STATE OF NEW JERSEY VS. ANTHONY ENRICOÂ (15-10-1396, BERGEN COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3933-12T2
JOSEPH P. VIRZI AND
SALLY VIRZI,
Plaintiffs-Appellants,
v.
AIR CARGO GLOBAL CORPORATION,
AND SOPHIE PERSITS,
Defendants-Respondents,
and
ACG SHIPPING WORLDWIDE,1
Defendant.
______________________________
Argued May 14, 2014 – Decided June 6, 2014
Before Judges Fuentes, Simonelli and Haas.
On appeal from the Superior Court of New
Jersey, Chancery Division, General Equity
Part, Bergen County, Docket No. C-0072-12.
Cindy D. Salvo argued the cause for
appellants (The Salvo Law Firm, P.C.,
attorneys; Ms. Salvo, on the briefs).
Patrice E. LeTourneau argued the cause for
respondents (McCusker, Anselmi, Rosen &
1
A.C. Global incorrectly sued herein as ACG Shipping Worldwide.
Carvelli, P.C., attorneys; Paul F. Carvelli
and Ms. LeTourneau, on the brief).
PER CURIAM
In this matter, plaintiff Joseph P. Virzi (plaintiff) and
his wife, Sally Virzi, sought repayment of loans plaintiff
allegedly made to defendant Air Cargo Global Corporation (Air
Cargo). They appeal from the March 18, 2013 final judgment,
which dismissed their amended complaint with prejudice following
a bench trial. We reverse and remand for further proceedings.
We summarize the facts from the record. Air Cargo was
engaged in shipping goods overseas by ocean and air freight.
Defendant Sophie Persits (defendant) took over the business when
her father, who owned it, became ill. In October 2009,
defendant entered into an agreement to sell an eighty-five
percent share in the business to plaintiff's step-nephew,
Douglas Arena, for $1 million. Arena then took over the
business and defendant continued working there.
Plaintiff gave Arena over $100,000 to invest in Air Cargo;
however, Arena never invested plaintiff's money in the company
and never paid defendant. Instead, he pilfered Air Cargo and
absconded with nearly $300,000, leaving the company in dire
financial condition.
Plaintiff wired $60,000 and $20,000 directly to Air Cargo's
landlord. Plaintiff claimed the $80,000 was a loan to the
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company that defendant promised to repay. Defendant admitted
that: plaintiff was not an investor in Air Cargo; the $80,000
plaintiff paid to Air Cargo's landlord was for Air Cargo's rent;
the $80,000 was a legitimate debt that Air Cargo owed to
plaintiff; and Air Cargo would have repaid plaintiff if it had
remained in business. Defendant also admitted that Air Cargo
owed plaintiff at least $50,000, which was listed in the
liability section of Air Cargo's corporate balance sheets as a
"notes payable" to plaintiff. Air Cargo did not remain in
business because defendant dissolved it in order to avoid
creditors. Defendant formed A.C. Global, transferred Air
Cargo's assets to that company, and conducted essentially the
same type of business that Air Cargo conducted.
Despite defendant's admissions, the trial judge found that
plaintiff made no loan to Air Cargo, and dismissed the complaint
with prejudice. Having reached this conclusion, the judge did
not address whether A.C. Global is liable to repay plaintiff
under the rules of successor liability.
Our review of a trial court's fact-finding in a non-jury
case is limited. Seidman v. Clifton Sav. Bank, S.L.A., 205 N.J.
150, 169 (2011). "'The general rule is that findings by the
trial court are binding on appeal when supported by adequate,
substantial, credible evidence. Deference is especially
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appropriate when the evidence is largely testimonial and
involves questions of credibility.'" Ibid. (quoting Cesare v.
Cesare, 154 N.J. 394, 411-12 (1998)). We "should 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." Ibid. (internal quotation marks omitted). However,
we owe no deference to a trial court's interpretation of the
law, and review issues of law de novo. State v. Parker, 212
N.J. 269, 278 (2012); Mountain Hill, L.L.C. v. Twp. Comm. of
Middletown, 403 N.J. Super. 146, 193 (App. Div. 2008), certif.
denied, 199 N.J. 129 (2009). We also review mixed questions of
law and fact de novo. In re Malone, 381 N.J. Super. 344, 349
(App. Div. 2005).
We conclude there is no competent evidence supporting the
judge's finding that there was no loan. Rather, defendant's
admissions, which the judge ignored, confirmed that plaintiff
was not an investor; there was a $50,000 "notes payable" to
plaintiff; the $80,000 plaintiff paid to Air Cargo's landlord
was for Air Cargo's rent; and the $80,000 was a legitimate debt
that Air Cargo owed to plaintiff and would have repaid had it
remained in business. Because Air Cargo clearly benefitted from
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the $80,000, the judge should have applied the doctrine of
unjust enrichment.
We have held that
[t]he doctrine of unjust enrichment rests on
the equitable principle that a person shall
not be allowed to enrich himself unjustly at
the expense of another. A cause of action
for unjust enrichment requires proof that
defendant[s] received a benefit and that
retention of that benefit without payment
would be unjust. Unjust enrichment is not
an independent theory of liability, but is
the basis for a claim of quasi-contractual
liability. We have recognized, however,
that a claim for unjust enrichment may arise
outside the usual quasi-contractual setting.
[Goldsmith v. Camden Cnty. Surrogate's
Office, 408 N.J. Super. 376, 382 (App. Div.)
(alteration in original) (citations and
internal quotation marks omitted), certif.
denied, 200 N.J. 502 (2009).]
We are satisfied that what occurred in this case fits squarely
within the concept of unjust enrichment. Accordingly, we
reverse and remand for the court to consider whether A.C. Global
is liable to repay plaintiff under the rules of successor
liability.
Reversed and remanded for further proceedings consistent
with this opinion. We do not retain jurisdiction.
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