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Christopher Acquaviva v. Estate of Frank Dimisa

October 18, 2012


On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-3715-06.

Per curiam.


Submitted September 25, 2012

Before Judges Yannotti, Harris and Hoffman.

Plaintiff Christopher Acquaviva appeals from orders entered by the trial court on June 16, 2011, denying his motion for summary judgment and granting summary judgment in favor of defendant Estate of Frank DiMisa (Estate). Plaintiff also appeals from an order entered by the trial court on July 7, 2011, which granted summary judgment in favor of defendant Judy Morris (Morris). We affirm.


We briefly summarize the relevant facts. Appellant's father Ronald Acquaviva (Ronald), Frank DiMisa (DiMisa) and Morris were members of a partnership known as 800 River Road. The partnership borrowed monies from Midlantic National Bank (Midlantic), and the loan was secured by a mortgage on the partnership's property. After the loan and mortgage went into default, Midlantic commenced an action to foreclose on the property.

The property was thereafter sold but the sale proceeds did not fully satisfy the debt and in March 1992, the court entered a deficiency judgment in favor of Midlantic and against Ronald, DiMisa and Morris in the amount of $460,373.94, plus interest and costs. Midlantic assigned the deficiency judgment to Fox Run Corporation (Fox Run), an entity that DiMisa owned and controlled.

Fox Run thereupon took steps to collect on the deficiency judgment. On September 4, 1998, the court entered an order requiring Mack-Morris BTE, Inc. (Mack-Morris) to turn over Ronald's shares in Mack-Morris to the Monmouth County Sheriff. Fox Run Corp., as assignee from Midlantic National Bank, N.A., v. 800 River Road, et al., Chancery Division, Monmouth County (Docket No. F-12028-91) (the Fox Run litigation).

On December 18, 1998, Elizabeth Thomas-Edwards (Edwards), the President of Mack-Morris, sent Ronald's stock certificate to Fox Run's attorney, David B. Katz (Katz), along with a copy of a letter dated October 8, 1991, in which Ronald stated that he was assigning his shares in Mack-Morris to Marsha Acquaviva (Marsha), plaintiff's wife. The stock certificate was not indorsed.

On January 13, 1999, Edwards provided Katz with a copy of a letter from plaintiff to Mack-Morris dated January 4, 1999. In his letter, plaintiff stated that in 1991, Ronald had resigned from the corporation and transferred his stock "to other parties[.]" Plaintiff wrote that "whoever handled the corporate books at that time" failed to transfer the stock certificates and never recorded the transaction on the corporation's books.

Plaintiff stated that this was an "oversight" that had never been corrected. He added that Edwards should: write to Mr. Katz and advise him of this situation before any further action is taken. If this matter is not rectified immediately, I will have no alternative but to pursue a legal action against the corporate officers of Mack-Morris BTE in order to either regain the fair percentage of the stock lost, or for the value of same, along with damages and fees.

At this time, I am not sure why you did what you did without even the courtesy of a phone call regarding the matter, but feel you have now taken the responsibility yourself for this action, and must now either rectify same or bear the burden of the outcome.

On March 19, 2001, the Chancery Division entered an order in the Fox Run litigation which provided, among other things, that Mack-Morris could redeem Ronald's shares by paying the amount remaining due on the judgment. The order additionally provided that, if Mack-Morris elected not to redeem the shares, they would be sold at public auction.

On June 6, 2006, plaintiff filed this action against DiMisa, Doris DiMisa (Doris), Morris, Edwards, Fox Run and Mack-Morris. Plaintiff alleged that before the September 4, 1998 order was entered in the Fox Run litigation, Ronald had assigned his interest in Mack-Morris to him. Plaintiff asserted claims against DiMisa and Morris for breach of fiduciary duties owed to Ronald as a partner in 800 River Road; against DiMisa and Morris for breach of the 800 River Road partnership agreement; against DiMisa and Morris seeking indemnification for their respective shares of the Midlantic deficiency judgment; against DiMisa, Morris and Fox Run for conversion of Ronald's stock in Mack-Morris; against all defendants for conspiracy to commit fraud; and against Edwards and Mack-Morris for breach of contract.*fn1

In May 2011, plaintiff filed a motion for summary judgment. The Estate, Edwards, Mack-Morris and Morris opposed plaintiff's motion. The Estate also filed a cross-motion for summary judgment. The motion judge heard argument on the motions on June 16, 2011. Thereafter, the court entered orders ...

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