Aiello v. Zawistowski

Decision Date22 October 2020
Docket NumberDOCKET NO. A-5040-18T1
CourtNew Jersey Superior Court — 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.

Before Judges Sumners, Geiger and Mitterhoff.

On appeal from the Superior Court of New Jersey, Chancery Division, Morris County, Docket No. C-000128-15.

Batya G. Wernick, argued the cause for appellant.

Steven C. Schechter argued the cause for respondents.


Plaintiff Dennis Aiello's claim seeking an ownership interest in an automobile dealership returns to us after we reversed the first Chancery judge's order granting summary judgment dismissal of Aiello's complaint. Aiello v. Zawistowski, No. A-1244-16T2 (App. Div. July 11, 2018). Following our remand, a different Chancery judge sitting as the fact-finder granted defendants Zbigniew Zawistowski and Team Precision Auto, LLC 's motion for directed verdict dismissing Aiello's suit. We affirm because we conclude the judge: (1) did not abuse her discretion in evidentiary rulings precluding the admission of audio recordings transcripts unilaterally redacted by Aiello and redacting the deposition testimony of an unavailable witness arising from unrelated litigation; (2) properly applied Rule 4:37-2(b) in granting a directed verdict in favor of defendants; and (3) did not err in finding Aiello was not entitled to an equitable remedy.


To provide context to our decision, we briefly discuss the background of this litigation. In 2015, Aiello filed suit asserting breach of a partnershipagreement and sought: monetary damages; a declaratory judgment that he owned fifty percent of Team Precision Auto and the Butler Chrysler Jeep Dodge dealership (the dealership); and an accounting of all of the dealership's earnings, profits and assets. Aiello alleged his fifty percent interest in the dealership owned and operated by Bruce Wainwright and Justin Wainwright1 was based upon an oral agreement he allegedly made with Zawistowski and Bruce2 in April 2011. Three months later, the dealership was acquired by Team Precision Auto, owned by Zawistowski, who renamed it Precision Chrysler Jeep Dodge Ram - with no mention of Aiello in the final ownership documents.

Three years before filing suit, Aiello filed a personal petition for Chapter Seven bankruptcy without indicating he had an interest in the dealership or claims against defendants seeking to secure his interest in the dealership. Shortly thereafter he filed a personal property amendment to his bankruptcy petition to include a "breach of contract suit against former business partner," for other contingent and unliquidated claims. However, this apparentlyreferences a dispute against individuals other than Zawistowski and the Wainwrights.

After an initial Chancery judge issued an order granting defendants' summary judgment motion to dismiss Aiello's suit, we reversed and remanded for trial because the judge erred in failing to view the evidence in the light most favorable to Aiello, the non-moving party, as required by Rule 4:46-2(c) in deciding the motion. In doing so, we noted defendants' defenses of laches, judicial estoppel related to Aiello's failure to identify his interest in his bankruptcy petition, and that Aiello lacked standing to seek an ownership interest in the dealership, were not a basis for the judge's grant of summary judgment. Consequently, we did not foreclose defendants from raising those defenses, or others, for that matter, set forth in their pleadings. In addition, we denied defendants' cross-appeal challenging a second Chancery judge's order denying Team Precision Auto's motion for sanctions under N.J.S.A. 2A:15-59.1 and Rule 1:4-8, for filing a frivolous action.

At the remanded trial, a new Chancery judge granted defendants' motion for directed verdict following the conclusion of Aiello's presentation of evidence. This appeal ensued.


We address the issues raised in this appeal in the order in which they transpired following remand.

Aiello challenges two of the Chancery judge's (hereinafter "trial judge" or "judge") evidentiary rulings. The judge granted defendants' motion in limine to exclude admission of transcripts memorializing portions of recordings Aiello proffered because he failed to provide the recordings in their entirety to defendants as previously ordered and unilaterally edited them.3 In case management orders of April 14, 2016 and May 4, 2016, Aiello was directed to produce transcripts of all recordings, and advised that failure to do so would result in the recordings being inadmissible. The judge also ordered redaction of the transcript of Bruce's deposition testimony in connection with the Wainwrights' lawsuit against Zawistowski and a recording of Bruce's voice message to Aiello. Bruce was unavailable to testify at trial.

It is well-settled that "[w]hen a trial court admits or excludes evidence, its determination is 'entitled to deference absent a showing of an abuse of discretion, i.e., [that] there has been a clear error of judgment.'" Griffin v. Cityof E. Orange, 225 N.J. 400, 413 (2016) (alteration in original) (quoting State v. Brown, 170 N.J. 138, 147 (2001)). Appellate courts "will reverse an evidentiary ruling only if it 'was so wide [of] the mark that a manifest denial of justice resulted.'" Ibid. (quoting Green v. N.J. Mfrs. Ins. Co., 160 N.J. 480, 492 (1999)). We discern no abuse of discretion in the judge's rulings.

A. Recordings

Before and after our remand, Aiello was directed to make the recordings accessible to defendants by providing them the original cassette recordings. Claiming he feared losing the cassettes if they were turned over to opposing counsel, Aiello instead provided edited, or, as the judge phrased it, "cherry-picked" versions of the recordings he deemed most relevant. Aiello describes the recordings as "portions of telephone [conversations] between him and [d]efendants" and from his meetings with defendants.4 Aiello created the recordings, transcribed them, and produced them before the discovery end date. He admits the recordings were at times hard or impossible to understand but argues the discernable portions are admissible.

Aiello contends the recordings were probative of certain events he alleged occurred but Zawistowski denied. Specifically, he notes the recordingssupported his claims that he "met with [d]efendants, [and] was engaged with . . . Zawistowski for a long period of time . . . [wherein he] engag[ed] in numerous conversations with . . . [Zawistowski.]" Aiello asserts the recordings supported his contention that defendants lacked credibility. He also suggests the recordings proved the terms of the partnership agreement, thereby explaining why he took no action to pursue a written agreement with Zawistowski after Zawistowski "kept putting him off."

To support his position, Aiello relies upon N.J.R.E. 402, which provides "[a]ll relevant evidence is admissible" unless excluded by evidential rule or statute, and N.J.R.E. 403, which provides "relevant evidence may be excluded if its probative value is substantially outweighed by the risk of: (a) [u]ndue prejudice, confusion of issues, or misleading the jury . . . ." He also cites State v. Nantambu, 221 N.J. 390, 408 (2015) (quotations omitted), to establish the intelligible portions of his recording should have been admitted because the Court held there that "[w]here evidence is admissible for one purpose but not for another, the trial court upon request[ ] shall restrict the evidence to its proper scope and shall instruct the jury accordingly." He further points to State v. Zicarelli, 122 N.J. Super. 225, 239-40 (App. Div. 1973), where this court admitted the recording at issue despite its inaudible portions, because it provedthe intimacy between the parties and was probative of the conspiracy to suppress prosecution of a gambling enterprise.

We find instructive the trial judge's reliance on State v. Farthing, where this court held that, consistent with the spirit of N.J.R.E. 106, the evidentiary doctrines of testimonial completeness "operate to prevent a [party] from . . . selectively introducing pieces of . . . evidence for the [party's] own advantage." 331 N.J. Super. 58, 81 (App. Div. 2000) (quoting State v. James, 144 N.J. 538, 554 (1996)). Additionally, the judge properly relied upon Nantambu, 221 N.J. at 410-11, where our Supreme Court ruled:

[A] trial court must employ a two-part analysis when considering the admissibility of a recording containing partial omissions. The [C]ourt must first determine if the omission is unduly prejudicial; that is, does the omission adversely impact the trustworthiness of the recording. That is an objective analysis that should focus on the evidentiary purposes for which the recording is being offered. If the trial court in its discretion finds the omission unduly prejudicial, it must then consider whether the omission renders all or only some of the recording trustworthy, and suppress only the portion of the recording that is rendered untrustworthy.

Here, the judge found the recording was not trustworthy because it was "incomplete . . . [and t]he portions of the recording provided were selected by the plaintiff according to what he deemed relevant and the full, originalrecordings have never [been] produced for the defendants' review." Due to Aiello's failure to produce the complete recordings, the judge properly applied her discretion in ordering redaction.

B. Deposition Transcript

Because Bruce was unavailable to testify at trial, the transcript of...

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