WILLIAM C. MARTUCCI v. JOHN F. VITALE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

WILLIAM C. MARTUCCI,

Plaintiff-Appellant,

v.

JOHN F. VITALE, JOHN R. VITALE,

CHRISTOPHER VITALE, NINA VITALE,

THE MONEY NETWORK, INC. and

TELOS PARTNERSHIPS, LLC,

Defendants-Respondents.

_______________________________________

June 18, 2014

Before Judges Yannotti and St. John.

On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. L-0126-12.

William C. Martucci, appellant pro se.

O'Halloran, & Vitale, attorneys for respondents (John F. O'Halloran, on the brief).

PER CURIAM
 

Plaintiff William Martucci appeals from an order entered by the trial court on March 22, 2013, denying his motion to reconsider an earlier order granting the motion to dismiss by defendants John Vitale, Christopher Vitale, Nina Vitale and Telos Partnership. For the reasons that follow, we affirm.

The record reveals the following facts and procedural history. Both Martucci and defendants were in the business of purchasing ATM machines and placing them in public establishments. In 2007, defendants were introduced to Martucci, who proposed combining the businesses that defendants owned into a company plaintiff was involved in. At Martucci's suggestion, defendants formed a corporation known as Money Network, Inc., into which defendants merged two of their businesses with the ultimate goal of creating a publicly-traded company. The record reveals that throughout 2007, additional corporate maneuverings occurred resulting in the issuance of shares to defendants of a company called AAMPRO, which was later found to have no assets. Meanwhile, Martucci had withdrawn considerable sums of money from Money Network's bank accounts without authorization.

In 2008, defendants filed a lawsuit against Martucci alleging he misappropriated significant sums of money from defendants' businesses. After a multi-week trial, a unanimous jury found that Martucci had misappropriated the funds, and awarded defendants $278,652.54 in compensatory damages, and $300,000 in punitive damages. The trial court entered the judgment by order dated August 24, 2010.

In December 2011, Martucci filed a complaint against defendants, which the motion judge summarized as a complaint alleging "that the defendants had failed to merge their companies into this worthless AAMPRO company making its shares worthless and [plaintiff] sued for breach of contract, breach of covenant of good faith, conversion securities fraud, and fraud." All of the allegations in Martucci's 2011 complaint arose out of his business dealings with defendants, which were the subject of the defendants' earlier successful suit against him.

Martucci filed a motion to compel discovery and defendants filed a cross-motion to dismiss the complaint on the grounds of the entire controversy doctrine and res judicata. Defendants argued that their prior lawsuit arose out of the same facts that formed the basis for Martucci's claims in the 2011 complaint. Those claims were based upon Martucci's misappropriation of funds.

On February 8, 2013, the motion judge, relying on Watkins v. Resorts Int'l Hotel & Casino, 124 N.J. 398, 412 (1991), dismissed Martucci's action with prejudice "finding that it is barred by the entire controversy doctrine Rule 4:30A and also by res judicata there having been a judgment in the prior suit involving parties that were either identical or in privity . . . that grew out of the same transaction or occurrence as the present claim."

Martucci filed a motion which he characterized as a motion for reconsideration of enforcement of litigant's rights, which was denied by the motion judge by an order dated March 22, 2013. The court determined that the "motion has been construed as a motion for reconsideration pursuant to R. 4:49-2, as to which appropriate grounds have not been set forth." Martucci appeals from the court's order of March 22, 2013, denying his motion for reconsideration.

Martucci argues that the motion judge erred in that there was no factual basis for defendants' contention that his claims were barred by the prior lawsuit.

Rule 2:5-1(f)(3)(A) states that "in civil actions the notice of appeal shall . . . designate the judgment, decision, action or rule, or part thereof appealed from[.]" Therefore, "it is only the judgments or orders or parts thereof designated in the notice of appeal which are subject to the appeal process and review." Pressler & Verniero, Current N.J. Court Rules, comment 6.1 on R. 2:5-1 (2014) (see also Sikes v. Twp. of Rockaway, 269 N.J. Super. 463, 465-66 (App. Div.) (determining that plaintiff's omission of an order in the notice of appeal precluded appellate review of that order because plaintiff's papers limited the scope of the appeal to a separate issue, plaintiff did not provide a transcript accompanying the omitted order, and thus, the appellate court had insufficient information to reach the merits), aff'd o.b. 138 N.J. 41 (1994)); 30 River Court East Urban Renewal Co. v. Capograsso, 383 N.J. Super. 470, 473-74 (App. Div. 2006)(refusing to review orders dismissing the defendant's affirmative claims because they were not included in the notice of appeal); Campagna ex rel. Greco v. American Cyanamid Co., 337 N.J. Super. 530, 550 (App. Div.)(refusing to consider an order not listed in the notice of appeal), certif. denied, 168 N.J. 294 (2001).

"Consequently, if the notice [of appeal] designates only the order entered on a motion for reconsideration, it is only that proceeding and not the order that generated the reconsideration motion that may be reviewed." Pressler & Verniero, supra, comment 6.1 on R. 2:5-1. We have so held in a number of cases. See, e.g., W.H. Industries, Inc. v. Fundicao Balancins, Ltda, 397 N.J. Super. 455, 458-59 (App. Div. 2008) (considering only the order denying reconsideration because it was the only order designated in the notice of appeal); Fusco v. Bd. of Educ. of City of Newark, 349 N.J. Super. 455, 461-62 (App. Div.) (reviewing only denial of the plaintiff's motion for reconsideration and refusing to review the original grant of summary judgment because that order was not designated in the notice of appeal), certif. denied, 174 N.J. 544 (2002).

As noted, Martucci's notice of appeal only listed the order denying reconsideration. Therefore, as to the substantive issues raised by him on appeal, we limit our review to the provisions of that order.

Martucci's appeal from the denial of his motion for reconsideration is governed by Rule4:49-2. Such a motion is addressed to the trial court's sound discretion. Capital Fin. Co. of Del. Valley, Inc. v. Asterbadi, 398 N.J. Super.299, 310 (App. Div.), certif. denied, 195 N.J.521 (2008) (citing Johnson v. Cyklop Strapping Corp., 220 N.J. Super. 250, 257 (App. Div. 1987), certif. denied, 110 N.J.196 (1988)). "'Reconsideration should be utilized only for those cases [that] fall into that narrow corridor in which either 1) the [c]ourt has expressed its decision based upon a palpably incorrect or irrational basis, or 2) it is obvious that the [c]ourt either did not consider, or failed to appreciate the significance of probative, competent evidence.'" Cummings v. Bahr, 295 N.J. Super. 374, 384 (App. Div. 1996) (quoting D'Atria v. D'Atria, 242 N.J. Super. 392, 401 (Ch. Div. 1990)); see also Fusco, supra, 349 N.J. Super.at 462. Trial courts should grant motions for reconsideration "only under very narrow circumstances." Fusco, supra, 349 N.J. Super.at 462.

Guided by these principles, we conclude that the motion judge did not abuse her discretion by denying Martucci's motion for reconsideration. The record clearly supports the finding that his arguments for reconsideration amounted to a repetition of previous arguments already considered and rejected by the judge.

Affirmed.