SACHIN K. SHETH and HARSHAD PATEL v. POOJA GOEL

NOT FOR PUBLICATION WITHOUT THE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-3246-18T2

SACHIN K. SHETH and
HARSHAD PATEL,

          Plaintiffs-Respondents,

v.

POOJA GOEL and RAHUL GOEL,

     Defendants-Appellants.
______________________________

                   Argued November 4, 2020 – Decided November 18, 2020

                   Before Judges Mawla and Natali.

                   On appeal from the Superior Court of New Jersey,
                   Chancery Division, Essex County, Docket No. C-
                   000064-18.

                   Shay S. Deshpande argued the cause for appellants.

                   Robert S. Cosgrove argued the cause for respondents
                   (Durkin & Durkin, LLC, attorneys; Robert S. Cosgrove,
                   of counsel and on the brief).

PER CURIAM
      In this partition action, defendants Pooja Goel (Pooja) and Rahul Goel

(Rahul)1 appeal from a March 13, 2019 Chancery Division order entered in favor

of the plaintiffs Sachin K. Sheth (Sheth) and Harshad Patel (Patel) after a non-

jury trial. Defendants contend that the court's factual findings were improper as

not supported by the competent and credible evidence. We affirm.

      We are able to determine the following facts from the record provided to

us. The parties own three properties as tenants in common on First Street,

Sussex Avenue, and Camden Street in Newark. Defendants, Patel, and Sheth

each own a one-third interest in the First Street property, and the defendants and

Sheth each own a fifty-percent ownership interest in the Sussex Avenue and

Camden Street properties.

      At some point in October 2017, a dispute arose regarding the distribution

of rent and the payment of expenses at the properties. Subsequently, plaintiffs

filed a seven-count verified complaint seeking a partition of the properties under

 N.J.S.A. 2A:56-1 to -44 and Rule 4:63-1. Plaintiffs also pled causes of action

for conversion and partnership oppression.        Plaintiffs further alleged that

defendants breached the parties' contract, their fiduciary duties, and the



1
  For ease of reference and intending no disrespect, we refer to defendants by
their first names.
                                                                          A-3246-18T2
                                        2
covenant of good faith and fair dealing, and sought equitable relief, damages, an

accounting, dissolution of the partnership, and an inspection of all books and

records.   Defendants answered the complaint and asserted counterclaims

sounding in breach of contract, unjust enrichment, promissory estoppel,

conversion, fraud, and partition. 2

      The court held a trial on the partition claim on March 7, 2019. The court

reviewed documentary evidence and also considered the testimony of Rahul,




 2 The March 13, 2019 order also references August 16, 2018, October 22, 2018,
and October 24, 2018 orders. The August 16, 2018 order required that the
properties be "listed for sale with a licensed real estate broker . . . and sold for
the highest and best offer available on the open market." It further ordered that
any proceeds from the sales be placed in escrow. The October 22, 2018 order
required that the defendants comply with a July 17, 2018 order to turn over
financial documents related to the properties and stated that a rent receiver
would be appointed to manage the properties. The October 24, 2018 order
appointed David Dubrow as the rent receiver.

   Notably, defendants' notice of appeal seeks review of only the March 13, 2019
order. It is well settled that a party's appeal is limited to those judgments or
orders, or parts thereof, designated in the notice of appeal. Pressler & Verniero,
Current N.J. Court Rules, cmt. 6.1 on R. 2:5-1 (2020). Further, it is unclear
from the record provided how the court resolved the non-partition claims raised
by the parties. In any event, the parties have not briefed any issue other than
those related to the court's March 13, 2019 order and we accordingly consider
any challenge to any ruling by the court related to the non-partition claims
waived. See Gormley v. Wood-El,  218 N.J. 72, 95 n.8 (2014); Pressler &
Verniero, Current N.J. Court Rules, cmt. 5 on R. 2:6-2 (2020).
                                                                            A-3246-18T2
                                         3
Patel, Sheth, Mark Bunimovich (Bunimovich), the current property manager,

and Atif Joseph (Joseph), a tenant of the Sussex Avenue property.

      Rahul testified that in January 2018 he limited plaintiffs' access to

"income generated from [the] properties." He further stated that he kept the cash

collected for the rent in his "car," "jacket," or "pant[s]." Moreover, Rahul noted

that he did not deposit any of this money in the bank account associated with

the properties and was not providing an accounting of the income on "a month-

to-month basis."

      Patel testified that he owned a one-third interest in the First Street

property.     He further stated that profits generated from the property were

historically distributed in proportion to his ownership interest. Patel also stated

that he was "excluded . . . from access to [the] accounting information" in

October 2017. Likewise, Sheth testified that Rahul failed to respond to his

request for an accounting in October 2017. Sheth further stated that Rahul

removed all the furnishings from the Camden Street and Sussex Avenue

properties.

      Bunimovich testified to the condition of the properties and the current

tenants. Specifically, Bunimovich stated that First Street was "fully occupied,"




                                                                           A-3246-18T2
                                        4
that Camden Street was vacant and required a "substantial amount of work," and

that Joseph is the only tenant at Sussex Avenue.

      Joseph testified that he had lived at Sussex Avenue for approximately two

years and paid rent directly to Rahul.       Joseph further noted that prior to

Bunimovich taking over the properties, "[eleven] or [twelve]" people lived at

the Sussex Avenue property and that some of them paid their rent to Rahul. He

also stated that he witnessed Rahul and his staff remove furniture from the

property in 2018.

      The trial proceedings continued on March 13, 2019, when the court

addressed all of the "debits and credits" by conscientiously considering the

parties' documentary evidence. The court determined that the properties would

be sold with Sheth receiving $32,665.52 in net credits from the sale of the

Camden Street and Sussex Avenue properties. The court further determined that

Sheth and Patel would each receive $13,974.13 in net credits from the sale of

the First Street property. Moreover, the court stated that the "credits shall be

deducted from defendants['] share . . . of the proceeds of sale from the first

closing and prior to any disbursement to defendant[s] from any subsequent

closing[.]" Furthermore, the court ordered Sheth to be reimbursed $9,992.20

"from defendant[s'] . . . share of the first closing for credit line . . . payments


                                                                           A-3246-18T2
                                        5
[made by Sheth]." The court further appointed Luis Nogueira of Exit Realty to

"market and sell each of the [properties]" and Terri Nitti to "transact and close

the sale[s]."

      In support of its decision the court stated that it found Rahul's testimony

"wholly incredible." Specifically, the court noted that defendant "contradict[ed]

himself" stressing that it had "[never] seen a witness who was so self-

contradictory[.]"   The court further stated that "[the defendant] was very

fortunate that [the court] made the adjustments [it] made given the fact that his

overall testimony, itself, left much to be desired."

      The scope of our review of a non-jury case is limited. Seidman v. Clifton

Sav. Bank, S.L.A.,  205 N.J. 150, 169 (2011). The findings on which a trial court

bases its decision will "not be disturbed unless they are so wholly and

supportable as to result in a denial of justice[.]" Rova Farms Resort v. Investor's

Ins. Co. of Am.,  65 N.J. 474, 483-84 (1974) (citation omitted). Our review, in

such circumstances, is limited to determining whether the findings of the trial

judge could reasonably have been reached on sufficient credible evidence on the

record considering the proofs as a whole. We must give due regard to the ability

of the factfinder to assess credibility. See Balsamides v. Protameen Chemicals,

 160 N.J. 352, 368 (1999). The trial court's decisions on issues of law are,


                                                                           A-3246-18T2
                                         6
however, subject to plenary review. 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." Ibid. (citations omitted).

      Partition is an equitable remedy by which property, held by at least two

people or entities as tenants in common or joint tenants, may be divided.

Newman v. Chase,  70 N.J. 254, 260-61 (1976); see also  N.J.S.A. 2A:56-1 to -

44; R. 4:63-1. When property is subject to partition, a physical division of the

property is one possible remedy.  N.J.S.A. 2A:56-2 provides that "[t]he superior

court may, in an action for the partition of real estate, direct the sale thereof if

it appears that a partition thereof cannot be made without great prejudice to the

owners, or persons interested therein."       The manner in which property is

partitioned is "within the discretion of the court." Greco v. Greco,  160 N.J.

Super. 98, 102 (App. Div. 1978) (citing Newman,  70 N.J. at 263). Nevertheless,

"the law favors partition in kind." Swartz v. Becker,  246 N.J. Super. 406, 412

(App. Div. 1991).

      As noted, defendants assert that the trial court "failed to properly award

damages and did not make proper factual findings" to support the final

judgment. First, we note that defendants fail to cite specifically to the record to


                                                                            A-3246-18T2
                                         7
support their arguments. As we stated in Spinks v. Twp. of Clinton, parties have

a "responsibility to refer us to specific parts of the record . . . [and] may not

discharge that duty by inviting us to search through the record ourselves."  402 N.J. Super. 465, 474-75 (App. Div. 2008) (citing State v. Hild,  148 N.J. Super.
 294, 296 (App. Div. 1977)) (finding that it is improper to request the court to

"scour sixty-one pages of plaintiffs' appendix, as well as computer disks[,]

without informing [the court] of what particular pages supposedly support their

argument"). It was therefore improper for defendants to request that we review

246 pages of trial transcript and 478 pages of the appendix to determine if any

of their arguments had substantive support.

      Despite this procedural deficiency, we have considered and reject

defendants' arguments on the merits. We are satisfied that the court reviewed

each of the disputed credits and debits of the parties and made corresponding

factual and credibility findings which are amply supported by the record and

that warrant our deference. Rova Farms,  65 N.J. at 483-84; Balsamides,  160 N.J. at 368.

      To the extent we have not addressed any of defendants' arguments, it is

because we find them without sufficient merit to warrant discussion in a written

opinion. R. 2:11-3(e)(1)(E)


                                                                         A-3246-18T2
                                       8
Affirmed.




                A-3246-18T2
            9