STATE COURT CASES
ADMINISTRATIVE LAW — UNEMPLOYMENT COMPENSATION BENEFITS
Alicea v. Board of Review, App. Div. (Koblitz, J.A.D.) (10 pp.) Because appellant was not afforded the due process set forth in
Rivera v. Board of Review, 127 N.J. 578 (1992), we reverse the Board of Review's dismissal of his appeal because it was filed too late. Appellant was sent determinations assessing more than $17,000 in purportedly illegally collected unemployment benefits and penalties. These determinations were written in English, with only the appeal procedure translated into Spanish. We determine that Rivera protects Puerto Rican roofers as well as Puerto Rican farmworkers. To comply with the Rivera due process requirement of a notice written in Spanish to be sent to Puerto Rican seasonal workers, a translation of the substantive determination as well as a translation of the appeal timeline must be provided. An exhortation in Spanish to find someone to translate the determination is not sufficient. We reverse and remand for a hearing on the merits of the appeal. [Approved for publication.]
CONSUMER PROTECTION — NEGLIGENCE
Taste Matters LLC v. McManus & Co. P.C., App. Div. (per curiam) (9 pp.) In this action asserting claims for consumer fraud and negligence arising out of plaintiff's purchase of a restaurant, plaintiffs appeal the grant of summary judgment in favor of Weichert Realtors, the realtor to whom they expressed an interest in purchasing the property in 2004, Jim Gallo, the agent who listed the property in 2004, and McManus Company PC, the accounting firm that provided information about the employees working at the restaurant in 2006 when plaintiff purchased the property. The panel affirms because (1) the sole allegation supporting the consumer fraud violation and negligence claims against Weichert and Gallo stem from representations made in 2004, there is no evidence that plaintiffs had any discussions with Weichert andGall in 2006, and thus there is no causal connection between Weichert and Gallo and plaintiffs' real estate transaction in 2006 and those defendants breached no duty of care owned to plaintiffs; and (2) the sole allegation against McManus is that it authored a letter stating there were active employees of for the fourth quarter of 2006, which statement is accurate, although the employees were paid in cash.
New Meadowlands Stadium Co. LLC v. Triple Five Group Ltd., Chan. Div. (Bergen County) (Doyne, A.J.S.C.) (53 pp.) Plaintiffs previously brought a breach of contract action claiming that the developers’ proposed modification to Xanadu – a large retail and entertainment facility adjacent to plaintiffs’ stadium – which modification had been preliminarily approved by the NJSEA, violated an agreement signed by the Teams, Xanadu, and the NJSEA, part of which stated that any modifications to Xanadu that would have an “adverse effect” on the Teams’ “development, use or operation of the Stadium Project Development Rights required prior written consent from the Teams. The complaint was dismissed as premature on the ground that the NJSEA administrative approval process had to be concluded before any consideration of a breach. Following the NJSEA’s final approval of the proposed modification, and its purported factual finding that the modification will not have an adverse effect on the Teams’ SPDR, plaintiffs again brought a breach of contract action claiming the approval violated their rights under their 2006 agreement with the NJSEA. Defendants move to dismiss the complaint. Defendants’ motions to dismiss plaintiffs’ claim for breach of contract pursuant to R. 4:6-2(a) are denied as this court retains exclusive jurisdiction concerning a determination whether the NJSEA approval of the proposed modification breaches its contract with plaintiffs by causing an adverse effect on plaintiffs’ SPDR. Defendants’ motions to dismiss plaintiffs’ demand for injunctive relief pursuant to R. 4:6-2(e) are granted as it relates to construction, but denied as it relates to operation. The Developers’ motion to dismiss plaintiffs’ claim for tortious interference pursuant to R. 4:6-2(e) is denied as plaintiffs have met the pleading standard. The NJSEA’s request for a more definite statement pursuant to R. 4:6-4(a) is denied as plaintiffs have, with sufficient specificity, notified defendants as to the alleged violations, allowing for further targeted exploration during discovery. The Developers’ demand for summary judgment is denied as the NJSEA’s findings are neither dispositive, nor, even if instructive, sufficient to determine whether a breach occurred or whether the Developers tortiously interfered with plaintiffs’ contract.
Wiley v. Cameron-Walton, App. Div. (per curiam) (6 pp.) Plaintiff, who had known defendant for many years and who had had some business dealings with her, appeals the Special Civil Part judgment ordering him to pay $15,000 to defendant and from the denial of his motion for reconsideration. Deferring to the trial court's finding that defendant's testimony that plaintiff agreed to repay her for satisfaction of his liens is credible, and noting that a gratuitous loan, when made, is consideration for the other party's promise to repay, the panel affirms, holding that defendant was entitled to payment of the amount she paid to discharge plaintiff's liens, offset by the amount of a loan plaintiff made to her which she had not repaid.
I/M/O Tenure Hearing of Parezo, App. Div. (per curiam) (26 pp.)
Appellant, employed for more than 20 years as a health and physical education teacher in the Lakehurst School District, appeals from the Acting Commissioner of Education's final decision upholding charges against her of unbecoming conduct arising out of her humiliating and embarrassing a student and then making a false statement to the superintendent denying the incident, and dismissing her from her tenured teaching position. The panel affirms, finding that there is sufficient credible evidence to support the ALJ's findings of fact and credibility determinations that appellant's behavior was sufficiently flagrant to constitute unbecoming conduct; that although the ALJ's in camera examination of two students was wrong, the panel will not consider the issue since there is an inadequate record and it does not appear that appellant raised the issue before the ALJ; and that the Acting Commissioner did not fail to address the doctrine of progressive discipline or take into account appellant's unblemished service and, considering the nature of appellant's conduct along with her continue recalcitrance, and deferring to the Acting Commissioner, the sanction was not shocking to a sense of fairness.
Fusca v. Fusca, App. Div. (per curiam) (11 pp.) In this post-judgment matrimonial matter, defendant appeals from the Family Part order denying his application for a downward modification of alimony and child support and granting plaintiff 's application for counsel fees. The appellate panel finds that the record supports the judge's holding that defendant did not make a prima facie case of changed circumstances. At the time of the motion, defendant was employed by the same company, in the same position, at a slightly increased base salary, as he had been at trial when the trial judge imputed $150,000 in income to him. Defendant has also failed to show that any reduction in earnings has become permanent, that he has been unable to find employment to match the income imputed to him, or that he has undertaken a well-documented extensive job search to secure higher paying employment. The timing of defendant's motion, filed just six months after entry of the final judgment of divorce, supports that conclusion. The appellate panel remands to the trial court solely for the purpose of entering an order correcting the calculation of the counsel fee award. In all other aspects, the panel affirms.
State v. P.M., App. Div. (per curiam) (15 pp.) The State appeals from an order entered by the Family Part, denying its motion for reconsideration of the court's denial of its application to forfeit weapons seized from defendant P.M., a State of New Jersey corrections officer, and to revoke his firearms identification card. The State contends that the trial judge erred in refusing to consider newly discovered evidence in the form of a psychological report the State received five days after the conclusion of the hearing on its forfeiture application. The appellate panel concludes the judge mistakenly exercised his discretion in refusing to open the judgment and consider the report and recommendation, and take additional testimony, if appropriate, so as to insure compliance with the statutory mandate that confiscated weapons not be returned to persons who pose "a threat to the public health, safety, or welfare." The appellate panel remands for the trial court to reconsider its decision.
Jacob v. The Netherlands Insurance Company, App. Div. (per curiam) (21 pp.) These back-to-back appeals are consolidated for the purpose of this opinion. The first issue is what amount, if any, plaintiff, Deborah Jacob, may recover from defendant, Netherlands Insurance Company, the insurer of the vehicle she occupied when injured in a motor vehicle accident. The second issue involves the coverage obligation, if any, of Travelers Insurance Company, which insured plaintiff's privately owned vehicle. Plaintiff was injured in a motor vehicle accident while a passenger in a vehicle driven by her husband, Frederick Jacob and owned by her husband's law firm, Jacob & Chiarello, LLC. The vehicle was insured by Netherlands under a policy naming the law firm as the "named insured." Because they were 'occupying' a covered automobile, Plaintiff and Frederick’s entitlement to recovery under the Netherlands policy is determined by their status as "insureds." As "insureds," their coverage was stepped-down to the UIM coverage they purchased from Travelers. The clear and unambiguous terms of their Travelers policy state that the most Travelers will pay per accident, irrespective of the number of claims or insureds, is $500,000. Netherlands, having paid $485,000 to Frederick, was only required to pay $15,000 to plaintiff. Further, plaintiff was statutorily prevented from 'stacking' the UIM limits of the Netherlands and Travelers policies.
LABOR AND EMPLOYMENT
In The Matter of Mendoza, App. Div. (per curiam) (15 pp.) Appellant Mendoza is a corrections officer employed by the Hudson County Department of Corrections (HCDOC). She appeals from the final administrative agency decision of the Civil Service Commission imposing a six-month suspension without pay for neglect of duty and insubordination due to her failure to provide HCDOC with a timely written report of her arrest and supporting documentation regarding the disposition of the criminal charges against her. The appellate panel reverses, agreeing with Mendoza that the regulation at issue did not clearly state that she was required to submit a written report. Mendoza orally notified her supervisor and IA of her arrest within twenty-four hours. Having reported her arrest within the meaning of the word "report" in the employee manual, the charge of failing to timely report her arrest cannot be sustained as a matter of law. The Commission's decision to suspend Mendoza based upon her failure to report in writing that the incident occurred within twenty-four hours of her arrest must be set aside. Also, where Mendoza was never given notice that, in addition to failing to report her arrest, the disciplinary charges were based upon her failure to submit supporting documentation, the agency decision may not be sustained based upon her violation of this additional regulatory requirement.
LAND USE AND PLANNING — VARIANCES
Levitt v. Hackney, Law Div.-Atlantic Cy. (Mendez, A.J.S.C.) (37 pp.) Plaintiffs filed a motion for summary judgment which challenges the resolution of approval issued by Defendant Planning Board of the Township of Egg Harbor by which Defendant Jersey Outdoor Media, LLC (“JOM”) obtained minor site plan approval to install a billboard located on the Margate Causeway in Egg Harbor Township’s Marine Commercial Zoning District (“MC Zone”). Plaintiffs are residents of Northfield and live in view of the electronic billboard which emitted light into Plaintiffs’ home at night. The court concludes that the billboard is not a permitted use in the MC Zone and therefore defendants would have had to apply for and receive a “d” use variance from the Zoning Board. Instead, JOM applied to the Planning Board. The Planning Board’s lack of jurisdiction to hear the application renders its approval invalid because a “d” use variance was required. The court grants plaintiffs’ motion for summary judgment.
State v. Enders, App. Div. (per curiam) (9 pp.) Defendant, who pled guilty after the court denied his motion to dismiss the bias intimidation count of the indictment, appeals from his conviction for third-degree bias intimidation. The charge arose out of an incident of cross-burning in a field in view of motorists passing on Route 9. The panel reverses and remands for entry of an order vacating defendant's judgment of conviction because the bias count of the indictment was materially deficient in its failure to charge that defendant committed the underlying crime with a biased intent and against an identifiable victim under circumstances that would cause the victim to reasonably believe that he or she (or his or her property) was targeted because of race, color, religion, gender, disability, sexual orientation, gender identity or expression, national origin or ethnicity.
State v. Gilliam, App. Div. (per curiam) (12 pp.) Defendant Lexington National Insurance Company appeals from an order that denied its motion to vacate a default judgment and bail forfeiture. The trial court agreed that because Gilliam's bail was reinstated without Lexington's consent, the reinstatement was a nullity. Nonetheless, the court stated this defect in the underlying basis for the judgment was vitiated by Lexington's failure to file an objection in a timely manner. The court stated that the failure to file a timely objection precluded Lexington from recovering 100% of the bail. It therefore concluded that Lexington's argument that the forfeiture judgment should be vacated as based upon a nullified surety lacked any merit. However, the failure to timely file an objection does not preclude recovery by the surety. The trial court erred in assuming that the motion to vacate judgment was untimely because it was filed more than seventy-five days after the default judgment and in concluding that this purported untimeliness precluded consideration of the motion on its merits. The appellate panel reverses the order denying Lexington's motion to vacate the default judgment and remands.
State v. Reece, App. Div. (per curiam) (60 pp.) Defendant appeals his conviction for obstructing the administration of law and resisting arrest. The panel vacates the obstructing conviction, finding that the information available to the police – an unexplained dropped 911 call and defendant's lack of cooperation – was not enough to trigger the emergency aid doctrine, which would have made the police entry lawful, and thus, defendant's refusal to allow police to enter his home was not an act of obstructing. The panel affirms the conviction for resisting arrest, finding that defendant was not entitled to resist arrest, even if it was unjustified as the arrest was made under color of official authority and was announced. The concurring judge writes separately to concur in the reversal of the obstruction conviction on the grounds that, although the police officers had lawful reason to enter defendant's residence without a warrant or his consent, his refusal of their request that he consent to a warrantless search was not a violation of N.J.S.A. 2C:29-1(a). The dissenting judge disagrees with the affirmance of the conviction for resisting arrest, opining that (a) the majority's view overlooks an individual's right to defend against a physically excessive arrest; (b) the majority's judgment disregards that the unlawful arrest in question occurred after an equally unlawful entry into defendant's home; and (c) he is not willing to defer to the factfinder regarding the circumstances surrounding the arrest because he is "thoroughly satisfied" that the credibility findings are "clearly mistaken" and "so plainly unwarranted that the interests of justice demand intervention and correction."
State v. Vasquez, App. Div. (Sapp-Peterson, J.A.D.) (10 pp.) We consider the recurring dilemma confronting trial courts when a defendant expresses dissatisfaction with representation by current counsel at sentencing after the court has denied an adjournment request to obtain new counsel. The court placed on the record strong and sustainable reasons justifying denial of the adjournment request. However, because the court failed to address defense counsel's perceived conflict in his continued representation of defendant, we are constrained to vacate the sentence and remand. [Approved for publication.]
FEDERAL COURT CASES
In re Dwek, U. S. Bankruptcy Ct. (Ferguson, U.S.B.J.) (4 pp.) Debtor in this Chapter 13 proceeding, has filed a motion for stay relief so that she can pursue resolution of the claim asserted against the IRS and to continue to draw down $12,000 per month to cover her living expense while that claim proceeds. Noting that the IRS objects to debtor's motion, the Tax Court has the clearest jurisdiction to resolve the claim, resolution of the tax issue – including the extent to which the debtor may use the innocent spouse doctrine – may take many months or years, the debtor's proposed plan must be completed in 13 months, debtor has accomplished much in the bankruptcy proceeding and there is no allegation of bad faith, the court concludes that it cannot grant the debtor's request to maintain the distributions over the IRS' objection and therefore grants the debtor's alternative request that her case be dismissed to that she can resolve the tax claim outside the Bankruptcy Court's protection, noting that she will be eligible to file for bankruptcy relief under Chapter 13 or 11 after the tax court makes its decision. [Filed July 29, 2013]
United States of America v. The Cooper Health System, Dist. Ct. (Irenas, S.U.S.D.J.) (11 pp.) Dr. Nicholas DePace, the successful relator in this qui tam action, was represented by the law firm of Pietragallo, Gordon, Alfano, Bosick & Raspanti pursuant to a contingency fee agreement. As part of the settlement, the firm received $430,000 from defendant in statutory attorney fees under the Federal False Claims Act. After DePace refused to pay it fees pursuant to the contingency agreement because it had already received fees as part of the settlement, the firm filed a petition in the Philadelphia Court of Common Pleas to compel arbitration of the fee dispute. DePace then filed an application for emergent relief asking the District Court to stay the state court proceeding which was denied. DePace filed an appeal of the denial. The state court then ordered mediation and, if necessary, arbitration. DePace then filed a motion for reconsideration and/or stay of the order compelling mediation/arbitration. The court denies the motion, finding that it lacks jurisdiction to grant the motion, noting that were it to grant the stay, it could end up in the unenviable position of having stayed a state court proceeding or private arbitration in order to protect a potential future judgment which is never rendered and that preventing this sort of confusion is the purpose of the rule divesting a district court of jurisdiction once a notice of appeal has been filed. The court also says that even if it had jurisdiction, it would not order the stay because, to the extent that DePace asks for a stay of the state court proceeding, the court has already ordered mediation/arbitration and there is nothing left before the court that can be enjoined, and, insofar as DePace asks to stay the mediation/arbitration, he has not shown a likelihood of success on the merits. [Filed July 29, 2013]
Stetser v. Jinks, Dist. Ct. (Bumb, U.S.D.J.) (9 pp.) Plaintiff David Stetser was married to Jacqueline Stetser from 1994 until their divorce in 2007. A Final Restraining Order (“FRO”) was entered pursuant to which David was barred from having any contact with Jacqueline. Subsequently, Jacqueline lodged a complaint against David with the Gloucester Township Police Department, claiming he violated the FRO by texting a lewd picture to her cell phone. The number from which Jacqueline received the picture at one point belonged to David. Based on Jacqueline’s certification and Defendant’s independent personal knowledge of David and Jacqueline’s history, Defendant filed a criminal complaint against David, and he was arrested. The charge was dismissed. According to David, the dismissal was predicated on his presenting evidence that he had changed his number following the divorce and the picture could not have been sent by him. David brought this action against a number of defendants. The only remaining claim is a claim for malicious prosecution pursuant to 42 U.S.C. § 1983. Because Defendant had probable cause to initiate the criminal proceeding, David’s malicious prosecution claim fails. Defendant’s motion for summary judgment is granted. [Filed July 19, 2013]
RESIDENTIAL AND COMMERCIAL REAL ESTATE
Tubbs v. North American Title Agency, Inc., Third Circuit (McKee, U.S.C.J.) (15 pp.) Arthur and Jane Tubbs appeal an order granting final judgment to North American Title Agency, Inc. The Tubbs refinanced two mortgages held by Wachovia. The settlement agent for the refinancing was the Title Agency. Based on purported disbursements and fees, the Tubbs filed a putative class action against the Title Agency under the Real Estate Settlement Procedure Act (“RESPA”). In addition, the Tubbs brought claims under the New Jersey Consumer Fraud Act (“CFA”) and for breach of contract, breach of a covenant of good faith and fair dealing, and unjust enrichment. The circuit panel affirms the grant of summary judgment to the Title Agency on the Tubbs’ RESPA claim. The panel reverses the grant of summary judgment on the Tubbs’ CFA claim. The District Court erred in assuming that the CFA claim was tied to the success of the RESPA claim. By charging the Tubbs $150 that was not paid to the government for recording the mortgages, the Title Agency may have made an unlawful misrepresentation. Moreover, a finder of fact could conclude that the Title Agency’s $325 “Settlement or Closing Fee” covered the cost of all services the Title Agency performed, and that the $150 charge for “Release Recording Fees” was an overcharge. Such overcharge could constitute an ascertainable loss because the fees were paid from the refinancing loan. The panel also reverses the grant of summary judgment on the contract and quasi-contract claims. [Filed July 19, 2013]
In re Par Pharmaceutical Securities Litigation, Dist. Ct. (Salas, U.S.D.J.) (19 pp.) In this class action involving allegations of securities fraud brought on behalf of investors in Par, a Delaware corporation headquartered in New Jersey, the court approved the Settlement and Plan of Allocation, finding that the balance of the
Gish factors weighs in favor of approval, and grants Lead Counsel's motion for award of attorney fees, reimbursement of litigation expenses, and compensatory award to plaintiff Louisiana Municipal Employees Retirement System. [Filed July 29, 2013]
United States of America v. Butler, Third Circuit (Sloviter, U.S.C.J.) (9 pp.) Butler appeals the sentence imposed by the District Court following his guilty plea to illegal reentry in violation of 8 U.S.C. § 1326. Butler is a native and citizen of Jamaica who was deported in 2006 after serving a fourteen-year sentence for drug trafficking. Shortly thereafter, he returned to this country. In 2010, Butler was pulled over for a traffic violation in New Jersey. Butler was charged with exhibiting false documents as proof of identification, to which he pled guilty. The federal government then indicted Butler for illegal reentry. Butler pled guilty to that offense as well, and was sentenced to forty-six months’ imprisonment and a three-year term of supervised release. The circuit panel finds the District Court erred in imposing a term of supervised release pursuant to the 2010 Sentencing Guidelines, when the 2011 Guidelines were applicable. In Butler’s case, supervised release was not required by statute, and Butler faced deportation after imprisonment. While the District Court could have imposed a term of supervised release pursuant to the 2011 Guidelines upon a finding that Butler’s case justified “an added measure of deterrence and protection, it made no such finding. The District Court also erred by including Butler’s false-identification conviction in his criminal history calculation, rather than considering it as conduct “relevant” to his reentry offense. The circuit panel vacates the sentence and remands to the District Court for resentencing. [Filed July 19, 2013]