DEFENDANT'S VERDICT - BREACH OF CONTRACT - LEGAL FRAUD; EQUITABLE FRAUD AND CONSPIRACY TO DEFRAUD - PLAINTIFF CLAIMS DEFENDANTS BREACHED TERMS OF SECURITY AGREEMENT AND USED FUNDS PROVIDED BY PLAINTIFF FOR PURPOSES PROHIBITED BY TERMS OF AGREEMENT - PLAINTIFF SEEKS TO FORECLOSE ON MORTGAGE PER REMEDIES PROVIDED BY AGREEMENT - DEFENDANTS ASSERT AGREEMENT BETWEEN PARTIES FAILED TO IMPOSE ANY PERSONAL LIABILITY ON DEFENDANTS.

• Pages: 7-8

REFERENCE

Plaintiff’s traffic engineering expert: Lee Klein, PE

from West Orange, NJ.

Kunzweiler vs. Acme Markets, et al. Docket no. BER-L-

8560-18, 11-15-21.

Attorneys for plaintiff: Edward Capozzi and Corey

Dietz of Brach Eichler, LLC in Roseland, NJ.

COMMENTARY

Theplaintiffemphasized that the parking lot contained no crosswalks

or signage, arguing that it was clear that these factors substantially

contributedtothe incident. The plaintiff took the position that in addi-

tiontoguidingthedriver, such safeguards are necessary to permit pa-

tronstowalk in the lot as safely as possible. In this regard, the plaintiff

would have stressed that it was his habit and custom to follow these

safety features when provided. Additionally, the evidence that the

configuration of the lot did not comply with the ADA would also be ex-

pectedtocontributetoajury reaction,notwithstanding that the plain-

tiff was not disabled as of the time of the accident.

DEFENDANT’S VERDICT – BREACH OF CONTRACT – LEGAL FRAUD; EQUITABLE FRAUD

AND CONSPIRACY TO DEFRAUD – PLAINTIFF CLAIMS DEFENDANTS BREACHED TERMS

OF SECURITY AGREEMENT AND USED FUNDS PROVIDED BY PLAINTIFF FOR

PURPOSES PROHIBITED BY TERMS OF AGREEMENT – PLAINTIFF SEEKS TO FORECLOSE

ON MORTGAGE PER REMEDIES PROVIDED BY AGREEMENT – DEFENDANTS ASSERT

AGREEMENT BETWEEN PARTIES FAILED TO IMPOSE ANY PERSONAL LIABILITY ON

DEFENDANTS.

Monmouth County, NJ

In this breach of contract and fraud case, the

plaintiff LLC asserted that the defendants

breached a business agreement and owed the

plaintiff the return of its $500,000 investment in

the defendants’ business. The defendants denied

the plaintiff’s claims and asserted that they could

not be found personally liable because there was

no privity of contract establishing personal liability

and they did not engage in any acts or omissions

which would impose personal liability.

The defendants owned and operated certain devel-

oped real property at 800-802 Main Street and 806

Main Street in Bradley Beach. A restaurant was oper-

ated at the subject property. The defendants were

the sole members of the LLC. The plaintiff’s principal

and one of the defendants had developed a social

friendship and often talked business over golf. The

plaintiff asserted that the defendant boasted about

his construction businesses and business prowess. The

plaintiff maintained that, based in large part on this

relationship, the plaintiff agreed to enter into a con-

tractual relationship with the defendants. In early

2010, the defendants and a principal of the plaintiff

LLC had discussions regarding the plaintiff investing in

a New York-based LLC. The defendants and one

other individual were, originally, the sole members of

the subject LLC, a construction/development

company.

The defendants asked for a loan of $500,000. The

payback of the loan was secured by a 5% interest in

the subject construction LLC and a mortgage on the

subject restaurant property in Bradley Beach. The

agreement provided that, if the plaintiff did not re-

ceive back its $500,000 on or before June 1, 2012, it

would have the right to foreclose on the mortgage in

order to receive the payback of the loan. The plaintiff

claimed that the parties executed a Security Agree-

ment which provided in part that the defendants, in

their individual and corporate capacities, would give

the plaintiff a mortgage of $500,000 and that the

mortgage would only be cancelled and the agree-

ment satisfied once the money was repaid and, if it

was not, the plaintiff was entitled to pursue all legal

remedies and recover all reasonable attorney fees

plus costs.

The plaintiff also claimed that the defendants made

certain representations and warranties to the plaintiff

concerning the expected success of the company

and the expected return of the plaintiff’s investment

plus additional profit from the company’s expected

success. They also represented that the company

was going to use the money to develop new proper-

ties in New York, New Jersey and Florida and claimed

to have contracts in place to perform the develop-

ments. The plaintiff claimed that, at the time that the

defendants made these representations, they knew

they were not true and that the plaintiff was relying on

them as an inducement to give the defendants

$500,000. The subject construction company

thereafter filed bankruptcy.

The plaintiff claimed that the defendants’ breach of

the mortgage agreement caused the plaintiff to suf-

fer damages and entitled it to the right to the return

of the $500,000 given to the defendants. The plaintiff

claimed that the defendants represented to the

plaintiff that none of its investment monies would be

used to pay any past debts of the company or them

individually. The plaintiff later discovered that the sub-

ject company was insolvent at the time that the

$500,000 was wired to the defendants and that the

defendants used the money to pay past debts and

to pay the defendants, other members of the subject

construction company, and family members of the

defendants.

SUMMARIES WITH TRIAL ANALYSIS 7

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