DONALD UNGER v. WESTSIDE PICTURES, INC., et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5923-03T25923-03T2

DONALD UNGER,

Plaintiff-Appellant,

v.

WESTSIDE PICTURES, INC.,

WESTSIDE FILMS, INC.,

DANNY AIELLO, III, and

CINDY LAMB-AIELLO,

Defendants-Respondents.

___________________________________________________________

 

Submitted September 20, 2005 - Decided

Before Judges Coburn, Collester and S.L. Reisner

On appeal from the Superior Court of New Jersey,

Law Division, Essex County, Docket No. L-2514-02.

Klingman Turano, attorneys for appellant

(Stephen Turano, of counsel and on the brief).

Richard A. Greifinger, attorney for respondents

(Mr. Greifinger, of counsel and on the brief).

PER CURIAM

Plaintiff, Donald Unger, sued defendants, Westside Pictures, Inc. ["Pictures"], Westside Films, Inc. ["Films"], and the principals of those corporations, defendants Danny Aiello, III, and Cindy Lamb-Aiello, for breach of contract, common law fraud, and unjust enrichment. Unger obtained defaults against the corporate defendants and tried the case against Aiello and Lamb-Aiello, who, at the conclusion of a bench trial, were granted a judgment dismissing the complaint with prejudice. Unger appeals, and we affirm.

After carefully considering the record and briefs, we are satisfied that all of Unger's arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). Nevertheless, we add the following comments.

The trial judge ruled that the only possible basis for liability as against the individual defendants was fraud. We infer from her written opinion that she reached that conclusion because the contract at issue was between Unger and Films. Unger does not argue that the judge erred in so finding, and therefore he has no basis for claiming individual liability on the contract. The unjust enrichment claim relates to the expenditure of funds by Films, whether wisely or not, on development of the proposed movie. But an unjust enrichment claim could not be maintained because Unger proved, and relied on, a written agreement. Moser v. Milner Hotels, Inc., 6 N.J. 278, 280 (1951); Shapiro v. Solomon, 42 N.J. Super. 377, 385 (App. Div. 1956) ("[W]here it appears that there is in fact a legally subsisting express contract the law will not imply an agreement concerning the same subject matter."). Thus, although the trial judge did not address the question of unjust enrichment in her opinion, we are nonetheless satisfied that the ultimate dismissal of that claim was required as a matter of law.

We will briefly describe the material facts bearing on the fraud claim. In 1999, Pictures entered into a formal written option agreement with Charles Hartman to purchase the film rights to a novel entitled Assissini, which was written by the late Thomas Gifford and owned by Hartman. Aiello and Lamb-Aiello, the principals of Pictures, were experienced members of the film production industry. On October 4, 2000, Films, in which Aiello and Lamb Aiello were also principals, entered into a written contract with Unger, which provided for his investment of $206,700 in Films for the initial development costs of Assissini as a full-length English language motion picture.

In return for his investment, Unger was to receive screen credit as "executive producer" and substantial compensation if full financing for the film could be obtained, but there was to "be no repayment of the Investment unless the film is produced

. . . ." Unger advanced Films $86,375 through November 15, 2000. Unfortunately, Hartman subsequently made demands for changes in his agreement with Pictures and then refused to proceed with the agreement. By then, Pictures had advanced substantial sums of money to Hartman, including a check for $34,500, which Hartman refused to deposit. Pictures sued Hartman for breach of contract, but dismissed the action when Unger refused to provide the funds necessary for legal fees. The Films-Unger agreement did not require that Films undertake such a law suit. On January 10, 2001, Films sent Unger a check, representing a partial return of his investment, in the amount of $30,000, which Unger appears to have cashed.

Unger argues that his fraud claim was "based on three theories." He asserts that the individual defendants

(1) "falsely represented . . . that they possessed all of the rights necessary to purchase the film option when they had not in fact secured these rights;" (2) failed to disclose to him that they were experiencing problems finalizing the option rights with Hartman; and (3) failed to provide him with "a security interest and option rights" to the novel because it was Pictures and not Films that was a party to the option agreement with Hartman.

The trial judge found that Hartman's failure to consummate the option agreement was not due to any fault on the part of the individual defendants. Since the record supports that finding, we must accept it. The trial judge also credited Lamb-Aiello's testimony that in the film industry, it is common to use "[one] corporation to acquire film rights (Pictures) . . . . and then an assignment to a single purpose corporation to make the movie (Films)." The judge also concluded that the "record clearly shows desire by the Aiellos to make this movie and to rely upon Unger as an investor to provide or facilitate the procurement of funds to make the film." And she further found that "[m]any of the documents in possession of both the Aiellos and Unger interchange the names Pictures and Films."

To prove common law fraud, plaintiff was obliged to show by clear and convincing evidence "a material representation of a presently existing or past fact, made with knowledge of its falsity and with the intention that the other party rely thereon, resulting in reliance by that party to his detriment." Jewish Center of Sussex County v. Whale, 86 N.J. 619, 624 (1981) (citations omitted). Unger failed to prove that the option agreement was not valid and enforceable and failed to prove that if it was ineffective, the individual defendants knew that. All he proved was that Hartman refused to consummate the agreement. His contention that the individual defendants failed to disclose that they were having problems finalizing the option agreement cannot stand in light of the uncontroverted testimony that the problems with Hartman did not begin to develop until weeks after Unger had entered into his written contract with Films. Indeed, Unger's own brief states the "[t]he evidence produced at trial demonstrated that by at least October 11, 2000, attorneys for the Defendants and for Hartman were expressing concerns over the completion of the Option Agreement . . . ." Finally, the trial judge concluded that the Aiellos never intended to deny Unger his investment return through the use of the two corporate entities, a finding of fact that is fully supported by the record. Therefore, there is no basis for reversing the trial judge's conclusion that Unger failed to prove fraud by clear and convincing evidence.

 
Affirmed.

(continued)

(continued)

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A-5923-03T2

October 3, 2005