MIKYUNG LEE v. JUNG H. LEE

NOT FOR PUBLICATION WITHOUT THE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
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                                                        SUPERIOR COURT OF NEW JERSEY
                                                        APPELLATE DIVISION
                                                        DOCKET NO. A-3322-19

MIKYUNG LEE and SEOUNG
JU BANG,

          Plaintiffs-Respondents,

v.

JUNG H. LEE, a/k/a JUNG HO
LEE, and PLAN J, INC.,

     Defendants-Appellants.
__________________________

                   Submitted February 9, 2021 – Decided February 26, 2021

                   Before Judges Fisher and Gilson.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Bergen County, Docket No. L-6056-18.

                   Peter Y. Lee, attorney for appellants.

                   Daniel D. Kim, attorney for respondents.

PER CURIAM

          In this appeal, defendants Jung H. Lee and Plan J. Inc., seek reversal of a

judgment, entered against them after a two-day bench trial, that awarded
plaintiffs Mikyung Lee and Seoung Ju Bang $116,500 in damages. We find no

error and affirm.

      The judge made credibility findings and determined that the parties

agreed, in late December 2017, to a sale of defendant Plan J. Inc.'s Fort Lee

restaurant, including its liquor license, to plaintiffs for $892,000, a substantial

part of which would be paid over a period of years. There were twists and turns

to the process and the contract as envisioned was never formed.

      In his findings, the judge credited the testimony of plaintiff Mikyung Lee

(plaintiff). She testified that her understanding of the material parts of the

conveyance was that she would immediately provide a $50,000 deposit to

defendant Jung H. Lee (defendant), who, on receipt, would produce a written

contract memorializing this transaction, including the terms necessary to effect

a conveyance of Plan J's liquor license. The oral understanding included that,

once an acceptable draft contract was provided and executed – no later than

February 1, 2018 – plaintiff would make a second $50,000 deposit.

      Notwithstanding the parties' understanding about how they would

proceed, defendant stated in mid-January 2018 that he urgently required the

second $50,000 deposit – even though he had yet to provide a written contract

– apparently because he was in the process of opening a restaurant in New York

City. Believing defendant was acting in good faith, plaintiff paid the second

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$50,000. With that, defendant gave plaintiff access to the Fort Lee restaurant

so she could begin installing equipment and making other changes. He also

invited plaintiff to open the restaurant in February, and plaintiff did so.

      Defendant emailed a draft contract on February 4, 2018. In plaintiff's

view, the contract omitted several essential terms: it did not acknowledge

$100,000 had already been paid; omitted the payment schedule agreed on; and

lacked terms necessary to cause a transfer of the liquor license.         Plaintiff

objected, and defendant responded he would provide a contract that contained

those terms. Defendant also disclosed for the first time that Plan J had a minority

shareholder but advised he would imminently buy out that shareholder.

      More than two months went by without defendant providing a written

contract memorializing all material agreed-upon terms; meanwhile, plaintiff

continued to operate the restaurant. In April 2018, defendant told plaintiff that

his dispute with the minority shareholder – that was pending in the Chancery

Division – had been resolved and he was ready to draft and execute a contract.

      Later that month, defendant provided another draft but plaintiff remained

unsatisfied. The parties and their attorneys met to hash things out, with plaintiff

taking the position that the contract necessarily had to include provisions that

would make plaintiff a Plan J shareholder so as to effectuate the inclusion of the

liquor license in the overall transaction. In the midst of this meeting, defendant

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abruptly advised he had to leave but would sign the document understanding it

would be completed in his absence. The next day, defendant discharged his

attorney and refused to complete the transaction. With that, plaintiff demanded

that defendant provide an acceptable contract by May 9, 2018, or she would

walk away from the deal. When nothing thereafter occurred, plaintiff returned

the keys to the restaurant and commenced this suit.

      At the conclusion of a two-day bench trial, the judge credited plaintiff and

her version of what transpired and determined that defendant's failure to

complete the transaction was unjustified, entitling plaintiff to be made whole.

Those credibility determinations and factual findings are deserving of our

deference because they are fully supported by evidence in the record. See Rova

Farms Resort, Inc. v. Investors Ins. Co.,  65 N.J. 474, 483-84 (1974). Deference

is "especially appropriate when" – as here – "the evidence is largely testimonial

and involves questions of credibility." Cesare v. Cesare,  154 N.J. 394, 412

(1998).

      To make plaintiffs whole – because to leave the parties where they were

found when suit started would unjustly enrich defendant – the judge awarded

plaintiffs $100,000 (the amount of the deposit) and an additional $16,500, a

figured based on the three monthly payments plaintiff made while operating the

restaurant and awaiting an agreeable formal contract, which never arrived.

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      In appealing, defendants argue:

            I. THE TRIAL COURT ERRED BECAUSE IT
            ENFORCED OR CONDONED AN ILLEGAL
            ARRANGEMENT     INVOLVING     PLAINTIFFS'
            BORROWING OF DEFENDANTS' NEW JERSEY
            LIQUOR LICENSE AND ALLOWED THEIR
            RETENTION OF PROCEEDS DERIVED FROM
            CRIMINAL ACTIVITY, INCLUDING THE UNLAW-
            FUL SALES OF ALCOHOLIC BEVERAGES.

            II. THE TRIAL COURT ERRED BECAUSE IT HAD
            REOPENED DISCOVERY WHERE PLAINTIFFS
            HAD NEITHER PURSUED TIMELY DISCOVERY
            NOR PRESENTED ANY EXCEPTIONAL CIRCUM-
            STANCES.

            III. THE TRIAL COURT ERRED BECAUSE IT
            FOUND PLAINTIFFS HAVE STANDING TO
            PURSUE CLAIMS AND DAMAGES BASED ON
            MONIES ALLEGEDLY PAID BY A NONPARTY
            WHO IS A COMPLETE STRANGER TO THIS
            LITIGATION.

We find insufficient merit in these arguments to warrant further discussion in a

written opinion. R. 2:11-3(e)(1)(E). We add only a few comments about each

of defendants' three arguments.

      In their first, defendants contend plaintiffs should have been barred from

recovering because they used Plan J's liquor license to serve alcohol during the

few months plaintiff operated the restaurant. Even assuming this arrangement

violated state or local alcohol regulations – an issue we need not decide –

defendant cannot paint himself free from fault, since he invited plaintiff to

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operate the restaurant in that interim period. Moreover, defendant has not

provided a principled reason why this alleged violation should lead to his

recovery of a windfall by retaining the $100,000 deposit when, as the judge

found, the failure to complete the transaction was defendant's fault. In pursuing

the appropriate goal of making plaintiff whole due to defendant's unilateral

failure to complete the transaction, the judge fairly included in the judgment an

award of damages that consisted of the deposit amount and the three monthly

$5,500 payments for plaintiff's otherwise pointless three-month operation of a

restaurant she would never own.

      In their second point, defendants claim another judge's grant of an

extension of discovery a few months prior to trial was erroneous. Defendants

have provided nothing that would suggest the extension order constituted an

abuse of discretion, the standard we must apply in reviewing that order. See,

e.g., Rivers v. LSC P'ship,  378 N.J. Super. 68, 80 (App. Div. 2005). Nor have

defendants demonstrated how they were prejudiced by that determination.

      We lastly reject defendant's third point, in which he argues plaintiffs

lacked standing to seek damages for a portion of the $100,000 deposit because

that fund consisted of a $35,000 check from a New York corporation, which is

not a party to this suit. There is nothing in the record to suggest plaintiffs were

not entitled to the use of the funds represented by this check.         Moreover,

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defendants never complained about the source of the funds when they received

and negotiated the checks that comprised the $100,000 deposit.

     Affirmed.




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