Daily Decision Service Alert: Vol. 22, No. 6 ? January 9, 2013

 

 

01-2-8655 Polish People's Home, Inc. v. Municipal Board Of Alcoholic Beverage Control Of The City Of Passaic, App. Div. (per curiam) (7 pp.) Polish People's Home, Inc. (PPH) appeals from a final determination of the Director of the Division of Alcoholic Beverage Control, in the Department of Law and Public Safety, suspending PPH's plenary retail consumption license for sixty days based on PPH's second violation of the nuisance regulation in N.J.A.C. 13:2-23.6(b). The appellate panel finds there is sufficient credible evidence in the record to support the Director's finding that PPH did not operate its business in an orderly manner, and the conduct complained of constitutes a nuisance under N.J.A.C. 13:2-23.6(b) for which PPH is responsible. The incident at issue required police intervention and resulted in the filing of criminal charges. The regulation makes clear that a licensee's responsibility includes its conduct, as well as the conduct of its employees and patrons, "if such conduct is contrary to the public health, safety and welfare." Therefore, the Director did not err by finding that PPH is responsible for the conduct described by the responding police officer.

20-2-8656 Green v. Greenberg, App. Div. (per curiam) (19 pp.) These consolidated appeals challenge various orders of the Family Part regarding alimony and child support. Finding that the judge misinterpreted the plain language of the parties' PSA and erred in setting defendant's support obligations and fixing arrears at amounts inconsistent with evidence in the record and without a plenary hearing where defendant presented evidence of a significant decrease in his business holdings with resultant loss of income, and that the judge failed to make adequate findings of fact and conclusions of law, the panel reverses the orders requiring defendant to continue to pay plaintiff $20,000 per month in alimony and child support after November 1, 2008, and setting arrears based on that figure and remands for further proceedings. The panel affirms in the third appeal, finding that the court did not abuse its discretion in imputing income of $50,000 to plaintiff, nor did it err in rejecting plaintiff's claims that defendant "dismantled" his business interests and declared bankruptcy to rid himself of his alimony obligation or in modifying defendant's alimony and child support obligations after appropriate consideration of the factors in N.J.S.A. 2A:34-23(b).

 

20-2-8657 R.C. v. P.J.C., App. Div. (per curiam) (17 pp.) In this post-judgment matrimonial action, defendant appeals a November 2011 order on certain post-judgment motions filed by the parties and a February 2012 order denying his motion for reconsideration of the earlier order. The panel affirms in part and reverses in part and remands for further proceedings. The panel finds that, inter alia, the trial court did not err by making its decisions without affording the parties an opportunity for oral argument; the record supports the decision requiring defendant to pay his share of one child's attendance at the preschool; requiring defendant to pay his share of the children's extracurricular activities was not error in light of the parties' PSA, notwithstanding that he was not consulted about the cost since the activities were of the sort mentioned in the PSA and any decision to withhold his consent would be unreasonable; the court erred by requiring defendant to undergo a psychological evaluation without first affording him an opportunity to address his son's statements during an interview with the judge since the court credited some of those statements in ordering the evaluation and failed to explain why the statements warranted the evaluation; the trial court erred by failing to address that plaintiff had violated the PSA by permitting her "significant other" to stay overnight at her home within the first six months of the parties' divorce; and the court must reconsider its award of attorney fees to plaintiff so that any award reflects the extent to which plaintiff prevailed initially and in the remand proceedings and whether the award should be limited by the PSA. 

 

23-3-8658 212 Marin Boulevard LLC v. Chicago Title Ins. Co., Law Div. (Hudson Cty.) (Sarkisian, J.S.C.) (25 pp.) This title insurance coverage dispute arising from defendant's sale of eight standard form title insurance policies to plaintiffs covering eight properties in Jersey City. The court has already found that defendant had a duty to defend plaintiffs in three actions challenging ownership. Plaintiffs move for attorney fees, costs and expenses of $1,754,521.67 in connection with those three actions.   Defendant has cross-moved for discovery to ascertain the need, reasonableness and propriety of the fees, costs and expenses. The court finds that, inter alia, the issue identification that may have changed during the litigation by plaintiffs' counsel does not undermine the application for fees and is not a basis to further reduce plaintiffs' lodestar; the court does not need the assistance of an expert to determine a fee under the principles in RPC 1.5 and Rendine; fees for work performed by plaintiffs' attorneys before plaintiffs tendered the defense to defendant are not recoverable under the policies; work identified by defendant's expert as outside the scope of actions covered by the court's prior order are in fact are reasonably related to covered actions; fees for reviewing and revising are recoverable; the entries identified in defendant's expert report as block billing, vague billing, clerical and administrative entries, task inappropriate entries and multiple attendance entries are recoverable. Plaintiffs are awarded 41,655,691.57. [Filed January 8, 2013]

 

25-7-8659 Truong, LLC d/b/a V.I.P. Nails and V.I.P. Nails Too v. Tran, App. Div. (per curiam) (27 pp.) Defendants Anna Tran and Anthony Le appeal from a preliminary injunction enforcing a restrictive covenant that barred them from competing with their former employer, Truong, LLC, (plaintiff), which operated two nail salons. The Appellate Division stayed the injunction pending appeal and now reverses, finding that plaintiff made an insufficient showing of irreparable harm, and of likelihood of prevailing on the merits on the issue of temporal scope.

52-3-8660 Cross v. Wall Twp., Law Div. (Monmouth Cty.) (Lawson, A.J.S.C.) (18 pp.) Pursuant to the Open Public Records Act, plaintiff filed this action, in which she moves for partial summary judgment, seeking numerous documents regarding the use by the township, which is self-insured for all medical, prescription and dental claims under $75,000, of third party administrators to determine claim eligibility, process claims, and disburse payments. The court grants plaintiff's motion, ordering the township to provide copies of, inter alia: aggregate loss fund reports, as they are not exempt risk management documents and are summaries of payments made that do not contain information regarding individual employees that would rise to the level of privacy invasion; quotes/proposals received by Wall from its brokers for coverage of employees because they are not risk management documents; underwriting packages used to quote Wall's stop loss programs for 2002 to 2011 and the insurer's binder, bid and monthly bills for each year, as Wall previously supplied plaintiff with stop loss binders for other years and has waived any objections; RFPs from potential brokers, despite their containing confidentiality agreements because Wall waived any interest in confidentiality by providing RFPs in response to other OPRA requests; and bank statements and check registers associated with payments from Wall to its TPA for employee coverage because Wall has not shown how or why they function under the risk management exemption of OPRA. [Filed January 3, 2013]

 

34-2-8661 Zaman v. Felton, App. Div. (per curiam) (11 pp.) The parties' disputes about defendant Barbara Felton's transfer of real property to plaintiff Tahir Zaman were resolved in two phases -- a jury trial of some and a bench trial of the remaining issues. Here, the appellate panel rejects Felton's arguments regarding the sufficiency of the jury instructions during the first phase, as well as her arguments regarding the judge's disposition of the second phase's non-jury issues. Although the parties' intentions in entering into the contract may have been fairly debatable, that their discussions led to the formation of a written agreement is beyond question. Thus, the question of whether Felton believed that Zaman was merely loaning her money was properly governed by the preponderance standard of proof. The judge correctly instructed the jury about the burden of persuasion and all other legal principles applicable to the questions posed. With the jury's unimpeachable determination that the parties intended to enter into a contract of sale and that Zaman did not commit fraud in the inducement of the contract, Felton's arguments that the judge erred in failing to find during the bench trial phase that the transaction created an equitable mortgage or that Felton had a valid consumer fraud claim fail. To the extent those claims might have arguably survived the jury's verdict, the judge's findings are based on substantial credible evidence.

 

14-2-8662 State v. Brindis, App. Div. (per curiam) (16 pp.) On leave granted, the State appeals an order granting defendant's motion to suppress evidence (a handgun) obtained in a search of a motor vehicle that had been stopped because the occupants were not wearing seatbelts. The panel reverses, finding that the court erred in determining that a police officer's observations of a bullet in an open Crown Royal bag on the floor of the car near the front passenger seat where defendant had been sitting did not provide suspicion of criminal conduct that justified the officers' request that the car's owner consent to a search of the car and its contents. Moreover, the officers validly relied on her consent to search the car and the contents of the bag.

14-2-8663 Hersey v. New Jersey Department of Corrections, App. Div. (per curiam) (9 pp.) Inmate Shawn Hersey appeals from a final decision of the New Jersey Department of Corrections, rejecting his challenge to a ten percent surcharge added to the costs of items he purchases from the prison commissary. Hersey contends the surcharge violates his rights under the constitution and laws of New Hampshire, the state in which he was convicted and sentenced. The ten percent surcharge is required by N.J.S.A. 30:4-15.1. The revenue it generates is slated for the Victims of Crime Compensation Board. Under the same statute, prison commissary sales are exempt from New Jersey sales tax. Pursuant to the Interstate Corrections Compact, the substantive laws of the sending state shall apply to the sentence of a transferred inmate so that his sentence is not increased in length or otherwise made more severe because of the interstate transfer. But the internal regulations and rules of the receiving state shall apply to the transferred inmate "equally" as they apply to all other inmates. Here, the commissary surcharge is not a substantive law that changes the terms of an inmate's sentence. It applies to Hersey "equally" as to all inmates in New Jersey prisons. The appellate panel finds no constitutional or other prohibition on imposing the statutory surcharge on Hersey's purchases from the commissary.

14-2-8664 State v. Blann, App. Div. (Accurso, J.S.C., temporarily assigned) (47 pp., dissenting opinion by Lisa, J.A.D. [retired and temporarily assigned on recall]) The absence of a signed jury waiver in accordance with Rule 1:8-1(a), coupled with the judge's failure to question defendant on the record regarding his request to waive a jury and the judge's failure to state his reasons for granting defendant's request, make it impossible for a reviewing court to assess whether defendant's waiver was knowing and voluntary. Accordingly, the court is constrained to reverse. [Approved for publication.]

11-8-8665 Dandana, LLC v. MBC FZ-LLC,Third Circuit (Fuentes, U.S.C.J.) (12 pp.) Dandana, LLC, a television network and content distributor, filed a complaint seeking damages for breach of contract, unjust enrichment, and common law fraud arising out of a television distribution deal with Middle East Broadcasting, a United Arab Emirates company which is a satellite broadcaster. Dandana claims Middle East Broadcasting breached an oral agreement for revenue sharing. Middle East Broadcasting contends there was no oral agreement, and it complied with all obligations under the parties’ fully integrated written agreement. The District Court granted Middle East Broadcasting’s motion for summary judgment and dismissed Dandana’s complaint. The circuit panel affirms that ruling as well as the denial of Dandana’s motion to exclude expert testimony as moot. The panel finds the District Court appropriately determined that no enforceable oral agreement was entered into by the parties. Further, although Middle East Broadcasting did not sign the written agreement, the performance of the parties demonstrates acceptance of the written offer and an enforceable contract. An integration clause stated that the agreement supersedes all prior agreements and sets out all of the terms agreed to by the parties. The parties are bound by the agreement; there is no ground for implying a promise where a valid contract governs the rights of the parties. [Filed December 21, 2012]

 

23-7-8666 Evanston Insurance Company v. Crocilla, U.S. Dist. Ct. (Hillman, U.S.D.J.) (12 pp.) In this insurance coverage dispute, Plaintiff Evanston Insurance Company filed a declaratory judgment action, claiming that it does not have a duty to defend or indemnify defendant, Elisabeth Crocilla and her massage therapy business, A-Way to Relax, in a lawsuit brought by Mia Wernega in New Jersey Superior Court. In the state court action, Wernega claims that Crocilla improperly touched her in a sexual manner. Wernega claims these incidents constituted battery, sexual assault, intentional infliction of emotional distress, professional negligence, general negligence, and negligent infliction of emotional distress.After Crocilla was served with Wernega’s complaint, she informed Evanston of the complaint, and sought defense and indemnification. Evanston denied Crocilla’s claim and her appeal of that denial based on four exclusions in the insurance policy. Evanston brought this declaratory judgment action against Crocilla, who has lodged a cross-claim against Evanston for bad faith. Both parties move for summary judgment. Because Wernega’s complaint is subject to a policy exclusion, Evanston is entitled to judgment in its favor on its declaratory judgment claim against Crocilla. As the Court has found that Crocilla is not entitled to a defense or indemnification under the insurance policy, it cannot find that Evanston acted in bad faith in denying her claim. [Filed December 26, 2012]

25-7-8667 Crepy v. Reckitt Benckiser LLC, U. S. Dist. Ct. (Martini, U.S.D.J.) (11 pp.) Plaintiff, formerly an executive with defendant, filed this action after he allegedly was advised that his position in the United States was to be eliminated and was disingenuously offered a position in Singapore with no intention to actually employ him to that position but merely to allow him to be terminated without having to compensate him for six months after his termination in accordance with his employment contract. Defendant's motion to dismiss the breach of contract claims is denied because plaintiff has sufficiently pled that the employment agreement and the letter of intent that he executed constitute binding contracts and that none of his actions provided a basis for defendant to immediately terminate him. Because is finds that plaintiff has stated a claim for breach of the two agreements, the court also denies defendant's motion to dismiss the breach of the duty of good faith and fair dealing claims. The court also finds that plaintiff has sufficiently alleged claims of fraud, fraud in the inducement, and promissory estoppel and defendant's motion to dismiss those claims is denied. [Filed January 7, 2013]

25-7-8668 Diaz v. Donahoe, U. S. Dist. Ct. (Simandle, U.S.D.J.) (34 pp.) Defendant, sued in his official capacity as Postmaster General, moves for summary judgment in this action alleging that plaintiff's termination as a transitional postal employee violated Title VII of the Civil Rights Act of 1964 because she was subjected to intentional employment discrimination on the basis of race (Hispanic), sex (female) and national origin (Puerto Rican), and that the termination was in retaliation for her raising allegations of prior discrimination. The court grants defendant's motion, concluding that plaintiff has not adduced admissible evidence from which the finder of fact could reasonably conclude that she was treated differently from “similarly situated” non-minority employees, she has not shown materially adverse employment actions, and, to the extent she makes out a prima facie case for discrimination or retaliation, she has not proffered admissible evidence from which a reasonable factfinder would conclude that defendant’s asserted legitimate reasons for plaintiff’s termination or other adverse actions were pretextual. [Filed January 4, 2013]

 

25-7-8669 Galligan v. Pepsi Beverages Co., U. S. Dist. Ct. (Linares, U.S.D.J.) (8 pp.) Defendant moves for summary judgment in this action asserting claims for unlawful denial of pension benefits and breach of contract. Finding that defendant did not abuse its discretion in interpreting the term "service" in the applicable pension plan to exclude the period of time he was receiving long term disability benefits and thus to preclude plaintiff from recovering full benefits, the court grants defendant's motion. [Filed January 7, 2013]

36-7-8670 Angle v. United States Of America, U.S. Dist. Ct. (Linares, U.S.D.J.) (14 pp.) Plaintiffs Frederick and Cheryl Angle, bring this action along with two of their children, Brandon and Cassandra Gadow, pursuant to the Federal Tort Claims Act (“FTCA”). The Angle family lives in a house located approximately half a mile away from Picatinny Arsenal in New Jersey. The alleged injuries stem from a fragment from an artillery projectile striking the Angle home. In addition to the alleged property damage suffered, including diminished market value and stigmatization in the community, family members allege emotional injury of varying degrees. The Court grants Defendant United States of America’s motion to dismiss. Plaintiffs’ intentional infliction of emotional distress claims are dismissed without prejudice. The Court dismisses with prejudice Frederick and Cassandra’s claims for negligent infliction of emotional distress and all of the Plaintiffs’ Portee claims for negligent infliction of emotional distress. The Court dismisses without prejudice Cheryl and Brandon’s claims for negligent infliction of emotional distress insofar as they can allege that there were within the “zone of danger” at the time of the incident. Finally, Plaintiffs’ nuisance claims are dismissed without prejudice. [Filed December 21, 2012]