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Daily Decision Service Alert: Vol. 22, No. 69 ? April 10, 2013
New Jersey Law Journal
STATE COURT CASES
11-2-9550 Suzanne's Specialties Inc. v. American Sugar Refining Inc., App. Div. (per curiam) (13 pp.) Plaintiff Suzanne's Specialties, Inc. and third-party defendant Innovative Sweeteners, Inc. appeal contending that the trial court erred by staying the trial court proceedings pending completion of arbitration commenced by defendant counterclaimant/third-party plaintiff American Sugar Refining, Inc. and by denying their motion to enjoin the arbitration in this dispute arising out of two commercial agreements (1993 and 1999) between Innovative and American which give Specialties the exclusive right to market Cereal Syrups to the natural/health food industry and sets the fees it shall receive. The 1999 agreement includes an arbitration clause. The panel affirms, holding that a provision in the stipulation of settlement entered into in litigation between Innovative and American did not render the arbitration clause in the 1999 agreement unenforceable; Specialties, as a third-party beneficiary of the 1999 contract is bound by Innovative's agreement to arbitrate; and American's participation in this litigation for 20 months before seeking a stay of the trial court proceedings did not amount to a waiver of its contractual right to arbitrate.
LEGAL PROFESSION ATTORNEY FEE RECOVERY
04-2-9551 Ragan & Ragan, P.C. v. Winberry Realty Partnership,, App. Div. (per curiam) (14 pp.) This appeal arises from a law firm's suit to collect fees for legal work performed for a client (the collection action), and the client's counterclaim for legal malpractice. Defendants Winberry Realty Partnership and the individual members of the partnership appeal from two orders, granting summary judgment in favor of plaintiff Ragan & Ragan, P.C., and dismissing defendants' counterclaim, and from a third order denying defendants' motion for reconsideration. The appellate panel finds the motion judge correctly ruled that the counterclaim required an Affidavit of Merit. Also, after noting plaintiff's extensive efforts to obtain defendants' agreement to go to arbitration, the judge also rejected defendants' untimely contention that the matter should now be dismissed in favor of arbitration. The collection action was ripe for summary judgment because defendants did not specify any additional discovery they needed nor did they raise any material dispute of fact as to the reasonableness of the fees. The appellate panel affirms the award to plaintiff of its fees for legal services provided to defendants, and affirms the dismissal of the malpractice counterclaim. The panel reverses the award to plaintiff of counsel fees for its self-representation in the collection action.
14-2-9552 State v. Harvey, App. Div. (per curiam) (13 pp.) Defendant appeals from the order of the Law Division denying his petition for post-conviction relief (PCR). Pursuant to a plea bargain, defendant pled guilty to second-degree sexual assault. Defendant also pled guilty to CDS and firearm charges in other indictments. In exchange for the plea, the State agreed to dismiss all other charges and to recommend a maximum custodial sentence on all charges of five years imprisonment, with a three-year period of parole ineligibility on the CDS offense. However, while the 1998 Judgment of Conviction (JOC) states "MEGAN'S LAW TO APPLY[,]" the box next to the statement -- "You are hereby sentenced to community supervision for life" -- is not marked. The record suggests that the action of the sentencing court in amending the JOC in 2003 to explicitly impose community supervision for life under N.J.S.A. 2C:43-6.4 may impair defendant's rights under the double jeopardy clauses of the United States and the New Jersey Constitutions. Because that issue may require an evidentiary hearing, given the absence of the sentencing transcript, the appellate panel remands the matter to the trial court.
14-2-9553 State v Rojas, App. Div. (per curiam) (13 pp.) After the denial of his motion to suppress, defendant entered a guilty plea to two of the offenses charged arising out of the stabbing of his former wife. Defendant appeals and the panel remands for further proceedings regarding the search of the contents of defendant's cell phone and the legal consequence of a related consent order between the State and defense counsel. Once a record is developed regarding the messages and draft messages retrieved from defendant's cell phone and the related consent order, the trial court will then be able to make a factually supported decision on the motion to suppress. Should the court grant the motion, even if in part, the court may also at its discretion allow defendant to withdraw his guilty plea if he wishes to do so. If the motion is again denied, the status quo shall remain and defendant may file an appeal from the decision. As to the seizure of defendant's clothing and blood samples, the panel affirms.
CRIMINAL LAW SEARCH AND SEIZURE
14-1-9554 State v. Walker, Sup. Ct. (Rodriguez, P.J.A.D., temporarily assigned) (25 pp.) Under the New Jersey and federal constitutions, probable cause and exigent circumstances justified the warrantless entry into defendants apartment and the seizure of the marijuana cigarette and all the CDS found there.
FEDERAL COURT CASES
42-7-9555 National Pool Construction, Inc. Liquidating Trust v. The Provident Bank, Dist. Ct. (Pisano, U.S.D.J.) (10 pp.) This is an appeal from the decision of the Bankruptcy Court granting a motion by The Provident Bank to dismiss the complaint in an adversary proceeding brought by appellant National Pool Construction Inc. Liquidating Trust. First, Appellant asserts that the Bankruptcy Court erred in dismissing the action under § 550 to recover the value of avoided transfers from Appellee because the action was timely filed. Second, Appellant argues that the Bankruptcy Court erred in finding that Appellants claim against Provident was barred by the doctrine of res judicata. Appellants first argument fails where Provident was dismissed from the 2012 Adversary Proceeding based on the Bankruptcys Courts finding that the complaint raised claims that the court had already ruled on in the 2011 Adversary Proceeding. In addition, all of the elements of res judicata are satisfied. In the 2012 action, the Trust (the same plaintiff) alleged the same causes of action against Provident (the same defendant) regarding allegations of improper repayment of the same loans by the same principals of the same Debtor. Consequently, the Court finds the Bankruptcy Court did not err in finding that Appellants claims were precluded and dismissing the claims against Provident in the 2012 Adversary Proceeding. [Filed March 25, 2013]
11-7-9556 JOC Inc. v. ExxonMobil Oil Corp., Dist. Ct. (Chesler, U.S.D.J.) (53 pp.) Plaintiff Ashwood, an Exxon franchisee, asserts claims for breach of contract, breach of the implied covenant of good faith and fair dealing, and breach of New Jersey's Unfair Motor Fuels Practices Act arising out of Exxon's pricing practices and other discretionary decisions under the parties PMPA Agreements which established the franchise relationship between the parties. The court denies Ashwood's motion to amend the pleadings a second time to add 400 new allegations and two additional counts, finding that it has not demonstrated good cause to amend the complaint beyond the deadline set forth in the scheduling order and subsequent orders, and even if it had, the amendment is not appropriate under Rule 15(a)(2) because the motion is unduly delayed and granting leave to amend at this stage would be prejudicial to Exxon. The court denies Exxon's motion to strike the affidavit of one of plaintiff's experts because, inter alia, it is not so facially deficient that it must be stricken and it need not strike the affidavit merely because it relies on expert reports and other opinions that were not formally submitted with plaintiff's cross-motion for summary judgment. However, to the extent that the affidavit asserts the Exxon charged plaintiff "unfair" or "commercially unreasonable prices," it will be disregarded as those conclusions amount to improper legal opinions. The court grants Exxon's motion for summary judgment because, inter alia, the parties' agreement to a one-year limitations period is enforceable and plaintiff's claims that accrued prior to September 18, 2007, are time barred; plaintiff has failed to show discriminatory intent sufficient to withstand summary judgment on its price discrimination claim; Exxon is entitled to summary judgment on plaintiff's breach of contract claim under Section 2-305 of the New Jersey Commercial Code because plaintiff failed to establish a prima facie case that Exxon charged it commercially unreasonable prices; and the good faith and fair dealing claims fails because plaintiff was not denied the reasonably expected fruits of its contract. [Filed January 22, 2013]
11-7-9557 JOC Inc. v. ExxonMobil Oil Corp., Dist. Ct. (Chesler, U.S.D.J.) (2 pp.) The court having granted Exxon summary judgment on its counter-claim for breach of contract against plaintiff, Exxon moves for summary judgment on damages of $186,584.50, representing outstanding rent and fuel payments due under the parties' PMPA Agreement. Exxon having indicated that it has moved for final judgment and will not be pursuing any additional damages beyond those currently sought, and Ashwood having submitted no opposition to the present motion, the court grants the motion. [Filed March 26, 2013]
22-7-9558 Skelcy v. UnitedHealth Group, Inc., Dist. Ct. (Thompson, U.S.D.J.) (9 pp.) Plaintiff filed a motion for a certificate of appealability in response to the Courts December 5, 2012 Order, which effectively dismissed the MES Defendants from the litigation. Plaintiffs lawsuit, brought on her own behalf and as general administrator and administrator ad prosequendum of James T. Skelcys estate, seeks to recover damages for the wrongful denial and delay of health insurance benefits that allegedly deprived proper and timely treatment of Mr. Skelcy, causing his death. The Court declines to grant Rule 54(b) certification. The Court agrees that the December 5 Order was final with respect to the MES Defendants as parties. The underlying issue - whether or not reviewing physicians in the insurance context may be held liable without the existence of a traditional doctor-patient relationship is sufficiently similar so as to discourage certification of the December 5 Order against the MES Defendants alone. The Court finds certification should not be granted given the risk that it would result in the unnecessary delay of the current proceedings. [Filed March 25, 2013]
INSURANCE LAW JURISDICTION AND SERVICE OF PROCESS
23-7-9559 Old Bridge Municipal Utilities Authority v. Westchester Fire Insurance Company, Dist. Ct. (Pisano, U.S.D.J.) (4 pp.) This action was brought in the Superior Court of New Jersey by Plaintiff Old Bridge Municipal Utilities Authority against Defendants Westchester Fire Insurance Company, Ace Westchester Specialty Group and unnamed defendants. This matter arises out of a coverage dispute over the parties rights and obligations under a Municipal Advantage Public Entity Liability Policy issued to Plaintiff by Westchester Fire. Plaintiff alleges three causes of action: (1) breach of contract; (2) specific performance; and (3) declaratory relief. The action was removed to this Court by Defendants. Plaintiff filed a motion to remand. The sole issue is whether the Court has jurisdiction over the state law claims. The parties are diverse, the amount in controversy will likely exceed $75,000 and the Court plainly has jurisdiction over the state law claims at issue. Plaintiffs claims for breach of contract and specific performance are not governed by the New Jersey Declaratory Judgment Act and Plaintiff has not proffered any argument as to why these two claims cannot be heard by this Court. The Court has jurisdiction to hear state law claims such as these in a diversity action. Moreover, this fundamental principle of law applies equally to the Plaintiffs third claim, which seeks declaratory relief rather than monetary damages. The Court denies Plaintiffs motion to remand. [Filed March 25, 2013]
LABOR AND EMPLOYMENT
25-7-9560 Cunliffe-Martin v. Princeton University, Dist. Ct. (Shipp, U.S.D.J.) (8 pp.) Plaintiff alleges that she was terminated from her job as a staff nurse at Princeton University, McCosh Health Center because of her disability, as well as her age. Plaintiff filed a claim with the EEOC, which found that it was unable to conclude that the information provided established a statutory violation. Plaintiffs complaint alleges a claim under the Americans with Disabilities Act (ADA). Plaintiffs complaint does not provide enough facts for the court to determine whether or not Plaintiff suffers a physical or mental impairment that substantially limits one or more… major life activities. Plaintiffs complaint does not set forth what accommodation would be reasonable, or whether such an accommodation would enable her to perform the essential functions of her employment as a nurse. Plaintiffs complaint fails to allege that she can perform the essential functions of her job, with or without reasonable accommodation. Because Plaintiff fails to proffer sufficient factual allegations to support a claim of disability discrimination, the Court grants Defendants motion to dismiss without prejudice and grants leave for Plaintiff to file an amended complaint. Similarly, Plaintiff offers insufficient facts to support her Age Discrimination in Employment Act of 1967 claim. [Filed March 21, 2013]
04-7-9561 RD Legal Funding LLC v. Cohen, P.A., Dist. Ct. (Linares, U.S.D.J.) (6 pp.) Plaintiff, engaged in the business of providing funding to attorneys and law firms by purchasing their legal fee receivables earned generally through settlements, alleges breaches and misrepresentations arising out of a Master Assignment and Sale Agreement entered into with Cohen, Jayson & Foster, a Florida law firm of which defendant, an attorney admitted to practice law in Florida, is the sole shareholder. The court finds that the complaint fails to comply with the pleading requirements of Rule 8(a) and fails to put defendant on notice of the basis of all claims against them because it fails to clearly identify the cause of action asserted in each count and each count of the complaint contains the statement incorporating all previous allegations, and although there may be circumstances in which it is appropriate to incorporate certain allegations by reference, each count of a properly pled complaint mustcontain its own cause of action andthe particular factual allegations that would allow the court to draw the reasonable inference that the defendant is liable for that cause of action, and the complaint, as currently drafted, fails to meet this requirement. The complaint is therefore dismissed without prejudice. [Filed April 1, 2013]
CRIMINAL LAW CORRECTIONS
14-7-9562 Cipolla v. Hayman, Dist. Ct. (Hillman, U.S.D.J.) (26 pp.) This 42 U.S.C. section 1983 action arises out of an incident in which defendant Guerrero, a DOC employee, allegedly threw a water bottle at plaintiff's ear, injuring him, and that various other defendants thereafter transferred plaintiff to several different prison facilities, thus denying him timely diagnosis and treatment and that several medical professionals consciously disregarded plaintiff's injuries by failing to treat him for his pain and hearing loss. The court grants in part and denies in part defendants' motion to partially dismiss the amended complaint. The following claims are dismissed with prejudice: all claims against the DOC, Mid State Correctional Facility, Central Reception and Assignment Facility, South Woods State Prison, and Southern State Correctional Facility and all claims against defendants Guerrero, Dill, and Rocco in their official capacities; and all newly raised state tort claims. All claims against Dr. Shah were previously dismissed and therefore must be dismissed from the amended complaint. Plaintiffs newly raised constitutional claims under the Fourth, Fifth, and Eighth Amendment may proceed. All cross-claims by Community Education Center, Inc. remain. [Filed March 26, 2013]