November 7, 2007
DANECA DI PAOLO, M.D., PLAINTIFF-APPELLANT,
JONATHAN GROSS, M.D., MARC W. URQUHART, M.D. AND NEW JERSEY ORTHOPEDIC SPECIALISTS, P.A., DEFENDANTS/THIRD PARTY PLAINTIFFS-RESPONDENTS, AND CONNIE TREONZE, DEFENDANT/THIRD PARTY PLAINTIFF,
GEORGE DI PAOLO, THIRD PARTY DEFENDANT/ FOURTH PLAINTIFF,
CONNIE TREONZE, FOURTH PARTY DEFENDANT.
On appeal from the Superior Court of New Jersey, Chancery Division, Union County, Docket No. C-169-04.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued October 22, 2007
Before Judges Stern, A.A. Rodríguez and C.S. Fisher.
Plaintiff Daneca DiPaolo, M.D., commenced this action against defendants Jonathan Gross, M.D., and Marc W. Urquhart, M.D., her fellow shareholders in defendant New Jersey Orthopedic Specialists, M.D. (NJOS). Plaintiff claimed, among other things, that defendants breached their agreement, and that she was an oppressed minority shareholder as defined in N.J.S.A. 14A:12-7(1)(c), and, therefore, entitled to the remedies described in N.J.S.A. 14A:12-7(8), which authorizes the court to compel a sale of the oppressed shareholder's interest to the majority shareholders for fair value, and N.J.S.A. 14A:12-7(10), which authorizes an award of reasonable expenses and counsel fees upon proof that the adverse party acted "arbitrarily, vexatiously, or otherwise not in good faith." Defendants filed a counterclaim and third-party complaint, which alleged, among other things, that plaintiff had breached the terms of their agreement, and that she and her husband, third-party defendant George DiPaolo, who was NJOS's office manager until plaintiff abruptly left the practice, had committed fraud or were otherwise grossly negligent in the conducting of the business.
At the conclusion of a nine-day trial, Chancery Judge Thomas N. Lyons rendered a thirty-four-page written opinion in which he concluded that plaintiff was not an oppressed shareholder, but that she was nevertheless entitled to be compensated for the fair value of her shares in NJOS; he also concluded that at the time of plaintiff's departure from NJOS she had a significant negative draw and had also received a $40,000 advance on the payout of her interest in the business. Finding that plaintiff's negative draw and advanced payout exceeded the fair value of her shares in NJOS, Judge Lyons concluded that plaintiff was obligated to reimburse defendants the amount of $13,500.70. The judge later granted defendants' motion for reconsideration and agreed that he had made a mathematical error in his original opinion. As a result, the judgment was amended in order to require plaintiff to repay defendants $63,754.14.
After careful review of the record in light of the arguments raised by the parties, we conclude that the judge's findings were more than amply supported by the evidence he found credible and, therefore, are deserving of our deference. Bonnco Petrol, Inc. v. Epstein, 115 N.J. 599, 607 (1989); Rova Farms Resort, Inc. v. Investors Ins. Co. of America, 65 N.J. 474, 484 (1974). We also conclude that the judge based his decision on correct legal principles that were applicable to this dispute. Accordingly, we affirm substantially for the reasons set forth in Judge Lyons's comprehensive written decision, as later amended by him in ruling upon defendants' motion for reconsideration.
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