NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-3638-23
ASTRANZA, INC.,
Plaintiff-Respondent,
v.
MOD LIFESTYLES, LLC,
Defendant-Appellant,
and
IVENA PINTO,
Defendant. ________________________
Submitted April 20, 2026 – Decided May 19, 2026
Before Judges Natali and Walcott-Henderson.
On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-7261-16.
Sangwon D. Sohn, attorney for appellant.
Blick Law LLC, attorneys for respondent (Shaun I. Blick and Brett M. Lederer, on the brief). PER CURIAM
In this breach of contract action, defendant Mod Lifestyles, LLC (Mod)
appeals from the court's June 5, 2024 judgment in favor of plaintiff Astranza,
Inc., awarding damages in the amount of $785,136.85 following a bench trial.1
Plaintiff, a broker of home décor items sourced from India, sued defendant
sellers for failing to pay hundreds of thousands of dollars for products delivered
to defendant for resale. Defendant primarily contends the court erred in the
following ways: misapplying the Uniform Commercial Code (UCC), N.J.S.A.
12A:2-301, -602, -606, to the parties' transactions; improperly treating alleged
consignment agreements as sales contracts; finding liability for breach of
contract and conversion; and rejecting defendant's affirmative defenses. For the
reasons that follow, we affirm.
I.
Plaintiff is a corporation that sources home textile products from vendors
in India through its registered agent and owner, Sailesh Lunani. Defendant is a
New Jersey home décor company that designs and sells products such as pillows,
1 Defendant Ivena Pinto was also sued in her individual capacity, however, following trial, the court dismissed with prejudice all claims against her as an individual. Accordingly, the term "defendant" refers to Mod, unless otherwise noted. A-3638-23 2 cushion covers, placemats, and shower curtains to major retailers in the United
States, including Macy's, Bed Bath & Beyond, and TJ Maxx.
Beginning in 2015, the parties entered into several commercial
agreements under which plaintiff sourced home textile goods from India and
sold them to defendant for resale in the United States. There is no dispute that,
between April and October 2015, the parties executed approximately fifteen
purchase orders and corresponding invoices for various shipments of goods to
defendant. Although the purchase orders themselves lack clarity, we glean that
they established "legal agreement[s] between [plaintiff] and [defendant] []" that
govern the terms of each transaction.2
By late 2015, several disputes arose between the parties as defendant
complained of late deliveries and allegedly nonconforming goods. For example,
defendant complained that many of the decorative pillow covers lacked the
feather or polyester inserts necessary to make the products marketable , and
asserted that, to remedy the issue with the unfilled pillows, plaintiff agreed to
arrange for another company, Zig-Zag, to provide the missing filler material.
However, plaintiff failed to pay to correct the defects, forcing defendant to incur
2 The purchase orders contain a number of grammatical and font errors which make it difficult to determine the precise terms governing each transaction. A-3638-23 3 additional expenses by making direct payments to Zig-Zag to complete the
products for retail sale. According to defendant, of the fifteen purchase orders,
five were for the "straight" sale of goods, for which they paid $179,116.90 to
plaintiff, $123,956.00 to plaintiff's vendors in India, and $180,838 directly to
Zig-Zag, amounting to $483,910.90. The remaining ten purchase orders alleged
by defendant to be for consignment totaled $719,116.90.
By contrast, plaintiff maintained that defendant sampled and approved the
products before shipment, accepted the goods without timely rejection, and
thereafter retained, used, and sold them while withholding payment. In its brief,
plaintiff further asserted that the fifteen purchase orders and related invoices
totaled $956,806.90 and that after agreed upon deductions, defendant still owed
$785,136.85.
On February 15, 2016, after defendant raised concerns that plaintiff had
not paid the underlying vendors, and at defendant's request, plaintiff issued an
"Assurance of Payment to Vendors" letter confirming that payments received
from defendant pursuant to the agreed installment schedule in February, March,
and April 2016 would be used to satisfy vendor obligations. The letter further
provided that, except for Purchase Order No. 100264, which involved goods that
A-3638-23 4 "didn't meet" the parties' quality standards, payment terms were governed by the
parties' agreed schedule tied to the anticipated sale of the products.
On March 3, 2016, Lunani emailed Ivena Pinto, Mod's principal, stating,
"I haven't heard back from you and it's getting very difficult to answer to [one
of the vendors] and the discussion is getting into threat." Three months later,
plaintiff asserted that defendant had only paid $199,000 towards the total
invoiced amount and still owed $785,136.85.
On June 21, 2016, plaintiff, through counsel, sent defendant a formal
demand letter seeking payment of the outstanding balance of $785,136.85 in
addition to $27,330.15 for excess filler that was delivered to defendant within
ten business days. The letter further asserted that defendant promised to make
installment payments but failed to do so and was withholding payment despite
having sold the goods.
Plaintiff filed a complaint against defendant and Ivena on October 11,
2016, which was amended approximately two weeks later. 3 The amended
complaint alleged the following: breach of contract; breach of the implied
covenant of good faith and fair dealing; unjust enrichment; fraud; and tortious
3 Because Ivena and Conrad share the same last name (Pinto), we refer to them by their first name for clarity, intending no disrespect. A-3638-23 5 interference with contractual relations. Plaintiff also sought to recover payment
of unpaid invoices and attorneys' fees. In its answer, defendant asserted several
affirmative defenses and counterclaims, including that the parties modified their
agreement and that plaintiff accepted the goods under the relevant provisions of
the UCC.
Following years of discovery and various pre-trial motions, the matter was
scheduled for a bench trial before Judge Nicholas Ostuni on March 11, 2024.4
Lunani testified on behalf of plaintiff and defendant presented the testimony of
Ivena and Conrad Pinto, her husband, who testified that he was a member of
Mod but not otherwise involved in its day-to-day operations. Lunani testified
that she brokered the transactions on behalf of her company and the
manufacturers and acknowledged that, as problems developed, defendant made
certain direct payments to Zig-Zag and certain other vendors in order to make
certain products ready for its retail clients, which the court later credited as being
$167,604.75.
4 The record shows that prior to trial defendant had moved for summary judgment, arguing plaintiff did not have standing to pursue their action due to the loss of plaintiff's certificate of incorporation, which was revoked in January 2017, which although initially granted, the court reinstated plaintiff's complaint following reinstatement of plaintiff's corporate charter in July 2021.
A-3638-23 6 Lunani further testified, however, that defendant expressly acknowledged
receipt of the goods and agreed to a structured payment plan for the outstanding
invoices. Specifically, he explained that during a January 2016 meeting with
Pinto, "we did a recap of all the [purchase orders] as per our receiving," which
he clarified meant "a confirmation from [defendant] that they did receive the
goods." He further testified that Ivena prepared a detailed schedule identifying
when the goods would be sold and payments would be made.
According to Lunani, this payment schedule reflected a negotiated
agreement under which defendant would remit installment payments tied to the
resale of the goods, and that these terms were "based on the payment schedule
which was provided by [Ivena]." Lunani also explained that, at Ivena's request,
plaintiff issued an "assurance" letter confirming that vendor payments would be
satisfied, and stated that "post-this letter I think I've started getting some partial
payments from [defendant]," demonstrating that defendant conditioned payment
on such assurances while still failing to satisfy the full balance owed. He
emphasized that this arrangement reflected efforts by plaintiff to accommodate
defendant's demands to secure payment.
Conrad testified primarily about defendant's corporate structure,
describing himself as merely "a silent partner" who was "not involved in the
A-3638-23 7 business at all," while Ivena alone operated the company. He further testified
that defendant remained an operating business and filed tax returns through
2019.
Ivena testified that the parties also had a consignment arrangement under
which payment was not required unless and until the goods were sold, and that
defendant was entitled to offsets for late deliveries, nonconforming goods, and
substantial storage costs allegedly incurred in holding unsold inventory. She
also testified that she asked plaintiff to retrieve unsold goods and maintained
that defendant's handling of the merchandise was consistent with plaintiff's
ownership rights, not adverse to them. She further noted that many shipments
arrived late, causing defendant to miss the 2015 Christmas selling season, and
that several of the decorative pillows arrived unfilled or were made of "cheap
Chinese polyester fabric." According to Ivena, defendant was required to pay
approximately $180,838 to Zig-Zag and $123,956 to a separate vendor in India
to fill some of the pillows to prepare them for sale, which plaintiff's estimated
damages failed to account for.
At the conclusion of the presentation of the evidence, Judge Ostuni issued
a written decision entering judgment in plaintiff's favor and dismissing with
prejudice all claims against Ivena individually. The court found plaintiff had
A-3638-23 8 established both breach of contract and conversion. Relying on the purchase
orders and corresponding invoices, the court credited plaintiff's testimony that
its vendors shipped goods to defendant for which payment remained
outstanding. The court determined that, from a total amount of $983,836.90 and
after crediting $199,000 in partial payments, defendant owed $785,136.85. The
court further credited defendant for paying $167,604.75 directly to vendors on
plaintiff's behalf, thus, resulting in a final judgment of $617,532.10 awarded to
plaintiff.
As to plaintiff's conversion claim, the court reasoned that defendant
exercised control over plaintiff's property by retaining and selling the goods
without remitting payment or returning them. However, the court declined to
award separate damages on the conversion claim, concluding that "the costs of
these goods [have] already been taken into account by this [c]ourt in its
damages" pertaining to plaintiff's breach of contract claim. The court rejected
plaintiff's remaining counts, finding that the record did not support plaintiff's
fraud, breach of the covenant of good faith and fair dealing, or tortious business
interference claims. The court also found the claim for unjust enrichment moot
in light of its finding defendant had breached the parties' contract.
A-3638-23 9 The court further found unpersuasive defendant's claims that certain goods
were "not of the right quality" and had been rejected years after delivery, noting
the absence of contemporaneous records, sales documentation, or credible
evidence regarding the alleged storage fees or destruction of goods. The court
further rejected defendant's contention that it had no obligation to pay for certain
goods, which were under consignment, concluding instead that defendant
accepted the goods under the UCC by retaining and selling them without
effectuating a timely or proper rejection. The court reasoned that the two
purchase orders characterized as consignments, resulted in a breach of the
agreement by defendant because defendant neither remitted payment for the
goods they sold nor rejected and returned the unsold merchandise to plaintiff.5
The court found defendant's claim that it attempted to have plaintiff retrieve the
remaining goods was unsupported by the record and therefore not credible.
In determining damages, the court off-set plaintiff's damages by deducting
defendant's direct payments to vendors "on behalf of plaintiff," in the amount of
$167,604.75, based on documentary evidence of those payments. However, the
court declined to apply any other credits where defendant offered no evidence
5 Of the ten purchase orders that defendant alleged were consignments, the court specifically referenced two purchase orders (Nos. 100256 & 100258) that it found were in fact goods that were subject to consignment. A-3638-23 10 additional expenses were incurred and paid. The court similarly rejected
defendant's counterclaims for storage fees, late-delivery deductions, or damages
related to alleged defective goods on the same basis, citing a lack evidentiary
support for those claims.
Finally, the court found no basis to pierce defendant's corporate veil,
concluding there was "no evidence" that Ivena or Conrad intermingled personal
and corporate assets or used defendant to perpetrate fraud. This appeal
followed.
II.
When reviewing a decision in a non-jury trial matter, we "give deference
to the trial court that heard the witnesses, sifted the competing evidence, and
made reasoned conclusions." Griepenburg v. Twp. of Ocean, 220 N.J. 239, 254
(2015) (citing Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474,
483-84 (1974)). "[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, SLA, 205 N.J. 150, 169 (2011) (second alteration in original) (quoting In
re Trust Created by Agreement Dated Dec. 20, 1961, ex rel. Johnson, 194 N.J.
A-3638-23 11 276, 284 (2008)). In reviewing the judge's findings, this court "do[es] not weigh
the evidence, assess the credibility of witnesses, or make conclusions about the
evidence." Mountain Hill, LLC v. Twp. of Middletown, 399 N.J. Super. 486,
498 (App. Div. 2008) (quoting State v. Barone, 147 N.J. 599, 615 (1997)). We,
however, owe no deference to the judge's interpretation of the law and the legal
consequences that flow from established facts. Manalapan Realty, LP v. Twp.
Comm. of Manalapan, 140 N.J. 366, 378 (1995).
Moreover, "[i]nterpretation and construction of a contract is a matter of
law for the court subject to de novo review," at the appellate level. Fastenberg
v. Prudential Ins. Co., 309 N.J. Super. 415, 420 (App. Div. 1998) (citing
Bradford v. Kupper Assocs., 283 N.J. Super. 556, 583 (App. Div. 1995)). We
therefore decide such purely legal questions without deferring to a lower court's
"interpretation of the law and the legal consequences that flow from established
facts." Manalapan Realty, 140 N.J. at 378 (citing State v. Brown, 118 N.J. 595,
604 (1990)); see also Zaman v. Felton, 219 N.J. 199, 216 (2014).
When interpreting a contract, the court should consider the plain language
of the contract, the circumstances surrounding the contract, and the contract's
purpose. Highland Lakes Country Club & Cmty. Ass'n v. Franzino, 186 N.J.
99, 115-16 (2006). "[W]here the terms of a contract are clear and unambiguous
A-3638-23 12 there is no room for interpretation or construction and the courts must enforce
those terms as written." Karl's Sales & Serv., Inc. v. Gimbel Bros., 249 N.J.
Super. 487, 493 (App. Div. 1991) (citing Kampf v. Franklin Life Ins. Co., 33
N.J. 36, 43 (1960)). Courts should not "rewrite a contract for the parties better
than or different from the one they wrote for themselves." Kieffer v. Best Buy,
205 N.J. 213, 223 (2011) (citing Zacarias v. Allstate Ins. Co., 168 N.J. 590, 595
(2001)).
When, however, ambiguous terms exist in a contract, "courts will consider
the parties' practical construction of the contract as evidence of their intention
and as controlling weight in determining a contract's interpretation." Cnty. of
Morris v. Fauver, 153 N.J. 80, 103 (1998). "Having found an ambiguity, 'a court
may look to extrinsic evidence as an aid to interpretation[.]'" Porreca v. City of
Millville, 419 N.J. Super. 212, 232 (App. Div. 2011) (alteration in original)
(quoting Chubb Custom Ins. Co. v. Prudential Ins. Co. of Am., 195 N.J. 231,
238 (2008)).
To establish a claim for breach of contract, a plaintiff must prove (1) they
had a valid contract; (2) they did what the contract required them to do; (3) the
defendant failed to perform a defined obligation under the contract; and (4)
defendant's breach caused a loss to plaintiff. Goldfarb v. Solimine, 245 N.J.
A-3638-23 13 326, 338 (2021). Pursuant to general contract principles, if one party commits
a "breach of a material term of an agreement, the non-breaching party is relieved
of its obligations under the agreement. . . . [A] breach is material if it 'goes to
the essence of the contract.'" Roach v. BM Motoring, LLC, 228 N.J. 163, 174
(2017) (first quoting Nolan v. Lee Ho, 120 N.J. 465, 472 (1990); and then
quoting Ross Sys. v. Linden Dari-Delite, Inc., 35 N.J. 329, 341 (1961)).
Whether a breach is material is a question of fact. Chance v. McCann, 405 N.J.
Super. 547, 566 (App. Div. 2009).
Before us, defendant principally argues the court erred in finding a breach
of contract. Defendant contends that no breach occurred because the parties'
agreements were governed, at least in part, by consignment terms under which
"no payment [was] required for unsold goods." Additionally, defendant posits
that many of the goods sourced by plaintiff arrived late, defective, or incomplete,
and were, therefore, unavailable for sale during the critical 2015 holiday season.
Although the parties do not dispute the existence of contractual
agreements, the record reflects that those agreements were not models of clarity.
Nevertheless, the trial court properly discerned the parties' intent by examining
the agreements' language and the surrounding circumstances in accordance with
A-3638-23 14 established principles of contract interpretation. Barila v. Bd. of Educ. of
Cliffside Park, 241 N.J. 595, 615 (2020).
Guided by these well-established contract principles and considering the
deferential standard of review applicable to judgments following bench trials,
we reject defendant's challenges and affirm as modified the court's reasoned
judgment substantially for the reasons stated in Judge Ostuni's thorough
decision. We add the following comments to amplify our analysis and to correct
a minor mathematical error in the damages award.
A.
Among the purchase orders at issue, each order expressly states that it "is
considered as a legal agreement between the Vendor/Seller and [defendant],"
and sets forth the specific goods to be sourced, along with corresponding
quantities, pricing, and delivery terms. The purchase orders further required
timely confirmation of cost and delivery, providing that "the cost and delivery
given on the [purchase order] is considered final and binding." They also
imposed a structured system of accountability for delays, including automatic
price deductions and additional remedies for extended delays, as well as
clarifying vendor responsibility for "all loss of sales chargeback" resulting from
failed shipments.
A-3638-23 15 Consistent with this express language, as well as the parties' conduct
reflected in the record and briefs, we can fairly discern that the parties entered
into a commercial enterprise whereby plaintiff sourced goods from vendors in
India for sale to defendant, which defendant then sold to various retail stores.
This is not disputed. The court concluded as much, noting that "these
transactions were recorded through fifteen separate purchase orders and
invoices." In reaching its decision, the court examined each of the purchase
orders based on Lunani's testimony, which it found to be "highly credible," and
determined that defendant owed $785,136.85 based on the documentary
evidence presented.
The court further credited Lunani's persuasive testimony that the final
purchase price and payment terms for each purchase order and invoice were
adjusted over time to account for shifting shipment schedules, product quality,
and the involvement of third parties such as Zig-Zag. The court next addressed
testimony concerning each purchase order and the parties' efforts to ensure the
goods, including the decorative pillows, met appropriate quality standards and
were properly filled for retail sale. The court explained that, with respect to at
least one purchase order, an adjustment was warranted to account for defendant's
receipt of goods that were of inferior quality and therefore had to be sold at a
A-3638-23 16 discount. Additionally, the court properly credited defendant for three payments
totaling $199,000, as well as payments made directly to vendors to complete
goods for resale.
The court, however, rejected as "wholly unsubstantiated" defendant's
counterclaim for storage fees. On this point, the court amply noted the lack of
evidence showing that any such payments were made by defendant "for the
purpose of storing plaintiff's goods," and that the invoices relied upon to
establish the payment of storage fees had been counted multiple times.
We are satisfied that the court, having heard the evidence adduced by the
parties and observed the witnesses, was in the best position to make its factual
determinations based on the "credible evidence in the record." Motorworld, Inc.
v. Benkendorf, 228 N.J. 311, 329 (2017) (citing D'Agostino v. Maldonado, 216
N.J. 168, 182 (2013)). The court found Lunani's testimony credible regarding
the formation of the parties' agreements, the shipment of goods pursuant to
fifteen purchase orders, and defendants' failure to remit payment for those
goods, while also rejecting defendant's contrary assertions as unsupported,
inconsistent, and lacking in documentary corroboration. Under these
circumstances, we are hard pressed to conclude the court erred in finding
defendant breached the parties' contractual agreements by failing to remit timely
A-3638-23 17 payments for goods received, and that such a breach caused substantial
identifiable damages to plaintiff.
We are also unpersuaded by defendant's affirmative defenses and
counterclaims of late delivery, nonconforming goods, and offsets. As the court
noted, defendant failed to support these claims with competent evidence or
credible testimony, thus, the court did not err in rejecting them. Moreover, we
are satisfied that the court properly credited defendant for payments made
directly to certain vendors to complete products for sale in the retail market. We
nevertheless conclude that, with respect to defendant's demand for storage costs,
the court correctly determined those claims were "wholly unsubstantiated" and
unsupported by reliable evidence.
B.
Defendant asserts that the court erred by failing to recognize that certain
transactions involved the sale of goods on consignment and misapplied the
UCC's "acceptance" principles. Even accepting defendant's contention that
certain transactions involved consignment of goods, which was not entirely
disputed, the governing principles do not alter the outcome because defendant
failed to return the goods or otherwise comply with its obligations under either
framework.
A-3638-23 18 A consignment is created when a wholesaler "consigns [goods] to a
[merchant] on 'memorandum,' to enable the [merchant] to show [the goods] to a
prospective purchaser and if . . . bought, to deliver them to such purchaser and
to collect the retail price, paying the [consignor its asking price], and retaining
the difference between these prices as the [merchant's] own profit." See Charles
Bloom & Co. v. Echo Jewelers, 279 N.J. Super. 372, 380 (App. Div. 1995)
(quoting Kittay v. Cordasco, 103 N.J.L. 156, 157 (E. & A. 1926)). In the event
that the "'prospect' does not purchase, then [the merchant will] return the [goods]
to the [consignor.]" Ibid. Any "disposition of [consigned] property," by the
merchant, "without authority constitutes a breach of the [consignment]
agreement and a conversion." Ibid. (citing Winkler v. Hartford Acc. & Indem.
Co., 66 N.J. Super. 22, 27 (App. Div. 1961)); see also N.J.S.A. 12A:9-102(a)(19)
to (21) (defining "consignee," "consignment," and "consignor").
In a transaction for the sale of goods, as our Supreme Court has
recognized, "the UCC preserves the perfect tender rule to the extent of
permitting a buyer to reject [a] good[] for a[] nonconformity." Ramirez v.
Autosport, 88 N.J. 277, 290 (1982). To reject goods, the purchaser must notify
the seller "within a reasonable time after their delivery." N.J.S.A. 12A:2-602(1).
Under N.J.S.A. 12A:2-508(1), "[w]here any tender or delivery by the seller is
A-3638-23 19 rejected because non-conforming and the time for performance has not yet
expired, the seller may seasonably notify the buyer of [its] intention to cure and
may then within the contract time make a conforming delivery."
Once goods are accepted, the buyer "must pay at the contract rate."
N.J.S.A. 12A:2-607(1). Moreover, "[a]cceptance of goods by the buyer
precludes rejection of the goods accepted." N.J.S.A. 12A:2-607(2). Thus, even
where goods are allegedly late, incomplete, or nonconforming, a buyer that
retains and uses them without timely rejection is deemed to have accepted them
and is limited to whatever remedies remain available for accepted goods. See
N.J.S.A. 12A:2-606(1)(c); N.J.S.A. 12A:2-607(2); Ramirez, 88 N.J. at 289-90.
The court rejected defendant's contention that it did not accept the goods,
finding instead that defendant "accepted the goods under the UCC" by retaining
them without effectuating a proper rejection, and further acknowledging that
defendant "sold some of the goods, but could not establish how many . . . to
whom, and at what price," while never returning the remainder. In New Jersey,
the UCC governs the way in which a buyer must act to effectively exercise its
right to accept and reject tendered goods. See N.J.S.A. 12A:2-602, -606. While
the court acknowledged that at least two of the purchase orders were structured
as consignments, it nevertheless found that defendant "accepted a
A-3638-23 20 bailment/agency relationship with the goods and plaintiff" and that,
"[a]ccordingly, if defendant[] wished to 'reject' the goods, as they claim to have,
they could have simply returned them to plaintiff, who were the rightful owners
pursuant to the consignment arrangement." However, because "both parties
testified defendant[] failed to do so," the court properly concluded that
defendant's "failure to properly reject the goods[] constituted acceptance of the
goods," as a consignee cannot retain goods indefinitely without payment or
return. See Charles Bloom, 279 N.J. Super. at 380.
Defendant concedes that at least some of the agreements were traditional
purchase orders and thus governed by Article 2 of the UCC. As to those
transactions, its retention and resale of the goods without timely rejection
constituted acceptance. See N.J.S.A. 12A:2-606(1)(c), -607(2).
C.
We next address defendant's contention the court erred in finding that
plaintiff established a claim for conversion.
"Conversion [is] defined as 'an unauthorized assumption and exercise of
the right of ownership over goods or personal chattels belonging to another, to
the alteration of their condition or the exclusion of an owner's rights.'" LaPlace
v. Briere, 404 N.J. Super. 585, 595 (App. Div. 2009) (quoting Barco Auto
A-3638-23 21 Leasing Corp. v. Holt, 228 N.J. Super. 77, 83 (App. Div. 1988)). Conversion
does not require intent or knowledge of wrongfulness by the defendant but only
"'the wrongful exercise of dominion and control over property owned by another
inconsistent with the owners' rights.'" Ibid. (quoting Sun Coast Merch. Corp. v.
Myron Corp., 393 N.J. Super. 55, 84 (App. Div. 2007)).6
Here, the court found defendant retained possession of plaintiff's goods,
sold at least a few of them, and failed to return or adequately account for those
goods that were not sold. The court reasoned that plaintiff satisfied the elements
of its conversion claim by establishing that defendant wrongfully exercised
dominion and control over property owned by plaintiff in a manner that was
inconsistent with the owners' rights. We glean from the record that defendant
acknowledged selling certain goods, and, as the court found, "plaintiff
eventually made a demand for the property or compensation for the goods in
return," and that demand was "wrongfully denied." The court further found
defendant was unable to produce reliable record identifying what specific goods
remained, were sold or were destroyed. Ivena's testimony confirmed that some
goods were sold, and defendant's inability to produce reliable records
6 See also Charles Bloom, 279 N.J. Super. at 380 (in a consignment "[t]he bailee's disposition of bailed property without authority constitutes a breach of the bailment agreement and a conversion."). A-3638-23 22 identifying what remained, was sold, or was destroyed further demonstrated
control over the goods inconsistent with plaintiff's ownership rights.
We also remain unpersuaded that the absence of a formal pre-suit demand
defeats the conversion claim, as defendant's conduct—particularly the sale and
use of the goods—constitutes an exercise of control inconsistent with plaintiff's
ownership rights. The court also properly declined to award separate damages
on the conversion claim because the breach-of-contract award fully
compensated plaintiff for the value of the goods, rendering any additional
recovery duplicative. See Battaglia v. United Parcel Serv., Inc., 214 N.J. 518,
562 (2013).
D.
We now turn to briefly address plaintiff's contention the court erred in
declining to impose individual liability on Ivena as an officer serving on behalf
of Mod.
Piercing the corporate veil is an equitable remedy employed "to prevent
an independent corporation from being used to defeat the ends of justice, to
perpetrate fraud, to accomplish a crime, or otherwise to evade the law." State,
Dept. of Environmental Protection v. Ventron Corp., 94 N.J. 473, 500 (1983).
Courts generally will not pierce the corporate veil, absent extraordinary
A-3638-23 23 circumstances such as fraud or injustice. Ibid. The party seeking to pierce the
corporate veil "bears the burden of proving that the court should disregard the
corporate entity." Tung v. Briant Park Homes, Inc., 287 N.J. Super. 232, 240
(App. Div. 1996).
Here, the trial court properly found that plaintiff failed to meet that
burden. At the outset, the court explained that "[defendant] is a viable
corporation which adheres to a legal and legitimate corporate structure ," as
evidenced by the documents produced by Ivena. With respect to Ivena, the court
found there to be a lack of evidence "establish[ing] that [she] and/or [Conrad]
intermingled their own funds, property, or assets with [defendant], or that
[defendant] was inadequately funded." The court found no evidence that Ivena
used defendant Mod "to perpetrate fraud, to accomplish a crime, or otherwise to
evade the law." We agree and have nothing further to add.
In sum, we affirm the court's June 5, 2024 judgment following trial,
finding defendant liable for breach of contract and conversion, rejecting
defendant's defenses and counterclaims, and declining to impose individual
liability on Ivena. We, however, part ways with the court's mathematical
calculation of damages owed to plaintiff. From our calculation, the court’s
otherwise sound methodology contains a minor discrepancy of approximately
A-3638-23 24 $299.95. We arrive at this variance by subtracting the $199,000 in partial
payments from the total invoiced amount of $983,836.90, yielding $784,836.90,
rather than $785,136.85 as found by the court. We then apply the $167,604.75
credit for payments made directly to vendors, resulting in damages of
$617,232.15, not $617,532.10. Accordingly, we affirm the judgment in favor of
plaintiff as modified to include damages of $617,232.15.
To the extent we have not addressed an issue raised by defendant, it is
because it lacks sufficient merit to warrant discussion in a written opinion. R.
2:11-3(e)(1)(E).
Affirmed as modified.
A-3638-23 25