 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Strasenburgh v. Straubmuller8/8/1995
t resolve this question here. As plaintiffs point out, they are not seeking a second remedy for the wrongs that are the subject of the appraisal proceeding. They argue that the two suits are not duplicative because their causes of action in this litigation are based on events that pre-dated their cause of action in the appraisal proceeding and are unrelated to the corporate restructuring that triggered the appraisal proceeding. See Yanow v. Teal Indus., Inc., 178 Conn. 262, 422 A.2d 311 (Conn. 1979) (plaintiffs are not precluded from bringing "claims antecedent to and unrelated to the merger," notwithstanding statute makes appraisal the exclusive remedy.)
While N.J.S.A. 14A:11-5(2) prohibits a Dissenting shareholder from enforcing "any other right to which he might otherwise be entitled by virtue of share ownership," arguably, "any other right" means a "right" involving the subject of the Dissent. To conclude otherwise, would deprive plaintiffs of any remedy for antecedent claims of personal injury .
We note also that the "Source or Reference" following N.J.S.A. 14A:11-5 refers to "Model Act: § 74(1960)." In its 1984 revision, the "Model Act," Model Business Corp. Act § 13.02(b) (1984), addresses the problem of whether an appraisal action is exclusive, stating: "A shareholder entitled to Dissent and obtain payment for his shares under this chapter may not challenge the corporate action creating his entitlement unless the action is unlawful or fraudulent with respect to the shareholder or the corporation." (emphasis added). Arguably, this section would allow a Dissenting shareholder to challenge antecedent corporate action because the provision appears only to prohibit challenges to corporate action "creating [the shareholder's] entitlement" to Dissent and appraisal. Accordingly, we are satisfied that N.J.S.A. 14A:11-5 does not bar plaintiffs from seeking a remedy in this action which is based on alleged antecedent, unrelated events.
IV.
Plaintiffs contend that the Judge erred in determining that their allegation of fraud was "absolutely vague." R. 4:5-8 requires that in allegations of fraud or misrepresentation, "particulars of the wrong, with dates and items if necessary, shall be stated insofar as practicable." The Judge said:
There isn't a single fact that anyone could probably identify that's being asserted. Only Conclusions.
Reliance is made upon events of the distant past. The plaintiffs are asserting they were lulled into not doing something earlier by these wrongful acts. What the wrongful acts are were not stated and why they were lulled and what they would have done is not stated. There are no dates, no specifics . . . .
We disagree.
In opposing the motion to dismiss, as noted earlier, plaintiffs were "entitled to every reasonable inference of fact," Printing Mart-Morristown, supra, 116 N.J. at 746, and an "indulgent reading of the allegations in the complaint." Dreier Co., Inc. v. Unitronix Corp., 218 N.J. Super. 260, 274, 527 A.2d 875 (App. Div. 1986). Giving plaintiffs the indulgent reading to which they are entitled, our review of the complaint persuades us plaintiffs have adequately set forth all the elements of a cause of action for fraud, see Nappe v. Anschelewitz, Barr, Ansell & Bonello, 97 N.J. 37, 51-52, 477 A.2d 1224 (1984), breach of fiduciary duties and negligent misrepresentation. Accordingly, we need not address plaintiffs' request for leave to amend the complaint.
In sum, bearing in mind the appropriate standard of review at this early stage of the proceedings, we conclude the complaint states a cause of action for damages based on breach of fiduciary duty, negligent mi
Page 1 2 3 4 5 6 7 8 New Jersey Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|