OLUSEGUN AWONUSI VS. KENNETH YABOH (C-000128-17, HUDSON COUNTY AND STATEWIDE)

• Court: New Jersey Superior Court Appellate Division
• Decided: March 5, 2020
• Docket: A-3023-18T1
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-3023-18T1

OLUSEGUN AWONUSI,

Plaintiff-Respondent,

v.

KENNETH YABOH,

Defendant-Respondent,

and

FAMEK MANAGEMENT CORP.,

Defendant-Appellant. _______________________________

Submitted February 24, 2020 – Decided March 5, 2020

Before Judges Sabatino and Geiger.

On appeal from the Superior Court of New Jersey, Chancery Division, Hudson County, Docket No. C-000128-17.

Alter & Barbaro, attorneys for appellant (Do Kyung Lee, of counsel and the briefs). Stephen S. Berowitz, attorney for respondent Olusegun Awonusi (Stephen S. Berowitz, of counsel and on the brief).

PER CURIAM

This case arises out of a scheme to transfer an absent owner's title to real

property without his authorization. After a non-jury trial, the court concluded

that defendant Kenneth Yaboh breached his fiduciary duties to the absent owner,

plaintiff Olusegun Awonusi, and defrauded him by transferring Awonusi's

parcel to co-defendant Famek Management Corp. ("Famek"). The court

additionally found that Yaboh and Famek were jointly liable to Awonusi for

conversion, and had been unjustly enriched. The court accordingly rescinded

the property transfer, restored title to Awonusi, and found Yaboh, who had

defaulted in the case, liable for $100,000 in punitive damages.

Famek appeals, contending the trial court misapplied legal and equitable

principles in finding liability and rescinding the transfer. Among other things,

Famek argues it appropriately relied on a power of attorney presented by Yaboh

in acquiring the property. Famek also contends it did not engage in conversion

and was not unjustly enriched. We affirm.

I.

Awonusi is a professor of English linguistics who currently teaches and

A-3023-18T1 2 resides in Nigeria. In October 2011, he purchased real property located on Van

Nostrand Avenue in Jersey City, for $100,000. Awonusi intended to stay at the

property when visiting his children in the United States. Because he was living

abroad, Awonusi asked his friend Yaboh to help him find a property and

represent him during the purchase.

Awonusi subsequently entrusted Yaboh to manage the property in his

absence. According to Yaboh, he found a tenant for the first-floor unit and was

responsible for collecting rent, which was to go towards taxes and maintenance.

When Yaboh asked Awonusi for more money to perform additional repairs,

Awonusi sent the requested funds. Yaboh presented Awonusi with a June 28,

2012 letter, purportedly documenting receipt and deposit of this money into an

attorney escrow account. The letter was addressed to Weichert Realtors from

Emmanuella M. Agwu, Esq. 1 However, Yaboh admitted at trial that he forged

the letter and kept the money. Awonusi was unaware of Yaboh's deception at

the time.

1 The record is unclear about the exact nature of Yaboh's arrangement with Agwu and Weichert Realtors. However, Yaboh testified that "most of the purchases" related to maintenance of the property were paid through Agwu's escrow account. A-3023-18T1 3 That same year, Awonusi decided he wanted to sell the Van Nostrand

property and once again enlisted Yaboh to represent him in the transaction.

Awonusi granted Yaboh a power of attorney, witnessed by a Nigerian attorney,

with specific terms limited to a real estate sale. Yaboh later informed Awonusi

that a new power of attorney, signed and notarized at the U.S. Consulate, was

needed.

On January 28, 2013, Awonusi executed this second power of attorney

with substantially the same terms. The document gave Yaboh the authority:

a. To execute contracts, deeds, affidavits, survey affidavits, RESPA, IRS 1099 and all forms and documents required in connection with the sale by me of my real property located and described as follows: 211 Van Nostrand Ave Jersey City 07305, also known as Lot 4 Block 26401, State of New Jersey.

b. To attend the closing of title and deliver the deed, affidavit of title, survey affidavit, and other closing forms and documents;

c. To represent me in all respects at the closing including but not limited to the negotiation, payment and settlement of all adjustments, liens, claims and encumbrances;

d. To receive all proceeds from the sale of the property, including any refund of escrow funds or other mortgage payments;

A-3023-18T1 4 e. To forward to me all of the funds received from the sale of the property, after the payment of attorney fees to my attorney;

f. To do all acts that I might or could have done in the sale of the property.

In November 2012, unbeknownst to Awonusi, Yaboh used the Van

Nostrand property as collateral for a $35,000 loan from Famek, a New York

corporation solely owned by Frank Emeka. Yaboh testified he needed the

money to fund a separate and personal business matter regarding his gas station.

As a result, the loan was made out to Yaboh's corporation, ETI Petroleum Inc.

("ETI Petroleum"). Yaboh and Emeka struck an oral agreement, providing that,

in exchange for the $35,000 loan, Yaboh would repay Famek $45,000 three

months later. If Yaboh failed to repay in full, Famek would pay Yaboh an

additional $35,000 and the collateral property would be transferred to Famek.

Yaboh characterized the deal as a "hard money" loan. No written loan

agreement was drawn up.

Famek is a real estate and property management company. Its principal,

Emeka, has been in the real estate business for over a decade. Although Emeka

is not a licensed money or mortgage lender, he testified that he sometimes will

loan money to friends and acquaintances in connection with real estate

transactions. Emeka met Yaboh through his friend Brent Blackman, a real estate

A-3023-18T1 5 broker with whom he had made previous deals. Emeka did not know Yaboh

prior to their agreement, but testified that he was willing to make the loan

because he trusted his connection, Blackman.

To prove ownership of the property, Yaboh presented Emeka with the

power of attorney, the deed, and a copy of the $100,000 cashier's check made

out to the previous owner's attorney, Michael Werner, Esq., remitted in Yaboh's

name. Based on these three documents, Emeka claimed he was satisfied that

Yaboh was the true owner of the property and had authority to use the property

as security for the loan. Emeka testified that he believed Awonusi was merely

a "straw buyer." He did not attempt to reach out to Awonusi to clarify this

supposed arrangement, testifying at trial that he "wasn't interested in who is the

owner to question it."

When Yaboh attempted to repay the loan on January 23, 2013, his check

bounced. Yaboh then requested the second power of attorney from Awonusi.

On March 7, 2013, Yaboh, ostensibly under the second power of attorney,

transferred Awonusi's property to Famek. The consideration recorded on the

deed was $0.00. No affidavit of title was presented. No contract of sal e was

executed. No formal inspection of the property was conducted. Famek wrote a

A-3023-18T1 6 check for the agreed-upon $35,000 payment, made out directly to Yaboh.

Awonusi did not receive any of the money.

After the transfer, Famek learned that Yaboh had failed to pay property

taxes and that a sizable tax lien had been placed on the property. On December

29, 2014, Famek paid off the tax lien, totaling $34,418.98. Famek made various

improvements to the premises and ultimately entered into a contract to sell the

property for $315,000. However, that sale was never consummated.

Meanwhile, frustrated with a lack of communication from Yaboh,

Awonusi made other arrangements to sell the property. On April 20, 2015,

Awonusi executed a power of attorney granting his daughter, Abiodun Awonusi,

authority to effectuate the sale and invalidating the previous power of attorney

granted to Yaboh. Under that power of attorney, Abiodun listed the property

with realtor Sonia Quintero. On December 24, 2015, Quintero received a call

from Emeka, who informed her that he was the owner of the property and had

no intention of selling at that time.

That same day, Awonusi sent an e-mail to Yaboh detailing his

understanding of the events that had transpired with respect to the Van Nostrand

property. He informed Yaboh that he was aware of both the letter from Agwu

forged by Yaboh and the impermissible transfer of the property to Famek.

A-3023-18T1 7 Awonusi urged Yaboh to rectify the situation and return to him rightful

ownership of the property. Although Yaboh eventually apologized to Awonusi,

he was unable to recover ownership of the property.

Awonusi filed a five-count amended complaint in July 2018 against

Yaboh and Famek, in the Chancery Division. The complaint alleged fraud as to

Yaboh; fraud as to Famek; breach of fiduciary duty by Yaboh; unjust enrichment

of both defendants; and conversion by both defendants. Awonusi sought to have

the deed signed by Yaboh to Famek declared void and rescinded, and an order

directing Famek to execute a deed returning the property to Awonusi. Awonusi

also sought compensatory damages, punitive damages, attorney's fees, and costs.

Famek answered Awonusi's complaint, but Yaboh did not file an answer.

The court entered default against Yaboh. A non-jury trial was conducted over

two days in November 2018, before Judge Jeffrey R. Jablonski. The court heard

testimony from Yaboh, Awonusi, and Emeka.

Judge Jablonski issued a written opinion on February 8, 2019. The judge

held that: (1) Yaboh had breached his fiduciary duty to Awonusi; (2) Yaboh had

perpetrated a fraud on Awonusi, but Famek had not; (3) Yaboh converted

Awonusi's property and Famek was complicit in this conversion; and (4) both

Yaboh and Famek were unjustly enriched by the conversion.

A-3023-18T1 8 Judge Jablonski also made key credibility determinations, finding

Awonusi more credible than Yaboh and Emeka. The judge found Awonusi to

be "most credible" and "inherently believable." In contrast, the judge noted "a

complete lack of credibility" as to Yaboh, and found the circumstances

surrounding the transfer of the deed to Famek "suspicious and similarly

lack[ing] credibility." In light of the testimony of both Yaboh and Emeka, Judge

Jablonski concluded that Famek was not a bona fide purchaser for value.

As a remedy, Judge Jablonski ordered the March 7, 2013 deed void and

rescinded, concluding that rescission was "the only appropriate and equitable

remedy" under the circumstances. While he recognized that Famek had made

investments in the property after obtaining ownership, Judge Jablonski

suggested that the appropriate recourse would be for Famek to attempt to recoup

its losses through a direct suit against Yaboh. The judge awarded $100,000 in

punitive damages against Yaboh but declined to make a similar finding against

Famek. The judge denied Awonusi's claim for compensatory damages,

reasoning that no evidence or testimony had been provided on the issue.

On appeal, Famek argues the trial court erred in holding it was unjustly

enriched, because it paid a total of $104,418.98 for the property, including the

loan to ETI Petroleum, the subsequent payment to Yaboh, and the resolution of

A-3023-18T1 9 the outstanding tax lien. In light of its expenditures, Famek contends that the

lower court's finding that it paid "a fraction" of Awonusi's original purchase

price is not supported by the evidence. Famek further maintains that an

application of the doctrine of unjust enrichment was inappropriate, as there were

other remedies available at law.

Famek further argues that the trial court erred by holding that it was

complicit in the conversion of Awonusi's property. Famek claims it exercised

ordinary care in relying on the power of attorney granted to Yaboh. Famek

asserts the trial court's ruling unwisely imposes an elevated standard of care on

buyers conducting real estate transactions with sellers who have granted powers

of attorney to a representative.

II.

In considering Famek's arguments, we are guided by established

principles of appellate review. An appellate court shall "'not disturb the factual

findings and legal conclusions of the trial judge unless [it is] convinced that they

are so manifestly unsupported by or inconsistent with the competent, releva nt

and reasonably credible evidence as to offend the interests of justice[.]'"

Seidman v. Clifton Sav. Bank, 205 N.J. 150, 169 (2011) (quoting In re Trust

Created by Agreement Dated December 20, 1961, 194 N.J. 276, 284 (2008)). In

A-3023-18T1 10 a bench trial setting such as this one, we are bound by the judge's factual

findings, so long as they are supported by substantial creditable evidence in the

record. Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484

(1974); see also Brunson v. Affinity Fed. Credit Union, 199 N.J. 381, 397

(2009). We afford special deference to the judge's findings about witness

credibility, as the judge had the opportunity to see and hear those witnesses first-

hand. State v. Munez-Valdez, 200 N.J. 129, 141 (2009). We only review de

novo the judge's decisions on questions of law. Manalapan Realty, L.P. v. Twp.

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

Applying these principles here, we reject Famek's arguments and affirm

the trial court's decision, substantially for the sound reasons expressed in Judge

Jablonski's written post-trial decision. We add only a few comments.

As Judge Jablonski aptly found, there is abundant credible evidence that

defendants jointly took part in taking away Awonusi's property without his

knowledge and authorization. The power of attorney Awonusi issued to Yaboh

had specified limitations that were not followed. Awonusi did not authorize the

transfer of his property to pay Yaboh's debts. Although the judge found Yaboh

the more culpable of the two defendants, and for that reason singularly imposed

A-3023-18T1 11 punitive damages upon him, the judge also had ample evidence to conclude

Famek was complicit in the wrongful transfer.

We reject, as did the trial judge, Famek's claim that it was entitled to rely

on the power of attorney presented by Yaboh. Because the authority to borrow

is one of the most consequential powers that can be conferred through a power

of attorney, it shall not be inferred in the absence of express authorization

"unless it is necessarily implied by the scope and character of the authority

which is expressly granted." Bank of America, Nat'l Trust & Sav. Assoc. v.

Horowytz, 104 N.J. Super. 35, 38-39 (Cty. Ct. 1968). Just as the power of

attorney in Horowytz did not confer the power to borrow money, the power of

attorney granted to Yaboh did not authorize using Awonusi's property as

collateral for a loan. Furthermore, such authority cannot be reasonably inferred

from the express terms. The power to borrow against the property is not

necessarily implied by the document's directive to execute "all forms and

documents required in connection with the sale." Because Famek's acquisition

of the property was predicated entirely on the improper loan agreement, the

conveyance cannot be valid.

Although Famek maintains that it exercised ordinary care in relying upon

the power of attorney, this claim is unsupported by the record. Emeka testified

A-3023-18T1 12 that he believed Yaboh was the true owner of the property based on three

documents: the power of attorney, the deed, and the $100,000 check made out

to the previous owner's attorney, Werner, in Yaboh's name. None of these

documents indicated that Yaboh was the property owner.

The power of attorney, by its own terms, only authorized Yaboh to take

limited actions regarding the sale of the property. The deed names Awonusi as

the grantee; Yaboh's name does not appear anywhere on the deed. Although

Yaboh is the remitter of the cashier's check to the seller's attorney, there is

nothing on the check that connects it to the real estate sale in question, or that

confirms anything beyond the fact that Yaboh was the one who transferred the

payment.

Despite a decade of experience in the real estate business, Emeka took no

reasonable steps to verify Yaboh's claim to the property. He made no attempt

to contact Awonusi to verify his purported "straw man" status and did not

request an affidavit of title prior to completion of the sale.

Emeka exercised a similar lack of care in other aspects of the transaction.

No promissory note was issued for the initial loan to Yaboh. No contract of sale

was executed for the transfer. Emeka did not engage an inspector to evaluate

the premises or check whether there were any liens or encumbrances on the

A-3023-18T1 13 property before the conveyance was finalized. The entire transaction was highly

irregular.

We reject Emeka's contention that the trial court imposed a heightened

burden on purchasers who rely on powers of attorney in realty transactions.

Given the peculiar and distinctive factors of this case, and the judge's express

finding that Famek was "complicit" in wrongdoing, Famek's alleged reliance on

the power of attorney is unavailing.

We likewise reject Famek's arguments that it was not unjustly enriched,

and that rescission of the property transfer was unfair. We recognize, as did the

judge, that Famek paid money to extinguish the tax lien and forgave its loan to

Yaboh. But Famek confuses principles of consideration with principles of

unjust enrichment. Famek clearly obtained the parcel and enriched itself "at the

expense of another," namely Awonusi. Callano v. Oakwood Park Homes Corp.,

91 N.J. Super. 105, 108-09 (App. Div. 1966). Awonusi did not receive the fair

and full monetary value of his property. Instead, he was swindled behind his

back.

The judge appropriately exercised his broad equitable authority in

restoring title to its proper owner. The judge also had ample evidence to find

A-3023-18T1 14 the element of conversion, which Famek at the very least aided and abetted.

LaPlace v. Briere, 404 N.J. Super. 585, 595 (App. Div. 2009).

All other points raised on appeal lack sufficient merit to warrant

discussion. R. 2:11-3 (e)(1)(E).

Affirmed.

A-3023-18T1 15