COAST AUTOMOTIVE GROUP, LTD., et al. v. ASPEN KNOLLS AUTOMOTIVE GROUP, LTD., et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1016-04T11016-04T1

COAST AUTOMOTIVE GROUP, LTD.,

TAMIM SHANSAB, and SHANSAB

REALTY, INC.,

Plaintiffs-Appellants,

v.

ASPEN KNOLLS AUTOMOTIVE GROUP, LTD.,

ASPEN KNOLLS CORPORATION, ROBERT

MAZZUOCCOLA, SALVATORE RUTIGLIANO and

PAUL REYNOLDS,

Defendants-Respondents.

_______________________________________

 

Argued September 21, 2005 - Decided

Before Judges Wefing, Fuentes and Graves.

On appeal from Superior Court of New

Jersey, Chancery Division, Ocean County,

No. C-171-02.

Geoffrey J. Hill argued the cause for

appellants.

George R. Hirsch argued the cause for

respondents (Bressler, Amery & Ross,

attorneys; Mr. Hirsch, on the brief).

PER CURIAM

Plaintiffs Coast Automotive Group, Ltd., Tamim Shansab and Shansab Realty, Inc. (Coast Automotive) appeal from trial court orders granting summary judgment to defendants Aspen Knolls Automotive Group, Ltd., Aspen Knolls Corporation, Robert Mazzuoccola, Salvatore Rutigliano and Paul Reynolds (Aspen Knolls). After reviewing the record in light of the contentions advanced on appeal, we affirm.

This is the fifth appeal involving these parties that has been before this court. One led to a published opinion, VW Credit, Inc. v. Coast Auto. Group, Ltd., 346 N.J. Super. 326 (App. Div.), certif. denied, 172 N.J. 178 (2002). Three others were resolved in a consolidated unpublished opinion, Coast Automotive Group, Ltd. v. Aspen Knolls Automotive Group, Ltd., Nos. A-1769-03, A-2296-03 and A-6674-03, decided July 29, 2005. Within those two opinions, we set forth a comprehensive history of the business and litigation relationship of these parties; we will not burden this opinion with a restatement of that history here but incorporate it by reference.

On October 7, 2003, the trial court entered an order which, because it dealt with the consequences of an earlier Consent Order entered in February 2000, the parties have referred to as the "Release Order." The October 7, 2003, Order contained the following provision:

2. Paragraph 6 of the Consent Order Of Settlement shall not be deemed to release the parties from claims for damages other than Delay Damages to the extent such claims are based upon post-February 9, 2000 fraudulent or commercially unconscionable practices or breach of the covenant of good faith and fair dealing based on some commercially unreasonably practice.

On April 7, 2004, plaintiffs filed an amended verified complaint purporting to seek damages in accordance with the terms of the October 7, 2003, order. In July 2004, defendants moved for summary judgment, contending that plaintiffs were unable to establish any damages attributable to "post-February 9, 2000 fraudulent or commercially unconscionable practices or breach of the covenant of good faith and fair dealing based on some commercially unreasonable practice." After argument, the trial court granted the motion. Plaintiffs have appealed.

Within their Notice of Appeal, plaintiffs stated they were appealing from the trial court's orders of September 13, 2004, and December 22, 2003. The order of September 13, 2004, granted defendants' motion for summary judgment directed to damages. Within their brief in connection with this appeal, plaintiffs have included a number of issues they raised in their earlier appeals. We have addressed those issues in our earlier, unpublished opinion, and we will not revisit them here. Specifically, we decline to consider on this appeal, plaintiffs' challenge to the order of December 22, 2003, which authorized the court-appointed attorney-in-fact to proceed to closing. That issue was resolved in defendants' favor in our July 29, 2005, opinion.

This appeal projects one narrow issue: should plaintiffs have been permitted to proceed with their claim for damages under the amended verified complaint. Having scrutinized this record and considered the assertions at argument, we are satisfied the trial court correctly concluded that they should not. Defendants' motion called for plaintiffs to make a proffer of the damages they anticipated being able to prove. We agree with the trial court, however, that the response proffered by the plaintiffs contained nothing other than speculation. At the time this motion was argued and decided, the parties had been engaged in litigation in various courts, both state and federal, for approximately six years. Plaintiffs had to know what opportunities they had lost, what benefits they had foregone, as a result of what they termed defendants' fraudulent conduct.

The trial court was intimately familiar with the parties' claims and the history of this litigation. It had presided over numerous hearings and considered the various arguments put forth by the parties. At the end of the argument on this particular motion, the trial court delivered a comprehensive oral opinion. The order of September 13, 2004, is affirmed, substantially for the reasons stated by the Hon. Marlene Lynch Ford in her oral opinion of August 20, 2004.

 
Affirmed.

(continued)

(continued)

5

A-1016-04T1

October 19, 2005