On appeal from the Superior Court of New Jersey, Law Division, Camden County, Docket No. L-2215-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges R. B. Coleman, Lihotz, and J. N. Harris.
In these back-to-back appeals, which we have now consolidated for purposes of this opinion, we review an uncommon scenario that plaintiff Sun National Bank (Sun) claims implicated New Jersey's version of the Uniform Fraudulent Transfer Act (NJUFTA), N.J.S.A. 25:2-20 to -34.*fn1 The Law Division dismissed all of Sun's statutory claims on summary judgment, denied Sun the right to amend its complaint to add a common law unjust enrichment claim, and also denied frivolous litigation remedies to two of the successful moving parties, defendants Joseph J.J. Visci (Visci) and Visci & Associates, P.C. (the Visci law firm). We reverse the dismissal of the complaint and the denial of the request to amend the complaint; we remand for further proceedings in the Law Division; and we vacate, as moot, the denial of frivolous litigation remedies.
The factual backgrounds of both appeals, which we glean from the summary judgment record developed through the pleadings and discovery, are identical. See Kieffer v. Best Buy, 205 N.J. 213, 217 n.1 (2011). Because these appeals initially arise on defendants' motions for summary judgment, we generously consider the facts in the light most favorable to plaintiff Sun, and we turn around the generosity when we consider Sun's cross-motion for summary judgment. See Henry v. N.J. Dep't of Human Servs., 204 N.J. 320, 325 (2010); R. 4:46-2.
Defendants Frank Alario and Charles Alario are brothers, now estranged. Defendant Nancy Alario is married to Frank; defendant Janet Alario is married to Charles.*fn2 Defendant Visci is a licensed New Jersey attorney and owner of the Visci law firm. Defendant Vendor Capital Group, a division of Telerent Leasing Corporation (Vendor Capital) -- since dismissed from this action and not the subject of this appeal -- is engaged in leasing restaurant equipment. Non-party JTA Associates, LLC (JTA) is a limited liability company, which entered into a loan facility with Sun in the aggregate amount of $800,000. Although the origins of JTA are obscure,*fn3 Janet signed the loan facility's promissory note, loan and security agreement, two modification notes, and security agreement as the "Sole Member" of JTA.
According to Frank, a practicing physician, he first entered into a business venture with Charles in 1992. Frank invested approximately $200,000 in a number of Nathan's Hotdogs restaurant franchises run by Charles. Frank described his aggregate investment as "all done on a handshake and trust because of brothers." At the time of Frank's deposition in this case, he had not received any return on these Nathan's Hotdogs investments, and he believed that the franchises had filed for bankruptcy.
Frank additionally invested approximately $100,000 with Charles for the establishment and operation of a Golden Corral restaurant franchise in Audubon, which later expanded to another location in Bensalem, Pennsylvania. Charles then asked Frank to invest in the construction of a third Golden Corral restaurant in Howell.
Frank signed a bank loan guaranty for the acquisition of land to build the restaurant, but he did not make a monetary investment in the project. Frank also claimed that based upon Charles's recommendation, he had invested approximately $200,000 in a candy company called "Ricky's," which by the time of the deposition in this case was defunct.
In May 2007, a Master Lease Agreement (together with several ancillary agreements) was executed between non-party Buffets of Pennsylvania, LLC d/b/a/ Golden Corral, Bensalem, Pennsylvania (Buffets) (as lessee) and Vendor Capital (as lessor) for the lease of restaurant equipment intended for the Golden Corral restaurant in Bensalem (the Bensalem Golden Corral equipment lease). According to the several instruments in the record, the individual representative of Buffets was Frank. His signature -- acknowledged by a New Jersey notary public -- appears on numerous documents above the words "Frank Alario, Managing Member." Frank also allegedly co-signed the documents as a co-lessee. Charles, Janet, Nancy, and eleven non-party business entities also signed as co-lessees.*fn4
Frank and Nancy have argued that someone -- presumably Charles -- forged their signatures on all of the documents associated with the Bensalem Golden Corral equipment lease. Other than the assertion of a forgery in their appellate brief, our review of the record reveals scant competent evidentiary material to support their claim. Neither Frank nor Nancy submitted certifications in the Law Division, and in their respective depositions they did not utter the word forgery. The sole evidential support for their forgery allegation is found in Visci's summary judgment certification, which conclusorily stated: "[a]fter review of the Vendor [Capital] financing documents and further investigation, it was confirmed that Charles had forged Frank's name and Nancy's name to the said Vendor Capital financing documents."
Things did not go smoothly with the Bensalem Golden Corral equipment lease for reasons that are not relevant to this appeal. According to Visci's certification, in December 2007, Frank received a letter from Vendor Capital demanding payment of a loan it had made "to a business venture in which [Frank] had invested with Charles," an apparent reference to the Bensalem Golden Corral equipment lease. Visci stated that Frank was "shocked" by the letter because Frank claimed he had "never undertaken a loan from or heard of Vendor [Capital]." According to Frank's deposition, after he was served with Vendor Capital's civil action complaint, he confronted Charles:
Q. What was your conversation with your brother after having received [the Vendor Capital complaint]?
A. I said, "I got sued by this company. Who's this company?"
A. He says, "He's a vendor that I'm taking care of. Don't worry about it. Go back to your business."
Q. Did you respond to that?
A. I said, "Okay, thanks," and I went back to Mr. Visci.
Vendor Capital commenced the civil action relating to the Bensalem Golden Corral equipment lease in December 2007. It sued Buffets and the four individual Alarios as defendants, along with the eleven business entities designated as colessees. A seventeenth defendant was non-party Bob Finkelstein & Associates, Inc., the putative supplier of restaurant equipment. Vendor Capital sought in excess of $400,000 in damages, based primarily upon a breach of contract theory. The Visci law firm agreed to represent Frank and Nancy in the action. Neither Charles nor any of the other defendants was represented by the Visci law firm.
According to Visci, Charles, "[o]n his own initiative," offered "to settle the matter between him and Frank" by paying Vendor Capital the amount due, $417,000, along with "Frank's attorneys fees." Visci stated in his deposition that Vendor Capital originally sought as much as $450,000 in damages, which he negotiated downward. In order to bring the Vendor Capital ...