NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-0324-16T3 A-2568-16T3
JOSEPH TODARO,
Plaintiff-Appellant,
v.
LANGSTONE, LLC and JOSEPH MANZO, ESQ.,
Defendants,
and
SALVATORE GIORDANO, III,
Defendant-Respondent. _______________________________
INTEGRATED DESIGN SYSTEMS OF NEW JERSEY, LLC,
Plaintiff,
LANGSTONE, LLC,
Defendant-Respondent, and
Defendant/Third-Party Plaintiff-Appellant,
Third-Party Defendant. _____________________________
Argued September 25, 2018 – Decided December 24, 2018
Before Judges Yannotti and Rothstadt.
On appeal from Superior Court of New Jersey, Law Division, Somerset County, Docket Nos. L-0896-16 and L-1030-08.
Randall J. Peach argued the cause for appellant Joseph Todaro in A-0324-16 and A-2568-16.
Respondent Salvatore Giordano, III has not filed a brief in A-0324-16.
Joseph A. Manzo argued the cause for respondent Langstone, LLC, in A-2568-16.
PER CURIAM
In these two appeals that we considered back-to-back and consolidated for
purposes of writing one opinion, the principal parties, Joseph Todaro and
A-0324-16T3 2 Salvatore Giordano, III and his company, Langstone Inc., have been pursuing
each other through litigation for more than a decade.1 The present appeals arose
from their commercial tenancy dispute that was tried by a judge in 2012 and
resulted in a substantial judgment against Todaro. We affirmed that judgment
in a 2016 unpublished opinion. See Todaro v. Langstone, LLC, No. A-5892-11
(App. Div. March 2, 2016) (slip op. at 2).
After we issued our opinion, Todaro filed a motion and a separate
complaint in a new action seeking primarily to vacate the judgment against him
and argued that it was obtained through Giordano's perjury and commission of
a fraud upon the court during the 2012 trial. In A-0324-16, Todaro now appeals
from the trial court's dismissal of his new complaint and in A-2568-16, from the
denial of his Rule 4:50-3 motion to vacate. For the reasons that follow, we
affirm both orders under appeal.
We begin with a summary of the facts already reviewed in our earlier
opinion, Todaro, slip op. at 3-13, adding the procedural history of the actions
filed since we issued our opinion to give context to the present dispute. In 2005,
Langstone and Todaro entered into a fifteen-year lease for commercial property
1 One trial court judge observed that by 2012, there had been seven complaints filed between the same parties. A-0324-16T3 3 owned by Todaro, which required Langstone to obtain municipal approvals for
the construction of an automotive oil change facility it was going to operate from
the leased premises. Langstone hired Integrated Design Systems of New Jersey,
LLC ("Integrated") as its general contractor, but a dispute arose that resulted in
Integrated leaving the job and Todaro and Langstone disagreeing over who was
responsible for the construction not being completed.
The present dispute arose from two actions originally filed by Integrated
against Langstone and Todaro in 2008 for its unpaid bills and to establish a
construction lien. The two actions were consolidated and Langstone asserted
claims against Todaro, who in turn in turn joined Giordano. After Langstone
and Integrated settled, the remaining claims between Langstone, Giordano, and
Todaro proceeded to trial.
Giordano's and Langstone's claim against Todaro was premised upon
Todaro's interfering with the approvals Langstone obtained from` the local
planning board. According to Giordano, the project was unable to proceed
because of an April 9, 2008 letter sent to the planning board by Todaro's attorney
which objected to Langstone's proposed demolition plans and resulted in the
board reevaluating and ultimately withdrawing its approval. When the board
withdrew its approval, Integrated ceased working on the project.
A-0324-16T3 4 During his cross-examination of Giordano, Todaro's attorney confronted
him with a letter Giordano sent on April 21, 2008 to the borough attorney, stating
that he had fired Integrated. Giordano testified that, despite the letter, he did
not terminate the relationship with Integrated and that the letter was simply
"posturing."
During the later testimony of Todaro's last witness, his engineering expert,
the witness produced a March 28, 2008 email sent at 12:51 p.m. by Giordano to
Integrated stating that the contract with Integrated was "terminated" because it
had not provided certain required information. Giordano sent a second email
after Integrated responded, stating that if it did not resolve a specific issue by
the following Tuesday, he would "hire [his] own excavator . . . and finish the
project [him]self." Todaro contended that Giordano's firing of Integrated, as
confirmed in the first email rather than his attorney's April 9, 2008 letter to the
board, was the cause of the project's failure and established Giordano's lying to
the court.
In his comprehensive, sixty-nine-page written decision, the trial judge
found Giordano to be credible and Todaro to be unbelievable. As to the letters
and emails relating to Integrated's termination, the judge accepted Giordano's
explanation that he was "posturing." As we observed in our earlier opinion, after
A-0324-16T3 5 considering all of the evidence at trial, the "judge found that Todaro was in
material breach of the lease . . . ." Todaro, slip op. at 12. The judge ultimately
found for Langstone and Giordano, entered judgment in Langstone's favor for
$305,557.64, and dismissed Todaro's claims against Langstone and Giordano.
In response to Langstone's efforts to collect its judgment, in December
2013, Todaro filed a motion to set aside the judgment under Rule 4:50-3 and for
the imposition of sanctions against Langstone based on Giordano's committing
a fraud on the court and perjuring himself at trial. (Da 114-116). At the time
he filed his motion, Todaro had already filed a notice of appeal from the trial
judge's decision on August 13, 2012. In support of the motion, Todaro filed his
attorney's twenty-page certification in which he argued it was apparent that the
judgment entered against Todaro was based upon Giordano's perjury and fraud
and should be vacated.
Attached to counsel's certification were various documents that pre-dated
the trial and which counsel asserted established the fact that Giordano
committed perjury. The documents included a construction lien filed by
Langstone; the April 21, 2008 letter from Giordano to the borough attorney; a
copy of a construction lien claim filed by Integrated in April 2008; an April 18,
2008 letter Langstone wrote to the Office of Regulatory Affairs; and a June 11,
A-0324-16T3 6 2008 letter from Giordano to Valley National Bank. According to counsel, all
of these items established that Giordano fired Integrated as of March 28, 2008.
On January 31, 2014, the motion judge denied Todaro's motions without
prejudice. As set forth in his written decision, the judge found that the motion
to set aside the judgment was untimely and that a decision on the motion "would
be usurping the Appellate Division . . . ." Todaro filed a second appeal
challenging the denial of his motion, which we considered with the then-pending
earlier appeal from the trial judge's decision.
In his earlier appeals, Todaro raised numerous issues regarding the trial
judge's decision and the denial of his December 2013 post-judgment motion to
vacate. Among his contentions, he stated that the judgment against him was
entered in error and should have been vacated based upon Giordano's
committing perjury relative to the dispute about why Integrated stopped
performing at the site. We issued our opinion on March 2, 2016, in which we
rejected Todaro's arguments as being without merit and affirmed based upon the
findings made by the trial judge. We concluded that the trial judge's
determination about Todaro's interference with the project was supported by
substantial credible evidence. We then addressed certain specific contentions
made by Todaro and we stated that to the extent we did not specifically address
A-0324-16T3 7 Todaro's remaining arguments, they lacked sufficient merit to warrant
discussion, citing to Rule 2:11-3(e)(1)(E). We later denied Todaro's motion for
reconsideration. In September 2016, the Supreme Court denied Todaro's
petition for certification. Todaro v. Langstone, LLC, 227 N.J. 357 (2016).
In April 2016, Todaro filed a new complaint seeking damages and alleging
that Langstone, Giordano, and their attorney, Joseph Manzo, committed perjury
and fraud during the bench trial. Manzo filed a Rule 4:6-2(e) motion to dismiss
for failure to state a claim in lieu of an answer. During the hearing on th e
motion, Manzo argued that the courts already determined there were no issues
relating to perjury. Todaro maintained that no court addressed these claims and
that the trial judge was misled. In opposition to the motion, Todaro filed a
certification from his trial attorney who certified that the judgment was entered
as a result of Giordano's perjury "when he testified, repeatedly, that he never
fired [Integrated] . . . ." He also explained that Giordano was not cross-
examined with the March 28, 2008 emails, that the emails were disclosed only
"[at] the end of the trial," and that he only cross-examined Giordano about the
April 21, 2008 letter he sent to the borough attorney.
On August 9, 2016, Judge Yolanda Ciccone granted Manzo's motion and
entered an order dismissing Todaro's new complaint with prejudice as to all
A-0324-16T3 8 defendants. She found that the claims against Manzo were barred by both the
litigation privilege and collateral estoppel. She specifically concluded that a
"finding that [Todaro's] claims are barred by the doctrine of collateral estoppel
as to . . . Langstone or Manzo effectively bars [Todaro's] claims against
Giordano." The judge then analyzed each of Todaro's claims and found that the
same contentions were raised and ruled upon by the trial judge, our court, and
the motion judge in Todaro's December 2013 motion to vacate. Relying on her
findings that collateral estoppel applied, Judge Ciccone dismissed Todaro's
complaint as to all defendants with prejudice. Todaro appealed from the order
on September 22, 2016.
In November 2016, Todaro filed a motion to set aside the 2012 judgment
under Rule 4:50-3 and again argued that Langstone through Giordano committed
perjury and fraud on the court. In support of his motion, Todaro filed the
certification of his attorney that had attached various documents, many if not all
of which were included in the certification filed in support of the December 2013
motion to vacate. The documents that counsel designated as "Materials
documenting the perjury committed by Langstone" included a copy of an
undated complaint filed by Giordano in 2016 against Todaro, his attorneys and
A-0324-16T3 9 others.2 They also included copies of Todaro's motion and attorney's
certification filed in his 2013 post-judgment motion to vacate; the earlier March
28, 2008 email from Giordano to Integrated; a construction lien claim in favor
of Langstone as to Todaro's premises; the April 9, 2008 letter from Todaro's
attorney to the planning board's attorney; portions of transcripts from earlier
proceedings between the parties in 2011; the April 21, 2008 letter from Giordano
to the borough attorney; a copy of a 2008 complaint filed by Integrated against
Langstone; a 2013 letter from Manzo to the trial judge; a 2008 letter from
Giordano to the Office of Regulatory Affairs; a 2008 letter from Langstone to
Valley National Bank; and a copy of a certification dated September 21, 2010,
and filed by Integrated in its initial action against Langstone. In that
certification, Integrated's managing member stated that "on or about March 28,
2008," Langstone prevented Integrated "from working on the project."
On January 20, 2017, Judge Ciccone entered an order denying Todaro's
motion. In her oral decision, the judge found again that the doctrine of collateral
estoppel barred Todaro's claims from being re-litigated. Todaro filed his appeal
from that order on February 22, 2017.
2 Judge Ciccone dismissed Giordano's complaint in April 2017. That order is not a subject of these appeals. A-0324-16T3 10 In his present appeal from the denial of his motion to vacate, Todaro
argues that it would be a "miscarriage of justice" if we do not intervene and
vacate "the judgment [that was] based on [Giordano's] indisputable perjury and
fraud on the [] court . . . ." He contends that collateral estoppel should not have
barred the pursuit of his motion to vacate and he suggests that we employ a de
novo standard of review in our consideration of Judge Ciccone's order because
she failed to conduct the proper analysis.
Todaro's contentions on appeal from Judge Ciccone's order dismissing his
complaint under Rule 4:6-2(e) are similar. In that appeal, he argues collateral
estoppel should not have barred his pleading. Additionally, he contends that it
was an error to dismiss the complaint as to Giordano, who was not a party to
Manzo's motion; that Manzo failed to establish he was entitled to dismissal
under the applicable standard; the dismissal motion should have been denied
because it was based upon "false representations;" and the judge improperly
determined that "the litigation privilege" barred any claim against Manzo for
assertions made during the trial.
The common argument in Todaro's present appeals, and the lynchpin to
all of the other issues he raises, is that Judge Ciccone erred in her application of
the doctrine of collateral estoppel. We disagree.
A-0324-16T3 11 The doctrine of collateral estoppel "'bars re[-]litigation of any issue which
was actually determined in a prior action, generally between the same parties,
involving a different claim or cause of action.'" In re Liquidation of Integrity
Ins. Co., 214 N.J. 51, 66 (2013) (quoting Div. of Youth & Family Servs. v. R.D.,
207 N.J. 88, 114 (2011)).
For collateral estoppel to apply:
the party asserting the bar must show that: (1) the issue to be precluded is identical to the issue decided in the prior proceeding; (2) the issue was actually litigated in the prior proceeding; (3) the court in the prior proceeding issued a final judgment on the merits; (4) the determination of the issue was essential to the prior judgment; and (5) the party against whom the doctrine is asserted was a party to or in privity with a party to the earlier proceeding.
[In re Estate of Dawson, 136 N.J. 1, 20 (1994).]
See also Winters v. N. Hudson Reg'l Fire & Rescue, 212 N.J. 67, 85 (2012).
However, "[e]ven where these requirements are met, the doctrine, which has its
roots in equity, will not be applied when it is unfair to do so." Olivieri v. Y.M.F.
Carpet, Inc., 186 N.J. 511, 521-22 (2006) (alteration in original) (quoting Pace
v. Kuchinsky, 347 N.J. Super. 202, 215 (App. Div. 2002)).
Our Supreme Court has identified "a variety of fairness factors" favoring
application of collateral estoppel, including: "conservation of judicial resources;
A-0324-16T3 12 avoidance of repetitious litigation; and prevention of waste, harassment,
uncertainty and inconsistency." Allen v. V & A Bros., Inc., 208 N.J. 114, 138
(2011) (quoting Olivieri, 186 N.J. at 523). In contrast, the fairness factors
weighing against application of collateral estoppel include consideration of
whether:
the party against whom preclusion is sought could not have obtained review of the prior judgment; the quality or extent of the procedures in the two actions is different; it was not foreseeable at the time of the prior action that the issue would arise in subsequent litigation; and the precluded party did not have an adequate opportunity to obtain a full and fair adjudication in the prior action.
[Ibid. (quoting Olivieri, 186 N.J. at 523).]
Also weighing against preclusion is "a concern that 'treating the issue as
conclusively determined may complicate determination of issues in the
subsequent action' . . . .'" Ibid. (quoting Restatement (Second) of Judgments §
29 (Am. Law Inst. 1982)). Indeed, collateral estoppel will not be applied
"where, after the rendition of the judgment, events or conditions arise which
create a new legal situation or alter the rights of the parties." Kozlowski v.
Smith, 193 N.J. Super. 672, 675 (App. Div. 1984) (quoting Wash. Twp. v.
Gould, 39 N.J. 527, 533 (1963)). Another example is when "new evidence has
A-0324-16T3 13 become available that could likely lead to a different result." Barker v. Brinegar,
346 N.J. Super. 558, 567 (App. Div. 2002).
Thus, "[t]he relevant focus 'must center on whether the conditions
precedent to the application of the collateral estoppel doctrine have been
satisfied and, if so, whether the application of the doctrine is equitable under the
circumstances.'" L.T. v. F.M., 438 N.J. Super. 76, 86 (App. Div. 2014) (quoting
R.D., 207 N.J. at 116).
Under the first prong, the prior action must have involved substantially
similar or identical issues. Ibid. (quoting Olivieri, 186 N.J. at 521). Some courts
have required the issues to be "precisely the same . . . ." In re Liquidation, 214
N.J. at 68 (quoting In re McWhorter, 887 F.2d 1564, 1567 (11th Cir. 1989). This
prong therefore requires consideration of
whether there is substantial overlap of evidence or argument in the second proceeding; whether the evidence involves application of the same rule of law; whether discovery in the first proceeding could have encompassed discovery in the second; and whether the claims asserted in the two actions are closely related.
[First Union Nat'l Bank v. Penn Salem Marina, Inc., 190 N.J. 342, 353 (2007).]
Under the second Dawson prong, an "issue is actually litigated" if the
issue "'is properly raised, by the pleadings or otherwise, and is submitted for
A-0324-16T3 14 determination, and is determined . . . .'" Allesandra v. Gross, 187 N.J. Super.
96, 105-06 (App. Div. 1982) (quoting Restatement (Second) of Judgments § 27,
cmt. d (Am. Law Inst. 1982)). By contrast, an issue is not "actually litigated"
when, although it is raised, "no decision with respect thereto was ever rendered"
by the prior tribunal. Id. at 106-07.
With these guiding principles in mind, we turn to our review of the orders
denying Todaro's Rule 4:50-3 motion and dismissing his complaint under Rule
4:6-2(e). We review a court's determination of a Rule 4:50 motion under an
abuse of discretion standard. DEG, LLC v. Twp. of Fairfield, 198 N.J. 242, 261
(2009). We will find "an abuse of discretion when a decision is made 'without
a rational explanation, inexplicably departed from established policies, or rested
on an impermissible basis.'" US Bank Nat'l Ass'n v. Guillaume, 209 N.J. 449,
467 (2012) (quoting Iliadis v. Wal-Mart Stores, Inc., 191 N.J. 88, 123 (2007)).
We "review a grant of a motion to dismiss a complaint for failure to state
a cause of action de novo, applying the same standard under Rule 4:6-2(e) that
governed the motion court." Wreden v. Twp. of Lafayette, 436 N.J. Super. 117,
124 (App. Div. 2014). As such, we are required to limit our inquiry "to
examining the legal sufficiency of facts alleged on the face of the complaint."
Green v. Morgan Props., 215 N.J. 431, 451 (2013) (quoting Printing Mart-
A-0324-16T3 15 Morristown v. Sharp Elecs. Corp., 116 N.J. 739, 746 (1989)). Legal sufficiency
"requires allegation of all the facts that the cause of action requires." Cornett v.
Johnson & Johnson, 414 N.J. Super. 365, 385 (App. Div. 2010). The test is
whether a cause of action is "suggested" by the facts. Printing Mart, 116 N.J. at
746 (quoting Velantzas v. Colgate-Palmolive Co., 109 N.J. 189, 192) (1988)).
We "search[] the complaint in depth and with liberality to ascertain whether the
fundament of a cause of action may be gleaned even from an obscure statement
of claim, opportunity being given to amend if necessary[,]" ibid. (quoting Di
Cristofaro v. Laurel Grove Memorial Park, 43 N.J. Super. 244, 252 (App. Div.
1957)), unless an "opportunity to amend would not be fruitful." Johnson v.
Glassman, 401 N.J. Super. 222, 247 (App. Div. 2008). See also Hoffman v.
Hampshire Labs, Inc., 405 N.J. Super. 105, 116 (App. Div. 2009).
Applying both standards, we conclude from our review that Judge Ciccone
neither abused her discretion in denying Todaro's motion to vacate nor erred in
granting Manzo's Rule 4:6-2(e) motion as to all defendants. In each instance,
we agree with the judge's determination that Todaro's claims of perjury were
litigated through the trial and in our consideration of Todaro's earlier appeals.
Even if collateral estoppel did not apply, we conclude that Todaro's claims
were not supported by any "clear, convincing and satisfactory evidence" of
A-0324-16T3 16 perjury that was not available to him during the trial and that established the
alleged "[p]erjured testimony . . . warrant[ed] disturbance of [the] final
judgment . . . [because it was] willfully and purposely falsely given, and . . .
[was] material to the issue tried and not merely cumulative but probably to have
controlled the result." Shammas v. Shammas, 9 N.J. 321, 330 (1952). Similarly,
Todaro's post-judgment submissions in support of his claim that a fraud upon
the court was committed by Giordano or Manzo failed to "'demonstrate[], clearly
and convincingly, that a party ha[d] sentiently set in motion some
unconscionable scheme calculated to interfere with the judicial system's ability
[to] impartially . . . adjudicate a matter by improperly influencing the trier or
unfairly hampering the presentation of the opposing party's claim or defense.'"
Triffin v. Automatic Data Processing, Inc., 411 N.J. Super. 292, 298 (App. Div.
2010) (quoting Triffin v. Automatic Data Processing, Inc., 394 N.J. Super. 237,
251 (App. Div. 2007)). While as Todaro argues a fraud on the court may occur
where a party commits perjury, whether through oral or written testimony, see
Von Pein v. Von Pein, 268 N.J. Super. 7, 15-16 (App. Div. 1993), perjured
testimony alone is generally not sufficient to set aside a judgment . Shammas, 9
N.J. at 329-30. In any event, here, the trial judge was fully aware of Giordano's
inconsistent letters, emails, and testimony, including the March 28, 2008 emails,
A-0324-16T3 17 when he decided the case and gave it the weight he deemed appropriate. There
has been no new evidence presented that warrants any further consideration.
We have also considered Todaro's remaining arguments and conclude that
they are without sufficient merit to warrant discussion in a written opinion. R.
2:11-3(e)(1)(E).
Affirmed.
A-0324-16T3 18