BRIDGETON COMMERCE CENTER INC. v. N.J. DEALERS AUTO MALL, 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NOT FOR PUBLICATION WITHOUT THE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-4539-15T1

BRIDGETON COMMERCE CENTER,
INC., BRIAN ALTMAN, DENNIS
ALTMAN, and ANNETTE ALTMAN,

              Plaintiffs-Appellants,

v.

N.J. DEALERS AUTO MALL, INC.,
a corporation, and LOUIS
CIVELLO, JR.,

          Defendants-Respondents.
_________________________________

              Argued October 19, 2017 – Decided November 2, 2017

              Before Judges Haas and Rothstadt.

              On appeal from Superior Court of New Jersey,
              Law Division, Monmouth County, Docket No.
              L-5292-05.

              Dennis Altman, appellant, argued the cause pro
              se (Sarah Johnson Carter, on the brief).

              Jeffrey S. Mandel          argued    the    cause    for
              respondents.

PER CURIAM
       This case returns to us after remand proceedings directed by

our previous opinion.    See Bridgeton Commerce Ctr., Inc. v. N.J.

Dealers Auto Mall, Inc., No. A-4887-13 (App. Div. Dec. 9, 2015).

Following a Lopez1 hearing, the trial judge granted defendants'

motion to dismiss count six of plaintiffs' complaint because it

was barred by the six-year statute of limitations. 
N.J.S.A. 2A:14-

1. Plaintiffs now appeal the court's May 19, 2016 dismissal order.

We affirm.

       The parties are fully familiar with the lengthy history of

this case and, therefore, we need only briefly recite the essential

background facts and procedural history as set forth in our earlier

opinion.     In a complaint filed on November 28, 2005, plaintiffs

asserted five claims against defendants in connection with various

business transactions that plaintiffs alleged occurred between the

parties.    Bridgeton Commerce Ctr., supra, (slip op. at 4-5).

       On January 31, 2007, the trial court granted plaintiffs'

motion to amend their complaint to add a sixth count.    Id. at 5.

In this count, plaintiffs argued that when defendant Louis Civello,

Jr. incorporated a company known as N.J. Dealers Auto Mall (NJDAM)

in June 1998, he breached a promise Civello's father had allegedly

made that Civello and plaintiff Dennis Altman would each own 50%



1
    Lopez v. Swyer, 
62 N.J. 267 (1973).

                                  2                         A-4539-15T1
of NJDAM.       Id. at 3-5.     Plaintiffs sought an order dissolving

NJDAM, compelling defendants to purchase Altman's alleged 50%

share of the company, and requiring them to pay plaintiffs all of

the profits that they asserted should have been paid to Altman as

a co-owner of NJDAM.       Id. at 18.

      Plaintiffs were also parties to other litigation involving

defendants.     Id. at 3-12.     After the trial court dismissed one of

these actions, it mistakenly concluded that the resolution of that

matter also required the dismissal of count six of the amended

complaint.      Id. at 17-18.        In our earlier opinion, we concluded

that count six "was a stand-alone claim" that was not dependent

on   the   issues   resolved    in    the    companion   case.        Id.     at   18.

Therefore, we remanded "plaintiffs' claims concerning count six

to the trial court for further proceedings."              Ibid.

      On remand, defendants filed a motion seeking a Lopez hearing.

They asserted that Altman knew on or before August 28, 1998 that

he was not a 50% owner of NJDAM and, therefore, the six-year

statute    of   limitations    expired      before    plaintiffs      filed     their

complaint on November 28, 2005.

      This motion was not defendants' first attempt to dismiss

count six on statute of limitations grounds.              Although defendants

did not specifically plead the statute of limitations in the

affirmative     defenses   asserted     in    their   answer     to   plaintiffs'

                                        3                                     A-4539-15T1
amended complaint, defendants did file a motion to dismiss count

six based on this defense in April 2010.                   See Notte v. Merchs.

Mut. Ins. Co., 
185 N.J. 490, 500 (2006) (noting that "the defense

that a claim is time-barred must be raised by way of an affirmative

defense, either in a pleading or by a timely motion, or it is

waived").       In an April 21, 2010 written decision and order, the

trial court denied the motion after finding there were too many

factual     disputes      that     required    the      evaluation      of    witness

credibility to permit the resolution of the matter without a

hearing or trial.

      On   remand,      however,    the   trial    judge      granted   defendants'

request for a Lopez hearing and plaintiffs raised no objection to

proceeding in this fashion.            At the hearing, the defense called

Altman     as   their    only    witness.      Altman      admitted     he    had    no

documentation supporting his claim that anyone promised to make

him a 50% owner of NJDAM.           Instead, he asserted that he believed

he was supposed to have been given a half-share in the company

based solely upon a conversation to this effect that allegedly

occurred between Civello's father and Altman's brother Steven, who

had   since     passed    away.       Altman      was   not    a   party     to   this

conversation.

      Defendants' attorney then showed Altman a series of documents

concerning the corporate ownership of NJDAM that were all executed

                                          4                                   A-4539-15T1
more than six years before plaintiffs filed their lawsuit on

November 28, 2015.          These documents included an August 27, 1998

Application for Registration with the State Division of Taxation

that Altman admitted bore his handwriting. This application stated

that Civello was the only owner of NJDAM. Altman also acknowledged

that   an    August   27,   2008   Status   Report   filed   with   the   State

Department of Labor contained his handwriting and only listed

Civello as NJDAM's owner.           In addition, Altman conceded he had

access to NJDAM's corporate tax returns more than six years before

plaintiffs filed their lawsuit.        These filings also listed Civello

as the company's sole owner.

       Plaintiffs did not provide any other testimony or documentary

evidence during the hearing, and they did not present any oral

argument in opposition to defendants' motion to dismiss.

       Based upon this uncontradicted evidence, the trial judge

rendered a thorough oral decision granting defendants' motion to

dismiss count six because plaintiffs filed their complaint more

than six years after they knew that Altman was not a 50% owner of

NJDAM.      The judge found that Altman's testimony that he believed

he owned half of the company was not credible.               Indeed, based on

the documents Altman admitted he either prepared or reviewed, the

judge found that Altman knew Civello was NJDAM's sole owner all

along.      This appeal followed.

                                       5                              A-4539-15T1
     On appeal, plaintiffs argue that the trial judge erred in

granting a Lopez hearing and dismissing count six of the complaint.

We find insufficient merit in these arguments to warrant discussion

in a written opinion.      R. 2:11-3(e)(1)(E).      We therefore affirm

the May 19, 2016 order substantially for the reasons the judge

expressed in his comprehensive oral decision accompanying the

order.   We add the following brief comments.

     We review the factual findings made by a trial judge to

determine whether they are "supported by adequate, substantial and

credible evidence."     Rova Farms Resort, Inc. v. Investors Ins. Co.

of Am., 
65 N.J. 474, 484 (1974).         Such findings made by a judge

"should not be disturbed 'unless they are so wholly insupportable

as to result in a denial of justice[.]'"         Id. at 483-84 (quoting

Greenfield v. Dusseault, 
60 N.J. Super. 436, 444 (App. Div.),

aff'd o.b., 
33 N.J. 78 (1960)).           Factual findings that "are

substantially influenced by [the judge's] opportunity to hear and

see the witnesses and to have the 'feel' of the case" enjoy

deference on appeal.     State v. Johnson, 
42 N.J. 146, 161 (1964).

     Applying these standards, we discern no basis for disturbing

the judge's well-reasoned decision.        The uncontradicted evidence

presented   at   the   Lopez   hearing   amply   supported   the   judge's

conclusion that Altman was fully aware he was not a 50% owner of

NJDAM more than six years before plaintiffs filed their complaint.

                                    6                              A-4539-15T1
Therefore, the judge correctly dismissed count six of the complaint

on statute of limitations grounds.

     Affirmed.




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