EUGENE BERTA VS. NEW JERSEY STATE PAROLE BOARD(NEW JERSEY STATE PAROLE BOARD)

NOT FOR PUBLICATION WITHOUT THE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-2036-15T4
CHEF GUSTO, LLC,
Plaintiff-Appellant,
v.
MOUNT ROSE RAVIOLI & MACARONI
CO., INC., THOMAS MINUTO, and
ANTHONY MINUTO, JR.,
Defendants,
and
ANTHONY MINUTO,
Defendant-Respondent,
v.
FRANK LAGALIA,
Third-Party Defendant-
Appellant.
__________________________________________________
Submitted February 28, 2017 – Decided March 14, 2017
Before Judges Fisher and Ostrer.
On appeal from the Superior Court of New
Jersey, Law Division, Bergen County, Docket
No. L-8791-06.
Basile, Birchwale & Pellino, LLP, attorneys
for appellants (Florence D. Nolan, on the
brief).
Alampi & DeMarrais, attorneys for respondent
(Michael F. DeMarrais, on the brief).
PER CURIAM
In this appeal, we are asked to consider whether the trial
judge erred in excluding from a final judgment a party who was
alive when found partially liable to plaintiff, who was alive
during trial, but died prior to the entry of final judgment.
Because the trial judge never provided a rationale for excluding
the claims against the deceased party when entering final judgment
or when the issue was raised after judgment was entered, we remand
for further proceedings.
This action was commenced in 2006. The claims asserted in the
complaint arose out of the sale of an interest in defendant Mount
Rose Ravioli & Macaroni Co., Inc., to third-party defendant Frank
LaGalia. The complaint was filed by Chef Gusto, LLC, an entity
which assumed Mount Rose's assets in the wake of the transaction,
and sought relief against Mount Rose as well as defendants Anthony
2 A-2036-15T4
Minuto, Sr.,1 Anthony Minuto, Jr., and Thomas Minuto, who were
Mount Rose shareholders.
On January 2, 2009, plaintiff Chef Gusto obtained partial
summary judgment on two counts of the complaint; the order also
quantified the amount owed. And, although the partial summary
judgment did not specifically identify the defendants found
liable, we assume that its intent was to impose liability on those
counts against all defendants, including the then-living Anthony
Minuto, Sr. The partial summary judgment did not fully adjudicate
the pleaded claims, and, to be clear about that order's
interlocutory nature, the motion judge expressly barred
execution.2
A bench trial occurred in March 2009; according to plaintiff's
reply brief, the trial ended on March 17, 2009. There appears to
be no dispute that defendant Anthony Minuto, Sr., died on March
21, 2009. Two weeks later, defense counsel wrote to the trial
judge to advise of Anthony Minuto, Sr.'s death. By way of his July
1
This defendant was identified in the complaint as Anthony Minuto.
We will refer to him as Anthony Minuto, Sr., to avoid confusing
him with defendant Anthony Minuto, Jr.
2
The order of partial summary judgment expressly precluded
"execution or levy to enforce . . . until further order of this
[c]ourt or the entry of final judgment."
3 A-2036-15T4
2, 2009 written opinion, the trial judge resolved the matter by
finding the following facts, among others:
Frank LaGalia was a long time customer of
Mount Rose and . . . [once freed from] a non-
compete agreement, [was] prompted . . . to get
back into the pasta business. . . . He
contacted his old friends, the Minuto's[,] to
make frozen tortellini for him which he would
sell under a private label "Chef Gusto."
However, the deal soon changed wherein it was
agreed that LaGalia would get half of Mount
Rose for $1,125,000. Six hundred thousand of
the purchase price would be used to buy out
the Santo Group,[3] the rest to pay off debts
of Mount Rose . . . . The parties later
agreed that LaGalia was to get 51% . . . [and]
[t]he two surviving Minuto brothers[4] retained
the other 49% of Chef Gusto, LLC, and were
given employment contracts with Chef Gusto,
LLC.
The judge found LaGalia's payment "was never agreed to be a loan."
The judge also determined that the business "did not go well,"
causing LaGalia to expend additional personal sums until he decided
to sell the assets of Chef Gusto, LLC, to another entity for
$1,400,000. That transaction didn't go well either, as that
purchaser went bankrupt before paying the entire purchase price.
3
Mount Rose, as the judge found, was owned by "two factions of
the Minuto family." Fifty percent was owned by the three Minutos
who were named as defendants here (the Minuto Group), and the
other fifty percent was owned by Santo Minuto, Denise Lombardo and
Thomas Lombardo (the Santo Group).
4
Presumably referring to Thomas Minuto and Anthony Minuto, Jr.
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The judge found no evidence of fraud, but he concluded that
"the Minuto's" were entitled to forty-nine percent of the proceeds
LaGalia obtained from the sale of Chef Gusto "less any actual
disbursements that LaGalia can demonstrate were actually expended
after March 3, 2004, for Chef Gusto's operation." Finding a need
for an accounting in this regard, the judge declared at the
conclusion of his opinion, that "[j]udgment after the accounting,
including that which was rendered in the partial summary judgment
previously granted by [the motion judge] shall be entered in
accordance with this opinion" (emphasis added).
The record on appeal reveals a considerable gap in time until
plaintiff informally requested entry of final judgment by way of
a letter to the judge dated September 8, 2015. This submission
advised that the accounting was provided in June 2011, more than
four years earlier. In responding, defense counsel pointed out
that Anthony Minuto, Sr., was deceased, and that "[n]either Chef
Gusto nor Frank LaGalia have ever moved in this [c]ourt to
substitute the Estate of Anthony Minuto, Sr., as a party
defendant." Defense counsel relied on Rule 4:34-1(a)5 in urging
that no judgment should be entered against Anthony Minuto, Sr.
5
Subsection (a) of Rule 4:34-1 states that "[i]n the event of the
death of one or more . . . of the defendants in an action in which
the right sought to be enforced survives . . . only against the
5 A-2036-15T4
The judge did not enter the proposed judgment submitted by
plaintiff's counsel. Instead, on December 2, 2015, he entered a
judgment prepared by the court that was silent about Anthony
Minuto, Sr., and his estate. The record on appeal contains no
explanation for the judge's unspoken decision to deny Chef Gusto's
claim for relief – even that previously adjudicated by the partial
summary judgment – against the deceased defendant or his estate.
On January 5, 2016, plaintiff's counsel wrote to the trial
judge. She pointed out that the judgment omitted the entry of a
judgment against Anthony Minuto, Sr., even though the January 2,
2009 partial summary judgment had undoubtedly granted relief
against him that would have been collectible but for the lack of
finality. Assuming this to be an oversight, counsel requested
entry of an amended judgment. Unlike Brutus during his eulogy of
Caesar, plaintiff did not pause for a reply6 but instead filed its
notice of appeal.
In this appeal, plaintiff advises that it "does not challenge
the substance of the judgment," only "the fact that the judgment
surviving defendants, the action does not abate. The death shall
be noted upon the record and the action shall proceed in favor of
or against the surviving parties." Subsection (b) deals with
cases in which the death does not extinguish the claim; in that
circumstances, a "motion for substitution may be made by the
successors or representatives of the deceased party or by any
party . . . ."
6
William Shakespeare, Julius Caesar act 3, scene 2.
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excludes, for no stated reason, [d]efendant Anthony Minuto, Sr."
We will not reach the merits but will instead remand for further
consideration of this question by the trial judge.
The appellate role is to review trial court's orders and
decisions, not to either resolve disputes in the first instance
or, for that matter, attempt to discern a reason for a judge's
decision in the absence of a stated rationale. In this latter
respect, it is well-established that the absence of any ruling or
a mere conclusory ruling does not meet the requirements of Rule
1:7-4(a). See, e.g., Curtis v. Finneran, 83 N.J. 563, 569-70
(1980); In re Farnkopf, 363 N.J. Super. 382, 390 (App. Div. 2003).7
Consequently, we remand to the trial court for further proceedings
regarding the dispute about if or how the claims against the late
Anthony Minuto, Sr., should be reflected in the final judgment.
The judge should consider all relevant circumstances, including
whether, or to what extent, Rule 4:34-1 governs the disposition
of that question and any impact generated by the failure of any
party to invoke the procedures set forth in Rule 4:34-1. In
addition, because the disposition of this remaining issue may be
7
This may all have been avoided had plaintiff more appropriately
filed a motion for the entry of final judgment or, upon receiving
the final judgment omitting Anthony Minuto, Sr., filed a motion
for its amendment.
7 A-2036-15T4
impacted by equitable considerations,8 the trial judge may find it
necessary to permit discovery to illuminate the most equitable
disposition of the issue at hand.
Remanded. We do not retain jurisdiction.
8
For example, the record on appeal reveals that the claims against
Anthony Minuto, Jr., were discharged in bankruptcy. It may be –
and we only surmise – that Anthony Minuto, Jr., may have inherited
from his late father. If so, Anthony Minuto, Jr., may not only
have avoided his own liability through bankruptcy but may also
have obtained, in whole or in part, the benefit of what Anthony
Minuto, Sr., would have been required to pay plaintiff but for his
untimely death. We see no reason why circumstances like these
might not be considered by the trial judge in determining whether
to enter a judgment against the Estate of Anthony Minuto, Sr.,
particularly when Anthony Minuto, Sr.'s liability to plaintiff was
partially determined and quantified during his lifetime.
8 A-2036-15T4