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BER-L-006761-21 11/22/2023 11:26:35 AM Pg 1 of 9 Trans ID: LCV20233448985
BROWN McGARRY NIMEROFF LLC Attorneys for Defendants,
A Foreign Limited Liability Company Tapestry Cooper River LLC
By: Sigmund J. Fleck, Esquire Jesal Patel
Attorney I.D. No. 036191995 Kamlesh Modh
By: Patrick J. Brennan, Esquire
Attorney I.D. No. 324952020
158 W. Gay Street, Suite 200
West Chester, PA 19380
610-755-3311
CENTRA CAPITAL INVESTMENTS LLC, SUPERIOR COURT OF NEW JERSEY
Plaintiff
LAW DIVISION
vs.
BERGEN COUNTY
TAPESTRY COOPER RIVER LLC, JESAL
PATEL, and KAMLESH MODH, DOCKET NO.: L-6761-21
Defendants
Civil Action
DEFENDANTS’ RESPONSE IN
OPPOSITION TO PLAINTIFF’S
MOTIONS IN LIMINE
Defendants Tapestry Cooper River LLC, Jesal Patel, and Kamlesh Modh
(hereinafter collectively the “Tapestry Parties”) hereby submit this Response in
Opposition to Plaintiff Centra Capital Investments, LLC’s Motions In Limine.
I. Matter Before the Court
Currently before this Honorable Court are the Motions In Limine filed by Plaintiff
Centra Capital Investments, LLC (hereinafter “Centra”). Centra’s Motions in Limine seek:
(1) to bar the Tapestry Parties from introducing extrinsic evidence at the time of trial
pursuant to the Parol Evidence Rule; and (2) to estop the Tapestry Parties from seeking a
jury trial.
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II. Questions Presented
1. Should this Honorable Court deny Centra’s Motion In Limine seeking to bar
the Tapestry Parties from introducing evidence pursuant to the Parol
Evidence Rule?
Suggested Answer: Yes.
2. Should this Honorable Court deny Centra’s Motion In Limine to estop the
Tapestry Parties from seeking a jury trial?
Suggested Answer: Yes.
III. Legal Argument
a. Plaintiff’s Motion In Limine Based on the Parol Evidence Fails as a Matter
of Law.
Plaintiff’s Motion In Limine related to the Parol Evidence Rule references emails
dated August 3 and August 4, 20211, wherein Ramesh Patel stated that the Conditional
Loan Commitment would be executed with the specific understanding that the Tapestry
Parties would only be liable for the Commitment Fee if the loan failed to close because of
Tapestry’s conduct. While not stated in Centra’s Motion, the email also includes the
language that in the event that the loan is less than four million dollars or conditions are
added beyond the executed commitment, the Tapestry Parties will not be liable for any
Commitment Fee.
In support of its contention, Centra argues that the Loan Commitment is a fully
integrated and unambiguous contract, which expressly supersedes prior or outside
agreements. In support of this position, Centra cites to Conaway v. 287 Corp. Ctr. Assocs.,
1Upon information and belief, the email Centra is referring to is dated August 1, 2021, not August
3 / 4, 2021.
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187 N.J. 259, 270 (2006), which states that the “parol evidence rule comes into play to
prohibit the introduction of extrinsic evidence to vary the terms of the contract.” For the
reasons set forth below, Centra’s Motion should be denied.
First, from the outset of the litigation, the Tapestry Parties have argued that the
Conditional Loan Commitment is not a valid contract, rather it is a conditional promise.
As such, the Conditional Loan Commitment was never effective, and the Tapestry Parties
are not bound by its terms. In support of this position, the Tapestry Parties direct the
Court to the “ACCEPTANCE OF COMMITMENT” provision in the Conditional Loan
Commitment, which provides:
By the plain language contained in this section, several conditions needed to occur
for the Conditional Loan Commitment to become effective. First, the Conditional Loan
Commitment needed to be signed and sent to Centra accompanied with a Loan
Commitment Fee of Three Percent. Second, Centra needed to commit to provide funds to
the Tapestry Parties pursuant to the Terms in the Conditional Loan Commitment. The
provision goes on to state that Centra would accept payment of the Commitment Fee at
the time of closing. Here, the Commitment Fee was never paid and Centra was never
committed to making the loan, based on the Conditional Loan Commitment. Centra’s
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commitment under the Conditional Loan Commitment was conditioned on its due
diligence and underwriting, which by David Hecht’s own testimony, would not occur
until an executed Conditional Loan Commitment was received. As these events never
occurred, the Conditional Loan Commitment was not a contract as it was never effective,
and therefore the Parol Evidence Rule does not apply.
Second, even assuming arguendo that the Conditional Loan Commitment
constitutes a valid contract, which is specifically denied by the Tapestry Parties, any
extrinsic evidence is not barred by the Parol Evidence Rule. The case cited by Centra in
support of its Motion, Conaway, supports the Tapestry Parties argument that the
referenced email is in fact admissible. The Conaway Court held that evidence of
circumstances, even when dealing with an integrated agreement that on its face is free
from ambiguity, is always admissible. Conaway, 187 N.J. at 269 (citations omitted). Such
evidence may “include consideration of the particular contractual provision, an overview
of all the terms, the circumstances leading up to the formation of the contract, custom,
usage, and the interpretation place on the disputed language by the parties’ conduct. Id.
(citations omitted). This more expansive view of the parol evidence rule provides that
“[a]ntecedent and surrounding factors that throw light upon…[the meaning of the
contract] may be proved by any kind of relevant evidence.” Id.; citing 3 Corbin on Contracts
§579 (West 1960); see also Restatement (Second) Contracts §214 (“Agreements and
negotiations prior to or contemporaneous with the adoption of a writing are admissible
in evidence to establish…the meaning of the writing, whether or not integrated.”).
Extrinsic evidence will also be permitted to discover and establish the intent of the
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parties. See Conaway, 187 N.J. at 270 (“In sum, we permit 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.”)
As previously stated, by looking at the entire “ACCEPTANCE OF
COMMITMENT” provision, it is not clear when the Conditional Loan Commitment
becomes effective, when/if Centra is committed to making the loan, and when the
Commitment Fee is to be paid. Therefore, the August 1, 2021 email referenced by Centra,
as well as other extrinsic evidence related to the Conditional Loan Commitment, should
be admitted for purposes of allowing the jury to determine the intent of the Parties and
the true meaning of the Conditional Loan Commitment.
Additionally, Centra argues that the Parol Evidence Rule bars this extrinsic
evidence because the document itself is fully integrated. Generally, “the parol evidence
rule operates to prohibit the introduction of oral promises to alter or vary an integrated
written instrument…” Ocean Cape Hotel Corp. v. Masefield Corp., 63 N.J Super. 369, 378
(App. Div. 1960)(citations omitted). However, the introduction of extrinsic evidence to
prove fraud in the inducement is a well-recognized exception to the parol evidence rule
under New Jersey law. In fact, “it is well settled that a party to an agreement cannot,
simply by means of a provision of a written instrument, create an absolute defense or
prevent the introduction of parol evidence in an action based on fraud in the inducement
to contract.” Filmlife, Inc. v. Mal “Z” Ena, Inc., 251 N.J. Super. 570, 573-74 (App. Div. 1991);
citing Ocean Cape, 63 N.J. Super. at 377-78. The reason that extrinsic evidence to prove
fraud is admitted is not because it is offered to alter or vary express terms of a contract,
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but rather to avoid the contract or to support a separate claim based on the fraudulent
inducement. Id., at 574; citing Ocan Cape, at 378. As evidenced by the Tapestry Parties’
counterclaim, fraud in the inducement of the Conditional Loan Commitment has been
alleged against Centra.
Therefore, the Tapestry Parties do not seek to introduce this evidence to change
the terms of the Conditional Loan Commitment, rather to void the Conditional Loan
Commitment altogether and to pursue its counterclaims against Centra. As such, Centra’s
Motion must be denied.
b. Plaintiff’s Motion In Limine Seeking to Estop the Tapestry Parties from
Seeking a Jury Trial Fails as a Matter of Law.
The second request raised in Centra’s Motion In Limine is to estop the Tapestry
Parties from seeking a jury trial based on the provisions contained in the Conditional
Loan Commitment. As argued above, the Tapestry Parties contend that the Conditional
Loan Commitment is not an enforceable contract, rather it is a conditional promise to
enter a contract, and the Tapestry Parties are therefore not bound by its provisions. For
the convenience and efficiency of the Court, the Tapestry Parties hereby incorporate by
reference their arguments set forth above related to the unenforceability of the jury
waiver provision, as though fully set forth herein at length, and request that this Court
deny Centra’s Motion seeking to estop the Tapestry Parties from seeking a jury trial.
If the Court finds that the Conditional Loan Commitment is a contract, the
Tapestry Parties argue that each of the Tapestry Parties is still entitled to a jury trial on
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the basis that the Conditional Loan Contract is one of adhesion, and therefore, the jury
trial waiver provision contained therein is unenforceable as a matter of law.
Where there has been a contractual waiver of the right of a jury trial, it is important
to consider “[t]he right to a jury trial…is far more fundamental than the right to personal
service, and cannot be waived absent a showing that its relinquishment is knowing and
intention.” Fairfield Leasing Corp. v. Techni-Graphics, Inc., 256 N.J. Super. 538, 541 (Law Div.
1992)(citations omitted). In Fairfield, the lessor sought to strike the lessee’s demand for a
jury trial arguing that the lease contained a jury waiver provision. Fairfield, 256 N.J. at
539. The Fairfield Court determined that that contract in that case was an adhesion
contract, meaning that it was a standardized mass contract and not bargained for by
either party even though lessee had signed the contract. Id., at 539-540. Thus, the Court
held that jury trial waiver provisions in contracts of adhesion are unenforceable. Id.
In the case at issue, the Conditional Loan Commitment, if in fact deemed a
contract, is one of adhesion. The Conditional Loan Commitment itself is one-sided, giving
Centra all the power under the Conditional Loan Commitment. Centra’s interpretation
of the Conditional Loan Commitment is that they are entitled to the Loan Commitment
Fee, even though Centra was never committed to make the loan pursuant to the agreed
upon terms, no loan was ever made, and at any time after the Tapestry Parties executed
the Conditional Loan Commitment, Centra had carte blanche to modify the Conditional
Loan Commitment. See Hecht Deposition Transcript at 39:12-16. Further, the Conditional
Loan Commitment itself is a form contract, like the contract in Fairfield. This is supported
by David Hecht’s own testimony, which states that the Conditional Loan Commitment is
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a standard form that he created in his thirty (30) years of experience. See Hecht Deposition
Transcript at 30:8-31:2. The Tapestry Parties submit to the Court that the Conditional Loan
Commitment is a contract of adhesion, and therefore, the jury trial waiver provision
cannot be enforced as a matter of law.
In further support of this argument, the Tapestry Parties submit to the Court that
the jury demand was made two (2) years ago, when it filed its Answer with New Matter
and Counterclaims on November 22, 2021, and as such, the Tapestry Parties have been
preparing for this matter as a jury trial. It would be unjust and prejudicial to the Tapestry
Parties for this Court to enforce the jury trial provision based on the lapse of time when
the demand was made, the proximity to trial, and the preparation of the Tapestry Parties
for a jury trial, and therefore Centra’s Motion should be denied.
Lastly, should this Court determine that the jury trial waiver is enforceable, it is
only enforceable as to Defendant Tapestry Cooper River, LLC. The waiver provisions in
the Conditional Loan Commitment only refer to the “Borrower.” By the plain language
of the Conditional Loan Commitment, the “Borrower” is Tapestry Cooper River LLC, and
both Jesal Patel and Kamlesh Modh are referred to as “Guarantors”. There is no language
in the Conditional Loan Commitment that would support Centra’s argument that the
Guarantors waived their right to a jury trial.
For the reasons set forth above, Centra’s Motion In Limine to estop the Tapestry
Parties from seeking a jury trial should be denied as a matter of law.
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IV. Conclusion
For the foregoing reasons, Defendants Tapestry Cooper River LLC, Jesal Patel,
and Kamlesh Modh respectfully request that this Honorable Court enter an Order
denying Plaintiff Centra Capital Investments, LLC’s Motions In Limine to bar extrinsic
evidence and to estop the Tapestry Parties from seeking a jury trial.
BROWN MCGARRY NIMEROFF LLC
A Foreign Limited Liability Company
DATE: November 22, 2023 BY: /s/ Patrick J. Brennan
Sigmund J. Fleck, Esquire
Scott M. Klein, Esquire
Patrick J. Brennan, Esquire
Attorneys for Defendants
BER-L-006761-21 11/22/2023 11:26:35 AM Pg 1 of 1 Trans ID: LCV20233448985
BROWN McGARRY NIMEROFF LLC Attorneys for Defendants,
A Foreign Limited Liability Company Tapestry Cooper River LLC
By: Sigmund J. Fleck, Esquire Jesal Patel
Attorney I.D. No. 036191995 Kamlesh Modh
By: Scott M. Klein, Esquire
Attorney I.D. No. 404372022
By: Patrick J. Brennan, Esquire
Attorney I.D. No. 324952020
158 W. Gay Street, Suite 200
West Chester, PA 19380
610-755-3311
CENTRA CAPITAL INVESTMENTS LLC, SUPERIOR COURT OF NEW JERSEY
Plaintiff
LAW DIVISION
vs.
BERGEN COUNTY
TAPESTRY COOPER RIVER LLC, JESAL
PATEL, and KAMLESH MODH, DOCKET NO.: L-6761-21
Defendants
Civil Action
(Proposed) ORDER
This matter, having been brought before the Court on Plaintiff Centra Capital
Investments LLC’s Motion In Limine #1 (Barring the introduction of extrinsic evidence
pursuant to the Parol Evidence Rule) and Motion In Limine #2 (Estop Defendants from
seeking a Jury Trial), and Defendants Tapestry Cooper River LLC, Jesal Patel, and
Kamlesh Modh’s Response in Opposition to Plaintiff’s Motions, and the Court having
considered the matter and for good cause appearing,
It is on this __ day of ___________, 2023, ORDERED that Plaintiff Centra Capital
Investments LLC’s Motion In Limine #1 and Motion In Limine #2 are hereby denied.
____________________________________
, J.S.C.
□ Opposed
□ Unopposed
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BROWN McGARRY NIMEROFF LLC Attorneys for Defendants,
A Foreign Limited Liability Company Tapestry Cooper River LLC
By: Scott M. Klein, Esquire Jesal Patel
Attorney I.D. No. 404372022 Kamlesh Modh
By: Patrick J. Brennan, Esquire
Attorney I.D. No. 324952020
158 W. Gay Street, Suite 200
West Chester, PA 19380
610-755-3311
CENTRA CAPITAL INVESTMENTS LLC, SUPERIOR COURT OF NEW JERSEY
Plaintiff LAW DIVISION
vs. BERGEN COUNTY
TAPESTRY COOPER RIVER LLC, JESAL DOCKET NO.: L-6761-21
PATEL, and KAMLESH MODH,
Defendants Civil Action
CERTIFICATION OF SERVICE
I, Patrick J. Brennan, Esquire, of full age, hereby certify as follows:
1. I am an attorney-at-law duly licensed to practice before the Courts of the
State of New Jersey and am associated with the firm of Brown McGarry Nimeroff, LLC,
attorneys for Defendants in the above-captioned matter. I am one of the attorneys
charged with the care, responsibility, and management of the within action and am fully
familiar with the facts contained herein.
2. On November 22, 2023, I caused to be filed via the New Jersey eCourts
Filing System the Defendants’ Response in Opposition to Plaintiff’s Motions in Limine.
3. On November 22, 2023, copies of the above-referenced documents were
served upon all attorneys who are registered with the Electronic Filing System. They may
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access this filing through the Court’s System and notice of this filing will be sent to these
parties by the operation of the Court’s Electronic Filing System.
4. I hereby certify that the foregoing statements made by me are true. I am
aware that if any of the foregoing statements made by me are willfully false, I am subject
to punishment.
BROWN MCGARRY NIMEROFF LLC
A Foreign Limited Liability Company
DATE: November 22, 2023 BY: /s/ Patrick J. Brennan
Sigmund J. Fleck, Esquire
Scott M. Klein, Esquire
Patrick J. Brennan, Esquire
Attorneys for Defendants, Tapestry
Cooper River LLC, Jesal Patel and
Kamlesh Modh
Preview
BER-L-006761-21 11/22/2023 11:26:35 AM Pg 1 of 9 Trans ID: LCV20233448985 BROWN McGARRY NIMEROFF LLC Attorneys for Defendants, A Foreign Limited Liability Company Tapestry Cooper River LLC By: Sigmund J. Fleck, Esquire Jesal Patel Attorney I.D. No. 036191995 Kamlesh Modh By: Patrick J. Brennan, Esquire Attorney I.D. No. 324952020 158 W. Gay Street, Suite 200 West Chester, PA 19380 610-755-3311 CENTRA CAPITAL INVESTMENTS LLC, SUPERIOR COURT OF NEW JERSEY Plaintiff LAW DIVISION vs. BERGEN COUNTY TAPESTRY COOPER RIVER LLC, JESAL PATEL, and KAMLESH MODH, DOCKET NO.: L-6761-21 Defendants Civil Action DEFENDANTS’ RESPONSE IN OPPOSITION TO PLAINTIFF’S MOTIONS IN LIMINE Defendants Tapestry Cooper River LLC, Jesal Patel, and Kamlesh Modh (hereinafter collectively the “Tapestry Parties”) hereby submit this Response in Opposition to Plaintiff Centra Capital Investments, LLC’s Motions In Limine. I. Matter Before the Court Currently before this Honorable Court are the Motions In Limine filed by Plaintiff Centra Capital Investments, LLC (hereinafter “Centra”). Centra’s Motions in Limine seek: (1) to bar the Tapestry Parties from introducing extrinsic evidence at the time of trial pursuant to the Parol Evidence Rule; and (2) to estop the Tapestry Parties from seeking a jury trial. BER-L-006761-21 11/22/2023 11:26:35 AM Pg 2 of 9 Trans ID: LCV20233448985 II. Questions Presented 1. Should this Honorable Court deny Centra’s Motion In Limine seeking to bar the Tapestry Parties from introducing evidence pursuant to the Parol Evidence Rule? Suggested Answer: Yes. 2. Should this Honorable Court deny Centra’s Motion In Limine to estop the Tapestry Parties from seeking a jury trial? Suggested Answer: Yes. III. Legal Argument a. Plaintiff’s Motion In Limine Based on the Parol Evidence Fails as a Matter of Law. Plaintiff’s Motion In Limine related to the Parol Evidence Rule references emails dated August 3 and August 4, 20211, wherein Ramesh Patel stated that the Conditional Loan Commitment would be executed with the specific understanding that the Tapestry Parties would only be liable for the Commitment Fee if the loan failed to close because of Tapestry’s conduct. While not stated in Centra’s Motion, the email also includes the language that in the event that the loan is less than four million dollars or conditions are added beyond the executed commitment, the Tapestry Parties will not be liable for any Commitment Fee. In support of its contention, Centra argues that the Loan Commitment is a fully integrated and unambiguous contract, which expressly supersedes prior or outside agreements. In support of this position, Centra cites to Conaway v. 287 Corp. Ctr. Assocs., 1Upon information and belief, the email Centra is referring to is dated August 1, 2021, not August 3 / 4, 2021. BER-L-006761-21 11/22/2023 11:26:35 AM Pg 3 of 9 Trans ID: LCV20233448985 187 N.J. 259, 270 (2006), which states that the “parol evidence rule comes into play to prohibit the introduction of extrinsic evidence to vary the terms of the contract.” For the reasons set forth below, Centra’s Motion should be denied. First, from the outset of the litigation, the Tapestry Parties have argued that the Conditional Loan Commitment is not a valid contract, rather it is a conditional promise. As such, the Conditional Loan Commitment was never effective, and the Tapestry Parties are not bound by its terms. In support of this position, the Tapestry Parties direct the Court to the “ACCEPTANCE OF COMMITMENT” provision in the Conditional Loan Commitment, which provides: By the plain language contained in this section, several conditions needed to occur for the Conditional Loan Commitment to become effective. First, the Conditional Loan Commitment needed to be signed and sent to Centra accompanied with a Loan Commitment Fee of Three Percent. Second, Centra needed to commit to provide funds to the Tapestry Parties pursuant to the Terms in the Conditional Loan Commitment. The provision goes on to state that Centra would accept payment of the Commitment Fee at the time of closing. Here, the Commitment Fee was never paid and Centra was never committed to making the loan, based on the Conditional Loan Commitment. Centra’s BER-L-006761-21 11/22/2023 11:26:35 AM Pg 4 of 9 Trans ID: LCV20233448985 commitment under the Conditional Loan Commitment was conditioned on its due diligence and underwriting, which by David Hecht’s own testimony, would not occur until an executed Conditional Loan Commitment was received. As these events never occurred, the Conditional Loan Commitment was not a contract as it was never effective, and therefore the Parol Evidence Rule does not apply. Second, even assuming arguendo that the Conditional Loan Commitment constitutes a valid contract, which is specifically denied by the Tapestry Parties, any extrinsic evidence is not barred by the Parol Evidence Rule. The case cited by Centra in support of its Motion, Conaway, supports the Tapestry Parties argument that the referenced email is in fact admissible. The Conaway Court held that evidence of circumstances, even when dealing with an integrated agreement that on its face is free from ambiguity, is always admissible. Conaway, 187 N.J. at 269 (citations omitted). Such evidence may “include consideration of the particular contractual provision, an overview of all the terms, the circumstances leading up to the formation of the contract, custom, usage, and the interpretation place on the disputed language by the parties’ conduct. Id. (citations omitted). This more expansive view of the parol evidence rule provides that “[a]ntecedent and surrounding factors that throw light upon…[the meaning of the contract] may be proved by any kind of relevant evidence.” Id.; citing 3 Corbin on Contracts §579 (West 1960); see also Restatement (Second) Contracts §214 (“Agreements and negotiations prior to or contemporaneous with the adoption of a writing are admissible in evidence to establish…the meaning of the writing, whether or not integrated.”). Extrinsic evidence will also be permitted to discover and establish the intent of the BER-L-006761-21 11/22/2023 11:26:35 AM Pg 5 of 9 Trans ID: LCV20233448985 parties. See Conaway, 187 N.J. at 270 (“In sum, we permit 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.”) As previously stated, by looking at the entire “ACCEPTANCE OF COMMITMENT” provision, it is not clear when the Conditional Loan Commitment becomes effective, when/if Centra is committed to making the loan, and when the Commitment Fee is to be paid. Therefore, the August 1, 2021 email referenced by Centra, as well as other extrinsic evidence related to the Conditional Loan Commitment, should be admitted for purposes of allowing the jury to determine the intent of the Parties and the true meaning of the Conditional Loan Commitment. Additionally, Centra argues that the Parol Evidence Rule bars this extrinsic evidence because the document itself is fully integrated. Generally, “the parol evidence rule operates to prohibit the introduction of oral promises to alter or vary an integrated written instrument…” Ocean Cape Hotel Corp. v. Masefield Corp., 63 N.J Super. 369, 378 (App. Div. 1960)(citations omitted). However, the introduction of extrinsic evidence to prove fraud in the inducement is a well-recognized exception to the parol evidence rule under New Jersey law. In fact, “it is well settled that a party to an agreement cannot, simply by means of a provision of a written instrument, create an absolute defense or prevent the introduction of parol evidence in an action based on fraud in the inducement to contract.” Filmlife, Inc. v. Mal “Z” Ena, Inc., 251 N.J. Super. 570, 573-74 (App. Div. 1991); citing Ocean Cape, 63 N.J. Super. at 377-78. The reason that extrinsic evidence to prove fraud is admitted is not because it is offered to alter or vary express terms of a contract, BER-L-006761-21 11/22/2023 11:26:35 AM Pg 6 of 9 Trans ID: LCV20233448985 but rather to avoid the contract or to support a separate claim based on the fraudulent inducement. Id., at 574; citing Ocan Cape, at 378. As evidenced by the Tapestry Parties’ counterclaim, fraud in the inducement of the Conditional Loan Commitment has been alleged against Centra. Therefore, the Tapestry Parties do not seek to introduce this evidence to change the terms of the Conditional Loan Commitment, rather to void the Conditional Loan Commitment altogether and to pursue its counterclaims against Centra. As such, Centra’s Motion must be denied. b. Plaintiff’s Motion In Limine Seeking to Estop the Tapestry Parties from Seeking a Jury Trial Fails as a Matter of Law. The second request raised in Centra’s Motion In Limine is to estop the Tapestry Parties from seeking a jury trial based on the provisions contained in the Conditional Loan Commitment. As argued above, the Tapestry Parties contend that the Conditional Loan Commitment is not an enforceable contract, rather it is a conditional promise to enter a contract, and the Tapestry Parties are therefore not bound by its provisions. For the convenience and efficiency of the Court, the Tapestry Parties hereby incorporate by reference their arguments set forth above related to the unenforceability of the jury waiver provision, as though fully set forth herein at length, and request that this Court deny Centra’s Motion seeking to estop the Tapestry Parties from seeking a jury trial. If the Court finds that the Conditional Loan Commitment is a contract, the Tapestry Parties argue that each of the Tapestry Parties is still entitled to a jury trial on BER-L-006761-21 11/22/2023 11:26:35 AM Pg 7 of 9 Trans ID: LCV20233448985 the basis that the Conditional Loan Contract is one of adhesion, and therefore, the jury trial waiver provision contained therein is unenforceable as a matter of law. Where there has been a contractual waiver of the right of a jury trial, it is important to consider “[t]he right to a jury trial…is far more fundamental than the right to personal service, and cannot be waived absent a showing that its relinquishment is knowing and intention.” Fairfield Leasing Corp. v. Techni-Graphics, Inc., 256 N.J. Super. 538, 541 (Law Div. 1992)(citations omitted). In Fairfield, the lessor sought to strike the lessee’s demand for a jury trial arguing that the lease contained a jury waiver provision. Fairfield, 256 N.J. at 539. The Fairfield Court determined that that contract in that case was an adhesion contract, meaning that it was a standardized mass contract and not bargained for by either party even though lessee had signed the contract. Id., at 539-540. Thus, the Court held that jury trial waiver provisions in contracts of adhesion are unenforceable. Id. In the case at issue, the Conditional Loan Commitment, if in fact deemed a contract, is one of adhesion. The Conditional Loan Commitment itself is one-sided, giving Centra all the power under the Conditional Loan Commitment. Centra’s interpretation of the Conditional Loan Commitment is that they are entitled to the Loan Commitment Fee, even though Centra was never committed to make the loan pursuant to the agreed upon terms, no loan was ever made, and at any time after the Tapestry Parties executed the Conditional Loan Commitment, Centra had carte blanche to modify the Conditional Loan Commitment. See Hecht Deposition Transcript at 39:12-16. Further, the Conditional Loan Commitment itself is a form contract, like the contract in Fairfield. This is supported by David Hecht’s own testimony, which states that the Conditional Loan Commitment is BER-L-006761-21 11/22/2023 11:26:35 AM Pg 8 of 9 Trans ID: LCV20233448985 a standard form that he created in his thirty (30) years of experience. See Hecht Deposition Transcript at 30:8-31:2. The Tapestry Parties submit to the Court that the Conditional Loan Commitment is a contract of adhesion, and therefore, the jury trial waiver provision cannot be enforced as a matter of law. In further support of this argument, the Tapestry Parties submit to the Court that the jury demand was made two (2) years ago, when it filed its Answer with New Matter and Counterclaims on November 22, 2021, and as such, the Tapestry Parties have been preparing for this matter as a jury trial. It would be unjust and prejudicial to the Tapestry Parties for this Court to enforce the jury trial provision based on the lapse of time when the demand was made, the proximity to trial, and the preparation of the Tapestry Parties for a jury trial, and therefore Centra’s Motion should be denied. Lastly, should this Court determine that the jury trial waiver is enforceable, it is only enforceable as to Defendant Tapestry Cooper River, LLC. The waiver provisions in the Conditional Loan Commitment only refer to the “Borrower.” By the plain language of the Conditional Loan Commitment, the “Borrower” is Tapestry Cooper River LLC, and both Jesal Patel and Kamlesh Modh are referred to as “Guarantors”. There is no language in the Conditional Loan Commitment that would support Centra’s argument that the Guarantors waived their right to a jury trial. For the reasons set forth above, Centra’s Motion In Limine to estop the Tapestry Parties from seeking a jury trial should be denied as a matter of law. BER-L-006761-21 11/22/2023 11:26:35 AM Pg 9 of 9 Trans ID: LCV20233448985 IV. Conclusion For the foregoing reasons, Defendants Tapestry Cooper River LLC, Jesal Patel, and Kamlesh Modh respectfully request that this Honorable Court enter an Order denying Plaintiff Centra Capital Investments, LLC’s Motions In Limine to bar extrinsic evidence and to estop the Tapestry Parties from seeking a jury trial. BROWN MCGARRY NIMEROFF LLC A Foreign Limited Liability Company DATE: November 22, 2023 BY: /s/ Patrick J. Brennan Sigmund J. Fleck, Esquire Scott M. Klein, Esquire Patrick J. Brennan, Esquire Attorneys for Defendants BER-L-006761-21 11/22/2023 11:26:35 AM Pg 1 of 1 Trans ID: LCV20233448985 BROWN McGARRY NIMEROFF LLC Attorneys for Defendants, A Foreign Limited Liability Company Tapestry Cooper River LLC By: Sigmund J. Fleck, Esquire Jesal Patel Attorney I.D. No. 036191995 Kamlesh Modh By: Scott M. Klein, Esquire Attorney I.D. No. 404372022 By: Patrick J. Brennan, Esquire Attorney I.D. No. 324952020 158 W. Gay Street, Suite 200 West Chester, PA 19380 610-755-3311 CENTRA CAPITAL INVESTMENTS LLC, SUPERIOR COURT OF NEW JERSEY Plaintiff LAW DIVISION vs. BERGEN COUNTY TAPESTRY COOPER RIVER LLC, JESAL PATEL, and KAMLESH MODH, DOCKET NO.: L-6761-21 Defendants Civil Action (Proposed) ORDER This matter, having been brought before the Court on Plaintiff Centra Capital Investments LLC’s Motion In Limine #1 (Barring the introduction of extrinsic evidence pursuant to the Parol Evidence Rule) and Motion In Limine #2 (Estop Defendants from seeking a Jury Trial), and Defendants Tapestry Cooper River LLC, Jesal Patel, and Kamlesh Modh’s Response in Opposition to Plaintiff’s Motions, and the Court having considered the matter and for good cause appearing, It is on this __ day of ___________, 2023, ORDERED that Plaintiff Centra Capital Investments LLC’s Motion In Limine #1 and Motion In Limine #2 are hereby denied. ____________________________________ , J.S.C. □ Opposed □ Unopposed BER-L-006761-21 11/22/2023 11:26:35 AM Pg 1 of 2 Trans ID: LCV20233448985 BROWN McGARRY NIMEROFF LLC Attorneys for Defendants, A Foreign Limited Liability Company Tapestry Cooper River LLC By: Scott M. Klein, Esquire Jesal Patel Attorney I.D. No. 404372022 Kamlesh Modh By: Patrick J. Brennan, Esquire Attorney I.D. No. 324952020 158 W. Gay Street, Suite 200 West Chester, PA 19380 610-755-3311 CENTRA CAPITAL INVESTMENTS LLC, SUPERIOR COURT OF NEW JERSEY Plaintiff LAW DIVISION vs. BERGEN COUNTY TAPESTRY COOPER RIVER LLC, JESAL DOCKET NO.: L-6761-21 PATEL, and KAMLESH MODH, Defendants Civil Action CERTIFICATION OF SERVICE I, Patrick J. Brennan, Esquire, of full age, hereby certify as follows: 1. I am an attorney-at-law duly licensed to practice before the Courts of the State of New Jersey and am associated with the firm of Brown McGarry Nimeroff, LLC, attorneys for Defendants in the above-captioned matter. I am one of the attorneys charged with the care, responsibility, and management of the within action and am fully familiar with the facts contained herein. 2. On November 22, 2023, I caused to be filed via the New Jersey eCourts Filing System the Defendants’ Response in Opposition to Plaintiff’s Motions in Limine. 3. On November 22, 2023, copies of the above-referenced documents were served upon all attorneys who are registered with the Electronic Filing System. They may BER-L-006761-21 11/22/2023 11:26:35 AM Pg 2 of 2 Trans ID: LCV20233448985 access this filing through the Court’s System and notice of this filing will be sent to these parties by the operation of the Court’s Electronic Filing System. 4. I hereby certify that the foregoing statements made by me are true. I am aware that if any of the foregoing statements made by me are willfully false, I am subject to punishment. BROWN MCGARRY NIMEROFF LLC A Foreign Limited Liability Company DATE: November 22, 2023 BY: /s/ Patrick J. Brennan Sigmund J. Fleck, Esquire Scott M. Klein, Esquire Patrick J. Brennan, Esquire Attorneys for Defendants, Tapestry Cooper River LLC, Jesal Patel and Kamlesh Modh