PAULO ESTEVES TILE IMPORTERS AND DISTRIBUTORS, INC v. MARBLE UNLIMITED EMERALD PROPERTIES

NOT FOR PUBLICATION WITHOUT THE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-3441-14T3

PAULO ESTEVES,
TILE IMPORTERS AND
DISTRIBUTORS, INC.,

        Plaintiffs-Appellants,

v.

MARBLE UNLIMITED,
EMERALD PROPERTIES,

        Defendants-Respondents.

______________________________________

              Submitted November 2, 2016 – Decided February 13, 2018

              Before Judges Fuentes and Carroll.

              On appeal from Superior Court of New Jersey,
              Chancery Division, Monmouth County,   Docket
              No. C-000045-14.

              Fernando   Iamurri,   P.C.,    attorneys   for
              appellants (Fernando Iamurri and Monica Villa,
              on the brief).

              George D. McGill, attorney for respondent.

        The opinion of the court was delivered by

FUENTES, P.J.A.D.
      Plaintiffs Paulo Esteves and Tile Importers and Distributors,

Inc., and defendant Marble Unlimited Emerald Properties hold title

as tenants in common to real property located in the Borough of

Farmingdale in Monmouth County.            The parties use the property as

the principal location from which they operate their respective

businesses.      In July 2011, plaintiffs filed a complaint against

defendant in the Chancery Division, General Equity Part, alleging

defendant refused to share in the cost of maintaining the property,

including refusing to pay its share of water charges, insurance

premium, and other costs related to the property.                      Plaintiffs

sought   injunctive     relief   in   the    form   of   an   order    directing

defendant   to    pay   its   share   of    these   expenses     and   requiring

defendant to remove certain items from plaintiffs' side of the

property.

      On October 2, 2012, Judge Thomas W. Cavanagh entered an Order

of   Settlement    that   memorialized,       in    twenty-two    individually

numbered paragraphs, the terms of the parties' "Agreement" that

resolved this litigation.        Paragraph 21 of Judge Cavanagh's order

provided:

            that any disputes arising under this Agreement
            shall be submitted to binding arbitration in
            Monmouth County, by an arbitrator chosen from
            the   list   maintained    by   the   American
            Arbitration Association. In the event of any
            dispute hereunder, the party prevailing in
            such arbitration shall be entitled to recover,

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          in addition to all other remedies or damages,
          reasonable attorneys' fees incurred in such
          action[.]

     The parties were not able to abide by the terms of the

settlement agreement and the dispute was submitted to binding

arbitration before Mario J. Suarez, Esq., an arbitrator with the

American Arbitration Association, Commercial Arbitration Tribunal.

In a written decision dated October 1, 2013, consisting of twenty-

one individually numbered paragraphs, arbitrator Suarez found in

favor of plaintiffs on various issues concerning the operational

expenses, use, and maintenance of the property.    Paragraph number

16 of arbitrator Suarez's award—decision stated:

          The party prevailing in any action or
          proceeding to enforce this award shall be
          entitled to recover reasonable legal fees.

          The administrative fees of the American
          Arbitration Association totaling $1,425.00
          and the compensation of the arbitrator
          totaling $900.00 shall be borne by Respondent.
          Therefore,    Respondent    shall    reimburse
          Claimant the sum of $1,875.00, representing
          that portion of said fees in excess of the
          apportioned costs previously incurred by
          Claimant.

          This Award is in full settlement of all claims
          and    counterclaims    submitted   to    this
          Arbitration. All claims not expressly granted
          herein are hereby, denied.

     On March 20, 2014, plaintiffs filed a second complaint against

defendant in the Chancery Division, General Equity Part, seeking


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enforcement of the October 1, 2013 arbitration award, "and previous

settlement, attorney's fees, [and] costs[.]"1 The matter was tried

on March 4 and March 10, 2015, before General Equity Judge Patricia

Del Bueno Cleary as a bench trial.         Paulo Esteves and Hakan

Sagiroglu, the two principals in their respective businesses, were

the only witnesses who testified.

     Judge Del Bueno Cleary permitted the parties to testify at

length about their interactions since the arbitration.     The judge

found plaintiffs' second complaint was predicated on the same

allegations of misconduct by defendant that were raised in the

first complaint filed in 2011.       With respect to their ownership

interest in the property, Judge Del Bueno Cleary found:

          We have tenants in common. They bought [. .
          .] their [property] interest at different
          times, but they are now cotenants. And if a
          deed is silent as to the percentage of the
          individual ownership interest, there is a
          [rebuttable] presumption that the grantees
          share ownership equally under [Asante v.
          Abban, 
237 N.J. Super. 495 (Law Div. 1989)].

     In light of the parties' method of ownership and considering

all of the evidence presented during the two-day trial, Judge Del



1
  According to the procedural history recited in defendant's
appellate brief, defendant filed an answer to plaintiffs' second
complaint on June 26, 2014, and an amended answer and counterclaim
on October 4, 2014. Plaintiff thereafter filed an answer to the
counterclaim on October 10, 2014.     However, defendant did not
include copies of these pleadings as part of the appellate record.

                                 4                           A-3441-14T3
Bueno    Cleary       concluded       the    case     was   an    action     seeking         an

"enforcement of a settlement and an enforcement of an arbitration

award."       The judge also found "insufficient proofs . . . to award

monies to the defendant."                   She therefore dismissed defendant's

counterclaim.         Considering the parties' hostility and inability

to   coexist     as    co-owners       of     the    property     occupied       by     their

respective businesses, Judge Del Bueno Cleary stated: "The remedy

I see is that there should be partition."                       Ultimately, the judge

dismissed plaintiffs' action and defendant's counterclaim with

prejudice, and without cost to either party.

       In this appeal, plaintiffs argue Judge Del Bueno Cleary erred

when    she    "disregarded       a    memorialized         agreement"      between        the

parties regarding the use of the property.                        Although plaintiffs

concede that defendant paid all of the monetary relief awarded by

the arbitrator, they argue Judge Del Bueno Cleary erred when she

concluded      the    arbitration       award       did   not    contain    a    provision

"dictating       ramifications         of     late    payments"      and    in     finding

plaintiffs were not entitled to an award of counsel fees.                                    We

disagree and affirm.

       When we review the findings and conclusions of a trial court

following a bench trial, we are bound to consider the judge's

unique    opportunity      to     hear       the    witnesses,     sift     through        the

competing evidence, and make reasoned conclusions.                         Allstate Ins.

                                              5                                       A-3441-14T3
Co. v. Northfield Med. Ctr., P.C., 
228 N.J. 596, 619 (2017).                     An

appellate court should "not disturb the factual findings and legal

conclusions   of   the   trial   judge"    unless     convinced    that     those

findings and conclusions were "so manifestly unsupported by or

inconsistent with the competent, relevant and reasonably credible

evidence as to offend the interests of justice."            Ibid.    (quoting

Rova Farms Resort v. Investors Ins. Co., 
65 N.J. 474, 483 (1974)).

      Here, the record supports Judge Del Bueno Cleary's findings

and   conclusions.       The   October    2,   2012   settlement    agreement

comprehensively addressed all of the issues raised by plaintiff

in the first complaint which carried the imprimatur of the court

in the form of an order entered by Judge            Cavanagh, and expressly

obligated the parties to resolve any dispute arising from the

Agreement by way of arbitration.               The arbitration award also

provided that "[t]he party prevailing in any action or proceeding

to enforce this award shall be entitled to recover reasonable

legal fees and charges."       (Emphasis added.)      Because neither party

prevailed before Judge Del Bueno Cleary, neither party is entitled

to an award of counsel fees.

      Affirmed.




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