EVELIO PEREZ v. AZIZ SUNZAR

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4318-08T24318-08T2

EVELIO PEREZ, formerly

known as GREGORIO PEREZ,

Plaintiff-Appellant,

v.

AZIZ SUNZAR a/k/a AZIZ

ZUNZAR, H.W.D. ENTERPRISES,

INC., HECTOR ESPINAL, TWIN

SHOP SUPERMARKET, and

AIMAN ABUJUDEH,

Defendants,

and

PAUL SINGH,

Defendant-Respondent.

____________________________________________________________

 

Argued February 3, 2010 - Decided

Before Judges Stern and Graves.

On appeal from Superior Court of New Jersey,

Law Division, Essex County, Docket No.

L-3507-07.

Arlindo Araujo argued the cause for appellant

(Garces & Grabler, P.C., attorneys; David M.

Wasserman, on the brief).

Joel S. Ziegler argued the cause for respondent.

PER CURIAM

Plaintiff Evelio Perez appeals from a judgment of no cause of action entered on March 16, 2009, following a bench trial. After reviewing the record and applicable law in light of the contentions advanced on appeal, we affirm.

In 1998, plaintiff loaned Hector Espinal, individually, and as President of H.W.D. Enterprises, Inc. (HWD), the sum of $290,000. Espinal used the money in connection with the operation of a neighborhood grocery store, known as "Twin Shop Supermarket," located at 126 West Kinney Street, Newark. The loan was secured by a security agreement that covered the store's equipment and inventory. A promissory note dated September 3, 1998, required Espinal and HWD to make monthly payments to plaintiff in the amount of $2993.35 for a period of twenty years.

In August 1999, Espinal sold his stock in HWD to Paul Singh and his partner, Pushepa Bhutani, for the sum of $150,000. Singh and his partner then began operating the supermarket business, subject to the lease between HWD and the landlord, Aziz Sunzar.

Singh and his partner were not represented by an attorney when they entered into the stock purchase agreement, and they were unaware of the promissory note dated September 3, 1998. Nevertheless, Singh subsequently acknowledged HWD's obligation to plaintiff, and the parties agreed to modify the terms of the September 3, 1998 promissory note.

In a written agreement dated April 26, 2004, which designated HWD as "Borrower" and Evelio Perez as "Lender," the parties agreed as follows:

1. H.W.D. Enterprises, Inc. owes money under Note in sum of $290,000.00 dated September 3, 1998 and same is resolved as follows:

a. Lender acknowledges receipt of $9,500.00 which satisfies any amount due under Note or any other document as of November 1, 2003.

b. Borrower shall pay $1,000.00 per month commencing on February 1, 2003 and every month thereafter until February 1, 2006.

c. Borrower has right to pay $175,000.00 to Lender on or before February 1, 2006 in satisfaction of any money due to Lender under said Note.

d. On or before February 1, 2006, Borrower has the right to give possession of the Business to Lender in exchange for satisfaction of [the] Note upon Lender taking possession of store and paying wholesale value of inventory at business premises (provided that such inventory is in good and saleable condition and not have exceeded its expiration date). All debts owed by Borrower shall be paid out prior to giving possession of the business to Lender. Furthermore, the store refrigeration equipment must be in good working order. (Failing that, the cost to repair or replace such equipment shall continue to be due and owing to Lender)

2. After February 1, 2006 if Borrower wants to stay at premises and run the business, Borrower has a right to give new Note to Lender in the sum of $290,000.00 at 7% per annum for 20 years to be paid in equal monthly installments of $2,248.37 executed by Borrower in exchange for cancellation of a Note in the sum of $290,000.00 dated September 3, 1998 deemed fully satisfied and paid in full.

3. This is a legally binding Agreement and both parties had independent legal advice prior to signing this Agreement.

The central dispute at trial was whether Singh exercised his option under Section 1d "to give possession of the Business to Lender in exchange for satisfaction of [the] Note" on or before February 1, 2006. In an oral decision on March 13, 2009, the court found Singh had exercised his option to give plaintiff possession of the supermarket in satisfaction of the September 3, 1998 promissory note. The court's findings and conclusions included the following:

According to the agreement, there were three different options that Singh could exercise on February 1, 2006. The second option was . . . under Section 1d.

Pursuant to that agreement, Singh could give Perez possession of the supermarket in satisfaction of the balance of the September 3, 1998, note, which he assumed. This option required Singh to surrender the store to the plaintiff, Perez, and conversely, required Perez to accept that tender. The Court finds that Singh did exercise his option to return the store to Perez.

The Court observed the demeanor of both the plaintiff and the defendant and found the defendant much more credible. The Court found plaintiff to not be credible. Thus, the Court believes the defendant's testimony that he handed over the keys to plaintiff, Perez, and what he stated to Perez at that time.

The Court further finds that this testimony by Singh was consistent with his unrebutted testimony that he tried to give back the store to Mr. Perez in 2003.

. . . .

The Court also finds that Singh's testimony is consistent with his subsequent attempts to surrender the store . . . to plaintiff's attorney.

The plaintiff has the burden of proof and the Court finds that the plaintiff has failed to meet that burden. At the time that he tendered the keys to plaintiff, Singh was not represented. Therefore, the Court does not infer from the absence of a letter from Singh to Mr. Perez[,] . . . or any other formal exercise of the option to return the store, to be probative of anything other than defendant's inexperience with legal matters.

Singh testified and the Court believes that the reason he hired his current counsel was because he wanted something formalizing his surrender of the store. The Court also finds that the defendant's dealings were rarely any more formally documented.

The Court finds that the statements contained in defendant's counsel's later letters are not inconsistent with Mr. Singh having tendered the keys to Mr. Perez and having exercised his option to return the store, as he testified.

. . . .

Again, the Court finds that Singh did exercise the option under [Section] 1d to surrender the store, but the plaintiff failed to cooperate with that surrender, making the other actions contemplated by the agreement impossible to fulfill.

However, the inability to fulfill these conditions were due to plaintiff's breach of the agreement in his refusal to cooperate with Singh's surrender of the store.

On appeal, plaintiff presents the following arguments for our consideration:

POINT I

STANDARD OF REVIEW.

POINT II

THE TRIAL JUDGE'S DECISION SHOULD BE REVERSED BECAUSE IT WAS NOT SUPPORTED BY ADEQUATE SUBSTANTIAL AND CREDIBLE EVIDENCE.

A. THE TESTIMONY OF PAUL SINGH ALONE, COMBINED WITH THE WRITTEN EXHIBITS IN EVIDENCE, LOGICALLY COMPELS A FACTUAL FINDING THAT SINGH BREACHED HIS NOTE WITH PEREZ.

1. PAUL SINGH TESTIFIED ABOUT HIS FAILED ATTEMPTS TO GIVE THE BUSINESS TO PEREZ BEFORE FEBRUARY 1, 2006 AND ABOUT WHAT HE DID WITH THE BUSINESS'S PREMISES AFTER FEBRUARY 1, 2006.

2. THE WRITTEN EXHIBITS ADMITTED AS EVIDENCE PROVED THE PARTIES' APRIL 26, 2004 AGREEMENT AND SINGH'S INACTION REGARDING TRANSFER OF THE BUSINESS AS LATE AS APRIL 13, 2006.

3. A LOGICAL EVALUATION OF THESE DIFFERENT TYPES OF EVIDENCE WOULD LEAD TO A DECISION IN FAVOR OF PEREZ.

POINT III

TO AFFIRM JUDGE DAVIDSON'S DECISION AGAINST THE APPELLANT WOULD OFFEND THE INTERESTS OF JUSTICE.

A. THE PARTY-WITNESSES' DEMEANOR PLAYED AN ENORMOUS ROLE IN JUDGE DAVIDSON'S DECISION.

B. JUDGE DAVIDSON MADE A FACT FINDING ABOUT WHAT PEREZ STATED IN SPANISH, EVEN THOUGH JUDGE DAVIDSON IS NOT FLUENT IN SPANISH.

C. THE INTERESTS OF JUSTICE WOULD BE HARMED IF JUDGE DAVIDSON'S DECISION WERE ALLOWED TO STAND.

After considering these arguments in light of the record, the briefs, oral argument, and the applicable law, we conclude they are without sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(1)(E). We affirm substantially for the reasons stated by Judge Davidson in her oral opinion on March 13, 2009, with only the following comments.

Our scope of review of a judgment entered in a non-jury case is narrow. "Findings by the trial judge are considered binding on appeal when supported by adequate, substantial and credible evidence." Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974). Generally, "[a]ppellate courts should defer to trial courts' credibility findings that are often influenced by matters such as observations of the character and demeanor of witnesses and common human experience that are not transmitted by the record." State v. Locurto, 157 N.J. 463, 474 (1999). "[W]e do not disturb the factual findings and legal conclusions of the trial judge unless we are convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice." Rova Farms, supra, 65 N.J. at 474. In this case, Judge Davidson's findings are amply supported by sufficient credible evidence, and we have no warrant to disturb them.

 
Affirmed.

A default judgment was entered against Aziz Sunzar on March 27, 2009, but the record is unclear as to the status of the remaining defendants.

(continued)

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A-4318-08T2

August 19, 2010