Daily Decision Service Alert: Vol. 21, No. 233 ? December 3, 2012

 

 

16-2-8332Negron v. Bd. of Educa. of South Plainfield, App. Div. (per curiam) (12 pp.)Petitioner Jose Negron appeals from the final decision of the acting commissioner of the Department of Education concluding that the South Plainfield Board of Education was not legally bound to renew his contract as district superintendent for three years and did not act to extend his existing contract for an additional one-year period. The panel affirms, finding that after the resolution to offer him a new four-year contract failed, the board understood its decision – and its vote against extending his contract for one year – as having declined to continue his employment and the board secretary had authority to send him the letter notifying him that his contact would not be renewed without a formal board resolution authorizing her to do so and he therefore received valid notice pursuant to N.J.S.A. 18A:17-20.1. Also, the panel finds that a resolution to extend a superintendent's existing contract for an additional one-year period requires an affirmative vote of the majority of the board and that the resolution to extend Negron's contract therefore failed since the four affirmative votes were less than a majority of the full nine-member board.

 

20-2-8333 O.R. v. A.G. App. Div. (per curiam) (12 pp.) Defendant A.G. appeals from an order entering a final restraining order in favor of his ex-wife, plaintiff O.R., pursuant to the Prevention of Domestic Violence Act. A.R., a retired police detective who had worked for the parties in a business they owned, testified that he witnessed numerous conflicts between them, sometimes physically interposing himself. A.R. corroborated plaintiff's testimony about the threats from defendant, confirming defendant had told him that he would kill plaintiff and put her children in foster care. A.R. testified that he inferred from their conversations that defendant intended that he tell plaintiff about the threats. Attempting to show plaintiff's domestic-violence complaint was false and motivated by a desire to obtain an advantage in business litigation, defendant produced a purported Russian language translation of voicemail messages plaintiff had left on his cell phone. The judge concluded that the translation was unreliable. Without objection, the judge used the services of a Russian-speaking court clerk to translate another voicemail message on defendant's cell phone that revealed, contrary to defendant’s assertion, that plaintiff had called defendant begging him to leave her alone. The judge found plaintiff and A.R. to be credible witnesses. By contrast, she did not credit defendant's testimony, for reasons she explained, including her evaluation of his demeanor. The appellate panel affirms, finding the judge properly found that defendant committed terroristic threats and harassment.

 

20-2-8334 Valdez v. Cagua-Valdez, App. Div. (per curiam) (10 pp.) Plaintiff appeals from orders entered by the Family Part, which provided for the execution of a qualified domestic relations order (QDRO) distributing the parties' retirement and investment accounts. Plaintiff objected to the QDRO's division of his Local 731 annuity fund. Plaintiff first argues that the parties intended to divide the marital portion of their retirement and investment funds as of the date the complaint was filed, and made no provision for the division of any contributions in these funds after that date. Plaintiff acknowledges that the property settlement agreement (PSA) lists subsequent account balances, but says that this was done solely to identify the funds, rather than to specify the amounts to be divided. The appellate panel rejects that argument where the agreement was negotiated by the parties and they had the benefit of counsel during the negotiations. The agreement was presented to the court, and plaintiff assured the court that he understood the contents of the PSA, was satisfied with its terms, was satisfied with his attorney's representation, and was signing the PSA voluntarily and without any coercion. In addition, division of the accounts in the manner prescribed in the PSA is not unjust or inequitable. The panel also finds the trial court did not err by ordering the division of the Local 731 annuity fund because his right to those benefits had not vested.

 

20-2-8335 Steele v. Steele, App. Div. (per curiam) (14 pp.) Defendant appeals from provisions of a Family Part order that denied his motion to modify the parenting-time schedule the parties agreed on in their matrimonial settlement agreement (MSA); denied his request for an order compelling plaintiff to schedule the children's medical appointments at times when he could attend; denied his request for counsel fees; and granted plaintiff's request for counsel fees. The appellate panel rejects defendant's argument that he was not required to make a showing of changed circumstances because he was competing for parenting time with the children's grandparents and was presumed to have priority. Defendant did not dispute that at the time of the divorce, he knew her parents would care for the children when plaintiff was at work. Considering those circumstances, the trial court did not err by refusing to indulge in a presumption that would have been dispositive of defendant's request for a change in the parenting-time schedule. Nor did defendant make a prima facie showing of changed circumstances that entitled him to a plenary hearing. Defendant's primary argument – that he was presumptively entitled to a modification of the MSA parenting schedule – presented a legal issue. There is no need to remand for further fact-finding. The panel reverses and remands the issue of attorney fees.

 

26-2-8336 Tan v. Planning Bd. of Jersey City, App. Div. (per curiam) (3 pp.) In this prerogative writs matter, plaintiff appeals from the Law Division final judgment in favor of defendant in his action challenging defendant's 2011 resolution denying his petition for amendments to the Tidewater Basin Redevelopment Plan to accommodate his proposal to renovate his building that the board had declined to adopt in a 2010 resolution. Because appellant failed to include in his appendix the 2010 and 2011 resolutions and the transcripts from all hearing before the board, all of which were considered by the Law Division judge, the panel affirms, finding that a review on the merits is impossible.

27-2-8337 6404 Park Ave., L.L.C. v. Betancourt, App. Div. (per curiam) (13 pp.) In this action in which plaintiff-landlord initiated an action for possession for nonpayment of rent that resulted in a consent judgment and thereafter filed an action for habitual late payment of rent, the appellate panel affirms the dismissal of the complaint for possession based on habitual late payment of rent. Looking to the terms of the consent judgment and the facts, and recognizing the role of equitable considerations in dispossess cases, the panel affirms, concluding that plaintiff's attempt to obtain possession based on its acceptance of late payments occurring prior to execution of the settlement agreement, which permitted the tenancy to continue, without showing defendant made subsequent late payments of rent is not sustainable, plaintiff's failure to return certain payments is wholly inconsistent with an intention to seek surrender of possession of the premises, and plaintiff could not show that defendant habitually paid her rent in an untimely fashion following satisfaction of the terms of the settlement agreement.

 

32-2-8338 Reardon v. Peachtree Doors and Windows Inc.,App. Div. (per curiam) (9 pp.) Plaintiff appeals from the order granting summary judgment to defendant/third-party plaintiff Peachtree Doors and Windows Inc. and from the denial of his motion for reconsideration. Plaintiff was employed as an in-home sales specialist by Lowe's Home Centers Inc. In the course of his demonstrations, plaintiff used a sample window that was encased in a strand board display having an attached handle. Plaintiff was allegedly injured when a screw on one end of the handle "popped out" of the strand board display. Plaintiff filed a complaint against Peachtree. Peachtree filed a third-party complaint against DAC Products Inc., which it claimed had designed and manufactured the strand board display and handle and attached it. After the close of discovery, Peachtree filed a motion for summary judgment. The appellate panel finds that, in granting summary judgment to Peachtree, the judge appropriately held that the New Jersey Product Liability Act subsumed plaintiff's negligence claim, there was no evidence of a design or manufacturing defect, res ipsa loquitur did not apply, and expert evidence was required to prove Peachtree's liability. The judge also appropriately denied plaintiff’s motion for reconsideration.

 

35-5-8339 Target Corp. v. Township of Toms River,Tax Ct. (DeAlmeida, J.T.C.) (12 pp.) This is the court’s opinion with respect to motions concerning a parcel of real property in Toms River. Plaintiff Target Corp., one of six tenants at the subject property, filed complaints challenging the assessments on the property for tax years 2009 and 2010. Plaintiff SDD Inc., the owner of the subject property, also filed complaints challenging the assessments for those tax years. Target, which is responsible for the payment of taxes associated with the portion of the property that it leases, moved to consolidate the appeals. SDD opposed the motion and cross-moved to intervene in the Target appeals for the purpose of seeking dismissal. SDD argues that as owner of the property it has the right to control the challenge to the assessments. Lowe’s Home Centers Inc., another tenant, moves to intervene. While the motions were pending, SDD submitted to the court a fully executed stipulation of settlement between SDD and the municipality, reducing the assessment on the property for both tax years. Concluding that SDD has the controlling interest in challenging the assessments on the property for tax years 2009 and 2010, the court grants SDD’s motion to intervene in the Target appeals and grants its motion to dismiss those appeals. The court will enter judgments resolving the SDD appeals in accordance with the stipulation of settlement. Target’s motion is dismissed as moot. Lowe’s motion to intervene is denied.

 

36-2-8340 Alexander v. Mid-Eastern Transportation Inc., App. Div. (per curiam) (12 pp.) Plaintiff, injured when a tire on the tractor-trailer in which he was a passenger blew out causing the truck to veer off the highway, which resulted in an accident and the injury to plaintiff, appeals from the Law Division order granting summary judgment to defendants, the driver, owner/lessor and operator of the truck. The panel affirms, finding that the trial court did not err in excluding plaintiff's expert's report on the basis that it is a net opinion where the report contains no support in factual evidence or similar data for its conclusions. The panel also rejects plaintiff's contention that the expert's opinion was based on defendants' violation of certain National Truck Safety Standards and transportation of plaintiff, an unauthorized passenger, commenting that although violation of a statute may sometimes be considered by a jury determining issues of negligence, this rule is subsumed by the overriding principle that the statutory violation, to be evidential, must be causally related to the accident. The panel also rejects plaintiff's contention that an expert opinion was not necessary since plaintiff has not offered any proof that a repaired tire ordinarily bespeaks negligence.

38-2-8341 Casagrande v. Casagrande, App. Div. (per curiam) (16 pp.) Frank Casagrande created a trust, apparently intending that certain life insurance policies, including a policy from Sentry Life Insurance Company, be the primary assets of the trust. However, he failed to change the designated beneficiary of the policy, which listed his former wife, Roberta, as the primary beneficiary and their three children as the contingent beneficiaries. After Frank died, his then-wife, Rosemary, filed an order to show cause and a verified complaint on behalf of herself and the trust seeking reformation of the Sentry policy to conform it to the "terms, intent and agreements" of the marital settlement agreement, the trust and the will. Here, defendant Mark Casagrande, Frank’s son, appeals from Chancery Division orders enforcing a settlement agreement, precluding him from raising additional claims against any party named in the underlying litigation and distributing funds and awarding counsel fees. The appellate panel affirms, rejecting Mark’s claims that the settlement agreement was unenforceable because there was no "meeting of the minds" on its terms; it was unconscionable and violated public policy; it was infected with conflicts of interest between counsel and parties; it involved a trust and that plaintiff, a trustee as well as a beneficiary, was in a conflict of interest; and it was the result of a mediation that "veered dramatically" from the order directing the parties to proceed to mediation.

42-6-8342 In re Berger, U.S. Bank. Ct. (Kaplan, U.S.B.J.) (7 pp.) The debtors have filed a motion to permit payment to Emigrant Mortgage Company Inc. and to grant a first mortgage to John Quigley to effectuate a post-sheriff's sale redemption of their principal residence. The court denies the motion, finding that by failing to tender the redemption amount within the 60 days afforded to them by 11 U.S.C. § 108(b), the debtors have forfeited the right to redeem the property, there do not exist any exceptional circumstances that would warrant an extension of that time period, and the fact that the debtors' plan was confirmed without having been consummated has no bearing on whether they are entitled to an extension of the redemption period. [Filed Nov. 29, 2012.]

 

46-7-8343 D'Onofrio v. Borough of Seaside Park, U.S. Dist. Ct. (Bongiovanni, U.S.M.J.) (11 pp.) In this action alleging that defendants inappropriately engaged in tortious, fraudulent and extortionate conduct that violated plaintiff's right to control and operate his business in violation of the equal protection and due process clauses of the Fourteenth Amendment, the First Amendment, the Civil Rights Act, the Racketeer Influenced and Corrupt Organizations Act, and N.J.S.A. 2C:41-1 et seq. (New Jersey RICO), plaintiff seeks to amend his complaint to add claims against Thomas G. Gannon, Esq., and the firm of Hiering Gannon & McKenna. Plaintiff's motion is granted to the extent he seeks to add factual allegations relevant to the currently pending claims that may also be relevant to the proposed amendments as they are not futile and do not appear to be the product of bad faith and there is no evidence that the addition of these allegations will unfairly prejudice defendants. Plaintiff's motion is denied to the extent he seeks to assert allegations against Gannon or HGM based on Gannon's role as an alleged policy-maker who usurped the authority of the borough's agencies and officials because plaintiff fails to assert facts sufficient to support his claim that Gannon acted as a policy-maker for the town. The court holds in abeyance a decision on plaintiff's motion with respect to allegations concerning Gannon's alleged misrepresentations regarding the findings of the borough's expert with respect to the business' sprinkler system pending the parties' briefing on and the court's consideration of defendants' motion for reconsideration of its decision in which it determined in part that the crime-fraud exception to the attorney-client privilege applied to defendants' communications concerning the parties' underlying dispute over the sprinkler system. [Filed Nov. 29, 2012.]

 

09-8-8344 Grant v. Turner, Third Cir. (Rendell, U.S.C.J.) (10 pp.) Plaintiffs in this putative class action appeal from the district court’s dismissal of their complaint for failing to meet the heightened pleading requirement under Rule 9(b). Plaintiffs brought suit against various individual and corporate defendants, alleging that defendants were involved in creating and perpetuating fraudulent travel clubs. Plaintiffs’ complaint made claims under RICO, alleging that the predicate “racketeering activity” was mail fraud and wire fraud, as well as various state law claims. The circuit panel affirms the district court’s dismissal as to the defendants Vacation Travel Club and FIA Card Services, and vacates and remands as to the remaining Travel Club defendants. Examining the allegations in the complaint, it is clear that the Travel Club defendants were on notice of the precise misconduct with which they were charged. Particularly in a case like this, where plaintiffs allege that defendants deliberately concealed the identities of salespeople and agents, plaintiffs simply cannot allege who, in particular, made the misrepresentation absent discovery. Given the closeness of this question, and the fact that the remaining Travel Club defendants did not file a brief in response to plaintiffs’ appeal, plaintiffs’ claims should be allowed to proceed against them. [Filed Nov. 27, 2012.]

 

25-7-8345 Cordero v. AFI Food Service, L.L.C., U.S. Dist. Ct. (Cavanaugh, U.S.D.J.) (7 pp.) Defendant AFT Food Service, L.L.C., filed a motion for summary judgment in this matter arising from a dispute over the termination of an employee. Defendant contends that it terminated plaintiff’s employment because he made errors as an employee that cost defendant thousands of dollars. Plaintiff, however, argues the termination was in retaliation for taking intermittent leave pursuant to the Family and Medical Leave Act (FMLA). The court grants summary judgment to defendant, finding plaintiff failed to demonstrate a causal relationship between time that he took off from work to take his wife to and from medical appointments and his dismissal. Further, defendant established a legitimate reason for terminating plaintiff’s employment, pointing out a number of mistakes plaintiff committed while employed. Plaintiff failed to establish that defendant’s proffered reason was pretextual. Plaintiff’s own statements indicate that he never specifically asked for FMLA leave, and his mistakes made at work were not made because he wasn’t given time off but because he was not mentally focused. Finally, the court declines to allow plaintiff to advance a claim for interference, which was raised for the first time on appeal. [Filed Nov. 29, 2012.]

 

04-8-8346 United States v. Jones, Third Cir. (Chagares, U.S.D.J.) (5 pp.) Michael Orozco appeals from the $200 sanction imposed against him by the district court for his tardiness and his failure to notify the court of a potential conflict with another court appearance. Orozco argues that the sanction was improper because his conduct was not egregious, he did not act in bad faith, and he was not afforded due process by the district court. The court notes that Orozco should have informed the district court of a conflicting hearing, particularly where his appearance at the conflicting hearing created the probability that the hearing in this matter would be delayed. However, the conduct was not so egregious as to warrant the sanction imposed. Although Orozco’s tardiness may have slightly hindered the administration of justice due to the delay it caused, there was no apparent pattern of wrongdoing or creation of prejudice to other parties. Most important, the gravity of his wrongdoing was minimal, especially considering the mitigating factors. Though recognizing the deference afforded to the district court’s decision, the circuit panel reverses. [Filed Nov. 29, 2012.]

 

34-7-8347 Mocco v. Frumento, U.S. Dist. Ct. (Cavanaugh, U.S.D.J.) (8 pp.) This matter stems from a dispute in the ownership of certain real estate assets held by First Connecticut Holding Group, L.L.C., IV, one of several holding companies created to hold properties owned by plaintiff debtors-in-possession in reorganizations and purchased by James Licata, subject to plaintiffs' ability to repurchase the properties. Plaintiffs allege that defendants engaged in misconduct by assisting in the transfer of certain real estate assets held by FCHG IV to parties other than plaintiffs. Presently pending in state court are five consolidated cases also involving disputes regarding ownership of certain New Jersey limited liability companies, which include defendants' participation in assisting Licata in the transfer of certain pieces of real estate. Defendants Frumento and Chicago Title Insurance Co. move to dismiss. Noting that plaintiffs do not disagree that this action stems from the same facts and transactions as the currently pending state action, the court finds that to allow the claims in this action to now proceed would stand in direct contravention of the entire-controversy doctrine and it grants the motion to dismiss with prejudice. [Filed Nov. 29, 2012.]

35-8-8348 United States v. Balice, Third Cir. (per curiam) (9 pp.) Balice, proceeding pro se, appeals from an order of the district court granting the government's motion for summary judgment in its action to reduce her unpaid tax liabilities for 1992, 1993, 1996 and 2001 to judgment pursuant to 26 U.S.C. § 7402. The court affirms, finding that (1) the government's action with respect to the 1992 and 1993 taxes was timely, the time for filing having been extended by appellant's CDP request; (2) because appellant failed to challenge the legitimacy of her CDP request in the district court, she cannot do so before the Third Circuit and because she did not object to the admissibility of the copy of the request submitted by the government in support of its motion for summary judgment, the court reviews for plain error and concludes the government met its burden of authentication under Rule 901 and the requirements of the best evidence under Rule 1003. [Filed Nov. 29, 2012.]