Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

DeMarco v. DeMarco

October 4, 2007

LUCY F. DEMARCO, PLAINTIFF-APPELLANT,
v.
J. GARFIELD DEMARCO, DEFENDANT-RESPONDENT.



On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, L-2589-04.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued September 18, 2007

Before Judges Skillman and Winkelstein.

Following a bench trial, plaintiff appeals from a July 14, 2006, judgment that dismissed her complaint. We affirm.

Plaintiff is married to Mark DeMarco, the brother of defendant, J. Garfield DeMarco. Defendant, his brother, and their sister, Anna Papinchak, are one-third shareholders of a family-owned cranberry business known as A.R. DeMarco Enterprises, Inc. (ARD) and Chatsworth Cranberry Association, Inc. (Chatsworth), now known as ARD. In 1994, Mark DeMarco filed a lawsuit against defendant, his sister and others alleging acts of corporate misconduct. In August 1995, plaintiff filed a personal injury lawsuit against defendant, claiming that he assaulted her.

On September 14, 1995, defendant and Mark DeMarco agreed to settle Mark DeMarco's lawsuit. The agreement to settle was conditioned on defendant settling plaintiff's assault claim against him. Consequently, on October 3, 1995, plaintiff and defendant settled the assault claim. Under the terms of the settlement agreement, defendant agreed to pay plaintiff $40,000 annually through 2009. Defendant's attorney physically drafted the agreement, but he did so with input from plaintiff's attorney as to the terms and the language employed.

The settlement agreement includes a discharge clause that releases defendant's obligation to continue payments to plaintiff if two conditions are met:

[I]n the event at any time . . . (B) [plaintiff] or any person or entity holding record title to shares (of which [plaintiff] is the beneficial owner either directly or through a trust or any other entity) of the capital stock of either [ARD] or [Chatsworth] . . . institutes any action, lawsuit or claim (whether or not [defendant] is a party thereto) that actions taken by [defendant] prior to the date of this Agreement or that [defendant's] failure to take an action or actions prior to the date of this Agreement with respect to [ARD] and/or [Chatsworth] were improper in any respect, then, upon the occurrence of any such event, [defendant] shall be released from his obligation to make Annual Installments and [defendant's] obligation to pay Annual Installments shall be forever discharged.

Defendant invoked the discharge clause in April 2004, terminating his $40,000 per year payments to plaintiff, after Mark DeMarco filed a lawsuit in May 2003*fn1 in which he sued defendant, his sister, ARD, and other entities, seeking injunctive relief, an accounting and damages.

This lawsuit followed. Prior to trial, on April 14, 2005, plaintiff and defendant entered into the following stipulation:

Plaintiff Lucy F. DeMarco is the beneficiary of a testamentary trust set forth in a November 30, 2004 Will executed by plaintiff's husband, Mark A. DeMarco, creating a marital deduction trust. Therefore, the plaintiff is the owner of a beneficial interest in a trust which would receive the capital stock of either [ARD] or [Chatsworth] . . . as referred to ¶ 3(B) of the attached Settlement Agreement between the parties dated October 3, 1995. Mark A. DeMarco has been, at all relevant times, a "person or entity holding record title to shares (of which Lucy [DeMarco] is the beneficial owner either directly or through a trust or any other entity) of the capital stock of either [ARD] or [Chatsworth] . . ." as set forth in ¶ 3(B) of the attached Settlement Agreement between the parties dated October 3, 1995.

The only issues remaining in dispute are (1) whether the [2003 lawsuit] constitutes an "action, lawsuit or claim (whether or not Garfield [DeMarco] is a party thereto) that actions taken by Garfield [DeMarco] prior to the date of this Agreement or that Garfield [DeMarco]'s failure to take an action or actions prior to the date of this Agreement with respect to [ARD] and or [Chatsworth] were improper in any respect," as set forth in ¶ 3(B) of the attached Settlement Agreement between the parties dated October 3, 1995; and (2) whether the Court in interpreting the Agreement finds that the specific clause in question is enforceable against Lucy F. DeMarco.

The case was tried for three days before Judge Kane without a jury. The court issued a written opinion on June 28, 2006, which ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.