NOT FOR PUBLICATION WITHOUT THE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-5040-18T1









                   Argued October 1, 2020 – Decided October 22, 2020

                   Before Judges Sumners, Geiger and Mitterhoff.

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



      To provide context to our decision, we briefly discuss the background of

this litigation.   In 2015, Aiello filed suit asserting breach of a partnership

agreement 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 Wainwright 1 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 apparently

    Summary judgment granted in favor of the Wainwrights was not appealed.
  To avoid confusion with Justin Wainwright, we refer to Bruce by his first
name; we mean no disrespect.
references a dispute against individuals other than Zawistowski and the


      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. City

  Prior to trial, Aiello unsuccessfully moved to re-open discovery to allow him
to submit allegedly new audio recordings he found while his appeal was
pending, and to allow for depositions limited to the newly discovered audio
recordings. This ruling has not been appealed.
of 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 just ice

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 recordings

    Aiello's reference to defendants includes Zawistowski and the Wainwrights.
supported 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 proved

the 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

      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, original

recordings 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 his

deposition from an unrelated action against Zawistowski involving Team

Precision Auto was admitted into evidence subject to the judge's redactions.

During the deposition, a voice message, allegedly from Bruce to Aiello, was

played. Bruce confirmed it was his voice leaving the message. As such, the

voice message and Bruce's confirmation were transcribed in the deposition.

Aiello contends the message shows that he and Bruce were "in discussions . . .

about the [partnership] agreement at issue . . . and that [he] was more involved

than the [d]efendants 5 were claiming. . . . [and] that [d]efendants were not being

truthful." The judge also redacted portions of Bruce's deposition testimony

wherein he stated: (1) "Zawistowski's penchant for making promises to others

and then breaking those promises[;]" (2) he was "suing [Zawistowski] for breach

of promises he had made to them with respect to Team Precision Auto[;]" and

    It appears this reference is to Zawistowski and Bruce.
(3) Zawistowski's history of "ma[king] promises to employees at Team Precision

Auto and . . . not keep[ing] th[em]."

      We discern no abuse of discretion in the judge's decision to bar admission

of the voice message and to redact portions of Bruce's deposition testimony.

Regarding the voice message, we agree with defendants' assertion that

inadmissible hearsay statements were made, and the original complete

recordings were never produced as ordered. There is no merit to Aiello's

contention that the evidence was probative, not outweighed by undue prejudice,

and established Zawistowski's lack of credibility.

      We reach the same conclusion regarding redaction of Bruce's deposition

testimony. Admission of deposition testimony is subject to all other rules of

evidence.    R. 4:16-2.     The judge determined Bruce's comments about

Zawistowski arose in a different litigation and were based on Bruce's belief that

Zawistowski treated "many people in the same manner." As to the latter, the

judge specifically found the deposition testimony provided no names or specific

instances to prove habit, as Aiello contended and still maintains in this appeal.

      Aiello's reliance upon N.J.R.E. 401, 402, and 406 to admit Bruce's

testimony as evidence of Zawistowski's habit to renege on promises and mistreat

people is misplaced. Except in certain circumstances, relevant evidence, which

is "evidence having a tendency in reason to prove or disprove any fact of

consequence to the determination of the action[,]" is admissible. N.J.R.E. 401,

402. See also State v. Castagna, 400 N.J. Super. 164, 174 (App. Div. 2008).

The evidence must be probative of a fact that is "really in issue in the case[,]"

as determined by reference to the applicable substantive law. State v. Buckley,

216 N.J. 249, 261 (2013) (quoting State v. Hutchins, 241 N.J. Super. 353, 359

(App. Div. 1990)).

      "While evidence of a character trait generally is inadmissible, evidence

pertaining to a 'habit' is permitted [under N.J.R.E. 406]." Showalter v. Barilari,

Inc., 312 N.J. Super. 494, 512 (App. Div. 1998). Under the rule, "[e]vidence,

whether corroborated or not, of habit or routine practice is admissible to prove

that on a specific occasion a person . . . acted in conformity with the habit or

routine practice." N.J.R.E. 406(a). "Evidence of specific instances of conduct

is admissible to prove habit or routine practice if evidence of a sufficient number

of such instances is offered to support a finding of such habit or routine

practice." N.J.R.E. 406(b).

      The purpose of habit evidence is to show "the person's regular practice of

responding to a particular kind of situation with a specific type of conduct."

State v. Kately, 270 N.J. Super. 356, 362 (App. Div. 1994) (citation omitted).

Hence, "[b]efore a court may admit evidence of habit, the offering party must

establish the degree of specificity and frequency of uniform response that

ensures more than a mere 'tendency' to act in a given manner, but rather, conduct

that is 'semi-automatic' in nature." Sharpe v. Bestop, Inc., 158 N.J. 329, 331,

(1999) (quoting Simplex, Inc. v. Diversified Energy Systems, Inc., 847 F.2d

1290, 1293 (7th Cir. 1988)). To that end, "two factors are considered controlling

as a rule: adequacy of sampling and uniformity of response." Id. at 332 (citation

omitted). See Jones v. S. Pac. R.R., 962 F.2d 447, 449 (5th Cir. 1992) (holding

that nine diverse safety violations do not show "habit" of negligence).

      Here, Bruce's testimony is not probative of whether Aiello reached an

agreement with Zawistowski to form an automobile dealership partnership

because the testimony does not relate to Aiello's dealings with Zawistowski.

Moreover, as the judge found, Bruce's testimony lacks sufficient specificity to

support the habit evidence Aiello seeks to admit. There is no specific context

to the accusations against Zawistowski, and the individuals who supposedly

made the comments are not identified in order to allow Zawistowski to verify

their comments.

      The applicability of N.J.R.E. 406 is of no consequence, however, as the

judge properly excluded the evidence under N.J.R.E. 401 and 402. See Griffin,

225 N.J. at 420 (demonstrating that while certain evidence may "not [be] subject

to exclusion under" other evidentiary "rule[s], it nonetheless [can] be barred

pursuant to N.J.R.E. 403"). Likewise, the proffered evidence was excludible

under N.J.R.E. 404(b), barring introduction of "[e]vidence of other . . . wrongs,

or acts . . . to prove a person's disposition in order to show that on a particular

occasion the person acted in accordance [therewith,]" which, in this case,

appears to be Aiello's stated purpose. See Harris v. Peridot Chem. (N.J.), Inc.,

313 N.J. Super. 257, 276-83 (App. Div. 1998) (acknowledging the application

of N.J.R.E. 404(b)'s prohibition in civil cases). In sum, the redacted testimony

offered by Aiello was inadmissible hearsay by Bruce that defendant has lied to

other people and was properly excluded by the judge.

      Lastly, Aiello asserts Bruce's redacted testimony was admissible under

N.J.R.E. 607 as "extrinsic evidence relevant to the issue of credibility," and

under N.J.R.E. 608 as an attack on Zawistowski's credibility as a witness by

showing "evidence in the form of opinion or reputation . . . relate[d] only to the

witness' character for truthfulness or untruthfulness."

      Pursuant to N.J.R.E. 607, "[f]or the purpose of attacking or supporting the

credibility of a witness, any party . . . may examine the witness and introduce

extrinsic evidence relevant to the issue of credibility . . . ." "Although extrinsic

evidence may be admitted to impeach a witness . . . its probative value as

impeachment evidence must be assessed independently of its potential value as

substantive evidence." Green v. N.J. Mfrs. Ins. Co., 160 N.J. 480, 494 (1999).

As indicated above, Bruce's redacted testimony had no relevant or probative

value in establishing the existence of a partnership agreement between Aiello

and Zawistowski; thus, it is not admissible under N.J.R.E. 607.

      Pursuant to N.J.R.E. 608(a), a party may attack a witness's credibility with

"evidence in the form of opinion or reputation" relating to the witness's

propensity for truthfulness or untruthfulness. However, evidence in a civil trial

of "specific instances of conduct" involving untruthfulness, other than evidence

of a conviction, is inadmissible to impeach a witness's credibility. N.J.R.E.

608(c); N.J.R.E. 609; see also Delgaudio v. Rodriguera, 280 N.J. Super. 135,

142-44 (App. Div. 1995) (stating that a Board of Medical Examiners' opinion

that a witness had a "propensity . . . to play somewhat fast and loose with the

truth" was admissible under N.J.R.E. 608, although evidence of the underlying

conduct was not).

      Bruce's redacted testimony alleging Zawistowski was untruthful was

made in the context of his civil suit against Zawistowski. The testimony was

not admissible under N.J.R.E. 608(a) because it included specific instances of

conduct: Zawistowski's breach of promises to him and to employees of Team

Precision Auto.


      The main thrust of Aiello's appeal is his contention that the trial judge

erred in granting a direct verdict in favor of defendants because in determining

he did not have an oral agreement forming an automobile dealer partnership

agreement with Zawistowski, the judge failed to draw all factual inferences in

his favor and improperly required him to prove his claim by clear and convincing

evidence instead of by preponderance of the evidence. We are unpersuaded.

      Rule 4:37-2(b) permits the court to grant a motion for involuntary

dismissal of any action, or part thereof, at the end of the plaintiff's case on "the

ground that upon the facts and upon the law[,] the plaintiff has shown no right

to relief." "Whether the action is tried with or without a jury, such motion shall

be denied if the evidence, together with the legitimate inferences therefrom,

could sustain a judgment in plaintiff's favor." Ibid. A dismissal is appropriate

when "no rational jury could conclude from the evidence that an essential

element of the plaintiff's case is present." Pressler & Verniero, Current N.J.

Court Rules, cmt. 2.1 on R. 4:37-2(b) (2021). Stated another way, a directed

verdict is proper "if the evidence and uncontradicted testimony is 'so plain and

complete that disbelief of the story could not reasonably arise in the rational

process of an ordinarily intelligent mind . . . .'" Frugis v. Bracigliano, 177 N.J.

250, 270 (2003) (quoting Ferdinand v. Agric. Ins. Co., 22 N.J. 482, 494 (1956)).

      Applying these principles, we agree with the trial judge that Aiello, even

affording him the benefit of legitimate inference of his evidence, failed to prove

he reached an oral agreement with Zawistowski forming an automobile dealer

partnership agreement. It is well established that "[a] contract arises from offer

and acceptance, and must be sufficiently definite 'that the performance to be

rendered by each party can be ascertained with reasonable certainty.'" Weichert

Co. Realtors v. Ryan, 128 N.J. 427, 435 (1992) (quoting West Caldwell v.

Caldwell, 26 N.J. 9, 24-25 (1958)). "As a general principle of contract law,

there must be a meeting of the minds for an agreement to exist before

enforcement is considered." Kernahan v. Home Warranty Adm'r of Fla., Inc.,

236 N.J. 301, 319 (2019) (citing Johnson & Johnson v. Charmley Drug Co., 11

N.J. 526, 538 (1953)).

      In addition, the parties must agree "to the essential terms" of the

agreement. Cumberland Farms, Inc. v. N.J. Dep't of Envtl. Prot., 447 N.J. Super.

423, 438-39 (App. Div. 2016) (quoting Mosley v. Femina Fashions Inc., 356

N.J. Super. 118, 126 (App. Div. 2002)). "Where the parties do not agree to one

or more essential terms, however, courts generally hold that the agreement is

unenforceable." Weichert, 128 N.J. at 435. This is so because "the terms of a

contract must be definite and certain so that a court may order with precision

what the parties must do." Graziano v. Grant, 326 N.J. Super. 328, 339 (App.

Div. 1999) (citing Barry M. Dechtman, Inc. v. Sidpaul Corp., 89 N.J. 547, 552

(1982)). An enforceable contract is only created where the parties agree on the

essential terms and agree to be bound by those terms. Weichert, 128 N.J. at 435.

And to establish the existence of a contract, our Supreme Court held seventy

years ago there must be proof by clear and convincing evidence. Young v.

Sabol, 4 N.J. 309, 312 (1950).

      Based upon our review of the record, we discern no reason to upset the

directed verdict to defendants given the lack of proofs Aiello presented to

establish he had an enforceable oral agreement forming an automobile

dealership partnership with Zawistowski. As highlighted by defendants:

         • Aiello admitted he did not meet Zawistowski until 2011 despite

            alleging in his complaint that there was a partnership agreement in


• Aiello testified that when he filed a petition for bankruptcy in

  December 2012, he stated he did not believe he had any interest in

  the dealership;

• Aiello's deceased long-time accountant Arnold Stein testified at

  deposition that after attending a meeting with Zawistowski and

  Aiello to discuss a possible automobile dealership partnership, he

  did not believe a partnership agreement had been finalized, nor was

  he made aware that an agreement was reached;

• Aiello admitted there were never any discussions between him,

  Zawistowski, and the Wainwrights regarding the percentage of

  ownership or profits or moving forward with the Wainwrights'

  continued involvement in the dealership;

• Aiello at times testified he entered into "an enforceable oral

  contract" with Zawistowski at their first dinner meeting in May

  2011 but there are separate agreements;

• Aiello gave inconsistent testimony about three meetings with his

  alleged partners and what occurred at them, including stating at

  different times that an agreement was not reached at the meetings;

         • Aiello testified that several important topics were not discussed

             with him, such as the amount of money Zawistowski would have to

             invest, ownership of profits each partner would receive (sometimes

             addressed by him as 50% or 45% of the profits), or what entity

             would be formed; and

         • Aiello testified that he did not know what position Bruce would

             have at the dealership.

      In addition, we join the judge in concluding Aiello's alleged partnership

terms – there was no termination date; neither party could individually end the

partnership; and the partnership was to last in perpetuity – are not what a person

of ordinarily intelligent mind would enter into. Aiello's contention the judge

should have drawn inferences in his favor is simply without merit. There was

no definitive evidence beyond Aiello's unsubstantiated claims.

      There is likewise no merit to Aiello's contention the trial judge erred in

granting a directed verdict by relying on defendants' defenses of unjust result,

Aiello's failure to include his partnership claim in his initial bankruptcy fil ing,

Aiello not being a licensed car dealer, waiver, laches, estoppel, and the statute

of frauds.   Neither the judge, nor we, find those defenses relevant to the

appropriate dismissal of Aiello's complaint.

      Our remand was based solely on the initial Chancery judge's failure on

summary judgment to view Aiello's claims in the light most favorable to Aiello.

That is not the standard when considering a motion for directed verdict. We are

convinced that legitimate inferences of Aiello's evidence, the standard

applicable in consideration of a directed verdict motion, does not support his

claim that there was a meeting of the minds that he was a partner in the


      Applying the clear and convincing standard of evidence to establish the

existence of an oral contract, the judge correctly reasoned defendants were

entitled to a directed verdict. Moreover, the trial judge acknowledged she would

have made the same finding under the preponderance of the evidence standard.

She stated:

              Here simply, there is simply not enough even by a
              preponderance of the evidence to establish that there
              was ever a meeting of the minds of the terms that Mr.
              Aiello has, has . . . testified to. And even though . . . I
              find him earnest, I find . . . he is simply mistaken in his
              belief that the two parties entered into anything that
              could resemble an agreement and be enforceable.

Consequently, we reject Aiello's argument the wrong standard of proof was

applied in dismissing his claim that he had an oral partnership agreement.


      Finally, Aiello's contention the trial judge, siting as a judge of equity,

should have provided him some form of equitable relief for finding Zawistowski

an automobile dealership is without sufficient merit to warrant extensive

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

      Aiello conflates the judge's finding that he located an automobile

dealership for Zawistowski with evidence he and Zawistowski reached an oral

agreement that went unfulfilled. As mentioned above, the judge properly found

Aiello failed to prove he had an oral agreement to form an automobile dealership

partnership with Zawistowski.     The judge also found that Aiello failed to

establish he suffered any damages, and that his complaint did not demand

equitable relief. Thus, the judge determined:

            But certainly there was no offer, there was no
            acceptance, there was no testimony regarding any sort
            of conversation, much less an offer and acceptance, and
            there certainly isn't any consideration for that promise.


            There was some performance in this case. Mr. Aiello
            did, in fact, introduce Mr. Zawistowski to the
            Wainwrights, [who] eventually formed a partnership.
            However, there is no equitable [relief] claimed in the
            complaint at all. . . . There was no claim for unjust
            enrichment, there is no claim for detrimental reliance,
            there is no claim for promissory estoppel, and
            complaints have to give the parties at least a reasonable
            understanding of what's being pursued.

            Here, none of that was addressed. And although I do
            find that there was some performance that may have
            entitled Mr. Aiello to some sort of payment, there
            certainly wasn't the elements, those elements of unjust
            enrichment, detrimental reliance, those weren't met.

            What we have is Mr. Aiello asked 15 to 20 people about
            car dealerships, even though they were a dime a dozen.
            He asked at the used car auction. That's where his
            contacts were. That was his expertise, the used car
            auction. Despite that, the recommendation came from
            his son, . . . Justin Aiello, who said why don't you
            introduce . . . Mr. Zawistowski to the Wainwrights?
            . . . So, it wasn't as a result of his contacts, and I don't
            find that he expended money such that he's proved
            damages in reliance on a promise of a partnership in the

            I also don't see that he's established any damages.
            Damages is necessary to prove a breach of a contract

The judge's reasoning is sound; therefore, we discern no reason to conclude

Aiello is entitled to any equitable relief based on his complaint as well as his

lack of proofs.

      To the extent we have not addressed any of Aiello's remaining arguments,

it is because we conclude they are without sufficient merit to warrant discussion

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


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