GORDON CHOYCE et al. v. DONALD NEFF, et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4077-04T34077-04T3

GORDON CHOYCE and

MARGARET CHOYCE,

Plaintiffs-Appellants,

v.

DONALD NEFF and JANET NEFF,

Defendants-Respondents,

and

RAINBOW ASSOCIATES, JAMA

ENTERPRISES and DELRAN AUTO

PARTS, INC.,

Defendants.

 
_____________________________________

Argued April 25, 2006 - Decided

Before Judges Skillman and Sabatino.

On appeal from Superior Court of New Jersey, Law Division, Burlington County, Docket No. L-2132-02.

Mark J. Molz argued the cause for appellants (Law Offices of Mark J. Molz, attorney; Stephen Cristal, on the brief).

John R. Crayton argued the cause for respondents.

PER CURIAM

In 1978, plaintiff Gordon Choyce, defendant Donald Neff and Charles Estelow, Jr. formed a corporation named Chardon Enterprises, Inc. In August 1980, Choyce, Neff, Estelow and Chardon entered into an agreement with Costa's Contractors' Equipment and Supply Co. for the lease-purchase of a commercial building located on Route 130 in Delran. The agreement identified Chardon as the lessee and Chardon's principals, Donald Neff, Gordon Choyce and Charles Estelow, Jr., as the buyers.

The agreement was for a two-year term commencing on August 1, 1980 and ending on August 1, 1982. It provided for the payment of $2,600 per month in rent. The agreement further provided that the lessees could purchase the building anytime during the two-year term for a price of $320,000, against which they would receive a credit for rent paid up to the date of purchase.

Chardon sublet most of the building to Shipps Contracting, a truck repair company, for $2,000 rent per month, which was later increased to $2,200. Defendant Janet Neff, who is Donald Neff's wife, was an employee of Shipps and at some point became one of its principals.

Although no one was able to produce a document formally extending the term of the original two-year lease-purchase agreement, it is undisputed that some form of lease arrangement for the building between Chardon and Costa's continued throughout the 1980s. It is also undisputed that One-Stop Auto Parts, another corporation formed by Gordon Choyce and Donald Neff, conducted an auto repair business in the part of the building not rented to Shipps during a number of the years that the lease arrangements were in effect. However, One-Stop Auto Parts did not pay any rent to Chardon. Choyce and Neff were also partners in several other related business enterprises. Choyce and Neff continued to operate the auto parts business in the building until the early 1990s, when they parted ways. According to the Neffs, Chardon fell substantially in arrears in the payment of rent, and Costa's threatened to bring an eviction action.

In August 1990, with financial assistance from the other principal in Shipps, the Neffs acquired the building in Delran from Costa's for approximately $161,249.45. Title to the property was subsequently transferred solely into Janet Neff's name. The deed to the property was recorded on March 22, 1991.

On June 24, 2002, Gordon Choyce and his wife, Margaret Choyce, brought this action against the Neffs asserting claims for fraud, conversion, breach of contract, negligence, and breach of fiduciary duty, based on the Neffs' August 1990 acquisition of the building from Costa's. After the completion of discovery, defendant moved for summary judgment on the ground that plaintiffs' claims were barred by the applicable statutes of limitations, the longest of which was six years. Plaintiffs filed a cross-motion to amend their complaint to add a claim for defendants' alleged misappropriation of payroll taxes withheld from Gordon Choyce's wages and for partial summary judgment.

The court concluded that plaintiffs had not presented evidence that would warrant tolling of the limitations period or invocation of the discovery rule. Therefore, the court granted defendant Janet Neff summary judgment on the claims against her based on the purchase of the building and subsequently also granted Donald Neff summary judgment on those claims.

The court granted plaintiffs' motion to amend their complaint, but denied their motion for summary judgment. The additional claims asserted in plaintiffs' amended complaint were subsequently resolved and are not implicated in this appeal.

The sole issue on appeal is whether the trial court correctly concluded that plaintiffs' claims based on the Neff's August 1990 acquisition of title to the commercial building in Delran were barred by the applicable statutes of limitations. Plaintiffs rely upon the continuing wrong doctrine, the discovery rule and equitable tolling as grounds for concluding that their claims are not time-barred. Plaintiffs assert in their appellate brief that the Neffs made representations to Gordon Choyce that he was a part-owner of the building throughout the 1990s. However, we find no support in the record for this assertion. To the contrary, the record indicates that Gordon Choyce and Donald Neff ended their business relationship in the early 1990s. Moreover, there is no indication plaintiffs were in any way involved with the building after, at the latest 1994, when Gordon Choyce apparently played some role in a repair of the building.

There is no reasonable basis for Gordon Choyce's assertion that he believed during the 1990s that he was an owner of the property. His only interest in the building was as a party to the two-year lease-purchase agreement executed in 1980, which may have been informally extended until the late 1980s. Plaintiffs do not claim to have received any documentation evidencing an ownership interest in the building or to have paid any costs associated with the ownership of property, such as taxes or insurance, nor did they receive any income from the building. Thus, plaintiffs had no reason to believe that the option to purchase had been exercised or that the 1980 lease-purchase agreement remained in effect during the 1990s. Therefore, plaintiffs failed to show a reasonable justification for their twelve-year delay in filing this action after the accrual of their claims in August 1990.

Affirmed.

 

(continued)

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A-4077-04T3

May 25, 2006