A&S CHECK CASHING, INC. VS. RAPID CHECK CASHING, INC. (L-0941-13, HUDSON COUNTY AND STATEWIDE) ( 2018 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0491-17T1
A&S CHECK CASHING, INC.,
Plaintiff-Respondent,
v.
RAPID CHECK CASHING, INC.,
Defendant-Appellant,
and
DOMENICK PUCILLO,
Defendant.
_______________________________
Argued September 18, 2018 – Decided October 19, 2018
Before Judges Yannotti and Gilson.
On appeal from Superior Court of New Jersey, Law
Division, Hudson County, L-0941-13.
Paul I. Perkins argued the cause for appellant (Perkins
Law Offices, attorneys; Paul I. Perkins, on the briefs).
Stuart Reiser argued the cause for respondent (Shapiro,
Croland, Reiser, Apfel & Di Iorio, LLP, attorneys;
Stuart Reiser and Alexander G. Benisatto, on the
briefs).
PER CURIAM
Plaintiff A&S Check Cashing, Inc. (A&S) obtained a judgment for
$280,295.25 against defendant Rapid Check Cashing, Inc. (Rapid). A&S
thereafter learned that Rapid had sold its assets to New Loan Co., Wm. S. Rich
& Son, Inc. (New Loan) under an asset purchase agreement (AP Agreement).
New Loan also had purchased the assets of Tri-State Check Cashing, Inc. (Tri-
State) as part of that same AP Agreement. The AP Agreement provided that
New Loan was to pay the "Seller," which was defined as Rapid and Tri-State.
A&S served writs of execution on New Loan to satisfy its judgment
against Rapid from the purchase price of the AP Agreement. A&S also filed a
motion to compel the turnover of the funds. Rapid appeals from an August 18,
2017 order directing New Loan to turn over funds due to Rapid as the " Seller"
under the AP Agreement to satisfy the judgment. 1 We affirm. Under the plain
language of the AP Agreement, Rapid was entitled to the purchase price and
1
Tri-State, a non-party that was aggrieved by the August 18, 2017 order, filed
the notice of appeal. See Janicky v. Point Bay Fuel, Inc., 410 N.J. Super. 203,
207-08 (App. Div. 2009) (noting an aggrieved non-party has standing to appeal).
Tri-State is not an intervenor. As such, the appeal is pursued by defendant Rapid
and all references to arguments made on appeal are attributed to Rapid.
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A&S, as a judgment creditor of Rapid, was entitled to satisfy its judgment from
that asset.
I.
This appeal arises out of A&S's efforts to collect on a judgment against
Rapid. In February 2013, A&S filed an action against Rapid. The parties did
not inform us of the underlying dispute between A&S and Rapid. It appears,
however, that A&S had sold a check-cashing business to Rapid and Rapid had
failed to pay A&S. A bench trial was conducted on March 20, 2015, and the
court found that A&S was entitled to a judgment. On April 6, 2015, the court
entered a judgment in favor of A&S finding that Rapid owed A&S $280,295.25.
The judgment was recorded as a lien against Rapid on April 27, 2015.
Thereafter, A&S engaged in efforts to collect on the judgment. It learned
that in March 2015, Domenick Pucillo, the owner of Rapid, had entered into the
AP Agreement and sold substantially all of Rapid's assets to New Loan. In the
same AP Agreement, Pucillo also sold the assets of Tri-State, another check-
cashing business Pucillo had owned. The AP Agreement stated that New Loan
was to pay the purchase price to "Seller." "Seller" was defined as "TRI-STATE
CHECK CASHING, INC. and RAPID CHECK CASHING, INC., New Jersey
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Corporations having a principal place of business at 17 Avenue A, Newark, New
Jersey."
The AP Agreement set forth the calculation and time for payment of the
"Purchase Price." In that regard, paragraph 2A of the AP Agreement provides:
Calculation of Purchase Price. The Purchase Price shall
be 50% of all fees for Tri-State Check Cashing, Inc.,
only and not Rapid Check Cashing, Inc. (including but
not limited to check cashing fees, Western Union and
Money Gram) not including pawn broker's fees
received by Purchaser commencing on the date of
closing. The aforementioned sum shall be paid to seller
on the 1st day of the twenty-fifth (25 th) month following
[the New Jersey Department of Banking and Insurance
(Department of Banking)] approval.
The parties represent that the Department of Banking gave the relevant approval
on June 1, 2015.2 Accordingly, the purchase price was due to be paid on July 1,
2017.
To satisfy its judgment against Rapid, on May 28, 2015, A&S served a
writ of execution on New Loan that called for the turnover of any monies due to
Rapid. A&S also obtained a court order compelling New Loan to provide an
accounting of the amount due for the purchase price. Eventually, New Loan
2
The parties did not include in the record the written approval from the
Department of Banking. Instead, A&S submitted a certification stating that the
approval was obtained on June 1, 2015, and Rapid does not dispute that approval
date.
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served an accounting, which showed that $374,455.89 was due as the purchase
price under the AP Agreement. Thereafter, on June 20, 2017, A&S caused a
new writ of execution to be served on New Loan.
On June 23, 2017, A&S filed a motion to compel the turnover of the
monies from the purchase price due under the AP Agreement to satisfy its
judgment against Rapid. Rapid opposed that motion arguing that (1) the term
"seller" in paragraph 2A of the AP Agreement meant Tri-State and not Rapid,
and that the purchase price was due only to Tri-State; (2) the parties to the AP
Agreement did not intend that Rapid receive any of the purchase price; and (3)
alternatively, Rapid was only entitled to 50% of the purchase price (that is,
$187,227.95) and, thus, only that amount should be turned over to A&S.
To support those positions, Rapid submitted the certification of Pucillo.
Pucillo certified that he was the principal of Tri-State and Rapid. He went on to
contend that Rapid was a "defunct and non-functioning entity" when the AP
Agreement was signed. He asserted that because Rapid was not generating any
revenues, it was expressly excluded from the calculation of the purchase price
under paragraph 2A of the AP Agreement. He also contended that the "seller"
in paragraph 2A of the AP Agreement "was meant to be Tri-State because it was
the only party generating revenue, it was only right that Tri-State was the
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recipient of the revenue." Finally, he contended: "It was neither I, nor New
Loan's intention that Rapid receive any of the proceeds of the sale of Tri-State."
New Loan also submitted a certification from its president, Irwin
Sablosky. Sablosky did not state that there was any mutual mistake concerning
the AP Agreement. Instead, Sablosky certified:
Counsel for the [Seller]3 requested that the purchase
price be based upon fees generated by Tri-State and I
had no reason to object. In fact, the physical assets of
both companies were minimal, consisting of old
furniture and some computers. The purpose of the
acquisition was the potential check-cashing business
and the locations. My companies have no stake in the
outcome of the pending motion. The fees generated by
the sale will either go to the [Seller] or some part
thereof to the moving party [that is, A&S]. I want to
make it clear that how the monies are paid is not my
concern and I will abide by the Court's decision.
The trial court rejected Rapid's contentions. Accordingly, on August 18,
2017, the trial court entered an order directing New Loan to turn over
$280,295.25, plus interest and costs, from the funds due under the AP
Agreement. On September 6, 2017, the order was amended to compel the
turnover of the funds to satisfy the judgment within twenty-one days and
directed that any remaining funds due under the AP Agreement be paid to Tri-
3
In his certification, Sablosky refers to "Purchaser," but since New Loan was
the purchaser, it appears he meant Seller.
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State and Rapid. With the addition of interest through September 8, 2017, the
judgment totaled $281,994.39.
The trial court explained its rulings in a written statement of reasons. The
court found that the terms of the AP Agreement were clear and unambiguous.
Specifically, the court held that the term "Seller," as used in the AP Agreement,
meant both Rapid and Tri-State. The court also found that there was no
ambiguity created by the word "seller" in paragraph 2A of the AP Agreement,
which is the paragraph explaining how the purchase price was to be calculated
and when it was to be paid. The court then rejected Rapid's argument that only
Tri-State was to receive the purchase price. It reasoned that the plain language
of the AP Agreement did not support that position, and Rapid's contention was
not supported by the certification submitted by Sablosky, the president of New
Loan. The court also rejected Rapid's contention that A&S was entitled to only
50% of the purchase price because Rapid and Tri-State were separate entities.
The trial court again pointed out that the AP Agreement defined "Seller" as
Rapid and Tri-State. Finally, the court rejected the contention that the AP
Agreement should be reformed. In that regard, the trial court noted there was
no evidence of a mutual mistake because New Loan did not contend that there
was any mutual mistake in the AP Agreement.
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II.
Rapid now appeals the August 18, 2017 order. Rapid makes two
arguments on appeal: (1) the trial court should have held a hearing to determine
the intent of the parties concerning the AP Agreement; and (2) Tri-State is
entitled to 50% of the purchase price, and the court erred in ordering a portion
of the monies due to Tri-State to be turned over to A&S. We are not persuaded
by either of these arguments and we affirm.
The issues presented on this appeal are purely legal questions because they
involve the interpretation of the AP Agreement. Accordingly, our review is de
novo. Kaye v. Rosefielde, 223 N.J. 218, 229 (2015) (quoting Fair Share Hous.
Ctr., Inc. v. N.J. State League of Municipalities, 207 N.J. 489, 493-94 n.1
(2011)).
More specifically, the issues are controlled by the language of the AP
Agreement. That language is unambiguous. The AP Agreement defines the
term "Seller" as Rapid and Tri-State. Nothing in the AP Agreement suggests
that the purchase price was to be paid only to Tri-State. Moreover, no language
in the AP Agreement suggests that Rapid could collect only 50% of the purchase
price. Instead, Rapid and Tri-State had the right to collect the full purchase
price. Obviously, if one of them collected 100% of the purchase price, how they
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distributed and allocated that money between them would be an issue they would
address.
As a judgment creditor, A&S is entitled to satisfy its judgment from any
of Rapid's assets. See N.J.S.A. 2A:17-1; see also Borromeo v. DiFlorio, 409
N.J. Super. 124, 137 (App. Div. 2009); Canger v. Froysland, 283 N.J. Super.
615, 621 (Ch. Div. 1994). Rapid sold its assets to New Loan, but retained the
right to collect the purchase price under the AP Agreement. Before any of the
purchase price was due to be paid, A&S served writs of execution on New Loan
compelling the turnover of the monies due to Rapid. The trial court, therefore,
correctly determined that New Loan was required to turn over the full amount
to satisfy the judgment because the purchase price under the AP Agreement
($374,455.89) exceeded the amount of the judgment obtained by A&S
($281,994.39).
Rapid contends that there was a factual dispute concerning the intent of
the parties to the AP Agreement and, therefore, there needed to be an evidentiary
hearing. Specifically, Rapid submitted the certification of Pucillo in which he
contended that the purchase price was to be paid to Tri-State and not Rapid. The
plain language of the AP Agreement rebuts that contention. When the language
of a contract is clear, extrinsic evidence cannot be submitted to try to vary the
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unambiguous terms of the written contract. Schor v. FMS Fin. Corp., 357 N.J.
Super. 185, 191-92 (App. Div. 2002); Great Atl. & Pac. Tea Co. v. Checchio,
335 N.J. Super. 495, 501 (App. Div. 2000).
Rapid also contends that if the AP Agreement was not clear in directing
the payment to be made to Tri-State, then there was a mutual mistake and the
contract should be reformed. The record demonstrates that there was no mutual
mistake. The president of New Loan submitted a certification, but he did not
contend that there was a mutual mistake. Instead, he expressly stated that he
had no objection to how the purchase price was calculated and he did not care
to whom the purchase price was paid.
Finally, nothing in the AP Agreement supports Rapid's alternative
argument that Rapid was entitled to only 50% of the purchase price. Instead, as
already pointed out, Rapid or Tri-State had the right to receive the full purchase
price.
Affirmed.4
4
Two days before oral argument, Rapid sent us a letter referencing a separate
matter involving a dispute over the validity of New Loan's license to operate a
check-cashing business at the Irvington location, which was the location from
which Rapid operated. To the extent that there is a dispute over the license, that
issue is not before us. The record does not reflect that Rapid or New Loan raised
with the trial court an issue concerning the validity of the Irvington license.
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Instead, the record reflects that New Loan was to pay the purchase price under
the AP Agreement. In accordance with the court's order, $281,994.39 of that
purchase price should have already been turned over to A&S to satisfy its
judgment and the remainder should have been paid to Tri-State and Rapid. If
there is an issue concerning whether New Loan received full consideration under
the AP Agreement that issue is between New Loan and Rapid.
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