YA GLOBAL INVESTMENTS, LP VS. RAINIER GONZALEZ (L-2090-14, UNION 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NOT FOR PUBLICATION WITHOUT THE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-0351-17T4
YA GLOBAL INVESTMENTS,
LP,
Plaintiff-Respondent,
v.
RAINIER GONZALEZ, PACER
HEALTH CORPORATION, PACER
ECI, LLC, Ei3 ENERGY, LLC,
PACER HEALTH STAFFING, INC.,
PACER STAFFING, INC., BRICK
MOUNTAIN BILLING, INC., BRICK
MOUNTAIN MEDIA, LLC, 5G
WIRELESS COMMUNICATIONS,
INC., CONNECTED MEDIA
TECHNOLOGIES, INC., EYI
INDUSTRIES, INC., and ICOA, INC.,
Defendants-Appellants.
______________________________
Submitted January 24, 2019 – Decided February 19, 2019
Before Judges Alvarez and Reisner.
On appeal from Superior Court of New Jersey, Law
Division, Union County, Docket No. L-2090-14.
Andrew M. Wolfenson, attorney for appellants.
Sills Cummis & Gross, PC, and Bressler, Amery &
Ross, PC, attorneys for respondent (Joshua N. Howley
and William R. Tellado, on the brief).
PER CURIAM
In this commercial dispute, defendants appeal from an April 21, 2017
amended order, granting summary judgment in favor of plaintiff YA Global
Investments, LP (YAGI), and piercing the corporate veil to impose liability on
defendants Rainier Gonzalez (Gonzalez) and Brick Mountain Billing, Inc.
(Billing) for the sum of $5,100,000 plus interest. Defendants also appeal from
an August 30, 2017 order denying their motion for reconsideration.
Defendants raise the following issues on this appeal:
POINT I
THE COURT COULD NOT FIND THAT THE
DEFENDANTS WERE GUILTY OF MAKING
FRAUDULENT CONVEYANCES OR THAT THE
CORPORATE VEIL COULD BE PIERCED WHERE
ALL MONIES RECEIVED BY THE CORPORATE
DEFENDANTS WERE USED FOR PROPER
BUSINESS PURPOSES.
POINT II
IMPOSITION OF LIABILITY AND A JUDGMENT
AGAINST BRICK MOUNTAIN BILLING, LLC,
WAS IMPROPER AS THERE WAS NO EVIDENCE
PRESENTED THAT BRICK MOUNTAIN BILLING
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RECEIVED, IMPROPERLY OR OTHERWISE, ANY
MONIES FROM THE OTHER DEFENDANTS.
POINT III
THE COURT IMPROPERLY APPLIED THE
SUMMARY JUDGMENT STANDARD, AND ITS
FINDING REGARDING FRAUDULENT
CONVEYANCES AND PIERCING OF THE
CORPORATE VEIL WAS INCORRECT AND MUST
BE REVERSED.
POINT IV
THE SUPPLIED PROOFS CLEARLY SHOW THAT
THE COURT COULD NOT, UNDER THE
SUMMARY JUDGMENT STANDARD OR
OTHERWISE, FIND THAT THE DEFENDANTS
WERE GUILTY OF MAKING FRAUDULENT
CONVEYANCES OR THAT THE CORPORATE
VEIL SHOULD BE PIERCED.
POINT V
THE COURT ERRED IN ORDERING A JUDGMENT
AMOUNT AGAINST THE DEFENDANTS, RAINIER
GONZALEZ AND BRICK MOUNTAIN BILLING,
INC., WHICH REFLECTED MONIES RECEIVED
BY THE OTHER CORPORATE DEFENDANTS AND
NOT MONIES ALLEGEDLY PROVIDED TO THEM.
POINT VI
THE COURT’S EXCLUSION OF PAYMENTS
MADE BEFORE EXECUTION OF THE LIMITED
WAIVER DOCUMENTS MEANS THAT ANY
MONIES RECEIVED BY THE CORPORATE
DEFENDANTS PRIOR TO THE DOCUMENTS’
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EXECUTION SIMILARLY CANNOT BE
CONSIDERED, THEREBY REDUCING THE
POSSIBLE AMOUNT OF ANY JUDG[]MENT
WHICH COULD BE ENTERED AGAINST
DEFENDANTS, RAINIER GONZALEZ AND BRICK
MOUNTAIN BILLING.
After reviewing the record de novo, we find that summary judgment was
properly granted. See Rowe v. Mazel Thirty, LLC, 209 N.J. 35, 41 (2012). We
also find no abuse of the trial court's discretion in denying reconsideration. See
Cummings v. Bahr, 295 N.J. Super. 374, 389 (App. Div. 1996). We affirm for
the reasons stated by Judge Robert J. Mega in his comprehensive written
opinions issued with the orders on appeal. We decline to address appellant's
point VI, because it was not raised in the trial court. Nieder v. Royal Indem.
Ins. Co., 62 N.J. 229, 234-35 (1973). Defendants' remaining arguments are not
supported by the record 1 and are without sufficient merit to warrant discussion.
R. 2:11-3(e)(1)(E). We add these brief comments.
Gonzalez created and controlled a series of corporations, all of which he
treated as one enterprise, and the assets of which he commingled, disregarding
any corporate formalities. Gonzalez caused two of the corporations (the Pacer
1
Many of defendants' purported citations to the record either do not support
their factual assertions or are references to the transcripts of their attorney's
motion arguments, rather than citations to legally competent evidence. See R.
2:6-2(a)(5).
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defendants) to borrow tens of millions of dollars from YAGI, and to acquire
from YAGI an assignment of several struggling companies that the Pacer
defendants committed to turning around financially. At Gonzalez's direction,
the Pacer defendants blatantly violated their contracts with YAGI by siphoning
off $5.1 million in earnings from one of the purchased companies and using the
money for purposes not permitted by the agreements with YAGI. Those
contracts were fully integrated documents that could not be varied or amended
by alleged oral agreements. Hence, we find no merit in defendants' arguments
that someone from YAGI verbally assured them that they could depart from the
terms of those contracts, and that YAGI was somehow bound by the terms of a
2010 Pacer Health Corporation Executive Summary that YAGI neither signed
nor agreed to in writing.
We also find no merit in defendants' argument that the trial court erred by
rendering judgment against Billing, the only one of Gonzalez's corporations that
still appeared to be solvent. In response to plaintiff's statement of material facts,
defendants admitted that Gonzalez treated all of the "corporate Gonzalez
[d]efendants" (a term that included Billing) as one enterprise and commingled
their funds; that Billing paid salaries for Gonzalez and his employees; and that
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Gonzalez and his two colleagues worked for all of his corporations including
Billing.
Affirmed.
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