ALM Properties, Inc.
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Daily Decision Service Alert: Vol. 21, No. 214 ? November 2, 2012
New Jersey Law Journal
STATE COURT CASES
06-2-8118 PNC Mortgage v. Williams, App. Div. (per curiam) (9 pp.) This appeal arises from a residential mortgage foreclosure proceeding. Defendant Raynard Williams appeals from the order that denied his motion to vacate an entry of default. On January 15, 2010, plaintiff PNC Mortgage filed a two-count foreclosure complaint against Williams. According to the complaint, Williams made two monthly installment payments, and went into default on August 1, 2009. For the almost-twenty-two months since Williams had been served with the pleadings, he had failed to participate in the formal litigational process that was engulfing him.In his motion, Williams asserted unsuccessful efforts to refinance the unpaid mortgage and his claim that the Notice of Intention failed to identify "the lender and the lender's representative." The motion court correctly rejected the contention that Williams's efforts to save his realty constituted good cause for ignoring his legal obligation to answer the complaint. The panel also finds no abuse of discretion in the motion court's summary rejection of Williams's unfocused Notice of Intention argument. On the face of the Notice of Intention is the identification of the lender and its servicer. It is reasonable to conclude that Williams supplied that very information to his credit counselors because it was used to communicate with PNC.
11-2-8119 Skylands Saddlery v. Dionne Haggerty, App. Div. (per curiam) (5 pp.) This small claims matter arises from defendant Dionne Haggerty's agreement to purchase from plaintiff Skylands Saddlery a saddle, subject to Haggerty's right to a seven-day trial period within which Haggerty could rescind the transaction. The trial judge determined that, one day after termination of the trial period, Haggery requested and Skylands consented to an extension of the trial period "for a few more days" but that Haggerty failed to return the saddle for another thirteen days. The appellate panel defers to these findings and concludes that the judge correctly determined that Haggerty's failure to return the saddle within the extended trial period finalized the sale. The panel affirms therefore affirms the judgment awarding plaintiff the balance of the sale price.
FAMILY LAW CHILD SUPPORT SPOUSAL SUPPORT
20-2-8120 Proetto v. Proetto, App. Div. (per curiam) (11 pp.) Plaintiff appeals from provisions of a post-judgment Family Part order that: denied reconsideration of a previous order that dismissed his motion to reduce his alimony and child support obligations; denied his motion to suspend his support obligations pending a plenary hearing; and granted defendant's cross-motion "to order plaintiff's arrest until he complies with all orders." In his motion for reconsideration, plaintiff improperly attempted to expand the record and reargue the motion. Notwithstanding its determination that plaintiff failed to satisfy the requirements for reconsideration, the trial court disposed of the child support and alimony issues on the merits. The appellate panel finds the court did not abuse its discretion in determining plaintiff had failed to demonstrate a prima facie case of a permanent change in his financial circumstances. The panel rejects plaintiffs argument that the trial court ignored the PSA provision concerning his right to apply for modification of his alimony payments. The PSA provision stated that he could seek modification if his income dropped below $153,000, however, it did not guarantee that his application would be successful or that he would be entitled to a hearing in the absence of a prima facie showing of changed circumstances. Finding no abuse of discretion by the trial court, the appellate panel affirms.
FAMILY LAW SPOUSAL SUPPORT
20-2-8121 Eberhard v. Eberhard, App. Div. (per curiam) (13 pp.) Defendant appeals from three orders which awarded an increase in alimony to plaintiff, granted her request for counsel fees incurred in filing the motion, and denied defendant's motion for reconsideration. Defendant argues the determinations are unsupported by the record. The appellate panel finds the motion judge erred as a matter of law because an increase in the cost of living unaccompanied by a demonstrated need will not satisfy a movant's burden to show the necessary substantial change in economic circumstances to warrant modification of alimony. Second, the judge's statements accompanying the order granting the increase in alimony includes only the court's naked legal conclusions and opinion that an increase was "obvious" and "appropriate," precluding appellate review and resulting in a denial of justice. The panel reverses and remands for full review of the parties' requests for a modification of alimony, noting that any change bottomed on a finding that an increase is necessary to maintain the marital lifestyle shall include findings defining that lifestyle, which most likely will necessitate a plenary hearing. Also, the award of counsel fees to plaintiff must be reviewed to set forth the basis for the amount of the fee awarded.
35-5-8122 HPFVI Pisc. Portfolio, LLC v. Piscataway Twp., Tax Ct. (Menyuk, J.T.C.) (3 pp.) Defendant filed a motion to dismiss the complaint on the ground that plaintiff failed to respond to the assessors request for income and expense information made pursuant to N.J.S.A. 54:4-34 (Chapter 91). The motion is opposed on the basis that defendant failed to establish that the Chapter 91 request had actually been received by the taxpayer. The court concludes that, in the absence of a certification from the plaintiff that the Chapter 91 request was not received by the addressee, it is sufficient for the defendant municipality to produce the certified mail receipt received from the post office as evidence of receipt, even where the certified mail receipt was not signed. In the absence of an affirmative showing by plaintiff that the request was not received, defendants proofs are sufficient. Defendants motion is granted, subject to plaintiffs right to a reasonableness hearing.
CRIMINAL LAW AND PROCEDURE
14-2-8123 State v. Gordon, App. Div. (per curiam) (15 pp.) Defendant appeals from a jury verdict finding him guilty of first-degree robbery, and third-degree theft. The trial judge charged the jury instructing them on the elements of first-degree and second-degree robbery. The jury convicted defendant of first-degree robbery, after concluding he was armed with a deadly weapon. On appeal, defendant challenges the denial of his motion for acquittal and identifies what he suggests were trial errors warranting reversal. The appellate panel concludes the State's evidence was insufficient to sustain a conviction for first-degree robbery and the court erred in denying defendant's motion at the conclusion of the State's case. The panel reverses and remands for the entry of a judgment of acquittal for the first-degree armed robbery conviction, amendment of the judgment of conviction to reflect the conviction of second-degree robbery, and for sentencing.
CRIMINAL LAW AND PROCEDURE POST-CONVICTION RELIEF
14-2-8124 State v. Burden, App. Div. (per curiam) (15 pp.) Defendant appeals from an order denying his petition for post-conviction relief (PCR). After conducting an evidentiary hearing, the PCR judge issued a written opinion denying PCR, concluding that, although defendant demonstrated that his trial counsel was ineffective, defendant failed to prove that there was a reasonable probability that the result would have been different absent his attorney's errors. Despite a jurors statement that he thought defendant was guilty and that all he could do was "try" to sit on the jury, defense counsel did not ask that he be excused for cause and he did not use a peremptory challenge to remove him from the jury. Concluding that defense counsel's admitted error in failing to strike an obviously biased juror from the jury, which prevented defendant from receiving a fair trial, the appellate panel reverses and remands to the trial court.
FEDERAL COURT CASES
AGENCY AND PARTNERSHIP
02-7-8125 Glielmi v. The Raymond Corporation, Dist. Ct. (Hillman, U.S.D.J.) (13 pp.) The Court previously entered an order denying Defendant The Raymond Corporations motion for summary judgment in this matter involving a forklift accident. The Court found that an agency relationship existed between Defendant Arbor Material Handling, Inc. and Raymond specifically that Raymond, as the manufacturer, was the principal in the relationship, and Arbor, as the dealer that provided rentals and training related to the forklift machinery, was the agent. Here, the Court denies Raymonds motion for reconsideration that it could be held liable under the agency principles of New Jersey law. Raymond avers that any liability related to the accident should be imputed to Malin Integrated Handling S&D which supplied the rental forklift to Arbor. Nothing in the record indicates that evidence related to Malin was previously unavailable new evidence requiring reconsideration. Even if the Court were to consider this information new evidence, reconsideration would be unnecessary because it would not alter the Courts prior ruling. Even if Malin was responsible for the rental request, the record indicates that an agency relationship existed between the manufacturer, Raymond, and its dealer regardless of whether that dealer was Malin or Arbor. [Filed November 1, 2012]