DENNIS AIELLO v. ZBIGNIEW ZAWISTOWSKI

NOT FOR PUBLICATION WITHOUT THE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-1244-16T2

DENNIS AIELLO,

        Plaintiff-Appellant/
        Cross-Respondent,

v.

ZBIGNIEW ZAWISTOWSKI and
TEAM PRECISION AUTO, LLC,
d/b/a Precision Chrysler
Jeep Dodge Ram, a Limited
Liability Company,

        Defendants-Respondents/
        Cross-Appellants,
and

BRUCE WAINWRIGHT and
JUSTIN WAINWRIGHT,

     Defendants.
_______________________________

              Argued February 13, 2018 – Decided July 11, 2018

              Before Judges Fisher, Sumners and Moynihan.

              On appeal from Superior Court of New Jersey,
              Chancery Division, Morris County, Docket No.
              C-000128-15.

              Batya G. Wernick argued              the    cause    for
              appellant/cross-respondent.
           Steven C. Schechter argued the             cause    for
           respondents/cross-appellants.


PER CURIAM

      Plaintiff Dennis Aiello appeals two Chancery Division orders

granting   summary   judgment    dismissal    of    his   complaint   against

defendants, Zbigniew Zawistowski, Team Precision Auto, LLC, d/b/a

Precision Chrysler Jeep Dodge Ram, a limited liability company,

Bruce Wainwright, and Justin Wainwright, alleging entitlement to

a fifty-percent ownership interest in Precision Chrysler Jeep

Dodge Ram (the dealership).1        Because the trial court failed to

properly apply the summary judgment standard by viewing the verbal

agreement contention in the light most favorable to plaintiff, we

reverse.     In   addition,     Zawistowski   and    Team   Precision     Auto

(collectively Team Precision) cross-appeal an order denying its

motion for sanctions against plaintiff.            Given our reversal that

reinstates plaintiff's complaint, we affirm the order.

                                     I

      When reviewing an order granting summary judgment, we apply

"the same standard governing the trial court."            Oyola v. Xing Lan

Liu, 
431 N.J. Super. 493, 497 (App. Div. 2013).               A court should

only grant summary judgment when the record reveals "no genuine



1
    The Wainwrights are father and son.

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issue as to any material fact" and "the moving party is entitled

to a judgment or order as a matter of law."       R. 4:46-2(c).     Summary

judgment should be denied when determination of material disputed

facts depends primarily on credibility evaluations.          Petersen v.

Twp. of Raritan, 
418 N.J. Super. 125, 132 (App. Div. 2011).              The

facts alleged by the parties should be viewed in the light most

favorable to the opposing party.      Brill v. Guardian Life Ins. Co.

of Am., 
142 N.J. 520, 523 (1995).      We accord no deference to the

trial judge's legal conclusions.       Nicholas v. Mynster, 
213 N.J.
 463, 478 (2013) (citations omitted).

     Plaintiff's breach of contract claim sought a fifty-percent

ownership interest in Butler Chrysler Jeep Dodge, owned by the

Wainwrights, based upon an oral agreement he contended he made

with Zawistowski and Bruce Wainwright in April 2011.        Three months

later, Butler Chrysler Jeep Dodge was acquired by Team Precision

Auto, LLC, owned by Zawistowski, who renamed it Precision Chrysler

Jeep Dodge Ram – without any mention of plaintiff in the final

ownership documents.

     In   December   2012,   plaintiff    filed     for   Chapter     Seven

bankruptcy but did not indicate he had any pending interest in the

dealership or cause of actions against defendants in his filing.

However, a month later, he filed a personal property amendment to



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include   a    "breach    of   contract    suit   against   former    business

partner," for other contingent and unliquidated claims.

     In 2015, four years after the dealership was purchased,

plaintiff filed suit asserting breach of a partnership agreement

and sought: monetary damages; a declaratory judgment that he owned

fifty percent of Team Precision Auto, LLC and the dealership; and

an accounting of all of the dealership's earnings, profits and

assets.       Following   discovery,       the   court   granted   defendants'

summary judgment motions dismissing plaintiff's complaint.2

     The court dismissed plaintiff's breach of contract claim

because, in its view, there was no evidence that he had                       an

agreement to purchase an interest in the dealership.                 The court

reasoned:

                   The only . . . evidence of an agreement
              is [plaintiff] saying, oh, I had an agreement,
              that's it. There is nothing else.

                   . . . .

                   But there's . . . absolutely not a shred
              of evidence in here to support the allegations
              of [plaintiff]. There are no material facts
              in dispute. . . . [H]e doesn’t even know what
              the terms of the agreements were.       That's
              pretty clear from his own deposition.

                   So   the  matter   is  dismissed, with
              prejudice. This matter is over. There are
              no material facts in dispute.

2
  Two motions were filed; one by Team Precision, and the other by
the Wainwrights, who have not participated in this appeal.

                                       4                               A-1244-16T2
                 One doesn’t get two bites of the apple,
            in a sense.    You get [to] say something in
            discovery, but . . . if it doesn’t prove your
            cause of action, you don’t get a second chance
            to try it at trial.

                 There's not a shred of evidence here to
            support [plaintiff's] allegation.

      Because the court failed to view the evidence in the light

most favorable to plaintiff, it erred in granting summary judgment

to   defendants.       Plaintiff's         deposition    testimony     asserted

sufficient facts to defeat summary judgment.               He stated that in

2011, after Zawistowski declined his proposal to finance a used

car business, he introduced Zawistowski to the Wainwrights, who

were interested in selling Butler Chrysler Jeep Dodge.                 When the

parties met, plaintiff contended it was agreed that Zawistowski

would set up a company – eventually, Team Precision Auto, LLC –

with his money to purchase the dealership and plaintiff would

manage the company and have a fifty percent share of its proceeds

and assets.    A year later, the purchase was consummated with the

dealership taking on a name, Precision Chrysler Jeep Dodge Ram.

In   an   initial   draft   of   the   asset    sale    agreement     and     lease

assignment    agreement     prepared       by   the    Wainwrights'    counsel,

plaintiff was included as a purchaser; however, Zawistowski's

counsel advised that plaintiff's name should be deleted from the

documents.     Plaintiff's name was not on the               final ownership

                                       5                                    A-1244-16T2
documents.     Nevertheless,   plaintiff   relied   upon    emails   with

Zawistowski's counsel - not to prove the creation of a business

entity with Zawistowski, but to support his assertion that there

was an agreement, which stated he was a party to the acquisition

of the dealership.

     Apparently, the court did not believe plaintiff's deposition

testimony, which in deciding summary judgment – not sitting as a

factfinder at trial – was an inappropriate determination of his

credibility.    At trial in the Chancery Division, the court as

factfinder would be in a position to credit plaintiff's contentions

– and discredit defendants' testimony – that he had an ownership

stake in the new dealership.     Additionally, while the lack of a

written   partnership    agreement    could     plausibly     undermine

plaintiff's trial proofs, a written document is not necessary to

prove the existence of an agreement.       See Presten v. Sailer, 
225 N.J. Super. 178, 191-93 (App. Div. 1988) (recognizing that a

partnership or joint venture need not be formalized in writing,

and can be inferred from conduct).     Yet, there were some emails

memorializing plaintiff's contention that he had an interest in

the dealership.

     We find no merit to defendants' argument that plaintiff lacked

standing and should be judicially estopped from pursuing this

action due to his failure to identify this breach of contract

                                  6                              A-1244-16T2
claim when he filed for bankruptcy.              The doctrine of judicial

estoppel   is    "an   equitable     doctrine    precluding    a   party     from

asserting a position in a case that contradicts or is inconsistent

with a position previously asserted by the party in the case or a

related legal proceeding."         Newell v. Hudson, 
376 N.J. Super. 29,

38 (App. Div. 2005) (citation omitted).            First, the court did not

base its grant of summary judgment on this ground considering it

did not set forth any factual and legal findings; merely stating:

"There's the bankruptcy issue; there's the issue of judicial

estoppel."   Second, less than two months after plaintiff filed his

bankruptcy petition, and well in advance of filing this action,

he amended it to include the within claim – even though he provided

scant detail in doing so.

     We are likewise unmoved by the argument that plaintiff's

claim is lacking because he is not a licensed car dealer or

authorized      by   the   Chief   Administrator    of   the   Motor    Vehicle

Commission under 
N.J.S.A. 39:10-19 to operate a car dealership.

Nor do we find merit in the assertion that plaintiff can have no

interest in the dealership because his previous convictions of

theft,   conspiracy,       and   fraud   would   have    prevented     him   from

obtaining a license.        And, we also find no merit to the argument

that plaintiff's claim is barred under the doctrine of laches

because he waited until 2015 to file suit when he has known since

                                         7                               A-1244-16T2
2011 that defendants denied his claim that he had an interest in

the dealership.      The court addressed neither argument in granting

summary judgment; as such, we do not address them.                 Moreover, as

for laches, which "is an equitable doctrine, operating as an

affirmative   defense    that        precludes   relief    when    there    is    an

'unexplainable and inexcusable delay' in exercising a right, which

results in prejudice to another party,"            Fox v. Millman, 
210 N.J.
 401, 417-18 (2012) (quoting Cty. of Morris v. Fauver, 
153 N.J. 80,

105   (1998)),   there   is     no    evidence   that     Team    Precision      was

prejudiced by plaintiff's four-year delay in seeking judicial

relief.

                                        II

      After defendants were granted summary judgment, a different

court denied Team Precision's motion for sanctions under 
N.J.S.A.

2A:15-59.1 and Rule 1:4-8, for filing a frivolous action.                        The

court found that "[p]laintiff did demonstrate there [were] some

discussions   with    respect    to     the   alleged   agreement,     and     that

[p]laintiff was involved in the transaction in 2011.                 Therefore,

while [p]laintiff's case was weak, it does not give rise to

frivolousness."      Given our conclusion that it was error for the

first court to grant summary judgment, there is no basis to disturb

the denial of sanctions. Moreover, even if we approved the summary

judgment dismissal of plaintiff's complaint, we would have still

                                         8                                 A-1244-16T2
agreed with the denial of sanctions, as there is nothing in the

record indicating the court abused its discretion.    See McDaniel

v. Man Wai Lee, 
419 N.J. Super. 482, 498 (App. Div. 2011) (A

decision to award fees "will be reversed on appeal only if it 'was

not premised upon consideration of all relevant factors, was based

upon consideration of irrelevant or inappropriate factors, or

amounts to a clear error in judgment.'") (quoting Masone v. Levine,


382 N.J. Super. 181, 193 (App. Div. 2005)).

     Reversed in part, affirmed in part, and remanded for further

proceedings consistent with this opinion.       We do not retain

jurisdiction.




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