EUGENE BERTA VS. NEW JERSEY STATE PAROLE BOARD(NEW JERSEY STATE PAROLE BOARD) ( 2017 )


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  •                      NOT FOR PUBLICATION WITHOUT THE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.
    4                           A-2036-15T4
    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.
    6                              A-2036-15T4
    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
    

Document Info

Docket Number: A-2306-15T1

Filed Date: 10/26/2017

Precedential Status: Non-Precedential

Modified Date: 4/18/2021