SIGALIT SHAZO VS. MARIA ANGELA MARTINO (DC-007914-17, PASSAIC COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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 post ed 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-2675-17T4

SIGALIT SHAZO,

Plaintiff-Respondent/
Cross-Appellant,

v.

MARIA ANGELA MARTINO,

Defendant-Appellant/
Cross-Respondent,

and

BRET ALVAREZ,

Defendant.
______________________________

Submitted February 26, 2019 – Decided July 24, 2019

Before Judges Rothstadt and Natali.

On appeal from the Superior Court of New Jersey, Law
Division, Passaic County, Docket No. DC-007914-17.

Harold P. Cook III & Associates, attorneys for
appellant/cross-respondent (Joseph Jerome Fell, on the
briefs).
 Robert M. Mayerovic, attorney for respondent/cross-
appellant.

PER CURIAM

Defendant Maria Martino, a former owner of a residence that was the

subject of a foreclosure, and plaintiff Sigalit Shazo, the successful bidder at the

sheriff's sale of defendant's home, filed cross appeals from a Special Civil Part

judgment in favor of plaintiff entered after a bench trial. The judgment awarded

damages to plaintiff as reimbursement for taxes and sewer/water bills that she

incurred during defendant's continued occupancy of the premises from after a

sheriff's sale until defendant vacated, just days before the execution of a Writ of

Possession. The judgment did not include plaintiff's interest expense on her

purchase money loan for the same period. Judge Frank Covello awarded the

damages based upon the doctrine of unjust enrichment and denied the interest

expense because there was no evidence of the amount incurred and no notice to

defendant that the expense was being realized.

On appeal, defendant argues there was no direct relationship between her

and plaintiff or expectation of remuneration to support the judge's unjust

enrichment finding. Plaintiff contends the judge incorrectly determined that she

had to prove notice of the interest expense before being able to recover it from

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defendant. We find no merit to either party's contention and affirm substantially

for the reasons expressed by Judge Covello.

The material facts developed at trial were generally undisputed. They are

summarized as follows. Prior to a successful foreclosure, defendant owned a

residential property in Clifton. On January 7, 2017, plaintiff successfully bid

on the property at a sheriff's sale and paid the purchase price in full by February

23, 2017. Plaintiff secured a Writ of Possession that required defendant to

vacate the premises by August 14, 2017. Defendant vacated the premises two

days before the deadline.

In July 2017, plaintiff filed a complaint for damages in the amount of

$15,000. The complaint's five counts asserted claims for defendant's

"reasonable . . . use and occupancy" of the premises, the "reasonable value of

goods and services provided," breach of contract, "book account," and "unjust[]

enrich[ment]." Plaintiff sought to recover the expenses she incurred for property

taxes and sewer charges during the period from January 30, 2017 through July

27, 2017 as well as the interest costs she realized during that time.

Thereafter, defendant filed a motion for summary judgment. Judge

Covello granted the motion in part, dismissing four of the complaint's five

counts, leaving for trial plaintiff's claim for damages under unjust enrichment.

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 As to plaintiff's remaining claim, Judge Covello conducted a bench trial

on January 25, 2018. At the trial, both parties testified. In her testimony,

plaintiff explained that real estate taxes for the third quarter of 2017 remained

unpaid when she purchased the property and she immediately paid $9757 to

satisfy them, as well as paying sewer and water charges in the amount of $696.

Plaintiff also explained that she borrowed funds to purchase the property and

incurred an interest expense of $5817 during defendant's continued possession

of the premises.

Judge Covello entered judgment in favor of plaintiff in the amount of

$8809.53, the amount plaintiff incurred for taxes and water/sewer charges

during the subject period of defendant's occupancy of the premises. The judge

placed his reasons for awarding the judgment on the record on the same date. In

his oral decision, the judge distinguished between taxes and water/sewer charges

that defendant was aware she was incurring while continuing to reside at the

premises, as compared to plaintiff's mortgage interest expenses, which

defendant did not know were being incurred. As to the utility charges, the judge

noted that defendant had continued to pay her gas and electric charges while she

remained in possession of the premises so she was aware of her continuing

obligation to not only pay for those, but also for the water/sewer charges and

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taxes associated with her being an owner and then occupant of the premises after

title passed to plaintiff. He also found that there was no evidence of the

reasonable rental value of the property for the period that defendant remained in

possession. The judge awarded damages in the amount of $522.03 for sewer

charges, $174.52 for water charges and pro-rated taxes of $8112.98. This appeal

followed.

Final determinations made by a trial court "premised on the testimony of

witnesses and written evidence at a bench trial" are reviewed in accordance with

a deferential standard. D'Agostino v. Maldonado, 216 N.J. 168, 182 (2013).

"[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 v. Clifton Sav. Bank, S.L.A., 205

N.J. 150, 169 (2011) (second alteration in original) (quoting In re Tr. Created

By Agreement Dated December 20, 1961, 194 N.J. 276, 284 (2008)). However,

a trial court's legal determinations are not entitled to any special deference and

are reviewed de novo. D'Agostino, 216 N.J. at 182 (citing Manalapan Realty,

LP v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)).

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 On appeal, defendant does not challenge Judge Covello's factual findings.

Rather, she argues that his legal conclusion applying the doctrine of unjust

enrichment and finding that plaintiff proved "a direct relationship between the

parties" and an "expectation for remuneration" were not supported by the record.

We disagree.

"The 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."

Goldsmith v. Camden Cty. Surrogate's Office, 408 N.J. Super. 376, 382 (App.

Div. 2009) (internal quotation marks omitted). "To establish a claim for unjust

enrichment, 'a [party] must show both that [the opposing party] received a

benefit and that retention of that benefit without payment would be unjust. '"

Iliadis v. Wal-Mart Stores, Inc., 191 N.J. 88, 110 (2007) (quoting VRG Corp. v.

GKN Realty Corp., 135 N.J. 539, 554 (1994)). "That quasi-contract doctrine

also 'requires that plaintiff show that it expected remuneration from the

defendant at the time it performed or conferred a benefit on defendant and that

the failure of remuneration enriched defendant beyond its contractual rights.'"

Thieme v. Aucoin-Thieme, 227 N.J. 269, 288 (2016) (quoting Iliadis, 191 N.J.

at 110). In other words, the plaintiff must demonstrate that the "defendant[s]

received a benefit and that retention of that benefit without payment would be

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unjust." Goldsmith, 408 N.J. Super. at 382 (alteration in original) (internal

quotation marks omitted).

Defendant asserts that because no relationship existed between her and

plaintiff, unjust enrichment could not form a basis for plaintiff to recover.

Defendant relies upon our holding in Castro v. NYT Television, 370 N.J. Super.

282, 300 (App. Div. 2004), in which we determined unjust enrichment was not

applicable to a claim made by a member of the "general public who [was] subject

to videotaping for a television program." We held that the individual in that

case could not "reasonably expect that he or she will receive payment from the

producer of the show" for being in the video tape as "no direct relationship

existed between the parties which would create a reasonable expectation of

benefit. . . ." Ibid. (alteration in original) (quoting Fasching v. Kallinger, 211

N.J. Super. 26, 35 (App. Div. 1986)). We conclude plaintiff's reliance here on

that holding is inapposite.

Here, defendant continued to use and occupy the premises without paying

taxes or for her use of the utilities. She either knew or should have known that

she would be responsible for those payments and that in order to avoid liens,

either her former foreclosing mortgagee or plaintiff, a purchaser at a sheriff's

sale, would be responsible to pay those charges. Unlike the plaintiff in Castro,

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a relationship existed between the parties warranting plaintiff's recovery under

unjust enrichment.

We find no merit to defendant's other contention that because she did not

have an expectation of reimbursing plaintiff, even though she might have had

one as to her mortgagee, she was not obligated to pay plaintiff after plaintiff

made the necessary payments. Suffice it say, unjust enrichment's expectation

requirement relates to plaintiff's reasonable expectation of payment from

defendant, not the reverse.

We reach a similar conclusion as to plaintiff's challenge to Judge Covello's

determination that defendant could not be held liable for plaintiff's interest

expense. In support of her contention, plaintiff relies upon N.J.S.A. 2A:35-2,

which applies to actions for ejectment. The statute provides that in such actions

a defendant may be held liable for a plaintiff's "incidental damages, including

mesne profits,[1] and the full value of the use and occupation of the premises . . .

during which the defendant was in possession thereof." We find such reliance

also to be inapposite.

1
Mesne profits are understood to include the "[v]alue of use or occupation of
land during time it was held by one in wrongful possession and is commonly
measured in terms of rents and profits." Black's Law Dictionary 990 (6th ed.
2010).
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 First, plaintiff never asserted a cause of action for ejectment as his

complaint does not mention the statute or the claim. Moreover, plaintiff never

argued its application to Judge Covello. For that reason, we chose to not

consider her contention on appeal. See Correa v. Grossi, 458 N.J. Super. 571,

576 n.2 (App. Div. 2019); State v. Robinson, 200 N.J. 1, 20 (2009) ("[A]ppellate

courts will decline to consider questions or issues not properly presented to the

trial court when an opportunity for such a presentation is available unless the

questions so raised on appeal go to the jurisdiction of the trial court or concern

matters of great public interest" (quoting Nieder v. Royal Indem. Ins. Co., 62

N.J. 229, 234 (1973))).

Second, even if plaintiff raised the issue at trial, we conclude Judge

Covello correctly determined that unlike the utility and taxes charge about which

defendant was aware, the statute did not support recovery of an interest expense

about which she had no knowledge. Reimbursement for that type of expense

would be subsumed by a valid claim for the reasonable value of the use and

occupancy of the property, or mesne profits, about which plaintiff failed to

adduce any evidence.

Affirmed.

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