PATEL GROUP VS. JOHN BRITO (L-1178-16, UNION COUNTY AND STATEWIDE) ( 2019 )

NOT FOR PUBLICATION WITHOUT THE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-5304-17T1
PATEL GROUP,
Plaintiff-Appellant,
v.
JOHN BRITO,
Defendant-Respondent.
_____________________________
Submitted September 23, 2019 – Decided September 30, 2019
Before Judges Ostrer and Vernoia.
On appeal from the Superior Court of New Jersey, Law
Division, Union County, Docket No. L-1178-16.
Thomas D. Williamson, attorney for appellant.
Respondent has not filed a brief.
PER CURIAM
Plaintiff Patel Group, Inc. appeals from the Law Division's June 8, 2018
order denying its motion to enter a default judgment on its February 2018
complaint against defendant John Brito. The court found that plaintiff's motion
was frivolous and invited defendant to file a certification of fees. 1 We affirm.
The order arises from plaintiff's third effort to hold defendant personally
responsible for a debt of a dissolved limited liability company, KVB Enterprises,
LLC (KVB), of which defendant was, allegedly, the managing member. We
reviewed some of the salient facts in Patel Group, Inc. v. KVB Enterprises, LLC,
No. A-1488-13 (App. Div. May 13, 2015).
In short, plaintiff alleged in a 2010 complaint that KVB defaulted in 2003
on a mortgage debt owed to plaintiff. Plaintiff secured a default judgment in
2011 against KVB. Plaintiff alleges that while its suit against KVB was
pending, KVB sold all its property. Upon its discovery of that alleged fact in
2012, plaintiff sought, by way of motion, entry of judgment against defendant.
Defendant disputed plaintiff's factual claim, alleging that KVB was essentially
assetless as of 2009. The court denied the motion in October 2013 on two
grounds. First, defendant was not named a party. Second, plaintiff had not
established a basis to pierce the LLC's "corporate veil" and hold defendant
responsible derivatively for the LLC's debt.
1
Given the pendency of the fee issue, the June 8 order was interlocutory, and
not appealable as of right. However, given the history of this case, we grant
leave to appeal nunc pro tunc so we can dispose of the issues before us.
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We affirmed that October 2013 order in Patel Group, Inc. We rejected
plaintiff's argument that "the motion judge erred by not holding Brito personally
liable for a judgment it previously obtained against KVB because Brito did not
properly dissolve KVB and allegedly distributed its assets to KVB's members
without satisfying [Patel Group's] judgment." Id., slip op. at 2. We held that
plaintiff presented no basis for entering judgment against plaintiff, who was not
named as a party in a complaint. Id. at 5. We held that plaintiff's various
arguments on appeal lacked sufficient merit to warrant further discussion. Ibid.
Plaintiff renewed its effort to hold defendant responsible in a 2016
complaint. But, plaintiff misspelled defendant's name and secured a default
judgment in October 2016 against "John Bitro." In August 2017, the court
denied plaintiff's motion to enter a default judgment against defendant and
dismissed the complaint with prejudice. The court reasoned that defendant was
never properly served under his name. But, more importantly, the court held
that plaintiff's complaint against defendant was barred by the entire controversy
doctrine, citing Falcone v. Middlesex County Medical Society, 47 N.J. 92(1966), and Hobart Brothers Company v. National Union Fire Insurance
Company, 354 N.J. Super. 229 (App. Div. 2002). The court also restrained
plaintiff and its counsel from filing any new lawsuit or motion against defendant
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based upon the same facts and circumstances. The court also held that any future
complaint premised on the same facts and circumstances would be barred by the
statute of limitations. The court denied defendant's motion for frivolous
litigation sanctions. In January 2018, the court entered an order directing the
clerk to substitute defendant's name for the party in the 2016 complaint. 2
In February 2018, plaintiff filed another complaint against defendant –
albeit bearing the same docket number as the 2016 complaint – which is the
subject of this appeal. Plaintiff alleged that defendant failed to comply with the
dictates of the New Jersey Limited Liability Act, N.J.S.A. 42:2B-1 to -70
(NJLLA), repealed by the Revised Uniform Limited Liability Company Act, L.
2012, c. 50, § 95, codified by N.J.S.A. 42:2C-1 to -94. Plaintiff later argued that
its complaint was timely, based on its alleged 2012 discovery of KVB transfers.
In entering the June 2018 order, the court reiterated that plaintiff's
complaint against defendant was barred by the entire controversy doctrine and
the statute of limitations. The court also rejected plaintiff's argument that its
claim under the NJLLA had never been addressed. The court noted that plaintiff
raised the contention in his prior appeal, and the court in Patel Group found it
2
The record before us does not disclose the court's reasons for doing so.
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lacked sufficient merit to warrant discussion. On appeal, plaintiff reprises these
arguments.
We conclude that plaintiff's 2018 complaint is barred by res judicata. The
court's August 18, 2017 order dismissed the complaint against defendant with
prejudice and barred any future complaint against defendant. Plaintiff did not
file a timely appeal from that order. 3 Consequently, the order became final.
Plaintiff may not relitigate the issues determined by that order by filing a new
complaint. See Bango v. Ward, 12 N.J. 415, 420 (1953).
Affirmed.
3
Therefore, we do not reach the correctness of the trial court's prior
determination that plaintiff's 2016 complaint was barred by the statute of
limitations and the entire controversy doctrine.
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