STEVE & PEG, INC. v. MELANIE'S AT AVENUE E INC.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4628-08T2

STEVE & PEG, INC. and

MARGARET FLORA,

Plaintiffs-Appellants,

v.

MELANIE'S AT AVENUE E,

INC. and HENRY BUDNY,

Defendants-Respondents.

_____________________________________

November 4, 2010

Submitted September 15, 2010 - Decided

Before Judges Sapp-Peterson and Simonelli.

On appeal from the Superior Court of New Jersey, Chancery Division, Hudson County, Docket No. C-125-07.

Roberta L. Tarkan, attorney for appellants.

Pickus & Landsberg, attorneys for respondents (Evan N. Pickus, on the brief).

PER CURIAM

Plaintiffs, Steve & Peg, Inc. and Margaret Flora (Flora), are the owners of a bar and delicatessen business known as Peg's Tavern located at 99 Avenue E in Bayonne (the business). They appeal two orders issued from the Chancery Division: an order dated January 13, 2009, and a second order dated March 6, 2009. We affirm.

The first order dated January 13, 2009, arises out of a multi-count complaint plaintiffs filed against defendants alleging, among other claims, breach of contract, interference with economic advantage, violation of the Consumer Fraud Act (CFA), N.J.S.A. 56:8-1 to -181, and common law fraud. The January 13 order entered a $9,989 judgment in favor of plaintiffs against defendants, Melanie's at Avenue E, Inc. (Melanie's), former owner of the business, and Henry Budny, the principal of Melanie's and owner of the premises at 99 Avenue E that housed the business as well as nine residential units (collectively referred to as defendants). The judgment represented plaintiffs' overpayment to the utility company for heating charged to plaintiffs for utility service that had been provided to the nine residential units. The court dismissed the remaining claims in plaintiffs' complaint. The second order dated March 6, 2009, denied plaintiffs' motion seeking to alter or amend the January 13 order.

By way of background, in October 2003, plaintiffs purchased the business, including the liquor license, for $50,000. Plaintiffs paid $18,000 in cash, and the balance of the purchase price was secured by a promissory note in the amount of $32,000. The note also required plaintiffs to: (1) provide a security agreement pledging their stock in Steve and Peg, Inc.; (2) record UCC financing statements to secure all sums due under the note; and (3) deliver an endorsed stock certificate and resignation of officers to be exercised in the event of default under the note. Further, under the parties' agreement, all assets of the business were also pledged to secure full performance under the terms of the note.

The purchase agreement also expressly stated that in the event of:

any default in any obligation or agreement made by the [b]uyer to the [s]eller, the escrow agent shall have the authority to deliver to the stockholders of the [s]eller the said [s]tock [c]ertificates and resignations of the corporate buyer, which may then be assigned to the stockholders of the [s]eller[.]

Further, once the resignations were filed, the seller stockholders would become the new owners of the business. In addition to the note and security agreement, plaintiffs also executed a commercial lease agreement for the business' premises.

Plaintiffs defaulted on the note and separately defaulted on the lease. The New Jersey Division of Taxation seized the liquor license as a result of non-payment of taxes in May 2007. Defendants asserted their rights under the various agreements and claimed the collateral. Ultimately, plaintiffs were locked out of the business premises. Plaintiffs filed a verified complaint and jury demand alleging breach of contract, damages to property, interference with economic advantage, intentional and malicious harm to another, violation of the CFA, and common law fraud. Plaintiffs sought equitable relief, as well as compensatory and punitive damages. Defendants, in addition to answering the complaint, filed a counterclaim seeking reimbursement for counsel fees and costs incurred.

Trial proceeded before Judge Thomas P. Olivieri. Plaintiffs claimed that Budny deliberately caused business losses when he erected scaffolding in front of the premises that effectively discouraged patrons from coming to the bar and blocked their ability to enter the delicatessen. They also claimed that Budny bore responsibility for sewerage problems and leaks to the premises from an upstairs residential unit and that they had been overcharged by the utility company for services that had been provided to the nine residential units but billed to the business.

Other than the overpayment of the utility bill, Judge Olivieri rejected plaintiffs' remaining claims and denied defendants' counterclaim for counsel fees.1 He found there was no competent evidence to support the remaining claims. For example, the judge found that the scaffolding was erected to repair loose bricks on the building. The judge found there was no competent evidence demonstrating that Budny undertook the repairs "with any intention of affecting . . . plaintiff[s'] business." He noted that "[Budny] . . . erect[ed] the scaffolding, as a result of some safety concerns that were in fact communicated to him by . . . [Flora's] husband."

As for the leak, the judge determined that it was eventually repaired after the leak was found, but he noted that under Paragraph 5 of the lease, plaintiffs were required to make all repairs, and under Paragraph 23 of the lease, plaintiffs were required to hold defendants harmless for any damages arising out of broken plumbing lines. The judge also noted that after plaintiffs presented the repair bill to Budny, it was paid in full. The court concluded that other than reimbursement to plaintiffs for overpayment of the utility bills, the parties' written agreement determined the duties and responsibilities. The court found:

In this case, pursuant to the lease at the aforementioned paragraphs, the tenant, or the plaintiff, was responsible for whatever happened regarding the leak, the sewer pipe[.] [T]he scaffolding was a situation that was brought to the attention of the defendant by the plaintiff's husband, and he took appropriate action, so the defendant has filed a counterclaim in this matter asking to be reimbursed for counsel fees and costs, which I will not do.

Additionally, although the court encouraged the parties to attempt to amicably resolve the issue of collateral left in the premises, the court ruled that plaintiffs were not entitled to recover the collateral because those items were "part of the security agreement and note and lease[,]" to which defendants were entitled upon plaintiffs' default.

On appeal, plaintiffs contend they are entitled to damages under the CFA and they are also entitled to damages for loss of business caused by Budny's disruption to their business "caused by the scaffolding and netting and loss of the liquor license." We disagree.

The "[f]indings by the trial judge [following a bench trial] 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). "'[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.'" Ibid. (quoting Fagliarone v. Twp. of N. Bergen, 78 N.J. Super. 154, 155 (App. Div.), certif. denied, 40 N.J. 221 (1963)).

Applying these standards of review, we find no ground to disturb the trial judge's decision. We affirm the judgment of the Law Division essentially for the reasons stated in the oral opinion of Judge Olivieri supporting his order of January 13, 2009. The language in the agreements clearly sets forth the rights and obligations of all parties and the events that would trigger any party's remedies under the agreements. The court found that there were multiple defaults by plaintiffs, triggering defendants' assertion of their rights, which included delivery of the stock certificates, resignation of the corporate buyers, and in addition to becoming the owners of the business, acquisition of the business' collateral.

Turning to defendants' CFA claim, Judge Olivieri reviewed the elements of a cause of action under the CFA: (1) an unconscionable commercial practice prohibited under the CFA; (2) an ascertainable loss; and (3) a causal relationship between a defendant's unlawful conduct and a plaintiff's ascertainable loss, N.J.S.A. 56:8-1, and concluded there was no violation. While finding that plaintiffs were entitled to reimbursement for the overpayment of the utility bill, the judge made no finding that defendants acted in bad faith regarding the utility over-billing. Nor did plaintiffs present any evidence demonstrating that defendants affirmatively took steps to route the utility usage from the nine residential properties to plaintiffs' bill.

Insofar as the remaining claims, the judge determined that plaintiffs' claimed damages under the lease would not take effect "unless and until [he] determine[ed] that . . . defendant is responsible for them." After reviewing the terms of the lease, the judge was satisfied that plaintiffs were responsible "for whatever happened regarding the leak [and] the sewer pipe." Further, Judge Olivieri found that after being made aware of the concern for falling bricks, Budny took appropriate action, which was not motivated by an intention to interfere with plaintiffs' business. These findings are entitled to our deference.

1 Defendants have not appealed the denial of their claim for counsel fees and costs.