                                NOT FOR PUBLICATION WITHOUT THE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.




                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NO. A-0324-16T3
                                                                    A-2568-16T3

JOSEPH TODARO,

          Plaintiff-Appellant,

v.

LANGSTONE, LLC and
JOSEPH MANZO, ESQ.,

          Defendants,

and

SALVATORE GIORDANO, III,

     Defendant-Respondent.
_______________________________

INTEGRATED DESIGN SYSTEMS
OF NEW JERSEY, LLC,

          Plaintiff,

v.

LANGSTONE, LLC,

          Defendant-Respondent,
and

JOSEPH TODARO,

      Defendant/Third-Party
      Plaintiff-Appellant,

v.

SALVATORE GIORDANO, III,

     Third-Party Defendant.
_____________________________

            Argued September 25, 2018 – Decided December 24, 2018

            Before Judges Yannotti and Rothstadt.

            On appeal from Superior Court of New Jersey, Law
            Division, Somerset County, Docket Nos. L-0896-16
            and L-1030-08.

            Randall J. Peach argued the cause for appellant Joseph
            Todaro in A-0324-16 and A-2568-16.

            Respondent Salvatore Giordano, III has not filed a brief
            in A-0324-16.

            Joseph A. Manzo argued the cause for respondent
            Langstone, LLC, in A-2568-16.

PER CURIAM

      In these two appeals that we considered back-to-back and consolidated for

purposes of writing one opinion, the principal parties, Joseph Todaro and


                                                                       A-0324-16T3
                                       2
Salvatore Giordano, III and his company, Langstone Inc., have been pursuing

each other through litigation for more than a decade.1 The present appeals arose

from their commercial tenancy dispute that was tried by a judge in 2012 and

resulted in a substantial judgment against Todaro. We affirmed that judgment

in a 2016 unpublished opinion. See Todaro v. Langstone, LLC, No. A-5892-11

(App. Div. March 2, 2016) (slip op. at 2).

      After we issued our opinion, Todaro filed a motion and a separate

complaint in a new action seeking primarily to vacate the judgment against him

and argued that it was obtained through Giordano's perjury and commission of

a fraud upon the court during the 2012 trial. In A-0324-16, Todaro now appeals

from the trial court's dismissal of his new complaint and in A-2568-16, from the

denial of his Rule 4:50-3 motion to vacate. For the reasons that follow, we

affirm both orders under appeal.

      We begin with a summary of the facts already reviewed in our earlier

opinion, Todaro, slip op. at 3-13, adding the procedural history of the actions

filed since we issued our opinion to give context to the present dispute. In 2005,

Langstone and Todaro entered into a fifteen-year lease for commercial property



1
   One trial court judge observed that by 2012, there had been seven complaints
filed between the same parties.
                                                                          A-0324-16T3
                                        3
owned by Todaro, which required Langstone to obtain municipal approvals for

the construction of an automotive oil change facility it was going to operate from

the leased premises. Langstone hired Integrated Design Systems of New Jersey,

LLC ("Integrated") as its general contractor, but a dispute arose that resulted in

Integrated leaving the job and Todaro and Langstone disagreeing over who was

responsible for the construction not being completed.

      The present dispute arose from two actions originally filed by Integrated

against Langstone and Todaro in 2008 for its unpaid bills and to establish a

construction lien. The two actions were consolidated and Langstone asserted

claims against Todaro, who in turn in turn joined Giordano. After Langstone

and Integrated settled, the remaining claims between Langstone, Giordano, and

Todaro proceeded to trial.

      Giordano's and Langstone's claim against Todaro was premised upon

Todaro's interfering with the approvals Langstone obtained from` the local

planning board. According to Giordano, the project was unable to proceed

because of an April 9, 2008 letter sent to the planning board by Todaro's attorney

which objected to Langstone's proposed demolition plans and resulted in the

board reevaluating and ultimately withdrawing its approval. When the board

withdrew its approval, Integrated ceased working on the project.


                                                                          A-0324-16T3
                                        4
      During his cross-examination of Giordano, Todaro's attorney confronted

him with a letter Giordano sent on April 21, 2008 to the borough attorney, stating

that he had fired Integrated. Giordano testified that, despite the letter, he did

not terminate the relationship with Integrated and that the letter was simply

"posturing."

      During the later testimony of Todaro's last witness, his engineering expert,

the witness produced a March 28, 2008 email sent at 12:51 p.m. by Giordano to

Integrated stating that the contract with Integrated was "terminated" because it

had not provided certain required information. Giordano sent a second email

after Integrated responded, stating that if it did not resolve a specific issue by

the following Tuesday, he would "hire [his] own excavator . . . and finish the

project [him]self." Todaro contended that Giordano's firing of Integrated, as

confirmed in the first email rather than his attorney's April 9, 2008 letter to the

board, was the cause of the project's failure and established Giordano's lying to

the court.

      In his comprehensive, sixty-nine-page written decision, the trial judge

found Giordano to be credible and Todaro to be unbelievable. As to the letters

and emails relating to Integrated's termination, the judge accepted Giordano's

explanation that he was "posturing." As we observed in our earlier opinion, after


                                                                           A-0324-16T3
                                        5
considering all of the evidence at trial, the "judge found that Todaro was in

material breach of the lease . . . ." Todaro, slip op. at 12. The judge ultimately

found for Langstone and Giordano, entered judgment in Langstone's favor for

$305,557.64, and dismissed Todaro's claims against Langstone and Giordano.

      In response to Langstone's efforts to collect its judgment, in December

2013, Todaro filed a motion to set aside the judgment under Rule 4:50-3 and for

the imposition of sanctions against Langstone based on Giordano's committing

a fraud on the court and perjuring himself at trial. (Da 114-116). At the time

he filed his motion, Todaro had already filed a notice of appeal from the trial

judge's decision on August 13, 2012. In support of the motion, Todaro filed his

attorney's twenty-page certification in which he argued it was apparent that the

judgment entered against Todaro was based upon Giordano's perjury and fraud

and should be vacated.

      Attached to counsel's certification were various documents that pre-dated

the trial and which counsel asserted established the fact that Giordano

committed perjury.     The documents included a construction lien filed by

Langstone; the April 21, 2008 letter from Giordano to the borough attorney; a

copy of a construction lien claim filed by Integrated in April 2008; an April 18,

2008 letter Langstone wrote to the Office of Regulatory Affairs; and a June 11,


                                                                          A-0324-16T3
                                        6
2008 letter from Giordano to Valley National Bank. According to counsel, all

of these items established that Giordano fired Integrated as of March 28, 2008.

      On January 31, 2014, the motion judge denied Todaro's motions without

prejudice. As set forth in his written decision, the judge found that the motion

to set aside the judgment was untimely and that a decision on the motion "would

be usurping the Appellate Division . . . ."       Todaro filed a second appeal

challenging the denial of his motion, which we considered with the then-pending

earlier appeal from the trial judge's decision.

      In his earlier appeals, Todaro raised numerous issues regarding the trial

judge's decision and the denial of his December 2013 post-judgment motion to

vacate. Among his contentions, he stated that the judgment against him was

entered in error and should have been vacated based upon Giordano's

committing perjury relative to the dispute about why Integrated stopped

performing at the site. We issued our opinion on March 2, 2016, in which we

rejected Todaro's arguments as being without merit and affirmed based upon the

findings made by the trial judge.         We concluded that the trial judge's

determination about Todaro's interference with the project was supported by

substantial credible evidence. We then addressed certain specific contentions

made by Todaro and we stated that to the extent we did not specifically address


                                                                        A-0324-16T3
                                         7
Todaro's remaining arguments, they lacked sufficient merit to warrant

discussion, citing to Rule 2:11-3(e)(1)(E). We later denied Todaro's motion for

reconsideration.     In September 2016, the Supreme Court denied Todaro's

petition for certification. Todaro v. Langstone, LLC, 227 N.J. 357 (2016).

      In April 2016, Todaro filed a new complaint seeking damages and alleging

that Langstone, Giordano, and their attorney, Joseph Manzo, committed perjury

and fraud during the bench trial. Manzo filed a Rule 4:6-2(e) motion to dismiss

for failure to state a claim in lieu of an answer. During the hearing on th e

motion, Manzo argued that the courts already determined there were no issues

relating to perjury. Todaro maintained that no court addressed these claims and

that the trial judge was misled. In opposition to the motion, Todaro filed a

certification from his trial attorney who certified that the judgment was entered

as a result of Giordano's perjury "when he testified, repeatedly, that he never

fired [Integrated] . . . ."   He also explained that Giordano was not cross-

examined with the March 28, 2008 emails, that the emails were disclosed only

"[at] the end of the trial," and that he only cross-examined Giordano about the

April 21, 2008 letter he sent to the borough attorney.

      On August 9, 2016, Judge Yolanda Ciccone granted Manzo's motion and

entered an order dismissing Todaro's new complaint with prejudice as to all


                                                                         A-0324-16T3
                                        8
defendants. She found that the claims against Manzo were barred by both the

litigation privilege and collateral estoppel. She specifically concluded that a

"finding that [Todaro's] claims are barred by the doctrine of collateral estoppel

as to . . . Langstone or Manzo effectively bars [Todaro's] claims against

Giordano." The judge then analyzed each of Todaro's claims and found that the

same contentions were raised and ruled upon by the trial judge, our court, and

the motion judge in Todaro's December 2013 motion to vacate. Relying on her

findings that collateral estoppel applied, Judge Ciccone dismissed Todaro's

complaint as to all defendants with prejudice. Todaro appealed from the order

on September 22, 2016.

      In November 2016, Todaro filed a motion to set aside the 2012 judgment

under Rule 4:50-3 and again argued that Langstone through Giordano committed

perjury and fraud on the court. In support of his motion, Todaro filed the

certification of his attorney that had attached various documents, many if not all

of which were included in the certification filed in support of the December 2013

motion to vacate.     The documents that counsel designated as "Materials

documenting the perjury committed by Langstone" included a copy of an

undated complaint filed by Giordano in 2016 against Todaro, his attorneys and




                                                                          A-0324-16T3
                                        9
others.2   They also included copies of Todaro's motion and attorney's

certification filed in his 2013 post-judgment motion to vacate; the earlier March

28, 2008 email from Giordano to Integrated; a construction lien claim in favor

of Langstone as to Todaro's premises; the April 9, 2008 letter from Todaro's

attorney to the planning board's attorney; portions of transcripts from earlier

proceedings between the parties in 2011; the April 21, 2008 letter from Giordano

to the borough attorney; a copy of a 2008 complaint filed by Integrated against

Langstone; a 2013 letter from Manzo to the trial judge; a 2008 letter from

Giordano to the Office of Regulatory Affairs; a 2008 letter from Langstone to

Valley National Bank; and a copy of a certification dated September 21, 2010,

and filed by Integrated in its initial action against Langstone.           In that

certification, Integrated's managing member stated that "on or about March 28,

2008," Langstone prevented Integrated "from working on the project."

      On January 20, 2017, Judge Ciccone entered an order denying Todaro's

motion. In her oral decision, the judge found again that the doctrine of collateral

estoppel barred Todaro's claims from being re-litigated. Todaro filed his appeal

from that order on February 22, 2017.



2
  Judge Ciccone dismissed Giordano's complaint in April 2017. That order is
not a subject of these appeals.
                                                                           A-0324-16T3
                                        10
      In his present appeal from the denial of his motion to vacate, Todaro

argues that it would be a "miscarriage of justice" if we do not intervene and

vacate "the judgment [that was] based on [Giordano's] indisputable perjury and

fraud on the [] court . . . ." He contends that collateral estoppel should not have

barred the pursuit of his motion to vacate and he suggests that we employ a de

novo standard of review in our consideration of Judge Ciccone's order because

she failed to conduct the proper analysis.

      Todaro's contentions on appeal from Judge Ciccone's order dismissing his

complaint under Rule 4:6-2(e) are similar. In that appeal, he argues collateral

estoppel should not have barred his pleading. Additionally, he contends that it

was an error to dismiss the complaint as to Giordano, who was not a party to

Manzo's motion; that Manzo failed to establish he was entitled to dismissal

under the applicable standard; the dismissal motion should have been denied

because it was based upon "false representations;" and the judge improperly

determined that "the litigation privilege" barred any claim against Manzo for

assertions made during the trial.

      The common argument in Todaro's present appeals, and the lynchpin to

all of the other issues he raises, is that Judge Ciccone erred in her application of

the doctrine of collateral estoppel. We disagree.


                                                                            A-0324-16T3
                                        11
      The doctrine of collateral estoppel "'bars re[-]litigation of any issue which

was actually determined in a prior action, generally between the same parties,

involving a different claim or cause of action.'" In re Liquidation of Integrity

Ins. Co., 214 N.J. 51, 66 (2013) (quoting Div. of Youth & Family Servs. v. R.D.,

207 N.J. 88, 114 (2011)).

            For collateral estoppel to apply:

            the party asserting the bar must show that: (1) the issue
            to be precluded is identical to the issue decided in the
            prior proceeding; (2) the issue was actually litigated in
            the prior proceeding; (3) the court in the prior
            proceeding issued a final judgment on the merits; (4)
            the determination of the issue was essential to the prior
            judgment; and (5) the party against whom the doctrine
            is asserted was a party to or in privity with a party to
            the earlier proceeding.

            [In re Estate of Dawson, 136 N.J. 1, 20 (1994).]

See also Winters v. N. Hudson Reg'l Fire & Rescue, 212 N.J. 67, 85 (2012).

However, "[e]ven where these requirements are met, the doctrine, which has its

roots in equity, will not be applied when it is unfair to do so." Olivieri v. Y.M.F.

Carpet, Inc., 186 N.J. 511, 521-22 (2006) (alteration in original) (quoting Pace

v. Kuchinsky, 347 N.J. Super. 202, 215 (App. Div. 2002)).

      Our Supreme Court has identified "a variety of fairness factors" favoring

application of collateral estoppel, including: "conservation of judicial resources;


                                                                            A-0324-16T3
                                        12
avoidance of repetitious litigation; and prevention of waste, harassment,

uncertainty and inconsistency." Allen v. V & A Bros., Inc., 208 N.J. 114, 138

(2011) (quoting Olivieri, 186 N.J. at 523). In contrast, the fairness factors

weighing against application of collateral estoppel include consideration of

whether:

            the party against whom preclusion is sought could not
            have obtained review of the prior judgment; the quality
            or extent of the procedures in the two actions is
            different; it was not foreseeable at the time of the prior
            action that the issue would arise in subsequent
            litigation; and the precluded party did not have an
            adequate opportunity to obtain a full and fair
            adjudication in the prior action.

            [Ibid. (quoting Olivieri, 186 N.J. at 523).]

      Also weighing against preclusion is "a concern that 'treating the issue as

conclusively determined may complicate determination of issues in the

subsequent action' . . . .'" Ibid. (quoting Restatement (Second) of Judgments §

29 (Am. Law Inst. 1982)). Indeed, collateral estoppel will not be applied

"where, after the rendition of the judgment, events or conditions arise which

create a new legal situation or alter the rights of the parties." Kozlowski v.

Smith, 193 N.J. Super. 672, 675 (App. Div. 1984) (quoting Wash. Twp. v.

Gould, 39 N.J. 527, 533 (1963)). Another example is when "new evidence has



                                                                         A-0324-16T3
                                       13
become available that could likely lead to a different result." Barker v. Brinegar,

346 N.J. Super. 558, 567 (App. Div. 2002).

      Thus, "[t]he relevant focus 'must center on whether the conditions

precedent to the application of the collateral estoppel doctrine have been

satisfied and, if so, whether the application of the doctrine is equitable under the

circumstances.'" L.T. v. F.M., 438 N.J. Super. 76, 86 (App. Div. 2014) (quoting

R.D., 207 N.J. at 116).

      Under the first prong, the prior action must have involved substantially

similar or identical issues. Ibid. (quoting Olivieri, 186 N.J. at 521). Some courts

have required the issues to be "precisely the same . . . ." In re Liquidation, 214

N.J. at 68 (quoting In re McWhorter, 887 F.2d 1564, 1567 (11th Cir. 1989). This

prong therefore requires consideration of

            whether there is substantial overlap of evidence or
            argument in the second proceeding; whether the
            evidence involves application of the same rule of law;
            whether discovery in the first proceeding could have
            encompassed discovery in the second; and whether the
            claims asserted in the two actions are closely related.

            [First Union Nat'l Bank v. Penn Salem Marina, Inc.,
            190 N.J. 342, 353 (2007).]

      Under the second Dawson prong, an "issue is actually litigated" if the

issue "'is properly raised, by the pleadings or otherwise, and is submitted for


                                                                            A-0324-16T3
                                        14
determination, and is determined . . . .'" Allesandra v. Gross, 187 N.J. Super.

96, 105-06 (App. Div. 1982) (quoting Restatement (Second) of Judgments § 27,

cmt. d (Am. Law Inst. 1982)). By contrast, an issue is not "actually litigated"

when, although it is raised, "no decision with respect thereto was ever rendered"

by the prior tribunal. Id. at 106-07.

      With these guiding principles in mind, we turn to our review of the orders

denying Todaro's Rule 4:50-3 motion and dismissing his complaint under Rule

4:6-2(e). We review a court's determination of a Rule 4:50 motion under an

abuse of discretion standard. DEG, LLC v. Twp. of Fairfield, 198 N.J. 242, 261

(2009). We will find "an abuse of discretion when a decision is made 'without

a rational explanation, inexplicably departed from established policies, or rested

on an impermissible basis.'" US Bank Nat'l Ass'n v. Guillaume, 209 N.J. 449,

467 (2012) (quoting Iliadis v. Wal-Mart Stores, Inc., 191 N.J. 88, 123 (2007)).

      We "review a grant of a motion to dismiss a complaint for failure to state

a cause of action de novo, applying the same standard under Rule 4:6-2(e) that

governed the motion court." Wreden v. Twp. of Lafayette, 436 N.J. Super. 117,

124 (App. Div. 2014).      As such, we are required to limit our inquiry "to

examining the legal sufficiency of facts alleged on the face of the complaint."

Green v. Morgan Props., 215 N.J. 431, 451 (2013) (quoting Printing Mart-


                                                                          A-0324-16T3
                                        15
Morristown v. Sharp Elecs. Corp., 116 N.J. 739, 746 (1989)). Legal sufficiency

"requires allegation of all the facts that the cause of action requires." Cornett v.

Johnson & Johnson, 414 N.J. Super. 365, 385 (App. Div. 2010). The test is

whether a cause of action is "suggested" by the facts. Printing Mart, 116 N.J. at

746 (quoting Velantzas v. Colgate-Palmolive Co., 109 N.J. 189, 192) (1988)).

We "search[] the complaint in depth and with liberality to ascertain whether the

fundament of a cause of action may be gleaned even from an obscure statement

of claim, opportunity being given to amend if necessary[,]" ibid. (quoting Di

Cristofaro v. Laurel Grove Memorial Park, 43 N.J. Super. 244, 252 (App. Div.

1957)), unless an "opportunity to amend would not be fruitful." Johnson v.

Glassman, 401 N.J. Super. 222, 247 (App. Div. 2008). See also Hoffman v.

Hampshire Labs, Inc., 405 N.J. Super. 105, 116 (App. Div. 2009).

      Applying both standards, we conclude from our review that Judge Ciccone

neither abused her discretion in denying Todaro's motion to vacate nor erred in

granting Manzo's Rule 4:6-2(e) motion as to all defendants. In each instance,

we agree with the judge's determination that Todaro's claims of perjury were

litigated through the trial and in our consideration of Todaro's earlier appeals.

      Even if collateral estoppel did not apply, we conclude that Todaro's claims

were not supported by any "clear, convincing and satisfactory evidence" of


                                                                            A-0324-16T3
                                        16
perjury that was not available to him during the trial and that established the

alleged "[p]erjured testimony . . . warrant[ed] disturbance of [the] final

judgment . . . [because it was] willfully and purposely falsely given, and . . .

[was] material to the issue tried and not merely cumulative but probably to have

controlled the result." Shammas v. Shammas, 9 N.J. 321, 330 (1952). Similarly,

Todaro's post-judgment submissions in support of his claim that a fraud upon

the court was committed by Giordano or Manzo failed to "'demonstrate[], clearly

and convincingly, that a party ha[d] sentiently set in motion some

unconscionable scheme calculated to interfere with the judicial system's ability

[to] impartially . . . adjudicate a matter by improperly influencing the trier or

unfairly hampering the presentation of the opposing party's claim or defense.'"

Triffin v. Automatic Data Processing, Inc., 411 N.J. Super. 292, 298 (App. Div.

2010) (quoting Triffin v. Automatic Data Processing, Inc., 394 N.J. Super. 237,

251 (App. Div. 2007)). While as Todaro argues a fraud on the court may occur

where a party commits perjury, whether through oral or written testimony, see

Von Pein v. Von Pein, 268 N.J. Super. 7, 15-16 (App. Div. 1993), perjured

testimony alone is generally not sufficient to set aside a judgment . Shammas, 9

N.J. at 329-30. In any event, here, the trial judge was fully aware of Giordano's

inconsistent letters, emails, and testimony, including the March 28, 2008 emails,


                                                                         A-0324-16T3
                                      17
when he decided the case and gave it the weight he deemed appropriate. There

has been no new evidence presented that warrants any further consideration.

      We have also considered Todaro's remaining arguments and conclude that

they are without sufficient merit to warrant discussion in a written opinion. R.

2:11-3(e)(1)(E).

      Affirmed.




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                                      18
