MOHABIR RAGBEER v. SEEPERSAUD RAGBEER

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4722-10T3

MOHABIR RAGBEER,

Plaintiff-Respondent,

v.

SEEPERSAUD RAGBEER,

Defendant-Appellant,

and

ANITA RAGBEER,

Defendant.

__________________________________

April 5, 2013

Submitted October 2, 2012 - Decided

Before Judges Ostrer and Kennedy.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-4471-09.

Keith O.D. Moses, attorney for appellant.

Pasquale Agresti, attorney for respondent.

PER CURIAM

Defendant Seepersaud Ragbeer (Seepersaud)1 appeals from the final judgment after a non-jury trial before Judge Barry P. Sarkisian awarding plaintiff Mohabir Ragbeer (Mohabir) $36,361.39 in damages on his breach of contract claim.

We discern the following facts from the record of the April 2011 trial. In 2003, Mohabir and his uncle Seepersaud jointly purchased a two-family house in Jersey City. Although it was formally titled in Mohabir's name, it was undisputed the two men were equal equitable owners in the property. The parties initially lived in the house, each taking one of the two units. However, as the relationship between the two parties soured, Mohabir eventually moved out and rented his unit.

The relationship between the parties did not improve and they entertained the idea of selling the property. They engaged a realtor who listed the property for sale around 2007 for $550,000. However, Seepersaud decided he did not want to sell and the property was taken off the market.

In 2008, the parties entered into a contract, drafted by Mohabir, in which Mohabir agreed to convey his interest in the property to Seepersaud. The terms of the contract must be understood in light of the debt on the property at that time. The property was encumbered by three mortgages: the initial purchase money mortgage with Chase Home Finance, LLC, which had a balance due of roughly $172,000; a second mortgage with Bank of America, which had a balance of $39,000; and a home equity loan with a balance of $84,000. All the mortgages were in Mohabir's name. The proceeds of the Bank of America mortgage were used to pay down the balance due on the first mortgage, which had a higher interest rate than the second mortgage. It was undisputed that most of the $84,000 that remained due on the home equity loan had been utilized by Mohabir for personal needs, and he assumed the obligation to repay it.

The contract expressly provided that Seepersaud would pay Mohabir $151,000 for his fifty-percent equitable ownership in the property. We quote from the contract (without correcting punctuation or capitalization):

Seepersaud Ragbeer will buy my share which is 50% of the property at 124 logan ave. The amount he has to pay me is 151,000.00 he will take over a loan which I had with bank of America for 84,000.00 his remaining balance is 67,000.00 he will pay me 33,500.00 at the closing and the next 33,500.00 in four to five months after the closing. If five months pass and he did not pay me the 33,500.00 he will have to pay me interest for the 33,500.00, the interest will be fixed at 5%.

A handwritten addition stated, "Pay before August 2009." The contract was signed by both parties and witnessed by

Mohabir's father, and Seepersaud's brother, Dennis Ragbeer. At the July 25, 2008 closing, Mohabir formally deeded the property to Seepersaud, and Seepersaud refinanced the property, paying off all three mortgages. Seepersaud gave a check to Mohabir for $33,500, which bore the statement on the memo line, "Partial payment Buy out a [sic] home." Seepersaud did not pay the second $33,500 installment.

Mohabir testified about the basis for the $151,000 price. Presuming the house had a market value of $550,000, he concluded it had a net equity of $340,000 after deducting the balance due on the first and second mortgages, which he calculated to be $210,000. Thus, his share of the net equity in the house was $170,000, and he remained solely responsible for the home equity loan. Mohabir testified that Seepersaud initially agreed to $170,000 but then pressed to reduce the price to $160,000 and then to $151,000. Although the parties' contract did not expressly address the first and second mortgages, Mohabir testified it was understood that the $151,000 purchase price was predicated upon Seepersaud's assumption or satisfaction of the first and second mortgages. Once Seepersaud assumed and received a credit for the $84,000 home equity loan balance, $67,000 would remain due to Mohabir as part of the $151,000 purchase price. ($151,000 - $84,000 = $67,000). That is the basis for the two payments of $33,500, which totaled $67,000.

Seepersaud testified that after the closing, he came to believe that he had overpaid for the property, and refused to pay the second $33,500 payment to Mohabir. Seepersaud noted that the bank that refinanced the property had estimated the property's value to be $495,000. He also claimed that the contract did not fairly account for the contributions he made to the upkeep and maintenance of the property. He complained as well that Mohabir utilized the tax deductions for interest payments. Seepersaud had filed a counterclaim in which he detailed various expenses he incurred, apparently alleging that he bore more than his fifty percent share of costs during the parties' equitable ownership of the property. He also included the $13,000 in closing costs associated with the conveyance of the property to him. However, he presented no proofs at trial about most of them.

Judge Sarkisian found the contract was clear and enforceable. He credited Mohabir's version of the facts, and the basis for the $151,000 purchase. The judge found that Seepersaud had not presented a valid defense to justify Seepersaud's non-payment of the second $33,500 installment. The court awarded $33,500, plus five percent interest for twenty months, for a total judgment of $36,361.39.2

This appeal followed. Seepersaud presents the following points on appeal:

POINT I

THE TRIAL COURT'S DECISION TO ADMIT PLAINTIFF-RESPONDENT'S UNCORROBORATED EVIDENCE REGARDING THE SELLING PRICE OF THE PROPERTY, WAS PLAIN ERROR OF SUCH A NATURE THAT IT PRODUCED AN UNJUST RESULT.

POINT II

THE COURT'S FAILURE TO APPLY THE TERMS OF THE WRITTEN AGREEMENT AND TO CREDIT THE DEFENDANT-APPELLANT FOR PAYING OFF THE JOINT MORTGAGES WAS PLAIN ERROR OF SUCH A NATURE THAT IT PRODUCED AN UNJUST RESULT.

We exercise limited review of the trial court's findings after a non-jury trial. Estate of Ostlund v. Ostlund, 391 N.J. Super. 390, 400 (App. Div. 2007). "Our courts have held that the findings upon which a non-jury judgment is based should not be disturbed unless they are so clearly insupportable as to result in their denial of justice." Ibid. (citing Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 483-84 (1974)). In other words, we review the record to determine if the court's findings are supported by adequate, substantial and credible evidence. Triffin v. Automatic Data Processing, Inc., 411 N.J. Super. 292, 305 (App. Div. 2010) (citing Rova Farms Resort, supra, 65 N.J. at 484). Our deference is based on the trial judge's opportunity to assess credibility, and develop a "feel of the case." N.J. Div. of Youth & Family Servs. v. L.L., 201 N.J. 210, 226 (2010) (citation and quotation omitted). We do not independently weigh the evidence, assess credibility, or reach our own factual conclusions. Mountain Hill, L.L.C. v. Twp. of Middletown, 399 N.J. Super. 486, 498 (App. Div. 2008). However, we review de novo whether the facts satisfy the applicable legal standard. See Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995) ("A trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference.").

Having carefully reviewed the record, we discern substantial credible evidence to support Judge Sarkisian's findings of fact, and we discern no error in his conclusions of law. We affirm the judgment for the reasons set forth in the court's oral opinion.

We briefly address Seepersaud's two points on appeal. First, we discern no error, let alone plain error, in the admission of Mohabir's testimony "purporting to show that the basis of the property was $550,000.00." Seepersaud argues that the $550,000 was uncorroborated. However, the issue was not whether the property's market value was, in fact, $550,000, or that the parties had actually agreed that it had that value. Rather, the gist of Mohabir's testimony was that the property had previously been marketed for sale for $550,000 and he utilized that as a predicate for calculating the price he would demand in return for his fifty-percent interest. The court did not err in admitting Mohabir's testimony.

We also reject as lacking merit Seepersaud's argument that the court should have reduced the $151,000 due Mohabir by an amount equal to fifty percent of the balance due on the first and second mortgage, fifty percent of the settlement costs, and fifty percent of the home equity loan. Based on this assertion, Mohabir would have been due nothing at closing, as the total offsets exceeded $151,000. In other words, Mohabir would have sold his interest in the house which had substantial equity for nothing.

Seepersaud's allegation is at odds with the parties' written contract. The court recognized that the parties' contract did not expressly address the disposition of the first and second mortgage. However, there was sufficient evidence in the record Mohabir's testimony to support the court's finding that the parties agreed that Seepersaud would be solely responsible for satisfying the first and second mortgages. There was no testimony to support Seepersaud's argument that Mohabir would share responsibility for the closing costs. Finally, the agreement expressly provided that Mohabir was solely responsible for the home equity loan, which would be paid from his $151,000 proceeds.

Affirmed.

1 As all parties have the same last name, for convenience we refer to them by their first names and intend no disrespect in doing so. Judgment was entered only against Seepersaud. Anita does not participate in this appeal.

2 The judgment also granted Mohabir leave to seek attorney's fees pursuant to Rule 4:21A-6(c) within ten days, but apparently no application was made.