DENNIS AIELLO VS. ZBIGNIEW ZAWISTOWSKI (C-000128-15, MORRIS COUNTY AND STATEWIDE) ( 2020 )

NOT FOR PUBLICATION WITHOUT THE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-5040-18T1
DENNIS AIELLO,
Plaintiff-Appellant,
v.
ZBIGNIEW ZAWISTOWSKI and
TEAM PRECISION AUTO, LLC
d/b/a PRECISION CHRYSLER
JEEP DODGE RAM, LLC,
Defendants-Respondents.
and
BRUCE WAINWRIGHT and
JUSTIN WAINWRIGHT,
Defendants.
_____________________________
Argued October 1, 2020 – Decided October 22, 2020
Before Judges Sumners, Geiger and Mitterhoff.
On appeal from the Superior Court of New Jersey,
Chancery Division, Morris County, Docket No. C-
000128-15.
Batya G. Wernick, argued the cause for appellant.
Steven C. Schechter argued the cause for respondents.
PER CURIAM
Plaintiff Dennis Aiello's claim seeking an ownership interest in an
automobile dealership returns to us after we reversed the first Chancery judge's
order granting summary judgment dismissal of Aiello's complaint. Aiello v.
Zawistowski, No. A-1244-16T2 (App. Div. July 11, 2018). Following our
remand, a different Chancery judge sitting as the fact-finder granted defendants
Zbigniew Zawistowski and Team Precision Auto, LLC 's motion for directed
verdict dismissing Aiello's suit. We affirm because we conclude the judge: (1)
did not abuse her discretion in evidentiary rulings precluding the admission of
audio recordings transcripts unilaterally redacted by Aiello and redacting the
deposition testimony of an unavailable witness arising from unrelated litigation;
(2) properly applied Rule 4:37-2(b) in granting a directed verdict in favor of
defendants; and (3) did not err in finding Aiello was not entitled to an equitable
remedy.
I.
To provide context to our decision, we briefly discuss the background of
this litigation. In 2015, Aiello filed suit asserting breach of a partnership
A-5040-18T1
2
agreement and sought: monetary damages; a declaratory judgment that he owned
fifty percent of Team Precision Auto and the Butler Chrysler Jeep Dodge
dealership (the dealership); and an accounting of all of the dealership's earnings,
profits and assets. Aiello alleged his fifty percent interest in the dealership
owned and operated by Bruce Wainwright and Justin Wainwright 1 was based
upon an oral agreement he allegedly made with Zawistowski and Bruce2 in April
2011. Three months later, the dealership was acquired by Team Precision Auto,
owned by Zawistowski, who renamed it Precision Chrysler Jeep Dodge Ram –
with no mention of Aiello in the final ownership documents.
Three years before filing suit, Aiello filed a personal petition for Chapter
Seven bankruptcy without indicating he had an interest in the dealership or
claims against defendants seeking to secure his interest in the dealership.
Shortly thereafter he filed a personal property amendment to his bankruptcy
petition to include a "breach of contract suit against former business partner,"
for other contingent and unliquidated claims. However, this apparently
1
Summary judgment granted in favor of the Wainwrights was not appealed.
2
To avoid confusion with Justin Wainwright, we refer to Bruce by his first
name; we mean no disrespect.
A-5040-18T1
3
references a dispute against individuals other than Zawistowski and the
Wainwrights.
After an initial Chancery judge issued an order granting defendants'
summary judgment motion to dismiss Aiello's suit, we reversed and remanded
for trial because the judge erred in failing to view the evidence in the light most
favorable to Aiello, the non-moving party, as required by Rule 4:46-2(c) in
deciding the motion. In doing so, we noted defendants' defenses of laches,
judicial estoppel related to Aiello's failure to identify his interest in his
bankruptcy petition, and that Aiello lacked standing to seek an ownership
interest in the dealership, were not a basis for the judge's grant of summary
judgment. Consequently, we did not foreclose defendants from raising those
defenses, or others, for that matter, set forth in their pleadings. In addition, we
denied defendants' cross-appeal challenging a second Chancery judge's order
denying Team Precision Auto's motion for sanctions under N.J.S.A. 2A:15-59.1
and Rule 1:4-8, for filing a frivolous action.
At the remanded trial, a new Chancery judge granted defendants' motion
for directed verdict following the conclusion of Aiello's presentation of
evidence. This appeal ensued.
II.
A-5040-18T1
4
We address the issues raised in this appeal in the order in which they
transpired following remand.
Aiello challenges two of the Chancery judge's (hereinafter "trial judge" or
"judge") evidentiary rulings. The judge granted defendants' motion in limine to
exclude admission of transcripts memorializing portions of recordings Aiello
proffered because he failed to provide the recordings in their entirety to
defendants as previously ordered and unilaterally edited them.3 In case
management orders of April 14, 2016 and May 4, 2016, Aiello was directed to
produce transcripts of all recordings, and advised that failure to do so would
result in the recordings being inadmissible. The judge also ordered redaction of
the transcript of Bruce's deposition testimony in connection with the
Wainwrights' lawsuit against Zawistowski and a recording of Bruce's voice
message to Aiello. Bruce was unavailable to testify at trial.
It is well-settled that "[w]hen a trial court admits or excludes evidence, its
determination is 'entitled to deference absent a showing of an abuse of
discretion, i.e., [that] there has been a clear error of judgment.'" Griffin v. City
3
Prior to trial, Aiello unsuccessfully moved to re-open discovery to allow him
to submit allegedly new audio recordings he found while his appeal was
pending, and to allow for depositions limited to the newly discovered audio
recordings. This ruling has not been appealed.
A-5040-18T1
5
of E. Orange, 225 N.J. 400, 413 (2016) (alteration in original) (quoting State v.
Brown, 170 N.J. 138, 147 (2001)). Appellate courts "will reverse an evidentiary
ruling only if it 'was so wide [of] the mark that a manifest denial of just ice
resulted.'" Ibid. (quoting Green v. N.J. Mfrs. Ins. Co., 160 N.J. 480, 492 (1999)).
We discern no abuse of discretion in the judge's rulings.
A. Recordings
Before and after our remand, Aiello was directed to make the recordings
accessible to defendants by providing them the original cassette recordings.
Claiming he feared losing the cassettes if they were turned over to opposing
counsel, Aiello instead provided edited, or, as the judge phrased it, "cherry-
picked" versions of the recordings he deemed most relevant. Aiello describes
the recordings as "portions of telephone [conversations] between him and
[d]efendants" and from his meetings with defendants. 4 Aiello created the
recordings, transcribed them, and produced them before the discovery end date.
He admits the recordings were at times hard or impossible to understand but
argues the discernable portions are admissible.
Aiello contends the recordings were probative of certain events he alleged
occurred but Zawistowski denied. Specifically, he notes the recordings
4
Aiello's reference to defendants includes Zawistowski and the Wainwrights.
A-5040-18T1
6
supported his claims that he "met with [d]efendants, [and] was engaged with
. . . Zawistowski for a long period of time . . . [wherein he] engag[ed] in
numerous conversations with . . . [Zawistowski.]" Aiello asserts the recordings
supported his contention that defendants lacked credibility. He also suggests
the recordings proved the terms of the partnership agreement, thereby explaining
why he took no action to pursue a written agreement with Zawistowski after
Zawistowski "kept putting him off."
To support his position, Aiello relies upon N.J.R.E. 402, which provides
"[a]ll relevant evidence is admissible" unless excluded by evidential rule or
statute, and N.J.R.E. 403, which provides "relevant evidence may be excluded
if its probative value is substantially outweighed by the risk of: (a) [u]ndue
prejudice, confusion of issues, or misleading the jury . . . ." He also cites State
v. Nantambu, 221 N.J. 390, 408 (2015) (quotations omitted), to establish the
intelligible portions of his recording should have been admitted because the
Court held there that "[w]here evidence is admissible for one purpose but not
for another, the trial court upon request[ ] shall restrict the evidence to its proper
scope and shall instruct the jury accordingly." He further points to State v.
Zicarelli, 122 N.J. Super. 225, 239-40 (App. Div. 1973), where this court
admitted the recording at issue despite its inaudible portions, because it proved
A-5040-18T1
7
the intimacy between the parties and was probative of the conspiracy to suppress
prosecution of a gambling enterprise.
We find instructive the trial judge's reliance on State v. Farthing, where
this court held that, consistent with the spirit of N.J.R.E. 106, the evidentiary
doctrines of testimonial completeness "operate to prevent a [party] from . . .
selectively introducing pieces of . . . evidence for the [party's] own advantage."
331 N.J. Super. 58, 81 (App. Div. 2000) (quoting State v. James, 144 N.J. 538,
554 (1996)). Additionally, the judge properly relied upon Nantambu, 221 N.J.
at 410-11, where our Supreme Court ruled:
[A] trial court must employ a two-part analysis when
considering the admissibility of a recording containing
partial omissions. The [C]ourt must first determine if
the omission is unduly prejudicial; that is, does the
omission adversely impact the trustworthiness of the
recording. That is an objective analysis that should
focus on the evidentiary purposes for which the
recording is being offered. If the trial court in its
discretion finds the omission unduly prejudicial, it must
then consider whether the omission renders all or only
some of the recording trustworthy, and suppress only
the portion of the recording that is rendered
untrustworthy.
Here, the judge found the recording was not trustworthy because it was
"incomplete . . . [and t]he portions of the recording provided were selected by
the plaintiff according to what he deemed relevant and the full, original
A-5040-18T1
8
recordings have never [been] produced for the defendants’ review." Due to
Aiello's failure to produce the complete recordings, the judge properly applied
her discretion in ordering redaction.
B. Deposition Transcript
Because Bruce was unavailable to testify at trial, the transcript of his
deposition from an unrelated action against Zawistowski involving Team
Precision Auto was admitted into evidence subject to the judge's redactions.
During the deposition, a voice message, allegedly from Bruce to Aiello, was
played. Bruce confirmed it was his voice leaving the message. As such, the
voice message and Bruce's confirmation were transcribed in the deposition.
Aiello contends the message shows that he and Bruce were "in discussions . . .
about the [partnership] agreement at issue . . . and that [he] was more involved
than the [d]efendants 5 were claiming. . . . [and] that [d]efendants were not being
truthful." The judge also redacted portions of Bruce's deposition testimony
wherein he stated: (1) "Zawistowski's penchant for making promises to others
and then breaking those promises[;]" (2) he was "suing [Zawistowski] for breach
of promises he had made to them with respect to Team Precision Auto[;]" and
5
It appears this reference is to Zawistowski and Bruce.
A-5040-18T1
9
(3) Zawistowski's history of "ma[king] promises to employees at Team Precision
Auto and . . . not keep[ing] th[em]."
We discern no abuse of discretion in the judge's decision to bar admission
of the voice message and to redact portions of Bruce's deposition testimony.
Regarding the voice message, we agree with defendants' assertion that
inadmissible hearsay statements were made, and the original complete
recordings were never produced as ordered. There is no merit to Aiello's
contention that the evidence was probative, not outweighed by undue prejudice,
and established Zawistowski's lack of credibility.
We reach the same conclusion regarding redaction of Bruce's deposition
testimony. Admission of deposition testimony is subject to all other rules of
evidence. R. 4:16-2. The judge determined Bruce's comments about
Zawistowski arose in a different litigation and were based on Bruce's belief that
Zawistowski treated "many people in the same manner." As to the latter, the
judge specifically found the deposition testimony provided no names or specific
instances to prove habit, as Aiello contended and still maintains in this appeal.
Aiello's reliance upon N.J.R.E. 401, 402, and 406 to admit Bruce's
testimony as evidence of Zawistowski's habit to renege on promises and mistreat
people is misplaced. Except in certain circumstances, relevant evidence, which
A-5040-18T1
10
is "evidence having a tendency in reason to prove or disprove any fact of
consequence to the determination of the action[,]" is admissible. N.J.R.E. 401,
402. See also State v. Castagna, 400 N.J. Super. 164, 174 (App. Div. 2008).
The evidence must be probative of a fact that is "really in issue in the case[,]"
as determined by reference to the applicable substantive law. State v. Buckley,
216 N.J. 249, 261 (2013) (quoting State v. Hutchins, 241 N.J. Super. 353, 359
(App. Div. 1990)).
"While evidence of a character trait generally is inadmissible, evidence
pertaining to a 'habit' is permitted [under N.J.R.E. 406]." Showalter v. Barilari,
Inc., 312 N.J. Super. 494, 512 (App. Div. 1998). Under the rule, "[e]vidence,
whether corroborated or not, of habit or routine practice is admissible to prove
that on a specific occasion a person . . . acted in conformity with the habit or
routine practice." N.J.R.E. 406(a). "Evidence of specific instances of conduct
is admissible to prove habit or routine practice if evidence of a sufficient number
of such instances is offered to support a finding of such habit or routine
practice." N.J.R.E. 406(b).
The purpose of habit evidence is to show "the person's regular practice of
responding to a particular kind of situation with a specific type of conduct."
State v. Kately, 270 N.J. Super. 356, 362 (App. Div. 1994) (citation omitted).
A-5040-18T1
11
Hence, "[b]efore a court may admit evidence of habit, the offering party must
establish the degree of specificity and frequency of uniform response that
ensures more than a mere 'tendency' to act in a given manner, but rather, conduct
that is 'semi-automatic' in nature." Sharpe v. Bestop, Inc., 158 N.J. 329, 331,
(1999) (quoting Simplex, Inc. v. Diversified Energy Systems, Inc., 847 F.2d
1290, 1293 (7th Cir. 1988)). To that end, "two factors are considered controlling
as a rule: adequacy of sampling and uniformity of response." Id. at 332 (citation
omitted). See Jones v. S. Pac. R.R., 962 F.2d 447, 449 (5th Cir. 1992) (holding
that nine diverse safety violations do not show "habit" of negligence).
Here, Bruce's testimony is not probative of whether Aiello reached an
agreement with Zawistowski to form an automobile dealership partnership
because the testimony does not relate to Aiello's dealings with Zawistowski.
Moreover, as the judge found, Bruce's testimony lacks sufficient specificity to
support the habit evidence Aiello seeks to admit. There is no specific context
to the accusations against Zawistowski, and the individuals who supposedly
made the comments are not identified in order to allow Zawistowski to verify
their comments.
The applicability of N.J.R.E. 406 is of no consequence, however, as the
judge properly excluded the evidence under N.J.R.E. 401 and 402. See Griffin,
A-5040-18T1
12
225 N.J. at 420 (demonstrating that while certain evidence may "not [be] subject
to exclusion under" other evidentiary "rule[s], it nonetheless [can] be barred
pursuant to N.J.R.E. 403"). Likewise, the proffered evidence was excludible
under N.J.R.E. 404(b), barring introduction of "[e]vidence of other . . . wrongs,
or acts . . . to prove a person's disposition in order to show that on a particular
occasion the person acted in accordance [therewith,]" which, in this case,
appears to be Aiello's stated purpose. See Harris v. Peridot Chem. (N.J.), Inc.,
313 N.J. Super. 257, 276-83 (App. Div. 1998) (acknowledging the application
of N.J.R.E. 404(b)'s prohibition in civil cases). In sum, the redacted testimony
offered by Aiello was inadmissible hearsay by Bruce that defendant has lied to
other people and was properly excluded by the judge.
Lastly, Aiello asserts Bruce's redacted testimony was admissible under
N.J.R.E. 607 as "extrinsic evidence relevant to the issue of credibility," and
under N.J.R.E. 608 as an attack on Zawistowski's credibility as a witness by
showing "evidence in the form of opinion or reputation . . . relate[d] only to the
witness' character for truthfulness or untruthfulness."
Pursuant to N.J.R.E. 607, "[f]or the purpose of attacking or supporting the
credibility of a witness, any party . . . may examine the witness and introduce
extrinsic evidence relevant to the issue of credibility . . . ." "Although extrinsic
A-5040-18T1
13
evidence may be admitted to impeach a witness . . . its probative value as
impeachment evidence must be assessed independently of its potential value as
substantive evidence." Green v. N.J. Mfrs. Ins. Co., 160 N.J. 480, 494 (1999).
As indicated above, Bruce's redacted testimony had no relevant or probative
value in establishing the existence of a partnership agreement between Aiello
and Zawistowski; thus, it is not admissible under N.J.R.E. 607.
Pursuant to N.J.R.E. 608(a), a party may attack a witness's credibility with
"evidence in the form of opinion or reputation" relating to the witness's
propensity for truthfulness or untruthfulness. However, evidence in a civil trial
of "specific instances of conduct" involving untruthfulness, other than evidence
of a conviction, is inadmissible to impeach a witness's credibility. N.J.R.E.
608(c); N.J.R.E. 609; see also Delgaudio v. Rodriguera, 280 N.J. Super. 135,
142-44 (App. Div. 1995) (stating that a Board of Medical Examiners' opinion
that a witness had a "propensity . . . to play somewhat fast and loose with the
truth" was admissible under N.J.R.E. 608, although evidence of the underlying
conduct was not).
Bruce's redacted testimony alleging Zawistowski was untruthful was
made in the context of his civil suit against Zawistowski. The testimony was
not admissible under N.J.R.E. 608(a) because it included specific instances of
A-5040-18T1
14
conduct: Zawistowski's breach of promises to him and to employees of Team
Precision Auto.
III.
The main thrust of Aiello's appeal is his contention that the trial judge
erred in granting a direct verdict in favor of defendants because in determining
he did not have an oral agreement forming an automobile dealer partnership
agreement with Zawistowski, the judge failed to draw all factual inferences in
his favor and improperly required him to prove his claim by clear and convincing
evidence instead of by preponderance of the evidence. We are unpersuaded.
Rule 4:37-2(b) permits the court to grant a motion for involuntary
dismissal of any action, or part thereof, at the end of the plaintiff's case on "the
ground that upon the facts and upon the law[,] the plaintiff has shown no right
to relief." "Whether the action is tried with or without a jury, such motion shall
be denied if the evidence, together with the legitimate inferences therefrom,
could sustain a judgment in plaintiff's favor." Ibid. A dismissal is appropriate
when "no rational jury could conclude from the evidence that an essential
element of the plaintiff's case is present." Pressler & Verniero, Current N.J.
Court Rules, cmt. 2.1 on R. 4:37-2(b) (2021). Stated another way, a directed
verdict is proper "if the evidence and uncontradicted testimony is 'so plain and
A-5040-18T1
15
complete that disbelief of the story could not reasonably arise in the rational
process of an ordinarily intelligent mind . . . .'" Frugis v. Bracigliano, 177 N.J.
250, 270 (2003) (quoting Ferdinand v. Agric. Ins. Co., 22 N.J. 482, 494 (1956)).
Applying these principles, we agree with the trial judge that Aiello, even
affording him the benefit of legitimate inference of his evidence, failed to prove
he reached an oral agreement with Zawistowski forming an automobile dealer
partnership agreement. It is well established that "[a] contract arises from offer
and acceptance, and must be sufficiently definite 'that the performance to be
rendered by each party can be ascertained with reasonable certainty.'" Weichert
Co. Realtors v. Ryan, 128 N.J. 427, 435 (1992) (quoting West Caldwell v.
Caldwell, 26 N.J. 9, 24-25 (1958)). "As a general principle of contract law,
there must be a meeting of the minds for an agreement to exist before
enforcement is considered." Kernahan v. Home Warranty Adm'r of Fla., Inc.,
236 N.J. 301, 319 (2019) (citing Johnson & Johnson v. Charmley Drug Co., 11
N.J. 526, 538 (1953)).
In addition, the parties must agree "to the essential terms" of the
agreement. Cumberland Farms, Inc. v. N.J. Dep't of Envtl. Prot., 447 N.J. Super.
423, 438-39 (App. Div. 2016) (quoting Mosley v. Femina Fashions Inc., 356
N.J. Super. 118, 126 (App. Div. 2002)). "Where the parties do not agree to one
A-5040-18T1
16
or more essential terms, however, courts generally hold that the agreement is
unenforceable." Weichert, 128 N.J. at 435. This is so because "the terms of a
contract must be definite and certain so that a court may order with precision
what the parties must do." Graziano v. Grant, 326 N.J. Super. 328, 339 (App.
Div. 1999) (citing Barry M. Dechtman, Inc. v. Sidpaul Corp., 89 N.J. 547, 552
(1982)). An enforceable contract is only created where the parties agree on the
essential terms and agree to be bound by those terms. Weichert, 128 N.J. at 435.
And to establish the existence of a contract, our Supreme Court held seventy
years ago there must be proof by clear and convincing evidence. Young v.
Sabol, 4 N.J. 309, 312 (1950).
Based upon our review of the record, we discern no reason to upset the
directed verdict to defendants given the lack of proofs Aiello presented to
establish he had an enforceable oral agreement forming an automobile
dealership partnership with Zawistowski. As highlighted by defendants:
• Aiello admitted he did not meet Zawistowski until 2011 despite
alleging in his complaint that there was a partnership agreement in
2010;
A-5040-18T1
17
• Aiello testified that when he filed a petition for bankruptcy in
December 2012, he stated he did not believe he had any interest in
the dealership;
• Aiello's deceased long-time accountant Arnold Stein testified at
deposition that after attending a meeting with Zawistowski and
Aiello to discuss a possible automobile dealership partnership, he
did not believe a partnership agreement had been finalized, nor was
he made aware that an agreement was reached;
• Aiello admitted there were never any discussions between him,
Zawistowski, and the Wainwrights regarding the percentage of
ownership or profits or moving forward with the Wainwrights'
continued involvement in the dealership;
• Aiello at times testified he entered into "an enforceable oral
contract" with Zawistowski at their first dinner meeting in May
2011 but there are separate agreements;
• Aiello gave inconsistent testimony about three meetings with his
alleged partners and what occurred at them, including stating at
different times that an agreement was not reached at the meetings;
A-5040-18T1
18
• Aiello testified that several important topics were not discussed
with him, such as the amount of money Zawistowski would have to
invest, ownership of profits each partner would receive (sometimes
addressed by him as 50% or 45% of the profits), or what entity
would be formed; and
• Aiello testified that he did not know what position Bruce would
have at the dealership.
In addition, we join the judge in concluding Aiello's alleged partnership
terms – there was no termination date; neither party could individually end the
partnership; and the partnership was to last in perpetuity – are not what a person
of ordinarily intelligent mind would enter into. Aiello's contention the judge
should have drawn inferences in his favor is simply without merit. There was
no definitive evidence beyond Aiello's unsubstantiated claims.
There is likewise no merit to Aiello's contention the trial judge erred in
granting a directed verdict by relying on defendants' defenses of unjust result,
Aiello's failure to include his partnership claim in his initial bankruptcy fil ing,
Aiello not being a licensed car dealer, waiver, laches, estoppel, and the statute
of frauds. Neither the judge, nor we, find those defenses relevant to the
appropriate dismissal of Aiello's complaint.
A-5040-18T1
19
Our remand was based solely on the initial Chancery judge's failure on
summary judgment to view Aiello's claims in the light most favorable to Aiello.
That is not the standard when considering a motion for directed verdict. We are
convinced that legitimate inferences of Aiello's evidence, the standard
applicable in consideration of a directed verdict motion, does not support his
claim that there was a meeting of the minds that he was a partner in the
dealership.
Applying the clear and convincing standard of evidence to establish the
existence of an oral contract, the judge correctly reasoned defendants were
entitled to a directed verdict. Moreover, the trial judge acknowledged she would
have made the same finding under the preponderance of the evidence standard.
She stated:
Here simply, there is simply not enough even by a
preponderance of the evidence to establish that there
was ever a meeting of the minds of the terms that Mr.
Aiello has, has . . . testified to. And even though . . . I
find him earnest, I find . . . he is simply mistaken in his
belief that the two parties entered into anything that
could resemble an agreement and be enforceable.
Consequently, we reject Aiello's argument the wrong standard of proof was
applied in dismissing his claim that he had an oral partnership agreement.
IV.
A-5040-18T1
20
Finally, Aiello's contention the trial judge, siting as a judge of equity,
should have provided him some form of equitable relief for finding Zawistowski
an automobile dealership is without sufficient merit to warrant extensive
discussion in a written opinion. R. 2:11-3(e)(1)(E).
Aiello conflates the judge's finding that he located an automobile
dealership for Zawistowski with evidence he and Zawistowski reached an oral
agreement that went unfulfilled. As mentioned above, the judge properly found
Aiello failed to prove he had an oral agreement to form an automobile dealership
partnership with Zawistowski. The judge also found that Aiello failed to
establish he suffered any damages, and that his complaint did not demand
equitable relief. Thus, the judge determined:
But certainly there was no offer, there was no
acceptance, there was no testimony regarding any sort
of conversation, much less an offer and acceptance, and
there certainly isn't any consideration for that promise.
....
There was some performance in this case. Mr. Aiello
did, in fact, introduce Mr. Zawistowski to the
Wainwrights, [who] eventually formed a partnership.
However, there is no equitable [relief] claimed in the
complaint at all. . . . There was no claim for unjust
enrichment, there is no claim for detrimental reliance,
there is no claim for promissory estoppel, and
complaints have to give the parties at least a reasonable
understanding of what's being pursued.
A-5040-18T1
21
Here, none of that was addressed. And although I do
find that there was some performance that may have
entitled Mr. Aiello to some sort of payment, there
certainly wasn't the elements, those elements of unjust
enrichment, detrimental reliance, those weren't met.
What we have is Mr. Aiello asked 15 to 20 people about
car dealerships, even though they were a dime a dozen.
He asked at the used car auction. That's where his
contacts were. That was his expertise, the used car
auction. Despite that, the recommendation came from
his son, . . . Justin Aiello, who said why don't you
introduce . . . Mr. Zawistowski to the Wainwrights?
. . . So, it wasn't as a result of his contacts, and I don't
find that he expended money such that he's proved
damages in reliance on a promise of a partnership in the
future.
I also don't see that he's established any damages.
Damages is necessary to prove a breach of a contract
claim.
The judge's reasoning is sound; therefore, we discern no reason to conclude
Aiello is entitled to any equitable relief based on his complaint as well as his
lack of proofs.
To the extent we have not addressed any of Aiello's remaining arguments,
it is because we conclude they are without sufficient merit to warrant discussion
in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
A-5040-18T1
22