SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4539-15T1

BRIDGETON COMMERCE CENTER,

INC., BRIAN ALTMAN, DENNIS

ALTMAN, and ANNETTE ALTMAN,

Plaintiffs-Appellants,

v.

N.J. DEALERS AUTO MALL, INC.,

a corporation, and LOUIS 

CIVELLO, JR.,

Defendants-Respondents.

_________________________________

Argued October 19, 2017 – Decided

Before Judges Haas and Rothstadt.

On appeal from Superior Court of New Jersey, 

Law Division, Monmouth County, Docket No. 

L-5292-05.

Dennis Altman, appellant, argued the cause pro 

se (Sarah Johnson Carter, on the brief).

Jeffrey S. Mandel argued the cause for 

respondents.

PER CURIAM

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." 

Although it is posted on the internet, this opinion is binding only on the 

parties in the case and its use in other cases is limited. R. 1:36-3.

November 2, 2017
2 A-4539-15T1

This case returns to us after remand proceedings directed by 

our previous opinion. See Bridgeton Commerce Ctr., Inc. v. N.J. 

Dealers Auto Mall, Inc., No. A-4887-13 (App. Div. Dec. 9, 2015). 

Following a Lopez1 hearing, the trial judge granted defendants' 

motion to dismiss count six of plaintiffs' complaint because it 

was barred by the six-year statute of limitations. N.J.S.A. 2A:14-

1. Plaintiffs now appeal the court's May 19, 2016 dismissal order. 

We affirm.

The parties are fully familiar with the lengthy history of 

this case and, therefore, we need only briefly recite the essential 

background facts and procedural history as set forth in our earlier 

opinion. In a complaint filed on November 28, 2005, plaintiffs 

asserted five claims against defendants in connection with various 

business transactions that plaintiffs alleged occurred between the 

parties. Bridgeton Commerce Ctr., supra, (slip op. at 4-5). 

On January 31, 2007, the trial court granted plaintiffs' 

motion to amend their complaint to add a sixth count. Id. at 5. 

In this count, plaintiffs argued that when defendant Louis Civello, 

Jr. incorporated a company known as N.J. Dealers Auto Mall (NJDAM)

in June 1998, he breached a promise Civello's father had allegedly 

made that Civello and plaintiff Dennis Altman would each own 50% 

 

1 Lopez v. Swyer, 62 N.J. 267 (1973).
3 A-4539-15T1

of NJDAM. Id. at 3-5. Plaintiffs sought an order dissolving 

NJDAM, compelling defendants to purchase Altman's alleged 50% 

share of the company, and requiring them to pay plaintiffs all of 

the profits that they asserted should have been paid to Altman as 

a co-owner of NJDAM. Id. at 18. 

Plaintiffs were also parties to other litigation involving 

defendants. Id. at 3-12. After the trial court dismissed one of 

these actions, it mistakenly concluded that the resolution of that 

matter also required the dismissal of count six of the amended 

complaint. Id. at 17-18. In our earlier opinion, we concluded 

that count six "was a stand-alone claim" that was not dependent 

on the issues resolved in the companion case. Id. at 18. 

Therefore, we remanded "plaintiffs' claims concerning count six 

to the trial court for further proceedings." Ibid.

On remand, defendants filed a motion seeking a Lopez hearing. 

They asserted that Altman knew on or before August 28, 1998 that 

he was not a 50% owner of NJDAM and, therefore, the six-year 

statute of limitations expired before plaintiffs filed their 

complaint on November 28, 2005.

This motion was not defendants' first attempt to dismiss 

count six on statute of limitations grounds. Although defendants 

did not specifically plead the statute of limitations in the 

affirmative defenses asserted in their answer to plaintiffs' 
4 A-4539-15T1

amended complaint, defendants did file a motion to dismiss count 

six based on this defense in April 2010. See Notte v. Merchs. 

Mut. Ins. Co., 185 N.J. 490, 500 (2006) (noting that "the defense 

that a claim is time-barred must be raised by way of an affirmative 

defense, either in a pleading or by a timely motion, or it is 

waived"). In an April 21, 2010 written decision and order, the 

trial court denied the motion after finding there were too many 

factual disputes that required the evaluation of witness 

credibility to permit the resolution of the matter without a 

hearing or trial.

On remand, however, the trial judge granted defendants' 

request for a Lopez hearing and plaintiffs raised no objection to 

proceeding in this fashion. At the hearing, the defense called 

Altman as their only witness. Altman admitted he had no 

documentation supporting his claim that anyone promised to make 

him a 50% owner of NJDAM. Instead, he asserted that he believed 

he was supposed to have been given a half-share in the company 

based solely upon a conversation to this effect that allegedly 

occurred between Civello's father and Altman's brother Steven, who 

had since passed away. Altman was not a party to this 

conversation.

Defendants' attorney then showed Altman a series of documents 

concerning the corporate ownership of NJDAM that were all executed 
5 A-4539-15T1

more than six years before plaintiffs filed their lawsuit on 

November 28, 2015. These documents included an August 27, 1998 

Application for Registration with the State Division of Taxation 

that Altman admitted bore his handwriting. This application stated 

that Civello was the only owner of NJDAM. Altman also acknowledged 

that an August 27, 2008 Status Report filed with the State 

Department of Labor contained his handwriting and only listed 

Civello as NJDAM's owner. In addition, Altman conceded he had 

access to NJDAM's corporate tax returns more than six years before 

plaintiffs filed their lawsuit. These filings also listed Civello 

as the company's sole owner.

Plaintiffs did not provide any other testimony or documentary 

evidence during the hearing, and they did not present any oral 

argument in opposition to defendants' motion to dismiss.

Based upon this uncontradicted evidence, the trial judge 

rendered a thorough oral decision granting defendants' motion to 

dismiss count six because plaintiffs filed their complaint more 

than six years after they knew that Altman was not a 50% owner of 

NJDAM. The judge found that Altman's testimony that he believed 

he owned half of the company was not credible. Indeed, based on 

the documents Altman admitted he either prepared or reviewed, the 

judge found that Altman knew Civello was NJDAM's sole owner all 

along. This appeal followed.
6 A-4539-15T1

On appeal, plaintiffs argue that the trial judge erred in 

granting a Lopez hearing and dismissing count six of the complaint. 

We find insufficient merit in these arguments to warrant discussion 

in a written opinion. R. 2:11-3(e)(1)(E). We therefore affirm 

the May 19, 2016 order substantially for the reasons the judge 

expressed in his comprehensive oral decision accompanying the 

order. We add the following brief comments.

We review the factual findings made by a trial judge to 

determine whether they are "supported by adequate, substantial and 

credible evidence." Rova Farms Resort, Inc. v. Investors Ins. Co. 

of Am., 65 N.J. 474, 484 (1974). Such findings made by a judge 

"should not be disturbed 'unless they are so wholly insupportable 

as to result in a denial of justice[.]'" Id. at 483-84 (quoting 

Greenfield v. Dusseault, 60 N.J. Super. 436, 444 (App. Div.), 

aff'd o.b., 33 N.J. 78 (1960)). Factual findings that "are 

substantially influenced by [the judge's] opportunity to hear and 

see the witnesses and to have the 'feel' of the case" enjoy 

deference on appeal. State v. Johnson, 42 N.J. 146, 161 (1964). 

Applying these standards, we discern no basis for disturbing 

the judge's well-reasoned decision. The uncontradicted evidence 

presented at the Lopez hearing amply supported the judge's 

conclusion that Altman was fully aware he was not a 50% owner of 

NJDAM more than six years before plaintiffs filed their complaint. 
7 A-4539-15T1

Therefore, the judge correctly dismissed count six of the complaint 

on statute of limitations grounds.

Affirmed.