                                NOT FOR PUBLICATION WITHOUT THE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-3657-17T2
BERLIN CROSS KEYS
SHOPPING CENTER
ASSOCIATES, LLC,

          Plaintiff,

v.

STEPHEN SAMOST,
ESQUIRE, and LAW OFFICE
OF STEPHEN SAMOST,

          Defendants/Third-Party
          Plaintiffs,

and

SAMINVEST CO., LLC,

          Defendant/Third-Party
          Plaintiff-Respondent,

v.

WALMART STORES, INC.,
WALMART REAL ESTATE
BUSINESS TRUST,

          Third-Party Defendants-
          Appellants,
and

CARL FREEDMAN, MITCHELL
COHEN, SCOTT CIOCCO,
and MARK ARENCIBIA,

     Third-Party Defendants.
__________________________________

            Argued March 25, 2019 – Decided April 26, 2019

            Before Judges Haas and Mitterhoff.

            On appeal from Superior Court of New Jersey, Law
            Division, Camden County, Docket No. L-5114-12.

            Donald A. Rea (Saul Ewing Arnstein & Lehr LLP) of
            the Maryland bar, admitted pro hac vice, argued the
            cause for appellants (Saul Ewing Arnstein & Lehr LLP,
            attorneys; Amy L. Piccola, Donald A. Rea, and Jordan
            D. Rosenfeld (Saul Ewing Arnstein & Lehr LLP) of the
            Maryland bar, admitted pro hac vice, on the briefs).

            Peter J. Boyer argued the cause for respondent (Hyland
            Levin LLP, attorneys; Peter J. Boyer and Megan
            Knowlton Balne, on the brief).

PER CURIAM

      Third-party defendants Walmart Stores, Inc. and Walmart Real Estate

Business Trust (collectively "Walmart") appeal from the trial court's denial of

its motion for summary judgment and motion for a directed verdict. Following

a five-day trial, the jury returned a $500,000 verdict in favor of third-party

plaintiff Saminvest Co., LLC ("Saminvest") on its claim against Walmart for

                                                                       A-3657-17T2
                                      2
fraudulent misrepresentation. On appeal, Walmart argues that the trial court

erred in ruling that Saminvest's claim was not barred by the statute of limitations.

For the reasons that follow, we remand.

                                         I.

                                        A.

      We glean the following facts from the trial record. This case stems from

a real estate contract dispute. Stephen Samost has been a licensed attorney in

New Jersey since 1983 and has experience in real estate law, tax law, and land

use law. Samost is a principal of Saminvest, a real estate investment company.

      In 2005 and 2006, Saminvest, through Samost, was involved in

negotiations with Berlin Cross Keys Shopping Center Associates ("BCKA")

regarding the development and construction of a shopping center on a property

owned by Saminvest in the Borough of Berlin, New Jersey. The proposal was

initially structured as a three-way development involving Saminvest as the

landowner, BCKA as the developer, and Walmart as an anchor tenant.

      Initially, Saminvest and BCKA executed a purchase agreement for BCKA

to purchase the entire property, and BCKA separately negotiated with Walmart

for Walmart to purchase a portion of property to construct a Walmart store.

During these negotiations, Walmart employed engineers to determine the


                                                                            A-3657-17T2
                                         3
feasibility and plans for developing its portion of the property. With Samost

representing BCKA as its land use counsel, BCKA obtained zoning approvals

from the Berlin Borough Planning Board for a "big box" retail store on the

property.

      While the proposals were being considered by the Planning Board,

hundreds of objectors attended the public hearing regarding the proposals. After

the Planning Board approved the projects, some objectors filed actions in lieu

of prerogative writs in the Superior Court to block the development. Samost

appeared on behalf of Saminvest to oppose the objectors' challenges.

      While the Superior Court actions were pending, it became apparent that

BCKA was no longer financially able to move forward with the deal. Thereafter,

in or around September 2007, Samost began engaging in discussions with

Walmart's attorneys and Matt Sitton, a Walmart real estate manager, about

Walmart purchasing the property directly from Saminvest. Samost testified that

during a phone call in or around November 2007, Sitton orally agreed that

Walmart would purchase the entire property for $8.6 million after all of t he

appeals of the zoning approvals had been exhausted and successfully resolved .

Additionally, Samost testified that the parties agreed that Walmart could

terminate the agreement if (1) the property was condemned or sold to the


                                                                        A-3657-17T2
                                       4
Borough or County in lieu of condemnation, or (2) the zoning appeals were not

final and un-appealable by December 31, 2009.

      Samost testified that around this time, Sitton requested that the parti es

execute a letter of intent. Samost, however, declined to execute a letter of intent,

because he felt the deal was "way further down the road than a letter of intent"

and instead wanted to execute a final purchase agreement. Samost testified that

Walmart did not want to execute a purchase agreement because it "was

concerned about being viewed as a stalking horse by the County or the

Borough." Specifically, Berlin Borough and Camden County were considering

whether to seek that the property be condemned and had been negotiating with

Samost to purchase the property in lieu of condemnation. Samost testified that

Walmart was concerned it would "be seen as driving up the price . . . and causing

difficulty for the County." Nonetheless, Samost testified that he was satisfied

that he and Sitton had agreed to the terms of the transaction during the November

2007 phone call.

      Through discovery in the instant matter, Samost obtained a draft of a non-

binding letter of intent dated November 1, 2007, which Walmart prepared but

neither executed nor sent to Samost. The letter contained the $8.6 million dollar

purchase price, noted that closing was conditioned on Saminvest obtaining all


                                                                            A-3657-17T2
                                         5
final zoning approvals and the appeals being successfully resolved, and provided

that Walmart could terminate the agreement if all final approvals had not been

obtained by December 31, 2009. The letter also included exculpatory language

noting that it did "not constitute an offer by Wal-Mart to purchase the Property

on the terms set forth" and that the parties would not "be bound to any obligation,

one to the other, unless and until a written purchase agreement is mutually

executed and delivered."

      Based on the oral agreement with Sitton, Samost continued to defend the

zoning appeals. On March 25, 2008, the Law Division entered a final judgment

affirming the Planning Board's approval of the site plans. That same day,

counsel for Walmart wrote Samost a letter, stating in relevant part:

                   We have been informed by Wal-Mart that an
            article appeared in the Courier Post this morning that
            indicates the Superior Court of New Jersey recently
            upheld an appeal of the Berlin Borough Planning
            Board's approval of a Wal-Mart Supercenter on the
            above referenced property.
                   As you are aware, Wal-Mart had the right to
            purchase the property, or take an assignment of the
            right to purchase the property, from [BCKA]. It was
            Wal-Mart's understanding that [BCKA] had terminated
            its contractual rights and Wal-Mart's contractual rights
            regarding the property had terminated with [BCKA's].
                   Accordingly, Wal-Mart believes that it has an
            obligation to inform the Court, and any interested
            parties, that it no longer has any interest in the property.


                                                                           A-3657-17T2
                                         6
      If it is your position that Wal-Mart still has a legal
      interest in the property, please immediately advise as to
      the nature of that interest. Otherwise, we will be
      informing the Court, and the interested parties, that
      Wal-Mart's interest in the property has been terminated.

Samost responded via letter the next day, March 26, stating:

      I am in receipt of your letter of March 25, 2008. For a
      number of reasons, I do not think it is necessary for you
      to contact the Court. As various representatives of
      Walmart can attest, given their presence at the hearings
      that were held before the Berlin Planning Board with
      respect to the development application, the record is
      replete with statements and letters from me – as well as
      correspondence from Walmart itself – that Walmart did
      not have an agreement to acquire the property. . . .
             I spoke with [Walmart's outside counsel], Matt
      Sitton, and [Walmart's real estate broker] a few months
      ago about these matters. My understanding, as a result
      of those conversations, was that Walmart did not want
      to be a "stalking horse" in this matter, and it understood
      that the Borough was acquiring the property. As I
      stated then, and restate again today, there is no
      agreement with Berlin Borough (or any other
      governmental agency) to acquire the property. There
      have been discussions; however, they have been
      consistent in lacking a commitment with respect to a
      critical element of the agreement – money.
             If, as I have stated, and as Walmart has
      previously set forth in correspondence to the Berlin
      Borough Planning Board, Walmart did not have an
      agreement to acquire the property, but rather might do
      so in the future, then there is nothing different today
      than there was when this matter was before the Berlin
      Borough Planning Board. As you know the lawsuits
      challenged the action of the Planning Board were based


                                                                   A-3657-17T2
                                  7
                 on the record, and Walmart's position is clearly stated
                 on the record.

Samost testified that when writing this letter, he understood that Walmart still

wanted to avoid any ill will with the County and Borough.

       Samost also testified that after Walmart received the March 26 letter,

Sitton called him and reiterated that Walmart would proceed with the $8.6

million purchase price once the zoning appeals were exhausted, and provided

that the County did not condemn the property or reach an agreement in lieu of

condemnation with Saminvest.           Samost contends that this conversation is

referenced in an email exchange dated March 28, 2008 between Jeff Cohen,

Walmart's real estate broker, and Sitton, in which Sitton confirms to Cohen that

he called Samost. The email, however, does not mention what Sitton and Samost

discussed.

       Unbeknownst at the time to Samost, after the parties exchanged letters,

Walmart prepared a letter to the Mayor of Berlin Borough. In pertinent part, the

letter states:

                 Recent newspaper stories have stated that the Superior
                 Court of New Jersey has upheld the planning board's
                 approval of the project. They further state that a bank,
                 restaurant and a Wal-Mart with grocery store are
                 targeted for the property, suggesting that construction
                 may begin shortly. To the extent the articles suggest
                 construction of a Wal-Mart Supercenter will begin on

                                                                            A-3657-17T2
                                            8
            the property, the articles are incorrect. While the
            appeal was pending, Wal-Mart's negotiations with the
            property owner and developer terminated, without a
            contract. At this time, Wal-Mart will not be moving
            forward with the project.

            [(emphasis added).]

      Through discovery in the instant matter, it was revealed that the original

draft of Walmart's letter closed with the final sentence: "Accordingly, Wal-Mart

no longer has intent to construct a store on the property." As reflected in emails

exchanged on March 27 and 28, 2008 between Sitton, other Walmart employees,

and Walmart's counsel, the final sentence was edited to the language emphasized

above at the request of Sitton. Walmart did not provide Samost a copy of this

letter to the Samost, nor did Samost know the letter had been sent to the Mayor.

      On April 2, 2009, the Supreme Court denied the objectors' petition for

certification. On April 13, Samost emailed Jeff Cohen, Walmart's real estate

broker, attaching the order denying certification and stating, "If Walmart's

attorneys need anything else, then please advise."        After not receiving a

response, Samost called Cohen about one month later to discuss the court ruling

and to confirm that Saminvest was prepared to move forward with the

transaction. In a May 13, 2009 email exchange with the header "Samost called,"

Cohen asked Sitton, "What should I tell him?" Sitton responded, "What are the


                                                                          A-3657-17T2
                                        9
economics?" Cohen responded to Sitton, "You know Steve. He wants the same

deal as before."

        On July 20, 2009, Samost emailed Cohen to discuss applying for funds

from the proposed New Jersey Stimulus Bill. Within this email, Samost stated,

"The threshold determination that must be made is whether Walmart is

interested in moving forward with the property." Thereafter, Walmart declined

to proceed with a closing on the property.

                                         B.

        On December 3, 2012, BCKA filed a complaint against Stephen Samost,

Esq., the Law Office of Stephen A. Samost and Saminvest ("Samost parties").

On November 20, 2014, the Samost parties filed a third-party complaint joining

Walmart and other parties. 1 On May 26, 2016, the Samost parties amended the

third-party complaint to add new claims, including a claim for fraudulent

misrepresentation based on Sitton's oral promise to Samost.

        After the close of discovery, Walmart filed a motion for summary

judgment. Walmart argued that New Jersey's six-year statute of limitations for

fraud barred Saminvest's claims against Walmart. The trial court denied the

motion on March 3, 2017.         The judge found that a jury reasonably could


1
    The claims against the other parties were later dismissed.
                                                                      A-3657-17T2
                                        10
conclude that during the phone call between Sitton and Samost after the

exchange of the March 2008 letters, Sitton reaffirmed Walmart's agreement to

purchase the property after the zoning issues had been exhausted.

      The judge further concluded that based on Walmart's revision of its letter

to the Berlin Borough Mayor to read "[a]t this time, Walmart will not be moving

forward with the project," a jury reasonably could find that Walmart's letter was

consistent with the terms of the alleged oral promise from Sitton to Samost

because such a deal would have been contingent on the resolution of the zoning

appeals. Ultimately, the judge concluded:

            [I]t's going to come down to credibility and that's not
            my -- you know, bailiwick is to try and determine
            credibility. That's not what I'm here to do. . . . So based
            on my ruling that I believe reasonable inferences can be
            drawn that there was that agreement still in existence
            even after the March 26th, 2008, letter of Mr. Samost, .
            . . the Statute of Limitations arguments fall.

      Prior to trial, all claims were settled except for Saminvest's claims against

Walmart. Between February 27 and March 9, 2018, a five-day jury trial was

held on Saminvest's remaining claims against Walmart. Saminvest primarily

sought to recover the difference between the $8.6 million sale price promised




                                                                           A-3657-17T2
                                       11
by Walmart, and the current value of the property, which Saminvest's expert

calculated to be $1.72 million. 2

      At the close of Saminvest's case-in-chief, Walmart moved for a directed

verdict based on the statute of limitations, which the trial court denied. In

denying the motion, the trial judge reiterated that a jury could reasonably infer

that Walmart was still abiding by Sitton's oral promise to purchase the property

once the zoning appeals were exhausted from the language Walmart used in its

March 25, 2008 letter to Samost and from Sitton's phone call to Samost after the

exchange of those letters. The trial judge reasoned:

            [E]ven if Mr. Samost says this on the 26th, if on the --
            later that day or on the 27th, Mr. Sitton reconfirms their
            agreement it's still on, we're still going to move
            forward, a jury could conclude that and he doesn't have
            an issue. So it's based on . . . those findings that are in
            the record that I believe a jury could determine that Mr.
            Samost did not have all the facts present to him that
            would have been necessary for him to believe that he
            had a cause of action that he had to pursue at that time.
            So that's why I'm going to deny that application.

      Walmart renewed its motion for a directed verdict at the close of all of the

evidence, and the trial court again denied the motion. The trial court did not

make any new findings in denying this motion.


2
   Walmart's expert calculated the current value of the property to be $6.5
million.
                                                                          A-3657-17T2
                                       12
       The jury returned a verdict in favor Saminvest in the sum of $500,000 on

its fraudulent misrepresentation claim, but found in favor of Walmart on all

other claims. On April 13, 2008, the trial court entered an order amending the

final judgment to add $38,352.70 in prejudgment interest. This appeal followed.

                                        II.

                                        A.

       On appeal, Walmart contends that the trial court erred in denying its

motion for summary judgment and motion for a directed verdict, because

Saminvest's fraudulent misrepresentation claim was barred by the six-year

statute of limitations for fraud. 3 Walmart argues that even with the benefit of

the discovery rule, Samost reasonably should have known that Walmart

disavowed any agreement to purchase the property by way of the March 25,

2008 letter. Therefore, according to Walmart, Saminvest's November 20, 2014

third-party complaint was filed outside of the statute of limitations. Walmart

submits that Samost's unsubstantiated testimony contrary to the documentary

evidence in the record does not create a genuine issue of material fact to preclude

summary judgment based on the statute of limitations.




3
    See N.J.S.A. 2A:14-1
                                                                           A-3657-17T2
                                       13
      In opposition, Saminvest first argues that Walmart waived its appeal of

the trial court's denial of summary judgment, because Walmart's notice of appeal

("NOA") did not identify or attach the March 3, 2017 order denying summary

judgment, nor did Walmart's case information statement ("CIS") designate that

order as part of the appeal. Therefore, Saminvest contends that the issues raised

in Walmart's appellate brief are not properly before the court. As to the merits

of the statute of limitations issue, Saminvest asserts that the earliest it could

reasonably have discovered that Walmart disavowed Sitton's promise was in

April 2009 after the Supreme Court denied the objectors' petition for

certification. Saminvest also contends that Walmart concealed material facts

that prevented the assertion of its fraud claims until after litigation commenced .

                                        B.

      We first address Saminvest's argument that the issues raised in Walmart's

appellate brief are not properly before the court. Saminvest correctly notes that

Walmart did not identify the March 3, 2017 order denying summary judgment

in its NOA, attach the order to its NOA, or specifically designate that the order

was being appealed in its CIS. Nonetheless, we reject Saminvest's argument

because Walmart's NOA and CIS put Saminvest on sufficient notice that the




                                                                           A-3657-17T2
                                       14
issue    presented   in   this   appeal    is   whether   Saminvest's   fraudulent

misrepresentation claim was barred by the statute of limitations.

        We may review orders not specifically indicated in a NOA, provided that

the NOA and CIS give sufficient notice of the issues on appeal. See Silviera-

Francisco v. Bd. of Educ. of Elizabeth, 224 N.J. 126, 141-43 (2016) (permitting

review of an interlocutory agency decision not specifically indicated in the NOA

because the CIS made clear that the appellant was challenging the interlocutory

decision, and the respondent and the appellate panel had sufficient notice of the

issue on appeal); Ahammed v. Logandro, 394 N.J. Super. 179, 187-88 (App.

Div. 2007) (reviewing order not referenced in the NOA where the plaintiff's CIS

made clear primary issue on appeal, and the two orders addressed the same legal

issue); Synnex Corp. v. ADT Sec. Servs., Inc., 394 N.J. Super. 577, 588 (App.

Div. 2007) (reviewing order not indicated in the NOA where "the text of [the

CIS] clearly indicates that the [earlier order] is one of the primary issues

presented by the appeal."); Fusco v. Bd. of Educ. of City of Newark, 349 N.J.

Super. 455, 461 (App. Div. 2002) (noting that where "the basis for the motion

judge's ruling on [an order and a subsequent order] may be the same . . . , an

appeal solely from [the subsequent order] may be sufficient for an appellate




                                                                          A-3657-17T2
                                          15
review of the merits of the case, particularly where those issues are raised in the

CIS.").4

      In this case, Walmart indicated in its CIS that the issue on appeal was: "Is

Third-Party    Plaintiff   Saminvest     Co.,   LLC's     claim   for    fraudulent

misrepresentation barred by [N.J.S.A.] 2A:14-1?" In the statement of facts and

procedural history in the CIS, Walmart noted that the trial court denied its

motion for summary judgment based on the statute of limitations defense.

Walmart also requested the transcript for the summary judgment motion hearing.

      Moreover, while moving for a directed verdict during trial, Walmart's

counsel explicitly noted he was renewing the statute of limitations argument

previously raised in the summary judgment motion, and the trial court denied

the motions on substantially the same grounds. In this regard, the information

contained in the CIS makes clear that Walmart was challenging the final

judgment based on the trial court's interlocutory rulings on the motion for

summary judgment and the motion for a directed verdict. See Sutter v. Horizon

Blue Cross Blue Shield of N.J., 406 N.J. Super. 86, 106 (App. Div. 2009) ("'An

appeal from a final judgment raises the validity of all interlocutory orders'


4
  We note that the better practice is to specifically identify all orders implicated
by the appeal in the NOA and CIS. See Silviera-Francisco, 224 N.J. at 143;
Fusco, 349 N.J. Super. at 461 n.1.
                                                                            A-3657-17T2
                                        16
previously entered in the trial court." (quoting In re Carton, 48 N.J. 9, 15

(1966))).

         For these reasons, we conclude that Walmart's NOA and CIS provided

sufficient notice that it was challenging the trial court's order denying summary

judgment, as well as the court's denial of Walmart's motion for directed verdict

during trial. Therefore, we reject Saminvest's argument that the issues raised in

Walmart's appellate brief are not properly before us.

                                         C.

         We next turn to Walmart's argument that Saminvest's fraudulent

misrepresentation claim was barred by the statute of limitations.         Initially,

Walmart points out the Saminvest alleged that Sitton made an oral promise to

Samost in the fall of 2007, but Saminvest did not file suit until over seven years

later in November 2014 – which would be outside of N.J.S.A. 2A:14-1's six-

year statute of limitations. The parties, however, dispute whether the discovery

rule tolled the statute of limitations such that Saminvest's complaint was timely

filed.

         The discovery rule is an equitable doctrine which tolls the accrual of the

statute of limitations "until the injured party discovers, or by an exercise of

reasonable diligence and intelligence should have discovered that he may have


                                                                           A-3657-17T2
                                         17
a basis for an actionable claim." Lopez v. Swyer, 62 N.J. 267, 272 (1973). In

Lopez, the Supreme Court held "that whenever a plaintiff claims a right to relief

from the bar of the statute of limitations by virtue of the so-called 'discovery'

rule, the question as to whether such relief is properly available shall be deemed

an issue for determination by the court rather than by the jury." Ibid.

      The Court outlined procedures and standards for a trial court to apply in

making a discovery rule determination:

            The determination by the judge should ordinarily be
            made at a preliminary hearing and out of the presence
            of the jury. Generally the issue will not be resolved on
            affidavits or depositions since demeanor may be an
            important factor where credibility is significant. Where
            credibility is not involved, affidavits, with or without
            depositions, may suffice; it is for the trial judge to
            decide. The issue will be whether or not a party, either
            plaintiff or counterclaimant, is equitably entitled to the
            benefit of the discovery rule. All relevant facts and
            circumstances should be considered.                   The
            determinative factors may include but need not be
            limited to: the nature of the alleged injury, the
            availability of witnesses and written evidence, the
            length of time that has elapsed since the alleged
            wrongdoing, whether the delay has been to any extent
            deliberate or intentional, whether the delay may be said
            to have peculiarly or unusually prejudiced the
            defendant. The burden of proof will rest upon the party
            claiming the indulgence of the rule.

            [Id. at 275-76 (footnotes omitted).]

      The Court also noted:

                                                                          A-3657-17T2
                                       18
            In an appropriate case, however, where it can be
            foreseen that much the same evidence will be adduced
            at the trial itself as upon the statute of limitations issue,
            the judge may elect to go forward with the trial,
            receiving the evidence and ruling upon the limitations
            issue at the end of the plaintiff's case or after all proofs
            are in, as may be appropriate.

            [Id. at 275 n.3.]

      In this case, the court appropriately exercised its discretion under Lopez

when it declined to definitively rule on the statute of limitations issue when

adjudicating Walmart's motion for summary judgment prior to trial. The record

does not reveal that either party requested a Lopez hearing in relation to

Walmart's motion for summary judgment.5 Moreover, the trial court aptly

identified circumstantial evidence to be presented at trial that would support a

conclusion that Saminvest's complaint was filed within the statute of limitations.


5
  In making the motion for a directed verdict at the close of Saminvest's case in
chief, however, Walmart counsel stated:

            As a preliminary matter, I understand that -- that the
            courts typically do on a limitations basis what's called
            a Lopez hearing. And that in certain circumstances, in
            conducting a Lopez hearing, which we're requesting,
            for the record, evidence will be accepted by the Judge
            that you feel is pertinent or relevant. I think that we
            have that evidence through the testimony in the
            plaintiff's case, however disputed it may be.


                                                                            A-3657-17T2
                                        19
Although the trial court mistakenly suggested that the jury would make the

determination of when Saminvest reasonably should have known that Walmart

was disavowing its promise, we detect no error in the trial court's denial of

Walmart's motion for summary judgment and decision to proceed to trial.

      Nonetheless, we are constrained to remand because the trial court did

definitively resolve the discovery rule issue after hearing all the evidence

presented at trial. Although the trial court placed analysis on the record with

respect to some of the factors annunciated in Lopez in denying Walmart's motion

for a directed verdict at the close of Walmart's case-in-chief, the court explicitly

declined to make credibility determinations, and assessed the evidence in the

light most favorable to Saminvest in terms of what a reasonable jury could infer.

This approach was inconsistent with Lopez's mandate that the court make a

determination on the discovery rule, and if necessary assess credibility, prior to

the case being submitted to the jury for a verdict. See id. at 275-76; see also

Walker v. Choudhary, 425 N.J. Super. 135, 145 (App. Div. 2012) ("It is well-

settled that a judge is in the best position to most equitably consider the issue of

fairness with regard to when the statute of limitations accrues and when

defendants have knowledge of the litigation.").




                                                                            A-3657-17T2
                                        20
      For these reasons, we remand this matter to the trial court to issue a ruling

on when plaintiff's action accrued for purposes of the discovery rule. In ordering

this remand, we are mindful that the testimony and evidence relevant to the

discovery rule issue has already been presented at trial. Indeed, in their appellate

briefs, both parties identify evidence presented at trial in support of their

positions on the accrual issue. Because all the relevant evidence needed to make

this determination is already present in the trial record, we direct the trial court

to issue findings based upon the trial record, rather than holding a new Lopez

hearing on remand. In making its decision whether plaintiff is entitled to the

benefit of the discovery rule, the trial court shall make credibility assessments 6

and issue factual findings as to the date Saminvest knew or should have known

it had a cause of action for fraudulent misrepresentation.7

      Remanded. We do not retain jurisdiction.




6
  Because resolution of this issue requires credibility determinations, the matter
should be remanded to the judge who presided over the trial.
7
   The trial court need not analyze the tolling issue with respect to all of
Saminvest's causes of action, as the jury found for Saminvest only as to the
fraudulent misrepresentation claim.
                                                                            A-3657-17T2
                                        21
