Opinion
DOCKET NO. A-4416-12T1
07-16-2014
MERCEDES SANTOS, Plaintiff-Appellant, v. NAMRATA RAMRAKHANI, EDWARD GARCIA, AARON SHAPIRO, Defendants-Respondents.
James E. Young, Jr., attorney for appellant. Ariela E. Herzog, attorney for respondent Namrata Ramrakhani. Respondents Edward Garcia and Aaron Shapiro have not filed a brief.
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Parrillo and Alvarez.
On appeal from the Superior Court of New Jersey, Law Division, Special Civil Part, Bergen County, Docket No. DC-3120-13.
James E. Young, Jr., attorney for appellant.
Ariela E. Herzog, attorney for respondent Namrata Ramrakhani.
Respondents Edward Garcia and Aaron Shapiro have not filed a brief. PER CURIAM
Plaintiff Mercedes Santos appeals from the April 4, 2013 entry of judgment in the amount of $2500 in favor of defendant Namrata Ramrakhani, after a bench trial in the Special Civil Part. We affirm.
Santos filed her complaint seeking a refund of a $4500 deposit she paid in early December 2010 towards the purchase of a business, NSNN Sales d/b/a Main Street Cards & Gifts, operated by Nanik Ramrakhani, but owned by his daughter Namrata. Nanik negotiated with Santos the written agreement now in dispute and was the only witness who testified on behalf of the business. The counterclaim sought damages totaling $9500, consisting of the difference between the $45,000 Santos agreed to pay and the $38,000 sale price defendant obtained from a third party purchaser many months later, and a $2500 fee to a real estate agent.
In her abbreviated direct testimony, Santos merely stated that she signed an agreement to purchase the business and paid a $4500 deposit. On cross-examination, she acknowledged that on an unspecified date in either November or December 2010, she negotiated the agreement with Nanik through her two daughters, as she does not speak English. Plaintiff's appendix did not include a copy of the purchase contract, nor copies of any of the correspondence admitted as exhibits relied upon by the judge during the trial. It was undisputed that the agreement named defendant Edward Garcia, an accountant, as Santos's representative. Notices under the contract were to be provided to her and to Garcia. Garcia did not appear at trial or file an answer to the complaint.
In December 2010, Santos's sister, whom she apparently expected to assist her in operating the business, suffered some physical injury as a result of an accident. On or about January or February 2011, Santos told Nanik that she could not go through with the purchase because of her sister's unavailability.
Although on the one hand Santos testified that Nanik refused to show her how to operate the lottery machine included with the business assets unless she made an additional payment, she also stated that Nanik had done nothing to prevent the sale from occurring. Nanik had, in fact, told her to "buy, buy, . . . [h]e said buy, I should buy."
Nanik testified that after many fruitless calls to Santos, he directed his attorney, defendant Aaron Shapiro, to send her a certified letter advising her of the consequences of failing to proceed to closing. In that notice, sent to both Santos and Garcia, Santos was informed that if closing was not scheduled by March 4, 2011, she would be considered in breach and her deposit would be forfeited. The letter to Santos was returned as "undeliverable" although there was no question it was mailed to the correct address.
The notice also referred to the original closing date as having been December 13, 2010. Shapiro claimed that the contract with Santos was not signed until six days after she paid her deposit, and that Nanik paid the deposit into his attorney's trust account. Shapiro claimed he never saw the contract, which obliged him to act as the escrow agent and either hold the deposit money or pay it into court in the event of a dispute, until the date of trial. He also claimed he spoke with Garcia and Santos's daughters, advising them that because of Nanik's health, closing was a matter of some urgency. Shapiro, a New York attorney, did not explain how it was possible that Santos's $4500 was deposited into his attorney's trust account without his prior knowledge.
In rendering his findings of fact, the judge first stated that plaintiff fell woefully short of proving any wrongdoing on the part of defendant. To the contrary, plaintiff was unable to explain the reason that for a minimum period of four months, she did nothing to either complete the transaction or obtain Nanik's agreement to delay closing, or to obtain a refund of her deposit for that matter. Indeed, the judge found that she "never produced any evidence [or] testimony that she was ready, willing and able to close this deal." The judge also found that Nanik, on behalf of the business, fulfilled the obligations outlined in the contract by notifying Santos, months after the deal was supposed to have closed, that if she did nothing further, her deposit would be forfeited. Additionally, the judge found Shapiro's testimony, that he was unaware of his role as an escrow agent on the contract until after there was a problem, to be credible. In any event, he concluded that Shapiro's failure to perform as called for by the contract ultimately did not injure plaintiff because she was not entitled to repayment of the $4500.
The judge determined that the buyer was in default, closing having been initially scheduled for December 13, 2010. Therefore, the judge decided that Santos failed to meet her burden of proof on her cause of action, while defendant met her burden of proof because she established Santos's failure to perform, the loss of $7000, representing the difference between the purchase price Santos agreed to pay and the price at the later sale. The judge fixed the amount of damages at $7000, and declined to supplement that figure with the $2500 real estate fee because of the lack of proofs on that score. Therefore, he awarded defendant $2500, the difference between the damages of $7000 and the $4500 already in her possession. Although Garcia was in default, the judge could find no basis for the entry of any judgment against him, as plaintiff had not established any wrongdoing on his part.
Plaintiff raises the following points for our consideration on appeal:
POINT I
THE TRIAL COURT ERRED BY NOT ENFORCING THE SPECIFIC LANGUAGE OF THE CONTRACT.
POINT II
THE TRIAL COURT ERRED WHEN IT DETERMINED THAT PLAINTIFF COULD NOT COMPLETE THE TRANSACTION AND CONSIDERED THAT FACT TO FIND PLAINTIFF IN BREACH.
POINT III
THE TRIAL COURT ERRED WHEN IT FOUND PLAINTIFF TO BE IN BREACH OF CONTRACT. POINT IV
THE AWARD OF DAMAGES TO DEFENDANT RAMRAKHANI SHOULD BE REVERSED BECAUSE IT WAS NOT BASED ON ADEQUATE SUBSTANTIAL CREDIBLE EVIDENCE.
We consider Santos's points to be so lacking in merit as to not warrant much discussion in a written opinion. R. 2:11-3(e)(1)(E).
In order to meet her burden of proof that the deposit was wrongfully retained, Santos had to do more than merely establish the existence of the contract and payment of the deposit. She had no explanation whatsoever for her silence after the closing date came and went, nor for her silence in the months which followed. In fact, even if the judge had found that her sister's inability to assist with the business made it impossible for her to go through with the purchase, that would not constitute a legal excuse for her breach. Attempts were made to deliver notice to Santos of defendant's intent to keep the deposit. However, none of the attempts were fruitful, but it is not in dispute that notice was sent to the correct address.
We are obliged to enforce contracts as the parties intended, and there is nothing in the record which establishes anything other than the clear intent to proceed to closing on the date in December 2010 specified in the written agreement. Santos's legally inexplicable failure to follow through on the closing date, or make alternative arrangements, or in some other fashion address her breach, was a possibility envisioned in the contract. The remedy was not repayment of the deposit, but retention by defendant.
We review a court's findings of fact deferentially, affirming when they are supported by adequate competent evidence in the record. State v. Shaw, 213 N.J. 398, 411 (2012). We conclude that the findings of the trial judge are adequately supported by the testimony. They were not so wide of the mark as to have been clearly mistaken and are thus entitled to deference. State v. Castagna, 387 N.J. Super. 598, 605 (App. Div.), certif. denied, 188 N.J. 577 (2006).
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION