Daily Decision Service Alert: Vol. 21, No. 231 ? November 29, 2012

 

01-2-8301 I/M/O Petition of Waste Management of New Jersey Inc., App. Div. (per curiam) (8 pp.) Atlantic County Utilities Authority appeals from a final order of the Department of Environmental Protection approving Waste Management of New Jersey's purchase of a solid waste transfer station and related assets from Cifaloglio Inc. The panel affirms, noting that the Authority did not object to the sale prior to its approval by the DEP and in essence now seeks to raise on appeal issues that it could have, but did not, raise before DEP during the public comment period and that the issue that prompted the belated objection to the sale, Waste Management usage of an out-of-state disposal site, has become moot because the Atlantic County solid waste management plan has been amended to prohibit use of an out-of-state site. 

 

17-2-8302 Marolda Farms, Inc. v. Maryland Casualty Insurance Co., App. Div. (per curiam) (15 pp.) In this environmental remediation case, Plaintiffs appeal from a Law Division order dismissing without prejudice their complaint against several insurance companies. The motion judge determined that because the action required him to rule on the fairness and scope of a consent decree entered years earlier in the District Court, plaintiffs were required to litigate their claim in that forum. Here, the terms of the releases were incorporated into the consent decree. It is evident, not only by the court's language in the decree expressly reserving to itself continuing jurisdiction to enforce the terms of the decree, but also by the extent of the terms of the settlement incorporated in the decree, that the court intended to retain jurisdiction to enforce the decree. While plaintiffs were not parties to the action, the issues raised in their complaint in the Law Division explicitly challenged the lawfulness of the terms embodied in the consent decree. Even assuming the District Court decree was not intended to bind plaintiffs, as a matter of comity, the appellate panel finds the Law Division properly dismissed plaintiffs' complaint.

 

20-2-8303 Lenowitz v. Lenowitz, App. Div. (per curiam) (16 pp.) Plaintiff appeals, and defendant cross-appeals, from provisions of a post-judgment order addressing alimony, child support, equitable distribution and other issues. The panel affirms substantially for the reasons expressed below. It adds that, inter alia, (1) the record does not support plaintiff's claim that the trial judge refused to honor her reasonable requests for accommodations; (2) the trial judge did not abuse his discretion regarding the parties' imputed income; (3) the judge considered all the alimony factors as required by N.J.S.A. 23:34-23(b) and did not abuse his discretion in setting defendant's alimony obligation or by awarding plaintiff permanent alimony; (4) child support was properly calculated under the Guidelines; and (5) there is no basis to disturb the decision requiring plaintiff to pay part of defendant's counsel fees as the award is discretionary and the judge appropriately considered the factors in Rule 5:3-5(c).

 

20-2-8304 Diorio v. Diorio, App. Div. (per curiam) (7 pp.) In this post-judgment matrimonial matter, defendant appeals the provision of the Family Part's January 19, 2011 order relative to his contributions towards his daughters' student loans. To the extent defendant is challenging prior orders requiring him to contribute fifty percent towards his daughters' college education, the authenticity of the loans, or the quantum of his obligation, the appellate panel finds the judge correctly determined that defendant is out of time. Defendant's concern whether his daughters are contributing towards his share is irrelevant to his previously court-ordered support obligation. To the extent defendant is challenging the offset of his child support overpayment against his outstanding college loan obligation, the panel is satisfied the judge acted within her discretion. The judge's ruling that defendant's college loan repayment obligation can be retroactively characterized as child support following emancipation and paid through Probation by wage garnishment was a discretionary decision and the judge should have explained her reasoning for reversing her two previous rulings on that issue. Thus, the panel remands that portion of the order to the Family Part judge for re-determination on the record.

20-2-8305 Nwosu-Sylvester v. Ejiofor, App. Div. (per curiam) (5 pp.) In this post-judgment matrimonial matter, defendant appeals from a Family Part order requiring him to pay fifty percent of the parties' children's medical expenses and fifty percent of the maintenance fees for the parties' timeshare. Finding no abuse of discretion, the appellate panel affirms. The judge appropriately granted plaintiff's motion to order defendant to pay fifty percent of the children's medical expenses and required plaintiff to pay the first $250 annually and to consult with defendant on any medical expenses over $100. The judge observed that although a prior order had required that each party's share of medical expenses be in accordance with his or her income as stated in the Property Settlement Agreement, the agreement did not contain that information.

 

20-2-8306 I.L. v. R.F.D., Jr., App. Div. (per curiam) (6 pp.) Defendant appeals a final restraining order entered against him in this action brought pursuant to the Prevention of Domestic Violence Act. Giving deference to the trial judge's credibility determinations, the panel affirms, concluding that the evidence was sufficient to permit a finding of harassment; that the judge made the requisite finding that a restraining order was necessary to prevent further abuse in light of defendant putting plaintiff into a chokehold, slamming her fingers in a computer, and his entering the residence in violation of a consent order; and that the judge's examination of the witnesses was representative of his considerable discretion in such matters and also a model as to how to conduct a domestic violence trial between pro se parties.

 

31-2-8307 Stickel v. Hurd, App. Div. (per curiam) (6 pp.) In this premises liability matter, plaintiffs Joan and James Stickel appeal from an order granting summary judgment to defendants. Plaintiffs argue that defendants breached a duty of care owed to them by negligently maintaining their driveway. Joan walked her dog along the sidewalks of her street towards defendants' house. To avoid walking on defendants' snow-covered sidewalk, Joan walked on defendants' snow-covered lawn running parallel to the sidewalk. Joan observed that defendants' driveway had been plowed of snow, and thus decided to walk across the driveway, where she slipped on black ice and sustained an injury. The appellate panel finds the trial judge appropriately applied the common law principles of premises liability, declared Joan was a trespasser, and held that defendants did not owe her a duty to warn of natural conditions. The panel rejects plaintiffs’ argument that by removing the snow from their driveway but not their sidewalk, defendants implicitly invited Joan to enter their property to walk across the driveway, thereby changing her legal status from trespasser to licensee and therefore defendants owed her a duty of care to warn of known dangerous conditions.

 

35-5-8308 Beach Creek Marina v. City of North Wildwood, Tax Ct. (DeAlmeida, J.T.C.) (15 pp.) Plaintiff challenged the 2006 assessment on its property in a complaint that the case management system indicates was filed on January 18, 2007. The Tax Court judge dismissed the complaint, concluding that the court lacked jurisdiction due to late filing. The Appellate Division affirmed. More than four years after the Tax Court judgment and more than three years after the Appellate Division affirmance, new counsel filed an appearance in the matter and moved pursuant to R. 4:50-1 for relief from the court's dismissal of the complaint, arguing that filing date upon which the judgment was predicated is erroneous. The court denies the motion, concluding that plaintiff is precluded from relief under sections (a) (mistake) because it could have protected itself from the mistake by reviewing the file before conceding the filing date and by challenging the error on appeal (b) (newly discovered evidence) because the exercise of pre-judgment due diligence would have revealed the documents on which plaintiff bases its request for relief and (c) (fraud, misrepresentation, or other misconduct of an adverse party), (d) void judgment and (e) (judgment has been satisfied, released or discharged) because these provisions are inapplicable or under (f) because there are no exceptional circumstances here. [Filed November 26, 2012]

14-2-8309 State v. Dennis, App. Div. (per curiam) (32 pp.) Defendant, convicted of conspiracy to commit armed robbery, armed robbery, murder, felony murder, unlawful possession of a weapon, possession of a weapon for unlawful purposes and certain persons not to possess weapons, appeals his convictions and sentence. The panel affirms the convictions but holds that while the court properly merged the felony murder conviction with the murder conviction, the armed robbery survives as a separate offense and should not have been merged. It also holds that the unlawful possession of a weapon conviction should not have been merged with the certain persons not to possess offense. It therefore remands for resentencing on the un-merged offenses.

 

03-7-8310 Galaxy Towers Condominium Association v. Local 124 I.U.J.A.T., Dist. Ct. (Martini, U.S.D.J.) (3 pp.) Plaintiff Galaxy Towers Condominium Association filed this action against Defendant Local 124 I.U.J.A.T.1 (the Union) seeking vacaturof an arbitration award. The Union requests that the Court confirm the arbitration award. The Union acts as the representative to all full-time and part-time Galaxy employees. Galaxy and the Union were parties to a collective bargaining agreement (CBA), which provides that, if a grievance arose, “the Union or the Employer may request that the matter be submitted to arbitration before Elliott Schriftman, Eugene Coughlin or Robert Herzog on a rotating basis.” Here, Galaxy argues that the arbitration award should be vacated because: (1) the award was procured by corruption, fraud, or undue means; and (2) the arbitrator so imperfectly executed his powers that a mutual, final, and definite award cannot be said to have been made. The Court rejects both arguments. At no time did the Union’s representatives agree to remove Mr. Coughlin as a designated arbitrator. Galaxy raised the idea of removing Mr. Coughlin, the Union side-stepped the issue, and Galaxy failed to raise the issue again in later negotiations. Second, the arbitrator’s just cause determination was grounded in the record evidence and the CBA. Galaxy’s application to vacate the arbitration award is denied, and the award is confirmed. [Filed November 28, 2012]

04-7-8311 Flores v. Predco Services Corp., Dist. Ct. (Bumb, U.S.D.J.) (9 pp.) Almost one year after Flores, represented by Ray Marchan, Esq., filed an action in Texas state court based on injuries he suffered while working as a seaman in the Gulf of Mexico, he amended his complaint to add defendants. State Judge Limas denied defendants' motion to dismiss, finding that the Texas court did not lack personal jurisdiction over defendants. After that decision was reversed on appeal, plaintiff filed this action. Defendants filed a motion to dismiss as time barred, which was denied on the basis that plaintiff's reliance on Limas' decision was reasonable and tolled the running of the limitations period. Defendants now move for reconsideration of that decision, based on their discovery that Limas has pled guilty to accepting bribes from attorneys and that Marchan has been convicted for bribing Limas during the period in which Limas ruled in favor of plaintiff on the jurisdiction issue. The court denies the motion, finding that equitable tolling is warranted based on plaintiff's mistaken filing in Texas because Marchan's criminal misconduct does not undermine the reasonableness of plaintiff's conduct in the absence of evidence that he was aware of Marchan's actions, and because equitable tolling is warranted since plaintiff pursued his rights diligently and Marchan's criminal misconduct constitutes an extraordinary circumstance. [Filed November 28, 2012]

 

09-7-8312 Greene v. BMW of North America, Dist. Ct. (Martini, U.S.D.J.) (9 pp.) Defendant BMW moves to dismiss this putative class action filed on behalf of owners and lessees of BMW autos equipped with Potenza Run Flat Tires alleging that the tires develop dangerous sidewall bubbles and asserting claims under the Magnuson-Moss Warranty Act (MMWA), New Jersey common law, and the New Jersey Consumer Fraud Act. The court (1) dismisses the claim for breach of express warranty with prejudice because BMW did not expressly warrant his tires; (2) dismisses without prejudice the breach of implied warranty claim, finding it implausible since he fails to show that the tires provided anything other than reliable transportation where he was able to drive the car for more than one year, he never contacted the tire manufacturer, and he replaced his tires with the same model tire; (3) dismisses the MMWA beach of express warranty claim with prejudice and the breach of implied warranty claim without prejudice in light of the dismissals of corresponding claims under state law; (4) dismisses without prejudice the breach of the implied covenant of good faith and fair dealing claim because plaintiff never contracted with BMW of North America, only a particular dealership; and (5) dismisses the NJCFA claim because his allegations do not allow the court to draw the reasonable inference that BMW knew that the tires would become defective and unsafe in a short period of time or suggest that discovery will reveal evidence of an intent to deceive. [Filed November 28, 2012]

 

09-7-8313 Greene v. BMW of North America, Dist. Ct. (Martini, U.S.D.J.) (10 pp.) Defendant Bridgestone Americas Inc. moves to dismiss this putative class action filed on behalf of owners and lessees of BMW autos equipped with Potenza Run Flat Tires manufactured by Bridgestone, alleging that the tires develop dangerous sidewall bubbles and asserting claims under the Magnuson-Moss Warranty Act (MMWA), New Jersey common law, and the New Jersey Consumer Fraud Act. The court: (1) declines to enforce the arbitration clause in the limited warranty issued by Bridgestone because there is no indication that plaintiff assented to the arbitration clause; (2) dismisses with prejudice the MMWA breach of express warranty claim because plaintiff voluntarily withdrew this claim and even if he had not, he does not allege that he ever brought his tires to an authorized retailer and thus does not allege that Bridgestone failed to satisfy its obligations and does not state a claim for breach of express warranty;   (3) dismisses without prejudice the breach of implied warranty claim, finding it implausible since he fails to show that the tires provided anything other than reliable transportation where he was able to drive the car for more than one year, he never contacted the tire manufacturer, and he replaced his tires with the same model tire; (4) dismisses the MMWA beach of express warranty claim with prejudice and the breach of implied warranty claim without prejudice in light of the dismissals of corresponding claims under state law; and (5) dismisses the NJCFA claim because his allegations do not allow the court to draw the reasonable inference that Bridgestone knew that the tires would become defective and unsafe in a short period of time or suggest that discovery will reveal evidence of an intent to deceive. [Filed November 28, 2012]

 

09-7-8314 MB Imports, Inc. v. T&M Imports, LLC, Dist. Ct. (Debevoise, U.S.D.J.) (17 pp.) This case arises out of the alleged false and/or misleading advertising of the nature and contents of a competitor’s lemon and lime juice products, and continued distribution of said products. Plaintiffs MB Imports, Inc. and Ronald Marks, its president and owner, and an individual consumer of the competitor’s brand, filed an amended complaint asserting claims for false advertising under the Lanham Act, violation of the Consumer Fraud Act, unfair competition, tortious interference, and violation of New Jersey’s Truth-in-Consumer Contract, Warranty and Notice Act. Plaintiffs requested relief includes injunctive relief, declaratory judgment, damages, and attorney fees and costs. Before the Court is a motion to dismiss filed by Defendant TrePunti Corporation. TrePunti is the United States brokerage sales agent for Eurofood, S.r.L., the Italian manufacturer of the competitor line of lemon and lemon juices. Here, the factual allegations asserted against TrePunti are clearly laid out in the Amended Complaint and supported by the electronic communications upon which that complaint is based and to which the parties’ briefs in the instant motion refer – that TrePunti participated in the composition, labeling, importation, distribution and sale of the products in question, in its integral role as the United States agent for the Italian manufacturer. Finding Plaintiffs have stated sufficient facts to support each cause of action, the Court denies the motion to dismiss. [Filed November 28, 2012]

21-7-8315City of Newark v. The Newark Ward Commission, Dist. Ct. (Martini, U.S.D.J.) (9 pp.)Plaintiffs commenced this action in New Jersey Superior Court seeking to nullify the redistricting plan adopted by defendant-commission - which removed two primarily Latin American districts from the Central Ward to the West Ward, allegedly altering the racial makeup of those two wards - alleging that the commission’s actions violated New Jersey’s Open Public Meeting Act, New Jersey’s Civil Rights Act, and the equal protection clause of the Fourteenth and Fifteenth Amendments of the United States Constitution and sections 2 and 5 of the Voting Rights Act. Defendants removed the action to the district court in light of the federal claims asserted and now move to dismiss pursuant to Rule 12(b)(6). The court dismisses the claims under the VRA, finding that Newark is not a covered jurisdiction under section 5 of the VRA and that plaintiffs have failed to plead sufficient facts in support of their claim that the redistricting scheme diluted a minority vote in violation of section 2 under the standard set forth in Gingles. The constitutional claims are dismissed because, as pled, it is unclear what the racial composition of any of Newark’s other districts is, nor are there any other facts which suggest that the commission considered the racial composition of the transferred districts when it adopted the redistricting plan and thus, the court cannot reasonably infer that the redistricting plan can only be understood as an effort by the commission to separate voters on the basis of race or was adopted to deprive a racial minority group of the right to vote. The court declines to exercise supplemental jurisdiction over the state law claims. [Filed November 28, 2012]

24-7-8316 Amen v. New Jersey Motor Vehicle Commission, Dist. Ct. (Kugler, U.S.D.J.) (3 pp.) In this action alleging that the alleged refusal of defendants, the NJMVC and its Chief Administrator, to issue plaintiff identification reflecting his "common law name change" violated his constitutional rights under the Ninth and Tenth Amendments, defendants' motion to vacate the default judgment entered against them is granted because of improper service. Defendants' motion to dismiss is granted pursuant to Rule 12(b)(6) as the action is barred by the Eleventh Amendment. [Filed November 28 2012]

50-7-8317 Black Mountain Equities, Inc. v. Pacific Gold Corp.,Dist. Ct. (McNulty, U.S.D.J.) (18 pp.) Plaintiff Black Mountain Equities, Inc. trades in distressed securities and purchased, at a steep discount, a Warrant to Purchase Common Stock (the “YAG Warrant”). It brings this action alleging that Pacific Gold Corp. has refused to deliver 44,509,090 shares of its publicly traded common stock pursuant to the YAG Warrant. The dispute is over the exercise price under the YAG Warrant. According to Black Mountain, the YAG Warrant’s price adjustment mechanism was triggered under a “most-favored-nation” arrangement when Pacific Gold issued shares to another investor, Crescent International, at $.0099 per share. Pacific Gold counters that another relevant agreement (the “Letter Agreement”) provides that the Crescent transaction would not trigger the most-favored-nation adjustment, because that agreement defines the Crescent securities as “Excluded Securities.” The section of the Letter Agreement at issue, however, was carelessly drafted, it does not parse as a proper English sentence, and neither party contends that it can mean precisely what it says. Here, the Court denies Black Mountain’s motion for an affirmative preliminary injunction directing Pacific Gold to deliver 44,509,090 shares of stock, finding Black Mountain has not met its burden of showing a likelihood of success on the merits and irreparable harm. [Filed November 27, 2012]