ZOIS A. SHUTTICI v. STEPHANOS MIKELIS, et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5372-05T25372-05T2

ZOIS A. SHUTTI ,

Plaintiff-Appellant,

v.

STEPHANOS MIKELIS,

DEMETRI MIKELIS, KATIA MIKELIS,

and ESTATE OF GEORGE MIKELIS,

Defendants-Respondents.

_________________________________________________

 

Submitted March 13, 2007 - Decided July 17, 2007

Before Judges Kestin and Payne.

On appeal from Superior Court of New Jersey,

Law Division, Bergen County, L-5813-05.

Starr, Gern, Davison, & Rubin, attorneys

for appellant (Robert L. Pitkofsky, of

counsel and on the brief).

Edward S. Rosen, attorney for respondents.

PER CURIAM

Plaintiff, Zois Shutti , an artist, appeals from an order of summary judgment, entered against him on statute of limitations grounds, dismissing his action for conversion of his artwork, instituted against defendants, Stephanos Mikelis, Demetri Mikelis, Katia Mikelis, and the estate of George Mikelis.

I.

We derive the facts of the matter from the allegations of Shutti 's pro se complaint, filed on August 16, 2005, and from documents included in the record on appeal.

In 1991, when in urgent need of dental work, Shutti consulted George Mikelis, who then worked as a dentist in the Gary Boyajian Dental Clinic in Little Ferry. Dr. Mikelis estimated that the work would cost about $3,000 but, Shutti alleged, "he would take one of my paintings as payment." Approximately one month later, Dr. Mikelis "came with his younger brother, Steve, to [Shutti 's] studio and selected an artwork worth $25,000 - $30,000 . . . and he took the painting with him." Seeking to place the agreement for services in writing, Shutti drafted a contract in which he claims that he "demanded that [Dr. Mikelis] pay [Shutti ] $5,000 extra to any dental and lab estimation he may come up with."

The agreement, dated May 24, 1991, which differs somewhat from Shutti 's allegations, provided:

I . . . agree to finish the entire dental work of my patient Zois Shutti , a renown artist, I had started in mid-January of this year.

I agree that I would claim no lab and no surgery-implant fee from my patient, if he would drop his claim of my paying him an additional $5,000 (Five thousand) towards the $25,000 to $30,000 painting value I selected to have, as est[i]mated by the OK HARRIS Gallery.

I agree to complete the entire dental work of my patient Zois Shutti to a full satisfaction and comfort for him for no additional expenses that may [o]ccur, due to lab fees, materials, or extended labor time.

I agree that upon my failing to fulfill my professional obligation, my patient, the Artist Zois Shutti , is entitled to recover his art work, which is in my custody in good faith since February of this year.

In case the patient Zois Shutti discontinues to follow-up his visit in this clinic for any other reason than health problems caused by this clinic practice, I agree to return to him his artwork with an additional rental-fee, as applicable by the law of the state.

In case of any unexpected mishap may change the course of life, such as accidents, ailment, or death, and moving out of the country, I agree to contact his relatives in Albania to reimburse them with the $5,000 owed to the artist.

In case of the same that may [o]ccur to me, my patient Zois Shutti , may contact my Mother, KATIA J. Mikelis, . . .

Following the execution of the agreement, Shutti alleged that Dr. Mikelis improperly performed dental work on him, causing severe injuries and requiring extensive additional dental work. Shutti alleges that he wrote to Dr. Mikelis on September 16, November 24, December 6, 1991 and January 14, 1992, asking him to return his painting, without response. When Shutti finally reached Dr. Mikelis by telephone, "he said that he was no longer practicing, he was in the middle of a pending case from parents of a dead child, and that he will bring my painting himself before returning to Greece for good." However, Shutti claims, Dr. Mikelis was "nowhere to be found."

Thereafter, Shutti alleges that he wrote to relatives of Dr. Mikelis on January 18, 1992 and July 8, 1992, without response. On January 31, 1997, Shutti wrote to Dr. Mikelis's mother, who also did not reply. In the interval, according to Shutti ,

I lost my teeth and was an outpatient-impatient at the Coney Island Hospital, the Sloan-Kettering Memorial Cancer and the Cornell-New York Presbyterian Hospital for respiratory ailments: lung cancer, asthma and emphysema, liver disease, heart arrhythmia and five small strokes, two surgeries and a chemotherapy.

On March 29, 1999, a further agreement was allegedly drafted by Dr. Mikelis and executed by Shutti , under unknown circumstances, which provided:

I, Dr. George Mikelis, D.M.D., state that the painting in my possession, done by the artist Zois Shutti , is the property of the artist Zois Shutti .

Upon the return of the painting to Mr. Zois Shutti , there sh[a]ll be no further claims against each other.

A further letter from Dr. Mikelis, dated May 16, 2000, allegedly stated:

I am very upset with you:

[F]irst, you wrote a letter to my mother, who has nothing to do with our business.

Now, you have gone too far, by writing to the National Dental Association in Washington, D.C., to discredit me.

You have a nerve.

I did already state in my letter to you last year that the painting I got from you is your own property.

I will now have my brother, Steve Mikelis, bring the painting to you and, in turn, you must give him a signed receipt, and let that be the end of us.

Dr. Mikelis died intestate on March 22, 2001 while the painting remained in his possession. His brothers, Stephanos and Demetri, were granted letters of administration on May 22, 2001. A notice to creditors was published in the Bergen Record on June 6, 2001, and a decree barring creditors was signed on November 22, 2001.

Thereafter, on March 13, 2002, Danielle Dooley, an attorney at the law firm of Cadwalader, Wickersham & Taft, acting as a volunteer attorney for the arts, wrote on behalf of Shutti to Dr. Mikelis's mother and two brothers, acknowledging the entry of the decree barring creditors, but claiming that Shutti was not a creditor and that "[h]e remains the owner of an illegally obtained and subsequently retained painting." Dooley demanded its return. Counsel for the estate responded by letter dated March 25, 2002, requesting a copy of the agreement between Dr. Mikelis and Shutti , and suggesting that any tort or contract action by Shutti was barred. However, no further communication occurred because, according to Shutti , his attorney was transferred to the West Coast.

On August 17, 2005, Shutti filed a pro se complaint against defendants setting forth many of the alleged facts that we have recited and claiming that Dr. Mikelis had stolen his artwork. He stated:

I am not George Mikelis' creditor, and I respectfully request the return of my painting, which is my creative property. My intention towards Dr. Mikelis was not to sue him for any monetary compensation for malpractice. Dr. Mikelis's estate, therefore, has no right to withhold a stolen property, regardless of the means of action.

* * *

I want the return[] of my artwork worth $25,000.00 to $30,000.00, withheld by the defendants, who have not paid for it, nor are they entitled to keep it under late George Mikelis's Estate. I am not Mikelis's creditor, nor had Dr. George Mikelis neither paid for my creative property, nor did he perform a satisfactory professional service. On the contrary, I am still suffering from him causing me a bodily harm. If they want to keep my painting, let them pay in full.

By motion returnable on April 28, 2006, defendants sought summary judgment on statute of limitations grounds and as the result of the decree barring creditors. Their motion was granted by order entered on April 12, 2006. Although Shutti sought reconsideration, claiming that his suit was timely because it was filed within six years of the date of Dr. Mikelis's last letter to him on May 16, 2000, his motion was denied by order dated May 12, 2006. In written findings filed, on July 14, 2006, pursuant to R. 2:5-1(b), the motion judge construed Shutti 's action as one for breach of a contract, entered between the parties on May 24, 1991, and breached in the summer and fall of that year. Because Shutti did not file his complaint until 2006, the judge found the complaint to be barred by the statute of limitations applicable to contract actions.

II.

On appeal, Shutti , represented by counsel, characterizes his cause of action as one for conversion; Dr. Mikelis's letter of May 16, 2000 as creating a new promise of return and accrual date; and his complaint as timely, since filed within six years of that date. In support of the position that the complaint was timely, Shutti likens the May 16, 2000 letter to a novation creating a new contract pursuant to N.J.S.A. 2A:14-24, which provides:

In actions at law grounded on any simple contract, no acknowledgement or promise by words only shall be deemed sufficient evidence of a new or continuing contract, so as to take any case out of the operation of this chapter [limitation of actions], or to deprive any person of the benefit thereof, unless such acknowledgement or promise shall be made or continued by or in some writing to be signed by the party chargeable thereby.

Defendants contend that the 1999 and 2000 letters were produced late, were never authenticated, and were not supported by consideration, thereby rendering the statute inapplicable.

We construe the agreement between Shutti and Dr. Mikelis on May 24, 1991 as constituting a contract for the performance of dental services that met with Shutti 's satisfaction in exchange for Shutti 's artwork. The contract was breached in the fall of 1991 when, upon Shutti 's notification that he was dissatisfied with Dr. Mikelis's work, the doctor failed to return Shutti 's painting. A six-year statute of limitations was applicable to Shutti 's recovery action, which expired in late 1997, or at the latest, some time in 1998. N.J.S.A. 2A:14-1.

The issue thus becomes whether any subsequent agreement served to re-establish a contractual relationship between the doctor and Shutti that would render the present action timely. In this regard, we do not focus on the May 16, 2000 agreement upon which Shutti concentrates, but rather, upon the agreement between Dr. Mikelis and Shutti , dated March 29, 1999 and executed by both men, in which the doctor agreed to return the painting in exchange for Shutti 's relinquishment of "further claims" against him. It is clear that an acknowledgment to pay an existing debt, immediately or upon demand, constitutes a new contract for purposes of applying the statute of limitations, whether or not collection on the prior debt was time-barred. Bassett v. Christensen, 127 N.J.L. 259, 261 (E. & A. 1941); Denville Amusement Co., Inc. v. Fogelson, 84 N.J. Super. 164, 170 (App. Div. 1964); Burlington Country Club v. Midlantic Natn'l Bank South, 223 N.J. Super. 227, 232-35 (Ch. Div. 1987); see also Renault v. L.N. Renault & Sons, 90 F. Supp. 630, 636 (E.D.Pa. 1950)(construing New Jersey law), rev'd on other grounds, 188 F.2d 317 (3d Cir. 1951).

In this case, a new contract was substituted by the parties for the old one, consisting of Shutti 's agreement to make no further claims against Dr. Mikelis in return for the relinquishment of Shutti 's painting by the doctor. Restatement (Second) Contracts, 279 (1981). To be effective, such a substitution requires consideration, id. cmt. b; Morecraft v. Allen, 78 N.J.L. 729, 732 (1909), however slight. Martindale v. Sandvik, 173 N.J. 76, 87 (2002); Oscar v. Simeonidis, 352 N.J. Super. 475, 484-85 (App. Div. 2002). Although forbearance by Shutti of claims cognizable in law could be considered insufficient consideration, those claims being time barred (an issue we do not resolve, not having evidence of the parties' understanding), the record can support an argument that the parties contemplated non-time-barred "complaints" - such as those addressed to Dr. Mikelis's mother and the American Dental Association - as encompassed with the meaning of "future claims." While the parties' construction of the term requires further explication, given its indefinite meaning, we cannot determine as a matter of law that consideration was lacking.

We recognize that, if the March 29, 1999 agreement is found to have constituted a novation, that agreement, too, was executed more than six years before suit was instituted on August 16, 2005. Nonetheless, N.J.S.A. 2A:14-23 affords Shutti an additional six months prior to a statutory bar, providing:

If any person against whom there is any of the causes of action specified in section[] 2A:14-1 . . . of this title . . . dies before the expiration of the time limited thereby, the space of 6 months next succeeding such death shall not be computed as a part of the period of time within which the action is required by the section to be commenced.

The effect of this statute is to render Shutti 's August 16, 2005 complaint potentially timely. Nonetheless, issues of fact remain regarding the authenticity of the 1999 agreement, the proper construction of its terms, and the authenticity and effect of the 2000 letter from Dr. Mikelis on the one executed in the preceding year. Additional issues exist as to the value of the painting (a range of value having been presented in the 1991 agreement), whether Dr. Mikelis made partial payment for the artwork, and the effect of any partial payment and subsequent unconditional promises of return upon the parties' obligations.

III.

Defendants contend that Shutti 's claim, first presented by letter from counsel dated March 13, 2002, was nonconforming because it was late and not under oath, and thus barred by N.J.S.A. 3A:24-3 (now, 3B:22-4). Upon rejection, defendants contend, Shutti was required to bring suit within three months pursuant to N.J.S.A. 3A:24-6 (now, 3B:22-7, -8), but that he failed to do so.

We do not regard the statutes upon which defendants rely to be applicable to Shutti 's claim for conversion of his property upon Dr. Mikelis's breach of contract, agreeing with Shutti that he was not a creditor of the estate but, rather, an alleged rightful owner of converted property that, by virtue of its status, was exempt from claim requirements. See N.J.S.A. 3B:1-1 (defining "claims" as not including "demands or disputes regarding title to specific assets alleged to be included in the estate"). One such as Shutti who asserts title to personal property in the possession of the estate's administrators is not asserting a claim against the estate, but is asserting a right under the general law of property. Conversion requires a showing that the alleged offender "assumed and exercised the right of ownership . . . without permission." Video Pipeline, Inc. v. Buena Vista Home Entertainment, Inc., 275 F. Supp. 2d 543, 576 (D.N.J. 2003). N.J.S.A. 2B:50-1 permits "a person seeking recovery of goods wrongly held by another" to file an action for replevin. And, as we have previously noted, the statute of limitations for a replevin action is six years, potentially rendering Shutti 's action timely. N.J.S.A. 2A:14-1. Reversal is thus required.

IV.

Our conclusions on legal issues raised in this matter should not be construed as an indication on our part as to the merits of the underlying controversy between Dr. Mikelis and Shutti . We merely conclude, on the basis of our review of the record, Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998) that issues of fact and law remain of sufficient merit to warrant completion of discovery and resolution of remaining factual and legal issues. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).

 
Reversed.

In recognition of Shutti 's pro se status and the seeming absence of discovery, we have treated his allegations indulgently, although not contained in a sworn affidavit or certification.

Defendants contest the authenticity of this letter, as well as a later letter of May 16, 2000.

Defendants erroneously asserted in the trial court that the complaint was filed on January 12, 2006.

Decisions applying N.J.S.A. 2A:14-24 generally concern monetary debts. However, the statute is framed in terms of "actions at law grounded on any simple contract." Such a contract has been "best defined as one involving a legal operation not dependent upon form or mode of expression." Burlington Country Club v. Midlantic Natn'l Bank South, 223 N.J. Super. 227, 234 (Ch. Div. 1987) (citing Corbin, Formal and Informal Contracts, 5). We thus discern no reason to confine the applicability of the statute so as to exclude the present matter.

Although a novation often requires a substitution of parties, see, e.g., Fusco v. City of Union City, 261 N.J. Super. 332, 336-37 (App. Div. 1993), it may occur as the result of the execution of a new contract by the same parties. See New Jersey Dept. of Treasury v. Viscara Intern., Inc. 166 Fed. Appx. 639, 641 (3d Cir. 2006).

In their answer to the complaint, defendants conceded the existence of the 1991 agreement.

It has been held that the expiration of the statute of limitations bars an action for replevin and vests title in the possessor. O'Keefe v. Snyder, 83 N.J. 478, 500 1980). However, in the present matter, ownership by Shutti was acknowledged by Dr. Mikelis in the agreements of 1999 and 2000.

(continued)

(continued)

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A-5372-05T2

July 17, 2007