June 30, 2010
PATRICIA DENORA, PLAINTIFF-APPELLANT,
ROBERT DENORA, KING GEORGE AUTO SALES, INC., D/B/A ALL AMERICAN AUTO SALVAGE, A NEW JERSEY CORPORATION, AND D & R REALTY CO., A NEW JERSEY PARTNERSHIP, DEFENDANTS-RESPONDENTS.
On appeal from the Superior Court of New Jersey, Chancery Division, Middlesex County, Docket No. C-23-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued June 3, 2010
Before Judges Graves and J. N. Harris.
This appeal involves the clash of interests generated by the death of Dominick DeNora, the husband of plaintiff Patricia DeNora and the brother of defendant Robert DeNora. The parties committed themselves to an arbitral forum in which to resolve their disputes, all the while reserving a plenary right of appeal to the Superior Court by an aggrieved party. Because we believe that the Chancery Division correctly resolved the plenary appeal of the arbitrator's award, we affirm.
At the time of his death on August 2, 2006, Dominick was the sole owner of the shares of stock in defendant corporation King George Auto Sales, Inc. (King George). He also was a partner with Robert in several other business ventures--some formal, many informal--including a real estate-based partnership, D & R Realty Co. (D & R), which owned the property (192 Leesville Avenue, Woodbridge) upon which King George operated its salvage yard and automobile body repair shop. Dominick's testamentary objectives included (1) dividing unequally King George's shares between Patricia and Robert to give Patricia a bare majority control in the close corporation and (2) devising the value of his partnership interest in D&R to Patricia through the mechanism of an option to purchase, held solely by Robert. Things did not work out as smoothly as Dominick likely anticipated, which contributed to the intra-family discord between the surviving brother and wife that engendered the instant litigation.
Patricia initially commenced litigation in the Chancery Division in early 2007 against defendants. In her verified complaint seeking the appointment of a custodian for King George, she claimed oppressed shareholder status:
Since the time of Dominick DeNora's passing, Robert DeNora has taken over the business [of King George], has denied [Patricia] access to the business premises and/or business records, has withheld business information from [Patricia] and has refused to allow [Patricia] any role in the operation of the businesses (sic), all of this in spite of the fact that [Patricia] is the majority shareholder, and all in violation of N.J.S.A. 14A:12-7c (sic).
Patricia also expressly sought a partition sale of the entirety of the real estate owned by D & R.
In August 2007, rather than continuing to proceed with the litigation in the Chancery Division, the parties instead agreed to arbitrate their dispute. They entered into a written Agreement to Arbitrate, which stated in relevant part:
Any and all claims between the Parties that were asserted, or could have been asserted, in the Litigation shall be settled by binding arbitration.
Furthermore, the Agreement to Arbitrate provided:
Judicial review of the arbitrator's award may be sought from the Superior Court of the State of New Jersey, Appellate Division, as if the matter had been tried to a conclusion in the Superior Court.
An arbitrator was selected to conduct proceedings akin to a trial. Ultimately, the arbitrator rendered a final award more favorable to Robert than to Patricia, which was memorialized in three extensive writings dated July 1, August 14, and September 17, 2008. The final award required Patricia to sell her fifty-one percent stake in King George to Robert for $731,000; determined that Robert had an option to purchase Dominick's outstanding interest in D & R for $523,078.64; held that Robert was the owner of two vintage automobiles and ordered Patricia to turn the title to the vehicles over to Robert; and lastly disposed of certain real property interests located in Florida.
Patricia remained aggrieved by the arbitrator's determinations and challenged the award via the perceived contractual right to appeal to the Appellate Division. After this court promptly remanded the dispute back to the Chancery Division and defendant's separate application to confirm the award was incorporated there, the trial court undertook an extensive and comprehensive review of the proceedings conducted during the arbitration. It found few faults in the award of the arbitrator, and we likewise find nothing of substance with which to quibble concerning the trial judge's review.
The "scope of our appellate review of a judgment entered in a non-jury case," requires that we not disturb "the findings on which it is based... unless... 'they are so wholly insupportable as to result in a denial of justice.'" Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 483-84 (1974) (quoting Greenfield v. Dusseault, 60 N.J. Super. 436, 444 (App. Div.), aff'd o.b., 33 N.J. 78 (1960)).
Plaintiff has failed to convince us that the trial court's "'factual findings and legal conclusions... are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice.'" Id. at 484. (quoting Fagliarone v. Twp. of N. Bergen, 78 N.J. Super. 154, 155 (App. Div.) certif. denied, 40 N.J. 221 (1963). We further find insufficient merit in any of plaintiff's arguments to warrant discussion in a written opinion, R. 2:11-3(e)(1)(E), and affirm substantially for the reasons set forth by Judge Frank M. Ciuffani in his thoughtful and comprehensive forty page written decision entered on September 9, 2009.*fn1