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Dimmerman v. First Union National Bank

June 12, 2008

ROBERT DIMMERMAN AND ROCHELLE DIMMERMAN, INDIVIDUALS, AND MAPLE SHADE MAZDA, PLAINTIFFS-APPELLANTS, AND AMERICAN CASUALTY COMPANY OF READING, PENNSYLVANIA, A CNA COMPANY, AS SUBROGEE OF MAPLE SHADE MAZDA, PLAINTIFF/INTERVENOR
v.
FIRST UNION NATIONAL BANK*FN1 , VINCENT J. FULGINITI, AND DEBORAH A. FULGINITI, DEFENDANTS-RESPONDENTS, AND CORE STATES NATIONAL BANK, DEFENDANT, AND MIRONOV, GOLDMAN, WORTZEL, SLOAN & PARZIALE, LLC, STUART RASKIN, AND THE LOOMIS COMPANY, DEFENDANTS/THIRD-PARTY PLAINTIFFS-RESPONDENTS,
v.
LEONARD J. ALESSI, JR., A.R.C. COMPANY, AND ALCO ROOFING COMPANY, THIRD-PARTY DEFENDANTS.



On appeal from the Superior Court of New Jersey, Law Division, Camden County, L-2077-01.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued April 28, 2008

Before Judges Lintner, Sabatino and Alvarez.

Plaintiffs, Maple Shade Mazda (Maple Shade), a corporation, and Robert and Rochelle Dimmerman, its principals and sole shareholders, sought damages from various defendants, arising out of the admitted embezzlement of both corporate and personal funds between January 1995 and April 1999, by defendant Vincent Fulginiti (Vincent), Maple Shade's controller. In addition to Vincent, plaintiffs' complaint sought damages from First Union National Bank (First Union), and Maple Shade's accounting firm, Mironov, Goldman, Wortzel, Sloan & Parziale, LLC and Stuart Raskin, (collectively, the Accountants), alleging liability for failure to discover forged checks signed by Vincent. In addition, the complaint named Maple Shade's insurance broker, The Loomis Company (Loomis), alleging that it failed to provide adequate insurance to cover Vincent's embezzlement. The complaint also sought to impose a constructive trust on Vincent's wife, Deborah.

American Casualty Company (American Casualty) was permitted to intervene as subrogee in the action and filed a complaint naming all the defendants, seeking recovery of the $200,000 policy limits it paid plaintiffs under its policy issued to Maple Shade insuring against employee infidelity. First Union, Loomis, and the Accountants filed answers denying liability and cross-claiming against one another, as well as Vincent and Deborah, for contribution and indemnification.

Vincent defaulted on plaintiffs' complaint. Defaults were also entered against Vincent on the Accountants' and Loomis's cross-claims. Eventually, summary judgment was entered dismissing plaintiffs' complaint against First Union, Loomis, and the Accountants. Partial summary judgment orders dated September 26, 2003, and January 23, 2004, resulted in the complete dismissal of plaintiffs' claims against First Union. Following oral argument on April 30, 2004, the judge entered summary judgment orders in favor of Loomis and the Accountants. Plaintiffs' motion for reconsideration was denied.

A bench trial was conducted on Deborah's liability. Testimony was also given by way of a proof hearing to determine the damages sustained by plaintiffs as a result of Vincent's forgeries. On April 25, 2005, the judge announced her decision from the bench, awarding plaintiffs $119,700 compensatory damages and $150,000 in punitive damages against Vincent. The judge also imposed a constructive trust of $9200 against Deborah.

On June 9, 2006, after hearing oral argument, the judge denied plaintiffs' motion to modify her findings to increase the amount of the award against Vincent to $973,423.60. At the same time, the judge granted American Casualty's cross-motion to have the judgment reflect its subrogation interest on the compensable damages award against Vincent. On June 28, 2006, the final judgment was entered against Vincent for $119,700 in compensable damages, representing $112,000 of embezzled funds by Vincent, and $150,000 in punitive damages. The $119,700 judgment also included a finding of joint and several liability against both Vincent and Deborah in the amount of $7700 for improvements to their home. Prejudgment interest in the amount of $42,247.11 was assessed against Vincent. The judgment imposed a constructive trust in the amount of $9200.78 against Deborah, representing $1500.78 for two months' principal and interest payments on the Fulginiti home, $6500 for kitchen improvements, and $1200 for a fence around the home, as well as $1441.81 in prejudgment interest. The judge also ordered Deborah to turn over the watch Vincent purchased for her from embezzled and commingled funds. The judgment included an award, in favor of American Casualty, of the compensable damages assessed against Vincent but not the punitive damages.*fn2 Plaintiffs appeal and we affirm.

On appeal, plaintiffs raise the following points:

I. THE TRIAL COURT ERRED IN GRANTING DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT.

II. THE TRIAL COURT ERRED IN GRANTING FIRST UNION'S MOTION FOR SUMMARY JUDGMENT

III. THE TRIAL COURT ERRED IN GRANTING [THE ACCOUNTANTS'] MOTION ...


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