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STATE COURT CASES

CIVIL PROCEDURE — FINAL JUDGMENTS

07-2-6598 Leonard Business Enterprises, Inc. v. AAA Stationers, Inc., etc., et al., App. Div. (per curiam) (6 pp.) In this dispute over defendants’ misrepresentations in the sale of a business to plaintiff, the court justifiably denied defendants’ motion seeking to amend prior orders in plaintiff’s favor to reflect that they were “final judgments”; in essence, defendants seek to resurrect their right to appeal from the prior orders, which right they claim never accrued because these orders were not “final,” but the record belies this contention; the more prudent step would have been to file a timely notice of appeal of the orders, and any dispute concerning the orders would have been resolved by the Appellate Division.

DAMAGES — EMOTIONAL DISTRESS — LOSS OF PET

60-2-6599 Rodier v. Schnepp, App. Div. (per curiam) (9 pp.) Accepting the reasoning of Harabes v. The Barkery, Inc., the trial judge aptly concluded that damages for the negligent infliction of emotional distress resulting from the loss of a pet are not cognizable in New Jersey; plaintiff — who had witnessed defendant’s German Shepard kill her four-pound Maltese dog — was limited to compensatory damages for the loss of the animal.

INSURANCE — MULTIPLE INSURERS — CONTRIBUTION

23-2-6600 North American Specialty Ins. Co. v. Selective Ins. Co., App. Div. (per curiam) (29 pp.) Plaintiff and defendant both insured a company which was sued for damage to a condominium’s structure as a result of the alleged failure of a cathodic protection system that it had installed. Plaintiff undertook the defense of the insured and repeatedly attempted to obtain defendant’s participation in the action and settlement negotiations; unsuccessful in this regard, it sued defendant for contribution. In this opinion, the panel reverses the summary judgment entered in favor of defendant, concluding that the trial judge erred in assuming that plaintiff was required to rely upon the rights derivative of the insured instead of upon its own independent equitable right of contribution against defendant.

LANDLORD/TENANT — COMMERCIAL LEASES — RETALIATORY EVICTION

27-2-6601 1266 Apartment Corp. v. New Horizon Deli, Inc., App. Div. (Coburn, J.A.D.) (12 pp.) A commercial tenant in an action for eviction is not entitled to rely on the defense of retaliatory eviction based on the landlord’s refusal to negotiate a renewal of the tenancy as long as the tenant’s employee maintained a personal injury action against the landlord. [Approved for publication Apr. 26, 2004.]

REAL ESTATE — BROKERS — COMMERCIAL LEASES — SERVICE BY FAX — STATUTE OF FRAUDS

34-2-6602 Coldwell Banker Commercial, etc., et al. v. Blancke P.W., L.L.C., App. Div. (Newman, J.A.D.) (31 pp.) This appeal follows the award to plaintiffs of a $630,000 real estate broker’s commission on a long-term lease of commercial property. The court holds that service by fax transmission does not satisfy the very specific certified or registered mail or personal service requirements of the statute of frauds. Faxes do not afford the same certainty of delivery as mail, and without personal verification the sender has no way of determining if the document actually reached the intended recipient. Where a real estate broker seeks to enforce a commission, the terms for the payment of the commission should be part of the agreement if it is to be enforceable under the statute of frauds. This is especially necessary where, as here, a long-term commercial lease is involved, and the lessor would not be expected to pay the entire commission amount upfront. However, given that defendant acknowledged receipt of plaintiffs’ commission letter via fax, and agreed that plaintiff was, in fact, owed a commission, even though the parties could not agree on the amount and terms of payment, precluding any recovery by plaintiffs because of the form of notice would be too draconian. Plaintiffs may pursue recovery under the quantum meruit theory. [Approved for publication Apr. 26, 2004.]

REAL ESTATE — COMMERCIAL CONTRACTS — REFORMATION

34-2-6603 Whitesell, et al. v. Brandywine Realty Trust, et al., App. Div. (per curiam) (43 pp.) Setting forth the history of the parties’ negotiations in this commercial real estate matter — in which defendants were to purchase several office buildings from plaintiffs — the panel concludes that the Chancery judge correctly analyzed the parties’ contract, found that it was not ambiguous, and therefore properly dismissed plaintiffs’ complaint seeking reformation of the contract to include a requirement that defendants to assume a certain mortgage; and further seeking forfeiture of defendants’ deposit based upon allegations of breach of contract. The panel also affirms the award of almost $72 thousand in counsel fees to defendants, pursuant to R. 4:58-2.

TAXATION — TAX TITLE LIENS — MUNICIPAL NOTICES

35-2-6604 Garden State Land Co., etc. v. City of Vineland v. Realty Asset Properties, Ltd., FUNB, etc., et al., App. Div. (Lisa, J.A.D.) (17 pp.) The holder of a recorded tax title lien is a “party in interest” under N.J.S.A. 40:48-2.4(e) and is entitled to formal notice and an opportunity to contest a municipality’s charge that a building is unfit. Lack of notice renders the municipality’s subsequently-imposed lien for demolition costs ineffective against the tax title lien holder. In this case, however, where the tax title lien holder here had actual notice that the municipality intended to demolish the building, the Chancery judge’s remedy, which provided the municipality the opportunity to “redeem” the tax title lien, which had already been foreclosed, as an alternative to discharging its demolition lien, effectively prevented unjust enrichment to the lien holder. [Approved for publication Apr. 26, 2004.]

CRIMINAL LAW AND PROCEDURE — S.V.P.A.

14-2-6605 I/M/O Civil Commitment of A.S.M., App. Div. (per curiam) (24 pp.) Both judges below aptly found by clear and convincing evidence that appellant, diagnosed with antisocial personality disorder, impulse disorder, alcohol and substance abuse, and paraphilia, was highly likely to commit a sexually violent offense, and should remain committed.

FEDERAL COURT CASES

BANKRUPTCY — CLAIM PRECLUSION

42-8-6606 In re: Martin, Debtor; Enax, etc., et al. v. Martin; Wasserman, Trustee, etc., Third Cir. (Shadur, U.S.D.J.) (8 pp.) The adversary complaint of appellants — including the debtor’s former wife and her attorneys — sought a determination that the attorney’s fee award obtained by the former wife in the parties’ state court divorce action was not dischargeable in the debtor’s bankruptcy proceeding; this adversary proceeding, however, was dismissed for failure to prosecute. Thus, the Bankruptcy Court (and, hence, the District Court) correctly held that appellants were barred from relitigating the issue of dischargeability of their claims before the Bankruptcy Court under the doctrine of claim preclusion. The circuit panel also holds that neither the Bankruptcy Court nor the District Court committed an abuse of discretion when each refused to vacate the discharge orders. [Filed Apr. 20, 2004.]

INTELLECTUAL PROPERTY — CYBERSQUATTING — DOMAIN NAMES

53-7-6607 Mayflower Transit, LLC v. Prince, U.S. Dist. Ct. (Linares, U.S.D.J.) (29 pp.) The defendant, whose belongings were stolen while being stored in contemplation of a move by Lincoln Storage, a local affiliate of plaintiff Mayflower Transit, created and maintained certain websites and registered various internet domain names such as “mayflowervanlinebeware.com” and “mayflowervanline.com,” where he posted warnings to the public about doing business with plaintiff and its affiliates. Plaintiff sued, alleging various violations of its intellectual property rights. In this opinion, inter alia, the Court discusses the Anticybersquatting Consumer Protection Act and its application to defendant’s actions here, and finds that the analysis of the fourth factor under “bad faith” — whether defendant had a “bona fide non-commercial or fair use of the mark” — speaks to the ultimate disposition of this case, and demonstrates why defendant cannot be held liable to plaintiff under the ACPA. [Filed Mar. 2004.][Submitted for publication Apr. 22, 2004.]

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