ARROW MARINE SERVICES, LLC v. MICHAEL SAID

NOT FOR PUBLICATION WITHOUT THE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-2172-15T3

ARROW MARINE SERVICES, LLC,

        Plaintiff-Respondent,

v.

MICHAEL SAID, MONA SAID,
and CAIRO MOTORS,

        Defendants/Third-Party
        Plaintiffs-Appellants,

v.

ANTHONY FRISINA and
CARMINE TETA,1

     Third-Party Defendants-
     Respondents.
______________________________

              Argued December 12, 2017 – Decided April 24, 2018

              Before Judges Reisner, Gilson, and Mayer.



1
    The third-party complaint named as defendants Arrow Marine
Services, LLC, its sole member, Anthony Frisina, and Carmine Teta,
an Arrow employee.     However, Teta was never served with the
pleadings, and on the first day of the trial, the judge ruled that
the third-party complaint against Teta would be dismissed with
prejudice.   The court dismissed with prejudice the third-party
claims of Mona Said and Cairo Motors.      Those two parties, and
Teta, are not participating in this appeal.
          On appeal from Superior Court of New Jersey,
          Law Division, Ocean County, Docket No. L-2690-
          13.

          Ronald L. Lueddeke argued the cause for
          appellant Michael Said (Lueddeke Law Firm,
          attorneys; Karri Lueddeke, on the brief).

          John J. Mensching argued the cause for
          respondents Arrow Marine Services, LLC and
          Anthony Frisina (Mensching & Lucarini, PC,
          attorneys; John J. Mensching, on the brief).

PER CURIAM

     After a bench trial, Judge James Den Uyl entered an amended

judgment dated December 10, 2015, awarding $97,978.45 in favor of

defendant/third-party plaintiff, Michael Said, based on a finding

that plaintiff, Arrow Marine Services, LLC (Arrow), was liable for

conversion of Said's boat and trailer.2     Said appeals from the

amended judgment, and from a June 8, 2016 order denying his motion

to re-open the judgment.   Arrow has not cross-appealed.   We affirm

substantially for the reasons Judge Den Uyl stated in the written

opinions he issued on September 24, 2015, December 10, 2015, and

June 8, 2016.   We add the following brief comments.

     The judge's opinions recount the evidence in detail.            A

summary will suffice here.      In December 2010, Said bought a



2
   The court initially entered judgment for a smaller amount on
September 24, 2015.    The December 10, 2015 amended judgment
increased the judgment by $8,000, and vacated the September 24,
2015 judgment.

                                 2                           A-2172-15T3
repossessed boat which, at the time of sale, was stored at a marina

owned and operated by Typhoon Service Center (Typhoon).       A few

months later, Arrow, an LLC whose sole member was Anthony Frisina,

purchased Typhoon's boat storage business and leased the marina

property from Typhoon.    Arrow then began contacting boat owners,

including Said, whose vessels were stored at the marina without

an existing storage contract.

     Said did not want to enter into a storage contract. He wanted

to pick up the boat and ship it overseas, on behalf of a business

his family operated in Egypt. Therefore, he entered into a written

agreement with Arrow, under which he paid about $1300 in final

storage charges and promised to remove the boat and trailer from

the marina by September 15, 2011. On two occasions, Said attempted

to pick up the boat, using a boat trailer he was also storing at

the marina.    However, Carmen Teta, an Arrow employee, refused to

help Said remove the boat or the trailer.     Teta claimed he was

working on other jobs at the marina and did not have time to load

Said's boat.   He also would not let Said remove the boat himself,

although Said was qualified to do so.    Over the next two years,

the parties were unable to resolve disputes over removal of the

boat and payment of storage fees.

     In 2013, Arrow filed a complaint seeking a declaration that

Said had abandoned the boat and demanding approximately $38,000

                                 3                          A-2172-15T3
in storage fees.    Said filed a third-party complaint seeking

damages for conversion and consumer fraud.

     In deciding the case, Judge Den Uyl did not credit Frisina's

testimony that Said wrongfully refused to pick up the boat and

trailer and abandoned them at the marina.    He therefore declined

to declare the boat abandoned and dismissed Arrow's claim for two

years of storage fees, from 2011 to 2013.

     On the other hand, Judge Den Uyl found that Said proved his

third-party claim against Arrow for conversion.   He concluded that

Said was entitled to damages consisting of the value of the

converted goods - the boat and trailer - plus the expenses he

incurred in attempting to remove the boat from the marina.       The

judge found no legal basis for a Consumer Fraud Act (CFA) claim

against Arrow, noting that Said had not cited any case law on

point to support that claim.   He also found that Frisina did not

participate in or ratify Teta's wrongful conduct, and there was

no basis to pierce the corporate veil and hold Frisina liable for

the judgment against Arrow.     The judge further concluded that

Teta's refusal to release the boat and trailer did not warrant an

award of punitive damages against Arrow.

     Said filed a motion to reopen the judgment under Rule 4:50-

1, asserting that Frisina falsely testified that Arrow still leased

the marina space at the time of the trial, when in fact Arrow had

                                4                           A-2172-15T3
vacated the marina in 2013.       Judge Den Uyl denied the motion.         He

reasoned that, even if Frisina had conveyed a misimpression that

Arrow still occupied the marina, that aspect of his testimony was

not material because Arrow was only seeking storage charges up to

2013.   The judge concluded that it would make no difference to his

decision whether Arrow left the marina in 2013 or was still in

possession at the time of the trial.

     On this appeal, Said contends that the trial court erred in

(1) dismissing his claim based on the CFA; (2) finding that Frisina

was not personally liable for conversion and consumer fraud; (3)

denying Said's Rule 4:50-1 motion based on Frisina's allegedly

misleading trial testimony; and (4) denying Said's application for

punitive damages.

     As set forth in his brief, Said "is not appealing the findings

of fact made by the trial court."        Thus, we take those findings

as established for purposes of the appeal.           We review the trial

court's legal conclusions de novo.          Manalapan Realty, LP v. Twp.

Comm. of Manalapan, 
140 N.J. 366, 378 (1995).               We review the

decision   to   deny   punitive   damages    for   abuse   of   discretion.

Maudsley v. State, 
357 N.J. Super. 560, 590 (App. Div. 2003).              We

apply the same standard to the decision to deny the Rule 4:50-1

motion.    US Bank Nat'l Ass'n v. Guillaume, 
209 N.J. 449, 467

(2012).

                                     5                              A-2172-15T3
     In     light   of    the   judge's    factual    findings,     his     legal

conclusions are correct, and he did not abuse discretion in denying

the Rule 4:50-1 motion or in denying punitive damages.                     Said's

legal arguments are without merit and do not warrant further

discussion, beyond the following comments.            R. 2:11-3(e)(1)(E).

     We find no legal error in the judge's decision that Said

failed to prove his CFA claim.            Judge Den Uyl did not find that

Arrow's conduct constituted bad faith or was unconscionable.                   See


N.J.S.A. 56:8-2.         Contrary to Said's argument that Arrow sought

unconscionably high storage fees, the judge found that "[Said] did

not prove that the storage charges were unfair or unreasonable and

there was evidence that they were within industry standard."

     Said's reliance on Huffmaster v. Robinson, 
221 N.J. Super.
 315 (Law Div. 1986), is misplaced.               The case is not binding

precedent, because it was issued by the Law Division.                 Further,

the decision rested on the defendant's violation of CFA regulations

governing    vehicle     repairs,   and   did   not   hold   that   conversion

constitutes consumer fraud.         Id. at 320-24.

     Affirmed.




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