GATEWAY 2001, LLC VS. SANFORD WEISS (C-000044-12, HUDSON COUNTY AND STATEWIDE) ( 2019 )

NOT FOR PUBLICATION WITHOUT THE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-4306-15T4
GATEWAY 2001, LLC, GATEWAY
I, LLC, GATEWAY SPECIAL, INC.,
MARSHALL HARRISON STREET
APARTMENTS, LLC, and
RENE ABREU,
Plaintiffs-Appellants/
Cross-Respondents,
v.
SANFORD WEISS, MANHATTAN
BUILDING COMPANY and
WHITE DIAMOND PROPERTIES,
LLC,
Defendants-Respondents/
Cross-Appellants,
and
SYLVAN SKY GARAGE, LLC,
and LEONARD WEISS,
Defendants.
__________________________________
Argued February 14, 2019 – Decided July 22, 2019
Before Judges Simonelli, O'Connor and Whipple.
On appeal from the Superior Court of New Jersey,
Chancery Division, Hudson County, Docket No. C-
000044-12.
Dennis J. Drasco argued the cause for appellants/cross-
respondents Gateway 2001, LLC, Gateway I, LLC,
Gateway Special, Inc. and Marshall Harrison Street
Apartments, LLC (Lum, Drasco & Positan LLC,
attorneys; Dennis J. Drasco, Gerald Krovatin, Paul A.
Sandars III and Bernadette H. Condon, of counsel and
on the joint briefs).
Gerald Krovatin argued the cause for appellant/cross-
respondent Rene Abreu (Krovatin Klingeman LLC,
attorneys; Gerald Krovatin, Dennis J. Drasco, Paul A.
Sandars III and Bernadette H. Condon, of counsel and
on the joint briefs).
Paul H. Schafhauser argued the cause for respondents/
cross-appellants (Chiesa Shahinian & Giantomasi PC,
attorneys; Paul H. Schafhauser and James M. Van
Splinter, on the briefs).
PER CURIAM
Plaintiffs Gateway 2001, LLC, Gateway I, LLC, Gateway Special, Inc.,
Marshall Harrison Street Apartments, LLC and Rene Abreu appeal from
judgments and orders of the Chancery Division entered on March 1 and 17, 2016
and April 25 and 26, 2016, after a bench trial regarding a residential
development construction project in Hoboken. Defendants Sanford Weiss,
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Manhattan Building Company and White Diamond Properties, LLC cross
appeal. Having reviewed the record, we affirm.
Notwithstanding the complex factual and procedural record, this appeal is
primarily about three issues: (1) whether plaintiffs' dismissed claims are barred
by the statute of limitations; (2) whether plaintiffs proved the elements of fraud;
and (3) whether the judge erred calculating fees, costs and damages under
various agreements. Judge Hector R. Velazquez issued comprehensive written
opinions in support of the March 1 and 17, 2016 and April 25 and 26, 2016
judgments and orders that explain the relationships of the parties, entities and
agreements in detail. We discern the facts essential to this appeal from the
record and need not repeat all of Judge Velazquez's findings.
In 2001, plaintiff Rene Abreu and his partners in Gateway I, LLC
(Gateway I), Manuel Marin, Ted Worthington and LNA Holding Co. (LNA),
entered into an agreement with defendant Weiss, a developer, to build a
residential and commercial rental complex called Sky Club in Hoboken. They
planned to construct two towers with 326 rental units, a parking garage with 425
spaces, a gymnasium on top of the garage, and commercial space. Abreu and
Weiss agreed Weiss would secure the necessary financing and manage the
project through construction, after which Abreu would manage the property and
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3
collect a portion of the rental proceeds. Abreu entered into the agreement
because Weiss could secure financing through Fidelity Investments (Fidelity), a
mezzanine lender. Abreu and Weiss agreed that Gateway I would have a sixty
percent interest in the project and Weiss would have a forty percent interest.
After obtaining the financing, Abreu and Weiss restructured their existing
companies and formed new entities to develop and manage Sky Club. Gateway
I was restructured with new owners, including: Gateway Special, Inc. (Gateway
Special); Gateway 2001, LLC (Gateway 2001); and 100 Marshall Associates,
LLC (100 Marshall). Marshall Harrison Street Apartments, LLC (Marshall
Harrison), wholly owned by Gateway I, was formed to own the land and act as
the project's sponsor. Weiss's construction company, Manhattan Building
Company (MBC), was the construction manager.
Gateway 2001 consisted of Abreu, Marin, Worthington and LNA. Each
owned a twenty-five percent interest. Gateway 2001 held a 59.5 percent interest
in Gateway I.
100 Marshall was wholly owned by Weiss and had a 39.5 percent interest
in Gateway I. 100 Marshall was "to operate, manage, improve, repair, rent,
lease, own, acquire, sell, assign, mortgage, hypothecate, and otherwise deal in
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real property and its appurtenance and fixtures located at 101-119 Marshall
Street and 120-126 Harrison Street."
Abreu and Weiss each owned fifty percent of Gateway Special. Gateway
Special held a one percent interest in Gateway I and was its managing member.
Gateway Special's by-laws provided:
(a) Rene Abreu (so long as he is an officer of [the]
[c]orporation and Gateway 2001 LLC is a shareholder
("Abreu") and Sandy Weiss (so long as he is an officer
and 100 Marshall Associates, LLC is a shareholder)
("Weiss") shall each co-manage the [c]orporation
subject to the following caveats:
From and after the date of these by[-]laws and
continuing until such time as permanent financing is
placed on the [r]eal [p]roperty (as hereinabove) if
Weiss and Abreu disagree as to any matter relating to
the [m]anagement of the [c]orporation including but not
limited to the design and construction on the project,
then Weiss's decision will be final and binding on the
[c]orporation; provided, however, that Weiss can[]not
individually make the final binding decisions if the
effect of such decision, individually or in the aggregate
with all other changes made to that date increases the
budget for the [p]roject (which budget has been
approved by Fidelity, Weiss and Abreu) by [three
percent] or more or increases any individual line item
by [three percent] or more; in each case exclusive of the
applicable contingency.
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(b) From and after the placing of permanent
financing[1] on the [r]eal [p]roperty if Weiss and Abreu
disagree as to any matter relating to the [m]anagement
of the [c]orporation then Abreu's decision will be final
and binding on the [c]orporation; provided however,
that Abreu can[]not individually make the final binding
decision if the effect of such decision, individually or
in the aggregate with all other cha[n]ges made to that
date increases the operating budget (which budget has
been unanimously approved by Weiss and Abreu) by
[three percent] or more or increases any individual line
item by [three percent] or more.
[(Emphasis added).]
Gateway Special's by-laws further provided "[i]n case of the absence of
any officer of the corporation, the directors may delegate the power and duties
of such officer . . . to any other officer or to any director[.]" Abreu and Weiss
were both required to sign any check payable to MBC or Abreu Property
Management, L.L.C. (Abreu Property Management), which was Abreu's
property management company. Abreu agreed with these provisions, explaining
he wanted Weiss "to build the project and get out" so he could "take over."
1
Once Fidelity entered the deal, the term "permanent financing" was replaced
by "the Fidelity Release Date." At trial, Abreu testified he understood the
change to mean that when permanent financing was placed on the property and
Fidelity was bought out of its equity position, Abreu would take over
management of the property.
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On October 29, 2001, Gateway I and MBC entered into a construction
management agreement. MBC would receive seven percent of the construction
costs, plus a $350,000 bonus if it completed the project on time within budget.
After the issuance of certificates of occupancy, Abreu would manage the
property through Abreu Property Management.
In December 2001, Marshall Harrison and KeyBank National Association
(KeyBank) entered into a construction loan agreement. KeyBank agreed to loan
up to $58,650,000.
Abreu and his Gateway 2001 partners began to complain Weiss was
shutting them out of the project. On May 7, 2002, Abreu was indicted on federal
charges unrelated to this case. During the pendency of his criminal case, Abreu
still pursued advancement of the project with Weiss. On March 18, 2003,
Abreu's accountant wrote to Weiss seeking various books and records. Weiss
did not respond to the requests.
At Weiss's suggestion, in December 2003, the parties agreed to convert
the project from rentals to condominiums and expected to make a profit on the
conversion. Abreu initially opposed the conversion because it would deprive
him of management fees. He consented after Weiss agreed to pay him $1 million
in compensation.
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Marshall Harrison and Gateway I entered into the Amended and Restated
Limited Liability Company Agreement of Marshall/Harrison Street Apartments,
LLC (December 2003 Marshall Harrison agreement). 100 Marshall was
appointed as the "initial [m]anager" of Marshall Harrison and was to keep
accurate books and records, and Marshall Harrison was prohibited from taking
certain actions without the consent of Gateway I. The December 2003 Marshall
Harrison agreement provided that "[t]he [m]anager shall at all times retain a
property manager for the [p]roperty, subject to the right of the [m]ember to
approve any such property management agreement." Weiss signed the December
2003 Marshall Harrison agreement as president of Gateway I and as managing
member of 100 Marshall. Shortly after, Gateway 2001, Gateway Special and
100 Marshall entered into the Second Amendment to Amended and Restated
Limited Liability Company Agreement of Gateway I, LLC (December 2003
Gateway I agreement), which appointed Abreu Property Management as
property manager of the condominiums. Read together, these provisions
intended that once construction was completed, Abreu and Weiss would co-
manage the project, and Abreu would oversee the day-to-day operations through
his property management company.
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On March 2, 2004, Sylvan Sky Garage and Marshall Harrison negotiated
an agreement, later amended on April 21, 2004, to manage the parking garage.
Three days later, Weiss purchased a liquor license in his name for $125,000. He
used Marshall Harrison funds to buy the liquor license but later reimbursed a
portion to Marshall Harrison.
On April 27, 2004, Marshall Harrison refinanced the project and obtained
an additional $36,850,000 to convert the project from apartments to
condominiums. This conversion loan increased the project's total refinance
request from $58,650,000 to $95,599,844.23.2 KeyBank provided the
conversion loan, which was used to buy out Fidelity's equity position, pay
Gateway 2001 for the balance due to acquire the property and fund the
conversion. The agreement, among other things, provided the total cost of the
project was not to exceed $95.5 million.
The conversion loan included $300,000 for fitness center improvements
and $3000 to upgrade each condominium unit. Weiss authorized all upgrades
without consulting Abreu or the other members but claimed they were aware he
was doing so. He never obtained their approval to exceed the construction
budget.
2
This figure was rounded to $95.5 million by the parties.
A-4306-15T4
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The first unit closed on July 14, 2004. Less than one month later, on
August 4, 2004, a federal jury convicted Abreu of multiple offenses, and he was
sentenced to seven years and three months in federal prison. Abreu did not
surrender for another seventeen months, during which time he continued to seek
information from Weiss. Weiss sent Abreu documents in "drips and drabs."
On September 23, 2004, Abreu's accountant, Gerald Werdann, CPA,
wrote to Weiss seeking documents. Abreu, who had questions about the budget,
called a meeting of the investors on September 28, 2004, at the offices of
Gateway I's attorney, Victor E. Kinon. Among the attendees were Kinon, Abreu,
Weiss, Worthington and Robert Greer, Weiss's chief financial officer. Prior to
the meeting, Weiss gave Abreu a copy of an "Estimated Budget Analysis." The
estimated budget showed a list of items with "Total Cash Outflows" of
$112,675,737.
At the meeting, Weiss presented the estimated budget and a draw request,3
which showed the "revised value (budget)" was $95.5 million. When asked why
the estimated and construction budgets differed, Greer explained what mattered
were the monthly construction draws submitted to the bank. Weiss agreed to
3
A draw request contains line items for certain types of costs submitted to the
bank to draw off the loan.
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provide the documents requested by Abreu within ten days. Abreu reminded the
attendees he had to approve any upgrades, change orders or anything contrary
to the budget that appeared in the loan documents. Abreu said Weiss told him,
"Fight with me later, let's get the job closed."
By letter dated October 14, 2004, Kinon produced twenty-one documents.
Werdann noted the bank statements were missing, but he made no further written
requests and Abreu did not file a lawsuit at the time. Also in October 2004,
Abreu received a copy of draw thirty-six, which again showed the revised budget
was $95.5 million. In subsequent draws, Weiss continually represented to the
lender that the total cost of the project was $95.5 million. As of April 2005 the
project was 98.99% completed. Abreu knew then that the costs on the estimated
budget exceeded the figure submitted to KeyBank to draw on the loan, but he
did not sue Weiss at that time.
Meanwhile, Abreu approached Weiss to discuss renting out basement
space to a prospective tenant who wanted to use it as a kitchen to maximize the
upstairs seating area in the restaurant. The original plan was to rent the basement
space to residents for storage. Weiss advised Abreu he had already transferred
ownership of the basement to the condominium association. The change was
not in the business plan, and Abreu and his partners were not happy about it.
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Weiss asked Abreu to sign a document to "cover him" with respect to the
change in the basement space. Weiss directed his attorney to prepare a
Unanimous Written Consent of Directors and Shareholders of Gateway Special,
Inc. (consent agreement), which Weiss and Abreu signed on March 29, 2005.
This consent agreement acknowledged Weiss, acting alone, would manage the
Sky Club project to "design, develop, construct, manage, and lease up the Real
Estate, as more particularly set forth in the By-Laws[.]" Weiss and Abreu
consented and agreed:
that all of the actions undertaken to date in connection
with the [p]roject by Sandy Weiss, including, without
limitation, the right to approve and modify budgetary
matters involving the [p]roject, were correct and
appropriate and in the best interests of all members of
Gateway and [o]wner [Marshall Harrison], and are
hereby ratified and confirmed to the fullest extent
permitted by law.
Abreu initially claimed he read the document and understood it to refer to
the changes in the basement and the combination of two lobbies into one.
However, he later acknowledged he signed the document without receiving all
of the documents requested by Werdann. Abreu admitted he read the agreement
before signing it and knew it specifically mentioned budgetary matters.
Also in March 2005, Abreu acquired the Louis Gelfand Company
(Gelfand), which he merged with Abreu Property Management, to manage his
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real estate properties. On May 31, 2005, Marin, Worthington and LNA removed
Abreu as managing member of Gateway 2001 in anticipation of his
incarceration. On December 20, 2005, Marshall Harrison retained Gelfand to
manage the property, and Weiss signed the agreement. The agreement provided
Gelfand would manage the commercial units at Sky Club and provide various
services, such as collecting rents.
As of January 1, 2006, all of the condominium units closed or were under
contract. Despite not receiving all of the documents he had requested, Abreu
declined to sue Weiss at the end of 2005. On January 2, 2006, Abreu reported
to federal prison to serve his sentence. Shortly after, Weiss delegated to himself
all of Abreu's powers and duties as a Gateway Special officer and took complete
control over Marshall Harrison. Abreu testified at a deposition that by the time
he went to prison, he believed that "something [wa]s wrong" and that Weiss
"ha[d] something to hide," and that he did not sue Weiss while in prison because
he "didn't have all the documentation required[.]"
Weiss never consulted with Abreu after he went to prison. Weiss failed
to contact or correspond with Abreu nor did he respond to requests from Abreu's
agents for information about Sky Club, Marshall Harrison and the Gateway
entities. In 2007, without consulting Abreu, Weiss terminated the Gelfand
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agreement and decided that he would manage the property through his own
property management company.
Weiss took several other actions without the consent of other partners. On
June 28, 2007, without Abreu's consent, Weiss changed the management
agreement between Marshall Harrison and Sylvan Sky to a lease agreement more
advantageous to Marshall Harrison. Weiss also allowed some commercial
tenants to stop paying rent and waived late fees or reduced rents for others.
During this period, Worthington began borrowing money from one of
Weiss's other entities, White Diamond. On May 28, 2008, Worthington pledged
ten percent of his membership interests in Marshall Harrison to White Diamond.
Worthington and White Diamond executed promissory notes pursuant to a credit
agreement. However, Worthington could only transfer his economic interest in
Gateway 2001, which derived value from Gateway I's interest in Marshall
Harrison. Thus, on January 7, 2010, Worthington agreed to transfer and assign
his twenty-five percent economic interest in Gateway 2001 to White Diamond,
which corresponded to a fifteen percent interest in Marshall Harrison. At the
time, Worthington had borrowed $1.5 million from White Diamond. Shortly
after the assignment, Weiss began to take a percentage of the distributions due
to Gateway 2001 in partial payment of the Worthington loan. Worthington
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never asked for Abreu's or the other members' consent to the assignment of his
economic interest in Gateway 2001. 4 After learning of the unauthorized
assignment, Abreu advised Weiss that it violated the Gateway I agreement. Still,
Abreu did not sue Weiss.
In July 2010, Weiss sold the liquor license he purchased with Marshall
Harrison funds to his restaurant group for $125,000. Abreu thought Weiss sold
it at less than fair market value and without the necessary consents.
While incarcerated, Abreu made several unsuccessful requests for
information from Weiss. He sought financial records, cancelled checks, general
ledgers and bank statements. On November 7, 2007, Abreu's agent asked Weiss
for the monthly rental income and other records. On June 24, 2009, Abreu's
lawyer wrote to Weiss and requested information on bank statements, profit and
loss statements and individual rent payments, along with the status of the
restaurant and dry cleaning spaces. The lawyer wrote another letter to Weiss on
March 17, 2010, seeking this information.
4
Section 5.7 of the Gateway 2001 operating agreement stated, "[e]xcept as
expressly provided for herein, no member, without the express written consent
of a majority of the [m]embership [i]nterests of the [m]embers, shall sell, assign,
mortgage, hypothecate, transfer, . . . or otherwise alienate, . . . of any or all of
his [m]embership [i]nterests[.]"
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Meanwhile, on April 10, 2009, Abreu wrote to his son about "fraudulent,
unethical and self-dealing issues that Sandy [Weiss] is engaging in[,]" which
Abreu described as "damaging to the Gateway 2001 LLC." In an email to his
lawyer dated September 20, 2010, Abreu asked whether he should write a
stronger letter to Weiss and mention the duty of care and loyalty, his right to
corporate books and records and access to the minutes. He added, "Sandy Weiss
has not complied with all of the above and these should be forming the basis of
our eventual lawsuit against him and his entities. Should we give him this
warning?"
On October 4, 2010, Abreu emailed Worthington saying if Weiss did not
comply with the document requests, provide a full and accurate accounting,
follow the operating agreements and return to him the management of the
project, then "we will be proceeding to the fullest extent of the law to defend
and enforce all of [our] rights in 2011." Three days later, he wrote another email
to Worthington saying, "I believe it is getting closer to the TIME to act more
aggressively with the repeated Gateway Special Inc., Gateway [I] LLC, Marshall
Harrison Apartments LLC and Gateway 2001 [o]perating [a]greements
[v]iolations, [m]ismanagement and [f]raud." Abreu forwarded this email to his
lawyer with the subject heading "Gateway Legal Case."
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On January 21, 2011, Abreu again wrote to Weiss demanding information.
He claimed Weiss had made unauthorized loans to Worthington, violated
operating agreements and withheld financial records.
Abreu wrote to Worthington on July 18, 2011, stating:
[W]e are also going to be suing Sanford Weiss,
Manhattan Builders, Toll[] Brothers and Gruhin and
Gruhin, Esqs[.] and possibly others for their respective
roles in the violations of the [o]perating [a]greements
of Gateway I LLC, Gateway Special, Inc. and
Marshall/Harrison Street Apartments LLC, for the
unauthorized use of company funds, the theft of
company funds and assets, for [fraud] and other related
issues.
The same day, he wrote to his lawyer saying that "[w]e will also be suing
Sanford Weiss, Manhattan Builders, Toll Brothers and others for violating our
various Gateway LLC's [o]perating [a]greements and for [t]heft and [f]raud."
On August 7, 2011, Abreu sent an email to his lawyer stating:
Please protect our legal interests and we will soon
be discussing our next steps. We will be holding
accountable and seek recompense from all the parties
that have participated in any violations and have
received [d]ividends, [o]wnership [i]nterests,
[p]ayments and [c]ompensation that have [not been
approved] according to all of our LLC [o]perating
[a]greements. We will also seek to recover all legal
expenses plus damages caused to us.
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In an email chain on August 8, 2011, Abreu asked his lawyer whether
Delaware's statute of limitations was more favorable than New Jersey's. Abreu
asked how to "extend that time period[.]" He also wanted to know if he could
sue Toll Brothers, Fidelity and KeyBank, which he described as "these [three]
deep pocketed entities," noting "they got out of the picture by the end of 2005
which would be approaching the [six] year [statute of limitations] time period."
Abreu was released from prison on October 23, 2011, and immediately
contacted Weiss and asked for documents. Weiss said he would get back to
Abreu, but he never did. Abreu then requested the information from Werdann,
who provided company ledgers. Werdann tried to get Weiss to meet with Abreu.
The meeting never happened, so plaintiffs filed a complaint on March 15,
2012, against Weiss, MBC and White Diamond. Plaintiffs sought a declaratory
judgment that Abreu and Weiss were co-managers of Gateway Special and that
in the event of a disagreement on any management issue, Abreu's decision would
control. Plaintiffs also asserted claims for breach of fiduciary duty, breach of
operating agreements, mismanagement, unauthorized transactions, self-dealing,
conversion and fraud. Essentially, plaintiffs alleged Weiss breached the
governing documents and his fiduciary duties by not seeking Abreu's approval
to: (1) spend approximately $8.7 million on upgrades; (2) pay $1.2 million for
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repairs and punch list items; (3) reduce or waive late rents; (4) retain attorneys
to restructure the companies; and (5) make other unilateral decisions about the
project.
In September 2012, Abreu met with Weiss, Worthington and Greer.
Abreu wanted an accounting so they could reach an understanding on whether
money was misspent. Greer produced a summary sheet (Greer schedule)
showing the total job cost and projected profit. The Greer schedule showed that
the total expenditures for Sky Club were $115,823,560.43 as of January 1, 2006,
and the projected profit was $28,209,050.70.
Abreu continued to ask for documents until Hurricane Sandy in 2012, after
which Weiss claimed all the documents were destroyed and discarded. Two
years later, Weiss discovered fifty-two boxes of documents relating to Sky Club
stored in a location different from where previously believed.
The parties retained Withum Smith Brown (WSB) to analyze all
disbursements made after the final draw of the construction loan. In its report
dated August 18, 2015, WSB determined that from April 1, 2005, through
December 31, 2006, Marshall Harrison's bank accounts had dispersed
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$35,079,331 and the project had received $94,609,002 of construction financing
from KeyBank.5 WSB concluded the entire project cost $115,823,560.
During a twelve-day bench trial, Judge Velazquez heard extensive
testimony from Abreu but not Weiss. The judge also considered testimony from
Stephen Pitaniello, plaintiffs' expert in engineering, construction, budgets and
management. Based on his review of the books and records, Pitaniello opined
Weiss paid MBC more money than the construction management agreement had
contemplated. Pitaniello also concluded $7,751,000 of the total project cost was
unreasonable and the result of an unapproved budget increase.
The judge also heard testimony from Gary Stetz, plaintiffs' expert in the
fields of certified public accounting, forensic accounting and fraud
investigation. Stetz testified about alleged damages resulting from cost overruns
on the Sky Club project. He also conducted a fraud investigation of Sky Club's
books and records and opined Weiss had taken advantage of Abreu's
incarceration for purposes of self-enrichment through unauthorized transactions.
Jon Brody testified as plaintiffs' expert in real estate appraisal . Brody
inspected the Sky Club property on four occasions to analyze the fair market
5
The record does not indicate whether the WSB report was admitted into
evidence.
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rental value of commercial spaces between 2006 and 2011. In his opinion, all
of the subject rents were below fair market value.
Gary Rosen, a certified public accountant, fraud examiner and valuation
analyst, testified as defendants' expert in the fields of accounting and forensic
accounting. In Rosen's opinion, there were no damages because the proceeds of
the sale of the units exceeded the excess construction costs by over $200,000,
and the cost of upgrades to particular units were passed along to the new owners,
which meant "the partnership recouped the cost."
After considering all the evidence, Judge Velazquez found Weiss
breached his fiduciary duty to plaintiffs. On March 1, 2016, the judge issued a
lengthy opinion granting plaintiffs' request for declaratory judgment,
recognizing that Abreu and Weiss were co-managers of Gateway Special and
that in the event of a disagreement between them on any management issue,
Abreu's decision would control. The judge further declared Abreu or his affiliate
company would take over as property manager for Sky Club under the December
2003 Gateway I agreement, provided that the takeover did not adversely affect
the contractual rights of non-parties to the litigation.
However, the judge held that the six-year statute of limitations barred
plaintiffs' claims for breach of fiduciary duty, mismanagement, self-dealing and
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fraud. The judge found that before he went to prison, Abreu knew of the facts
underlying his causes of action for fraud, breach of fiduciary duty, self-dealing
and mismanagement. The judge found that the effective date of the accrual of
these causes of action was January 2, 2006, the date Abreu reported to prison,
and neither the discovery rule nor the doctrine of equitable tolling applied to
these claims.
Additionally, the judge concluded plaintiffs' claims for breach of the
operating agreements and the implied covenant of good faith and fair dealing
accrued on the date of Weiss's breach of the governing documents. The judge
found Weiss breached the Gelfand contract but denied relief because plaintiffs
provided no proofs to support their damages claim. The judge also found Weiss
breached the implied covenant of good faith and fair dealing on the same
grounds but found plaintiffs offered no evidence to allow the court to reasonably
determine the amount of management fees collected by Weiss after he
terminated Abreu's chosen manager.
Regarding the conversion claim, Judge Velazquez found Weiss
wrongfully took profits belonging to Gateway 2001 to satisfy the Worthington
loan and failed to reimburse Marshall Harrison for the full amount it paid to
purchase and transfer the liquor license. Therefore, Gateway 2001 was entitled
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to a judgment against Weiss and White Diamond for $726,459 and Marshall
Harrison was entitled to a judgment against Weiss for $16,700. The judgment
against Weiss and White Diamond was to be satisfied by the $246,000 held by
Gateway I and Weiss or White Diamond were ordered to pay $504,459.
However, on April 26, 2016, the judge reconsidered his decision to order
Weiss or White Diamond to repay Gateway 2001. At this point, Abreu was the
sole owner of Gateway 2001 after he bought out Worthington's share. Even
though Worthington violated Gateway 2001's operating agreement by assigning
his economic interest, the judge found it would be inequitable for Abreu, as sole
owner of Gateway 2001, to "receive monies he never expected and was never
entitled to receive." The judge did permit Gateway 2001 to seek reimbursement
for any business costs or expenses that it would have deducted from
Worthington's profits. This appeal followed.
I.
We first address plaintiffs' argument that the judge erred by finding that
their claims were time-barred. We review a trial judge's decision as to the
applicable statute of limitations de novo. Palisades at Fort Lee Condo. Ass'n v.
100 Old Palisade, LLC, 230 N.J. 427, 442 (2017); Psak, Graziano, Piasecki &
Whitelaw v. Fleet Nat'l Bank, 390 N.J. Super. 199, 203 (App. Div. 2007). We
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affirm substantially for the reasons articulated in the judge's well-reasoned
decision.
Statutes of limitations require "plaintiffs to file their lawsuits within a
prescribed time to allow defendants a fair opportunity to respond and safeguard
their interests." Palisades at Fort Lee Condo. Ass'n, 230 N.J. at 443. In
construing these statutes, we do not rigidly "'adhere[] to a strict rule of law' that
would produce unjust results." Ibid. (quoting Lopez v. Swyer, 62 N.J. 267, 274
(1973)). Instead, the limitations period in a procedural statute of limitations is
construed flexibly. R.A.C. v. P.J.S., Jr., 192 N.J. 81, 98 (2007).
A cause of action accrues, and the statute of limitations begins to run,
when a plaintiff knows or has reason to know that he or she may have a basis
for a claim. Lapka v. Porter Hayden Co., 162 N.J. 545, 555-56 (2000);
Cumberland Cty. Bd. of Chosen Freeholders v. Vitetta Grp., 431 N.J. Super.
596, 605 (App. Div. 2013). Thus, "[t]he trigger point for the start of a cause of
action under an accrual statute is when 'the facts presented would alert a
reasonable person, exercising ordinary diligence, that he or she was injured due
to the fault of another.'" Palisades at Fort Lee Condo. Ass'n, 230 N.J. at 443
(quoting Caravaggio v. D'Agostini, 166 N.J. 237, 246 (2001)). When a plaintiff
does not know or have reason to know that he or she has a cause of action against
A-4306-15T4
24
a defendant until after the expiration of the limitations period, a court may
consider other factors. Roa v. Roa, 200 N.J. 555, 571 (2010). To avoid unfair
results, courts rely on equitable principles such as the discovery rule or estoppel.
Ibid.; Negron v. Llarena, 156 N.J. 296, 300 (1998).
The purpose of the discovery rule "is to avoid harsh results that otherwise
would flow from mechanical application of a statute of limitations." Abboud v.
Viscomi, 111 N.J. 56, 62 (1988) (quoting Vispisiano v. Ashland Chem. Co., 107
N.J. 416, 426 (1987)). Under the discovery rule, a cause of action does not
accrue until the injured party discovers or should have discovered through
reasonable diligence and intelligence that he or she may have a basis for an
actionable claim. R.A.C., 192 N.J. at 98; Lopez, 62 N.J. at 272. "The party
seeking the rule's benefit bears the burden to establish it applies." Catena v.
Raytheon Co., 447 N.J. Super. 43, 53 (App. Div. 2016).
Claimants do not need to "know all of the evidence upon which they will
ultimately rely." Freeman v. State, 347 N.J. Super. 11, 29 (App. Div. 2002).
The discovery rule does not require "legal certainty" of an actionable claim or
knowledge of the full extent of the damages. Lapka, 162 N.J. at 555-56; Catena,
447 N.J. Super. at 54; see also Russo Farms, Inc. v. Vineland Bd. of Educ., 144
A-4306-15T4
25
N.J. 84, 115 (1996). A "mere suspicion" of a claim, however, is not enough.
Catena, 447 N.J. Super. at 54.
N.J.S.A. 2A:14-1 applies to plaintiffs' claims. Under this "tort-based
property-damage" statute of limitations, a plaintiff must commence a lawsuit
within six years after the cause of action has accrued. Ibid.; Palisades at Fort
Lee Condo. Ass'n, 230 N.J. at 442. The discovery rule applies to the accrual of
a claim under N.J.S.A. 2A:14-1. Palisades at Fort Lee Condo. Ass'n, 230 N.J.
at 443.
After reviewing the record, we conclude the evidence supports Judge
Velazquez's decision. Abreu testified that in 2001 he knew that Weiss had
violated the Gateway Special by-laws and his fiduciary duties because Weiss
never asked him to co-sign any checks. Even so, Abreu did not file a lawsuit
for eleven years. On March 18, 2003, and September 23, 2004, Abreu asked his
accountant, Michael Otten, to send letters to Weiss requesting various financial
documents. Weiss provided some, but not all. Abreu testified that he knew in
2003 that Weiss was breaching his fiduciary duties and violating the December
2003 Marshall Harrison agreement by failing to provide the information but
chose not to sue in 2003, explaining that Weiss had asked him not to file a
A-4306-15T4
26
lawsuit. He also chose not to sue in 2004, although he knew that Weiss had an
absolute obligation to provide those records.
At the September 28, 2004 investors' meeting, Abreu asked questions
about the project's estimated budget, which was more than the budget approved
by KeyBank. Abreu realized the last five draws represented to the bank that the
total cost of the project was $95.5 million when, in reality, it exceeded $112
million. Abreu testified he noticed the discrepancy between the estimated and
actual budgets in 2004 but again did not sue because he was waiting for more
documentation. He also contemplated suing Weiss to get the additional
information towards the end of 2005 when the project was almost complete. He,
however, did not sue, explaining that he had personal problems at the time and
"other things on [his] mind" and that he "made the decision not to."
Abreu further testified that when he reported to prison on January 2, 2006,
he believed Weiss had something to hide because Weiss was not providing the
requested documents. He did not sue Weiss at that time, explaining he was "in
prison" and did not have "all the documentation required."
Abreu knew all he needed to know to sue Weiss before the six-year statute
of limitations expired. Emails from prison indicated Abreu knew about the six-
year statute of limitations, asked what could be done to "extend the time period"
A-4306-15T4
27
and questioned whether Delaware would provide more time. There is no merit
to Abreu's assertion he could not file the lawsuit while in prison because, while
incarcerated, he had filed a counterclaim in response to Worthington's lawsuit
against him. Thus, the documentary evidence and Abreu's testimony establish
that at the time he went to prison, he was aware of the facts establishing his
claims and of the six-year limitations period. The January 2, 2006 accrual period
was appropriate, and the judge correctly held the statute of limitations had
expired when Abreu filed his complaint.
We also reject plaintiffs' equitable tolling argument. Unlike the discovery
rule, which postpones the accrual of a cause of action, "equitable tolling
acknowledges the accrual of the action but tolls the statute of limitations because
the plaintiff lacked vital information that was withheld by a defendant."
Freeman, 347 N.J. Super. at 31. The doctrine also "may be available 'when a
plaintiff is misled . . . and as a result fails to act within the prescribed time
limit.'" Bustamante v. Borough of Paramus, 413 N.J. Super. 276, 299 (App. Div.
2010) (alteration in original) (quoting Villalobos v. Fava, 342 N.J. Super. 38, 50
(App. Div. 2001)). "[A] defendant may be denied the benefit of a statute of
limitations where, by its inequitable conduct, it has caused a plaintiff to withhold
A-4306-15T4
28
filing a complaint until after the statute has run." Trinity Church v. Lawson-
Bell, 394 N.J. Super. 159, 171 (App. Div. 2007).
A court generally applies equitable tolling where a plaintiff: (1) is
"induced or tricked by his [or her] adversary's misconduct" into missing the
filing deadline; (2) "has 'in some extraordinary way' been prevented from
asserting his [or her] rights"; or (3) "has timely asserted his [or her] rights
mistakenly by either defective pleading or in the wrong forum." Binder v. Price
Waterhouse & Co., 393 N.J. Super. 304, 312 (App. Div. 2007) (quoting
Freeman, 347 N.J. Super. at 31). Even if a court applies equitable tolling, a
plaintiff must also show that he or she "exercise[ed] reasonable insight and
diligence[.]" Id. at 313 (quoting Freeman, 347 N.J. Super. at 31-32). Thus,
"absent a showing of intentional inducement or trickery by a defendant, the
doctrine of equitable tolling should be applied sparingly and only in the rare
situation where it is demanded by sound legal principles as well as the interests
of justice." Freeman, 347 N.J. Super. at 31.
The record does not establish Weiss's misconduct precluded plaintiffs
from filing within the six-year limitations period. Weiss provided the estimated
budget at the 2004 meeting, well before Abreu reported to prison. Moreover,
Abreu knew Weiss breached his fiduciary duties by failing to fully satisfy
A-4306-15T4
29
Abreu's document requests. It was Abreu's own inaction and lack of reasonable
diligence that caused the delay in filing the complaint, not Weiss's inducement
or trickery. Thus, the judge did not err by dismissing as time-barred the causes
of action for fraud, breach of fiduciary duty, self-dealing and mismanagement.
II.
Plaintiffs next argue the judge erred by failing to award compensatory
damages for construction cost overruns, punitive damages and attorneys' fees.
Both parties argue they were entitled to attorneys' fees under the governing
documents. We disagree.
When we review a trial court's findings in a non-jury trial, we "ponder[]
whether . . . there is substantial evidence in support of the trial judge's findings
and conclusions." Sipko v. Koger, Inc., 214 N.J. 364, 376 (2013) (quoting
Seidman v. Clifton Sav. Bank, S.L.A., 205 N.J. 150, 169 (2011)). "[W]e do not
disturb the factual findings and legal conclusions of the trial judge unless we are
convinced that they are so manifestly unsupported by or inconsistent with the
competent, relevant and reasonably credible evidence as to offend the interests
of justice[.]" Seidman, 205 N.J. at 169 (second alteration in original) (quoting
In re Trust Created by Agreement Dated Dec. 20, 1961, ex rel. Johnson, 194 N.J.
276, 284 (2008)). We give deference to a trial court's factual findings "when
A-4306-15T4
30
the evidence is largely testimonial and involves questions of credibility." Sipko,
214 N.J. at 376 (quoting Cesare v. Cesare, 154 N.J. 394, 412 (1998)).
"Compensatory damages are designed to compensate a plaintiff for an
actual injury or loss." Nappe v. Anschelewitz, Barr, Ansell & Bonello, 97 N.J.
37, 48 (1984). To support an award of compensatory damages, the evidence
must provide "some reasonable degree of certainty." Paolicelli v.
Wojciechowski, 132 N.J. Super. 274, 278-79 (App. Div. 1975). Actual damages
must be "real and substantial as opposed to speculative." Cortez v. Gindhart,
435 N.J. Super. 589, 603 (App. Div. 2014) (quoting Grunwald v. Bronkesh, 131
N.J. 483, 495 (1993)); see Pomerantz Paper Corp. v. New Cmty. Corp., 207 N.J.
344, 375 (2011) (holding that the trial court erred in basing a damages award on
an "expert's wholly speculative views"). Thus, a plaintiff must "prove damages
with such certainty as the nature of the case may permit, laying a foundation
which will enable the trier of the facts to make a fair and reasonable estimate."
Totaro, Duffy, Cannova & Co. v. Lane, Middleton & Co., 191 N.J. 1, 14 (2007)
(quoting Lane v. Oil Delivery, Inc., 216 N.J. Super. 413, 420 (App. Div. 1987)).
"[T]he exact amount of the loss need not be certain." Ibid. (quoting Donovan v.
Bachstadt, 91 N.J. 434, 445 (1982)).
A-4306-15T4
31
"Lost profits may be recoverable if they can be established with a
'reasonable degree of certainty.'" Desai v. Bd. of Adjustment of Phillipsburg,
360 N.J. Super. 586, 595 (App. Div. 2003) (quoting Stanley Co. of Am. v.
Hercules Powder Co., 16 N.J. 295, 314 (1954)). "Anticipated profits that are
too remote, uncertain, or speculative are not recoverable." Ibid. A party may
recover lost profits based on "sound fact[s]," not "mere opinion[s.]" Id. at 596.
Plaintiffs sought compensatory damages, relying on Pitaniello's opinion
that Weiss and MBC incurred unreasonable cost overruns of $7.7 million and
Stetz's opinion that defendants spent between $6.2 and $8.7 million on
construction expenditures never approved or fully disclosed. Plaintiffs argue
the profits on the Sky Club project would have been $39.2 million as opposed
to $28 million if Weiss had used the "approved budget of $95.5 million," not the
estimated budget of $115 million. Plaintiffs assert they sustained
$12,099,030.44 in damages identified by Stetz and that their total damages
through trial were $13,805,698.44. Given Abreu's ownership of one hundred
percent of Gateway 2001 and his sixty percent interest in Sky Club, they submit
that he sustained $8,283,419.07 in compensatory damages.
In his March 1, 2016 opinion, Judge Velazquez addressed all of plaintiffs'
claims for compensatory damages. The judge found Marshall Harrison was
A-4306-15T4
32
entitled to $16,700 for conversion of the liquor license and that Gateway 2001
was entitled to $726,459 from Weiss or White Diamond for diversion of money
to pay an unauthorized loan to Worthington. The judge denied the remaining
eleven claims for damages identified by Stetz, including claims for $8.7 million
in unauthorized upgrades and options and $1,112,533 in unauthorized and
questionable building repairs. Based on our review of the record, we agree with
the judge that Stetz and Pitaniello used "a simple mathematical exercise" to
calculate damages and neither expert analyzed the "reasonable costs of the
upgrades" or conducted "any real estate valuations to determine the value of the
units without the upgrades."
We also agree with the judge that the March 29, 2005 consent agreement
bars any claims for damages related to construction expenditures arising before
the agreement was executed. On that date, Abreu consented and agreed that all
actions undertaken by Weiss "including, without limitation, the right to approve
and modify budgetary matters involving the [p]roject, were correct and
appropriate and in the best interests of all members of [Gateway I and Marshall
Harrison.]" As discussed earlier, plaintiffs' claims for damages resulting from
unauthorized upgrades and questionable building repairs after March 29, 2005
are time-barred; moreover, plaintiffs did not demonstrate what portion of the
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33
construction cost overruns occurred after March 29, 2005. To be sure, Weiss
had sole authority to approve or deny any upgrades and building repairs,
consistent with the Gateway Special by-laws until the construction phase ended.
As the judge found, plaintiffs failed to prove that the condominium units
would have yielded the same or more profits but for the alleged unauthorized
upgrades. Stetz relied on the Greer schedule and the final draw to identify
between $6.2 and $8.7 million in unauthorized upgrades and options. He based
this calculation on "how the books and records should have been kept to
collaborate with the draw schedules." He did not analyze whether the upgrades
and options led to greater profits for the owners.
Pitaniello also relied on the Greer schedule and did not independently
review the construction costs or consider whether the conversion to
condominiums yielded additional profits for the owners. Pitaniello did not
conduct a real estate valuation, determine the value of the condominium units
after the upgrades or address the profitability of the project. Similarly, Stetz did
not analyze the reasonable costs of the upgrades or perform a real estate
valuation to determine the value of the units without any changes.
Regarding the alleged unauthorized repairs, Stetz relied on Marshall
Harrison's tax returns from 2006 through 2014. He added the columns showing
A-4306-15T4
34
leasehold improvements and repairs, acknowledging that he could not find
checks or other documentation to support all of the expenses. He also looked at
the general ledger and accounting records but said he could not "tie" any of "the
stuff . . . to the tax returns," which he found "very troubling." Consequently, he
took the numbers on the tax returns at "face value." He further acknowledged
that the tax returns actually categorized $800,000 as "lease hold or capital
improvements," not as repairs.
Rosen explained Stetz looked at eighteen condominium units (nine with
and nine without upgrades) to extrapolate his findings to the entire project.
Unlike Stetz or Pitaniello, Rosen looked at the sale prices for the 326 units and
found that the partnership recouped the costs of upgrades to particular units by
passing the expenses along to the occupants. He opined the actual sale proceeds
exceeded the highest range of the excess construction costs. Rosen also used
accounting principles to debunk Stetz's estimate of unauthorized building
repairs.
In short, plaintiffs fail to prove they suffered actual damages or incurred
lost profits. Therefore, the judge did not err by denying plaintiffs' claims for
construction cost overruns. The record amply supports the judge's credibility
determinations and its findings.
A-4306-15T4
35
Next, plaintiffs contend they are entitled to punitive damages because
"[d]efendants' conduct was specifically intended to take money out of the hands
of [p]laintiffs and into the pockets of Weiss and his entities." Specifically, they
argue defendants engaged in intentional misconduct and misrepresentations with
the intent to harm them. They also rely on the December 2003 Marshall Harrison
agreement to argue that they were entitled to legal fees.
"The decision to award or deny punitive damages . . . and attorney's fees
rests within the sound discretion of the trial court." Maudsley v. State, 357 N.J.
Super. 560, 590 (App. Div. 2003). A court may award punitive damages "as
punishment or deterrence for particularly egregious conduct." Nappe, 97 N.J.
at 49; Maudsley, 357 N.J. Super. at 590. To impose punitive damages, "a
defendant's conduct must be willfully and wantonly reckless or malicious."
Gennari v. Weichert Co. Realtors, 148 N.J. 582, 610 (1997). Punitive damages
require "an intentional wrongdoing in the sense of an 'evil-minded act' or an act
accompanied by a wanton and willful disregard of the rights of another." Smith
v. Whitaker, 160 N.J. 221, 241 (1999) (quoting Nappe, 97 N.J. at 49). A plaintiff
"must prove by clear and convincing evidence a 'deliberate act or omission with
knowledge of a high degree of probability of harm and reckless indifference to
the consequences.'" Id. at 242 (quoting Berg v. Reaction Motors Div., Thiokol
A-4306-15T4
36
Chem. Corp., 37 N.J. 396, 414 (1962)). We review the trial court's decision for
an abuse of discretion. Maudsley, 357 N.J. Super. at 590.
The record does not demonstrate Weiss engaged in egregious and
deliberate conduct to harm plaintiffs. To the contrary, Weiss attempted to
achieve a quick and successful transformation of the rental units into
condominiums and make a profit for everyone involved in Sky Club. Indeed,
plaintiffs made substantial profits. Undoubtedly, Weiss violated various
agreements, but his conduct was not malicious or willfully and wantonly
reckless. See Smith, 160 N.J. at 245 (holding an amendment to the Punitive
Damages Act, N.J.S.A 2A:15-5.14, requiring award of compensatory damages
as predicate for punitive damages award, was a "valid legislative attempt to
curtail suits seeking redress for allegedly malicious conduct that causes no
substantial injury").
We also reject plaintiffs' argument that Article 7 of the December 2003
Marshall Harrison agreement entitles them to indemnification. Plaintiffs do not
identify the specific provision in Article 7 or any other provision in any
documentation in the record that supports their argument, and provide no legal
authority to justify indemnification. Moreover, as Judge Velazquez pointed out,
A-4306-15T4
37
the December 2003 Marshall Harrison agreement refers to indemnification by
Marshall Harrison, not Weiss, White Diamond or MBC.
We also affirm the April 25, 2016 order denying defendants' motion for
indemnification, because the various governing documents unambiguously
exclude indemnification for breaches of the duty of good faith and loyalty.
Defendants moved for indemnification under the December 2003 amended
Marshall Harrison agreement, the Gateway Special by-laws and the December
2003 Gateway I agreement, respectively. Judge Velazquez denied
indemnification under all three agreements because the dismissal of Abreu's
claims did not excuse Weiss's intentional breach of the various governing
documents.
"As a matter of well-settled legal doctrine, it is clear that an indemnity
provision is to be construed in accordance with the rules for construction of
contracts generally, and hence that the judicial task is to ascertain the intention
of the parties . . . ." Mantilla v. NC Mall Assocs., 167 N.J. 262, 272 (2001)
(quoting Doloughty v. Blanchard Constr. Co., 139 N.J. Super. 110, 116 (Law
Div. 1976)). We must afford "contractual terms 'their plain and ordinary
meaning[.]'" Kieffer v. Best Buy, 205 N.J. 213, 223 (2011) (quoting M.J.
Paquet, Inc. v. N.J. Dep't of Transp., 171 N.J. 378, 396 (2002)). "If an indemnity
A-4306-15T4
38
provision is unambiguous, then the words presumably will reflect the parties'
expectations." Ibid.
The intent of the three indemnification provisions is clear: directors and
officers are entitled to indemnification, win or lose, as long as their actions were
taken in good faith; however, decisions made in violation of the duties of loyalty
and good faith are not covered. Section 7.2 of the December 2003 Marshall
Harrison agreement provides "no Covered Person[ 6] shall be entitled to be
indemnified in respect of any loss, damage or claim incurred by such Covered
Person by reason of such Covered Person's gross negligence or willful
misconduct[.]" Similarly, the December 2003 Gateway I agreement prohibits
indemnification for claims that were "the result of gross negligence or
misconduct[.]" The Gateway Special by-laws exclude indemnification if "a
judgment or other final adjudication adverse to the officer or director establishes
that said officer's or director's acts or omissions (i) were in breach of his duty of
loyalty . . .; [or] (ii) were not in good faith[.]"
Although Judge Velazquez did not find Weiss acted with malice for
punitive damages purposes, he did find Weiss deliberately violated the venture's
6
Under the December 2003 Marshall Harrison agreement, a "Covered Person"
is defined as a "member or manager of the company[.]" Thus, Weiss is a
"Covered Person" and eligible for indemnification.
A-4306-15T4
39
governing documents. Weiss's misconduct included, but was not limited to:
terminating the Gelfand contract, issuing checks without Abreu's signature,
asserting unilateral control over the project, stonewalling Abreu's request for
documents and freezing out Abreu from management decisions. In his March
1, 2016 written opinion, Judge Velazquez explicitly found Weiss breached the
covenant of good faith and fair dealing and violated the duty of loyalty. Because
Weiss's actions were intentional and led to a judgment finding he did not act in
good faith, Judge Velazquez correctly denied indemnification under all three
governing documents.
III.
We also reject plaintiffs' contention that the judge erred by dismissing
their cause of action for fraud based on Weiss's misrepresentations and
omissions with respect to the construction budget and his unilateral termination
of the Gelfand agreement. At the outset, we agreed with the judge that plaintiffs'
claims for fraud, deceit and misrepresentation were time-barred. Accordingly,
we need not consider these arguments.
IV.
Plaintiffs sought to recover $157,272.22 for attorneys' fees, experts' fees
and other costs associated with the inspection of fifty-two boxes of documents,
A-4306-15T4
40
additional depositions and supplemental reports due to defendants' disregard of
their discovery obligations. The judge awarded only $2445 for attorney's fees
and costs incurred in connection with the preparation of Pitaniello's
supplemental report. Contrary to plaintiffs' contentions, the judge found
defendants' failure to locate the documents was not in bad faith. We review
sanctions for discovery misconduct for abuse of discretion. See Abtrax Pharms.,
Inc. v. Elkins-Sinn, Inc., 139 N.J. 499, 517 (1995); Il Grande v. DiBenedetto,
366 N.J. Super. 597, 621-22 (App. Div. 2004). We agree with the judge that
plaintiffs would have incurred the expert fees regardless of when defendants
produced the additional documents, hence we discern no abuse of the judge's
discretion.
V.
Plaintiffs contend the judge erred by reconsidering and vacating its prior
order requiring Weiss or White Diamond to reimburse them $526,825 that
rightfully belonged to Gateway 2001 to satisfy the Worthington debt. They
argue that the judge erred because: (1) Weiss and White Diamond improperly
converted profits from Gateway 2001 by taking the distributions before their
dispersal to the company; and (2) Worthington's assignment of his economic
interest was invalid. We reject these arguments.
A-4306-15T4
41
"Reconsideration under Rule 4:49-2 is a matter within the sound
discretion of the court and is to be exercised 'for good cause shown and in the
service of the ultimate goal of substantial justice.'" Casino Reinvestment Dev.
Auth. v. Teller, 384 N.J. Super. 408, 413 (App. Div. 2006) (quoting Johnson v.
Cyklop Strapping Corp., 220 N.J. Super. 250, 264 (App. Div. 1987)). We "may
only disturb the decision below if [we] find[] an error which is 'clearly capable
of producing an unjust result.'" Ibid. (quoting R. 2:10-2). Our review of legal
issues is de novo. Ibid.
In his March 1, 2016 opinion, Judge Velazquez explained Weiss
improperly withheld money from Gateway 2001 to satisfy the Worthington loan
and directed Weiss or White Diamond to reimburse $726,459, "representing the
amount wrongfully withheld as of January 2016." On March 17, 2016, the court
entered judgment in favor of Gateway 2001 and against Weiss for conver sion
with payment as follows: "(a) $246,000.00, which is being held by Gateway I,
LLC; (b) $504,459.00[7] by [d]efendants Weiss and White Diamond. The
7
In his April 26, 2016 reconsideration order, Judge Velazquez referred to the
amount Weiss or White Diamond were ordered to pay Gateway 2001 as
$526,825, not $504,459, as was ordered in the March 17, 2016 judgment. The
parties do not identify this as a meaningful difference, and the record reflects it
was likely a typographical error. Because we affirm Judge Velazquez's
reconsideration order, any mistake is immaterial.
A-4306-15T4
42
escrow is concluded and all future distributions shall be paid directly to Gateway
2001; and (c) $16,700.00, representing monies owed as a result of the liquor
license transaction."
Defendants moved for reconsideration of the portion of the order
regarding the Worthington loan. The judge denied defendants' motion to declare
the assignment valid but found no equitable reason to compel Weiss or White
Diamond to pay Gateway 2001, "when clearly Worthington is no longer a
member of the LLC, and Abreu has not shown that he has any entitlement to
these monies." The judge further found that Weiss had "paid all of the taxes
attributable to the distributions," and that the payment "would likely create
complicated tax consequences, and the need to amend tax returns." The judge
concluded that White Diamond was entitled to retain all money that
Worthington, "as a member of Gateway 2001, was lawfully entitled to receive,
as and for his share of distributions and or profits."
We affirm Judge Velazquez's reconsideration order. Worthington
assigned his interest in Gateway 2001 in 2010. Abreu did not purchase
Worthington's share until 2014. Judge Velazquez correctly concluded it would
be inequitable for Abreu to receive a sum equal to profits due to Worthington to
which Abreu had no legal right. Moreover, Worthington did not deny he owed
A-4306-15T4
43
Weiss and White Diamond more than $2 million. Although Gateway 2001's
operating agreement prohibited Worthington from assigning his interest with out
the other members' consent, "equity looks to substance rather than form." See
Assocs. Home Equity Servs., Inc. v. Troup, 343 N.J. Super. 254, 276 (App. Div.
2001).8
Despite that, plaintiffs argue Gateway 2001 is entitled to repayment of
distributions it would have used to pay its operating expenses. By taking the
loan repayments "off the top," they argue that Abreu had to fund Gateway 2001's
expenses without Worthington's share of the profits. However, this ignores
Judge Velazquez's order that allowed Gateway 2001 to provide a certification
attesting to any business costs and expenses that would have been deducted from
Worthington's profits prior to distribution.
8
Because we affirm the order for reconsideration, we do not reach defendants'
cross-appeal requesting we invalidate the Abreu-Worthington purchase
agreement. Moreover, the judge correctly determined he had no jurisdiction to
decide the issue, because defendants' answer or counterclaim failed to request
this relief.
Additionally, because we agree with the judge's decision to preserve the
status quo, we do not consider defendants' argument on cross-appeal that the
judge erred by finding Worthington's assignment was invalid.
A-4306-15T4
44
VI.
Finally, we address defendants' argument on cross-appeal that Abreu is
unfit to manage Sky Club because of his criminal convictions. "The essence of
a fiduciary relationship is that one party places trust and confidence in another
who is in a dominant or superior position." McKelvey v. Pierce, 173 N.J. 26,
57 (2002) (quoting F.G. v. MacDonnell, 150 N.J. 550, 563 (1997)). A fiduciary
owes to the dependent party "a duty of loyalty and a duty to exercise reasonable
skill and care." F.G., 150 N.J. at 546. Thus "the fiduciary is liable for harm
resulting from a breach of the duties imposed by the existence of such a
relationship." Ibid.
The governing documents demonstrate that the parties intended for Weiss
and Abreu to co-manage the project after construction and for Abreu to make
the final decision when disagreements arose. Defendants argue that Abreu failed
to disclose his fraudulent activities at the time he and Weiss signed the Gateway
Special by-laws and therefore he should not be allowed to control or manage the
multi-million dollar project. They rely on Hageman v. 28 Glen Park Associates,
LLC, 402 N.J. Super. 43, 55-56 (Ch. Div. 2008), which held that the plaintiff-
homeowner, "who set out on a mission to deceive everyone," and accomplished
his plan, "only to have it backfire on him," could not "seek[] equitable relief
A-4306-15T4
45
from the consequences." Reliance on Hageman, however, is misplaced. In
Hageman, the plaintiff was precluded under the doctrine of unclean hands from
recovering against purchasers at a foreclosure sale. Ibid. There is no claim of
unclean hands here. Likewise, defendants' reliance, without any discussion, on
United States v. Jimenez, 513 F.3d 62 (3d Cir. 2008), is unpersuasive because
that case addressed Abreu's appeal of his convictions for mortgage and bank
fraud.
Judge Velazquez correctly declined to rewrite the governing documents
in light of Abreu's conviction finding "no compelling reasons to deprive Abreu
of his contractual right to co-manage [Gateway Special] with binding
decision[-]making authority in the event of a management dispute." The judge
also found no compelling reason "to deprive Abreu of his contractual right
because he is a convicted felon." Thus, we discern no error in the judge's
decision to enforce the parties' agreement as written. See Schor v. FMS Fin.
Corp., 357 N.J. Super. 185, 191 (App. Div. 2002) ("[W]here the terms of a
contract are clear and unambiguous there is no room for interpretation or
construction and the courts must enforce those terms as written." (quoting Karl's
Sales & Serv., Inc. v. Gimbel Bros., 249 N.J. Super. 487, 493 (App. Div. 1991))).
We do not address the parties' remaining arguments as they lack sufficient
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merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
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