PARK CREST CLEANERS, LLC v. A PLUS CLEANERS

 

(NOTE: The status of this decision is Published.)

               NOT FOR PUBLICATION WITHOUT THE
              APPROVAL OF THE APPELLATE DIVISION


                                   SUPERIOR COURT OF NEW JERSEY
                                   APPELLATE DIVISION
                                   DOCKET NO. A-1867-17T4

PARK CREST CLEANERS, LLC,
d/b/a A PLUS CLEANERS AND
ALTERATIONS, SALVATORE
                                       APPROVED FOR PUBLICATION
TAMBURO, and DANIELA
TAMBURO,                                      March 29, 2019

                                           APPELLATE DIVISION
     Plaintiffs-Respondents,

v.

A PLUS CLEANERS AND
ALTERATIONS CORPORATION,
A PLUS CLEANERS, LLC, LEE
STEPHEN CHIN, ELSA CHIN,
and SABRINA "ELSA" CHIN,

     Defendants-Appellants.
______________________________

           Submitted March 19, 2019 – Decided March 29, 2019

           Before Judges Fisher, Suter and Geiger.

           On appeal from Superior Court of New Jersey,
           Chancery Division, Camden County, Docket No. C-
           000078-14.

           Salmon, Ricchezza, Singer & Turchi LLP, attorneys for
           appellants (Ronald L. Daugherty, of counsel and on the
           briefs).
             Genova Burns LLC, attorneys for respondents (James
             Bucci and Michael C. McQueeny, of counsel and on the
             brief).

      The opinion of the court was delivered by

FISHER, P.J.A.D.

      In the unique circumstances presented, we conclude that defendants'

appeal must be dismissed. To explain, we need to delve somewhat into the case's

procedural history.

      Plaintiffs Park Crest Cleaners, LLC, Salvatore Tamburo, and Daniela

Tamburo (plaintiffs) commenced this action against defendants A Plus Cleaners

and Alterations Corp., A Plus Cleaners, LLC, Lee Stephen Chin, Elsa Chin, and

Sabrina Chin (defendants) alleging defendants' sale to them of a West Berlin dry

cleaning business was, among other things, fraudulently induced. The business

was conducted on premises leased to defendants by Cherry Plaza, LLC.

      Plaintiffs sought rescission and damages but never joined Cherry Plaza as

a party even though, to the extent plaintiffs' suit bore fruit, there would be a need

to address the parties' then and future relationship with Cherry Plaza . So, prior

to trial, defendants moved to dismiss, claiming Cherry Plaza was an

indispensable party; plaintiffs cross-moved for leave to file an amended




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complaint adding Cherry Plaza as a party. Both motions were denied, and a jury

trial thereafter commenced.

      At the trial's conclusion in early August 2015, the jury awarded plaintiffs

$682,000 in compensatory damages and $319,000 in punitive damages.

Plaintiffs then moved for the issuance of equitable relief – rescission – and

defendants moved for a judgment notwithstanding the verdict or, alternatively,

for a new trial. Defendants' multi-faceted motion was denied, and plaintiffs'

claim for equitable relief was granted. The judge determined that the contractual

documents were to be rescinded and defendants restored to ownership of the

business and its equipment. As part of their motion, plaintiffs also sought

rescission or reformation of the lease. The judge reserved on this aspect of the

motion so Cherry Plaza could be given notice. To that end, the judge entered an

order in October 2015, that required Cherry Plaza – and defendants as well – to

show cause: (a) why Cherry Plaza should not be enjoined from enforcing the

lease as to plaintiffs, (b) why the lease should not be rescinded or reformed to

render defendants the primary obligors, and (c) why plaintiffs should not be

discharged from any obligations or liabilities arising from the lease.

      In response, Cherry Plaza argued, among other things, a deprivation of

proper process because the judge bypassed the requirement that plaintiffs file a


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complaint against Cherry Plaza and instead proceeded directly to whether a final

judgment ought to be entered against Cherry Plaza. Undeterred by Cherry

Plaza's arguments, the judge entered a final judgment that, among other things,

removed plaintiffs as the lease's tenants or guarantors.        Having restored

plaintiffs and defendants to their pre-transaction status, the judge reduced the

damage award to approximately $350,000.1

      Defendants appealed the judgment, and Cherry Plaza cross-appealed parts

of the judgment. Defendants then failed to prosecute or perfect its appeal, which

we eventually dismissed, leaving for disposition only those issues raised in

Cherry Plaza's cross-appeal, to which only plaintiffs responded. We ultimately

found flawed the procedures utilized by the judge in rendering relief against

Cherry Plaza. Park Crest Cleaners, LLC v. A Plus Cleaners & Alterations Corp.,

No. A-1734-15 (App. Div. Oct. 17, 2017) (slip op. at 13) (holding that the trial

judge's summary disposition "in plaintiffs' favor denied non-party Cherry

[Plaza] a fair opportunity to be heard and defend against the relief requested").

Because no complaint was ever filed against Cherry Plaza, we concluded "there

[was] no pending matter to remand," ibid., and, so, we merely sent the case back



1
   We offer no view as to the sequence of the trial court's disposition of the
issues.
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to the trial court for amendment of the judgment, id. at 14, to relieve Cherry

Plaza of the judgment's former consequences.

        After our remand, the trial judge entered an amended judgment that

vacated the relief entered against Cherry Plaza.           This November 6, 2017

judgment also restored the full amount of compensatory damages awarded by

the jury in favor of plaintiffs and against defendants.2

        Defendants then instituted this appeal. We agree with plaintiffs that the

appeal must be dismissed because defendants should have pursued the issues it

now raises to a conclusion in the earlier appeal.

        We are mindful that after defendants filed their notice of appeal, plaintiffs

moved for dismissal and that we denied that motion, causing defendants to now

argue that the propriety of their appeal is no longer in issue. We reject that

contention.

        Our denial of the motion to dismiss the appeal was an interlocutory ruling,

subject to our reconsideration any time prior to final disposition in the interests

of justice. R. 4:42-2. In exercising our discretion, we reconsider that earlier

ruling because the propriety of defendants' appeal could not be fully appreciated

until submission of the parties' briefs on the merits. The proof is in that pudding;


2
    We are told plaintiffs and Cherry Plaza later amicably resolved their disputes.
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                                          5
the description and content of the issues presented in defendants' merits brief

leaves no doubt that they seek only our review of issues cognizable in the earlier

appeal:

            I. THE TRIAL COURT ERRED IN DENYING
            [DEFENDANTS' PRETRIAL] MOTION TO DISMISS
            WHERE AN INDISPENSABLE PARTY, THE
            LANDLORD TO BUSINESS TRANSACTION, WAS
            NOT SUED AS A PARTY.

            II. THE TRIAL COURT ERRED IN DENYING
            [DEFENDANTS'] MOTION FOR [JUDGMENT
            NOTWITHSTANDING THE VERDICT] OR NEW
            TRIAL WHERE PLAINTIFFS IMPROPERLY
            ARGUED THAT DEFENSE COUNSEL WAS
            INVOLVED IN THE FRAUDULENT ACTIONS AND
            DEFENSE COUNSEL CALLED WITNESSES TO LIE
            ON THE STAND WHICH PREJUDICED DEFEN-
            DANTS.

            III. THE TRIAL COURT ERRED IN ADMITTING
            EVIDENCE INVOLVING SETTLEMENT NEGO-
            TIATIONS WHICH PREJUDICED DEFENDANTS.

            IV. THE TRIAL COURT ERRED IN ADMITTING
            EVIDENCE OVER [DEFENDANTS'] OBJECTION
            REGARDING INFORMATION FROM A BUSINESS
            BROKER WHERE PLAINTIFFS CONTRACT-
            UALLY AGREED THEY WOULD NOT RE[]LY
            UPON SUCH INFORMATION.

            V. THE TRIAL COURT ERRED IN DENYING
            [DEFENDANTS'] MOTION . . . FOR [JUDGMENT
            NOTWITHSTANDING THE VERDICT] OR NEW
            TRIAL WHERE PLAINTIFFS FAILED TO
            ESTABLISH THE ELEMENTS OF THEIR CLAIMS.

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            VI. THE TRIAL COURT ERRED IN DENYING
            [DEFENDANTS'] MOTION . . . FOR [JUDGMENT
            NOTWITHSTANDING THE VERDICT] OR NEW
            TRIAL WHERE PLAINTIFFS WERE ALLOWED
            OVER    [DEFENDANTS']     OBJECTION   TO
            INTRODUCE    SALES    EVIDENCE     WHERE
            PLAINTIFFS FAILED TO PROVIDE SALES
            RECORDS AND INFORMATION IN RESPONSE TO
            DISCOVERY.

      As can be seen, the first point complains of the denial of the January 2015

pretrial motion that sought dismissal because of plaintiffs' failure to join Cherry

Plaza, the second, fifth, and sixth points attack the judge's October 2015 rulings

on defendants' post-trial motion, and the third and fourth quarrel with evidence

issues arising at the trial that occurred in July and August 2015. All these

arguments could have been pursued to a final appellate disposition on their

merits in the original appeal filed in December 2015 but for defendants' failure

to perfect their appeal. In previously remanding so that the judgment could be

amended to undo the provisions that impacted Cherry Plaza, we did not open the

door to a renewal of defendants' complaints about the denial of a pretrial motion,

the admission of evidence at trial, or the denial of their post-trial motion.

      Speaking for the Court in Trecartin v. Mahony-Troast Constr. Co.,  21 N.J.
 1, 6 (1956), Justice Brennan explained that our judicial system presupposes "a

single and complete trial with a single and complete review" by eliminating "an


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unseemly parade to the appellate courts." See also Grow Co. v. Chokshi,  403 N.J. Super. 443, 457 (App. Div. 2008) (recognizing the rules governing civil

procedure were "adopted in order to eliminate the unnecessary complications

and convolutions of the system it replaced" and "to promote efficiency, fairness

and the reduction of needless costs and delays"). Now that it is clear from their

merits brief that defendants do not seek review of any of the new parts of the

amended judgment,3 only those reviewable in the prior appeal, it is hard to

imagine a more egregious violation of Trecartin's philosophy.4


3
  We do not mean to suggest defendants could not have permissibly appealed
aspects of the new judgment not cognizable in the earlier appeal. But defendants
plainly do not quarrel with the new judgment, only the old.
4
  Regrettably, defendants' merits brief goes so far as to pretend there never was
an earlier appeal. Their appendix does not include a copy of our prior opinion
and their procedural history breezes right by the prior appeal as if it never
occurred:

            At the close of evidence, [defendants] moved for a
            directed verdict which was denied by the trial court. A
            jury entered a verdict on August 7, 2015. [Defendants]
            timely filed post-trial motions. The trial court denied
            [defendants'] post-trial motions.

            A final order by the trial court was entered on
            November 6, 2017. [Defendants] timely appeal the
            final order.

            [Citations to the appendix are omitted.]


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      Serial and piecemeal appeals are interdicted by the significance our

judicial system attributes to the appellate mandate. Entry of a final judgment in

a civil action provides an aggrieved party with the opportunity to seek – as of

right – this court's review of any offending portions of the judgment or prior

interlocutory orders, R. 2:2-3(a)(1), when properly identified, R. 2:5-1(e)(3)(i).

A party's failure to seek review of cognizable trial court orders or determinations

– by identifying them in the notice of appeal – is largely fatal. See 1266

Apartment Corp. v. New Horizon Deli, Inc.,  368 N.J. Super. 456, 459 (App. Div.

2004).

      Once the appellate process in a civil action reaches a final disposition, any

disputes still subject to litigation derive only from the court's mandate. An

affirmance terminates all the issues ever raised in the suit; any other disposition

leaves for the trial court only those matters fairly encompassed by the mandate,

which the parties and the trial court are "under a peremptory duty to obey . . .




Defendants didn't mention the original judgment and didn't mention the prior
appeal or its disposition. Defendants' procedural history offers no explanation
for the two years that passed between the denial of their post-trial motions and
entry of the November 6, 2017 amended judgment. Officers of the court owe us
greater candor than this. See RPC 3.3(a); cf., Sessner v. Merck Sharp & Dohme
Corp.,  435 N.J. Super. 347 (App. Div. 2014) (admonishing counsel for failing
to timely advise the court of a settlement).
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                                        9
precisely as it is written." Flanigan v. McFeely,  20 N.J. 414, 420 (1956); see

also In re Plainfield-Union Water Co.,  14 N.J. 296, 303 (1954) (directing that

"[t]he reinvestiture of jurisdiction in the inferior tribunal is in consonance with

that judgment, and qualified accordingly"); State v. Kosch,  454 N.J. Super. 440,

444 (App. Div. 2018) (finding a trial court "lacked the authority" to resentence

the defendant without first finally adjudicating remanded counts as directed by

the mandate); Tomaino v. Burman,  364 N.J. Super. 224, 233 (App. Div. 2003)

(recognizing that "the very essence of the appellate function is to direct

conforming judicial action").

      By dismissing defendants' original appeal and by issuing a mandate that

only required trial court action for the benefit of Cherry Plaza, we brought an

end to any controversy about all other prior pretrial, trial, and post-trial orders

and rulings, and barred defendants from further seeking our review of anything

but those aspects of the November 6, 2017 amended judgment that may have

aggrieved them. Because defendants' appeal does not suggest any error in the

amended judgment and seeks only review of trial court rulings cognizable in the

prior appeal and dispensed with when we dismissed that appeal, there is nothing

here for us to review.

      The appeal is dismissed with prejudice.


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