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Daily Decision Service Alert: Vol. 22, No. 7 ? January 10, 2013
New Jersey Law Journal
STATE COURT CASES
01-2-8671 I/M/O Marcano and Frucci, App. Div. (per curiam) (11 pp.) Appellant City of Camden appeals a final decision of the Civil Service Commission dismissing disciplinary charges imposed by Camden against respondents Marcano and Frucci, both police officers who had been assigned to the telephone control unit in the communications area of the county jail, and awarding them back pay and counsel fees. The panel affirms, finding that the commission's decision to order dismissal of the charges because Camden had not presented sufficient proof that Frucci and Marcano should be removed for the charges against them is supported by sufficient credible evidence and therefore not arbitrary, capricious, or unreasonable.
12-2-8672 Warshauer Electric Supply Co. v. Munroe Electric, App. Div. (per curiam) (15 pp.) Plaintiff Warshauer appeals from a Law Division order that entered judgment for it against defendant Ja Din Corp., an electrical contractor, on a book account, but also entered judgment against plaintiff in favor of defendant Chester Dinkel, contending that because Ja Din Corp. transacted business under a trade name registered to Dinkel, and because Ja Din Corp. did not include "Corp." in its name on its business documents, Ja Din Corp.'s principal shareholder, Dinkel, is personally liable for the balance due on the book account. The panel affirms, finding that, inter alia, plaintiff has cited no authority for the claim that a corporate shareholder, who permits a corporation to use the trade name owned by the shareholder, without complying with statutory registration requirements, is strictly liable for corporate debt and the panel declines to so hold under the facts of this case where the plaintiff did not rely on and was not deceived or tricked by, the debtor corporation's use of a trade name that had not been properly assigned to the corporation; and where, as here, the corporation did not comply with N.J.S.A. 14A:2-2.1 because it did not use its actual and complete name on its purchase orders, its failure to comply with the statute does not itself permit the draconian remedy of subjecting its stockholder and president to personal liability.
07-2-8673 Henry v. Healy, App. Div. (per curiam) (4 pp.) Plaintiff, a police officer, filed a complaint on May 5, 2010, alleging that on October 18, 2008, he was injured by defendant while on duty. Defendant was served with the complaint on October 28, 2010, at the Garden State Youth Correctional Facility where he was confined. Defendant did not file an answer. Instead, he responded directly to plaintiff's counsel in two separate undated letters. Defendant expressed an intent to defend against the lawsuit and requested a postponement of the lawsuit until his release, which was anticipated to be May 2011. After plaintiffs complaint was dismissed for lack of prosecution, he filed a motion to reinstate his complaint and, in support thereof, attached copies of defendants letters as exhibits. In this unopposed appeal, plaintiff challenges the order denying his motion. The appellate panel concludes that the motion court misapplied the law by finding that exceptional circumstances were required to be shown. This action involves only one defendant and, accordingly, plaintiff only must establish good cause for reinstatement of his complaint. Applying these principles, the panel remands the matter for application of the proper legal standard and a determination of whether plaintiff established good cause.
09-2-8674 Pope v. Craftsman Builders, Inc., App. Div. (per curiam) (28 pp.) This case arises out of a dispute regarding a contract for home renovations. Defendants Craftsman Builders, Inc. and Christopher Davis, the contractor and its sole shareholder, appeal from a jury verdict entered against them and an order denying their motion for a new trial. They contend that the judge charged the jury improperly and further erred by awarding attorneys' fees and costs pursuant to the offer of judgment rule. Plaintiffs-homeowners cross-appeal from a mid-trial order dismissing claims that they made pursuant to the New Jersey Consumer Fraud Act (CFA). The appellate panel finds plaintiffs presented sufficient evidence of ascertainable loss to defeat defendants' motion to dismiss the CFA claims, reverses the dismissal of plaintiffs' CFA claims, the jury verdict, and the award of attorneys' fees, and remands for a new trial on all issues.
LABOR AND EMPLOYMENT
25-2-8675 Lawrence Antonucci, M.D. v. Morris County Cardiology Consultants, P.A., App. Div. (per curiam) (10 pp.) Plaintiff Lawrence Antonucci formerly practiced medicine with defendants Charles Shioleno, Domenick Randazzo and Nicholas Ricculli in a professional corporation known as Morris County Cardiology Consultants, P.A. (MCCC). Antonucci, Shioleno, Randazzo and Ricculli held shares issued by MCCC when Antonucci left the practice in 2003. Antonucci filed a lawsuit against MCCC and his former associates. Defendants counterclaimed. On appeal, Antonucci contends the judge failed to order a buyout of his interest in MCCC. The appellate panel finds that under the terms of the employment contract, the judge properly determined that Antonucci was not entitled to a buyout. Antonucci also challenges the amount of the judgment, arguing that he was entitled to 25% of the total value of the Net Asset Value of the Corporation (NAVC). The panel finds the judge properly rejected that argument as inconsistent with the terms of the contract. The panel rejects defendants' cross-appeal in which they contend that the judge erred by denying their request for legal fees and costs.
27-2-8676 175 Broad Street LLC v. The Nead Organization Inc., App. Div. (per curiam) (19 pp.) Plaintiff-commercial landlord, which alleges that defendant-tenants breached the written lease by vacating the premises without notice, by failing to pay rent and other charges, and by neglecting to remove their fixtures and to restore the premises to their original condition, appeals the dismissal of its lawsuit in favor of arbitration of the dispute. Interpreting the arbitration provision in the lease, the panel concludes that except for one month, plaintiffs' claims cannot be categorized as for "rent," "additional rent," or "other charges" within the meaning of the lease and do not fall within the provision excluding from arbitration certain kinds of claims. It affirms the order to arbitrate.
34-2-8677 HSBC Bank USA v. Gomez, App. Div. (per curiam) (20 pp.) In this mortgage foreclosure case, defendants Amy Anna Gomez and Alex Owimrin, husband and wife, appeal from an order denying their motion to vacate a default judgment against them, which they filed 16 months after the judgment was entered and the day before the sheriff's sale. The panel affirms, finding, inter alia, that plaintiff complied with the Rules in effect at the time of the filing of its complaint and entry of default judgment, that defendants' delay in asserting their standing defenses was unreasonable and they have not shown a valid defense of plaintiff's lack of standing, they have never certified that the loan was predatory or in any way unfair, that they were told they need not defend the case or that they were lulled into inaction by plaintiff, or that the default was anything other than their fault.
TORTS INTENTIONAL TORTS DEFAMATION
36-2-8678 Schneider v. Unger, App. Div. (per curiam) (17 pp.) This appeal involves a claim by plaintiff Adam Schneider, the mayor of Long Branch, alleging that, in the course of the 2010 mayoral election campaign, defendants Brian Unger, Pat Politano, The Unger Change Team, John Evans, and Peter DeLisa distributed campaign flyers that defamed him. In particular, the campaign flyers insinuated that plaintiff had accepted bribes from a former real estate developer. The developer has served as an undercover agent for the United States in several federal corruption cases against public officials and other individuals. Plaintiff is not, however, one of the officials who was prosecuted in those federal cases. The appellate panel affirms summary judgment in favor of defendants, finding the trial court correctly determined that plaintiff had not made a sufficient showing that defendants had acted with "actual malice," a necessary element of a defamation case where, as here, the plaintiff is a public official.
TORTS PREMISES LIABILITY
36-2-8679 Noble v. Borough of Red Bank, App. Div. (per curiam) (8 pp.) This is a trip and fall personal injury negligence action under the New Jersey Tort Claims Act. Plaintiff appeals from an order granting defendant Borough of Red Bank's motion for summary judgment, resulting in the dismissal of her claims for personal injuries she sustained when she tripped and fell on a sidewalk in the neighborhood near her home. The appellate panel affirms, finding that based on the documentary submissions and photographs of the scene of the accident, the Law Division judge correctly held that plaintiff failed to raise an issue of material fact that defendant "had notice, either actual or constructive, of a dangerous condition" under N.J.S.A. 59:4-2b.
CRIMINAL LAW PLEAS
14-1-8680 State v. Campfield, Sup. Ct. (Patterson, J.) (36 pp., including dissent by Albin, J.) Defendants admissions in his plea colloquy satisfied the standard set by Rule 3:9-2 and established an adequate factual foundation for his guilty plea to the crime of reckless manslaughter in violation of N.J.S.A. 2C:11-4(b).
FEDERAL COURT CASES
59-7-8681 Marjam Supply Co. v. Firestone Building Products Co. LLC, U. S. Dist. Ct. (Martini, U.S.D.J.) (4 pp.) In this antitrust litigation brought under the Robinson-Patman Act, 15 U.S.C. §§ 13(a) and (d), Marjam alleges that its former supplier, defendant Firestone, embarked on a campaign of price discrimination intended to destroy, if not totally eliminate, Marjams competitive position in the Firestone Products and building materials markets. In a parallel arbitration brought under Indiana common law, Firestone alleges that Marjam owes money on outstanding bills. Arguing that the arbitration would usurp the courts antitrust decisions, Marjam moves for a stay pursuant to Federal Rule of Civil Procedure 65. Finding that the issues in the two proceedings are dissimilar enough that the arbitrator could avoid deciding the ultimate antitrust issues, the court concludes that the arbitration will not prejudice its antitrust rulings and that a stay is unwarranted under the permeation doctrine, and it denies the motion. [Filed January 7, 2013]
CIVIL PROCEDURE JURISDICTION
07-7-8682 US Claims v. Baker, U.S. Dist. Ct. (Hillman, U.S.D.J.) (19 pp.) Defendant Baker was the plaintiff in a personal injury action brought in Georgia. Plaintiff US Claims alleges that Baker and US Claims entered into a Purchase Agreement whereby Baker conveyed to US Claims an interest in the proceeds resulting from the Georgia action. Baker retained Defendants Wilson and W&E to represent him in the Georgia action. Plaintiff US Claims alleges that Baker and/or the Wilson defendants have failed to satisfy US Claims interest in the proceeds of Bakers claim and this failure constitutes a default under the Purchase Agreement. US Claims brings claims against Defendant Baker for breach of contract, conversion, unjust enrichment, and fraud. Plaintiff US Claims asserts claims against the Wilson Defendants for breach of contract, conversion, unjust enrichment, fraud, and breach of fiduciary duty. Here, the Court denies the Wilson Defendants motion to dismiss for lack of personal jurisdiction, finding their conduct is so closely related to the contractual relationship between Baker and US Claims that the forum selection clause contained in the contract documents is applicable to the Wilson Defendants. Pursuant to the forum selection clause in the Purchase Agreement, the Wilson Defendants have consented to the exclusive personal jurisdiction of the state and federal courts of New Jersey. The Court may properly exercise jurisdiction over them. [Filed December 27, 2012]
LABOR AND EMPLOYMENT
25-7-8683 McGovern v. Southwest Airlines, U. S. Dist. Ct. (Simandle, U.S.D.J.) (7 pp.) Plaintiff, a New Jersey resident, filed this action asserting claims for harassment, hostile work environment, and unlawful termination pursuant to the New Jersey Law Against Discrimination in state court. It was removed by defendant which moves to dismiss. The court grants the motion, finding that because plaintiff's employment was exclusively in Philadelphia, and no authority for applying the LAD to out-of-state employers unless the plaintiff has significant employment responsibilities in New Jersey, which is not the case here, the LAD does not apply. [Filed January 8, 2013]
LABOR AND EMPLOYMENT CIVIL RIGHTS
25-7-8684 Melillo v. Elizabeth Board of Education, U.S. Dist. Ct. (Wigenton, U.S.D.J.) (13 pp.) Since 1994, Plaintiff has been employed by defendant Elizabeth Board of Education. Plaintiff alleges that he was asked to support and contribute financially to the Board, Board members campaigns, and political organizations the Board supports. Plaintiff claims he suffered adverse working conditions in retaliation for refusing to support and contribute to the Board. Plaintiff also alleges that the Board used the legal process to harass, extort, and to attempt to intimidate Plaintiff into forfeiting his employment and pension. Plaintiff was accused of criminal sexual contact and related crimes and criminal charges were brought against him. The Board brought tenure charges against Plaintiff. Ultimately, all charges were dismissed. Plaintiffs complaint asserts a 42 U.S.C. § 1983 claim for violation of the First Amendment right to freedom of speech of government employee, a New Jersey Civil Rights Act violation, common law malicious prosecution and malicious use of process, and malicious abuse of process. Here, the Court denies DefendantsElizabeth Board of Education, former Board member Pablo Muñoz, and Executive Director for Human Resources Karen Murrays motion to dismiss. [Filed December 27, 2012]