BART COMMODITIES v. HUDSON COFFEE, INC.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-03156-15T4

BART COMMODITIES and GO COFFEE,

LLC,

Plaintiffs-Appellants,

v.

HUDSON COFFEE, INC., ARMENIA COFFEE

CORPORATION, REGAL TRADING, INC.,

JOSEPH APUZZO, JR., and ESTATE OF

JOSEPH APUZZO, SR.,1

Defendants-Respondents.

_________________________________

August 14, 2017

Before Judges Fuentes and Koblitz.

On appeal from Superior Court of New Jersey, Chancery Division, Hudson County, Docket No. C-000082-15.

Barry, McTiernan and Wedinger, P.C., attorneys for appellants (Laurel A. Wedinger, Richard W. Wedinger, and Kerry E. Bocchetto, on the briefs).

Gibbons, P.C., attorneys for respondents Regal Trading, Inc. and Joseph Apuzzo, Jr. (Frederick W. Alworth and Jonathan S. Liss, of counsel and on the brief).

Bendit Weinstock, P.A., attorneys for respondent Armenia Coffee Corporation (James F. Keegan and Sherri Davis Fowler, on the brief).

PER CURIAM

Plaintiffs Bart Commodities (Bart) and Go Coffee, LLC (Go Coffee) appeal from three February 19, 2016 orders denying the appointment of a receiver and other relief, dissolving all previous restraints, denying plaintiffs' motion to amend their complaint and dismissing plaintiffs' complaint with prejudice. Plaintiffs are creditors of defendant Hudson Coffee Inc. (Hudson) and filed a complaint and then sought to file an amended complaint years after the conclusion of a bankruptcy action and State court trial and settlement resolving Hudson's debts. Because the claims asserted in plaintiffs' complaint and amended complaint were time-barred, we affirm.

Plaintiffs assert that they are the holders of a loan agreement with Hudson for $50,000 required to be repaid by September 2000. They also allege Hudson owed them $17,527 from a September 7, 2002 invoice. On November 28, 2005, Hudson filed for bankruptcy and a Chapter 7 Trustee was appointed. Bart was named as a creditor. Go Coffee was not yet formed. The Trustee filed a complaint against defendants for fraudulent transfers of assets from 2000-2004, and alleged that defendants Regal and Armenia were responsible to Hudson's creditors as successors. The Trustee also alleged a breach of fiduciary duty and common law duty of loyalty. In 2006, Hudson's corporate charter was revoked. On September 17, 2008, the Bankruptcy Court approved a settlement of the Adversary Proceeding. The decision was affirmed by the District Court. The estate of Hudson was fully administered and the trustee of the estate was discharged on July 7, 2010.

3 In 2004, prior to Hudson's filing for bankruptcy, Fourteen Florence Street Corporation, Mecca & Sons Trucking Company, Inc. and Helen Mecca (Mecca Entities) filed a State Court complaint alleging fraud and fraudulent transfers. After removal to the Bankruptcy Court, the parties filed proofs of claims and Mecca Entities was permitted to intervene as co-plaintiff with the trustee. The settlement approved by the trustee provided for a remand to State Court of plaintiffs' "particularized claims." In our earlier 2013 unpublished opinion after the appeal of the trial involving most of these parties, we described in detail the litigation prior to the 2014 settlement, which occurred after our remand. Fourteen Florence St. Corp. v. Armenia Coffee Corp., Nos. A-3097-10, A-3528-10 (App. Div. July 11, 2013) (slip op. at 3-4). We need not repeat that history here. After a trial and partial remand after appeal, this action was settled on September 16, 2014, with a payment by defendants of $1,950,000. Michael Mecca and others provided defendants with a complete general release.

3 In May 2015, Go Coffee purchased a two-thirds interest in Bart's $67,527 claim against Hudson, consisting of the loan and unpaid invoice. Go Coffee also obtained an option to acquire capital stock in Hudson.

Plaintiffs filed the underlying complaint on June 8, 2015. Two months later, plaintiffs sought removal to Bankruptcy Court and the reopening of Hudson's bankruptcy proceeding. After reopening the proceeding, the Bankruptcy Court remanded the matter to the State Court, to determine whether the statute of limitations had expired. After defendants filed motions to dismiss, at the end of December 2015 or beginning of January 20162plaintiffs' filed a cross-motion to amend the complaint, after purchasing a 2008 debt of $51,348 for legal fees connected with the bankruptcy proceeding in November 2015.

We apply a plenary standard of review, accepting all facts in the amended complaint as true, to determine whether plaintiffs set forth a claim upon which relief can be granted. R.4:6-2(e); Gonzalez v. State Apportionment Comm'n, 428 N.J. Super. 333, 349 (App. Div. 2012), certif. denied, 213 N.J.45 (2013).

The complaint sought payment of a $50,000 loan due in 2000 and an invoice for $17,527 due in 2002. Go Coffee also sought in the amended complaint to collect the recently acquired judgment for attorney fees of $51,348, due in 2008. The statute of limitations for a fraudulent transfer is four years from the transfer, or one year from the discovery of the transfer. N.J.S.A.25:2-31. The statute of limitations for the loan and fees incurred is six years. N.J.S.A.2A:14-1; Pellettieri, Rabstein & Altman v. Protopapas, 383 N.J. Super. 142, 153 (App. Div. 2006). Plaintiffs acknowledge that those time periods have passed, but argue that the time limits should be tolled.

In their amended complaint, plaintiffs sought certification as a class action for all unpaid creditors of Hudson, compensatory damages, and various other relief including the appointment of a receiver and the enforcement of the attorney's fee judgment. They argue that defendants' fraudulent activities tolled the applicable statutes of limitations. They also claim that this new litigation should "relate back" to prior litigation, pursuant to Rule4:9-3, which covers "When Amendments Relate Back" to the original pleading, and does not discuss a new action relating back to a prior action between different parties.

We have long recognized "the strong interests in the finality of litigation and judicial economy." Jansson v. Fairleigh Dickinson Univ., 198 N.J. Super. 190, 193 (App. Div. 1985). Seeking a receiver does not in itself toll the statute of limitations, nor does reframing past claims under new legal theories. After a plenary review of the pleadings, viewing plaintiffs' assertions as true, we affirm the decision of the motion court substantially for the reasons expressed in its written reasons attached to the orders.

Affirmed.

1 All claims against the Estate of Joseph Apuzzo, Sr. have been dismissed by way of stipulation.

2 We did not receive a copy that had the filing date.