JEREMIAH B. McKENNA et al. v. ANTHONY SPALLIERO, SANDY SPALLIERO

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0741-04T20741-04T2

JEREMIAH B. McKENNA, as

Executor of the Estate of

Ruth Ricca and as Administrator

of the Estate of Silvio Ricca,

Plaintiff-Appellant,

v.

ANTHONY SPALLIERO, SANDY

SPALLIERO,

Defendants-Respondents,

and

WEINER HOMES CORP., WEINER

HOMES CORP. AT ABERDEEN, INC.,

THE STATE OF NEW JERSEY,

Defendants.

 
Argued Telephonically September 19, 2006 - Decided October 6, 2006

Before Judges Winkelstein, Fuentes and Messano.

On appeal from the Superior Court of New Jersey, Chancery Division, Monmouth County, MON-C-266-01.

Richard E. Brennan argued the cause for appellant (Drinker Biddle & Reath, attorneys; Mr. Brennan and Kevin M. Kramer, on the brief).

Marc J. Gross argued the cause for respondent (Greenbaum, Rowe, Smith & Davis, attorneys; Mark H. Sobel and Mr. Gross, of counsel; Mr. Gross, Dina M. Vanides and Jamie Yonks, on the brief).

PER CURIAM

Plaintiff Jeremiah McKenna is the executor of the estate of Ruth Ricca and the administrator of the estate of her husband, Silvio Ricca. He appeals from a September 10, 2004 order of the Chancery Division dismissing with prejudice his complaint against defendants. We affirm.

This case was previously before us on the appeal of an order dated June 17, 2000, which granted summary judgment in favor of defendants and dismissed plaintiff's complaint. McKenna v. Spalliero, No. A-6195-01 (App. Div. Jul. 10, 2003). In that decision, we set forth the facts of plaintiff's claim in substantial detail and we do not repeat those facts at this time. In essence, plaintiff claims that defendants were party to a fraud in 1980 when they acquired title to various parcels of the Riccas' real property located in Monmouth County. Plaintiff claims that the Riccas' signatures were forged on the conveyance documents and defendants Anthony Spalliero and Sandy Spalliero, the purchasers, were parties to that fraud.

In our prior opinion, we also recited the procedural history of this case, which includes a lawsuit instituted by the Spallieros against the Riccas in Superior Court in June 1982, an action commenced by Silvio Ricca in United States District Court in 1990, and the instant action, which was brought by the Riccas' fiduciaries after both Silvio Ricca and his wife had passed away. Because of the lengthy delays in instituting this action, by decision and order of June 17, 2002, the trial judge dismissed plaintiff's complaint on the grounds of laches.

On appeal, we reversed, concluding that summary judgment had been prematurely granted. It was our opinion at that time that "consideration of the equitable defense of laches at the pleading stages of the litigation and during discovery, without a hearing, was premature." We added that:

Viewing all of the bare allegations asserted by McKenna in his complaint as true, and providing all reasonable inferences therefrom in his favor, there is at least prima facie evidence that the Spallieros perpetrated a fraud upon Silvio, which is sufficient to resist a summary judgment motion based upon application of the equitable defense of laches.

[McKenna, supra, (slip. op. at 25-26).]

Nevertheless, we added that, following our remand, and after discovery had been completed, "McKenna's claims of fraud and misrepresentation may or may not be able to withstand the test of our summary judgment standard, with or without consideration of the laches issue. That issue is not, however, before us presently." Id. (slip. op at 26).

Following our remand, the parties engaged in additional discovery. In August 2004, defendants again moved for summary judgment. The motion was heard by another judge on September 10, 2004. When questioned by the court as to what additional information had been obtained during discovery, plaintiff's counsel responded:

[T]he only two things I can point to you that have occurred since the remand that are truly significant is, one, . . . there is an expert report of Dr. Crown verifying that the signatures [of Ricca] are in fact . . . false on the documents, contract of sale.

And two, we have phone books, pages from the New York phone book, Staten Island, indicating that Mr. Silvio Ricca, actually a different Silvio Ricca, was in the phone book.

When the trial judge granted summary judgment, he found, in part, as follows:

With all due respect, I have reviewed [the first trial judge's] excellent opinion and very comprehensive and well reasoned decision dated June 17, 2002. And I've reviewed the evidence that's been presented here this morning. In my view there is absolutely nothing new.

Even if I accept counsel's argument, which is well done, believe me, there is not one scintilla of evidence in this record and I would be the finder of fact, that I could even find that the Spallieros had anything to do with this matter.

And so for the reasons so well stated in the June 17, 2002 opinion of [the first trial judge], I will again grant summary judgment and I hope I'm still here when the Appellate Division sends it back for trial.

The trial judge entered an order on that date dismissing plaintiff's complaint.

In his brief on appeal, plaintiff raised the following arguments:

I. THE TRIAL COURT'S FAILURE TO FOLLOW THIS COURT'S DIRECTIVES ON REMAND MANDATES THAT THE SUMMARY JUDGMENT IN FAVOR OF DEFENDANTS BE REVERSED.

II. GENUINE ISSUES OF MATERIAL FACT EXIST THAT REQUIRE SUBMISSION TO THE TRIER OF FACT.

A. STANDARD OF REVIEW.

B. GENUINE ISSUES OF MATERIAL FACT EXIST AND REMAIN IN DISPUTE.

III. GENUINE ISSUES OF MATERIAL FACT EXIST REGARDING DEFENDANTS' FRAUD.

IV. LACHES IS NOT A BAR TO THIS ACTION.

A. DEFENDANTS' UNCLEAN HANDS BAR THEM FROM INVOKING THE LACHES DEFENSE.

B. EXCUSABLE DELAY RENDERS LACHES INAPPLICABLE.

C. IT WOULD BE INEQUITABLE NOT TO ALLOW THE PLAINTIFF TO PROCEED AND THERE IS NO UNDUE PREJUDICE TO THE RESPONDENTS.

We have carefully reviewed the record, and, in light of the applicable law, conclude that substantial credible evidence in the record supports the trial judge's decision to dismiss the complaint. Accepting as true all evidence supporting plaintiff's position and affording him all favorable inferences, reasonable minds could not differ; no genuine issue of fact exists. See Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 535-36, 540 (1995). We agree with the judge that there was "not one scintilla of evidence" in the record from which a factfinder could conclude that the Spallieros were connected to the allegations of fraud. Appellant's arguments to the contrary are without merit and do not warrant extensive discussion in a full written opinion. R. 2:11-3(e)(1)(E). We add only the following.

Following the remand, plaintiff produced the report of an expert who concluded that the Riccas' signatures on the conveyance documents were false. While that constitutes evidence of fraud, it does not implicate the Spallieros in the fraud.

Plaintiff has also produced pages from a New York telephone book, which indicate that a man named Silvio Ricca, though not the Silvio Ricca involved in this litigation, was listed in the telephone book, and could have been located by the Spallieros' counsel at the time of the Superior Court litigation in the 1980's. Because Silvio Ricca was not located at that time, the Spallieros obtained a default judgment against the Riccas. Nonetheless, the telephone book listing is similarly insufficient to connect the Spallieros to the allegations of fraud against the Riccas.

Based on the record before us, the only other discovery that was taken between the date of our remand and defendants' most recent summary judgment motion was the deposition of Anthony Spalliero, which was conducted on August 19, 2004. The transcript of that deposition was not provided in the appendix. At oral argument before this court, plaintiff's counsel, who was not counsel in the trial court, indicated that he had never received a copy of the deposition transcript. Subsequent to oral argument, defendant's attorney provided a copy of that transcript to the court and to plaintiff's counsel. Having reviewed the transcript, we conclude that it too, either on its own or in connection with the other evidence of record, is insufficient to create any link between the Spallieros and the allegations of fraud.

Indeed, at oral argument before this court, plaintiff's counsel conceded that on the present record, plaintiff would be unable to prove a cause of action against defendants. Nevertheless, plaintiff's counsel now claims that although not requested in the trial court, additional discovery should be ordered.

For two reasons, we reject counsel's claim for additional discovery. First, plaintiff failed to move for additional discovery at the time of defendant's summary judgment motion in the trial court. Although as an appellate court we may consider allegations of error not brought to the trial judge's attention, we decline to do so here as the issue of additional discovery does not go to the jurisdiction of the trial court or concern matters of substantial public interest. See Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973); Pressler, Current N.J. Court Rules, comment 2 on R. 2:6-2 (2007).

Second, we reject the request for additional discovery because plaintiff has been unable to demonstrate with any degree of particularity the likelihood that further discovery will provide a factual dispute sufficient to defeat the summary judgment motion. See Auster v. Kinoian, 153 N.J. Super. 52, 56 (App. Div. 1977) (concluding that to obtain additional discovery a plaintiff "has an obligation to demonstrate with some degree of particularity the likelihood that further discovery will supply the missing elements of the cause of action"). Plaintiff had more than a year after our remand to conduct discovery. Discovery has not provided evidence that can survive a summary judgment motion. Nor can plaintiff point to any new facts that may be obtained through discovery that would fill the holes in plaintiff's case against defendants. Hence, we decline to remand for additional discovery.

We also reject plaintiff's claim that in our prior determination we required the trial court to hold a hearing. We specifically noted that after discovery, plaintiff's claims of fraud and misrepresentation "may or may not be able to withstand the test of our summary judgment standard." Under these circumstances, where there are no proofs to link the Spallieros to the claims of fraud, a hearing would be meaningless.

Given our resolution of the issues in this case, we need not reach the question of laches or the remaining arguments posited in plaintiff's brief on appeal.

Affirmed.

 

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9

A-0741-04T2

 

October 6, 2006