                        NOT FOR PUBLICATION WITHOUT THE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
