Kenneth Mr. Vercammen was included in the 2020 “Super Lawyers” list published by Thomson Reuters.

To schedule a confidential consultation, email us at VercammenAppointments@NJlaws.com, call or visit www.njlaws.com

(732) 572-0500

Tuesday, November 22, 2022

DARO M. LARGOZA, M.D., ET AL. VS. FKM REAL ESTATE HOLDINGS, INC., ET AL

 The court granted leave to appeal to consider the enforceability of a forum selection clause contained in commercial loan agreements executed by sophisticated parties.  The court concluded such provisions are enforceable despite allegations that the contracts in which they are embedded are unenforceable due to fraud, unless the alleged fraud improperly induced assent to the forum selection clause specifically.  In doing so, the court relied upon the United States Supreme Court ruling in Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388 U.S. 395, 403-04 (1967), and the New Jersey Supreme Court ruling in Goffe v. Foulke Mgmt. Corp., 238 N.J. 191, 216-17 (2019), both of which applied this principle to enforce arbitration provisions.  The court also acknowledged authority from other jurisdictions that have applied this rule to uphold forum selection clauses and explained that its holding aligns with the majority approach. 


In addition, distinguishing McNeil v. Zoref, 297 N.J. Super. 213, 219 (App. Div. 1997), the court held the entire controversy doctrine does not vitiate an otherwise-enforceable forum selection clause when the enforcing party is severable from the litigation.  Following Wilfred v. MacDonald Inc. v. Cushman Inc., 256 N.J. Super. 58, 65 (App. Div. 1992), the court also concluded no appreciable inconvenience would result from enforcing the forum selection clause, thereby requiring the parties to litigate their claims in Utah.  


Finally, the court held that the seven-factor analysis detailed by the New Jersey Supreme Court in Cole v. Jersey City Med. Ctr., 215 N.J. 265, 280-81 (2013) to determine whether a party waived the right to enforce an arbitration provision applies equally to the question of whether a party waived the right to enforce a forum selection clause.  The court further explained that the analysis required under Cole is necessarily fact-intensive and therefore declined to exercise original jurisdiction under Rule 2:10-5. 

ASPHALT PAVING SYSTEMS, INC. VS. THE BOROUGH OF STONE HARBOR,

 The Legislature has declared that no business entity may be awarded a public contract unless, prior to or along with its bid, the business entity submits "a statement setting forth the names and addresses" of the individuals owning more than ten percent of the entity.  N.J.S.A. 52:25-24.2 (emphasis added).  In this appeal, the court held that the Legislature did not intend the word "addresses" to be synonymous with "home addresses" and that the statute's requirement is met when the bidder provides its owners' mailing addresses.

Green Knight Capital, LLC v. Gabriel Calderon

 The Tax Sale Law bears no hostility toward investors who otherwise meet the requirements of N.J.S.A. 54:5-89.1 when they prematurely attempt to redeem. Although the investor must always intervene before being allowed to redeem, a misstep like that which occurred here puts the tax sale certificate holder in no worse position than it would have possessed had the error not occurred. Here, because the LLC provided Calderon with more than nominal consideration and because the parties had the benefit of the chancery judge’s full consideration of their competing legal and equitable arguments, the LLC’s premature attempt to redeem should not vitiate the right to redeem it fairly acquired.

Friday, November 11, 2022

PAUL M. CARELLI VS. BOROUGH OF CALDWELL, ET AL. (L-5938-19

PAUL M. CARELLI VS. BOROUGH OF CALDWELL, ET AL. (L-5938-19 The court granted leave to appeal to consider the denial of cross-motions for summary judgment – based on stipulated facts – about whether plaintiff Paul M. Carelli was entitled to enforcement of a contractual provision, upon the early termination of his third four-year term as the Borough of Caldwell's administrator, that purported to allow him a severance package "equal to one month salary for each year of service." The court concluded that this contractual provision was unenforceable because, in allowing a severance package of more than eight months' salary, it was inconsistent with N.J.S.A. 40A:9-138, which imposes both a ceiling and a floor on a municipal administrator's severance to "any unpaid balance of his [or her] salary and his [or her] salary for the next 3 calendar months." For that reason, the court reversed and remanded for entry of summary judgment dismissing Carelli's complaint.

GUY GILLIGAN, ET AL. VS. SUSAN JUNOD, L.P.N., A-1907-21

 

Monday, October 31, 2022

ROBERT ALAM VS. AMERIBUILT CONTRACTORS (DIVISION OF WORKERS' COMPENSATION)

 ROBERT ALAM VS. AMERIBUILT CONTRACTORS (DIVISION OF WORKERS' COMPENSATION)

Ameribuilt Contractors appeals the workers' compensation judge's February 1, 2022 order rejecting a proposed settlement and disqualifying its assigned insurance counsel, Brown & Connery, LLP (B&C), on the basis of a perceived conflict between Ameribuilt's workers' compensation carrier, Travelers Property Casualty Insurance Co. (Travelers), and Travelers' ostensible insured, respondent Robert Alam.  The court concludes that the judge erred in finding that a conflict existed and, thus, there was no basis for the disqualification.  Accordingly, the court is constrained to reverse.

A trial judge may order the removal of counsel where there is a violation of the Rules of Professional Conduct.  Here, the judge disqualified B&C based on a violation of R.P.C. 1.7, which states, in pertinent part, that "a lawyer shall not represent a client if the representation involves a concurrent conflict of interest."  In evaluating whether a conflict exists, however, we are mindful that "[a] corporation is regarded as an entity separate and distinct from its shareholders."  Tully v. Mirz, 457 N.J. Super. 114, 123 (App. Div. 2018) (quoting Strasenburgh v. Straubmuller, 146 N.J. 527, 549 (1996)).  Additionally, "a corporation is regarded in law as an entity distinct from its individual officers, directors, and agents."  Printing Mart-Morristown v. Sharp Elecs. Corp., 116 N.J. 739, 761 (1989) (citation omitted).

Guided by these well-established legal principles, the court concludes that the trial judge erred in finding a conflict between Travelers and Alam.  In reaching that conclusion, we hold that the judge failed to distinguish Ameribuilt, the corporation, from Alam, an owner and shareholder.

SUMMARY DCPP VS. D.C.A. AND J.J.C.B., IN THE MATTER OF THE GUARDIANSHIP OF I.A.C.C., J.S.C.C., A.I.C.C. AND I.C.C. (FG-06-0025-20, CUMBERLAND COUNTY AND STATEWIDE) (RECORD IMPOUNDED)

 


Defendant appealed from a judgment of guardianship after trial, terminating her parental rights to four of her children.  The panel addressed whether the trial court improperly considered evidence of the children's relationship with their foster parents in violation of prong two of the best-interests test.  That prong was recently amended by the Legislature, which removed the sentence:  "[s]uch harm may include evidence that separating the child from his resource family parents would cause serious and enduring emotional or psychological harm to the child."  N.J.S.A. 30:4C-15.1(a)(2) (amended 2021).  The Legislature did not alter the other components of the best-interests standard.

The panel rejected the argument that, by deleting the above language from prong two, the Legislature intended to bar all evidence concerning a child's relationship with resource caregivers, even in the context of the other prongs of the best-interest standard.  Prong two as amended emphasizes consideration of whether a parent is able to overcome harm to the child as well as whether the parent can cease causing future harm.  The amendment clearly isolates those specific inquiries from consideration of the bonds a child has forged with resource caregivers.  Nevertheless, the amendments to prong two do not mean that such a bond may never be considered within any part of the best-interests analysis.  Neither the legislative history nor the plain text necessitates such a sweeping conclusion. 

The panel construed the deletion from prong two to give greater effect to the alteration, in a manner that remains coherent with prong four.  The amended statute requires a court to make a finding under prong two that does not include considerations of caregiver bonding, and then weigh that finding against all the evidence that may be considered under prong four—including the harm that would result from disrupting whatever bonds the child has formed.