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Daily Decision Service Alert: Vol. 22, No. 50 ? March 14, 2013
New Jersey Law Journal
STATE COURT CASES
20-2-9301 D.G. v. W.G., App. Div. (per curiam) (8 pp.) Defendant W.G. appeals from a final restraining order (FRO) entered pursuant to the Prevention of Domestic Violence Act. Defendant's former wife, D.G, alleged that on September 26, 2011, defendant drove back and forth past her house six times, then parked his car and walked back and forth past her house, watching her through a window. She alleged that defendant then telephoned her, asked her "if she was packing," and stated that "he could find her wherever she went." The complaint also alleged an extensive history of domestic violence. Defendant did not rebut plaintiff's testimony concerning prior acts of domestic violence. In his appeal, defendant contends that his conduct on September 26 was part of a dispute over marital property and did not rise to the level of harassment but was mere "domestic contretemps" that did not warrant the entry of the FRO. The record supports a finding that defendant's conduct on September 26 was undertaken for the purpose of alarming or seriously annoying plaintiff, and he succeeded in doing so. Defendant's phone call, telling plaintiff he would find her wherever she went, was a "communication" made for the purpose of harassment and was made in a "manner likely to cause annoyance or alarm." The appellate panel finds no error in the judge's decision to enter the FRO.
20-2-9302 Gentile v. Gentile, App. Div. (per curiam) (15 pp.) Defendant appeals from and challenges certain provisions of the final judgment of divorce. Defendant argues that the trial judge erred by awarding plaintiff permanent alimony of $500 per week. Defendant contends that the judge failed to acknowledge the present economic downturn and its impact upon his earning capacity, imputed too much income to him, failed to impute sufficient income to plaintiff, and did not appropriately assess his lifestyle needs. The appellate panel finds the court correctly imputed income of $100,000 per year to defendant based on his history of earnings and earnings capacity. Furthermore, defendant provided no factual basis to impute more than $20,800 per year to plaintiff. In addition, the judge's assessment of defendant's monthly budget was based on the record and the court's evaluation of defendant's credibility. The panel finds no error in the judges award of permanent alimony to plaintiff. Further, the judges award of attorney fees to plaintiff was not an abuse of discretion.
20-2-9303 Pope v. Pope, App. Div. (per curiam) (20 pp.)In this post-judgment matrimonial matter, plaintiff (John) appeals from those parts of five Family Part orders, which modified his child support obligation and awarded child support arrears and counsel fees to defendant (Debra). John filed a pro se motion, seeking to terminate child support as of May 25, 1999, and certified that he had been incarcerated as of May 25, 1999, terminated from his employment for cause on May 27, 1999, was being evaluated and treated for a mental illness, had applied to the Social Security Administration (SSA) for disability benefits, and voluntarily surrendered his medical license. The court did not terminate child support; instead the court temporarily reduced child support. John's incarceration ended in June 2001. On December 9, 2009, Debra filed a motion seeking child support arrears from June 1999 to December 2009. Because John never filed a motion to continue child support at $413 monthly after his incarceration ended based on his income, the trial court correctly found that child support reverted to $355 bi-weekly after John's incarceration ended. There was no need for a Lepis analysis. The appellate panel finds no error in the judge's award of child support arrears but reverses and remands for reconsideration of a $7,441.53 credit. The panel also reverses and remands the award of attorney fees.
23-2-9304 Floyd v. High Point Insurance Company, App. Div. (per curiam) (7 pp.) Plaintiff appeals from a judgment following a bench trial, dismissing with prejudice his complaint for personal injury protection (PIP) benefits under an insurance policy issued by defendant High Point Insurance Company. Plaintiffs New Jersey driver's license was suspended in 2004. At some point in 2006, plaintiff was issued a license from the "Yamassee Native Americans." Later in 2006, plaintiff purchased a pickup truck and asked a friend, Christine King, to take title in her name and to obtain insurance coverage. Plaintiff did not live with King; he rented a residential property from her, where he kept the truck. King agreed and the truck was then registered and insured by defendant in her name. She did not list plaintiff as a "licensed operator" of a motor vehicle in her household. Plaintiff was driving the truck when he was injured in an accident. Defendant denied coverage and declined to extend PIP benefits to plaintiff, arguing that he was not an innocent eligible person under the policy. The appellate panel affirms, finding plaintiff did not have a reasonable belief that he was entitled to operate a vehicle on a public highway in New Jersey because he had obtained a tribal driver's license from the Yamassee Native Americans.
23-2-9305 Lehman v. Reinius, App. Div. (per curiam) (22 pp.) Plaintiff filed a complaint alleging that defendant Edward Reinius, an employee of defendant, H.A. DeHart & Son, Inc. (DeHart), was negligent in the operation of his vehicle, causing her personal injuries. Plaintiff's passenger also filed a complaint. The vehicle driven by Reinius was a school van owned by defendant D.L. Peterson Trust and leased through defendant PHH Vehicle Management Services, LLC (the Trust Defendants). PHH leased vehicles to Defendant Knowledge Learning Corporation (KLC). After settlements were reached between DeHart and plaintiffs, the court entered a stipulation of dismissal with prejudice. KLC and the Trust Defendants continued to assert cross-claims against DeHart for contribution, common law and contractual indemnification, and breach of contract. DeHart opposed the motion and cross-moved for summary judgment, contending that it was entitled to defense and indemnification from KLC and the Trust Defendants. The court granted KLCs motion and denied DeHarts motions. DeHart stipulated to liability for the accident. KLC, therefore, was free from fault. It tendered its defense to DeHart, but DeHart refused the tender. Under common law principles, and despite the lack of any indemnification agreement between the parties, KLC was entitled to indemnification from DeHart. Therefore, summary judgment was properly granted.
LABOR AND EMPLOYMENT ARBITRATION
25-2-9306 Somerset County Park Commission v. Teamsters Local Union No. 469, App. Div. (per curiam) (15 pp.) Plaintiff Somerset County Park Commission appeals an order of the Chancery Division referring this labor dispute with defendant Teamsters Local Union No. 469 ("the Union") to arbitration. The Union requested the New Jersey Public Employment Relations Commission ("PERC") to convene a panel of arbitrators to decide grievances stemming from the Park Commission's discharge of two non-probationary employees represented by the Union. A review of the terms of the CNA shows that the agreement does not explicitly and plainly specify whether the discharge of a non-probationary employee can be the subject of an arbitrable grievance. Both the Union and the Park Commission have offered plausible readings of the CNA in support of their competing positions. Given that ambiguity, the appellate panel finds the trial judge properly deferred the interpretation of the CNA to a PERC arbitrator.
04-1-9307 In the Matter of the Letter Decision of the Committee on Attorney Advertising, Sup. Ct. (LaVecchia, J.) (28 pp.) RPC 7.5 is amended to permit a law firm trade name so long as it describes the nature of the legal practice in terms that are accurate, descriptive and informative, but not misleading, comparative or suggestive of the ability to obtain results. The name must be accompanied by the name of the attorney responsible for the management of the organization. The term Alpha in the centers name is impermissible under revised RPC 7.5 and current RPC 7.1. The remainder of the name, coupled with the name of a managing New Jersey attorney, satisfies revised RPC 7.5.
36-2-9308 Samost v. Gregory Voorhees, Esq., App. Div. (per curiam) (18 pp.) Plaintiff Joseph Samost appeals from the summary judgment dismissal of his complaint for defamation against an attorney and several of the homeowners the attorney represented in litigation involving Samost. The defamation action related to comments the attorney made to the press after he successfully moved to enforce his clients' rights against Samost. Samost also appeals from the judgment requiring him to pay counsel fees to the homeowners under the frivolous litigation statute. Samost presented no evidence that the homeowner defendants authorized or ratified the statement, or that had they done so, he could have made out a prima facie case of defamation as a matter of law. The appellate panel affirms, finding Judge Suter was well within her discretion in concluding that the homeowners were sued to get back at them for their participation and success in the underlying litigation and in awarding counsel fees. It is clear as a matter of law that Samost's respondeat superior claim was groundless, and deterrence of such claims is the purpose of the frivolous litigation statute.
WORKERS COMPENSATION AND OTHER COMPENSATION SYSTEMS
39-2-9309 Adams v. Target Stores, Inc., App. Div. (per curiam) (11 pp.)
Workers' compensation respondent Target Stores, Inc. appeals the decision by the Judge of Workers' Compensation denying its application for reimbursement from petitioner Margaret Adams for temporary disability payments paid prior to the determination that petitioner was permanently and totally disabled. Target also seeks a reduction of counsel fees due to this reimbursement, as well as an offset for Social Security Disability (SSD) payments received by petitioner. The appellate panel affirms the decision, rejecting Targets attempt to argue that in hindsight, petitioner was totally disabled on the date of the accident and thus she was not eligible for temporary total disability benefits, and it should be reimbursed for all temporary disability payments made to petitioner.
CRIMINAL LAW BAIL
14-2-9310 State v. Steele, App. Div. (Ostrer, J.A.D.) (24 pp.) On leave granted, we modify the $200,000 bail, of which $150,000 must be cash, set by the trial court on two indictments charging only fourth-degree offenses. We construe N.J.S.A. 2C:6-1, which generally imposes a limit of $2,500 on bail for fourth-degree offenses. We conclude the court may exercise its statutory power to exceed $2,500 for good cause by applying the bail factors set forth in State v. Johnson, 61 N.J. 351 (1972), and incorporated in Rule 3:26-1(a). However, we conclude the trial court here inappropriately considered safety of the community when setting the amount of money bail. We discuss the role of nonmonetary conditions of bail to protect the community. [Approved for publication.]
FEDERAL COURT CASES
07-7-9311 Nottage v. Superior Court Of Cumberland County, New Jersey,Dist. Ct. (Kugler, U.S.D.J.) (3 pp.) Defendants the Superior Court of New Jersey and Sun National Bank move to dismiss Plaintiffs complaint. Plaintiff has not filed opposition. In the section of the complaint entitled Statement of Claim, Plaintiff only indicates that the events giving rise to the claim occurred in Cumberland County. Plaintiff writes unknown when asked what date and approximate time the events giving rise to the claim occurred and leaves the entire Facts section blank. Attached to the complaint are papers that Plaintiff presumably sent to the Department of Veterans Affairs and filed with the United States District Court for the Eastern District of Pennsylvania. None of these papers contain any facts that could be construed to state a claim against either the Superior Court of New Jersey or Sun National Bank. Sun National Bank is not even mentioned in the complaint or any of the attached documents. The Court finds the complaint lacks sufficient factual matter to state a claim against either defendant. Defendants motions to dismiss are granted. [Filed March 7, 2013]
09-8-9312 Maniscalco v. Brother International (USA) Corporation, Third Circuit (Barry, U.S.C.J.) (15 pp.) Walter Huryk appeals the order of the District Court granting summary judgment in favor of Brother International Corp. (BIC) and dismissing his putative class action claim under the New Jersey Consumer Fraud Act (NJCFA). The circuit panel finds the District Court properly dismissed that claima claim for concealing or failing to disclose two design defects present in BICs line of Multi-Function Center (MFC) machineson the ground that South Carolina law, not New Jersey law, is the applicable law. South Carolina, unlike New Jersey, would not permit the statutory consumer fraud claims to proceed as a class action. [Filed March 8, 2013]
04-7-9313 United States of America v. Lacerda, Dist. Ct. (Hillman, U.S.D.J.) (36 pp.) Defendant Adam Lacerda and his wife Ashley Lacerda are the former co-owners of Vacation Ownership Group ("VO Group"), a company engaged in the business of buying and selling vacation timeshare properties. The Indictment charges that the Lacerdas and sixteen others conspired to commit mail and wire fraud. The Government alleges the conspirators devised and executed a scheme to defraud timeshare owners of their money and property. Before the Court is the Governments motion to disqualify Adam Lacerda's counsel of record, Marc Neff, Esq. Witnesses recalled the attorney meeting with VO Group employees to alleviate their concerns as to the ongoing investigation of the company and the Lacerdas. According to the Government, after the meeting, several employees who had previously considered leaving the company stayed and continued to work for the VO Group, thereby furthering the fraudulent scheme. The Court finds that Neff faces, or is likely to face, significant conflicts of interest. The Court further finds that these conflicts cannot be waived or cured by remedial measures other than disqualification. Accordingly, the Court grants the United States' Motion, and will disqualify Neff from further representation of Defendant Adam Lacerda in this matter. [Filed March 7, 2013]