October 16, 2008
AHMED REFAI, PLAINTIFF-APPELLANT,
MAHROOSA HASAN, DEFENDANT-RESPONDENT, AND NADINE MAHMOUD AND NEIVEIN MAHMOUD, DEFENDANTS.
On appeal from Superior Court of New Jersey, Chancery Division, Hudson County, No. C-144-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 16, 2008
Before Judges Wefing and Yannotti.
Plaintiff Ahmed Refai appeals from a judgment entered following a bench trial in the Chancery Division. After reviewing the record in light of the contentions advanced on appeal, we affirm.
In July 2006 plaintiff filed a complaint seeking to establish that he held a 50% ownership interest in Kasim Associates, LLC ("Kasim"), which owned a building located at 41 Tonnelle Avenue, Jersey City. Defendant Mahroosa Hasan ("Hasan") had signed a listing agreement to place the property on the market, and plaintiff sought to restrain the sale. The property was sold during the course of the litigation for $750,000 and plaintiff sought to recover 50% of the sales proceeds which were held in escrow pending the determination of the court.
At the time Kasim was formed, Salah-Eldin Mahmoud ("Mahmoud") owned 55% of its shares and his daughters Nadine and Neivein 2.5% each. Another daughter of Mahmoud, Nesrein, owned 20% of the shares, and plaintiff's son Khaled Refai the remaining 20%. Nesrein was married to Khaled Refai; thus plaintiff's daughter-in-law was the daughter of Mahmoud. Together, the two held a 40% interest in Kasim. Plaintiff alleged that Mahmoud sold 50% of his interest in Kasim to Adel Mohammad Rashed Salem ("Salem") in 2004, leaving Mahmoud with a 5% interest in Kasim. Plaintiff further alleged that Salem sold him that 50% interest in August 2005.
Mahmoud is the former husband of defendant Hasan. The two were divorced in 2005, and Hasan was awarded her husband's interest in Kasim as part of equitable distribution. Plaintiff Refai contended that Hasan received as part of that equitable distribution only the 5% interest that Mahmoud retained following the sale to Salem in 2004. Hasan contended that the transfer to Salem was void. In connection with the divorce proceedings, an order had been entered restraining Mahmoud from making any transfers.*fn1 Hasan contended that the transfer to Salem occurred after the restraining order was entered and that papers had been back-dated to a point prior to entry of the restraining order. Hasan argued that as a result, she received Mahmoud's entire 55% interest because of the judgment entered in the divorce proceedings. The parties agreed that following entry of the divorce judgment, Khaled Refai and Mahmoud's three daughters transferred their shares to Hasan.
Plaintiff is an accountant and served as the accountant for Kasim. He testified that he attended to the details of forming Kasim and that he did so in June 2004. He also testified, however, that he never prepared or filed any tax returns for Kasim even though the property Kasim owned produced rental income. Although Mahmoud testified via video deposition that he witnessed the transfer from Salem to Refai, there was no testimony presented from Salem.*fn2 Nor was there any testimony of Khalid Refai, who allegedly prepared the certificates memorializing the transfer of these shares to plaintiff, his father.
Hasan testified and also presented two witnesses unrelated to the parties who each testified that in 2005, shortly before he departed for Egypt, Mahmoud had offered to sell the building to him. These offers were made nearly a year after Mahmoud had allegedly transferred 50% ownership of Kasim to Salem.
After the conclusion of the proceedings, the trial court placed its oral opinion on the record. It noted the absence of proof that any consideration was in fact paid in connection with either of these alleged transfers, the fact that the shares in Kasim bear no indication on their face of the number of shares each certificate represents, and the failure to present corroborating testimony. The trial court held that plaintiff had failed to prove by a preponderance of the credible evidence that he owned a 50% interest in Kasim and it entered a judgment dismissing plaintiff's complaint.
Plaintiff's sole argument on appeal is that he did present sufficient credible evidence. We decline to go behind the credibility assessments noted by the trial court or weigh anew the merit or lack of merit of the evidence presented. State v. Locurto, 157 N.J. 463, 470-71 (1999).
The judgment on appeal is affirmed substantially for the reasons stated by Judge Thomas P. Olivieri in his oral opinion of December 18, 2007.