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CIVIL PROCEDURE – OFFER OF JUDGMENT – REAL ESTATE 07-2-8168 Petrich v. O’Donnell, II, App. Div. (per curiam) (3 pp.) Litigation ensued from a dispute between the parties, who had formed a partnership for the purpose of purchasing a parcel of real estate. Plaintiff made an offer of judgment containing three alternative proposals, one of which was transfer of title of the property to plaintiff for $100,000. This was accepted by defendant but, ten days later, plaintiff attempted to add seven additional conditions for effectuation of the offer of judgment. The appellate panel affirms the trial court’s enforcement of the settlement requiring defendant to pay plaintiff the $100,000 as originally proposed, establishing certain conditions in a discharge of the court’s equitable powers, and rejecting plaintiff’s attempt to have the benefit of the conditions he established after the offer was transmitted and accepted. CONTRACTS � BILLBOARDS 11-2-8169 Alliance Media Group, Inc. v. Great Outdoor, Inc., etc., et al., App. Div. (per curiam) (13 pp.) While a formal contract was never executed between the parties, drafts were created and, during the time between drafts, plaintiff worked with defendant in advertising sales, billed defendant, and was paid commissions. Plaintiff provided services to defendant from 1994 to 1997, when defendant was sold. Defendant’s principal admitted to discussing a future equity arrangement with plaintiff’s principal, but the parties never came to an agreement on the matter. After all the proofs were presented in plaintiff’s suit, the trial judge found that the parties intended to be bound by a written contract, which was never finalized, and that no oral contract could be found where plaintiff refused to accept the terms of either of defendant’s proposed drafts. The judge also found that two alleged equity payments which were made were in error, and rejected plaintiff’s claim respecting trailing commissions. Deferring to the trial judge’s credibility determinations in favor of defendant, the panel affirms. CONTRACTS – BUSINESS SALES – COMMISSIONS – DISCOVERY 11-2-8170 Burke-Schaf, et al. v. Devine, et al., App. Div. (per curiam) (19 pp.) This dispute arose from plaintiff’s complaint seeking to recover commissions to which she claimed entitlement after she sold her insurance broker business to defendants. The purchase agreement for the business provided that plaintiff would retain certain of her commissions for a period of time, and plaintiff claimed that defendants withheld those commissions unlawfully. Plaintiff alleged that, during discovery, defendants impeded her expert accountants so that they could not determine and quantify the commissions she was due. Defendants asserted that they made the records available but the accountants cancelled numerous appointments. While defendants wrote to plaintiff expressing concern over these missed appointments, plaintiff never responded. On the date of the arbitration hearing, plaintiff’s counsel appeared without an expert report, and a no cause award was entered in favor of defendants. After plaintiff moved for a trial de novo, she also moved for an extension of discovery, one month prior to the scheduled trial date. The trial judge denied the request as untimely, also finding that plaintiff failed to establish exceptional circumstances. Defendants’ motion for summary judgment was thereafter granted since plaintiff was unable to prove damages. The appellate panel affirms, rejecting plaintiff’s contention that the poor health of her prior counsel, and the conduct of defendants during discovery, failing to provide her with an accounting, constituted exceptional circumstances justifying an extension of discovery. The record demonstrates that, during the discovery period, plaintiffs did not make effective use of the time permitted under the rules. EDUCATION – INTERLOCAL SERVICES AGREEMENTS – EMPLOYMENT ISSUES – TENURE – C.E.P.A. 16-2-8171 Raimondi v. Bd. of Education of Westwood Regional School Dist., etc., App. Div. (per curiam) (17 pp.) The appellate panel affirms the final decision of the State Board of Education affirming the ALJ’s determination dismissing that the petition of plaintiff – formerly tenured business administrator for the defendant Westwood School Board � claiming that the defendant violated the school laws when it entered into an interlocal services agreement with the Board of Education of the Vocational Schools in Bergen County for the services of a business administrator. The ALJ also properly dismissed plaintiff’s CEPA claim, concluding that he did not have jurisdiction over same. Inter alia, there was nothing in the record to show that Westwood did not act in good faith in entering into the interlocal services agreement. Plaintiff voluntarily resigned in the face of the agreement, and therefore waived his tenure rights. The panel holds that the Westwood Board was not required to comply with N.J.S.A. 18A:17-24.1; because the Board entered into an undisputed subcontract, the controlling statute was N.J.S.A. 40:8A-1 to -11. ENVIRONMENT � WETLANDS 17-2-8172 N.J. D.E.P. v. Wagner, et al., App. Div. (per curiam) (15 pp.) The appellate court upholds the DEP Commissioner’s final decision imposing civil administrative penalties on appellant Wagner for his violations of the Freshwater Wetlands Protection Act. Wagner, owner of a housing development site in Wall Township, dumped or allowed dumping of unauthorized fill on wetlands areas on the property and the onsite mitigation requirement was ordered to be contained in any deeds associated with the property, which appellant did not do when he conveyed the property between his corporations. Because remediation was feasible, the DEP could not accept appellant’s offer of monetary contribution as an alternative remedy as he continued to attempt to develop the lots. The ALJ properly rejected appellant’s argument that the wetlands at issue were exempt from regulation, and justifiably calculated the penalties. FAIR HOUSING – JURISDICTION 41-2-8173 Baker Residential Ltd. Ptshp., et al. v. Twp. of Randolph, etc., et al., App. Div. (per curiam) (14 pp.) The Law Division properly determined that it had jurisdiction to enforce a mediated settlement agreement that resolved disputes respecting the rights of plaintiffs to construct a housing project with an affordable housing component within defendants’ jurisdiction. The panel also affirms the orders’ provision that the project would be governed by the municipal codes in effect when the project was first approved, in accordance with the settlement. INSURANCE � P.I.P. � FRAUD � SETTLEMENTS � VACATING JUDGMENT 23-2-8174 Mehta, M.D., et al. v. Encompass Ins. Co., App. Div. (per curiam) (24 pp.) The Law Division judge properly denied plaintiff’s motion, pursuant to R. 4:50-1, to reopen and vacate the order granting defendant partial summary judgment on its insurance fraud counterclaim. The matter arose when defendant refused to pay plaintiff, the owner of three medical entities, for medical services rendered to defendant’s insured, and plaintiff sued. Defendant counterclaimed and the judge found that defendant had shown that plaintiff materially breached the terms of the policy, voiding it retroactively, and violated the insurance fraud laws, entitling defendant to damages. Negotiations ensued and a settlement was reached, whereby plaintiff paid defendant $40,000, but defendant consistently refused plaintiff’s request to consent to vacation of the partial summary judgment order. When plaintiff moved to vacate the order, the judge found that the settlement agreement and mutual releases were comprehensive with no reservations. Although plaintiff wanted to vacate the partial summary judgment, she did not want to set aside the settlement; thus, the judge found that plaintiff impermissibly “wanted to have her cake and eat it too.” She showed no unique circumstances for vacation of the judgment. [Decision dated Aug. 6, 2007.] INSURANCE � TRACTOR-TRAILERS � BOBTAIL POLICY � PRIMARY AND EXCESS COVERAGE 23-2-8175 U.S.F. & G. Co. v. American Automobile Ins. Co., et al., App. Div. (per curiam) (11 pp.) The trial court accurately granted summary judgment in favor of the plaintiff and ordered defendant to provide primary coverage to the truck driver, Mattis, for all claims arising out of an accident that occurred while he was driving a tractor home after his last delivery. Plaintiff issued a truckers’ liability policy in which WRJ Trucking, the company to whom Mattis leased his tractor-trailer, was a named insured. Defendant issued a policy, commonly referred to as a Bobtail Policy, to the Independent Trucker’s Assn., of which Mattis was a member; the term “bobtail” refers to a tractor on the road without a trailer. After driving his tractor from home to pick up the loaded trailer at WRJ, Mattis delivered freight to stops in NJ and Pennsylvania. After his last delivery, he returned to the terminal, left the trailer, and drove home after midnight in the tractor. Defendant maintained that coverage was excluded because that the tractor was being used in business at the time of the accident. The judge framed the issue as whether Mattis, while commuting back and forth to his home in the tractor, was engaged in the business of his employer, and found that he was not. Based on the policy language, the judge then aptly found that defendant’s policy was primary and plaintiff’s was excess in the circumstances. [Decision dated Aug. 6, 2007.] INSURANCE – UNINSURED MOTORIST COVERAGE � FORKLIFTS 23-2-8176 Spatucci, et ux. v. N.J. Mfrs. Ins. Co., App. Div. (per curiam) (5 pp.) The plaintiff was injured on a loading dock while loading pallets onto his truck, when an employee of the pallet company backed a large forklift over his foot. On plaintiff’s claim for UM benefits, the appellate panel affirms the trial court’s grant of summary judgment to the defendant insurance carrier, agreeing that the unambiguous and specific language in the policy in question excluded from coverage vehicles “designed mainly for use off [of] public roads while not on public roads.” The resolution of this dispute does not, as plaintiff urges, depend upon whether the forklift was registered or whether it was capable of being operated on a public roadway. LANDLORD/TENANT – FIRE LOSSES – DAMAGES 27-2-8177 GCS Enterprises Intl., LLC, et al. v. Grant, etc., et al., App. Div. (per curiam) (11 pp.) The defendants’ historic two-story office building was severely damaged by a fire. As the building was rendered uninhabitable, all tenancies were terminated. Plaintiffs-tenants sued for their security deposit, and defendants counterclaimed for damages, alleging that plaintiffs’ negligence proximately caused the fire. Although defendants had been paid for the loss by CNA, their insurance carrier, and had assigned a right of subrogation to CNA, the lease between plaintiffs and defendants contained a mutual waiver of subrogation, so CNA did not proceed independently. The jury found that plaintiffs did cause the fire, and awarded defendants damages. Since they had already recovered more than that from CNA and through a subsequent sale of the property, the judge requested a form of judgment showing that defendants were the prevailing parties, but requiring no payment from plaintiffs, as he would not permit a double recovery. Defendants appeal from the molded verdict and the application of payment from collateral sources to the award. Plaintiffs appeal from the trial judge’s determination that the jury should not be told about the subsequent sale of the property. The appellate panel reverses and remands for a new trial on damages, concluding that the jury instructions on damages were inconsistent with a prior court order which provided that “the jury shall be charged on the measure of damages to be either the reasonable cost of repair or diminution of value, plus such sum that will fairly and justly compensate defendants.” The panel concludes that the trial judge erred in allowing the jury to select the legal standard it would use to determine the quantum of damages and in precluding the jury from knowing that defendants had sold the property for $235,000 prior to trial. PUBLIC EMPLOYEES – ACCIDENTAL DISABILITY RETIREMENT 33-2-8178 Scott v. P.F.R.S., App. Div. (per curiam) (3 pp.) The PFRS Board of Trustees aptly denied plaintiff’s application for retirement on an accidental disability pension, finding that the alleged incidents of racial and sexual harassment upon which her application was based did not constitute a “traumatic event” within the intent of N.J.S.A. 43:16A-7. REAL ESTATE – CONSTRUCTIVE TRUSTS 34-2-8179 Moscato v. C.B.P.B. Assocs., LLC, etc., et al., App. Div. (per curiam) (14 pp.) Iin light of the family history in this case, the Chancery judge justifiably imposed a constructive trust in favor of plaintiff on realty located in Florida, titled to her daughter-in-law. The plaintiff’s son clearly held the original property in N.J. in trust for his parents, who were the true beneficial owners, and the Florida property was bought to replace the N.J. property in this arrangement. The divorce documents from the son’s first marriage clearly support this arrangement. The only reason the son put the property in his second wife’s name was as a result of a gratuitous transfer to accommodate his needs when he faced ill health and probable incarceration. Therefore, the daughter-in-law’s title rose no higher than that of her grantor, which was subject to plaintiff’s equitable claims. An oral agreement to hold an interest in real property for the benefit of another may be enforceable if proven by clear and convincing evidence, as here. TAXATION � REAL ESTATE � REDEVELOPMENT � ABATEMENTS – EQUITABLE ESTOPPEL 35-2-8180 Willingboro Equities, LLC v. Twp. of Willingboro, App. Div. (per curiam) (5 pp.) The trial court justifiably agreed with defendant Township that plaintiff’s complaint � seeking a judicial declaration that its application for a tax abatement within a redevelopment area had been timely and otherwise correctly filed � was barred as a matter of law because plaintiff had filed the application outside of the relevant statutory deadline. The appellate panel rejects plaintiff’s argument that the trial court erred because it failed to conclude that the Township was equitably estopped from rejecting plaintiff’s application. [Decision dated Aug. 6, 2007.] CRIMINAL LAW AND PROCEDURE � JUVENILES � SEXUAL ABUSE OF CHILD � HEARSAY 14-2-8181 State, in the Interest of C.K., App. Div. (per curiam) (11 pp.) The thirteen-year-old defendant was adjudicated delinquent for conduct that would constitute aggravated sexual assault if he were an adult. A five-year old neighbor testified that, during a multi-family Sunday backyard cookout, defendant told him he could use his trampoline if he licked his penis twice. The appellate court reverses, noting that this was a close case and the younger boy’s accounts of the circumstances and manner in which defendant allegedly committed the act included significant inconsistencies. With no notice to the parties, the trial judge erred in basing his decision on the merits of this case, in large part, upon the victim’s mother’s testimony about her son’s Monday morning plea for her to speak to defendant so that the boys could be friends again. This deprived defendant of a meaningful opportunity to challenge the trustworthiness of the statement, to cross-examine the victim about the statement, and to present argument on its significance. In light of the closeness of this case, the appellate court cannot conclude that this error was harmless, and orders a new trial. [Decision dated Aug. 6, 2007.] CRIMINAL LAW AND PROCEDURE � SEARCH AND SEIZURE 14-2-8182 State v. Salzillo, App. Div. (per curiam) (16 pp.) Under the circumstances presented, the police officer had a reasonable and articulable suspicion to believe that the failure of the driver of defendant’s vehicle to signal a lane change was, to some degree, likely to affect traffic. The fact that the license plate was obscured by a dirty plastic cover was a further basis to justify the stop. The court also finds, under the “plain smell” doctrine, the heavy odor of alcoholic beverages coming out of the vehicle, combined with the officer’s retrieval of a beer bottle cap from the driver’s seat, justified the officer’s initial investigatory question to defendant as to whether there were any open containers in the car. Defendant’s voluntary production of a bag containing two Coors Light cans justified the warrantless search of the vehicle for other open containers. However, in the absence of any exigent circumstances, the officer did not then have probable cause to invade defendant’s zippered backpack after the two beer cans were produced, but before the car was searched for the Corona bottle to match the bottle cap. [Decision dated Aug. 6, 2007.]
BANKRUPTCY – ADEQUATE PROTECTION PAYMENTS – MOTOR VEHICLE LENDERS 42-6-8183 In re: DiSpirito, Debtor, U.S. Bankruptcy Ct. (Kaplan, U.S.B.J.) (11 pp.) The court determines that adequate protection payments to Ford Credit Company in connection with the amounts owed on Debtor’s retail installment contract on a 2002 Ford Explorer have priority over payments awarded to the Debtor’s counsel under § 330 of the Bankruptcy Code in this Chapter 13 proceeding. [Decision dated Jul. 17, 2007.][For publication.] BANKRUPTCY – MORTGAGE FORECLOSURE – RIGHT TO CURE DEFAULT – CHAPTER 13 42-8-8184 In re: Connors, Debtor, Third Cir. (Barry, C.J.) (13 pp.) Affirming the determination of Judge Cavanaugh of the District Court on an issue which has divided the N.J. federal bankruptcy and district courts, the circuit panel holds that, under 11 U.S.C. § 1322(c)(1), a Chapter 13 debtor does not have the right to cure a default on a mortgage secured by the debtor’s principal place of residence between the time the residence is sold at a foreclosure sale and the time the deed is delivered. [Filed Aug. 3, 2007.][Precedential.] CORRECTIONS – CLASS ACTIONS – OVERCROWDED PRISONS 13-7-8185 Dittimus-Bey, et al. v. Taylor, et al., U.S. Dist. Ct. (Simandle, U.S.D.J.) (21 pp.) The judge grants the plaintiffs’ motion for class certification as to all individuals incarcerated at the Camden County Correctional Facility as pre-trial detainees and/or as convicted prisoners from Jan. 6, 2005 until the termination of this action, ordering the class to litigate whether defendants subjected them to severe overcrowding at the prison in violation of their Fourteenth and/or Eighth Amendment rights and, if so, what the appropriate remedy for such unconstitutional overcrowding should be. [Filed Jul. 31, 2007.] � -Susan M. Clapp, Esq., Editor

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