NOT FOR PUBLICATION WITHOUT THE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-3156-15T4
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.
_________________________________
Submitted June 21, 2017 — Decided 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.
1
All claims against the Estate of Joseph Apuzzo, Sr. have been
dismissed by way of stipulation.
(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
2 A-3156-15T4
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.
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
3 A-3156-15T4
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.
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
2016 2 plaintiffs' 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.
2
We did not receive a copy that had the filing date.
4 A-3156-15T4
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 Rule 4:9-3, which covers "When
Amendments Relate Back" to the original pleading, and does not
5 A-3156-15T4
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.
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