FOULKE MANAGEMENT CORPORATION v. DOMESTIC LINEN SUPPLY CO INC.
Annotate this CaseNOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4725-18T2
FOULKE MANAGEMENT
CORPORATION,
Plaintiff-Appellant,
v.
DOMESTIC LINEN SUPPLY CO.,
INC., a New Jersey Corporation,
Defendant-Respondent.
_____________________________
FOULKE MANANGEMENT
CORPORATION,
Plaintiff,
v.
DOMESTIC LINEN SUPPLY CO.,
INC., a Pennsylvania Corporation,
and AMERICAN ARBITRATION
ASSOCIATION,
Defendants.
_____________________________
Argued January 28, 2020 – Decided March 5, 2020
Before Judges Yannotti and Firko.
On appeal from the Superior Court of New Jersey, Law
Division, Camden County, Docket Nos. L-4057-13 and
L-2354-14.
Laura D. Ruccolo argued the cause for appellant
(Capehart & Scatchard PA, attorneys; Laura D.
Ruccolo and Laura M. Danks, on the briefs).
Joseph D. Di Guglielmo argued the cause for
respondent (Burton Neil & Associates, and Joseph D.
Di Guglielmo, attorneys; Joseph D. Di Guglielmo, of
counsel and on the brief).
PER CURIAM
This matter is before us for the third time. Plaintiff Foulke Management
Corporation (Foulke) appeals from an order entered by the trial court on March
25, 2019 finding Foulke entered into contracts with Domestic Linen Supply Co.,
Inc. (Domestic PA) and an order entered on June 19, 2019, which compelled
Foulke to arbitrate its dispute with defendant, Domestic PA. We affirm both
orders.
I.
We derive the following facts from the parties' motion papers and the facts
established at the evidentiary hearing. There are two businesses with the name
Domestic Linen Supply Co., Inc. One of those businesses is a New Jersey
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2
corporation, Domestic Linen NJ, and the other is a Pennsylvania corporation
that is authorized to conduct business in New Jersey, Domestic Linen PA.
Foulke engaged in three automobile dealerships known as Cherry Hill
Triplex, Cherry Hill Dodge, and Cherry Hill Mitsubishi. In March of 2010,
Foulke entered into three uniform supply service contracts with an entity called
Domestic Linen Supply Co., Inc. to rent uniforms for its businesses. All three
contracts list Domestic PA's address as Philadelphia, Pennsylvania, and require
arbitration of disputes when the amount in controversy exceeds $10,000. The
contracts state that they should be construed in accordance with Pennsylvania
law, and notices should be sent to the company's manager in Philadelphia.
In 2013, Foulke filed a complaint against Domestic Linen NJ, in which it
asserted claims of breach of contract, common law fraud, and violations of the
New Jersey Consumer Fraud Act.1 Domestic Linen NJ filed a motion to dismiss
the complaint, arguing that Foulke entered into the contracts with Domestic
Linen PA, not Domestic Linen NJ. The prior trial judge did not rule on that
issue and ordered Foulke to arbitrate the dispute, as required by the agreements
set forth in the contracts.
1 N.J.S.A. 56:8-1 to -210.
A-4725-18T2
3
Domestic Linen PA then filed a demand for arbitration, asserting it was
the party that entered into the subject contracts with Foulke. In response, Foulke
filed an action to enjoin the arbitration proceeding on the ground that another
trial judge had ruled that Domestic Linen NJ was the proper contracting party.
The prior trial judge restrained Domestic Linen PA from proceeding with the
arbitration. Domestic Linen PA appealed that decision.
We reversed both orders, consolidated the cases, and remanded to the trial
court for an evidentiary hearing to determine whether Domestic Linen PA or
Domestic Linen NJ was the party with whom Foulke had entered into the
contracts. Foulke Mgmt. Corp. v. Domestic Linen Supply Co., No. A-0752-14
(App. Div. Mar. 14, 2016).
On remand, the prior trial judge did not comply with our mandate and
issued an order on February 2, 2018, compelling a jury trial to determine the
proper parties. He also denied Domestic NJ's motion for reconsideration on
March 15, 2018. We reversed and vacated the February 2, 2018 and March 15,
2018 orders and remanded to the trial court for a non-jury evidentiary hearing
on the issue as to which defendant was the party to the contract with Foulke.
Foulke Mgmt. Corp. v. Domestic Linen Supply Co., No. A-3219-17 (App. Div.
Dec. 5, 2018).
A-4725-18T2
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On the second remand, a different trial judge conducted an evidentiary
hearing on February 22, 2019. In a March 22, 2019 oral opinion, the trial judge
found that Foulke's service manager, Joe Scicili, now deceased, negotiated three
uniform rental agreements with Domestic PA's service manager, Lawrence
Messineo. The trial court also found that William Kopp, Foulke's general
manager and representative, "signed each agreement but never read page [two]
which contains both a choice of law clause (Pennsylvania) and arbitration
clause." In conclusion, the judge found Foulke entered into the contracts with
Domestic PA.
In an April 18, 2019 order, the trial judge permitted Foulke to file a motion
for leave to file and serve an amended complaint to bring its claims against
Domestic PA applying retroactively to the initial filing date of the complaint in
2013. The motion was granted, and Foulke filed its amended complaint on April
2, 2019. Domestic PA then moved to dismiss the complaint and compel
arbitration as per the arbitration provisions set forth in the contracts. On June
19, 2019, the trial judge ordered the parties to arbitrate their dispute and
dismissed the complaint.
The contracts include an arbitration clause at paragraph fifteen, which
states:
A-4725-18T2
5
In the event of any controversy or claim in excess of
$10,000.00 arising out of or relating to this agreement,
including but not limited to questions regarding the
authority of the persons who have executed this
agreement, the question, controversy or dispute shall be
submitted to and settled by arbitration to be held in the
city closest to the city in which the branch office of the
[c]ompany which serves the [c]ustomer is located. Said
arbitration shall be held in accordance with the then
prevailing commercial arbitration rules of the
American Arbitration Association [(AAA)] except any
rules which require the parties to use the [AAA] as their
sole [a]rbitration [a]dministrator. Judgment upon and
award rendered by the arbitrator may be entered in any
court having jurisdiction thereof. The filing party may
use either court or arbitration where the claim is less
than $10,000.00. Venue for any court proceeding shall
be in the county of the [c]ompany's branch office
servicing the [c]ustomer. The judge or arbitrator shall
include as part of the award all costs including
reasonable attorney fees and arbitration fees of the non-
breaching party where it is determined that one of the
parties has breached the agreement.
Foulke argued that it was not made aware of these terms and signed the
contracts, but Kopp, its signatory, did not read the second page where the
arbitration clause was printed. Additionally, Foulke argued that the arbitration
clause was unconscionable and lacked mutual assent. Domestic argued that both
the Federal Arbitration Act (FAA), 9 U.S.C. §§ 1 to 16, and the New Jersey
Arbitration Act, N.J.S.A. 2A:23B-1 to -32. controlled, thus the arbitration
agreement here was enforceable.
A-4725-18T2
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In his June 19, 2019 oral opinion, the trial judge found there was mutual
assent and waiver of the statutory right to adjudicate the parties' dispute in court.
The judge also explained there was "plain meaning in the language" that claims
in excess of $10,000 shall be settled by arbitration with the AAA. However, the
judge noted that "[t]he filing party may use either court or arbitration where the
claim is less than $10,000." In conclusion, the judge stated that these parties are
"two rather large companies with experience in the area of contracting" and
"experience in the area of arbitration clauses."
On appeal, Foulke argues that: (1) the arbitration agreement is
unenforceable because there was no mutual assent; (2) it was not provided with
proper notice of the arbitration agreement; (3) the arbitration language does not
address statutory claims; (4) the arbitration agreement is unconscionable and
was fraudulently induced; (5) the trial court erred by admitting parol evidence
to "reform" the agreement and by permitting "surprise witnesses" to testify at
the hearing; and (6) the trial court's finding that Domestic PA is the contracting
party is against the weight of the evidence.
II.
We apply a de novo standard when reviewing a motion judge's
determination of the enforceability of a contract. Goffe v. Foulke Mgmt. Corp.,
A-4725-18T2
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238 N.J. 191, 207 (2019). When reviewing arbitration clauses within contracts,
"[t]he enforceability of arbitration provisions is a question of law; therefore, it
is one to which we need not give deference to the analysis by the trial court
. . . ." Ibid.
We begin by recognizing the Federal and New Jersey Arbitration Acts
express a general policy favoring arbitration. Atalese v. U.S. Legal Servs. Grp.,
L.P., 219 N.J. 430, 440 (2014); see also 9 U.S.C. §§ 1 to 16; N.J.S.A. 2A:23B-
1 to -32. "The public policy of this State favors arbitration as a means of settling
disputes that otherwise would be litigated in a court." Badiali v. N.J. Mfrs. Ins.
Grp., 220 N.J. 544, 556 (2015) (quoting Cty. Coll. of Morris Staff v. Cty. Coll.
of Morris Staff Ass'n, 100 N.J. 383, 390 (1985)). Although enforcement is
generally favored, it "does not mean that every arbitration clause, however
phrased, will be enforceable." Atalese, 219 N.J. at 441.
A valid arbitration clause "must state its purpose clearly and
unambiguously." Id. at 435. Further, an arbitration agreement "must be the
product of mutual assent," which "requires that the parties have an
understanding of the terms to which they have agreed." Id. at 442 (quoting
NAACP of Camden Cty. E. v. Foulke Mgmt., 421 N.J. Super. 404, 424 (App.
Div. 2011)).
A-4725-18T2
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Our Supreme Court clearly set forth that a party "cannot be required to
arbitrate when it cannot fairly be ascertained from the contract's language that
[he or] she knowingly assented to the provision's terms or knew that arbitration
was the exclusive forum for dispute resolution." Kernahan v. Home Warranty
Adm'r of Fla., Inc., 236 N.J. 301, 322 (2019).
In its brief, Foulke contends the reverse sides of the contracts contain
paragraphs five through twenty-one, mostly consisting of small font letters with
no headings. Kopp testified that he did not see the back of the contracts and did
not read, sign, or initial them. Foulke also asserts that the arbitration agreement
language fails to state clearly that it was waiving its right to a jury trial.
The FAA governs the enforceability of arbitration agreements in contracts
involving interstate commerce. Section two of the FAA states:
A written provision in . . . a contract evidencing a
transaction involving commerce to settle by arbitration
a controversy thereafter arising out of such contract or
transaction, or the refusal to perform the whole or any
part thereof . . . shall be valid, irrevocable, and
enforceable, save upon such grounds as exist at law or
in equity for the revocation of any contract.
[9 U.S.C. §2]
We have stated that "New Jersey law comports with its federal counterpart
in striving to enforce arbitration agreements." Foulke, 421 N.J. Super. at 424.
A-4725-18T2
9
"An agreement relating to arbitration should thus be read liberally to find
arbitrability if reasonably possible." Ibid. (quoting Frumer v. Nat'l Home Ins.,
420 N.J. Super. 7 (App. Div. 2011)).
"An agreement to arbitrate, like any other contract, 'must be the product
of mutual assent, as determined under customary principles of contract law.'"
Atalese, 219 N.J. at 442 (citation omitted). "This requirement of a 'consensual
understanding' about the rights of access to the courts that are waived in the
agreement has led our courts to hold that clarity is required." Moore v. Woman
to Woman Obstetrics & Gynecology, L.L.C., 416 N.J. Super. 30, 37 (App. Div.
2010) (citation omitted).
"By its very nature, an agreement to arbitrate involves a waiver of a party's
right to have [its] claims and defenses litigated in court." Atalese, 219 N.J. at
442 (citation omitted). However, "an average member of the public may not
know—without some explanatory comment—that arbitration is a substitute for
the right to have one's claim adjudicated in a court of law." Ibid.
Here, paragraph fifteen of the agreement expressly instructed the parties
to choose between court or arbitration where the claim is less than $10,000 , but
states that in the event of any controversy or claim in excess of $10,000, as in
the case here, the controversy or dispute shall be submitted to and settled by
A-4725-18T2
10
arbitration. Moreover, the section states that the arbitration shall be held in
accordance with the then prevailing commercial arbitration rules of the AAA.
Furthermore, paragraph fifteen emphasized that judgment upon any award
rendered by the arbitrator may be entered in any court having jurisdiction. And,
venue for arbitration was the city closest to the city in which the branch office
of the company which serves the customer is located.
Unlike the plaintiff in Atalese, neither Foulke nor Domestic PA's
representatives were "an average member of the public." Ibid. Kopp was
sophisticated enough to serve as Foulke's general manager for three automobile
dealerships since 2001. Furthermore, Kopp testified that in 2009, he was
personally involved in addressing "consumer complaints that result in
litigation," and "had been involved in several arbitrations with dissatisfied
customers." He testified on behalf of Foulke in other matters in support of
enforcing arbitration clauses, before he executed the agreements at issue in this
case.
Moreover, Kopp admitted he read paragraph four of the contracts, which
states "[t]he [c]ustomer also warrants that he has read the entire contract, front
and back . . . ." We note this was not "a consumer contract of adhesion where
[one party] . . . possessed superior bargaining power and was the more
A-4725-18T2
11
sophisticated party in the transaction." Delta Funding Corp. v. Harris, 189 N.J.
28, 40 (2006). Rather, it was a negotiated agreement between sophisticated
business entities where the owners' representatives chose arbitration.
Additionally, Kopp assented to the terms of the contracts upon the
recommendation of Scicili, who negotiated the contracts on behalf of Foulke
with Domestic PA.
Nonetheless, Foulke incorrectly claims this case resembles Atalese. In
Atalese, a consumer seeking debt relief entered into a contract containing an
arbitration provision which "made no mention that plaintiff waived her right to
seek relief in court." 219 N.J. at 435, 437. The Court held "[t]he absence of any
language in the arbitration provision that plaintiff was waiving her statutory
right to seek relief in a court of law renders the provision unenforceable." Id. at
436. Here, the contracts made clear that Foulke was choosing arbitration for
claims in excess of $10,000 rather than seeking relief in court.
The Court "emphasize[d] that no prescribed set of words must be included
in an arbitration clause to accomplish a waiver of rights." Id. at 447. "Whatever
words" are chosen, "they must be clear and unambiguous that a consumer is
choosing to arbitrate disputes rather than have them resolved in a court of law."
Ibid. "[T]he parties must know that there is a distinction between resolving a
A-4725-18T2
12
dispute in arbitration and in a judicial forum." Id. at 445. Here, the contracts
informed the parties there was a distinction between resolving certain disputes
in arbitration and in court.
"In Atalese, the Court provided several examples of language sufficient to
meet these expectations." Barr v. Bishop Rosen & Co., 442 N.J. Super. 599,
606 (App. Div. 2015). The Court noted our Griffin decision "upheld an
arbitration clause, which expressed that '[b]y agreeing to arbitration, the parties
understand and agree that they are waiving their rights to maintain other
available resolution processes, such as a court action or administrative
proceeding, to settle their disputes.'" Atalese, 219 N.J. at 445 (alteration in
original) (quoting Griffin v. Burlington Volkswagen, Inc., 411 N.J. Super. 515,
518 (App. Div. 2010)). Like the arbitration clause approved in Griffin and
Atalese, the arbitration provision here made clear the parties were choosing to
use arbitration to solve their disputes in excess of $10,000 rather than a court
action.
The Court also cited another example, where the arbitration clause stated,
"the plaintiff agreed 'to waive [her] right to a jury trial,'" id. at 444 (alteration in
original) (citation omitted), and a third example where the arbitration clause
stated: "Instead of suing in court, we each agree to settle disputes . . . only by
A-4725-18T2
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arbitration," where "[t]here's no judge or jury." Id. at 445 (citation omitted).
The Court stated an arbitration "clause, at least in some general and sufficiently
broad way, must explain that the plaintiff is giving up her right to bring her
claims in court or have a jury resolve the dispute." Id. at 447.
Foulke relies on this last phrase and argues that mutual assent requires
that the parties have full knowledge of the terms they agreed upon. Here, the
arbitration clause amply notifies the parties that their claims are arbitrable if the
amount in dispute exceeds $10,000. Moreover, the Court approved both
Griffin's reference to the right to bring claims in court and other examples
referring to the right to have a jury. Id. at 444-46. The Court stated Griffin and
the other examples "show that, without difficulty and in different ways, the point
can be made that by choosing arbitration one gives up the 'time-honored right to
sue.'" Id. at 445.
Atalese simply requires a contract "to explain in some minimal way that
arbitration is a substitute for a consumer's right to pursue relief in a court of law
. . . ." Morgan v. Sanford Brown Inst., 225 N.J. 289, 294 (2016). In Morgan,
the plaintiffs—students—complained "they did not know that the arbitration
provision denied them their right of access to a judicial forum and to a jury trial."
Id. at 300-01. The Court noted the provision did not "explain that arbitration is
A-4725-18T2
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a substitute for bringing a claim before a court or jury." Id. at 306. The Court
reiterated that "[n]o magical language is required to accomplish a waiver of
rights in an arbitration agreement" and again cited the arbitration clause in
Griffin, which did not mention a jury. Id. at 309.
Thus, we reject Foulke's claim that the contracts' arbitration clause cannot
be enforced because it did not also advise about a right to a jury trial. Neither
Foulke nor Domestic PA claims to be ignorant that waiver of the right to seek
relief in court would waive the component right to a jury, and they are not
consumers.
We are satisfied that the arbitration provision here dictated it would be
conducted under a specified set of rules, namely the AAA, which sophisticated
parties, such as Foulke and Domestic PA, could consult if needed. Foulke
argues its sophistication must be construed under Garfinkel v. Morristown
Obstetrics Gynecology Assocs., P.A., 168 N.J. 124 (2001). Foulke's argument
is misplaced. In Garfinkel, the Court ruled a statutory claim was not waived by
an arbitration clause because it was "silent in respect of plaintiff 's statutory
remedies." 168 N.J. at 135. The Court found the clause's failure to encompass
the claim was not offset by plaintiff being a doctor. "Irrespective of plaintiff 's
status or the quality of his counsel, the Court must be convinced that he actually
A-4725-18T2
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intended to waive his statutory rights. An unambiguous writing is essential to
such a determination." Id. at 136.
Here, unlike Garfinkel, the arbitration provision was not inadequate or
unconscionable because it clearly informed the parties they waived litigation in
court for disputes exceeding $10,000 in favor of arbitration. In determining
whether Foulke and Domestic PA understood their choice, it was obviously
relevant to the trial judge that they were sophisticated.
Foulke also contends Domestic PA did not give proper notice of its
intention to enforce arbitration of all claims because the arbitration clause was
hidden and not conspicuous. However, Kopp admitted reading the front page of
the contract, which states that he read the entire contract, front and back. Thus,
we are unpersuaded by Foulke's argument that there "is no warning on the front
of the document" about the arbitration clause printed on the reverse side. The
trial judge also found Kopp signed the contracts outside the presence of
Domestic PA's representative. Hence, we discern no fraudulent inducement as
alleged by Foulke.
Likewise, Foulke's claim that it did not have the opportunity to have
counsel review the agreement is entirely without merit. Nothing in the record
suggests Foulke or its representatives were under duress to sign the contracts or
A-4725-18T2
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were dissuaded from having legal representation prior to executing the contracts.
We note that Foulke and its current attorney have repeatedly sought to enforce
Foulke's own arbitration agreements over the past decades. 2 Thus, Foulke was
no stranger to contracts or arbitration agreements. For these reasons, we affirm
the trial judge's decision to compel arbitration.
III.
Next, Foulke argues that the trial judge erred in allowing parol evidence
to reform the terms of the contract to apply to Domestic PA. In support of its
argument, Foulke asserts the contracts identify defendant as, "Domestic Linen
Supply Co., Inc. D/B/A Domestic Uniform Rental" and since Domestic NJ is
registered to Domestic Linen Supply Co., Inc. in New Jersey, Domestic NJ must
be the proper party to the contracts. We reject Foulke's argument.
The record shows that Domestic PA was registered to conduct business in
Pennsylvania under the name, "Domestic Uniform Rental." In its contracts with
Foulke, Domestic PA used its properly registered name, "Domestic Linen
Supply Co., Inc. D/B/A Domestic Uniform Rental."
2
Corchado v. Foulke Mgmt. Corp., No. 15-6600, 2 017 U.S. Dist. LEXIS 21457
(D.N.J. Feb. 14, 2017).
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N.J.S.A. 14A:2-2.1 governs alternate names of corporations in New
Jersey. The statue provides that, "[a]ny corporation may adopt and use any
alternate name, including any which would be unavailable as the name of a
domestic or foreign corporation because of the prohibitions of paragraph 14A:2 -
2(1)(b),… by filing a certificate of registration of a corporate alternate name
with the Secretary of State executed on behalf of the corporation." N.J.S.A.
14A:2-2.1(2).
Additionally, the registration of an alternate name does not grant the
registrant exclusive rights to use the alternate name, as argued by Foulke:
(4) Nothing in this section [governing alternate name
registrations] shall be construed
(a) To grant to the registrant of an alternate name any
right in the name as against any prior or subsequent user
of the name, regardless of whether used as a trademark,
trade name, business name, or corporate name; or
(b) To interfere with the power of any court to enjoin
the use of any such name on the basis of the law of
unfair competition or on any other basis except the
mere fact of identity or similarity of the alternate name
to any other corporate name.
[N.J.S.A. 14A:2-2.1(4)].
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We discern nothing untoward about the use of "Domestic Uniform Rental"
in New Jersey, and the trial judge correctly concluded that Domestic PA was the
proper party to the contracts.
Foulke argues the trial judge erred by going beyond the four corners of
the contracts and admitting parol evidence at the hearing relative to the parties '
course of conduct after the contracts were executed to reform them to reflect
Domestic PA as the proper party. At the hearing, Kopp testified that he intended
to contract with a New Jersey company. Messineo, Domestic PA's former
employee who signed the contracts on its behalf, testified about the
circumstances surrounding the signing of the contracts.
The parol evidence rule is a rule of substantive law and is not a rule of
evidence. Conway v. 287 Corp. Ctr. Assocs., 187 N.J. 259, 268 (2006). "In
general, the parol evidence rule prohibits the introduction of evidence that tends
to alter an integrated written document." Ibid.; see Restatement (Second) of
Contracts § 213 (Am. Law Inst. 1981). Our Supreme Court, however, has
adopted the "expansive view of the parol evidence rule, which was adopted in
the Second Restatement of Contracts," Conway, 187 N.J. at 268-69, that permits
a broad use of extrinsic evidence to achieve the ultimate
goal of discovering the intent of the parties. Extrinsic
evidence may be used to uncover the true meaning of
contractual terms. It is only after the meaning of the
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contract is discerned that the parol evidence rule comes
into play to prohibit the introduction of extrinsic
evidence to vary the terms of the contract.
[Id. at 270.]
"Where the parties have made [a] writing the sole repository of their
bargain, there is the integration which precludes evidence of antecedent
understandings and negotiations to vary or contradict the writing. This is in
essence the 'parol evidence rule' . . . ." Atl. N. Airlines, Inc. v. Schwimmer, 12 N.J. 293, 303 (1953); see also Filmlife, Inc. v. Mal "Z" Ena, Inc., 251 N.J. Super.
570, 573 (App. Div. 1991).
A determination as to whether a contract is integrated is based upon "the
conduct and language of the parties and the surrounding circumstances. The
document alone will not suffice." Schwimmer, 12 N.J. at 304 (quoting 9
Wigmore on Evidence, §§ 2413, 2430, 2431 (Chadbourn rev. 1981)). Whether
there is an integrated agreement between the parties, however, is an issue the
court must decide "preliminary to determination of . . . [the] application of the
parol evidence rule." Restatement (Second) of Contracts § 209. Where the court
determines there is only partial integration of an agreement in a written contract,
a court can properly consider the parol evidence to determine the complete terms
A-4725-18T2
20
of the agreement. Zone Co. v. Serv. Transp. Co., 137 N.J.L. 112, 118-19 (Sup.
Ct. 1948); Restatement (Second) of Contracts § 210.
Here, the trial judge did not rely upon parol evidence to alter an integrated
document. See Conway, 187 N.J. at 268. Instead, the judge relied upon the
testimony of the witnesses, Domestic PA's Pennsylvania corporate registration
and fictitious name registration, invoices, payments, and other items to identify
the party with whom Foulke contracted. Based upon our review of the record,
we are satisfied there was substantial credible evidence supporting the trial
judge's conclusion that Domestic PA was the party to the contracts with Foulke.
IV.
Finally, we address Foulke's argument that the trial judge abused his
discretion by allowing Messineo and George Chumas, the general manager for
Domestic NJ, to testify on thirty-eight hours prior notice to Foulke. In its brief,
Foulke claims it was "surprised" by Domestic PA's failure to name these two
witnesses in discovery.
Messineo negotiated and signed the contracts for Domestic PA. The
record shows Foulke knew about Messineo since 2010, but it did not subpoena
him. Foulke's attorney did not depose Chumas, however, he did not have any
A-4725-18T2
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factual knowledge concerning the contracts at issue because Domestic Linen NJ
was not a party to the contract.
The trial court's decision to hear relevant testimony is entitled to
deference, in the interest of its factfinding at the hearing. Haven Sav. Bank v.
Zanolini, 416 N.J. Super. 151, 161-62 (App. Div. 2010). We discern no abuse
of discretion by the trial judge in permitting Messineo and Chumas to testify.
Messineo's signature appears on the agreement with the title of "Regional Sales
Manager" printed underneath.
Clearly, Foulke had actual notice of Messineo's identity and role in this
matter since the agreement was signed on March 30, 2010. Foulke's claim that
it was taken by "surprise" by his testimony is devoid of merit. Chumas had no
knowledge of the issues pertinent to the judge's decision. Therefore, we discern
no prejudice to Foulke.
Any arguments asserted by Foulke that we have not expressly addressed
lack sufficient merit to warrant discussion in a written opinion. R. 2:11-
3(e)(1)(E).
Affirmed.
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