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Bank of America, N.A. v. Genna

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


May 27, 2008

BANK OF AMERICA, N.A. (U.S.A) SUCCESSOR BY MERGER TO FLEET NATIONAL BANK, F/K/A SUMMIT BANK, PLAINTIFF-RESPONDENT,
v.
ANDREW A. GENNA, JR., INDIVIDUALLY, DEFENDANT-APPELLANT, AND ANDREW A. GENNA, JR., TRADING AS ANDREW GENNA WHOLESALE INC.; AND ANDREW GENNA WHOLESALE, INC., DEFENDANTS.

On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Docket No. L-656-05.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted May 19, 2008

Before Judges C.S. Fisher and Kestin.

Plaintiff Bank of America, N.A., brought this action against defendant Andrew A. Genna, Jr., individually and trading as Andrew Genna Wholesale, and defendant Andrew Genna Wholesale, Inc., alleging that defendants defaulted on a line of credit. After a brief non-jury trial, at which only plaintiff's representative testified, and after receiving the parties' post-trial written submissions, the trial judge entered a judgment in favor of plaintiff and against Andrew A. Genna, Jr., in his individual capacity, in the amount of $39,275.85.

In his written findings, the trial judge concluded that only the corporate defendant was the obligor on the line of credit with plaintiff. He also found that "it did not appear that [the individual defendant] signed personally" or otherwise guaranteed the corporation's obligation.

However, it was conceded that Genna had drawn against this line of credit after the corporation had closed its doors and ceased operating. From this undisputed fact, the trial judge drew an inference that the corporate status had also been disregarded before the corporation ceased operating, and held Genna liable for the full amount due plaintiff on the line of credit.

In his appeal, Genna reprises an argument he pursued in the trial court -- that any piercing of the corporate veil should be limited to the events that occurred after the corporation ceased functioning. The trial judge rejected this contention because he felt a more expansive inference was permitted by the circumstances. The judge also observed that defendants had failed to provide answers to plaintiff's discovery requests, which may have provided a further factual basis for plaintiff's contention that the corporate veil may have been disregarded by Genna in other ways; we discern from these comments in the judge's written decision that he had drawn a completely appropriate adverse inference because of defendants' failure to comply with their discovery obligations.

The standard we apply in reviewing the findings of fact of a judge sitting without a jury requires that we determine "'whether the findings made could reasonably have been reached on sufficient credible evidence present in the record,' considering 'the proofs as a whole,' with due regard to the opportunity of the one who heard the witnesses to judge of their credibility." Close v. Kordulak Bros., 44 N.J. 589, 599 (1965) (quoting State v. Johnson, 42 N.J. 146, 162 (1964)). Plaintiff's evidence was undisputed, and, although Genna did not testify, his counsel conceded at trial that he had drawn against the line of credit after the corporation had ceased operating. The credible evidence in the record fully supported the trial judge's conclusion that Genna had disregarded the corporate status. And we discern from the judge's findings that he concluded that "adherence to the fiction of separate corporate existence would perpetrate a fraud or injustice" in these circumstances. Verni v. Harry M. Stevens, Inc. of N.J., 387 N.J. Super. 160, 200 (App. Div. 2006), certif. denied, 189 N.J. 429 (2007). See also N.J. Dep't of Envtl. Prot. v. Ventron Corp., 94 N.J. 473, 500-01 (1983). We have no cause to second-guess the judge in this regard, nor do we question the judge's appropriate decision to draw inferences against Genna due both to his drawing from the line of credit after the corporation had ceased functioning and his failure to comply with his discovery obligations in this matter.

We find insufficient merit in defendants' remaining arguments to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

Affirmed.

20080527

© 1992-2008 VersusLaw Inc.



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