ALM Properties, Inc.
Page printed from: http://www.njlj.com
Select 'Print' in your browser menu to print this document.
Daily Decision Service Alert: Vol. 22, No. 124 - June 27, 2013
New Jersey Law Journal
STATE COURT CASES
27-2-0443 East Coast The Fairways Apartments, LLC v. Leach, App. Div. (per curiam) (15 pp.) Defendants appeal from an order of the Special Civil Part granting judgment of possession to plaintiff, their landlord, on its complaint for eviction under N.J.S.A. 2A:18-61.1(i), which alleged defendants refused to accept reasonable changes in the terms of their lease at lease renewal. Defendants argue on appeal that the "revised" lease, which incorporated some of the suggestions made by the trial judge, is still unreasonable. Defendants contend that the trial judge never addressed several of the changes they challenged, and that the revisions he suggested did not obviate the problems they originally raised. The appellate panel reverses and remands due to the failure of the trial judge to make findings of fact and set forth his conclusions of law. Not only did the trial judge fail to address every provision in the proposed new lease challenged by defendants, but also the trial judge failed to explain his conclusions by relating them to the standards of reasonableness governing N.J.S.A. 2A:18-61.1(i).
RESIDENTIAL AND COMMERCIAL REAL ESTATE
34-2-0444 Bonnabel v. Township Of River Vale, App. Div. (per curiam) (11 pp.) Plaintiff challenges the validity of the 2010 fair share ordinance adopted by the Township of River Vale to meet its Mount Laurel housing obligations. Plaintiff is the owner of a tract of land that was not included in the Township's "Third Round Housing Element and Fair Share Plan." He filed a complaint in lieu of prerogative writs to invalidate the Township's fair share ordinance, which was adopted in two parts. Before the trial court, plaintiff argued that: (1) the public notice advertising the fair share ordinance was defective because it did not include the time and place where residents could obtain a free copy of the proposed ordinance; and (2) adoption of the ordinance was arbitrary, capricious, and unreasonable because the council members did not review and adopt the ordinance in its entirety. The trial court dismissed plaintiff's complaint with prejudice, concluding that the Township's publication error was a technical violation of N.J.S.A. 40:49-2 and the notice substantially complied with the statute. The court also found that the fair share ordinance was not arbitrary, capricious or unreasonable because the Township had quickly rectified the printing error by adopting the second ordinance. The appellate panel agrees and affirms. The public notice explained the nature and purpose of the ordinance, accurately provided the time and place of the public hearing, and pronounced that all interested persons would be given an opportunity to be heard. Under the arbitrary, capricious, and unreasonable standard of review, there is no basis to set aside the two ordinances.
RESIDENTIAL AND COMMERCIAL REAL ESTATE
34-2-0445 Guiuan v. Lasalle Bank National Association, Trustee, App. Div. (per curiam) (8 pp.) Guiuan was a defendant in a mortgage foreclosure action in which final judgment by default was entered on April 12, 2007. The subject property, a condominium, was sold at sheriff's sale on October 7, 2008, for $100 to LaSalle Bank, the mortgagee. LaSalle Bank subsequently sold the real estate to Dibada Investments, LLC, on March 23, 2009. On September 1, 2010, Dibada sold the property to Carla Perez. On May 31, 2011, Guiuan filed a complaint against all parties involved in the mortgage foreclosure, and various John Does, asserting multiple causes of action based on the court's alleged lack of jurisdiction in the foreclosure. Guiuan further claimed that because of a defect in the assignment, all defendants had engaged in fraudulent transfers and demanded as relief the return of the property. The Law Division judge granted motions for summary judgment dismissing the complaint based on res judicata, collateral estoppel, and the entire controversy doctrine. The appellate panel affirms for those reasons, noting that by filing this separate proceeding against all the participants in the mortgage foreclosure, from bank attorneys to bona fide purchasers, Guiuan is attempting to do an end-run around the judgment of foreclosure in order to regain her property in a different forum.
RESIDENTIAL AND COMMERCIAL REAL ESTATE — MORTGAGE FORECLOSURE
34-2-0446 Deutsche Bank National Trust Co. v. Vezeriannis, App. Div (per curiam) (15 pp.) Plaintiff appeals the Chancery Division order that entered summary judgment against it, dismissed its foreclosure complaint, and discharged its mortgage on real estate owned by the borrowers here, where EAM Settlement Services, the settlement agent for Lend America, wired mortgage payoff funds to the Bank of America account for Citi Residential, the attorney in fact for Ameriquest, to pay off the Ameriquest mortgage on the property but, because the wire did not include a reference to the borrowers or the loan number, Citi returned the funds to EAM, and eventually plaintiff, to which the Ameriquest mortgage was assigned, filed the foreclosure action. Rejecting plaintiff's claim that EAM's wire transfer to BOA was a "funds transfer" subject to UCC 4A and that because the wire did not identify the Ameriquest loan number, Citi was obligated by UCC 4A to return the funds, and finding that Citi's pre-closing fax to Lend America was not part of the funds transfer and was not subject to UCC 4A, the panel affirms, concluding that the Chancery Division judge properly weighed the countervailing considerations, applied appropriate equitable principles, and struck a balance in favor of borrowers.
RESIDENTIAL AND COMMERCIAL REAL ESTATE — MORTGAGE FORECLOSURE
34-2-0447 Deutsche Bank National Trust v. Eddings, App. Div. (per curiam) (9 pp.) In this mortgage foreclosure action, defendants appeal from the denial of their motion to stay eviction and vacate a final judgment of foreclosure entered four and one-half years ago. The motion was denied as time-barred. The panel affirms substantially for the reasons expressed below. Here, where Deutsche Bank filed a foreclosure complaint before MERS assigned it the mortgage but presented certified copies of the note, mortgage, and assignment of mortgage in its application for final judgment; defendants have not denied responsibility for the mortgage debt; they were represented by counsel, contested the foreclosure by filing an answer, and opted not to oppose summary judgment; they participated in the action and actively tried to resolve it through attempts at modifying their loan and discharging their mortgage through a short sale, equity bars their attempt to reopen the judgment to litigate standing issues they had every opportunity to litigate before judgment was entered and their motion to repen the judgment was filed beyond any reasonable time permitted by Rule 4:50-2.
36-2-0448 Pizzuto v. Adams, App. Div. (per curiam) (8 pp.) Plaintiff, who lost the vision in one eye after a fight at a party, appeals from the grant of summary judgment to defendants, friends of the host of the party. The party was held at the home of a 17-year-old girl whose parents were out of town and did not know about the party. Defendants did not bring food, beverages or other supplies to the party and there was no evidence that they knew there would be alcohol at the party, planned to have alcohol at the party, brought alcohol to the party or served alcohol to any guests. Plaintiff, who was under age, went to the party with four companions, only one of whom was an invited guests, brought and consumed alcohol, got drunk, and got into the altercation that led to the loss of his vision. The panel affirms, finding that the case was ripe for summary judgment and that there is no support for the proposition that someone who helps a friend plan a social event can be held liable, on that basis alone, for a mishap that occurs at the event hosted by the friend.
FEDERAL COURT CASES
42-7-0449 In re Arts des Provinces de France Inc., U. S. Dist. Ct. (Cavanuagh, U.S.D.J.) (8 pp.) First Data Services, which processed credit card sales and provided other services to the debtor, appeals from an order of the Bankruptcy Court scheduling a consolidated evidentiary hearing on the turnover of property of the estate. FDS had objected to the turnover motion and had filed a motion to lift the stay and for relief so that it could assert its contractual rights pursuant to its merchant agreement with the debtor under which a reserve fund had been established in order to protect FDS from obligations it had to pay on behalf of the debtor to third parties. The court affirms, holding that while it is apparent that the automatic stay in this instance exceeded the time constraints of § 362(e)(1), the Bankruptcy Court did not err in continuing the automatic stay as to FDS because FDS acted inherently inconsistently with adherence to the time constraints of §362(e)(1) by (1) cross-moving for a stay of relief and for allowance and payment of an administrative expense: and (2) failing to assert their rights under § 362(e)(l) by participating in discovery and failing to oppose a request for the adjournment of a motion for relief, and thus implicitly waived its rights under § 362(e)(l). [Filed June 12, 2013]
CIVIL PROCEDURE — JURISDICTION AND SERVICE OF PROCESS
07-7-0450 Huntington Learning Center, Inc. v. Read It, U.S. Dist Ct. (Walls, U.S.D.J.) (12 pp.) Plaintiff Huntington Learning Center (HLC) filed a complaint against Defendants Read It, N.C., Wallace Educational Holdings, L.L.C. (WEH), Sara Wallace, Ashley Wallace, Brenda Wallace and Willie Wallace, alleging trademark infringement and breach of contract. Defendants filed a motion to dismiss alleging lack of personal jurisdiction, improper venue, and in the alternative requesting a transfer to a Federal District Court in North Carolina. WEH and HLC executed Huntington Learning Centers’ Franchise Agreement whereby HLC granted WEH the right to establish and operate a HLC Franchise in Wilmington, North Carolina. Defendants signed three forum selection provisions expressly consenting to the jurisdiction of this Court. The Court rejects Defendants’ arguments that the Court lacks jurisdiction under the New Jersey Franchise Practices Act (“NJFPA”) and because the forum selection clauses are invalid. The Franchise Agreements do not contemplate a place of business within New Jersey and thus are not covered by the NJFPA. The Franchise Agreements are valid and enforceable. The Court has personal jurisdiction over Defendants under their consent in their Franchise Agreements’ forum selection clauses. Venue is proper in the District of New Jersey. The Court finds no compelling reason to transfer. Defendants motion to dismiss and request for transfer are denied. [Filed May 30, 2013]
46-7-0451 Grande v. Keansburg Borough, U. S. Dist. Ct. (Pisano, U.S.D.J.) (30 pp.) In this 42 U.S.C. section 1983 action alleging that a police officer used excessive force against plaintiffs Laura and Annmarie when he went to their house to execute a warrant, the court grants in part and denies in part defendants' partial motion to dismiss. The court dismisses, inter alia: (1) the section 1983 excessive force claim of Annmarie, who was 11 years old at the time of the incident and who was adjudicated a delinquent of aggravated assault as a result of the incident, finding that the claim is barred by the Heck doctrine; (2) Annmarie's federal and state law abuse of process claims since she was convicted of the charges with which she was charged and the arrest therefore was not based upon some objective other than for what it was intended; (3) the section 1983 charges against the police chief and deputy chief in their individual capacities because plaintiffs fail to allege that they personally participated, condoned or even knew of the officer's allegedly improper conduct; (3) loss of consortium since loss of consortium is not cognizable under section 1983. The motion to dismiss is denied with respect to the (1) supervisory liability claim against the police chief and deputy chief because plaintiffs have identified a specific supervisory practice that defendants failed to employ and a reasonable inference may be made that the failure to train subordinates on excessive force created the unreasonable risk of excessive force to plaintiffs and that defendants were aware that an unreasonable risk existed; (2) Monell claims against the borough because plaintiffs identified challenged policies, practices, or customs and attributed the policy, practice or custom to the borough, and they asserted a causal link between the policy, practice or custom and the injuries they suffered. [Filed June 13, 2013]
46-8-0452 Mendez v. New Jersey State Lottery Commission, Third Cir. (per curiam) (6 pp.) In this 42 U.S.C. section 1983 action stemming from plaintiff's prolonged dispute over a winning lottery ticket, which spawned two suits in state court, the first of which was decided against plaintiff and in the second, the complaint was eventually dismissed, pro se plaintiff alleges that the State and non-State defendants denied him his due process rights. He appeals the District Court's order granting defendants' motion to dismiss, denying his motion for default judgment, and dismissing the defendants for failure to serve. The court affirms, finding that (1) the District Court did not abuse its discretion by not entering default judgment against the State defendants since the action is barred by the Eleventh Amendment; (2) the District Court properly granted the non-State defendants' motions to dismiss because plaintiff failed to allege how the various named attorneys acted under color of state law so as to deprive him of his civil rights; and (3) Mendez failed to state a claim under 42 U.S.C. § 1985(3), as nowhere did he allege that the non-State defendants, or any other defendants, entered into a conspiracy motivated by some racial, or perhaps otherwise class-based, invidiously discriminatory animus. [Filed June 13, 2013]
20-7-0453 Bresko v. Critchley, U.S. Dist. Ct. (Cecchi, U.S.D.J.) (7 pp.) This matter was commenced in the Northern District of Florida by two Florida residents – the non-custodial, con-cohabitation, non-in-loco-parentis paternal grandmother and aunt of two minors. The mother and father are in the midst of two proceedings in the New Jersey state courts. One proceeding is a divorce action; the other is a domestic violence matter. The state judge entered an order barring plaintiffs from further filings in support of the father and from having contact with the minors until a hearing is held. Plaintiffs filed a complaint, naming as defendants the judges in the state court actions, a DYFS employee, New Jersey Battered Women Services, the mother’s attorney and the attorney’s malpractice insurance carrier. The Court addressed numerous threshold deficiencies of Plaintiffs’ position and dismissed the pleading. However the Court directed Plaintiffs to submit a written statement listing clearly and concisely each claim they wish to allege. Plaintiffs did not comply with the Court’s order and instead submitted a motion to vacate. Plaintiffs’ motion can be construed as asserting that the state courts violated their procedural due process rights by barring Plaintiffs from contact with the minors. This claim is without merit. Plaintiffs lack a constitutionally protected liberty interest in associating with the children. Plaintiffs’ complaint is dismissed without prejudice. [Filed May 30, 2013]
TORTS — JURISDICTION
36-7-0454 Sperber v. Elwell, U. S. Dist. Ct. (Thompson, U.S.D.J.) (9 pp.) Plaintiff, a resident and citizen of New Jersey and owner of two New Jersey businesses, filed this action asserting claims for false advertising and false designation, libel per se, and copying infringement arising out of internet postings allegedly made by defendant on a website having a national audience accusing her of having been indicted on charges of racketeering and money laundering and then posting responses to the accusations allegedly made by plaintiff. Defendant moved to dismiss the complaint based on a lack of personal jurisdiction. The court finds that the majority of the evidence does not support a finding that defendant intentionally targeted the present forum, but that plaintiff's contention that the emails allegedly sent by defendant containing the link to the tortious postings likely targeted New Jersey residents, if resolved in plaintiff's favor, would show that defendant did, in actuality, expressly aim his conduct at New Jersey. It therefore denies defendant's motion to dismiss without prejudice until further jurisdictional discovery has occurred. [Filed June 10, 2013]
CRIMINAL LAW — CORRECTIONS
14-7-0455 Harris v. Ricci, U. S. Dist. Ct. (Debevoise, S.U.S.D.J.) (25 pp.) Underlying plaintiff's complaint was a disciplinary hearing that occurred after he wrote and submitted for mailing two letters using certain "code words" commonly used by gang members and sent money to a woman who was a member of another inmate's family, as a result of which plaintiff was transferred to another prison facility and eventually housed at a special housing unit (SHU) where others presumed to be gang members were housed for additional surveillance. The only remaining claims relate to the disciplinary hearing. Defendant alleges that defendants refused to give him the letters with the code words, thus depriving him of a meaningful opportunity to ascertain the charges against him and that the officer who conducted the hearing improperly based his findings on investigatory conclusions by another officer rather than on his own review of the letters and erroneously identified certain evidence. The court dismisses the claims against all officers other than the hearing officer because plaintiff's claims fail to show personal involvement by those officers; awards plaintiff nominal damages of $1 for the hearing officer's failure to permit him to review the letters and to rely on his own review of the letters; awards plaintiff nominal attorney fees of $30 and denies plaintiff motion for leave to amend as moot or, alternatively, as futile. [Filed June 11, 2013]