STATE OF NEW JERSEY VS. ERIC MENZZOPANEÂ (2014-10, MERCER COUNTY AND STATEWIDE) ( 2017 )

NOT FOR PUBLICATION WITHOUT THE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-5372-14T2
SYCAMORE ENERGY-
ROCKAWAY RETAIL,
L.L.C.,
Plaintiffs-Appellants/
Cross-Respondents,
v.
A.J.'S FUEL, INC., DENNIS
PETERSON AND ANNA BARTON,
Defendants-Respondents/
Cross-Appellants.
_______________________________________________
Argued September 20, 2016 – Decided February 22, 2017
Before Judges Messano, Espinosa and Guadagno.
On appeal from the Superior Court of New
Jersey, Chancery Division, Equity Part, Morris
County, Docket No. C-15-14.
Judith D. Cassel argued the cause for
appellants/cross-respondents (Hawke, McKeon &
Sniscak, L.L.P., attorneys; Ms. Cassel, on the
briefs).
Peter Petrou argued the cause for
respondents/cross-appellants A.J.'s Fuel,
Inc. and Dennis Peterson.
Gregg D. Trautmann argued the cause for
respondent/cross-appellant Anna Barton
(Trautmann & Associates, L.L.C., attorneys;
Mr. Trautmann, on the brief).
PER CURIAM
Plaintiff Sycamore Energy–Rockaway Retail, Inc., filed a
verified complaint against defendants A.J.'s Fuel, Inc. (A.J.'s),
Dennis Peterson, and his sister, Anna Barton. Plaintiff alleged
it purchased certain assets from Oil Guy, Inc. (Oil Guy), a heating
oil supply business, pursuant to an asset purchase agreement (the
agreement) executed by Barton, individually and as "owner" of Oil
Guy. Pursuant to the agreement, Barton warranted that no other
"individual or entity" had "rights, title or interests" in the
purchased assets. The agreement also contained non-compete and
non-disclosure provisions regarding the assets, including Oil
Guy's customer list and accounts.
The complaint further alleged that subsequent to the
purchase, Peterson claimed an ownership interest in Oil Guy and
formed a competitor corporation, A.J.'s, that was using Oil Guy's
customer list to interfere with plaintiff's business in violation
of the agreement. Plaintiff's complaint alleged defendants
breached the agreement, committed fraud and converted plaintiff's
property, and Peterson had defamed plaintiff and tortiously
interfered with its economic interests.
The judge initially entered an order to show cause with
temporary restraints, but vacated the injunctive relief shortly
2 A-5372-14T2
thereafter. On April 9, 2014, he ordered plaintiff to pay Barton
all amounts due under the agreement which had been previously
withheld (the pendente lite order). Defendants filed answers and
discovery ensued.
When Barton moved to compel plaintiff's answers to
interrogatories, plaintiff cross-moved to compel Barton, over
objection, to produce further documentary discovery, including Oil
Guy's tax returns, profit and expense statements and employee
payroll records, and to amend its complaint to add Oil Guy as a
party. Barton withdrew her discovery motion and, the judge denied
plaintiff's request.
In his written statement of reasons in support of the
September 4, 2014 order denying the amendment (the amendment
order), the judge concluded plaintiff's cross-motion was
procedurally deficient because it did not relate to the subject
of Barton's motion. See R. 1:6-3(b) ("A cross-motion may be filed
and served by the responding party . . . only if it relates to the
subject matter of the original motion . . . ."). As to the merits
of plaintiff's cross-motion, the judge concluded plaintiff
"offer[ed] no defense as to why Oil Guy . . . should be a party."
Prior to her or Peterson's deposition, Barton moved for
summary judgment. After considering oral argument, the judge
entered an order (the October 2014 order), granting Barton summary
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judgment as to the fraud and conversion counts, but denying the
motion as to plaintiff's breach of contract claim. In January
2015, the judge granted summary judgment to Peterson and A.J.'s
(the January 2015 order). In his written statement of reasons,
the judge found plaintiff failed to prove any breach of contract
because Peterson had no ownership interest in Oil Guy and was not
a party to the agreement. He also determined plaintiff lacked
sufficient evidence to withstand judgment as a matter of law on
the remaining counts.
With trial now scheduled for March 31, 2015, Barton moved to
bar plaintiff's expert from testifying, arguing his report
contained only net opinions, and she sought to strike the complaint
for alleged discovery violations. Plaintiff, meanwhile, served
subpoenas on Oil Guy and Peterson. Both moved to quash.
In a series of orders entered on March 10, 2015 (the March
2015 orders), the judge quashed the subpoena served on Oil Guy and
denied Barton's motion to "strike" the complaint. He denied
Peterson's motion to quash, but limited his testimony to "the only
remaining issue. Did . . . Barton breach her contract . . . [?]"
The judge noted on the order that his prior "decision that Peterson
is/was not an owner of Oil Guy is the law of the case." Although
he denied the motion to bar plaintiff's expert at trial, the
judge's order barred any testimony as to plaintiff's damages.
4 A-5372-14T2
In his oral opinion placed on the record after completion of
the subsequent bench trial, the judge found Barton had not breached
the agreement. He entered final judgment of no cause of action
in favor of Barton on April 13, 2015, and within days, both Barton
and Peterson moved for counsel fees and costs pursuant to Rule
1:4-8 and the frivolous litigation statute, N.J.S.A. 2A:15-
59.1(a). The judge denied Barton's request but entered an order
awarding Peterson counsel fees and costs in the amount of $13,190
(the fee order).
Before us, plaintiff contends the judge erred by: ordering
pendente lite payments to Barton; denying plaintiff's motion to
amend the complaint; granting partial summary judgment on the
fraud and conversion claims against Barton; quashing the trial
subpoena served on Oil Guy; barring its expert's testimony on
damages; barring other evidence at trial; and entering judgment
in favor of Barton. As to Peterson, plaintiff argues the judge
erred by: determining prior to the close of discovery that Peterson
was not an owner of Oil Guy and applying the "law of the case"
doctrine to that finding; granting Peterson summary judgment; and
awarding sanctions.1
1
Hereinafter, we shall refer to both Peterson and A.J.'s simply
as "Peterson."
5 A-5372-14T2
In addition to their opposition, defendants have filed cross-
appeals. Barton argues the judge should have granted her request
for fees and costs as sanctions for plaintiff's frivolous claims.
Peterson contends the award the judge made was insufficient.
We have considered these arguments in light of the record and
applicable legal standards. On plaintiff's appeal, we affirm in
part and reverse in part. We find no merit whatsoever to
defendants' cross-appeals and deny both.2
I.
A.
We first consider the issues related to Peterson. In opposing
plaintiff's order to show cause, Peterson certified that
plaintiff's corporate representative for purposes of this
litigation, Louis Aponte, was his direct supervisor when both
worked for North Jersey Oil prior to the formation of Oil Guy in
2009. Aponte was aware Peterson claimed ownership of Oil Guy.
Because of his financial circumstances at the time, Peterson needed
Barton's assistance in starting Oil Guy. Peterson claimed Oil Guy
2
Symptomatic of the litigiousness of the parties, after all briefs
were filed, plaintiff moved to strike portions of defendants'
reply briefs, contending they included further argument in
opposition to plaintiff's appeal and not in reply to plaintiff's
opposition to the cross-appeal. Barton opposed the motion, and
Peterson filed his own motion, seeking to strike portions of
plaintiff's initial and reply briefs and appendices for including
items not in the trial record. The motion panel reserved decision,
leaving disposition to us. We now deny the motions.
6 A-5372-14T2
operated out of his home and to the world "Oil Guy was Dennis
Peterson." However, Aponte knew Barton was Peterson's silent
partner in the business.
Peterson stated that when he returned home from vacation in
August 2013, he discovered Barton and Aponte had already executed
the agreement. When plaintiff sought to reclaim one of the oil
trucks at Peterson's home, he objected, requiring police to
respond. Although the truck was turned over, Peterson directed
his attorney to send a letter to Barton and Aponte claiming they
had "misappropriate[d]" his interests in Oil Guy. The letter is
part of the record. In his later-filed answer to plaintiff's
complaint, however, Peterson asserted no counterclaim against
plaintiff or cross-claim against Barton.
The balance of Peterson's certification described the
formation of A.J.'s with his wife after learning of Barton's sale
of Oil Guy's assets, and he denied accessing Oil Guy's customer
lists. Peterson claimed that he solicited customers for A.J.'s
from personal knowledge and without misrepresentation. Since he
was not party to the agreement, none of its terms applied to him.
Peterson's statement of undisputed material facts in support
of summary judgment for the first time took several steps back
from earlier statements regarding ownership of Oil Guy. It
acknowledged Barton was the sole shareholder of Oil Guy, and
7 A-5372-14T2
Peterson only received wages for his work at the company. Peterson
also relied upon portions of Aponte's deposition testimony, in
which Aponte admitted Peterson had no knowledge of the impending
sale, was not involved in the negotiations and Aponte's dealings
were solely with Barton. Additionally, Aponte stated he had no
facts to support plaintiff's claim that Peterson accessed customer
information after the sale of Oil Guy, or even had a copy of the
customer list. Barton's deposition, filed in support of
plaintiff's opposition to Peterson's summary judgment motion, made
it quite clear that she alone owned Oil Guy and Peterson was only
"a driver."
We have not been provided with a transcript of oral argument
held on Peterson's summary judgment motion. However, the judge
provided a written statement of reasons supporting the January
2015 order. As to plaintiff's breach of contract claim, the judge
reasoned the undisputed material facts demonstrated Peterson was
neither a party to the agreement nor aware of its existence prior
to its execution. The judge dismissed the fraud count, concluding
plaintiff's only allegation was that Barton misrepresented
Peterson's claim of ownership, but plaintiff made no specific
claim that Peterson made any material misrepresentations.
In dismissing the conversion claim against Peterson, the
judge found plaintiff's sole evidence was Peterson's access to
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customer lists and information before the agreement was
consummated. The judge noted plaintiff was well aware of
Peterson's involvement in the pre-sale activities of Oil Guy when
it entered into the agreement with Barton.
The judge observed that plaintiff's defamation claim rested
on a flyer Peterson circulated after forming A.J.'s, in which he
told prospective customers that A.J.'s would provide "the same
great prices and service as . . . when [Peterson] operated and ran
Oil Guy . . . ." The judge reasoned there was nothing false about
Peterson's statement, and therefore plaintiff's defamation claim
must fail. Lastly, the judge reviewed Peterson's statements
regarding soliciting business for A.J.'s, and reasoned, since
Peterson was not a signatory to the agreement, he was not bound
by its restrictive covenant. He granted summary judgment on the
tortious interference claim.
Plaintiff contends the judge erred in granting Peterson
summary judgment because discovery was not complete and material
facts remained in dispute. Plaintiff also argues the judge
erroneously concluded Peterson was not an owner of Oil Guy, despite
the presence of material disputed facts, and then applied the "law
of the case" doctrine to this finding. Both arguments are
unavailing.
9 A-5372-14T2
When reviewing the grant of summary judgment, we apply the
"same standard as the motion judge." Globe Motor Co. v. Igdalev,
225 N.J. 469, 479 (2016) (quoting Bhagat v. Bhagat, 217 N.J. 22,
38 (2014)).
That standard mandates that summary judgment
be granted "if the pleadings, depositions,
answers to interrogatories and admissions on
file, together with the affidavits, if any,
show that there is no genuine issue as to any
material fact challenged and that the moving
party is entitled to a judgment or order as a
matter of law."
[Templo Fuente De Vida Corp. v. Nat'l Union
Fire Ins. Co., 224 N.J. 189, 199 (2016)
(quoting R. 4:46-2(c)).]
"When no issue of fact exists, and only a question of law remains,
[we] afford[] no special deference to the legal determinations of
the trial court." Ibid. (citing Manalapan Realty, L.P. v. Twp.
Comm. of Manalapan, 140 N.J. 366, 378 (1995)). "[A] respondent
to a summary judgment motion, who resists the motion on the grounds
of incomplete discovery is obliged to specify the discovery that
is still required." Alpert, Goldberg, Butler, Norton & Weiss,
P.C. v. Quinn, 410 N.J. Super. 510, 538 (App. Div. 2009) (citing
Trinity Church v. Lawson-Bell, 394 N.J. Super. 159, 166 (App. Div.
2007), certif. denied, 203 N.J. 93 (2010).
Plaintiff never deposed Peterson, despite repeated attempts
and cancellations resulting from the inability of all counsel to
clear schedules. Except for Peterson's own claims of ownership
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interest, from which he later retreated, and Aponte's knowledge
of Peterson's role in Oil Guy's daily operations, plaintiff
presented no evidence that Peterson actually possessed an
ownership interest in the company. There was no evidence to
dispute Barton's claims of sole ownership, and, implicitly, Aponte
believed her execution of the agreement alone sealed the deal.
Based on the summary judgment record presented to the judge, see
Ji v. Palmer, 333 N.J. Super. 451, 463-64 (App. Div. 2000) (our
review is limited to the motion record before the judge), there
were no disputed facts.
The judge first expressed his opinion on the subject of
Peterson's ownership interests in Oil Guy during oral arguments
on Barton's summary judgment motion. Barton had supplied the
corporate documents for Oil Guy that clearly demonstrated Peterson
had no ownership interest. We do not, however, review oral
decisions but only orders entered by the court. See, e.g., Do-
Wop Corp. v. City of Rahway, 168 N.J. 191, 199 (2001) ("[I]t is
well-settled that appeals are taken from orders and judgments and
not from opinions, oral decisions, informal written decisions, or
reasons given for the ultimate conclusion."). Therefore,
plaintiff's citation to the judge's musings during oral argument
on Barton's motion, when Peterson's attorney was not even present,
are irrelevant.
11 A-5372-14T2
When the judge entered the March 2015 order limiting
Peterson's trial testimony to the contract claim, his rationale
was that the issue of Peterson's ownership of Oil Guy was already
decided and the law of the case doctrine applied. We agree with
plaintiff that the judge's citation to the doctrine was inapposite.
See Lombardi v. Masso, 207 N.J. 517, 539 (2011) (holding the
doctrine does not apply "where, . . . in trial court proceedings,
the same judge is reconsidering his own interlocutory ruling").
However, plaintiff points to no facts that resurrect a material
dispute on the issue of Peterson's ownership of Oil Guy.
We also reject plaintiff's argument that the judge
erroneously granted summary judgment on its claims for fraud,
conversion, defamation and tortious interference. Simply put,
plaintiff's opposition to the motion lacked any competent evidence
that raised material factual disputes. See R. 4:46-5(a) ("When a
motion for summary judgment is made . . . , an adverse party may
not rest upon the mere allegations or denials of the pleading, but
must respond by affidavits meeting the requirements of R. 1:6-6
. . . , setting forth specific facts showing that there is a
genuine issue for trial.") Plaintiff's response to Peterson's
statement of undisputed material facts was deficient, see Rule
4:46-2(b), and broadly asserted discovery was incomplete.
12 A-5372-14T2
We affirm the October 2014 order granting summary judgment
to Peterson largely for the reasons expressed by the judge.
B.
After Barton's trial, Peterson moved for an award of $39,390
in counsel fees and costs. The motion record reveals that
Peterson's attorney served a Rule 1:4-8 (the Rule) letter on
plaintiff's counsel shortly after the judge entered the pendente
lite order and denied plaintiff's request for injunctive relief.
Plaintiff's counsel immediately responded, claiming the letter
failed to comply with the Rule because it lacked specificity and
provided "no basis" for the request to withdraw the complaint.
Plaintiff's counsel also stated: "Your own client claims ownership
rights [in Oil Guy] and provided certifications demonstrating that
he is a de facto principal, owner, officer, and/or director, which
will bind him to the terms of the [agreement]." Defense counsel
answered by serving a copy of Peterson's brief in support of his
pre-pleading motion to dismiss, which the judge had denied.
In his written statement of reasons supporting the fee order,
without addressing whether Peterson complied with the Rule, the
judge concluded an award was appropriate "only as to the summary
judgment motion . . . [not] for the entire pendency of the action."
The judge found "Peterson initiated a lot of the litigation with
his initial letter to [p]laintiff that he owned [Oil Guy]." The
13 A-5372-14T2
judge also found that "given what [p]laintiff knew at th[e] time
th[e] [c]omplaint was filed, there was a potential cause of action
against . . . Peterson" for all counts in the complaint.
However, the judge reasoned "there came a time . . . when
[p]laintiff knew or should have known that it had no viable claim
against [Peterson]." Reciting many of the reasons why he granted
summary judgment, the judge concluded when "information was
revealed to [p]laintiff through discovery, its [c]omplaint . . .
should have been withdrawn." Nonetheless, the judge stated he was
rejecting Peterson's request to impose sanctions under the Rule
because "Peterson ha[d] not demonstrated that [p]laintiff, nor
[p]laintiff's counsel should be sanctioned." Without specifying
whether he was granting the relief as to plaintiff, its counsel
or both, the judge awarded Peterson $13,190 as "sanctions."
"In reviewing the award of sanctions pursuant to [the] Rule
. . . , we apply an abuse of discretion standard." United Hearts,
L.L.C. v. Zahabian, 407 N.J. Super. 379, 390 (App. Div.) (citing
Masone v. Levine, 382 N.J. Super. 181, 193 (App. Div. 2005)),
certif. denied, 200 N.J. 367 (2009). The Rule "channeled the
process by which applicants could initiate sanction applications"
based on the "frivolous behavior" of litigants or counsel. Toll
Bros., Inc. v. Twp. of W. Windsor, 190 N.J. 61, 71 (2007).
14 A-5372-14T2
Frivolous litigation sanctions may be imposed under the
statute against a party "if the judge finds at any time during the
proceedings . . . that a complaint . . . of the nonprevailing
person was frivolous." N.J.S.A. 2A:15-59.1(a)(1). To be
"frivolous," the pleading must be "commenced, used or continued
in bad faith, solely for the purpose of harassment, delay or
malicious injury[,]" or with knowledge that it "was without any
reasonable basis in law or equity and could not be supported by a
good faith argument for an extension, modification or reversal of
existing law." N.J.S.A. 2A:15-59.1(b)(1) and (2). "The term
'frivolous' as used in the statute must be given a restrictive
interpretation." Belfer v. Merling, 322 N.J. Super. 124, 144
(App. Div.) (citing McKeown-Brand v. Trump Castle Hotel & Casino,
132 N.J. 546, 561 (1993)), certif. denied, 162 N.J. 196 (1999).
"[F]alse allegations of fact [will] not justify [an] award . . .
unless they are made in bad faith, 'for the purpose of harassment,
delay or malicious injury.'" McKeown-Brand, supra, 132 N.J. at
561 (quoting N.J.S.A. 2A:15-59.1b(1)). The burden of proving bad
faith is on the party who seeks the fees and costs. Id. at 559.
We have held "[c]ontinued prosecution of a claim or defense
may, based on facts coming to be known to the party after the
filing of the initial pleading, be sanctionable as baseless or
frivolous even if the initial assertion of the claim or defense
15 A-5372-14T2
was not." United Hearts, supra, 407 N.J. Super. at 390 (quoting
Iannone v. McHale, 245 N.J. Super. 17, 31 (App. Div. 1990)). "The
'requisite bad faith or knowledge of lack of well-groundedness may
arise during the conduct of the litigation.'" Ibid. (citing
Chernin v Mardan, Corp., 244 N.J. Super. 379 (Ch. Div. 1990)).
However, "a pleading will not be considered frivolous for purposes
of imposing sanctions under [the Rule] unless the pleading as a
whole is frivolous." Id. at 394.
In this case, the judge specifically found plaintiff was
justified in filing suit against Peterson based, in part, upon
Peterson's own assertions of an ownership interest in Oil Guy.
Indeed, the record reflects that Peterson's counsel fostered this
belief, through correspondence sent to Barton and plaintiff before
suit was even filed. The judge also found that plaintiff had a
reasonable basis to include every count in the complaint, and he
never found plaintiff pursued the claims in bad faith.
Rather, the judge determined plaintiff's lawsuit became
frivolous after discovery and before summary judgment. However,
the judge's written statement of reasons in support of the summary
judgment order never suggested plaintiff's claims were "without
[any reasonable] basis in law or equity . . . .'" In re Estate
of Ehrlich, 427 N.J. Super. 64, 77 (App. Div. 2012) (quoting
Buccinna v. Micheletti, 311 N.J. Super. 557, 562-63 (App. Div.),
16 A-5372-14T2
certif. denied, 213 N.J. 46 (2013)). Indeed, in deciding the fee
application, the judge specifically stated Peterson failed to
demonstrate plaintiff or its counsel "should be sanctioned."
Under these circumstances, the award of fees to Peterson was
a mistaken exercise of discretion. We reverse the fee order and
vacate the award. This same reasoning compels the dismissal of
Peterson's cross-appeal.
II.
A.
Turning to claims of pre-trial errors as to Barton, we agree
with the judge that plaintiff's cross-motion to amend the complaint
was not germane to the discovery motion Barton had filed. R. 1:6-
3(b). From the record before us, it is difficult to discern what
the judge meant when he also stated as to the cross-motion's
merits, "plaintiff offers no defense as to why Oil Guy . . . should
be a party."3
In any event, plaintiff never filed a motion thereafter to
amend the complaint. Perhaps plaintiff believed the judge's
decision on the "merits" foreclosed the opportunity. Had such a
motion to amend actually been made, "Rule 4:9-1 requires that
3
Apparently there was no oral argument and Barton's opposition is
not in the record. The certification plaintiff's counsel filed
in support of the cross-motion stated Barton refused to produce
any Oil Guy documents because "the document requests should be
directed to Oil Guy."
17 A-5372-14T2
[such] motions . . . be granted liberally . . . in the court's
sound discretion." Notte v. Merchs. Mut. Ins. Co., 185 N.J. 490,
501 (2006) (quoting Kernan v. One Wash. Park Urban Renewal Assocs.,
154 N.J. 437, 456-57 (1998)). "That exercise of discretion
requires a two-step process: whether the non-moving party will be
prejudiced, and whether granting the amendment would nonetheless
be futile." Ibid.
Because Oil Guy was a signatory to the agreement and plaintiff
only purchased certain assets of Oil Guy but not its stock, there
were sufficient reasons for plaintiff's request. However, the
judge was fully familiar with letters plaintiff sent to Oil Guy
customers on Oil Guy stationary immediately after the agreement
closed. Those letters stated Oil Guy was now being managed by
plaintiff, and the agreement itself permitted plaintiff to use the
name "Oil Guy" for four years. It is difficult to conceive,
therefore, how plaintiff intended to manage Oil Guy, use its name
and sue it at the same time. Most importantly, it is undisputed
that after consummation of the agreement, Oil Guy never functioned
as a business. Therefore, plaintiff can point to no real prejudice
that resulted from the amendment order. We therefore affirm the
order.
Plaintiff argues it was error to grant partial summary
judgment to Barton on the fraud and conversion counts. It contends
18 A-5372-14T2
discovery was incomplete and "material facts remained in dispute."
We disagree.
Barton's motion was supported by compelling, undisputed
evidence that she was the sole owner of Oil Guy. Plaintiff's
opposition argued the case was not ripe for summary judgment
because Barton had not yet been deposed. However, plaintiff's
responding statement of material facts made clear that its claims
against Barton for fraud and conversion were really assertions
against Peterson — his alleged improper use of Oil Guys' customer
list and name — coupled with Barton's failure to advise plaintiff
of Peterson's ownership interests. The judge's oral decision
correctly analyzed the inherent inadequacy of plaintiff's position
— Peterson had no ownership interest and plaintiff alleged no
other misrepresentation or misappropriation of corporate assets
by Barton herself. The judge properly granted partial summary
judgment, and we affirm the October 2014 order.
B.
Moving to the issues raised regarding events immediately
before and during trial, we consider plaintiff's objections to the
March 2015 orders. We are somewhat hampered because the record
does not include the motions and supporting documents filed by
Barton or plaintiff. We only have the judge's written statement
of reasons.
19 A-5372-14T2
Plaintiff argues it was error to quash the subpoena served
on Oil Guy seeking corporate documents and bank records. Barton
opposed the request, claiming it sought the finances of a "non-
party," which is, of course, ironic, since Barton earlier opposed
the motion to amend the complaint to add Oil Guy as a defendant.
However, the judge reasoned that plaintiff only sought the
information to prove Peterson was an owner of Oil Guy, an issue
already decided to the contrary.
Pursuant to Rule 1:9-2, a subpoena duces tecum served on a
non-party may be quashed in the judge's discretion if "compliance
would be unreasonable or oppressive . . . ." We assume plaintiff's
subpoena issued under this rule because plaintiff cites the Rule
in its brief. However, as Rule 1:9-2 itself makes clear,
"subpoenas for pretrial production shall comply with the
requirements of [Rule] 4:14-7(c)." And, "it is Rule 4:14-7(c) and
not [Rule] 1:9-2 which applies to discovery production in civil
cases." Pressler & Verniero, Current N.J. Court Rules, comment 1
on R. 1:9-2 (2017).
In any event, plaintiff fails to demonstrate the requested
documents would have likely led to relevant evidence at trial. R.
4:10-2(a). In its appellate brief, plaintiff asserts the
"documents . . . would have . . . provided insight into the
financial relationship between [Peterson] and [Barton] . . . ."
20 A-5372-14T2
Since Peterson was already out of the case, and the sole remaining
issue was whether Barton breached the agreement, we agree with the
judge that it was unlikely the subpoenaed documents would have led
to relevant evidence. To the extent the judge erred by quashing
the subpoena, the error was harmless.
Barton sought to bar plaintiff's experts from testifying at
trial. The judge reviewed the reports of two experts, John Levey
and Joseph Vassallo. The appellate record only contains the report
of Vassallo, who testified at trial. Plaintiff argues Vassallo's
report was anchored in certain facts, including the loss of 75%
of Oil Guy customers after plaintiff consummated the agreement
with Barton, and the sale of 74% less fuel oil. Vassallo stated
it was his "strong belief . . . the confidentiality of the customer
list has been breached."
The judge cited the extreme variation between the two reports
on the quantification of damages, and noted Vassallo's "strong
belief" was "not sufficient." The judge also reasoned Vassallo
premised his estimate of damages upon speculation, including an
assumed per customer usage figure that was unexplained.
Plaintiff argues the judge should have permitted Vassallo to
testify as to damages. We disagree. The report was a classic net
opinion. See, e.g., Townsend v. Pierre, 221 N.J. 36, 55 (2015).
More importantly, to the extent it was error to prohibit Vassallo
21 A-5372-14T2
from testifying about damages, the error was harmless. The
critical page of Vassallo's report was admitted as evidence at
trial, and he was permitted to testify about the loss of customers
and the suspected compromise of Oil Guy's customer list.
Additionally, the judge never reached the issue of damages because
he found, as we explain below, that Barton had not breached the
agreement.
Plaintiff challenges a series of evidentiary rulings made by
the judge at trial barring proposed witnesses and the limitation
he placed upon the scope of testimony from witnesses who actually
testified. "Evidentiary decisions are reviewed under the abuse
of discretion standard because, from its genesis, the decision to
admit or exclude evidence is one firmly entrusted to the trial
court's discretion." Estate of Hanges v. Metro. Prop. & Cas. Ins.
Co., 202 N.J. 369, 383-84 (2010). Errors in admitting or barring
certain evidence will only compel reversal if they were "clearly
capable of producing an unjust result." R. 2:10-2; Green v. N.J.
Mfrs. Ins. Co., 160 N.J. 480, 502 (1999). Our review of the entire
trial record convinces us that the judge did not mistakenly
exercise his discretion. Moreover, the complained-of evidence
rulings did not singly or collectively bring about an unjust
result.
22 A-5372-14T2
Finally, plaintiff contends it proved each element of its
breach of contract claim against Barton. Plaintiff fails to
identify with any specificity what legal error was committed by
the judge, except to say the evidence permitted a judgment in its
favor.
Plaintiff asserted at trial that Barton breached the
agreement by either conveying the customer list to Peterson or
else not taking appropriate steps to insure the confidentiality
of the list. In rendering his oral decision, the judge correctly
noted that after the closing, Barton had no control over Peterson's
actions, and the evidence simply did not support a finding that
Barton breached any of her representations or obligations under
the agreement.
Our standard of review is limited.
Final determinations made by the trial court
sitting in a non-jury case are subject to a
limited and well-established scope of review:
"we do not disturb the factual findings and
legal conclusions of the trial judge unless
we are convinced that they are so manifestly
unsupported by or inconsistent with the
competent, relevant and reasonably credible
evidence as to offend the interests of
justice[.]"
[Seidman v. Clifton Sav. Bank, S.L.A., 205
N.J. 150, 169 (2011) (quoting In re Trust
Created By Agreement Dated December 20, 1961,
ex. rel. Johnson, 194 N.J. 276, 284 (2008)
(internal quotation omitted)).]
23 A-5372-14T2
There is no basis to disturb the judge's conclusions. We affirm
the final judgment entered in favor of Barton.
As a result of our decision, plaintiff's challenge to the
pendente lite order is moot. Further, as already noted, we deny
Barton's cross-appeal which lacks sufficient merit to warrant
discussion. R. 2:11-3(e)(1)(E).
We affirm all orders under review, except for the June 22,
2015 order granting Peterson counsel fees. We reverse and vacate
that order. The cross-appeals are dismissed.
24 A-5372-14T2