CARL LEE v. JOSEPH CARABETTA

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2412-12T2

CARL LEE,

Plaintiff-Appellant,

v.

JOSEPH CARABETTA, INTEGRATED

CONSTRUCTION CO., HENRY V.

VACCARO, and ESTATE OF SAM

ADDEO,

Defendants-Respondents.

_________________________________

August 21, 2014

 

Argued November 18, 2013 Decided

 

Before Judges Harris, Kennedy and Guadagno.

 

On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-2511-06.

 

Kenneth S. Thyne argued the cause for appellant (Roper & Twardowsky, LLC, attorneys; Erica A. Barker and Mr. Thyne, on the brief).

 

Dominic J. Aprile argued the cause for respondents Joseph Carabetta and Integrated Construction Services, Inc. (Bathgate, Wegener & Wolf, attorneys; Mr. Aprile, on the brief).

 

Shebell & Shebell, attorneys for respondent Estate of Sam Addeo (Danielle S. Chandonnet, on the brief).

 

PER CURIAM

Plaintiff appeals from the Law Division's October 15, 2012 grant of summary judgment dismissing his complaint and argues that there exist contested issues of material fact which should have warranted the denial of defendants' motions. We disagree and affirm.

I.

In his first amended complaint,1 filed on July 15, 2008, plaintiff asserted that on November 11, 2000, he "invested" $500,000 in a real estate project in Asbury Park and that defendants represented to him that his money would be secured by a mortgage on the property to be developed. He also asserted defendant Carabetta "communicated to" him in some unspecified manner that "his deposit would be refunded in the event the deal fell through." Plaintiff further averred that the property was not developed and that "defendants have not repaid" his $500,000. Plaintiff asserted claims of breach of contract, fraud, unjust enrichment and "racketeering" against each of the defendants.

Our review of a motion court order granting or denying summary judgment is de novo, and we apply the same standard as the motion court in determining whether there are any genuinely disputed issues of material fact sufficient to warrant resolution of the disputed issues by the trier of fact. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). Our analysis requires that we first determine whether the moving party has demonstrated that there are no genuine disputes as to material facts, and then we decide "whether the motion judge's application of the law was correct." Atl. Mut. Ins. Co. v. Hillside Bottling Co., 387 N.J. Super. 224, 230-31 (App. Div.), certif. denied, 189 N.J. 104 (2006). In so doing, we view the evidence "in the light most favorable to the part[y] opposing summary judgment." Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 523 (1995). We accord no special deference to the motion judge's conclusions on issues of law. Zabilowicz v. Kelsey, 200 N.J. 507, 512 (2009).

Moreover, a "[p]laintiff cannot create an issue of fact simply by raising arguments contradicting his own prior statements and representations." Mosior v. Ins. Co. of N. Am., 193 N.J. Super. 190, 195 (App. Div. 1984). When an offsetting affidavit or certification is submitted in opposition to a motion for summary judgment, a trial court may reject that document "as a sham when it 'contradict[s] patently and sharply' earlier deposition testimony, there is no reasonable explanation offered for the contradiction, and at the time the deposition testimony was elicited, there was no confusion or lack of clarity evident from the record." Hinton v. Meyers, 416 N.J. Super. 141, 150 (App. Div. 2010) (quoting Shelcusky v. Garjulio, 172 N.J. 185, 201-02 (2002)).

Finally, "[a]lthough we are mindful that, when reviewing summary judgment motions, we must view the 'evidential materials . . . in the light most favorable to the non-moving party,' conclusory and self-serving assertions by one of the parties are insufficient to overcome the motion[.]" Puder v. Buechel, 183 N.J. 428, 440-41 (2005) (citations omitted). A party's "[b]are conclusory assertions, without factual support in the record, will not defeat a meritorious application for summary judgment." Horizon Blue Cross Blue Shield of N.J. v. State, 425 N.J. Super. 1, 32 (App. Div.) (citing Brae Asset Fund, L.P. v. Newman, 327 N.J. Super. 129, 134 (App. Div. 1999)), certif. denied, 211 N.J. 608 (2012).

Guided by these principles, we set forth the salient facts developed through discovery. In 2000, Ocean Mile Development Group (OMDG) a New Jersey limited partnership, was the designated redeveloper of the ocean front redevelopment area in Asbury Park. Carabetta Enterprises, Inc., a New Jersey corporation, was the managing general partner for OMDG.

AJJA Development Associates, Inc. (AJJA), a New Jersey corporation whose principals included defendant Samuel Addeo2 (Addeo) and Jose Jiminez, had been in negotiations with OMDG for some time in 2000 seeking to acquire OMDG's development rights and real estate in Asbury Park.

Addeo and Jiminez both knew that OMDG required a non-refundable $500,000 cash deposit as a part of any contract to procure its development rights and real estate. AJJA, however, did not have the financial resources available to make a $500,000 non-refundable cash deposit, and consequently began looking for an investor who had cash available.

At some point, the principals of AJJA began discussions with Sourcing Specialist (SS), an entity composed of Derval Brown and plaintiff's brother, Herman Jones, about securing funding for the project. Jones, in turn, called plaintiff to inquire about his interest in investing in the proposed Asbury Park development project. Plaintiff at this time knew that his brother was a "partner" in SS and, sometime thereafter, expressed interest in the project. His brother then introduced him to defendants Addeo and Joseph Carabetta (Carabetta), the principal in Carabetta Enterprises, Inc., OMDG's managing general partner.

Plaintiff stated at his deposition that he did not believe he spoke with Carabetta before deciding to wire money for the project and that he had "very little dealings" with Addeo. Plaintiff explained that "most of [his] dealings were with Herman Jones and Derval Brown."

Nonetheless, in a certification plaintiff provided in opposition to summary judgment, he stated that both Carabetta and Addeo represented to him that if he provided a $500,000 deposit, the money would be held "in escrow" and "be secured by a deed that was to be held in trust."

On or about October 30, 2000, SS and AJJA executed a "memorandum of agreement" for the purpose of acquiring the OMDG real estate and development rights. The agreement, which "supercede[d] any and all prior agreements[,]" provided that AJJA and SS would "become Playa Asbury Park, Inc." (Playa) upon execution of the agreement and SS would "make available" the sum of $2.5 million, of which $2.0 million would be applied to pay down certain municipal tax liens on the OMDG property and $500,000 would be used to pay the "non-refundable deposit" to OMDG. Both SS and AJJA would be equal "50% equity" partners in the project.

On November 7, 2000, OMDG and AJJA executed a contract whereby AJJA, through Playa, would acquire OMDG's development rights and real estate for $21,100,000, subject to certain terms and conditions. The contract expressly provided on the first page that $500,000 must be paid as an "initial non-refundable cash deposit within three business days[.]" The detailed contract also set forth that the document contained the "entire agreement" of the parties and no representations were made except those within the written document.

Although in a later certification plaintiff attempted to claim that he was not a principal of SS, at his deposition plaintiff admitted to being a principal in SS with his brother and Derval Brown. Plaintiff further admitted that he participated in the project as a partner in SS and as a party to the SS and AJJA "consortium."

In November 2000, plaintiff received instructions from his brother to remit the $500,000 deposit required by the contract to Carabetta and defendant Integrated Construction Co. Plaintiff wired the funds on or about November 22 and 29, 2000.

Rather quickly, it became apparent that AJJA was unable to secure the necessary additional third-party funding it had anticipated to meet its obligations under the contract with OMDG and a series of amendments to the contract were executed in 2001 in an effort to preserve its rights to develop the property. On September 14, 2001, plaintiff wrote to Carabetta demanding the return of his "initial escrow" of $500,000. The money was never repaid and neither AJJA nor Playa fulfilled the terms of the contract. Plaintiff then commenced this litigation almost five years later, as we noted above.

II.

A.

Turning first to plaintiff's claims of breach of contract, it is clear that plaintiff tendered his $500,000 deposit pursuant to instructions he received from his own brother, and, in any event, in accordance with the "memorandum of agreement" between SS and AJJA, and the contract between OMDG and AJJA. Both refer to the $500,000 deposit as being "non-refundable." Plaintiff concedes he saw contract documents prior to wiring the money commencing on November 22, 2000, although he could not identify the precise instrument he examined. The record contains no contracts or drafts of contracts other than the memorandum and contract we have noted above, prior to the date of the wire transfer.

The interpretation of a contract is ordinarily a legal question for the trial court to decide and is subject to de novo review. Kieffer v. Best Buy, 205 N.J. 213, 222 (2011). While contract interpretation is a question of law, de novo review of a contract is predicated on the absence of a factual dispute at issue. Id. at 223 n.5 (citing Jennings v. Pinto, 5 N.J. 562, 569-70 (1950)). Here, we perceive no factual dispute at all. The contract and memorandum of agreement both provided that the $500,000 deposit tendered by plaintiff was non-refundable. The purchaser failed to perform and the deposit was forfeited. This is precisely the scenario provided for under the contract.

Brown and Jones each signed the Memorandum Agreement with AJJA as "General Partners" of SS, requiring the partnership to pay the "$500,000 non-refundable deposit." Furthermore, the Addendum to the OMDG Contract with AJJA, signed and dated November 9, 2000 by Carabetta as managing general partner for OMDG, Jimenez as managing general partner of Playa for AJJA, and Brown and Jones on behalf of SS and Playa, clearly states that "a non-refundable deposit of $500,000 is paid upon the signing of this agreement."

As a partner of SS, plaintiff is then bound by the actions and contracts of his fellow partners, Brown and Jones, carried out in the normal course of business. See N.J.S.A. 42:1A-13(a). Thus, plaintiff is bound by the terms of the agreement signed by SS, which clearly and unambiguously required a $500,000 non-refundable deposit. Ultimately, because "[e]ach partner is an agent of the partnership for the purpose of its business," N.J.S.A. 42:1A-13(a), plaintiff's deposit is an act of the partnership, "carr[ied out] in the ordinary course [of] the partnership business" and thus is subject to the partnership agreement. N.J.S.A. 42:1A-13(a).

Accordingly, the motion judge appropriately dismissed plaintiff's breach of contract claim on summary judgment because the evidence, even when construed in the most favorable light to plaintiff, clearly establishes that plaintiff, as the partner of SS who provided a $500,000 non-refundable deposit in furtherance of securing a business opportunity of the kind that SS usually engages, was bound by the November 7, 2000 contract. Moreover, plaintiff's certification, which differs from his deposition testimony, is insufficient to create genuine issues of material fact.

Plaintiff contends that the motion judge engaged in improper fact-finding and credibility determinations in her summary judgment evaluation, requiring reversal. Plaintiff, in making this argument, relies on three certifications, including his own, provided to the court after summary judgment was granted. His certification not only contradicted his earlier deposition testimony, but also attempted to bring additional facts before the court. The motion judge properly exercised her discretion in rejecting plaintiff's certification under the sham affidavit doctrine and in refusing to consider the certifications of Jimenez and Thomas Daniel McCloskey (McCloskey).

As we noted earlier, a "[p]laintiff cannot create an issue of fact simply by raising arguments contradicting his own prior statements and representations." Mosior, supra, 193 N.J. Super. at 195. When an offsetting affidavit or certification is submitted in opposition to a motion for summary judgment, a trial court may reject that document "as a sham when it 'contradict[s] patently and sharply' earlier deposition testimony, there is no reasonable explanation offered for the contradiction, and at the time the deposition testimony was elicited, there was no confusion or lack of clarity evident from the record." Hinton, supra, 416 N.J. Super. at 150.

In his certification, plaintiff avers he tendered the $500,000 deposit to "invest in property" and that he did so "in return for a mortgage on said property." At his deposition, however, plaintiff testified to the following:

Q. Did [Carabetta] say Ocean Mile Development Group was going to provide you with a mortgage?

 

A. That's what he would do.

 

Q. That he would provide a mortgage?

 

A. That he would protect the money. Yes.

 

Q. Well, you keep saying he would protect the money. Did he say he would provide a mortgage on any property?

 

A. I don't remember that.

 

Q. So the only thing you remember is he said he would protect the money?

 

A. I don't remember. I don't remember all of that.

 

Further,

Q. In any conversations that you had with Mr. Carabetta, if you can remember anything specifically that he said, I want to know what you remember specifically he said.

 

A. That we, at the worst case scenario we would get C-8,[3] we would have an opportunity to have C-8. That would be the way to protect our money.

 

Q. So there would be an opportunity for you have C-8. Now, was that you individually or you meaning you and your brother and his partner as Sourcing Specialist?

 

A. It was obviously, it was the whole entire group. It wasn't me individually.

 

Q. So when you say the whole entire group, you mean Sourcing Specialist including you, or do you mean Sourcing Specialist including you and Playa or [AJJA], whatever that other entity was that was doing this transaction?

 

Ms. Roper: Objection to form.

 

A. . . . .

 

Understanding that my conversation with Carabetta were about the whole project and we were going on with the project and the people involved, I was obviously involved with those people. So when he was saying that, I never took that, Oh, it's just me or just the Consortium. It was about I mean, we entered into the contract as a group and he was speaking to me as a group.

 

Additionally, plaintiff claimed that he "was not a partner in a company called [SS]." Plaintiff's deposition testimony, however, contradicts that assertion:

Q. Putting aside the family relationship, what did you understand the business relationship to be?

 

A. That we were all, we were business partners. We were all in this somewhat together.

 

Q. Was there any agreement between you and Mr. Jones and Mr. Brown?

 

A. Yes. Part of part of me putting up the money was going to obviously make me part of Souring Specialist. I wanted the control or the involvement. I wasn't just going to put it out there.

 

Q. And is there a document that was executed by you and Mr. Jones and Mr. Brown whereby you became a party or a principal in Sourcing Specialist?

 

A. I believe so.

 

. . . .

 

Q. Is there a reason you didn't sue your brother?

 

A. I was partners with my brother.

 

Q. Is there a reason you haven't sued him?

 

A. It would be like suing myself, I would think.

 

Q. Is there a reason you haven't sued Mr. Brown?

 

A. He was in Sourcing Specialist as well.

 

. . . .

 

Q. Was it your understanding that you were a principal of Sourcing Specialist prior to your wiring your deposit?

 

A. That was part of the deal in wiring the money was that I wanted to be a principal in the company. I didn't want to just send my money and, you know, and that would be it. I wanted I kind of wanted an opportunity to talk to some of the people, some of the people involved.

 

Q. So when did you understand you actually became a principal, if at any time, in Sourcing Specialist?

 

. . . .

 

A. Not long after, no long after the plan to send the money, we start talking about what types of returns and that type of thing, that I would be in, that type of thing. So specific timeline on when that was, I can't give you the specific.

 

Q. . . . So when you sent the wire transfer, when you authorized your bank to make the wire transfer that comprises the $500,000 deposit that's the subject matter of this litigation, at that point when that money was being wired, did you understand that you were a principal along with your brother and Mr. Brown in Sourcing Specialist?

 

. . . .

 

A. Yes . . . .

 

Moreover, plaintiff in his certification stated that he was not aware of "any agreements or contracts entered into containing terms contrary to what [Carabetta] represented." Yet, in his deposition, plaintiff once again testified to the contrary.

Q. Now, my question was prior to you receiving wiring instructions that you mentioned a moment ago, had you been provided with any contract reflecting the need for a $500,000 deposit?

 

A. Yes

 

Even viewed liberally, plaintiff's efforts to contradict his prior deposition testimony were properly rejected by the motion judge. Plaintiff made no attempt to explain or qualify the discrepancies, nor did he provide any particularized facts that corroborates and or supplements the documents in the record. Consequently, plaintiff's conclusory and self-serving statements were appropriately disregarded by the motion judge as insufficient and contradictory.

Plaintiff also cites, as evidence of disputed facts, statements made by Jimenez and McCloskey in their certifications. These certifications, however, were provided to the judge on November 19, 2012, in support of plaintiff's motion for reconsideration. The motion judge correctly highlighted that plaintiff "failed to show that the additional certifications submitted in support of [his] motion for reconsideration could not have been obtained and submitted with the opposition to the motion for summary judgment, and the court will thus not consider the documents [ ] as part of the motion for reconsideration."

Jimenez and McCloskey, as well as the substance of their statements, were known and available to plaintiff before the court decided the summary judgment motions on October 15, 2012. The assertions in both Jimenez and McCloskey's certifications constituted facts known to plaintiff prior to the entry of the court's summary judgment order and thus were not an appropriate basis for reconsideration. See Hinton, supra, 416 N.J. Super. at 149. Accordingly, the motion judge correctly denied plaintiff's motion for reconsideration.

Further, plaintiff's efforts to revise the terms of the contract of sale through purported oral representation of the individual defendants are barred by the New Jersey Statute of Frauds, N.J.S.A. 25:1-13, which provides that an agreement to transfer an interest in real estate or to hold an interest in real estate for the benefit of another shall not be enforceable unless:

(a) a description of the real estate sufficient to identify it, the nature of the interest to be transferred, the existence of the agreement, and the identity of the transferor and transferee are established in a writing signed by or on behalf of the party against whom enforcement is sought; or

 

(b) a description of the real estate sufficient to identify it, the nature of the interest to be transferred, the existence of the agreement and the identity of the transferor and the transferee are proved by clear and convincing evidence.

 

[Ibid.]

 

The concern the statute guards against is "not that agreements within its scope are suspect, but that such agreements are of the type that are susceptible to fraudulent and unreliable methods of proof, thus the necessity for a writing that is signed by the party to be charged." Lahue v. Pio Costa, 263 N.J. Super. 575, 599 (App. Div. 1993).

The contract here was patently a sufficient writing under N.J.S.A. 25:1-13, as it memorialized the critical terms of the real estate transaction at issue notably, the transfer of title of the realty and associated redevelopment rights and was signed by the parties to be bound: Playa (comprised of AJJA and SS) and OMDG. Furthermore, the writing clearly and unambiguously stated AJJA was required to deliver a "$500,000 non-refundable deposit" and referenced the earlier memorandum between AJJA and SS, whereby SS agreed to make the payment. The fact that plaintiff allegedly had conversations with Carabetta or Addeo regarding the deposit and the contours of an oral agreement in no way alters plaintiff's status as a partner in SS, nor effaces the obligations and liabilities of AJJA or Playa, and thus, SS, under the contract.

Plaintiff's argument that his oral discussions with anyone somehow dissolve his contractual obligations runs afoul of the Statute of Frauds and therefore is without merit.

B.

For the reasons we have affirmed the dismissal of plaintiff's breach of contract claims, we also affirm the motion judge's order dismissing plaintiff's claims for fraud and unjust enrichment. As we have stated, plaintiff received precisely what the agreements governing his funds provided for. We perceive no actionable false representations of past or present fact made by defendants upon which plaintiff relied, or was entitled to rely upon, to his detriment. See Walid v. Yolanda for Irene Couture, 425 N.J. Super. 171, 180 (App. Div. 2012). The contract and the memorandum of agreement both provided that the deposit was non-refundable. Parol evidence may not be received to vary express terms in a contract. Filmlife, Inc. v. Mal "Z" Ena, Inc., 251 N.J. Super. 570, 573-75 (App. Div. 1991).

Plaintiff further asserts a claim pursuant to the Racketeer Influenced and Corrupt Organizations (RICO) Act, N.J.S.A. 2C:41-1 through -6.2, alleging that New Jersey's discovery rule extended the accrual date for that claim under the statute of limitations. Specifically, plaintiff argues that he was unaware of an alleged $50,000 payment to Addeo from his $500,000 deposit until 2008. Plaintiff's argument, however, is without merit.

In New Jersey, a civil RICO claim is governed by a four-year statute of limitations:

Since Federal RICO is followed so closely in N.J.S.A. 2C:41-1 et. seq. and since New Jersey's Antitrust Act, N.J.S.A. 56:9-14, also has a four-year statute of limitation and is followed by the New Jersey RICO statute, this court feels compelled to follow federal law in the case at bar and apply the four year federal statute of limitations for actions brought under New Jersey civil RICO claims.

 

[Matter of Integrity Ins. Co., 245 N.J. Super. 133, 136 (Law Div. 1990).]

 

Here, plaintiff wired the $500,000 deposit in November 2000. He demanded the return of his deposit in September 2001. Nevertheless, plaintiff did not assert a RICO claim until July 14, 2008, seven years after the transaction patently failed. Moreover, the record does not support the argument that plaintiff first discovered facts to support a RICO claim in 2008 that he could not have otherwise learned through reasonable diligence within RICO's four-year statutory period.

Affirmed.

 

 

1 Plaintiff's initial complaint was filed in May 2006. That complaint did not name Samuel Addeo as a defendant and did not assert a "racketeering" claim.

2 Addeo's estate was substituted as a party following his death.

3 C-8 is the designation of a development tract owned by OMDG.