NOT FOR PUBLICATION WITHOUT THE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.
7 A-4539-15T1