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Phil Besler, A/K/A Philip A. Besler v. Richard Coluccio

September 5, 2012

PHIL BESLER, A/K/A PHILIP A. BESLER, PLAINTIFF-RESPONDENT/ CROSS-APPELLANT,
v.
RICHARD COLUCCIO, AN INDIVIDUAL, DEFENDANT-APPELLANT/ CROSS-RESPONDENT, AND JAMES A. D'ANGELO, JR., AN INDIVIDUAL, D'ANGELO CONSTRUCTION, INC., A PENNSYLVANIA BUSINESS CORPORATION, HORSESHOE BEND, LLC, A NEW JERSEY LIMITED LIABILITY COMPANY, FRENCHTOWN RUN, LLC, A NEW JERSEY LIMITED LIABILITY COMPANY, AND JAD JR., INC., A PENNSYLVANIA CORPORATION, DEFENDANTS.



On appeal from Superior Court of New Jersey, Chancery Division, Hunterdon County, Docket No. C-14034-07.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued February 14, 2012

Before Judges A. A. Rodriguez and Fasciale.

Defendant, Richard Coluccio appeals from the September 16, 2010 Chancery Division order denying, with prejudice, his motion to vacate a judgment entered against him. Plaintiff, Phil Besler, also known as Philip A. Besler, cross-appeals from that portion of the same order which denied his cross-motion "for frivolous claim costs against" Coluccio. We affirm the order.

In a certification, Coluccio established the following facts. He had known Besler for over fifteen years. In 2003, Coluccio was employed performing carpentry work for James A. D'Angelo, Jr., a general contractor, building custom houses. In the past, D'Angelo had borrowed money from both Coluccio and Besler to fund small housing developments.

D'Angelo offered Coluccio an opportunity to join a partnership with a land developer. For $6,000,000, the partnership would purchase two parcels of land in Kingwood Township (the Frenchtown/Horseshoe project), develop them, and sell them to Pulte Homes (Pulte) pursuant to an existing contract. Because D'Angelo needed to raise $1,400,000 for his share, he offered to make Coluccio a partner if Coluccio was able to immediately raise the money. Coluccio began to solicit family and friends, including Besler, for investments.

Initially, Besler was not interested because he had previously lost $400,000 in a direct investment with D'Angelo. Eventually, however, Besler agreed to loan Coluccio $800,000 conditioned on receipt of a personal guarantee from Coluccio. In his certification, Coluccio contends that Besler sought only a guarantee, and "[a]t no time did [] Besler request that his loan to me be secured with any real property let alone the property being purchased by the partnership."

D'Angelo prepared some loan documents from prior deals for Coluccio to give Besler. These consisted of: a mortgage note (Note), a guaranty and suretyship agreement (Guaranty), and a mortgage and security agreement (Agreement). On August 14, 2003, Coluccio delivered those documents to Besler and each signed them. Besler gave Coluccio a check in the amount of $700,000 payable to "Rick Coluccio" that was signed over to "Horseshoe Bend LLC," which was then crossed out and replaced by "D'Angelo Construction." A few days later, Besler wired $100,000 to the partnership's bank account.

In a June 2008 deposition, Coluccio testified that the check was indorsed in that manner so that the other partners in the venture would only see the money coming from D'Angelo's company, not from Besler. Coluccio also testified that he understood the documents to reflect that a mortgage would exist against the lands in the Frenchtown/Horseshoe project.

The Note provided for a 720-day term, with an interest rate of thirty percent per annum, and a default rate of twenty-four percent per annum. The term could be reduced to reflect the sale date of the Frenchtown/Horseshoe property to be purchased by the partnership, or upon the sale of another property in Cape May. The Note was secured by the land in Frenchtown (Kingwood Township) to be purchased by the partnership.

The Note also contained a choice of law provision:

Make[r] consents to the personal jurisdiction of the Courts of the Commonwealth of Pennsylvania for Philadelphia and Montgomery Counties, including the jurisdiction of the United States District Court for the Eastern District of Pennsylvania and waives trial by jury in connection with any action or proceeding in connection with this Note.

This Note has been executed and delivered in and shall be governed by and construed under the laws of the ...


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