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Daily Decision Service Alert: Vol. 22, No. 1 ? January 2, 2013
New Jersey Law Journal
STATE COURT CASES
12-2-8584 All Saints University Of Medicine Aruba v. Chilana, App. Div. (per curiam) (62 pp.) This case involves the "judicial dissociation" of two shareholders in a New Jersey limited liability company, ASUMA, LLC, through a final order expelling them from further involvement in the LLC's business. The LLC was formed in connection with a fledgling medical school in Aruba. After the school developed financial and other problems, litigation over the entity's operations ensued in the Chancery Division involving the LLC's four shareholders, plaintiffs Joshua Yusuf and Richmond Paulpillai, and defendants Gurmit Singh Chilana and Peter Silberie. Following a bench trial, the Chancery judge ordered that Yusuf and Paulpillai be expelled from the LLC, upon finding that they had engaged in conduct authorizing such judicial dissociation pursuant to both subsections 3(a) and 3(c) of N.J.S.A. 42:2B-24(b). Yusuf now appeals the trial court's findings. The appellate panel affirms the trial court's final judgment ordering plaintiffs' dissociation from the LLC based solely upon subsection 3(c) of the statute, which pertains where a member engaged in "conduct relating to the [LLC's] business which makes it not reasonably practicable to carry on the business . . . as a member of the [LLC]."
20-2-8585 Ingling v. Dettorre, App. Div. (per curiam) (4 pp.) Following their divorce, the parties returned to court at least a dozen times to resolve custody, parenting time and child support disputes. In this appeal, plaintiff father argues that the judge erred in finding the parties child was emancipated on June 1, 2011, claiming emancipation occurred at an earlier time. The record is insufficient to determine how the judge arrived at the emancipation date. The appellate panel remands for the trial judge's findings of fact and conclusions of law on that issue.
LABOR AND EMPLOYMENT
25-2-8586 Bailey v. Police And Firemen's Retirement System, App. Div. (per curiam) (13 pp.) Petitioner appeals the final determination of the Board of Trustees, Police and Firemen's Retirement System (the Board) denying her application for ordinary disability benefits. The Board determined that petitioner did not establish that she was permanently unable to perform her job as a police officer. The Board's appropriate inquiry was not whether petitioner had the reported symptoms but whether they denoted a condition that was permanently and totally disabling. In this instance, proof of permanency of petitioners condition required its cause be established. This proof was necessary because petitioner's symptoms could be caused by conditions that were treatable. There was no credible evidence in the record that established likely causation. Applying a highly deferential standard of review, the appellate panel affirms the Boards determination that petitioner failed to show entitlement to ordinary disability benefits.
29-2-8587 Pagan v. St. Joseph's Hospital and Medical Center, App. Div. (per curiam) (26 pp.)Plaintiffs Jessica Pagan, who was born by breech delivery, and her mother appeal from a Law Division order dismissing with prejudice their medical malpractice complaint against Dr. Ferhana Khan, a pediatrician, alleging that she was negligent because she failed to diagnose Jessica's congenitally dislocated left hip. They contend that the trial judge erred in ruling that a published article supporting their liability expert's testimony would not be admissible at the trial and, subsequently, in ruling that plaintiffs lacked the requisite expert evidence needed to proceed to trial. With respect to the sufficiency of plaintiffs' expert testimony, the court concludes that plaintiffs were required to present expert testimony about the treatment available immediately after Jessica's birth and the anticipated benefits of that treatment if her condition had been diagnosed earlier which they failed to do. With respect to plaintiffs' discovery violations, the panel holds that the applicable case law required the trial judge to explore whether sanctions less severe than dismissal of plaintiff's complaint might have sufficed to address the apparent discovery violation that resulted in the conclusion that plaintiffs' expert could not expand on his expert report and deposition to fill the "gap" in plaintiffs' prima facie case and to address whether plaintiffs' expert had the necessary qualifications to provide the necessary testimony. The panel reverses the dismissal of plaintiffs' complaint and remands for a hearing pursuant to N.J.S.A. 104. The panel declines to consider the exclusion of the published article in favor of the issue being considered on the remand.
35-5-8588 Green Hill, Inc. v. West Orange Township, Tax Ct. (Nararayan, J.T.C.) (13 pp.) In a motion for summary judgment, plaintiff argues that defendant West Orange Townships four-month prorated added assessment on improvements completed in April 2011, and its 2011 omitted assessment on the 15 acres of land upon which the improvements were built, are erroneous because they are entitled to the continued use tax exemption. Defendant maintains that the 15 acres has always been taxed, therefore, the continued use exception does not apply. Defendant also argues that since neither the land nor the new improvements were actually being used for tax-exempt purposes until April 2011, its assessments are proper. The court finds the continued use exemption does not apply because the 15 acres of land were never tax-exempt until 2012. Further, the land should not be exempt for any portion of tax year 2011 because it was not actually used for exempt purposes as of October 1, 2010, the assessment date for tax year 2011. Plaintiffs motion for exemption is denied. However, the court cannot determine West Oranges method of prorating the assessment on the improvements, or the propriety of same, and the matter will be set for trial on the valuation issues.
TAXATION SALES TAX
35-5-8589 NFF Construction Inc. v. Director, Division of Taxation, Tax Ct. (Menyuk, J.T.C.) (18 pp.) Plaintiff contested the denial of its claim for a refund of sales taxes that had been assessed against it on the ground that plaintiff should have collected tax at the full rate on the sales transactions at issue because the transactions were not eligible for the reduced rate of tax on receipts permitted by N.J.S.A. 52:27H-80. The court found that there was no credible evidence that the transactions had taken place entirely within the urban enterprise zone as required by defendants regulations, and affirmed the denial of the refund claim. [Decided Dec. 26, 2012.] [Approved for publication.]
36-2-8590 Contino v. Gonzalez, App. Div. (per curiam) (18 pp.) In this action for damages suffered by plaintiff when the car he was driving was struck head-on by one belonging to a third party and being driven the wrong way on Route 35by defendant Gonzalez, who became intoxicated while drinking at a bar all day, defendant appeals the jury verdict in favor of plaintiff and the order denying her motion for a new trial. Rejecting defendant's claims that the use at trial of her first uncounseled deposition was unfair, the jury's finding that she did not have permission to use the vehicle she was driving was against the weight of the evidence, the trial judge should not have admitted photos of the damaged vehicles, the $6 million verdict was excessive, and that the trial judge should have granted remittitur, the panel affirms. [Filed December 24, 2012]
TRUSTS AND ESTATES
38-2-8591 In The Matter Of The Estate Of Domenick Denora, Deceased, App. Div. (per curiam) (14 pp.) Patricia DeNora appeals from a judgment entered by the Chancery Division, General Equity Part, which approved accountings for the Estate of Domenick F. DeNora and the Domenick F. DeNora Family Trust, and struck and dismissed exceptions that appellant had taken to the accountings. Appellant, decedents wife, and Robert DeNora, decedents brother and business partner, agreed to submit to binding arbitration, and the arbitrator entered judgment for Robert on the oppressed shareholder claim. He ordered appellant to sell her fifty-one percent interest to Robert for $731,000, and directed Robert to pay that amount to the Estate. The appellate panel finds the trial court correctly determined that that appellant was barred from relitigating issues decided in the arbitration proceeding. Despite appellant's contention that the issue of ownership of the shares and entitlement to the $731,000 were not properly before the arbitrator, it is clear from the record that the issue was, in fact, decided by the arbitrator. Further, the trial court correctly determined that appellant was barred from relitigating the arbitrator's determination that the buy-out monies were to be paid to the Estate, rather than appellant.
14-2-8592 State v. Billingham, App. Div. (per curiam) (24 pp.)By leave granted, the State appeals the Law Division's denial of its application for a Dyal subpoena seeking the results of a blood test performed for treatment purposes during defendant Billingham's hospitalization after an auto accident. The test results are sought for use in prosecuting Billingham, a State Police detective, on charges of assault by auto. The panel concludes that the information presented by the State - including that Billingham had attended an evening event at which alcohol was served and was involved in an accident some hours later, two of the first responders detected the smell of alcohol when they were in the ambulance with him, although they did not specifically detect it coming from him, he was driving at a relatively high rate of speed and asserted that he fell asleep, and his concern that he would lose his job - provides a reasonable basis to believe that he was intoxicated and are objective facts in the sense required by Dyal. Further, the panel finds that there was no unreasonable delay under the circumstances. The panel reverses and remands to the trial court for issuance of a Dyal subpoena. [Decided December 31 2012]
14-2-8593 State v. Williams, App. Div. (per curiam) (47 pp.) Defendant appeals from his convictions of multiple crimes arising out of a series of armed robberies. Defendant argues the trial court erred in ruling the police had probable cause to arrest him, in admitting his various statements to them, and in curtailing his cross-examination of a State witness. He further challenges his sentence as excessive. The appellate panel reverses defendant's convictions on four of the armed robbery counts and remands for correction of the judgment of conviction, but affirms his convictions and sentences in all other respects.
14-2-8594 State v. Heras, App. Div. (per curiam) (22 pp.) These back-to-back appeals, which are consolidated for purposes of this opinion, involve substantially similar circumstances. In both cases, the surety company posted bail for the defendant and the defendant was thereafter deported by federal authorities. The trial judge required the surety in each case to forfeit seventy percent of the posted bond, even though neither defendant had violated the terms of his bail and there was no evidence that the surety could have prevented their deportations. Because the seventy percent forfeiture in these circumstances was manifestly excessive and not in keeping with the applicable factors set forth in State v. Ventura, the appellate panel reverses the trial court's orders and remands for reconsideration.
FEDERAL COURT CASES
42-6-8595 In re: Hopkins, Bankruptcy Ct. (Kaplan, U.S.D.J.) (4 pp.) The Debtor filed a motion seeking a finding of contempt and for sanctions for violation of the automatic stay against Valerie A. Powers Smith, Esq. The Debtor failed to make payment for services rendered by Smith beginning in April 2010. Smith obtained a judgment and judicial lien against the Debtor. The Debtor filed a voluntary Chapter 7 bankruptcy petition in April 2012. Smith filed an Adversary Proceeding seeking to prevent a discharge of the judgment and an accounting. The Debtor alleges that Smith never ceased collection efforts. The court finds the billing records and statements upon which the Debtor bases her motion show that Smith has incurred fees and costs in her effort to protect her judgment from discharge and to seek the Debtors true financial position and assets. The Debtor did not submit documentation demonstrating that Smith has contacted the debtor independent of any bankruptcy filing to seek payment on the debt. The documents indicate that Smith ceased collection efforts and is pursuing her rights within the Debtors bankruptcy. The Debtors motion is denied. [Filed December 18, 2012]
42-8-8596 In re Mondelli, Third Cir. (Rendell, C.J.) (9 pp.) Appellant/Debtor Victor Mondelli and Appellant Anna Mondelli, a purported intervenor, appeal the District Courts dismissal of their appeals of eleven bankruptcy orders and its denial of their motion for reconsideration. Kenneth Rosellini, the Mondellis lawyer, appeals the District Courts imposition of Rule 11 sanctions against him and its denial of his motion for reconsideration. The Third Circuit affirms, finding that (1) any alleged error by the District Court in converting Mondelli's Chapter 13 bankruptcy case to a Chapter 7 proceeding is irrelevant because their failure to filed a notice of appeal within 14 days from the entry of judgment creates a jurisdictional defect that bars appellate review, and that the Mondellis did not have standing to appeal the final decree since the decree did nothing more than recognize that the state had been full administered and order necessary ministerial acts; and (2) the letter sent by the parties seeking Rule 11 sanctions substantially complied with the safe-harbor provisions of the rule and they are entitled to a decision on the merits of their request, and the court did not abuse its discretion in imposing sanctions for appealing several consent orders since none of the exceptions permitting an appeal of a consent judgment apply here. [Filed December 26, 2012]
07-7-8597 D'Onofrio v. Borough of Seaside Park, U. S. Dist. Ct. (Thompson, U.S.D.J.) (9 pp.) Plaintiff seeks to recover attorney costs and fees as damages in this action alleging that defendants inappropriately interfered with his right to control and operate his business through tortious, fraudulent and extortionate conduct. Defendants oppose his efforts to protect any information in the attorney billing statements that may be privileged attorney-client communication while producing evidence to support an award amount, and appeal the magistrate judge's order declining to require plaintiff to produce unredacted billing statements. The court denies defendants' motion to vacate the order at this time, finding that the "at issue" doctrine does not apply, that defendants' submission of detailed summaries of billing statements should be sufficient and should not prevent defendants from raising objections to the time spent on projects, the reasonableness of fees, or whether the tasks billed were necessary for litigation, that more specific submissions can be sought if necessary, and that since liability has not been established yet, there is the possibility that full revelation of the billing statements may expose privileged information pertinent to the current administrative action before the county construction board of appeals. [Filed December 20, 2012]
CONTRACTS CIVIL PROCEDURE
11-7-8598 Fink v. Edgelink, Inc., U.S. Dist. Ct. (Hillman, U.S.D.J.) (4 pp.) The Court previously granted summary judgment in defendants favor on plaintiffs claims that defendants are obligated to pay on contracts plaintiff entered into with an alleged predecessor company of defendants. Plaintiff filed a motion for reconsideration, arguing that summary judgment should be vacated, and the case should go to trial, because the Court overlooked key aspects of customer relationships, and because of newly discovered evidence. The Court finds that plaintiffs motion for reconsideration fails because: (1) it exceeds the page limit (30 pages instead of the allowed 15); (2) it did not overlook any key aspects of customer relationships; and (3) the purported new evidence was available prior to the Courts consideration of defendants motion for summary judgment. The Court further finds that plaintiff has simply expressed disagreement with the Courts decision which is an inadequate basis for reconsideration. [Filed December 19, 2012]
23-8-8599 Tucci v. Hartford Finances Services Group, Third Circuit (Tashima, U.S.C.J.) (16 pp.) The estate of Peter A. Tucci, Sr. owns a parcel of land and buildings thereon, which are insured by defendant The Hartford Casualty Insurance Company. Tucci claims that Hartford breached its insurance contract by refusing to compensate him for the loss of movable furnishings and trade fixtures that were removed from the premises before Tucci reclaimed possession from his commercial tenants. The circuit panel affirms summary judgment in favor of Hartford, concluding that the removed items are not covered under the policy because Tucci failed to show that he either owned the items or exercised care, custody, or control over them. Even if Tucci had an insurable interest in the items, Tucci cannot recover for their loss without demonstrating that his policy covers those items and the panel concludes he cannot do so under the undisputed facts. [Filed December 18, 2012]
04-7-8600 Lieber v. Marcus, U. S. Dist. Ct. (Linares, U.S.D.J.) (9 pp.) In this action asserting claims for breach of agreement to render competent legal services and gross negligence and/or malpractice based on defendants' representation of plaintiffs in underlying litigation, the court converts defendants' motion to dismiss into a motion for summary judgment which it grants, finding that this action is barred by New Jersey's entire controversy doctrine in light of a complaint filed by defendants in state court prior to the commencement of this action seeking payment of outstanding legal fees in connection with their representation of plaintiffs in the underlying litigation and a foreclosure action. [Filed December 27, 2012]
50-7-8601 Prudential Ins. Co. of America v. J.P. Morgan Securities LLC, U. S. Dist. Ct. (Walls, S.U.S.D.J.) (17 pp.) Plaintiffs move to remand this action asserting state law claims of common law fraud, fraudulent inducement, aiding and abetting fraud, negligent misrepresentation, and violations of New Jersey's civil RICO statute and federal claims under the 1933 Securities Act in connection with their purchase of residential mortgage-backed securities between 2005 and 2007. While several of the residential mortgage backed securities were backed by entities that have filed bankruptcy petitions, or whose parent corporations have filed bankruptcy petitions, and defendants have explicit indemnification clauses in the offering materials of several of the bankrupt originators, the court finds that the indemnification clauses are insufficient to confer "related to" jurisdiction on the court. Moreover, even if "related to" jurisdiction were proper, consideration of the In re Donington factors indicates abstention would be appropriate . The court also finds that it does not have jurisdiction under the Edge Act. [Filed December 20, 2012]
14-7-8602 Nestor v. Director of Northeast Region Bureau of Prisons, U. S. Dist. Ct. (Kugler, U.S.D.J.) (17 pp.) Plaintiff, incarcerated for various sex offenses involving minors, filed this action asserting claims under the Federal Tort Claims Act, the Civil Rights Act of 1871, the Fifth, Eighth and Fourteenth Amendments to the United States Constitution and the Prison Rape Elimination Act arising out of his rape while in prison after inmates became aware of the nature of his offenses through information obtained in the prison law library which defendants allegedly refused to remove. The court grants defendants' motion to dismiss the FTCA claims as the United States is the only party that may be sued under the act, the PREA claims since that act does not create a private cause of action, the 42 U.S.C.A. section 1983 claim alleging violations of plaintiff's civil rights under color of state law and his claim under the Fourteenth Amendment since plaintiff names persons employed as federal prison officials who derive their authority from federal, not state, law. The court denies defendants' motion to dismiss the Eighth Amendment claim, finding that he presented a disputed issue of fact as to whether defendant Ordonez displayed a deliberate indifference to a substantial risk of harm to his safety. Because plaintiff seeks certain injunctive relief on his surviving Eighth Amendment claim, defendant Zickefoose will remain a party to the action but only in her official capacity as warden. [Filed December 20, 2012]