How Does a Bonus Factor into Alimony?

Posted in Divorce, Stark News

Stark & Stark Shareholder Maria Imbalzano, member of the firm’s Divorce Group, authored the article “How Does a Bonus Factor into Alimony?,” which was published on May 27, 2015 by the U.S.1 Newspaper.

The article discusses the different types of incomes that may be looked at when calculating alimony payments, and Maria mentions that there are two ways we can deal with unknown or variable income, such as bonuses. “We can take an average of the prior three years… [or] the parties may wish to agree upon a percentage of the future bonuses that the payee shall receive.”

If the parties agree to a percentage of future bonuses, it is recommended that they consult with experienced legal counsel because “the wording of the Marital Settlement Agreement must be very specific and clear in communicating the parties’ intent.” Maria discusses the recent case of Sercia v. Sercia where the ex-wife was denied supplemental alimony due to the language in the Marital Settlement Agreement.

You can read the full article by clicking here.

Shareholder Jerry Nelson Published in Mid Atlantic Real Estate Journal

Posted in Commercial, Retail & Industrial Real Estate, Stark News

Stark & Stark Shareholder Jerry A. Nelson, member of the Commercial, Retail Industrial, and Multi-Family Real Estate Group, authored the article “Landlord Wins Lawsuit Due to Good Lease and Procedures; Tenant Barred from Relitigating Issues” which was published on May 15, 2015 in the Mid Atlantic Real Estate Journal.

The article discusses how good leases and guaranties can help landlords make and save money. In a recent unpublished decision that involved a breach of a commercial lease by tenants and a guarantor that failed to pay rent, “the trial court granted landlord’s motion for summary judgment and found the tenants and guarantor liable for a judgment in the amount of $324,119.20 plus costs because the lease and guaranty were clear and unambiguous.” The Appellate Division affirmed the trial court’s ruling.

This case is important for landlords because it shows the value of preparing a well drafted lease and guaranty. If you want to assure that you have the lease, guaranty, and procedures you need to win a dispute, it is important that you speak with experienced counsel.

You can read the full article by clicking here.

Tortious Interference with Inheritance

Posted in Probate Litigation

In the recent District Court decision of, McDonald v. Copperthwaite, the US District Court discussed whether a Tort for Interference with prospective inheritance was viable within the State of New Jersey. The Court explained that while the New Jersey courts have discussed the possibility of a claim for Tortious Interference with Inheritance, the New Jersey Courts have never actually recognized a cause of action in this regard. The few cases which addressed a potential claim for Tortious Interference with Inheritance have all held that such a claim is barred if an adequate remedy in Probate Court exists to remedy the alleged injustice. In this regard, the Courts have explained that all controversies involving Wills, Trusts, and Estates are within the jurisdiction of the probate court. As such, any challenges to a Will or Trust should be instituted in Probate Court.

Since adequate remedies typically exist in Probate Court to address any such alleged injustice, there has never been a finding by a New Jersey Court which recognized a claim for Tortious Interference with Anticipated Inheritance. Thus, despite creative pleading in the past to assert a claim for Tortious Interference with Anticipated Inheritance, no New Jersey court has actually verified the validity of such a claim. As a result, it is suggested that any action be commenced in Probate Court with proper pleading as opposed to a claim for Tortious Interference with Inheritance. It could be a critical mistake if a party were to found their entire case on this tort and ignore the other remedies which are available to them in probate Court. Should a party do so, they risk having their Complaint dismissed without the right to seek further redress. The statute of limitations set forth by Court Rules concerning probate proceeedings must be carefully followed so it is recommended that you consult with legal counsel as soon as possible if you have a matter of this nature.

Franchise Your Business at the 2015 National Restaurant Association Show

Posted in Franchise, News & Events

Join Stark & Stark’s Franchise Group at Booth #4768 during this year’s NRA show at McCormick Place in Chicago, IL from May 16-19, 2015. At the event, Shareholder Adam J. Siegelheim will moderate the educational seminar, How to Franchise Your Restaurant to Others: The Process Untangled, which will be held in room S404d on Sunday, May 17, from 11:30 AM – 12:30 PM.

Mr. Siegelheim will be joined by Allen Dikker, CEO of Potatopia, Phil Schram, Chief Development Officer of Buffalo Wings & Rings, and James Walker, President of Operations & Development at Johnny Rockets. This seminar will discuss in detail the process of franchising a restaurant. Attendees will learn the basics of franchising their business and walk away with a clear understanding of the process.

For more information on the event, please click here.

Construction Defect and Liens Seminar

Posted in News & Events, Real Estate

Stark & Stark will host the New Jersey Builders Association’s Construction Defect and Liens Seminar on Monday, June 1, 2015 from 9:00am – 12:00pm at the Lawrenceville, NJ office. Shareholder Gary S. Forshner, Esq. will moderate the seminar, which will feature three Stark & Stark Shareholders as panelists. Details on all presenters and speaking topics for each panel are provided below.

Panel 1

  • Randy Sawyer, Esq., Stark & Stark: Construction defect claims, prosecution and defense.
  • Mitch Frumkin, P.E., Kipcon Engineering: Preventing, defending and pursuing construction defect claims – A design professional’s perspective.
  • Carlton T. Spiller, Esq., Greenbaum, Rowe, Smith & Davis LLP: Commercial general liability legislation.
  • Anthony Bevilacqua, CPCU, Anthony & Company: Insurance coverage issues.

Panel 2

  • Timothy Duggan, Esq.Stark & Stark: Construction Lien Law – Liening property and removing liens.
  • Andrew Podolski, Esq.Stark & Stark: Litigating a construction lien claim & contractual limitations on liability.
  • Alison Short, CPCU, 2-10 Home Buyers Warranty: Tips and tactics for dispute resolution between builders and homeowners.
  • Don Sechler, Residential Warranty Company, LLC: Builder warranty performance and common structural defects and repairs.

Attendees can earn 3.0 CLE Credits for NJ Attorneys and 2.5 CPC Credits for NJ Engineers. If you are interested in attending this seminar please register here. Breakfast will be provided in the morning and we invite you to stay for lunch to network with the speakers and attendees.

New Jersey Appellate Division Decision Establishes Factors for Expelling Members of New Jersey Limited Liability Company

Posted in Business & Corporate, Shareholder Oppression

On March 17, 2015, the Appellate Division issued an important decision which provides guidance to New Jersey Trial Courts asked to judicially expel a member of a Limited Liability Company. IE Test, LLC v. Kenneth Carroll (App. Div. 2015)

N.J.S.A. 42:2B-24(b)(3) permits the expulsion of a member of a New Jersey Limited Liability Company under certain circumstances. The Appellate Division in IE Test, LLC v. Kenneth Carroll, provides a wonderful analysis of expulsion of a member based upon wrongful conduct (N.J.S.A. 42:2B-24(b)(3)(a)) or that the continued membership was not practicable to continue the business (N.J.S.A. 42:2B-24(b)(3)(c)).

The material facts of the case were undisputed and straightforward. Defendant Carroll and Mr. Cuppo were co-owners of a predecessor limited liability company, Instrumental Engineering, LLC (“IE”). Unfortunately, in or about 2009, IE was experiencing serious economic problems. As a result of those problems, Carroll and Cuppo decided that IE should file a Chapter 7 petition for bankruptcy.

According to Carroll, he purchased some of IE’s assets from the bankruptcy trustee and transferred them to Plaintiff, IE Test, LLC for $5,000, which remained due and owing to him. Cuppo refuted the same. Unfortunately, there was no documentation supporting Carroll’s contention.

IE Test, LLC had three members, Carroll (33%); Cuppo (34%) and James (33%). In addition to the disagreement relating to the $5,000, sale of assets from IE, the three members could not reach agreement as to the terms and conditions of an Operating Agreement. In addition, several of the members testified during the course of their depositions that they could not work together and did not speak with one another.

The Trial Court Judge found that IE Test, LLC could not establish that Carroll engaged in wrongful conduct that adversely and materially harmed the company. Nevertheless, the Trial Court found that pursuant to N.J.S.A. 42:2B-24(b)(3)(c), it was not reasonably practicable to continue the business with Carroll as a member. Carroll appealed the Trial Court’s decision. In its decision, the Appellate Division provided a wonderful analysis of judicial considerations when determining whether or not to expel a member.

The Appellate Court first provided guidance on the standard for judicial expulsion of a member of a New Jersey Limited Liability based upon “wrongful” conduct. Pursuant to N.J.S.A. 42:2B-24(b)(3)(a), a Court may only expel a member if it finds that the member’s conduct was “wrongful” and “actually harmed” the limited liability company in an “adverse and material manner.”

Next, the Appellate Court discussed the standard to expel a member because the continued inclusion of that member may not be practicable to carry on the business. The Court held that N.J.S.A. 42:2B-24(3)(c), does not require proof that the member committed any wrongful conduct whatsoever. Rather, subsection (c) is forward looking, only requiring proof that the member’s conduct makes it “not reasonably practicable to carry on the business if the member remained.”

The Appellate Division articulated the following seven factors when deciding whether or not to expel a member based upon the not reasonably practicable on the business statute:

  1. Whether the management of the entity is unable or unwilling reasonably to permit or promote the purposes for which the company was formed;
  2. Whether a member or manager has engaged in misconduct;
  3. Whether the members have clearly reached an inability to work with one another to pursue the company’s goals;
  4. Whether there is deadlock between the members;
  5. Whether the operating agreement provides a means of navigating around any such deadlock;
  6. Whether, due to the company’s financial position, there is still a business to operate; and
  7. Whether continuing the company is financially feasible.

The Appellate Division, applying those factors, affirmed the Trial Court’s decision expelling Carroll pursuant to N.J.S.A. 42:2B:24(b)(3)(c).

Trademark Tacking and the Landscape of Priority Disputes

Posted in Stark News

Shareholder Craig Hilliard, member of the firm’s Litigation Group and Chair of the Intellectual Property Group, authored the article, Trademark Tacking and the Landscape of Priority Disputes, which was published in The Legal Intelligencer on April 14, 2015. The article discusses at length the recent U.S. Supreme Court Case Hana Financial v. Hana Bank, trademark law, trademark tacking and owner’s priority.

A trademark, according to Cornell University Law School, is the right to adopt and use “any word, name, symbol, or design, or any combination thereof, used in commerce to identify and distinguish the goods of one manufacturer or seller from those of another and to indicate the source of the goods.” The tacking doctrine allows the owner of a trademark to make changes to the trademark over time and still retain owner’s priority. However, the changes made must still “create the same continuing commercial impression.”

Mr. Hilliard points out that the Hana Financial decision “resolved a split among the federal circuit courts by holding that juries, rather than judges, should ordinarily decide  whether a trademark owner can ‘tack’ together different marks for the purpose of establishing priority.” What this means is that the Supreme Court concluded that juries are best to determine a tacking issue because they can best determine if a trademark presents the same “continuing commercial impression.”

For a more in-depth analysis, read the full article here.

Visit Stark & Stark at Booth #200 at the NJ Cooperator’s Expo!

Posted in Community Associations, News & Events

Join our Community Associations and Construction Litigation Groups this Saturday, May 9th, at the Meadowlands Exposition Center for the NJ Cooperator’s Condo, HOA, Co-Op & Apt. Expo. Stop by Booth #200 between 10:00am and 4:30pm to meet our team of attorneys.

Shareholders Christopher Florio, Esq. and Mary Barrett, Esq. will present the seminar, Every Community Association has One – Dealing with “Problem” Residents, in Classroom Two (2) from 1:45-2:45pm. Most condo residents are courteous neighbors and responsible owners, but not all of them. Disruptive residents are a serious issue in any building or HOA. This seminar will offer reasonable solutions for managing the unreasonable, and provide effective strategies for dealing with the chronically difficult.

Q&A Video Podcast on NJ Affordable Housing Oversight

Posted in Commercial, Retail & Industrial Real Estate, Real Estate

As you are undoubtedly well aware, the March 10, 2015 ruling from the New Jersey Supreme Court stripping the Council On Affordable Housing (COAH) of their oversight of the constitutional obligation of every municipality in New Jersey to plan for and accommodate affordable housing has effectively changed the rules for all of us.

The Rules Have Changed!
Not only have nearly 400 New Jersey municipalities been put on notice that they must submit suitable plans for affordable housing to the Courts by July 8, 2015; but this ruling gives builders and developers legal remedies (outside of the administrative appeals process within COAH) with which to compel these municipalities to comply. If you have a property/site that you believe is suitable for affordable housing, the time to act is now.

For your convenience, here is a breakdown of the ruling and the implications for owners and developers in a video podcast Q&A.

How Can We Help?
Stark & Stark’s attorneys are prepared to leverage our relationships at the municipal level along with our intimate understanding of the zoning and land use process to help get your sites included in municipal affordable housing plans. Our litigators are also ready to counsel you on the legal remedies at your disposal if/when your property/site is excluded from an affordable housing plan. Don’t wait until it’s too late.

Read the Fine Print. Is My Arbitration Clause Enforceable?

Posted in Arbitration

Arbitration agreements seem to permeate our society, though they often go unnoticed. Traditionally located in what is colloquially referred to as the “fine print,” arbitration clauses in contracts, or in use agreement or terms and conditions, can have a tremendous impact on a party’s right to bring an action before a court of competent jurisdiction. Without understanding the fine print, a party may unknowingly waive its right to a trial by jury and may be left to litigate before an arbitrator, which can be an individual or a panel, in a closed proceeding with a very narrow and difficult right to appeal the decision.

A preference for arbitration will vary and will usually fall to a party’s relative interests. For some, an enforceable arbitration agreement may be helpful, as it presents and expedited process and a non-public forum for dispute resolution. For others, this language may be harmful, as the costs of arbitration can be extremely burdensome relative to traditional court costs. The important thing is to understand what is included in the agreement and whether the language is effective in accomplishing that understanding.

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