PARK CREST CLEANERS, LLC, d/b/a A PLUS CLEANERS AND ALTERATIONS, SALVATORE TAMBURO, and DANIELA TAMBURO, Plaintiffs-Respondents,
A PLUS CLEANERS AND ALTERATIONS CORPORATION, A PLUS CLEANERS, LLC, LEE STEPHEN CHIN, ELSA CHIN, and SABRINA "ELSA" CHIN, Defendants-Appellants.
Submitted March 19, 2019
appeal from Superior Court of New Jersey, Chancery Division,
Camden County, Docket No. C-000078-14.
Salmon, Ricchezza, Singer & Turchi LLP, attorneys for
appellants (Ronald L. Daugherty, of counsel and on the
Burns LLC, attorneys for respondents (James Bucci and Michael
C. McQueeny, of counsel and on the brief).
Judges Fisher, Suter and Geiger.
unique circumstances presented, we conclude that
defendants' appeal must be dismissed. To explain, we need
to delve somewhat into the case's procedural history.
Park Crest Cleaners, LLC, Salvatore Tamburo, and Daniela
Tamburo (plaintiffs) commenced this action against defendants
A Plus Cleaners and Alterations Corp., A Plus Cleaners, LLC,
Lee Stephen Chin, Elsa Chin, and Sabrina Chin (defendants)
alleging defendants' sale to them of a West Berlin dry
cleaning business was, among other things, fraudulently
induced. The business was conducted on premises leased to
defendants by Cherry Plaza, LLC.
sought rescission and damages but never joined Cherry Plaza
as a party even though, to the extent plaintiffs' suit
bore fruit, there would be a need to address the parties'
then and future relationship with Cherry Plaza. So, prior to
trial, defendants moved to dismiss, claiming Cherry Plaza was
an indispensable party; plaintiffs cross-moved for leave to
file an amended complaint adding Cherry Plaza as a party.
Both motions were denied, and a jury trial thereafter
trial's conclusion in early August 2015, the jury awarded
plaintiffs $682, 000 in compensatory damages and $319, 000 in
punitive damages. Plaintiffs then moved for the issuance of
equitable relief - rescission - and defendants moved for a
judgment notwithstanding the verdict or, alternatively, for a
new trial. Defendants' multi-faceted motion was denied,
and plaintiffs' claim for equitable relief was granted.
The judge determined that the contractual documents were to
be rescinded and defendants restored to ownership of the
business and its equipment. As part of their motion,
plaintiffs also sought rescission or reformation of the
lease. The judge reserved on this aspect of the motion so
Cherry Plaza could be given notice. To that end, the judge
entered an order in October 2015, that required Cherry Plaza
- and defendants as well - to show cause: (a) why Cherry
Plaza should not be enjoined from enforcing the lease as to
plaintiffs, (b) why the lease should not be rescinded or
reformed to render defendants the primary obligors, and (c)
why plaintiffs should not be discharged from any obligations
or liabilities arising from the lease.
response, Cherry Plaza argued, among other things, a
deprivation of proper process because the judge bypassed the
requirement that plaintiffs file a complaint against Cherry
Plaza and instead proceeded directly to whether a final
judgment ought to be entered against Cherry Plaza. Undeterred
by Cherry Plaza's arguments, the judge entered a final
judgment that, among other things, removed plaintiffs as the
lease's tenants or guarantors. Having restored plaintiffs
and defendants to their pre-transaction status, the judge
reduced the damage award to approximately $350,
appealed the judgment, and Cherry Plaza cross-appealed parts
of the judgment. Defendants then failed to prosecute or
perfect its appeal, which we eventually dismissed, leaving
for disposition only those issues raised in Cherry
Plaza's cross-appeal, to which only plaintiffs responded.
We ultimately found flawed the procedures utilized by the
judge in rendering relief against Cherry Plaza. Park
Crest Cleaners, LLC v. A Plus Cleaners & Alterations
Corp., No. A-1734-15 (App. Div. Oct. 17, 2017) (slip op.
at 13) (holding that the trial judge's summary
disposition "in plaintiffs' favor denied non-party
Cherry [Plaza] a fair opportunity to be heard and defend
against the relief requested"). Because no complaint was
ever filed against Cherry Plaza, we concluded "there
[was] no pending matter to remand," ibid., and,
so, we merely sent the case back to the trial court for
amendment of the judgment, id. at 14, to relieve
Cherry Plaza of the judgment's former consequences.
our remand, the trial judge entered an amended judgment that
vacated the relief entered against Cherry Plaza. This
November 6, 2017 judgment also restored the full amount of
compensatory damages awarded by the jury in favor of
plaintiffs and against defendants.
then instituted this appeal. We agree with plaintiffs that
the appeal must be dismissed because defendants should have
pursued the issues it ...