Lindsay Burbage, a Shareholder with the firm, was featured in the article Home to a Dream in Sunday's Trenton Times.
Burbage is working with a developer to transform a parking lot near the Sovereign Bank Arena in Trenton into an entertainment district, featuring restaurants and nightclubs.
You can read the story here.
Stark & Stark and Cowan, Gunteski & Co. will be presenting Securing Your Future Income: What You Need to do Today in Order to Insure a Healthy Revenue Stream from Your Practice. The seminar will be held on January 30, 2007 at the Sheraton in Eatontown, New Jersey.
The presenters, Allen Silk, Chair of Stark & Stark's Business Law group, Donald Cowan, Managing Director of Cowan, Gunteski & Co., and Deborah Mathis, Principal of Cowan, Gunteski & Co. will cover such topics as succession planning, practice valuation and retirement planning.
Download the seminar information here.
Approximately one year ago, a Bergen County Court struck down a redevelopment designation finding that the Borough of Lodi did not prove by substantial credible evidence that certain property was in need of redevelopment. LBK Associates v. Lodi, Docket No. BER-L-8766-03 (Oct. 6, 2005). After reviewing the evidence, the court concluded that the report was “a vague criticism of the conditions at the complex based upon superficial observations” and not sufficient to have the area deemed in need of redevelopment. The Borough of Lodi appealed the trial court’s decision.
Recently, Public Advocate Ronald K. Chen filed an amicus brief (“friend of the court” brief) with the Appellate Division of the Superior Court of New Jersey in support of the lower court’s ruling. Mr. Chen is asking the Appellate Division to carefully consider the following legal issues: (1) the appropriate standard of review for a municipality’s determination declaring an area as “blighted” or in need of redevelopment; (2) the allocation of the burden of proof when such a determination is challenged; (3) the quantity and quality of proof that constitutes “substantial credible” evidence of blight; (4) the appropriate standard for assessing the relationship between a finding of blight and the size of the redevelopment area; and (5) heightened scrutiny that must be applied when a municipality’s blight designation will eliminate affordable housings. A copy of the Public Advocate’s brief can be found here.
This is an important case to follow. The Appellate Division is being asked to review another case where the property owner was successful in challenging a redevelopment designation because the condemning authority failed to prove the property was in need of redevelopment. In the event the Appellate Division reviews and decides the issues raised by the Public Advocate, the burden of proof may change once again. This decision, along with the pending legislation seeking to change the eminent domain laws in New Jersey, may alter the redevelopment landscape in New Jersey.
Technorati Tags: New Jersey : Condemnation
Raymond Papperman, Chair of the Environmental Law group, is scheduled to speak at the Brownfield Summit, sponsored by Langan Engineering and Environmental Services, Inc., on behalf of the National Brownfield Association. The summit will be held on February 22, 2007 at Rutgers Cook College in New Brunswick, New Jersey.
Mr. Papperman will represent the Environmental Section of the New Jersey Bar Association in hopes of working with the New Jersey Department of Environmental Protection to improve upon the current Brownfield Program in New Jersey.
Technorati Tags: New Jersey : Environmental: Brownfield
On September 15, 2006, the Township of Reading filed a condemnation complaint in the Superior Court of New Jersey seeking to take part of property owned by Solberg Aviation. The complaint alleged that the property was being acquired for use as open space. Solberg Aviation disputed this allegation and argued that the real reason for the taking was to prevent the expansion and modernization of the airport to allow larger aircraft to utilize the airport. The court scheduled a hearing for November 3, 2006, to review the arguments.
After reviewing the legal briefs and hearing oral argument, the trial judge stayed the condemnation case to allow Solberg Aviation to conduct discovery in order to prove its case. The discovery will focus on the Township’s “true motivation” in seeking to acquire the property. Under New Jersey law, acquisition of property for open space is generally deemed a valid public use which permits the government to use its power of eminent domain. However, New Jersey law also prohibits the use of eminent domain where there has been a “showing of improper motives, bad faith, or some other consideration amounting to a manifest abuse of the power of eminent domain.” These types of cases are generally referred to as “pretextual takings.”
It is important to note that the trial court did not find that there was an improper motive or bad faith on the part of the Township. Rather, based upon the limited evidence before the court, the trial judge found that Solberg Aviation made a prima facie case for a pretextual taking entitling Solberg Aviation to take discovery in the form of depositions, document review and the like. Among the evidence presented at the hearing was “admissions made by township officials as well as the auspice under which the $22 million bond was secured, both of which state that the reason for this action was to prevent expansion of the airport, and not the preservation of open space.” Solberg Aviation now has an opportunity to question township officials under oath, which ultimately may help Solberg Aviation prove its case. This case is another important case in New Jersey following on the heals of the Mipro case which is being considered by the New Jersey Supreme Court.
Technorati Tags: New Jersey : Condemnation: Mipro
Thomas Lewis, chair of the Employment group, authored a chapter of Human Resources 2007: Answers to the Top 25 HR Questions in 2007 from Thompson Publishing Group. The chapter is entitled Employers Considering Whether They Should Implement an Employee Handbook Should Give Careful Consideration to a Myriad of Concerns.
Read the chapter here.
Technorati Tags: New Jersey : Employment
Large-scale, industrial construction litigation naturally involves high volumes of documents exchanged through discovery, which must be marshaled, reviewed and compiled in some form by counsel. Many times, adverse parties seek access to such compilations of what are otherwise completely discoverable documents. The Federal Courts have protected compilations under what has been termed the "selection and compilation" theory of the work product doctrine. Federal Courts have held that, in cases that involve reams of documents and extensive document discovery, the selection and compilation of documents is often more crucial than legal research. James Julian, Inc. v. Raytheon Co., 93 F.R.D. 138, 144 (D.Del.1982). The most widely cited cases regarding the doctrine are the Third Circuit's decision in Sporck v. Peil, 759 F.2d 312 (3d Cir.1985), cert. denied, 474 U.S. 903 (1985), and the Eighth Circuit's decision in Shelton v. American Motors Corp., 805 F.2d 1323 (8th Cir.1986). In Sporck, defendants produced thousands of documents and defendant's counsel selected and had defendant review certain documents in anticipation of his deposition. Defendant’s counsel did not claim any of the documents were work product; however, the court upheld counsel's objections to deposition questions which sought the identification of documents the deponent reviewed to prepare for the deposition. The court held that counsel's selection and compilation of the documents fell within the category of highly protected opinion work product, because the compilation of the documents would reveal counsel's mental impressions and opinions as to how the documents related to the issues. It further held that an attorney's legal strategy, his intended lines of proof, his evaluation of the strengths and weaknesses of his case and the inferences he draws from the facts are all opinion work product. The court stated:
Such material is accorded an almost absolute protection from discovery because any slight factual content that such items may have is generally outweighed by the adversary system's interest in maintaining the privacy of an attorney's thought processes and in ensuring that each side relies on its own wit in preparing their respective cases.
Id. at 316.
In Shelton, defendant's in-house counsel refused to respond to deposition questions seeking information regarding the existence or non-existence of documents in defendant's possession. Counsel argued that: 1) relevant documents were already produced, interrogatories were answered, counsel’s knowledge was acquired solely in her efforts to assist her client in litigation and thus constituted work product; and 2) any recollection of particular documents on certain subjects would reveal those to which counsel attached particular significance, revealing her theories and opinions. The court held that counsel had no first hand factual information related to the claims and that the questions she was asked sought more than just information about the existence of documents. The court agreed that the selective review and recollection of documents reflects the attorney's professional judgment on the issues, as well as her legal theories and thought processes. It found that "[i]n cases that involve reams of documents and extensive document discovery, the selection and compilation of documents is often more crucial than legal research...." Id. at 1328; see also, In re Grand Jury Subpoenas Dated October 22, 1991 and November 1, 1991, 959 F.2d 1158 (2d Cir.1992) (applying the Sporck principle that production of otherwise unprivileged documents that could be protected from discovery if their disclosure presented a real concern that the thought processes of counsel would be exposed); Santiago v. Miles, 121 F.R.D. 636, 638-40 (W.D.N.Y.1988) (court applied Sporck, finding that Second Circuit has recognized the selection and compilation doctrine; while data in computer printouts consists of unprivileged facts, printouts were prepared at direction of counsel and reflect counsel's selection process and mental impressions, deserving of protection in absence of strong showing of necessity and unavailability).
Thus counsel’s selection and compilation of otherwise discoverable documents should be protected under the work product doctrine.
John Eory, a shareholder in the Divorce group, was quoted in Adding Divorce Causes Endorsed in today's Asbury Park Press. The legislation calls for divorce being granted on the grounds of "irreconcilable differences which have caused the breakdown of the marriage for a period of six months."
In commenting on the bill, Eory says, "This will now allow for people not to find fault with each other when it need not be. It will allow people some measure of relief to not have to put down things which aren't true."
You can read the article here.
Technorati Tags: New Jersey : Divorce : Irreconcilable Differences
The law has a specific definition what constitutes actionable legal fraud. "Although the word 'fraud' maybe used in common parlance to connote any practice involving shady or underhanded dealing, in law it is a term of art with a precise definition." Banco Popular N. Am. v. Gandi, 184 N.J. 161, 175 (2005). In order to assert a legal fraud claim the moving party must establish the following five elements by clear and convincing evidence: “(1) [a] material misrepresentation of a presently existing or past fact; (2) knowledge or belief by defendant of its falsity; (3) an intention that the other person rely on it; (4) reasonable reliance thereon by the other person; and (5) resulting harm.” Jewish Ctr. of Sussex Cty v. Whale, 86 N.J. 619, 624-625 (1991); see also Simpson v. Widger, 311 N.J. Super. 379, 392 (App. Div. 1998) (holding that “fraud must be proven by clear and convincing evidence”).
I. Opinions or Forecasts Are Not Actionable.
As stated above, in order to assert a fraud claim the moving party must assert a “presently existing” misrepresentation of “fact.” See Simpson, 311 N.J. Super. at 392 (holding that“[p]ossibilities are not ‘presently existing’ facts”); see also Daibo v. Kirsch, 316 N.J. Super. 580, 589-590 (App. Div. 1998). Hence a misstatement or misrepresentation of opinion is not fraudulent. Gennari v. Weichert Co. Realtors, 288 N.J. Super. 504, 535 (App. Div. 1996) . Whether a statement is one of fact or one of opinion under New Jersey law is decided as follows:
The distinction between fact and opinion is broadly indicated by the generalization that what was susceptible of exact knowledge when the statement is made is usually considered to be a matter of fact. Representation in regard to matters not susceptible of personal knowledge are generally to be regarded as mere expressions of opinion, and that is held to be so even though they are made positively and as thought they are based upon the maker’s own knowledge. Usually, also, to say that a thing is only matter of opinion imports that it is unsusceptible of proof.
Joseph J. Murphy Realty, Inc. v. Shervan, 159 N.J. Super. 546, 551 (App. Div. 1978). Using that definition, Courts have held that possibilities or future forecasts are not presently existing material misrepresentations of fact, but instead are in-actionable opinions. See Simpson, 311 N.J. Super. at 392; Daibo, 316 N.J. Super. at 589-90.
II. Exact Knowledge At the Time the Statement was Made Is Required To Prove Fraud.
Additionally, “a statement’s content must be susceptible of ‘exact knowledge’ at the time it is made” to be a statement of fact. Alexander v. CIGNA, 991 F. Supp. 427, 435 (D. N.J. 1998). Because future business is merely an “opinion” of the “possibilities” and not “presently existing facts," any predictions or projections of future payments which would flow to the Respondents cannot be fraudulent as a matter of law. Simpson, 311 N.J. Super. at 392; Daibo, 316 N.J. Super. at 589-590; Alexander, 991 F. Supp. at 435. Discussions as to the future projections cannot constitute “presently existing” material misrepresentations as a matter of law.
III. A Party Must Show Scienter to Prove Legal Fraud.
A party asserting a fraud claim must also prove by clear and convincing evidence that the party who made the presently existing material misrepresentation did so with knowledge that the fact was false and wanted the other party to rely on it. As such, if a defendant makes a misstatement in error without any bad intent they cannot be held liable for legal fraud.
III. Detrimental Reliance Is Also Required.
Moreover, in order to prove actionable legal fraud the party asserting the claim must prove by clear and convincing evidence that they were tricked or fooled by the defendant’s misrepresentation. If the Plaintiff did not believe or consider the presently existing misstatement of fact when they entered into the agreement then they could not maintain their legal fraud claim.
IV. Damages.
The last element a party asserting a fraud claim must prove is that they suffered damages. Those damages must be linked to the presently existing or past misrepresentation of fact. Thus, if a party cannot show that it suffered any form of injury or damages caused by that misrepresentation their case must be dismissed as a matter of law.
Technorati Tags: New Jersey : Legal Fraud
The test for determining whether a third-party has an actionable right under a contract is whether the contracting parties intended that the third-party should receive a benefit which might be enforced in the court. "The contractual intent to recognize a right to performance in the third person is the key." Broadway Maint. Corp. v. Rutgers, The State Univ., 90 N.J. 253, 259 (1982). "If that intent does not exist, then the third person is only an incidental beneficiary, having no contractual standing." Id.
The foregoing rule (1) is especially applicable where there is litigation between the parties involved in a large-scale industrial construction project, where the sub-subcontractor shares no privity with the EPC contractor or owner. The New Jersey legislature has already provided a remedial scheme for allegedly unpaid sub-subcontractors and other indirect suppliers, namely, the construction lien law. For example, in Insulation Contracting, Inc. v. Kravco, 209 N.J. Super. 367 (App. Div. 1986), plaintiff, Insulation Contracting, a sub-subcontractor, entered into a contract with Peyton Contractors to supply and install insulation. Peyton was a subcontractor of general contractor, Kravco. After the default in performance by subcontractor Peyton, Kravco terminated Peyton. Plaintiff instituted an action against the owner, Peyton and Kravco, for the balance due under its sub-subcontract. Id. at 369-70. The court analyzed each of the contract provisions and noted that in none of the contracts did either Kravco or the owner assume the obligations of defendant Peyton in the case of default.
Significantly, the Kravco court also rejected the claim that plaintiff was a third-party beneficiary of the remaining contracts, concluding that the language in the contracts did not indicate that there was an intent to confer a benefit on Insulation Contracting and, thus, it was not a third-party beneficiary that could seek redress directly against Kravco. Id. at 375-76; see, also, F. Bender, Inc. v. Muscarelle, Inc., 304 N.J. Super. 282, 285 (App. Div. 1997) (Sub-subcontractor could not recover against contractor or owner based upon quasi-contract claims since such actions, if permitted, would undermine the mechanic’s lien system and disrupt the construction industry).
Therefore, the sub-subcontractor’s third-party beneficiary claims against the EPC contractor and owner will not support any cognizable claim for relief, and must be dismissed. Printing Mart-Morristown v. Sharp Electronics Corp., 116 N.J. 739, 746 (1989); Leon v. Rite Aid Corp., 340 N.J. Super. 462, 466 (App. Div. 2001); Rule 4:6-2(e). The sub-subcontractor is thus left to seek redress under the statutory provisions of the construction lien law, and through its direct contractual claims against the subcontractor.
(1) One significant exception to this general rule arises when the EPC contractor chooses to pay the sub-subcontractor through a joint check arrangement. In such cases, the sub-subcontractor must show that: 1) the joint check agreement was specifically made for the benefit of the sub-subcontractor; 2) the EPC contractor indicated that it specifically intended to be responsible for ultimate payment to the sub-subcontractor; 3) the sub-subcontractor supplied consideration on its part; and 4) the agreement contained clear provisions vis-a-vis the sub-subcontractor, such as directing payment of a sum certain to the sub-subcontractor. See Onorato Const., Inc. v. Eastman Const. Co., 312 N.J. Super. 565, 572-3 (App. Div. 1998) (Only under certain circumstances may an agreement by a general contractor to pay sub-subcontractors or suppliers directly or with joint checks result in the general contractor's assumption of liability for those payments despite a prior lack of privity); see, also, Maccaferri Gabions, Inc. v. Dynateria Inc., 91 F.3d 1431, 1439 (11th Cir. 1996) (General contractor, by entering into joint-check agreement with subcontractor, did not assume subcontractor's duty to pay materialman directly for all materials that it delivered to site of federal construction project; joint-check arrangement had to be interpreted in accordance with entire agreement between parties, so as not to create conflict with other provisions which clearly required subcontractor, and not general contractor, to pay materialmen, and which authorized general contractor to withhold payment from subcontractor if it did not secure releases from those materialmen).
Technorati Tags: New Jersey : EPC Contractors
Technorati Tags: New Jersey : Podcast : Community Associations
New Jersey is among a minority of states that require divorced or separated parents to fund their children’s higher education expenses.
Since the case of Nebel v. Nebel, 103 N.J. Super. 216 (App. Div. 1968), the New Jersey Courts have found that financially able parents must contribute to their children’s college expenses. In that case, the Court allowed the custodial mother to select a private college on behalf of her son, but determined the father’s contribution based on tuition at state universities. In Finger v. Zenn, 335 N.J. Super. 438 (App. Div. 2000) the Court overturned Nebel in part, and held that the contribution of financially capable parents ought to be calculated on the tuition at the university in which the child is actually enrolled, whether public or private.
The Court, in Newburgh v. Arrigo, 88 N.J. 529 (1982), delineated the specific criteria to be considered in determining whether parents are legally obligated to fund higher education expenses:
• Whether the parent, if still living with the child, would have contributed toward the costs of the requested higher education;
• The effect of the background, values and goals of the parent on the reasonableness of the expectation of the child for higher education;
• The amount of the contribution sought by the child for higher education;
• The ability of the parent to pay that cost;
• The relationship of the requested contribution to the kind of school or course of study sought by the child; • The financial resources of both parents;
• The commitment to and aptitude of the child for the requested education;
• The financial resources of the child, including assets owned individually or held in custodianship or trust;
• The ability of the child to earn income during the school year or on vacation;
• The availability of financial aid in the form of college grants and loans;
• The child’s relationship to the paying parent, including mutual affection and shared goals as well as responsiveness to parental advice and guidance;
• The relationship of the education requested to any prior training and to the overall long-range goals of the child; and
• Contribution made to household expenses by the current spouse of either parent [Hudson v. Hudson, 315 N.J. Super. 577 (App. Div. 1998)].
Generally, Courts will hold all financially able parents responsible for contributing to the college expenses of qualified students. However, in instances where children have had no relationship with a parent, and the parent is not involved in the child’s decision to attend college and where, Courts have held that parent not responsible for the child’s higher education expenses. For example, in Moss v. Nedas, 289 N.J. Super. 352 (App. Div. 1996), the Court refused to hold the father responsible for any portion of his daughter’s college expenses after finding that she had excluded him from all of the decisions leading up to her enrollment.
The responsibility to contribute to higher education expenses may not end with the completion of a four-year college program. In Ross v. Ross, 167 N.J. Super. 441 (Ch. Div. 1979), the Court required the father to continue child support payments for his daughter until she completed law school.
The responsibility also does not end with the death of a parent. In Kiken v. Kiken, 149 N.J. 441 (1997), the Court held the father’s estate responsible for contributing to his son’s undergraduate college expenses.
Participants in contractual litigation often hear about the Parol Evidence Rule. To a lay person, the name of that substantive rule of law may create some confusion. The Parol Evidence Rule does not have anything to do with the criminal justice system. Perhaps, the use of the word “parol” rather than “parole” gives the image of “Red”, the character from the classic film, “The Shawshank Redemption” sitting before the parole board seeking his exodus from the Shawshank prison. It is not.
The Parol Evidence Rule is a substantive rule which states that whenever contractual intent is sought to be ascertained from among several expressions of agreement by the parties, an earlier tentative agreement will be rejected in favor of a later expression that is final. Harker v. Kissock, 12 N.J. 310, 321 (1953). Simply stated, the final agreement made by the parties supercedes any terms discussed in earlier negotiations. The “purpose of the Parol Evidence Rule is not to exclude unreliable evidence, but to exclude evidence, however reliable, of negotiations and understandings which the parties intended to supplant with the agreement under consideration.” J.I. Kislak Realty Corp. v. 6051 Blvd. East Corp., 192 N.J. Super. 280, 283 (App. Div. 1983). The policy behind the rule is to give the writing a preferred status, which renders it immune to perjured testimony and the risk of “uncertain testimony of slipping memory.” McCormick, The Parol Evidence Rule as a Procedural Device for Control of the Jury, 41 Yale L.J. 365, 366-377 n. 3 (1932); Wallach, The Declining “Sanctity” of Written Contracts -- Impact of the Uniform Commercial Code on the Parol Evidence Rule, 44 Mo. L. Rev. 651, 653 (1979); Binks Mfg. Co. v. Natl. Presto Indus., Inc., 709 F.2d 1109 (7th Cir. 1983). In other words, if a party seeks to introduce terms which were memorialized in a written, binding contract they may be excluded by the Parol Evidence Rule.
The Parol Evidence Rule comes into play where the last expression is in a written binding contract. Courts asked to make a ruling as to the applicability of the Parol Evidence Rule generally consider whether or not the writing is the final embodiment of the parties' entire agreement. To aid Court’s in making this determination, contractual drafters often utilize a merger clause to provide a clear, unmistakable proof that the writing is the final expression of all of the terms agreed upon and is a complete and exclusive statement of those terms. Courts consistently have enforced merger clauses. See A. N. Airlines, Inc. v. Schwimmer, 12 N.J. 293, 302 (1953) (holding, the "parol evidence rule ‘purports to exclude testimony’ only when it is offered for the purpose of 'varying or contradicting' the terms of an 'integrated contact’"); Inter-City Tire and Auto Ctr., Inc. v. Uniroyal, Inc., 701 F. Supp. 1120, 1126 (D.N.J. 1989), aff’d Uniroyal, Inc. v. Erbesh, 888 F.2d 1382 (3d Cir. 1989). A merger clause sets forth that the written, binding contract is the final embodiment of the parties agreement. That clause specifically excludes all prior negotiations and/or discussions from the contract. Finally, a merger clause sets forth that all changes to the contract must be in writing signed by all parties to the contract.
Technorati Tags: New Jersey : Divorce : QDRO
It is well established that sub-subcontractors may not maintain direct actions against EPC contractors or owners based upon a theory of unjust enrichment or quantum meruit. The Appellate Division in Insulation Contracting, Inc. v. Kravco, 209 N.J. Super. 367 (App. Div. 1986), held that, in such situations, a basic premise of the theories of unjust enrichment and quantum meruit is that there must be a clear expectation by the defendant that it will be responsible for payment directly to the plaintiff. The fact that the defendant may have received a benefit for which it has not paid is not sufficient. Id. at 378.
Such was also the explicit holding in F. Bender, Inc. v. Muscarelle, Inc., 304 N.J. Super. 282, 285 (App. Div. 1997):
We know of no case where the statutory protections given to a subcontractor or sub-subcontractor by filing a notice of intention or stop notice could be replicated by a common law claim based upon quantum meruit. Such a rule would create havoc in the construction industry. See Insulation Contracting & Supply v. Kravco, Inc., supra, (denying similar reimbursement in a claim by a sub-subcontractor against the prime contractor after the subcontractor for whom the plaintiff had performed defaulted).
In this case, Hertz had an obligation to pay its contractor, and, Muscarelle, the contractor, had an obligation to pay its subcontractor, Tri-Gee, who in turn had an obligation to pay plaintiff, its subcontractor. When plaintiff performed, it had a claim only against Tri-Gee unless it filed a notice of intention or stop notice in compliance with the Mechanics' Lien Law. It is true that Hertz and/or Muscarelle may have received the benefit of plaintiff's work; however, Tri-Gee owes plaintiff for that work.
Quantum meruit, which plaintiff seeks, requires that there be unjust enrichment. Callano v. Oakwood Park Homes Corp., 91 N.J. Super. 105, 108- 109, 219 A.2d 332 (App.Div.1966). Here, there was no unjust enrichment.
Id. at 284-5.
Therefore, the sub-subcontractor’s unjust enrichment and quantum meruit claims against the EPC contractor and owner will not support any cognizable claim for relief, and must be dismissed. Printing Mart-Morristown v. Sharp Electronics Corp., 116 N.J. 739, 746 (1989); Leon v. Rite Aid Corp., 340 N.J. Super. 462, 466 (App. Div. 2001); Rule 4:6-2(e). The sub-subcontractor is thus left to seek redress under the statutory provisions of the construction lien law, and through its direct contractual claims against the subcontractor.
On October 30, the Appellate Division of the New Jersey Superior Court affirmed a trial judge's ruling that a divorced parent must pay more than $40,000 in college expenses for his daughter over the parent's objection that, as a "self-made man", he did not believe college was for everyone and that his daughter was not academically suited for college.
While the ruling stands in the mainstream of New Jersey law with respect to the responsibilities of divorced parents toward their children's undergraduate college or vocational school expenses, it should be noted that each such case involves a variety of factors utilized by attorneys and the courts. In more rare cases, courts have found that a divorced parent can even be held responsible for his or her child's post-graduate or professional school expenses.
Technorati Tags: New Jersey : Divorce : College Costs
The New Jersey Court Rules giving rise to a summary action to enforce a construction lien are exceedingly straightforward:
RULE 4:67-1
This rule is applicable . . . (b) to all other actions in the Superior Court other than matrimonial actions and actions in which unliquidated monetary damages are sought, provided it appears to the court, on motion made pursuant to R. 1:6-3 and on notice to the other parties to the action not in default, that it is likely that the matter may be completely disposed of in a summary manner.
RULE 4:67-2
(b) Motion for Order to Proceed Summarily. Actions referred to in R. 4:67- 1(b) shall be commenced, and proceedings taken therein, as in other actions, except as herein provided. The notice of motion to proceed summarily shall be supported by affidavits made pursuant to R. 1:6-6 and, if addressed to the defendant, may be served with the summons and complaint; but it shall not be returnable until after the expiration of the time within which the defendant is required to answer the complaint. If the court is satisfied that the matter may be completely disposed of on the record (which may be supplemented by interrogatories, depositions and demands for admissions) or on minimal testimony in open court, it shall, by order, fix a short date for the trial of the action, which shall proceed in accordance with R. 4:67-5, insofar as applicable.
However, the existence of valid counterclaims, setoffs and affirmative defenses are frequently sufficient to defeat an application for summary action, is as exemplified in Hannigan v. Township of Old Bridge, 288 N.J. Super. 313 (App. Div. 1996). Hannigan involved the enforcement of settlement agreement involving police officer employment contract. Id. Due to age of the plaintiff, specific performance was not available and he was forced to resort to damages for breach of contract. Id. at 318. Speaking to the amenability to summary proceeding of such breach of contract action, the Hannigan court held, We have a claim for breach of contract, not a misunderstanding as to contract terms or a grudging lack of cooperation in fulfilling the agreement. Id. at 319. “[Rule 4:67-2(b)] is usually reserved for situations where the matter may be completely disposed of on the existing record or on minimal testimony in open court.” Id.; see, also, Rules Governing the Courts of the State of New Jersey, Sylvia B. Pressler (2004), comment to R. 4:67-2, p. 1835 (“The rule . . . authorizes the court to order a summary disposition even where it appears that testimony will be required, provided that testimony is minimal. Minimal testimony should be construed as testimony which clearly will not exceed one day. (citations omitted).
Similarly, the case of Taylor v. Ford Motor Co., 703 F.2d 738 (3d. Cir. 1983), involved the use of a summary action to confirm an arbitration award. Id. However, the Taylor court spoke as to the impropriety of the use of this procedure in more complex cases involving disputed issues of fact:
Rule 67 can be invoked also to provide for a summary remedy of enforcement whenever it appears that there is no genuine issue of material fact. Subsection 1(b) of Rule 67 makes summary action appropriate to any Superior or county court actions with the exception of matrimonial actions or those which involve unliquidated monetary damages. In these actions, the likelihood that the action can be resolved summarily must be apparent to the court and to the other party.
Id. at 742. Thus, the court may order a summary action only if the matter can be disposed of completely on the record or if the testimony is minimal. Id. at 743.
Thus, valid counterclaims, setoffs and affirmative defenses are frequently sufficient to defeat an application for summary action and leave the lienor to its proofs through a plenary action. See Kvaerner Process, Inc. v. Barham-McBride Joint Venture, 368 N.J. Super. 190 (App. Div. 2004) (“We are mindful that N.J.S.A. 2A:44A-14a(2) confers upon a lienee the opportunity to force an evaluative review of the lien claim” . . . and it is the lienor that shoulders the burden of proof to justify its claim).
Technorati Tags: New Jersey : Lien Enforcement
New Jersey took a step toward revamping its grounds for divorce for the first time in 35 years when on October 23 the Assembly Judiciary Committee approved adding "irreconcilable differences" as a cause of action for divorce.
If passed, bill A-483 would mean that if a person can prove that irreconcilable differences have caused the breakdown of the marriage for six months and which make it appear that the marriage should be dissolved and there is no reasonable prospect of reconciliation, a divorce should be entered.
Under current New Jersey law, the only "no fault" ground for divorce requires 18 months separation in different households with no reasonable prospect of reconciliation. Although similar bills have been introduced during the past, this is the first time "irreconcilable differences" has enjoyed wide legislative support. It should be noted, however, that opponents of the bill are contending that the 6 month period is too short for couples to work through their problems. Nonetheless, the sponsors of A-483 are optimistic of the bill's eventual passage.
I will be updating this article as bill A-483 proceeds through the legislative process.
Technorati Tags: New Jersey : Divorce : Irreconcilable Differences
A contract is an agreement resulting in obligation enforceable at law; it is “a voluntary obligation proceeding from a common intention arising from an offer and acceptance." Johnson and Johnson v. Charmley Drug Co., 11 N.J. 526, 539 (1953). To be an enforceable contract there must be a definite offer, acceptance of that offer and consideration. Friedman v. Tappan Dev. Corp., 22 N.J. 523, 531 (1956). Thus, without consideration there can be no contract. Contl. Bank of Pa. v. Barclay Riding Acad., Inc., 93 N.J. 153, 170 (1983), cert. denied, Barclay Equestrian Ctr., Inc. v. Contl. Bank of Pa., 464 U.S. 994 (1983).
What is Consideration?
A simple way of defining consideration is to say that both sides must “get something out of the exchange.” Contl. Bank of Pa., 93 N.J. at 170; Friedman, 22 N.J. at 533; 1 Corbin, Contract §110 (1963 ed.). Valuable consideration may take the form of either a detriment incurred by the promisee or benefit received by the promisor. Contl. Bank of Pa., 93 N.J. at 170; Novak v. Cities Serv. Oil Co., 149 N.J. Super. 542, 549 (Law Div. 1977), aff’d, 159 N.J. Super. 400 (App. Div.), certif. denied, 78 N.J. 396 (1978); 1 Corbin, Contract §§121-122 (1963 ed.).
If consideration is met, there is no additional requirement of gain or benefit of the promisor, loss or detriment to the promisee, equivalence in values exchanged, or mutually of obligation. Shebar v. Sanyo Bus. Sys. Corp., 111 N.J. at 289 (adopting Restatement (Second) of Contracts §79 (1979)). In other words, Courts will not measure the adequacy of consideration. Rather, the only analysis is to determine whether or not consideration is present in the contract. See Seaview Orthopedics v. Natl. Healthcare Resources, Inc., 366 N.J. Super. 501, 509 (App. Div. 2004). Thus, if both parties even received something nominal a Court will find the existence of consideration as a matter of law.
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