Opinion
DOCKET NO. A-1730-13T2
12-24-2014
ROBERT J. TRIFFIN, Plaintiff-Appellant, v. NINI BUILDING CONTRACTOR, LLC, c/o Roberto Nini (New Jersey Registered Agent for Nini Building Contractor, LLC), Defendant-Respondent, and ROBERTO NINI and JOSE MARIO VANCIA, Defendants. ROBERT J. TRIFFIN, Plaintiff-Appellant, v. NINI BUILDING ENTERPRISES, INC. (Succ In Interest To NINI BUILDING CONTRACTOR, LLC), Defendant-Respondent, and ROBERTO NINI, YAHARA HENRUGUES and JOSE DANIEL, Defendants.
Robert J. Triffin, appellant, argued the cause pro se. Respondent has not filed a brief.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Nugent and Accurso. On appeal from Superior Court of New Jersey, Essex County, Law Division, Special Civil Part, Docket Nos. DC-26001-11 and DC-3620-13. Robert J. Triffin, appellant, argued the cause pro se. Respondent has not filed a brief. PER CURIAM
Plaintiff Robert J. Triffin appeals from an order of October 25, 2013, vacating a prior order that had allowed him to amend a caption to substitute Nini Enterprises, Inc. as defendant for the entity he sued, Nini Building Enterprises, Inc. Triffin complains that the judge did not state reasons for reversing course and refusing to allow him to substitute defendants. We affirm.
Although the essential facts are not complex, the procedure is complicated by the parties' incorporation in the trial court, by reference and otherwise, of a related matter pre-dating this suit by two years. The following is the chronology of this matter as we understand it.
Triffin sued "Nini Building Enterprises, Inc.; (Succ[essor] In Interest To) Nini Building Contractor, L.L.C." in the Special Civil Part on two dishonored checks issued by Nini Building Contractor, L.L.C. under docket number DC-3620-13.
Following entry of judgment by default, the court granted a motion by "Nini Enterprises, Inc., successor in interest to Nini Building Contractor, L.L.C." to vacate default judgment and allow the filing of an answer. Although Nini Enterprises, Inc. had not been named a defendant in DC-3620-13, it filed an answer in that action, claiming itself to be the "successor in interest to Nini Building Contractor, L.L.C." and responding as if it and not Nini Building Enterprises, Inc. had been sued.
Triffin subsequently moved on notice to counsel for Nini Enterprises, Inc. to amend the caption in DC-3620-13 to reflect the one employed by Nini Enterprises, Inc. in its recently filed answer. The motion was unopposed and granted by order of September 12, 2013.
A few weeks later, however, the same firm that had successfully moved on behalf of Nini Enterprises, Inc. to allow it to defend Triffin's action in DC-3620-13, moved on behalf of Nini Building Contractor, L.L.C. to vacate the September 12, 2013 order on the ground that "Nini Enterprises, Inc. is not a successor in interest to Nini Building Contractor, L.L.C., but is rather a separate entity." Although the motion purported to be supported by a certification signed by Roberto Nini, Nini's certification was without content - literally. The certification consists of only two paragraphs, the first stating, incomprehensively, that "Nini Building Contractor, L.L.C. make this Certification in opposition of Plaintiff's Motion for an Order Vacating the Order Changing Name of the Party Defendant," and the last stating that "Defendant certifies that the foregoing statements made are true. Defendant is aware that if any of the foregoing statements are willfully false, they are subject to punishment."
Triffin opposed that motion, arguing, among other things, that another judge had allowed him to make the same substitution of Nini Enterprises, Inc. for Nini Building Contractor, L.L.C. on an unopposed post-judgment motion in another Special Civil Part case under docket no. DC-26001-11. Triffin argued that because
Nini Enterprises, Inc. in the DC-26001-11 matter had a 'full and fair' opportunity to litigate Triffin's motion to designate it as the successor in interest to Nini Building Contractor, the issue of whether Nini Enterprises, Inc. is the successor to Nini Building Contractor, L.L.C. is undeniably now barred by operation of the judicial doctrine of res judicata.
The court heard oral argument on the motion, as well as on Triffin's motion for summary judgment in DC-3620-13. The transcript of that motion argument makes clear that Triffin argued that "underlying everything is basically a fraudulent transfer action." Triffin contended that although the court was faced with "a very serious potential fact question" of successor liability, Nini Enterprises, Inc. had not supported its motion with evidence to prove that it was not a successor and was barred by the res judicata effect of the post-judgment order in DC-26001-11 from asserting that it was not the successor to Nini Building Contractor, L.L.C. Counsel representing Nini Enterprises, Inc., Nini Building Contractor, L.L.C. and Roberto Nini argued that Nini Enterprises, Inc. was not a successor to Nini Building Contractor, L.L.C., and that Triffin was required to prove, and not merely assert, successor liability in order to bind Nini Enterprises, Inc. to the dishonored checks issued by Nini Building Contractor, L.L.C. Counsel further argued that Triffin had no right to the order "conforming the caption" after entry of judgment in DC-26001-11, that the order could not bind the court in DC-3620-13 and that both matters should be heard on the merits.
Documents in Triffin's appendix make clear that a default judgment was entered in DC-26001-11 on November 15, 2011. Triffin moved on July 26, 2013 to "conform the caption of plaintiff's judgment against defendant 'Nini Building Contractor, L.L.C.' to its admitted new name: 'Nini Enterprises, Inc.,'" based on the answer Nini Enterprises, Inc. filed in DC-3620-13. The motion went unopposed and was granted on August 23, 2013.
Following argument, the judge issued four orders on October 25, 2013, consolidating DC-26001-11 with DC-3620-13; vacating the order of September 12, 2013 amending the caption in DC-3620-13; denying Triffin's motion for summary judgment in DC-3620-13; and dismissing, by consent, Roberto Nini individually because of his discharge in bankruptcy. Triffin thereafter wrote to the court noting that the orders did not address Nini Enterprises, Inc.'s oral motion to vacate the August 23, 2013 post-judgment order in DC-26001-11 and inquiring as to whether the court planned to issue a statement of reasons for the order in DC-3620-13 vacating the order of September 12, 2013 allowing amendment of the caption. The judge responded promptly that after reviewing the papers and having heard oral argument, she concluded that she had erred in entering the September 12 order. The judge further stated that she accepted Triffin's argument that there was no basis to vacate the order in DC-26001-11 entered by another judge and that the orders of October 25 being self-explanatory, no findings of fact were necessary.
When DC-3620-13 was called for trial on October 30, 2013, neither Nini Building Contractor, L.L.C. nor Nini Building Enterprises, Inc. appeared, and default was entered. Triffin subsequently moved for entry of default judgment in the sum of $4809.38 against "Nini Building Contractor, L.L.C.; (succ[essor] in interest to) Nini Building Contractor, Inc."
Although the actual judgment is not included in the appendix, we note that Triffin's moving papers appear in error as he sued "Nini Building Enterprises, Inc.; (Succ[essor] In Interest To) Nini Building Contractor, L.L.C."
Although there is now apparently a final judgment in DC-3620-13, the only order Triffin appeals is the court's interlocutory order of October 25, 2013 vacating the September 12, 2013 order allowing him to substitute Nini Enterprises, Inc., as successor in interest to Nini Building Contractor, L.L.C., for the entity he sued, Nini Building Enterprises, Inc., as successor in interest to Nini Building Contractor, L.L.C.
Although Triffin complains that the judge did not state her reasons for reversing course on his application to allow substitution of the defendant, there is no requirement that a judge provide reasons for an interlocutory order such as the one at issue. Rule 1:7-4(a) requires findings only on motions decided by written orders appealable as of right, which this clearly was not. Although a statement would have provided more guidance to the parties, the judge's reasons are not difficult to discern.
Having reviewed the record as well as the transcript of the oral argument on the motion, it is clear to us that the judge properly rejected Triffin's claim of the res judicata effect of the unopposed post-judgment order in DC-26001-11. Triffin wished to rely on that order because it would allow him to avoid the obvious factual dispute as to whether Nini Enterprises, Inc. could be deemed a successor to Nini Building Contractor, L.L.C., the maker of the dishonored checks on which Triffin sued. While Triffin might have been entitled to rely on the answer filed in the action by Nini Enterprises, Inc., his decision to rely instead on the order he had procured in the other matter hopelessly muddied the waters on the motion. Given the state of the record, the judge acted well within her discretion in determining that the issue of successor liability needed to be heard on the merits.
Although we do not review that order as it has not been appealed, we can discern no sound basis for its entry on the papers submitted.
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We are aware that having convinced the court that the matter needed to be heard on the merits, defendant then failed to appear for trial. Nothing precluded Triffin under those circumstances from either moving for reconsideration at that point, or from presenting at a proof hearing the evidence on successor liability he would have presented at trial. The point to be borne in mind is that the dishonored checks were written by Nini Building Contractor, L.L.C. To the extent that entity transferred assets to other entities to avoid legitimate debts, Triffin has well-established remedies. See Flood v. Caro Corp., 272 N.J. Super. 398, 405 (App. Div. 1994) (discussing the range of remedies available to a defrauded creditor under the Uniform Fraudulent Transfer Act, N.J.S.A. 25:2-20 to -34). Amending a caption, however, cannot suffice for the proofs necessary to establish entitlement to those remedies.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION