Victor Rosario v. Marco Construction and Management

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1562-14T3
VICTOR ROSARIO, NILDA
MALDONADO, NOEMI FLORES
and JOSE FLORES, APPROVED FOR PUBLICATION
Plaintiffs-Appellants,
January 12, 2016
v.
APPELLATE DIVISION
MARCO CONSTRUCTION AND
MANAGEMENT INC. a/k/a MARCO
CONSTRUCTION, WILLIAM MUSEY,
and DOMINIC ANTONINI,
BALSLEY/LOSCO1 REAL ESTATE,
Defendants,
and
THE ESTATE OF STEPHAN MUSEY,
Defendant-Respondent.
____________________________________
Argued December 7, 2015 – Decided January 12, 2016
Before Judges Lihotz, Fasciale and Nugent.
On appeal from Superior Court of New Jersey,
Law Division, Cumberland County, Docket No.
L-0057-08.
Louis Giansante argued the cause for
appellants (Giansante & Associates, L.L.C.,
attorneys; Mr. Giansante, on the briefs).
Mitchell H. Kizner argued the cause for
1
Although "Balsley" is spelled inconsistently in the record,
we adopt the judge's spelling.
respondent Jeannette Haynes, Executrix of
the Estate of Stephan Musey (Flaster/
Greenberg, P.C., attorneys; Mr. Kizner and
Douglas S. Stanger, on the joint brief).
Gruccio, Pepper, DeSanto & Ruth, P.A.,
attorneys for respondents Richard Goldstine
and Marilyn Goldstine (Walter F. Gavigan, on
the joint brief).
The opinion of the court was delivered by
FASCIALE, J.A.D.
Victor Rosario, Nilda Maldonado, and Jose and Noemi Flores
(collectively plaintiffs) appeal from a March 11, 2014 order
denying their motion to file a fourth amended complaint against
Jeannette Haynes, in her individual capacity and as executrix of
defendant the Estate of Stephan Musey (the Estate), Richard and
Marilyn Goldstine,2 and William Musey, Jr. (the grandson),
alleging violations under the Uniform Fraudulent Transfer Act
(the Act), N.J.S.A. 25:2-20 to -34.
Plaintiffs purchased two houses constructed on land
originally owned by Musey, which was contaminated. They
instituted this action against various defendants seeking
damages to remediate the resultant environmental contamination.
The asserted violations under the Act pertain to two alleged
fraudulent transfers of a residence originally owned by
2
Although "Goldstine" is also spelled "Goldstein" in the
record, we adopt the judge's spelling.
2 A-1562-14T3
defendant Stephan Musey, located on Geissinger Avenue (the
Geissinger property).
In 2006, Musey sold the Geissinger property to his
daughter, Haynes, for $1 (the 2006 transfer), and retained a
life estate for himself until his death in June 2008. In 2012,
Haynes, after holding title for approximately six years, sold
the Geissinger property to the Goldstines (the 2012 transfer),
who are the in-laws of the grandson.3
Plaintiffs contended that the transfers were designed to
avoid collection on any potential judgment against the Estate
following Musey's death. The judge denied plaintiffs' motion to
assert new claims under the Act, finding the new claims time
barred under either the four-year statute of limitations (SOL)
or one-year tolling period contained in N.J.S.A. 25:2-31(a).
Plaintiffs, who have characterized the underlying
environmental dispute as a tort case, urge us to conclude that
the commencement of the SOL under the Act runs from a different
date than in commercial contract transaction cases. Plaintiffs
admit that in commercial contract transaction cases, the SOL
under the Act runs from the date of the transfer. They
maintain, however, that in tort cases, the SOL is triggered once
3
We adopt the judge's finding at the motion hearing that the
transfer was made in 2012.
3 A-1562-14T3
they obtain a judgment. Haynes and the Goldstines assert that
the SOL under the Act is triggered on the date of the alleged
fraudulent transfer.
Applying the plain text of N.J.S.A. 25:2-31, we hold that
the commencement of the SOL for claims under the Act in an
underlying tort case is not contingent on obtaining a judgment.
Thus, the SOL for causes of action under N.J.S.A. 25:2-25(a),
regardless of whether the claimant has become a judgment
creditor, expires four years from the date the transfer was made
or the obligation was incurred or, if later, one year after the
transfer or obligation was discovered by the claimant.4 We
decline to draw the distinction requested by plaintiffs that the
commencement of the SOL under the Act runs from a different date
in tort disputes than in commercial contract transaction cases.
We conclude that the proposed claims under the Act are barred
and therefore affirm.
I.
Musey owned property comprising three separate but adjacent
4
Although our Supreme Court refers to N.J.S.A. 25:2-31 as a
statute of limitations, Sasco 1997 Ni, LLC v. Zudkewich,
166 N.J. 579, 585 (2001), other courts have characterized it as
a statute of repose because it refers to the extinguishment of
substantive rights and is self-executing, see, e.g., Gibbons v.
First Fid. Bank, N.A. (In re Princeton-New York Investors,
Inc.), 199 B.R. 285, 293 n.4 (Bankr. D.N.J. 1996) (finding
N.J.S.A. 25:2-31 is a statute of repose because it bars the
right to bring the action and not the remedy).
4 A-1562-14T3
lots located in Vineland (the property). Between 1972 and the
1980s, Musey and his son, defendant William Musey (the son),
operated an auto body and repair shop on the property. By 2003,
Musey admitted to the New Jersey Department of Environmental
Protection (NJDEP) that the property contained contaminated
soil. The NJDEP required Musey to remediate the property, which
he never did.
Without resolving the environmental issues, Musey and
defendant Marco Construction and Management, Inc. (Marco
Construction) entered into a joint venture agreement to build
and sell two residential homes on a portion of the property.
Marco Construction took title to the property, built the houses,
and listed them for sale using defendant Balsley/Losco Real
Estate (Balsley/Losco). Plaintiffs then purchased the homes
without knowledge of the environmental problems. Soon after,
Musey made the 2006 transfer.
In January 2008, plaintiffs filed their complaint against
Marco Construction, Stephan Musey, the son, Dominic Antonini
(owner of Marco Construction), and Balsley/Losco.5 After Musey
5
Plaintiffs alleged the following causes of action: violation
of the Consumer Fraud Act (CFA), N.J.S.A. 56:8-1 to -20 (Count
One); breach of contract (Count Two); misrepresentation (Count
Three); negligence (Count Four); equitable fraud (Count Five);
and a violation of the New Jersey Spill Compensation and Control
Act (Spill Act), N.J.S.A. 58:10-23.11 to -23.24 (Count Six).
5 A-1562-14T3
passed away, plaintiffs named the Estate as a party, which
defaulted.
The Estate was probated in July 2008. As to the probate
matter, plaintiffs' counsel indicated generally in his merits
brief that plaintiffs "were claimants in the [E]state, however,
their claims were never addressed." There is no evidence in
this record plaintiffs contended in the probate matter that the
Geissinger property constituted an asset of the Estate. By the
time the Estate was probated, Haynes had title to the Geissinger
property, which had been publicly recorded in the county clerk's
office for approximately one year.
In March 2011, more than four years after the 2006
transfer, the son filed an individual petition in bankruptcy.
As a result, this matter was stayed until March 2012.
Plaintiffs' counsel indicated in his merits brief that
plaintiffs were "creditors" in the bankruptcy proceedings.
There is no evidence in this record that plaintiffs questioned
the propriety of the 2006 transfer, or that they argued in the
bankruptcy matter the son played any role in the 2006 transfer.
In 2012, Haynes sold the Geissinger property to the
Goldstines for $110,000. Plaintiffs speculate the Geissinger
property is worth more than the sale price. The grandson and
his wife, the Goldstines' daughter, then occupied the Geissinger
6 A-1562-14T3
property. On December 6, 2013, the court entered default
judgment against the Estate and awarded plaintiffs $1,843,210.07
on their CFA claim.6
Plaintiffs then filed their motion for leave to file a
fourth amended complaint, asserting claims under the Act. In
February 2014, the judge conducted oral argument and on March
11, 2014, the judge denied the motion, issuing a written opinion
and entering the order under review.7
The judge concluded the four-year SOL contained in N.J.S.A.
25:2-31(a) barred plaintiffs from bringing a claim under the Act
as to the 2006 transfer. The judge also addressed whether the
one-year tolling period contained in N.J.S.A. 25:2-31(a) saved
plaintiffs' claim as to the 2006 transfer. He found, based on a
letter from plaintiffs' counsel, plaintiffs knew about the 2006
transfer in May 2012. As a result, the judge concluded that the
one-year tolling period expired in May 2013. Consequently, he
determined plaintiffs' claim as to the 2006 transfer was time
barred. The judge did not reach the claim related to the 2012
transfer because barring the 2006 claim broke the chain of title
6
This amount is comprised of damages in the amount of
$501,942, trebled ($1,505,826) pursuant to the CFA, plus
$337,384.07 for attorneys' fees and costs.
7
The order denied other relief not the subject of this appeal,
and which our opinion otherwise rendered moot.
7 A-1562-14T3
and precluded plaintiffs from arguing the Geissinger property
was an asset of the Estate.
In 2014, the judge conducted a bench trial as to the
remaining defendants. In September 2014, the judge rendered a
thirty-five page written opinion expressing his findings of fact
and conclusions of law. On October 16, 2014, the judge entered
a final judgment in plaintiffs' favor against Marco Construction
on Count One (CFA),8 Count Two (breach of contract), Count Three
(misrepresentation), and Count Six (Spill Act).9 The judge
dismissed Count Four (negligence) and Count Five (equitable
fraud).10 The remaining parties either settled or were dismissed
8
For the CFA claim, the judge entered a judgment against both
Marco Construction and Dominic Antonini individually. Judgment
as to Counts Two, Three, and Six was rendered solely against
Marco Construction.
9
As to the CFA charges, the judge awarded plaintiffs Victor
Rosario and Nilda Maldonado trebled damages totaling $754,437,
and plaintiffs Jose and Noemi Flores trebled damages amounting
to $730,405.98. Plaintiffs were also awarded attorneys' fees
totaling $362,461.76 and filing fees and costs totaling
$12,814.13. As to the breach of contract claims, the court
awarded Rosario and Maldonado $251,479 and Jose and Noemi Flores
$243,468.66. As to misrepresentation, the court awarded Rosario
and Maldonado $251,479 and Jose and Noemi Flores $243,468.66.
The court awarded Rosario and Maldonado and Jose and Noemi
Flores $35,000 for loss of quiet enjoyment. As to the Spill Act
claims, the court ordered that plaintiffs were entitled to full
contribution for any future cleanup and remediation costs that
should arise.
10
These claims were alleged against both Marco Construction
and Dominic Antonini.
8 A-1562-14T3
from the case and have not participated in this appeal.
II.
On appeal, plaintiffs argue that (1) the commencement of
the SOL for their claims under the Act was triggered by
obtaining final judgment on October 16, 2014; (2) their claims
under the Act should have been tolled under the adverse
domination rule; (3) the remedies under the Act are "cumulative
not exclusive" and are therefore "not [i]ntended to [d]isplace
[c]ommon [l]aw [a]ctions"; and (4) their claims under the Act
relate back to the filing of the complaint in January 2008,
pursuant to Rule 4:9-3.
The question as to what date triggers the SOL under the Act
is a legal one. "When deciding a purely legal issue, review is
de novo." Kaye v. Rosefielde, 223 N.J. 218, 229 (2015) (quoting
Fair Share Hous. Ctr., Inc. v. N.J. State League of Muns., 207
N.J. 489, 493 n.1 (2011)). Here, the judge properly concluded
that the SOL is triggered by the date of the 2006 transfer.
Rule 4:9-1 governs motions to amend pleadings. Motions for
leave to amend are granted liberally, "even if the ultimate
merits of the amendment are uncertain." Prime Accounting Dep't
v. Twp. of Carney's Point, 212 N.J. 493, 511 (2013).
Nonetheless,
[o]ne exception to that rule arises when the
amendment would be "futile," because "the
9 A-1562-14T3
amended claim will nonetheless fail and,
hence, allowing the amendment would be a
useless endeavor." Notte v. Merchants Mut.
Ins. Co., 185 N.J. 490, 501 (2006).
"'[C]ourts are free to refuse leave to amend
when the newly asserted claim is not
sustainable as a matter of law. . . .
[T]here is no point to permitting the filing
of an amended pleading when a subsequent
motion to dismiss must be granted.'" Ibid.
(quoting Interchange State Bank v. Rinaldi,
303 N.J. Super. 239, 256-57 (App. Div.
1997)).
[Ibid. (alterations in original).]
We conclude that the proposed amendment asserting claims under
the Act would be futile because the SOL expired. As a result,
the judge did not err.
A.
We reject plaintiffs' contention that the commencement of
the SOL under the Act should be analyzed differently in tort and
commercial contract transaction cases. Specifically, plaintiffs
maintain the SOL under the Act, in tort cases, is triggered only
after a party obtains final judgment. The premise of this
contention, which is indubitably incorrect, is that the
transfers of the Geissinger property amounted to claims under
the Act only after plaintiffs became judgment creditors in the
underlying tort case.
Plaintiffs focus primarily on the "right to payment"
language contained in N.J.S.A. 25:2-21, asserting that in an
10 A-1562-14T3
underlying tort case, a claimant enjoys that right only after
obtaining a judgment. To address plaintiffs' assertion, we must
interpret the text of the SOL under the Act. Our paramount goal
in interpreting a statute is to ascertain the Legislature's
intent, and "generally[] the best indicator of that intent is
the statutory language." DiProspero v. Penn, 183 N.J. 477, 492
(2005). When interpreting a statute, we give words "their
ordinary meaning and significance." Tumpson v. Farina, 218 N.J.
450, 467 (2014) (quoting DiProspero, supra, 183 N.J. at 492).
The plain language of N.J.S.A. 25:2-31(a) clearly provides
that the triggering date for calculating the SOL under the Act
is the transfer or the date when the obligation was incurred.
The text of the SOL does not differentiate between tort and
commercial contract transaction cases. It is clear that
becoming a judgment creditor is not a precondition to the
commencement of the SOL related to underlying tort cases.
A cause of action with respect to a
fraudulent transfer or obligation under this
article is extinguished unless action is
brought:
a. Under subsection a. of R.S. 25:2-25,
within four years after the transfer
was made or the obligation was incurred
or, if later, within one year after the
transfer or obligation was discovered
by the claimant[.]
[N.J.S.A. 25:2-31(a) (emphasis added).]
11 A-1562-14T3
The Act addresses fraudulent transfers, not solely as to
present creditors, but also as to future creditors — i.e.,
creditors whose claims arose after the transfer was made but not
necessarily before judgment in an underlying matter is entered.
N.J.S.A. 25:2-25 states:
A transfer made or obligation incurred by a
debtor is fraudulent as to a creditor,
whether the creditor's claim arose before or
after the transfer was made or the
obligation was incurred, if the debtor made
the transfer or incurred the obligation:
a. With actual intent to hinder, delay,
or defraud any creditor of the debtor
. . . .
The Act provides precise definitions of the terms used. A
"transfer" is defined as "every mode, direct or indirect,
absolute or conditional, voluntary or involuntary, of disposing
of or parting with an asset or an interest in an asset, and
includes payment of money, release, lease, and creation of a
lien or other encumbrance." N.J.S.A. 25:2-22. For cases
involving real property, "transfer" has been defined as the date
real property is recorded. See N.J.S.A. 25:2-28(a)(1);
Boardwalk Regency Corp. v. Burd, 262 N.J. Super. 162, 165 (App.
Div. 1993). A "debtor" is defined as "a person who is liable on
a claim." N.J.S.A. 25:2-21. A "'claim' means a right to
payment, whether or not the right is reduced to judgment,
liquidated, unliquidated, fixed, contingent, matured, unmatured,
12 A-1562-14T3
disputed, undisputed, legal, equitable, secured, or unsecured."
Ibid. A "creditor" is "a person who has a claim." Ibid.
Importantly, a claim, as that term is defined in the Act,
need not be reduced to a judgment. Consequently, a "creditor"
may include "the holder of an unliquidated tort claim or a
contingent claim." Ibid.; see also Sasco, supra, 166 N.J. at
487 (stating the clear language of N.J.S.A. 25:2-31 reveals "the
Legislature concluded that the date of judgment was not
determinative of the timeliness of claims under the [Act]");
Flood v. Caro Corp., 272 N.J. Super. 398, 405 (App. Div. 1994)
(stating "[a]ny creditor, with or without a judgment, may
prosecute a suit" under the Act).
As a result, the "right to payment" of a claim, referenced
in N.J.S.A. 25:2-21, is not dependent on obtaining a judgment
because the Act refers to claims "whether or not the right is
reduced to judgment, liquidated, unliquidated, fixed,
contingent, matured, unmatured, disputed, undisputed, legal,
equitable, secured, or unsecured." Ibid. Because "'[t]he [Act]
does not prevent a present or future "creditor" from seeking a
remedy prior to judgment[,]'" Sasco, supra, 166 N.J. at 586-87
(quoting Intili v. DiGiorgio, 300 N.J. Super. 652, 659 (Ch. Div.
1997)), it is logical to conclude in all cases that the SOL
provided in N.J.S.A. 25:2-31(a) commences from the date of the
13 A-1562-14T3
transfer or the date the transfer is discovered. Under the Act,
"[a]ny creditor, with or without a judgment, may prosecute a
suit." Flood, supra, 272 N.J. Super. at 405.
Granting plaintiffs' request to use a different triggering
SOL date depending on the nature of the claim — commercial
contract transaction or tort cases — would require us to rewrite
an enactment of the Legislature or presume that the Legislature
intended something other than what it clearly expressed in the
plain language of the statute. It is well settled that "[a]
court may neither rewrite a plainly-written enactment of the
Legislature nor presume that the Legislature intended something
other than that expressed by way of the plain language."
O'Connell v. State, 171 N.J. 484, 488 (2002). As a result, we
will not do so here.
B.
Although the plain language of N.J.S.A. 25:2-31 is clear,
the purpose and history of the Act, as well as New Jersey
Supreme Court precedent, provide conclusive support for our
holding.
New Jersey adopted the Act in 1988 to replace the Uniform
Fraudulent Conveyance Act, which had been in effect since 1919.
Sasco, supra, 166 N.J. at 584. "The Act modernizes the law
respecting the rights and remedies of creditors in cases of
14 A-1562-14T3
transfers of assets by debtors[,] the design or effect of which
is to prevent or impede satisfaction of claims out of the
debtor's assets, or to prefer favored claimants." Flood, supra,
272 N.J. Super. at 403.
"The purpose of the [Act] is to prevent a debtor from
placing his or her property beyond a creditor's reach."
Gilchinsky v. Nat'l Westminster Bank N.J., 159 N.J. 463, 475
(1999). "Underlying the Act is the notion that a debtor cannot
deliberately cheat a creditor by removing his property from the
'jaws of execution.'" Ibid. "Fraudulent conveyance claims thus
allow the creditor to undo the wrongful transaction so as to
bring the property within the ambit of collection." Ibid. The
Act prohibits any transfer intended "to hinder, delay, or
defraud any creditor of the debtor." N.J.S.A. 25:2-25(a).
The definition of claim contained within N.J.S.A. 25:2-21
is derived from Section 101(4) of the Bankruptcy Code, 11
U.S.C.A. § 101(4). 7A Uniform Laws Annotated, Business and
Financial Laws (Master ed. 2006) 16. "Since the purpose of the
[Uniform Fraudulent Transfer Act] is primarily to protect
unsecured creditors against transfers and obligations injurious
to their rights, the words 'claim' and 'debt' . . . generally
have reference to an unsecured claim and debt." Ibid. Indeed,
"[u]nder the Bankruptcy Code, the courts have noted that the
15 A-1562-14T3
term 'claim' has been defined as broadly as possible." Tronox
Inc. v. Kerr McGee Corp. (In re Tronox Inc.), 503 B.R. 239, 309
(Bankr. S.D.N.Y. 2013). Other courts have adopted this same
principle in cases interpreting their state's Uniform Fraudulent
Transfer Act. See, e.g., ibid. (referencing the same definition
of "claim" in both Oklahoma's and Utah's Uniform Fraudulent
Transfer Act); Skyline Potato Co. v. Tan-O-On Mktg., Inc., 879
F. Supp. 2d 1228, 1262 (D.N.M. 2012) (explaining the "statutory
definition[] for the term . . . claim, along with the manner in
which courts have applied th[at] term[], the potential scope of
persons who can qualify as proper plaintiffs under [New Mexico's
Uniform Fraudulent Transfer Act] is 'the broadest available' one
a legislature could have adopted").
In Sasco, our Supreme Court held the SOL under the Act
commences on the date of transfer, as "both the explicit
language of and the intent underlying the [Act] demonstrate that
the statute operates without regard to when the creditor obtains
a judgment." Sasco, supra, 166 N.J. at 587. The Sasco Court
further noted:
The explicit language of the [Act] provides
that the four-year provision runs from the
date "the transfer was made," N.J.S.A. 25:2-
31a, and indicates that the Legislature
concluded that the date of judgment was not
determinative of the timeliness of claims
under the [Act]. N.J.S.A. 25:2-21. We
cannot ignore that intent.
16 A-1562-14T3
[Id. at 588.]
Other jurisdictions agree with our conclusion the SOL runs
in all cases from the date of transfer, not the judgment. An
appellate court in Arizona, in Moore v. Browning, 50 P.3d 852,
859-60 (Ariz. Ct. App. 2002), similarly held that the plain
language of the statute compels the conclusion the SOL runs from
the date of the transfer; the court found "no reason to deviate
from the first rule of statutory construction." Accord Gulf
Ins. Co. v. Clark, 20 P.3d 780, 788 (Mont. 2001); First Sw. Fin.
Servs. v. Pulliam, 912 P.2d 828, 830-31 (N.M. Ct. App. 1996);
Salisbury v. Majesky, 817 N.E.2d 1219, 1221-22 (Ill. App. Ct.
2004), appeal denied by, 829 N.E.2d 794 (Ill. 2005); see also
Levy v. Markal Sales Corp., 724 N.E.2d 1008, 1010 (Ill. App.
Ct.) (stating that "the clear and unambiguous wording of the Act
demonstrates[] the four-year limitation period begins to run on
the date the challenged transfer was made"), appeal denied by,
731 N.E.2d 764 (Ill. 2000).
We now apply these legal principles to the facts of this
case. As to the 2006 transfer, it is undisputed the four-year
SOL expired in 2010. Plaintiffs' counsel admitted before us
plaintiffs knew about the 2006 transfer in May 2012. Thus, the
one-year tolling provision under N.J.S.A. 25:2-31(a) expired in
May 2013. Plaintiffs filed their motion for leave to amend in
17 A-1562-14T3
December 2013. As a result, the claim related to the 2006
transfer is time barred.
As to the 2012 transfer, plaintiffs' counsel conceded at
oral argument that if the 2006 transfer was untimely under the
Act, then the purported claim as to the 2012 transfer would be
barred as well. The claim as to the 2012 transfer, that Haynes
fraudulently transferred property that belonged to the Estate,
is dependent on the Geissinger property being part of the
Estate. If plaintiffs are barred by the SOL from pursuing the
allegation that the 2006 transfer was fraudulent, then what
Haynes did with the Geissinger property six years later is
irrelevant. We emphasize that in the probate matter, and even
in the bankruptcy proceedings, plaintiffs did not fully pursue
any argument that the Geissinger property constituted an asset
of the Estate, or that the co-executors wrongfully retained
assets of the Estate. If plaintiffs are precluded from
challenging Musey's transfer to Haynes of the Geissinger
property in 2006, then plaintiffs cannot now argue that Haynes,
six years later, fraudulently transferred that property to the
Goldstines. The practical effect of barring plaintiffs from
raising claims under the Act as to the 2006 transfer means that
by the time of the 2012 transfer, the Geissinger property was
neither Musey's nor the Estate's.
18 A-1562-14T3
III.
After reviewing the record and the briefs, we conclude that
plaintiffs' remaining arguments are without sufficient merit to
warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
We add the following brief remarks.
Plaintiffs rely on the non-precedential opinion of Wing v.
Dockstader, 482 F. App'x 361 (10th Cir. 2012). In that matter,
the court concluded Utah's Uniform Fraudulent Transfer Act
supported the plaintiff's contention his claims should have been
tolled under the doctrine of adverse domination, a corporate law
equitable tolling doctrine applicable where wrongdoers control
or dominate a corporation and are unlikely to bring claims in
the name of the corporation against themselves. Plaintiffs
offer no reasonable explanation for how such a doctrine would be
applicable in this setting.
Affirmed.
19 A-1562-14T3