At that time, or shortly thereafter,
plaintiffs knew, or with any semblance of diligence should have known, that the
escrowed funds belonged to them and had not been distributed from Marmero's
trust account. Further, there was no competent evidence presented to the motion
A-3395-20 12 court, or us, that would create a material and genuine factual question that
defendants' obligation to distribute the escrowed funds was excused by any
provision of the Asset Purchase Agreement, or any statement or action of the
buyers or defendants, thereby rendering their 2018 claims timely filed.
Even if plaintiffs' claims did not accrue on or about the closing date,
plaintiffs were clearly aware of actionable claims related to the purported
improper retention of the escrowed funds on October 12, 2011, when Tabasso
wrote to Marmero, over seven years before they filed their complaint. In that
letter, plaintiffs' counsel took the position that the $65,800 should have been
held in escrow, confirmed that Marmero told him, incorrectly, that he had
distributed the funds, explained how the settlement statement verified that the
$65,800 had not been distributed to plaintiffs, demanded an accounting, and
reserved all of plaintiffs' rights and remedies.
Finally, we reject plaintiffs' argument that the 2014 emails between
Marmero and Fleischer created a material and genuine dispute of fact. Initially,
we note that the 2014 emails were improperly introduced for the first time in
plaintiffs' motion for reconsideration. Even if the 2014 emails were properly
presented to the court in opposition to defendants' summary judgment motion,
we find no support for plaintiffs' contention that these emails constituted their
A-3395-20 13 first notice that they had potential claims against defendants related to the
escrowed funds. Viewed in the light most favorable to plaintiffs, the 2014
emails include Marmero's explanation as to how he accounted for and distributed
the escrowed funds. If we were to accept plaintiffs' claim that Marmero
improperly used the funds, by that point, plaintiffs had known since 2011, at the
latest, that they had a right to the escrowed funds and that Marmero failed to
distribute the $65,800 to them.
III.
Finally, we address defendant's motion for reconsideration under Rule
4:49-2. A motion for "[r]econsideration is a matter within the sound discretion
of the [c]ourt, to be exercised in the interest of justice." Cummings v. Bahr, 295
N.J. Super. 374, 384 (App. Div. 1996) (first alteration in original) (quoting
D'Atria v. D'Atria, 242 N.J. Super. 392, 401 (Ch. Div. 1990)). In determining
whether such an abuse has taken place, a reviewing court should be mindful that
reconsideration is not to be utilized by a party just because of their
"dissatisfaction with a decision of the [c]ourt." Capital Fin. Co. of Del. Valley,
Inc. v. Asterbadi, 398 N.J. Super. 299, 310 (App. Div. 2008) (alteration in
original) (quoting D'Atria, 242 N.J. Super. at 401).
A-3395-20 14 Reconsideration is appropriate when (1) "the [c]ourt has expressed its
decision based on a palpably wrong or irrational basis," or (2) "it is obvious that
the [c]ourt either did not consider, or failed to appreciate the significance of
probative, competent evidence." Ibid. (alterations in original) (quoting D'Atria,
242 N.J. Super. at 401). "[T]he magnitude of the error cited must be a game-
changer for reconsideration to be appropriate." Palombi v. Palombi, 414 N.J.
Super. 274, 289 (App. Div. 2010). "[I]f a litigant wishes to bring new or
additional information to the [c]ourt's attention which it could not have provided
on the first application, the [c]ourt should, in the interest of justice (and in the
exercise of sound discretion), consider the evidence." D'Atria, 242 N.J. Super.
at 401-02. Nonetheless, because "motion practice must come to an end," the
court must both be "sensitive and scrupulous in its analysis of the issues [on]
reconsideration." Ibid.
Here, plaintiffs argue that the court erred in denying their motion for
reconsideration because the court: (1) erred by failing to consider the 2014
emails submitted by plaintiffs in their May 17, 2021 untimely opposition; (2)
improperly relied on Del Vecchio and Hinton; (3) incorrectly ruled on
defendants' statute of limitations defense without requiring defendants to submit
"all of the evidence [they] controlled"; and (4) failed to provide latitude to
A-3395-20 15 plaintiffs with respect to their belated filing in light of the COVID-19 pandemic.
We reject all of these arguments as we are satisfied that the court did not abuse
its considerable discretion in denying plaintiffs' application.
As already explained, the 2014 emails are immaterial as to whether
plaintiffs had knowledge of their potential claims on or before October 12, 2011.
Further, when reviewing those exhibits, again provided for the first time on
reconsideration, the court expressed its "great doubts" that they would have
altered the court's initial decision. We find no error with that discretionary
decision and reject plaintiffs' claims that the court failed to consider probative,
competent evidence.
We are also satisfied that the court had a rational basis to determine that
the 2014 emails did not constitute newly discovered evidence, and accurately
applied Del Vecchio and Hinton, which relied on the principle that facts that
were known yet unraised prior to the entry of a challenged order are insufficient
to support a grant of reconsideration. See also Palombi, 414 N.J. Super. at 289
(concluding that facts known to the movant prior to the entry of the order were
not an appropriate basis for reconsideration). Finally, we find nothing in the
record to support plaintiffs' contention, raised for the first time before us, that
A-3395-20 16 the COVID-19 pandemic in any way impacted their ability to discover relevant
evidence or adhere to the court's procedural rules.
To the extent we have not addressed any of plaintiffs' remaining
arguments it is because we conclude they are without sufficient merit to warrant
discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
A-3395-20 17