January 21, 2011
LAN DAI NGUYEN, PLAINTIFF-RESPONDENT,
SANGHWAN HAHN, ATTORNEY AT LAW, DEFENDANT-APPELLANT, AND CHOON OK BAE, DEFENDANT.
On appeal from the Superior Court of New Jersey, Law Division, Special Civil Part, Bergen County, Docket No. DC-015251-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 15, 2010 - Decided Before Judges Cuff and Sapp-Peterson.
In this pro se appeal, defendant, Sanghwan Hahn, appeals from the judgment entered following a bench trial awarding plaintiff, Lan Dai Nguyen, $6590. We affirm.
Hahn is an attorney who prepared a number of documents in connection with the purchase of a nail salon by Choon Ok Bae, from plaintiff: (1) the Bill of Sale; (2) the Escrow Agreement ("EA") signed by Nguyen, Bae, and Hahn; and (3) the Indemnification Agreement signed by Nguyen and Bae. The EA provided:
This Agreement [is] made this September 24, 2007, by and between Lan D[.] Nguyen, t/a Blooming Nails as Seller and Choon Ok Bae as Buyer (referred collectively as "parties")[.]
Whereas, the parties are on this date consummating the terms and conditions of a certain Agreement ("Agreement") respecting the sale of the business known as Blooming Nails and owned by the Seller and being operated at . . . 219 Smith St., Perth Amboy, New Jersey; and
Whereas, the Agreement is contingent upon certain performances by the Seller, to wit, receiving of tax clearance letter and clearance of any debts and/or liabilities; and
Whereas, the parties agree that the performances of the Seller can best be assured by this Agreement.
NOW, THEREFORE, IT IS AGREED AS FOLLOWS:
1. Escrow Amount. The sum of $ shall be held in escrow by the Buyer's attorney, to wit, Sanghwan Hahn, Esq., until such time as all the terms of the Agreement are met or for 30 days[,] whichever is later.
2. Release of Escrow. Upon the performances by Seller as below, the said attorneys shall immediately forward to the Seller the escrow funds held by virtue of this Agreement, respectively, by attorney trust check payable to the order of the Seller herein.
3. Release. Except for the return of the escrow funds as set forth hereinabove, the escrow agent shall have no liability to the Seller or to the Buyer in regards to this Agreement and the parties agree . . . not to engage the escrow agent in any law suit or dispute between the parties. Parties agree to indemnify and/or hold harmless the escrow agent in the event of any such law suit.
Contrary to the terms of the EA, plaintiff was paid the $6500 from one of Bae's personal checks. The check bounced. Plaintiff filed a complaint against Hahn and Bae alleging negligence, breach of contract, consumer fraud, common law fraud, and intentional torts. Hahn filed an answer denying claims. A bench trial was conducted by Judge Liliana S. DeAvila-Silebi. Two witnesses testified at the trial: plaintiff and defendant.
Plaintiff testified that she was unaware of any tax liability on the property. When the escrow funds were not released to her, she contacted Bae. She subsequently received two checks from Bae, both drawn on personal checking accounts. She could not recall which check she received first. One check was for $500 and another check was for $6500. She deposited both checks into her bank account. The $6500 check bounced and she incurred a $10 bank fee. When questioned under cross-examination as to why she did not return the dishonored check to defendant and "ask for the trust account check[,]" plaintiff testified that she lived far away and "when [she] came here to -- to see [defendant], you said that you don't want to see me because I don't have appointment."
Defendant testified that closing occurred on September 24, 2007, and he agreed to act as escrow agent. Bae tendered a $7000 personal check from her "Nail Flower" business account, drawn on "Woori America Bank," payable to "Sanghwan Hahn Trust Account." Defendant never deposited the check into his trust account because "[r]ight after the closing, [Bae] came to me and [she said] there was a mistake in the escrow amount because they had to pay $500 to broker. So, they don't have sufficient money. [Bae and her husband s]ay, 'Please do not deposit it.' They take care of it themselves." Further, "[e]arly in the morning of September 25th, [Bae] called" to notify him "there's not sufficient money." He never received further funds from Bae and held the $7000 check. When asked whether he informed plaintiff or anyone in writing that he never received the $7000 from Bae, Hahn testified, "No, I did not."
Hahn acknowledged that on November 27, 2007, he sent plaintiff a letter*fn1 containing a second check for $6500 drawn on Bae's personal account. The court read the contents of the letter into the record: "'Enclosed please find the check in the amount of $6500 which represents the escrow money less the broker fee as you have agreed with Choon Ok Bae.'" Hahn testified that at the time he mailed the letter, he did not verify whether plaintiff had fulfilled her obligations under the EA and that he understood Bae was releasing the escrow funds regardless of the tax clearance letter and that tax liability was no longer an issue.
Hahn also testified that Bae insisted he send plaintiff the check "[a]against my advice[.]" When asked why he did not deposit any funds from Bae into the attorney trust account pursuant to the agreement, Hahn indicated that he "couldn't because there was not sufficient fund [sic] for this $7000 check they had given to me." He also acknowledged that although he was aware the day following the closing, that Bae did not have sufficient funds to cover the $7000 check, he never advised plaintiff, in writing, of this fact so that plaintiff could rescind the sale.
At the conclusion of the presentation of evidence, the court issued an oral ruling from the bench entering judgment in favor of plaintiff for $6510, representing the balance due on the escrowed funds, plus the $10 bank fee and court costs. In reaching her decision, Judge DeAvila-Silebi found that defendant agreed to serve as the escrow agent and that the terms of the EA were "very, very clear" as to two of its terms. First, the $7000 had to be held by Hahn. Second, "the only way that the seller can be paid is through the attorney trust check to be sent to . . . [p]laintiff."
The judge found that Hahn had a fiduciary duty to the parties under the agreement and that as an attorney, he was fully aware of his obligations under the EA and the "implications of what an agreement involves and what it entails and the ramifications for not following the terms of an agreement." She concluded that defendant breached his fiduciary duty as the escrow agent "to make sure that whatever your client gives you is either cash, money order or certified funds. You, however, chose to allow a personal check or a check made from Nail Flower to be issued to you in satisfaction of this [EA] to be deposited into your account."
The judge also found that defendant did not make any demands upon plaintiff to provide a tax clearance letter and that there was "no testimony whatsoever that [Bae] is even liable in any shape or form to the State of New Jersey Tax Department." The judge accepted as credible, plaintiff's testimony that there was no tax liability. Further, Judge DeAvila-Silebi reasoned that by sending to plaintiff the November 27, 2007 letter containing the $6500 check, defendant was endorsing the fact that, in fact, there is no issue with the tax clearance letter; that, in fact, . . . [p]laintiff is entitled to this money and they were waiving any rights to any tax clearance letter that they would have wanted in writing. But, more importantly, there just is no evidence of anything about any tax liabilities that . . . [p]laintiff may owe.
The present appeal followed. On appeal, defendant raises the following points for our consideration:
PLAINTIFF'S CLAIM WAS ENTIRELY BASED ON AN AGREEMENT WHICH PLAINTIFF HERSELF HAS BREACHED AND REPUD[I]ATED. PLAINTIFF'S CLAIM SHOULD HAVE BEEN BARRED BY THE DOCTRINE OF UNCLEAN HANDS.
DEFEN[D]ANT WAS UNABLE TO PERFORM UNDER THE AGREEMENT BECAUSE OF A SUPERVENING IMPOSSIBILITY.
THE ESCROW AGREEMENT WAS REPUDIATED BY PLAINTIFF WHEN PLAINTIFF MADE A SEPARATE
AGREEMENT WITH CO-DEFENDANT BAE AND APPELLANT'S FIDUCIARY DUTY HAS BEEN TERMINATED.
The findings on which a judgment is entered following a non-jury trial are not to be disturbed unless "they are so wholly unsupportable as to result in a denial of justice." In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002) (citations and internal quotation marks omitted). Therefore, "[f]indings by a trial [judge] are binding on appeal when supported by adequate, substantial, and credible evidence." Triffin v. Automatic Data Processing, Inc., 411 N.J. Super. 292, 305 (App. Div. 2010) (citing Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974)). It is of no consequence that we might have reached a different result or that all testimonial or evidentiary issues were resolved in favor of one side. Czoch v. Freeman, 317 N.J. Super. 273, 283 (App. Div.) (quoting State v. Johnson, 42 N.J. 146, 162 (1964)), certif. denied, 161 N.J. 149 (1999).
Here, Judge DeAvila-Silebi rendered a cogent oral opinion wherein she set forth detailed findings of fact, including credibility determinations to which we are obliged to accord deference in light of the judge's "'feel of the case' based upon [her] . . . opportunity to see and hear the witnesses." N.J. Div. of Youth and Family Servs. v. R.L., 388 N.J. Super. 81, 88 (App. Div. 2006) (quoting Cesare v. Cesare, 154 N.J. 394, 411-13, (1998)), certif. denied, 190 N.J. 257 (2007). We conclude the findings of fact by the judge are adequately supported by the evidence presented. Rova Farms, supra, 65 N.J. at 483-84.
Additionally, the opinion clearly enunciates the trial judge's conclusions and the legal consequences that flow from the established facts. Although we owe no special deference to the trial court's legal conclusions, Shaler v. Toms River Obstetrics & Gynecology Assocs., 383 N.J. Super. 650, 657 (App. Div.), certif. denied, 187 N.J. 82 (2006), we nevertheless concur with the conclusions and determine no legal error was presented.
Consequently, after review of the trial record, the arguments raised on appeal by the parties, and the applicable law, we affirm the judgment based on the findings made and substantially for the reasons expressed by the trial judge in her December 16, 2009 oral opinion. R. 2:11-3(e)(1)(A).