NOT FOR PUBLICATION WITHOUT THE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-2984-15T4
J.A.S. GRANITE & TILE, L.L.C.,
Plaintiff-Respondent,
v.
GRAND STONE & TILE, INC., VICENTE
A. BELTRA, NIDYA BELTRA, JUAN
VICENTE BELTRA, MARIA BELTRA,
and ENRIQUE BELTRA,
Defendants-Respondents,
and
INNOVATIVE TILE & STONE, INC.,
MIGUEL BELTRA (FATHER) and MIGUEL
BELTRA (SON),
Defendants-Appellants.
_____________________________________
INNOVATIVE TILE & STONE, INC.,
Third-Party Plaintiff-
Appellant,
v.
FRANCISCO MELEIRO,
Third-Party Defendant-
Respondent.
______________________________________
Submitted July 13, 2017 – Decided July 24, 2017
Before Judges Yannotti and Haas.
On appeal from Superior Court of New Jersey,
Chancery Division, Essex County, Docket No.
C-54-11.
Eric S. Medina, attorney for appellants.
Hill Wallack, LLP, attorneys for respondent
J.A.S. Granite & Tile, L.L.C. and Francisco
Meleiro (Eric I. Abraham, of counsel and on
the brief; Christina L. Saveriano, on the
brief).
PER CURIAM
Innovative Tile & Stone, Inc. (Innovative) and its two owners,
defendants Miguel Beltra (Beltra Sr.) and his son Miguel Beltra
(Beltra Jr.) (collectively defendants), appeal from the February
9, 2016 order of the Chancery Division denying their motion for
summary judgment against plaintiff J.A.S. Granite & Tile, L.L.C.
We affirm.
The evidence submitted by the parties in support of, and in
opposition to, defendants' summary judgment motion is in sharp
conflict, with both sides presenting diametrically opposed factual
positions on the genesis and conduct of the financial transactions
that are at the heart of this matter. We view this evidence in
the light most favorable to plaintiff, the non-moving party. Polzo
v. Cty. of Essex, 209 N.J. 51, 56 n.1 (2012) (citing Brill v.
Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995)).
2 A-2984-15T4
According to plaintiff's version of the events, members of
the Beltra family owned a group of companies known as the Bel-
Stone companies. These companies sold granite, ceramic and
porcelain tile, stone, marble, and other similar building
materials. The companies obtained a bank loan, using these
materials as collateral, and then defaulted on the loan. A
receiver was appointed and charged with the task of selling the
building materials at an auction.1
Plaintiff is a limited liability company, with Francisco
Meleiro and Adriana Meleiro acting as its only members. After
losing control of its inventory to the receiver, the Beltra family
formed a new corporation, defendant Grand Stone & Tile, Inc. (Grand
Stone), with Vincente A. Beltra and Nidya Beltra serving as the
company's sole officers, directors and shareholders. Grand Stone
asked plaintiff to purchase all of the building materials at the
auction and then sell these items to Grand Stone, which offered
to purchase them for approximately twice the amount plaintiff
would pay. Plaintiff agreed to this proposal and the parties
executed a written agreement to this effect on April 18, 2010.
1
By this time, the building materials were housed in several
states, including New Jersey, Massachusetts, Illinois,
Pennsylvania, Tennessee, and Indiana.
3 A-2984-15T4
As part of this agreement, Grand Stone agreed to pay plaintiff
"$375,000 as an upfront initial payment" for the assets that were
the subject of the auction, with this amount being held in escrow
by plaintiff's attorney. If plaintiff was the successful bidder,
it would keep the payment; if not, the money would be returned to
Grand Stone.
The next day, Beltra Jr. executed a check in the amount of
$375,000 payable to plaintiff's attorney's trust account.
According to plaintiff, another family member, defendant Juan
Vicente Beltra, delivered the payment to plaintiff's attorney.
One of plaintiff's owners, Francisco Meleiro, placed a bid
at the auction on the building materials, but he was not the
highest bidder. Another individual, Philip Perez, was the winning
bidder on all of the items at the auction. On April 26, 2010, the
trial court entered an order approving the results of the auction,
with Perez named as the successful bidder.
However, Perez did not have the financial resources needed
to complete the purchase. At that point, plaintiff approached
Perez to determine if he would sell the materials to it. Perez
agreed to do so. On April 28, 2010, Perez assigned all of the
materials that he had the right to purchase as the result of the
auction to plaintiff in exchange for plaintiff paying the receiver
the amount due.
4 A-2984-15T4
That same day, plaintiff asserts that it reached an agreement
with Grand Stone to sell all the materials it had just purchased
from Perez to Grand Stone for $6,981,700. The parties prepared a
bill of sale documenting the transaction. The materials that
plaintiff sold to Grand Stone included:
all slab size natural stone materials,
including Granite, Marble, Soapstone,
Sandstone, Slate, Travertine/Onyx, Limestone,
etc.[;] all tile of natural stone materials,
including Granite, Marble Soapstone,
Sandstone, Slate Travertine/Onyx, Limestone,
etc.; all tile of Ceramic and Porcelain; all
Saddles; all A-Frames; all manufactured
engineered Quartz and Marble based slab size
material . . . .
[(emphasis added).]
Due to the amount of financing needed to complete the
transaction, plaintiff required Grand Stone to execute a written
purchase money security agreement, which established and set forth
the nature of the collateral to be pledged by Grand Stone to
plaintiff to secure the loan. According to plaintiff, this
collateral included all of the materials listed above, including
the ceramic tile. The parties also executed a promissory note,
which required Grand Stone to make monthly payments of $193,936.11
to plaintiff for thirty-six months, with interest payable on any
principal which was not paid when due. Defendants Vincente A.
Beltra, Juan Vincente Beltra, Maria Beltra, and Nidya Beltra (the
5 A-2984-15T4
individual guarantors) provided personal guarantees to plaintiff
for Grand Stone's obligations pursuant to a guaranty agreement
that was also executed on April 28, 2010.
Thereafter, Grand Stone failed to make timely payments and
was soon in default. Plaintiff asserts that it then learned that
Innovative, which was operating out of the "same store front" as
Grand Stone, had taken control of some of Grand Stone's inventory
in which plaintiff had a security interest, specifically the
ceramic tile, and was selling it.
On March 4, 2011, plaintiff filed a complaint against Grand
Stone, the individual guarantors, Innovative, Beltra Sr., and
Beltra Jr. Plaintiff sought damages for breach of contract against
Grand Stone and the individual guarantors, together with
injunctive relief for their default under the security agreement.
As to Innovative, Beltra Sr., and Beltra Jr., plaintiff alleged
that they had tortiously interfered with plaintiff's agreement
with Grand Stone by converting the materials that were covered by
the security agreement to their own use and then selling them.
Plaintiff thereafter filed a motion for summary judgment
against Grand Stone and the individual guarantors, and these
defendants did not oppose plaintiff's motion. On August 10, 2010,
the trial court granted plaintiff's motion and entered judgment
6 A-2984-15T4
in its favor against Grand Stone and the individual guarantors in
the amount of $5,396,559.76.
Thereafter, plaintiff's remaining claims against Innovative,
Beltra Sr., and Beltra Jr. remained pending. In early 2015,
plaintiff filed an amended complaint in which it again asserted
that defendants tortiously interfered with its contract with Grand
Stone by converting the materials that were subject to its security
interest to defendants' own use and selling them.
In December 2015, defendants filed a motion for summary
judgment against plaintiff. As previewed above, defendants'
account of the transactions was completely inconsistent with that
presented by plaintiff.
According to defendants, Beltra Sr. and Beltra Jr. were
exclusively involved in "the ceramic tile aspect of the business"
previously conducted by the Beltra family through the Bel-Stone
companies. Beltra Sr. was in charge of one of these companies,
which was called Bel-Ceramic, and Beltra Jr. worked for him as a
sales manager. When the Bel-Stone companies defaulted on the bank
loan, defendants allege that the ceramic tile they owned was housed
in a warehouse in Newark.
Defendants allege that they were not parties to the agreement
between plaintiff and Grand Stone under which plaintiff agreed to
buy the inventory at the auction and then sell it to Grand Stone.
7 A-2984-15T4
However, Beltra Jr. asserted that one of plaintiff's owners,
Francisco Meleiro, was short on cash and was seeking loans from
friends and members of the Beltra family to bid on the building
materials.
Beltra Jr. alleged that he then approached Meleiro and offered
to pay him $375,000 for the ceramic tile portion of the inventory
if plaintiff was the successful bidder at the auction. Beltra Jr.
stated that Meleiro agreed on plaintiff's behalf. Beltra Jr.
contended that he then cashed out a retirement account and borrowed
money from a bank and his family to get the funds needed to pay
Meleiro the $375,000. He also asserted that he was the individual
who gave this check to plaintiff's attorney. Other than the check,
Beltra Jr. presented no documentation evidencing this transaction.
When Meleiro was not the winning bidder, he allegedly told
Beltra Jr. that he would try to buy the inventory from Perez,
including the ceramic tile that Beltra Jr. wanted. According to
Beltra Jr., Meleiro stated that he would give the ceramic tile to
Beltra Jr. if he was able to consummate the deal in return for the
$375,000 Beltra Jr. had already paid. If the deal fell through,
Meleiro agreed to return these funds to Beltra Jr.
When Meleiro was able to purchase all of the building
materials from Perez, Beltra Jr. stated that he believed the
ceramic tile in the Newark location belonged to him and
8 A-2984-15T4
Innovative.2 He also argued that he had no knowledge of the
security agreement plaintiff entered into with Grand Stone and the
individual guarantors. Instead, Beltra Jr. claimed that he took
possession of the ceramic tile within ten days of the date of the
auction.
Beltra Jr. stated that he subsequently sold some of the tile
to customers, including a company called Golden Towers, which he
alleged was owned by Meleiro. Thus, defendants argued that they
did not improperly convert the tile to their own use, or tortiously
interfere with plaintiff's contract with Grand Stone.
Based upon the parties' widely divergent factual
presentations, the trial judge concluded, after oral argument on
February 9, 2016, that summary judgment was inappropriate. In a
thorough oral opinion, the judge found that the legal issues raised
by plaintiff's tortious interference and conversion claims "should
not be decided summarily because [the parties'] state-of-mind and
intent is something that's not capable of being determined on
summary judgment." The judge also stated that there were "obvious
evidentiary inconsistencies and infirmities" in the motion record,
which could only be resolved at trial.
2
Beltra Jr. also asserted that his father, Beltra Sr., had never
been an officer of Innovative.
9 A-2984-15T4
On March 13, 2016, the trial judge issued a "clarifying
order," noting that his denial of defendants' motion for summary
judgment was final for purposes of appellate review because the
parties had agreed that any issues remaining between them would
"be decided by way of binding arbitration." This appeal followed.
On appeal, defendants assert that the trial judge erred by
denying their motion for summary judgment. We disagree.
In deciding motions for summary judgment, like the trial
court, we review "the competent evidential materials submitted by
the parties to identify whether there are genuine issues of
material fact and, if not, whether the moving party is entitled
to summary judgment as a matter of law." Bhagat v. Bharat A.
Bhagat & Cranbury Hotels, LLC, 217 N.J. 22, 38 (2014); R. 4:46-2.
Summary judgment should be denied unless the moving party's right
to judgment is so clear that there is no room for controversy.
Akhtar v. JDN Props. at Florham Park, L.L.C., 439 N.J. Super. 391,
399 (App. Div.), certif. denied, 221 N.J. 566 (2015).
The trial court and the reviewing court must view the evidence
in the light most favorable to the non-moving party. Manahawkin
Convalescent v. O'Neill, 217 N.J. 99, 115 (2014). This means
summary judgment should be denied if the competent evidential
materials, viewed in the light most favorable to the non-moving
party, permit a rational factfinder to resolve the disputed issue
10 A-2984-15T4
of material fact in favor of the non-moving party. Townsend v.
Pierre, 221 N.J. 36, 59 (2015).
The court's function is not to weigh the evidence to determine
the final outcome, but only to decide if a material dispute of
fact exists. Suarez v. E. Int'l Coll., 428 N.J. Super. 10, 27
(App. Div. 2012), certif. denied, 213 N.J. 57 (2013). It is not
the judge's role to assess credibility or determine the truth of
the evidence, DeWees v. RCN Corp., 380 N.J. Super. 511, 522 (App.
Div. 2005), or to examine whether the preponderance of the evidence
weighs towards one side or the other, Mandel v. UBS/PaineWebber,
Inc., 373 N.J. Super. 55, 71 (App. Div. 2004), certif. denied, 183
N.J. 213 (2005). A motion judge may not abrogate the jury's
exclusive role as the finder of fact. Suarez, supra, 428 N.J.
Super. at 27.
Applying these principles, we discern no basis to disturb the
trial judge's reasoned determination that summary judgment was
inappropriate in this case. As discussed above, the parties could
not agree on any of the critical aspects of the transactions that
led to plaintiff, Grand Stone, and defendants coming into
possession of the building materials formerly owned by the Bel-
Stone companies. On the one hand, plaintiff alleged that
Innovative wrongfully took possession of ceramic tile from Grand
Stone's inventory and began selling it even though plaintiff had
11 A-2984-15T4
a security interest in this property. On the other hand, Beltra
Jr. asserted that he bought the ceramic tile from plaintiff and,
therefore, defendants had every right to dispose of these materials
in any way they wished.
When, as here, the determination of material disputed facts
depends primarily on credibility evaluations, summary judgment
should not be granted. Petersen v. Twp. of Raritan, 418 N.J.
Super. 125, 132 (App. Div. 2011). Therefore, we affirm the trial
judge's denial of defendants' motion.
Affirmed.
12 A-2984-15T4