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539 Absecon Boulevard, L.L.C. v. Shan Enterprises Limited Partnership

October 18, 2010

539 ABSECON BOULEVARD, L.L.C., A NEW JERSEY LIMITED LIABILITY COMPANY, AND BHUDEV SHARMA, PLAINTIFFS-RESPONDENTS/ CROSS-APPELLANTS,
v.
SHAN ENTERPRISES LIMITED PARTNERSHIP, A NEW JERSEY LIMITED PARTNERSHIP, SUNITI CORP., A NEW JERSEY CORPORATION, SHAN REALTY ASSOCIATES, L.P., A NEW JERSEY LIMITED PARTNERSHIP, SHAN REALTY CORP., A NEW JERSEY CORPORATION, SUNIL J. SHAH, NIMESH SHAH, SWATI SHAH, JASHVANT SHAH, AND HJS FUNDING, LLC, A NEW JERSEY LIMITED LIABILITY COMPANY, DEFENDANTS-APPELLANTS/CROSS-RESPONDENTS.



On appeal from the Superior Court of New Jersey, Chancery Division, Atlantic County, Docket No. C-110-04.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted September 27, 2010

Before Judges Reisner, Sabatino, and Alvarez.

The present appeal and cross-appeal arise from various rulings made by the Chancery Division, following our remand of this case to that court in March 2009. See 539 Absecon Blvd., L.L.C. v. Shan Enter. Ltd., No. A-2250-06 (App. Div. Mar. 26, 2009), 406 N.J. Super. 242 (App. Div.), certif. denied, 199 N.J. 541 (2009).*fn1

We need not repeat here the facts and legal determinations that are comprehensively set forth in our prior opinion. Briefly stated, this litigation arises out of defendants' 2002 sale to plaintiffs of a motel business in Absecon, and the real estate upon which the motel was situated. The purchase was partially financed by a bank mortgage, and the remainder of the purchase price was financed by four promissory notes in the respective amounts of $715,000, $325,000, $250,000, and $200,000.*fn2 After plaintiffs acquired the motel business, the income stream from the motel rooms turned out to be less than what they had anticipated. That perceived shortfall prompted plaintiffs to file the instant action, contending that defendants had violated the Consumer Fraud Act ("the CFA"), N.J.S.A. 56:8-1 to -106, because of various alleged misrepresentations and omissions they made in connection with the sale. Plaintiffs also alleged common-law fraud, fraud in the inducement of the sale, fraudulent concealment, negligent misrepresentation, wrongful concert of action, conspiracy, breach of the implied covenant of good faith and fair dealing, unjust enrichment, unilateral mistake, and a right to pierce the corporate veil. 406 N.J. Super. at 244, (slip op. at 3). Defendants, in turn, filed a counterclaim which, among other things, sought enforcement of the promissory notes. Id. at 265, (slip op. at 36).

Following a lengthy bench trial, the Chancery judge determined that plaintiffs had established violations of the CFA by a preponderance of the evidence, and he awarded plaintiffs treble damages and counsel fees under the statute, as well as prejudgment interest, yielding a judgment of $2,779,742.72. Id. at 265-66, (slip op. at 37). However, the trial judge was unpersuaded that plaintiffs had proven common-law fraud by the higher standard of clear and convincing evidence required to sustain such a claim. Id. at 269, (slip op. at 42-43). The trial judge also rejected plaintiffs' other common-law claims. Id. at 271, (slip op. at 46). As to defendants' counterclaim on the notes, the trial judge's original decision found the respective plaintiffs liable for the sums due under the notes, but not the higher default interest rates contained within them. Ibid. The judge further ruled that the $715,000 note would remain in effect, and that plaintiffs could offset any sums due to defendants under the other three notes against the substantially higher judgment issued in plaintiffs' favor. Id. at 271-72, (slip op. at 46-47).

On appeal, we reversed the trial judge's legal determination that the CFA applied to this kind of transaction. Id. at 273-80, (slip op. at 48-60). We held that, as a matter of law, the CFA did not apply to the sale of the ongoing motel business, particularly given the fact that the real estate was not the primary component of the transaction, and also that defendants' misrepresentations related to the revenue stream of the motel business, not the underlying real property. Id. at 276-80, (slip op. at 54-60). We accordingly reversed plaintiffs' judgment on the CFA claims. Id. at 280, (slip op. at 60). We also affirmed the trial judge's dismissal of plaintiffs' non-CFA claims. Id. at 280, (slip op. at 67-69). Additionally, we sustained the trial judge's rejection of plaintiffs' claims that two of the promissory notes were unenforceable because of alleged oral agreements to cancel them. (Slip op. at 69-74.) We specifically upheld "[t]he portions of the judgment enforcing all four promissory notes," (id. at 74), and remanded the case to the trial court "for the entry of a corrected final judgment consistent with [our] opinion," (id. at 75). Plaintiffs thereafter petitioned the Supreme court for certification, which was denied. 199 N.J. at 541.

Following the denial of certification, the same judge who had presided over the trial considered the parties' various arguments with respect to the remand and the appropriate terms of a corrected final judgment. Among other things, defendants argued that, in light of the appellate reversal of plaintiffs' CFA claims, all three of the outstanding promissory notes*fn3 should be deemed to be in default, and that defendants were entitled to the full measure of default remedies set forth in those three notes, including the higher default interest rates and counsel fees. Plaintiffs opposed defendants' contentions of default. Plaintiffs also sought to have the trial court reinstate their common-law claim of negligent representation.

After considering the parties' lengthy briefs and submissions, and their oral arguments on the remand, as well as the significance of this court's decision on appeal, the trial judge entered a detailed corrected final judgment on July 22, 2009. The corrected judgment provided, in relevant part, as follows, with respect to the promissory notes:

Judgment is hereby entered in favor of defendant Shan Enterprises Limited Partnership and against plaintiff Bhudev Sharma with respect to the notes executed by said plaintiff in favor of said defendant as follows:

(a) Judgment is hereby entered in favor of Shan Enterprises Limited Partnership and against plaintiff Bhudev Sharma in the amount of $301,259.90, representing principal in the amount of $200,000.00 and interest in the amount of $101,259.90 on the $200,000.00 note. Interest has been awarded through August 1, 2009. Effective August 2, 2009 that Judgment shall bear interest in accordance with the Court Rules.

(b) Judgment is hereby entered in favor of Shan Enterprises Limited Partnership and against plaintiff Bhudev Sharma in the amount of $275,726.13, representing principal in the amount of $227,222.77 and interest in the amount of $48,503.36 on the $250,000.00 note. Interest has been awarded through August 1, 2009. Effective August 2, 2009 that Judgment shall bear interest in accordance with the Court Rules.

(c) Plaintiff Bhudev Sharma shall have the right to cure the deficiency and payments required under the terms of the $325,000.00 [note] as follows, and to continue making periodic payments as required by that note. To cure that deficiency, plaintiff Bhudev Sharma is required to pay defendants the amount of $162,127.20, representing the forty-three (43) payments due under the terms of the note for the period commencing in February 2006 and continuing through the payment required in August 2009. That payment is to be made on or before August 26, 2009. Assuming that payment is made, plaintiff shall have the right to continue periodic payments as required by the amortization schedule attached to the note with an initial payment in the amount of $3,770.40 being due on or before September 20, 2009. Additional payments are to be made in the same amount on a monthly basis based upon the amortization schedule attached to the original note. In the event plaintiff should fail to cure the deficiency by making the payment noted by the date ...


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