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STATE COURT CASES

DAMAGES — CONTRACTS — FRAUD — REMITTITUR

60-2-6550 Majek Fire Protection, Inc. v. Palko Continental, et al., App. Div. (per curiam) (18 pp.) (1) Plaintiff’s proofs were not sufficient to establish a cause of action for common law fraud, as plaintiff failed to show the value of the services provided resulting from the individual defendant’s alleged fraudulent promise to guarantee the financially-troubled corporate defendant’s debt to plaintiff; therefore, defendant’s motion to dismiss the fraud claim should have been granted at the close of plaintiff’s case. (2) There was sufficient evidence to support a jury finding that the individual defendant made an oral promise to guarantee the corporate debt with the leading object to get plaintiff to complete the contract so that defendant’s company could continue to generate money and personally benefit him as sole shareholder and president; thus, the “leading object” exception to the statute of frauds was satisfied, and the order dismissing plaintiff’s breach of contract claim based on the oral guarantee was improvidently entered and is reversed. (3) The judge erred in declaring a mistrial in this contract action, finding that the verdict in favor of plaintiff was so grossly excessive as to demonstrate passion, prejudice, or partiality; she neither identified any indicia of bias, passion or prejudice impacting on liability to justify a new trial on all issues; moreover, the judge’s alternative remittitur failed to follow the holding in Fertile. (4) The matter is remanded for entry of judgment in favor of plaintiff on the contract claim, with the jury’s $58,664 verdict remitted to $16,080, the balance remaining due on the original contract.

FAMILY LAW — VISITATION

20-2-6551 Gomez v. Gomez, App. Div. (per curiam) (3 pp.) The court did not mistakenly exercise its discretion when it denied defendant’s motion seeking to modify the parties’ agreed-upon Christmas holiday visitation schedule to accommodate his new marriage and out-of-state relatives; the judge patiently explored a number of alternatives in an effort to accommodate the interests of both parents, none of which were acceptable to defendant.

HEALTH — INSURANCE — BALANCE BILLING

22-3-6552 Valley Hospital v. Kroll, Law Div. (Riva, J.S.C.) (29 pp.) The plaintiff seeks to collect over $257,188 from defendant for services rendered to her late husband, the purported debt representing the difference between the hospital’s “standard” charges and the benefits paid to it by decedent’s Medicare Part A and supplemental insurance coverage, otherwise known as “Medigap” insurance. Because this decision was one of public importance involving the interpretation of N.J.’s supplement insurance regulatory scheme and its state-wide impact on hospital billing charges, the court sought the input from the Commissioner of Banking and Insurance. Having heard from all parties, the court here grants defendant’s motion for partial summary judgment on the ground that the plaintiff hospital may not “balance bill” patients for post-Medicare Part A services. [Decision dated Apr. 17, 2003.][Approved for publication Apr. 1, 2004.]

LABOR AND EMPLOYMENT — RESTRICTIVE COVENANTS

25-2-6553 Flow Control, Inc., etc. v. Herron Valve, etc., et al., App. Div. (per curiam) (13 pp.) Reviewing the development of the case law on restrictive covenants in employment contracts, the panel concludes that the trial court mistakenly let the jury determine the reasonableness of the restrictions and the post-employment period for which the covenant here should be enforced. On remand, the judge should apply the Solari three-part test and determine whether the restrictive covenant was reasonable under the circumstances, including whether it was unduly burdensome and, if so, what, if any, period would be reasonable for its enforcement. Any limitation on time will necessarily impact the measure of damages.

LABOR AND EMPLOYMENT — UNEMPLOYMENT COMPENSATION

25-2-6554 Doran v. Bd. of Review, App. Div. (per curiam) (3 pp.) The claimant was aptly disqualified from receipt of benefits because she voluntarily left work without good cause attributable to the work; claimant’s assertion that she was forced to leave her job because of extreme stress caused by poor working conditions and her unhappiness with the way her employer managed the facility was not medically supported, nor was it sufficient good cause to leave employment.

LABOR AND EMPLOYMENT — UNEMPLOYMENT COMPENSATION

25-2-6555 Jones v. Bd. of Review, etc., et al., App. Div. (per curiam) (3 pp.) The claimant was aptly disqualified from receipt of benefits because she voluntarily left work without good cause attributable to the work, where the only reason claimant left her job was to relocate to another area with her husband due to his work.

PARENT/CHILD — TERMINATION OF RIGHTS — KINSHIP LEGAL GUARDIANSHIP

28-2-6556 N.J. D.Y.F.S. v. M.M.; one other caption; I/M/O Guardianship of S.M.B., a Minor, App. Div. (per curiam) (37 pp.) Although the trial judge’s findings with respect to the first and second prongs of the best interests test are supported, the appellate panel finds that there remains a substantial question in this case as to whether this particular nine-year old child will suffer more harm from the termination of his relationship with either or both parents than he could gain even by favorable stranger adoption; both the Division and the court seemed to have overlooked alternatives offered by kinship legal guardianship, especially where the child has lived with his grandmother and older sister throughout, and that situation might be able to continue successfully if the grandmother’s cries for assistance in various areas are explored and met.

REAL ESTATE — EASEMENTS

34-2-6557 Rocci, et ux. v. 334 Main Street, Inc., et al.; one other caption, App. Div. (per curiam) (6 pp.) The judge’s interpretation of the parties’ settlement agreement and the parties’ expressed intentions regarding the easement in question is supported by the record; he did not abuse his discretion in applying equitable principles to construct a fair and equitable result, and his order carries out the essential meaning of the original agreement, provides the plaintiffs with access to their property, and properly seeks to minimize the discomfiture to the burdened landowner caused by the municipality’s new requirements for a two-way driveway of increased width.

TAXATION — FARM STRUCTURES

35-2-6558 Twp. of Monroe v. Gasko, et ux., App. Div. (per curiam) (20 pp.) Distinguishing Van Wingerden v. Lafayette Twp., the Tax Court judge here properly concluded that the taxpayer’s greenhouse structures — used both for growth and production as well as sales of nursery stock — did not qualify for farmland assessment valuation under N.J.S.A. 54:4-23.12(a).

CRIMINAL LAW AND PROCEDURE — SEARCH AND SEIZURE

14-2-6559 State v. Muhammad, App. Div. (per curiam) (5 pp.) Resolving credibility in favor of the detective and assisting officer, the judge justifiably denied the defendant’s motion to suppress drugs found under defendant’s chair after he was observed selling drugs during a surveillance; even if the detective was mistaken about the precise description of the object removed from beneath the chair and passed to the suspected buyer, the observed exchange, in conjunction with the seizure of drugs on the buyer, and drugs found under defendant’s chair, was sufficient to give rise to probable cause to arrest defendant.

FEDERAL COURT CASES

IMMIGRATION — HOMELAND SECURITY

51-7-6560 Pisciotta v. Ashcroft, etc., et al., U.S. Dist. Ct. (Greenaway, Jr., U.S.D.J.) (18 pp.) The court dismissed petitioner’s application for a writ of habeas corpus, which raises a constitutional challenge to the statutory framework that permits his continued detention; so long as it is the Supreme Court’s “longstanding view,” reaffirmed in Demore v. Kim, that detention is a constitutionally permissible part of the removal process until such process has concluded, and insofar as the government’s interest in the removal of aliens with prior convictions may be furthered by the detention of this petitioner, who is subject to removal based on his prior convictions, during the finite period of removal proceedings, this court cannot grant a writ of habeas corpus to petitioner. [Decision dated Jan. 9, 2004.][Submitted for publication Mar. 26, 2004.]

PUBLIC EMPLOYEES — DISCIPLINE

33-8-6561 Ashton, Sr., et al. v. Whitman, et al., Third Cir. (Smith, C.J.) (11 pp.) The appellants are current and former officials of the N.J. Dept. of Corrections who were the subject of disciplinary proceedings in connection with allegedly improper activities at Bayside State Prison, such as maintaining a slush fund at the prison’s recycling center, using state equipment on private property, and making deals with private corporations to dispose of used tires and wooden pallets on prison property; the appellants entered into settlement agreements with the DOC, and now claim that they were denied due process because the defendants withheld certain exculpatory information — reports, notes and memos prepared by an investigating officer — which would have affected their decisions to enter into the settlements. The circuit panel affirms the District Court’s grant of summary judgment to defendants, finding that appellants were provided with more than the minimum procedural safeguards identified in Loudermill. [Filed Apr. 15, 2004.]

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