May 18, 2009
MICHAEL ANTOLINO, PLAINTIFF-APPELLANT/ CROSS-RESPONDENT,
JOHN QUINN, DEFENDANT-RESPONDENT/ CROSS-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-3361-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 23, 2009
Before Judges Lisa and Alvarez.
This is an appeal by plaintiff Michael Antolino from the dismissal of his complaint against defendant John Quinn.*fn1
Summary judgment was granted by the Law Division judge on December 18, Antolino notified Quinn and Speight that he wished to dissolve the LLC pursuant to the terms of the original agreement. Neither Quinn nor Speight responded. The restaurant has not been open since that time.
Antolino's complaint against Quinn, filed May 5, 2006, seeks damages sounding in contract. The complaint includes counts for breach of the implied covenant of good faith, breach of fiduciary duties, and breach of contract, demands an accounting, alleges fraud and misrepresentation, and demands rescission of the LLC agreement. Antolino contends that his damages include not only his initial investment of $150,000, but also punitive damages in the amount of $250,000, other unspecified damages, attorney fees and costs of suit. Quinn filed an answer and counterclaim, after which the parties engaged in approximately a year of discovery.
We affirm Judge Toskos' dismissal for the reasons stated in his thorough and comprehensive decision. We add only the following very abbreviated comments.
Antolino's brief raises the following points:
I. THE PLAINTIFF SHOULD HAVE BEEN PERMITTED TO PRESENT HIS CLAIM FOR RESCISSION TO A JURY:
A. THE LOWER COURT ERRED IN DISMISSING PLAINTIFF'S CLAIM OF BREACH OF THE IMPLIED CONVENIENT OF GOOD FAITH AND FAIR DEALING.
B. THE LOWER COURT ERRED WHEN IT GRANTED DEFENDANT'S SUMMARY JUDGMENT MOTION WITH RESPECT TO PLAINTIFF'S BREACH OF FIDUCIARY DUTY CLAIM.
C. THE PLAINTIFF'S BREACH OF CONTRACT CLAIM SHOULD HAVE SURVIVED DEFENDANT'S MOTION TO DISMISS.
D. THE PLAINTIFF SHOULD HAVE BEEN PERMITTED TO PRESENT HIS CLAIM FOR RESCISSION TO A JURY.
As the trial judge said, other than the purported affair and the devastating impact that it had upon Antolino, no facts are proffered which explain the business's failure or constitute a basis for any of the points made before Judge Toskos or on the appeal. An affair is simply not a circumstance that bears directly on a contract or contractual commitments.
Our review of the trial court's summary judgment decision is limited by the same standard applicable in the first instance. The question is, as always, whether "the evidence, when viewed in a light most favorable to the non-moving party, would permit a rational factfinder to resolve the dispute in the non-moving party's favor." Agurto v. Guhr, 381 N.J. Super. 519, 525 (App. Div. 2005) (citing Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995)). We do not decide issues of fact, but rather determine only whether such issues exist. R. 4:46-2(c).
Even when the evidence is viewed in the light most favorable to Antolino, it is clear that no rational factfinder could resolve the dispute in his favor. Under any characterization of the facts, he is not entitled to judgment as a matter of law. The purported affair does not give rise to any claims cognizable in contract law.
As the judge cogently stated, an alleged breach of the implied covenant of good faith and fair dealing must be assessed within the bounds of the marketplace - and no breach of the covenant can be founded upon Quinn's purported involvement with Antolino's wife. No breach of any fiduciary duty can be established either, as there is no basis for imposing such a duty upon one member of an LLC in relation to others who stand on equal footing. Quinn was a shareholder, as was Antolino. Furthermore, the claim, which sounded in tort, was filed beyond the two-year statute of limitations. See N.J.S.A. 2A:14-2. No rescission can be reasonably demanded by Antolino six years after the fact where there is no allegation of fraud at the time the agreement was made. Overall, the arguments made by plaintiff lack sufficient merit to warrant further discussion in a written opinion. R. 2:11-3(e)(1)(E).