July 18, 2007
LEVENT TEMIZ, PLAINTIFF-APPELLANT,
BULENT TEMIZ AND MURAT TEMIZ, DEFENDANTS-RESPONDENTS.
On appeal from Superior Court of New Jersey, Chancery Division, Bergen County, Docket No. C-385-04E.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued April 17, 2007
Before Judges Holston, Jr. and Grall.
The parties to this action are brothers who are each one-third members of Luxor, LLC and Temiz, LLC and one-third shareholders of 6th Avenue Electronics City, Inc. (6th Avenue).
All three entities lease property to a fourth entity, Sixth Avenue Electronics City, Inc. (Electronics). Plaintiff Levent Temiz sold his interest in Electronics to defendants Bulent and Murat Temiz in 2003.
In November 2004 plaintiff filed this action against his brothers seeking access to the records of Luxor, Temiz and 6th Avenue and an accounting and damages for defendants' breach of a fiduciary duty owed to him. The matter was tried to Judge Doyne. For reasons stated in a comprehensive written opinion dated January 25, 2006, Judge Doyne entered a final judgment providing the following: granting plaintiff access to the business records; awarding plaintiff damages in the amount of $155,137.11, plus interest of $3675.31; awarding plaintiff rental income and interest in the amount of $57,437.75 for property in Springfield, New Jersey leased to Electronics by 6th Avenue; on the ground that defendants were deemed to have exercised the five-year renewal option in the original lease effective August 2003, fixing rent on the Springfield property at the option price of $65,500 per month until March 2008; denying plaintiff's request to fix the rent for the Springfield property at market rate; awarding plaintiff damages in the amount of $14,051.56 for repairs Electronics improperly charged to the landlord; denying plaintiff's request for relief based on defendants' failure to refinance mortgages; denying plaintiff's request for counsel fees; and requiring defendants to distribute plaintiff's one-third share of the rental income to him on a monthly basis thereafter.
Plaintiff raises the following issues on appeal:
I. THE TRIAL COURT ERRED IN "DEEMING" THE SPRINGFIELD LEASE RENEWED AND DENYING PLAINTIFF'S CLAIM BASED ON FAIR RENTAL VALUE OF THE PROPERTY.
II. THE TRIAL COURT ERRED IN DECLINING TO APPOINT A FISCAL AGENT OR MONITOR FOR THE THREE REAL ESTATE ENTITIES.
III. THE TRIAL COURT ERRED IN DENYING ALL COUNSEL FEES TO PLAINTIFF.
After review of the record in light of the arguments presented we conclude that the issues raised lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). Judge Doyne's factual findings are adequately supported by the record, and we affirm substantially for the reasons stated in his written decision. R. 2:11-3(e)(1)(A).
We add only the following explanations for our conclusions. Under the circumstances of the protracted dispute between the parties that preceded this litigation, including defendants' purchase of plaintiff's interest in Electronics, we see no abuse of the court's broad discretion to grant equitable relief in the form of retroactive enforcement of the renewal option at the option-rate. See Goodyear Tire & Rubber Co. v. Kin Props., Inc., 276 N.J. Super. 96, 106 (App. Div.), certif. denied, 139 N.J. 290 (1994); Sosanie v. Pernetti Holding Corp., 115 N.J. Super. 409, 413 (Ch. Div. 1971). Similarly, the denial of counsel fees was not arbitrary. Plaintiff's request was premised on a claim that his efforts were for the benefit of 6th Avenue, and the judge found that plaintiff was the primary beneficiary. See Sarner v. Sarner, 38 N.J. 463, 469 (1962). Finally, the court did not err in concluding that plaintiff failed to establish grounds for appointment of a receiver, which is a drastic measure to be avoided when other effective options -- here, access to the business records and monthly payment of rent -- are available. See Ravin, Sarasohn, Cook, Baumgarten, Fisch & Rosen, P.C. v. Lowenstein Sandler, P.C., 365 N.J. Super. 241, 249 (App. Div. 2003).
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