STATE COURT CASES
CRIMINAL LAW
14-1-1051 State v. Micelli, Sup. Ct. (per curiam) (16 pp.) The reliability of the identifications should have been assessed at a Wade hearing before the trial court. [Decided Aug. 19, 2013.]
FAMILY LAW
20-2-1044 New Jersey Div. of Child Protection v. C.S. and J.C., App. Div. (Fisher, P.J.A.D.) (8 pp.) In this interlocutory appeal of an order transferring temporary custody of a child from foster parents to grandparents prior to trial of a Title 30 action, the court reversed the trial court’s refusal to permit the admission of evidence regarding any bond that may have formed between the child and the foster parents, and the impact of its severance, and remanded. Although the court observed that in such a circumstance there is a statutory preference for temporary placement with the grandparents, the child’s best interests warranted a consideration of any bonding evidence opponents of the transfer might wish to present. [Decided Aug. 19, 2013.]
20-1-1056 J.B. v. W.B., Sup. Ct. (Cuff, P.J.A.D.) (16 pp.) A parent seeking to modify a negotiated agreement for the support of a disabled child through the establishment of a special needs trust must present a specific plan and demonstrate how the proposed trust will benefit the disabled child. When a disabled child is the subject of a proposed special needs trust, it is within the trial court’s discretion to appoint a guardian ad litem. [Decided Aug. 20, 2013.]
LEGAL PROFESSION — MALPRACTICE
04-2-1030 Kaye v. Rosefielde v. Kaye, App. Div. (Fuentes, P.J.A.D.) (105 pp.) This civil dispute originated in the Chancery Division, where plaintiff filed a complaint against defendant alleging, inter alia, unfaithful servant, civil fraud and legal malpractice. Although monetary damages were potentially available, plaintiff sought primarily equitable relief. Defendant answered and filed a counterclaim alleging, in part, violations of the protections afforded whistleblowers under the Conscientious Employee Protection Act (CEPA) and common-law breach of contract. We hold that the trial court did not misuse its discretionary authority when it invoked the doctrine of ancillary jurisdiction to adjudicate the entire controversy, including trying, without a jury, the claims raised by defendant in his counterclaim. We also hold that attorneys hired to serve as in-house counsel are bound by the conflict of interests proscription in RPC 1.8(a), including specifically providing the client/employer with written notice of potential conflicts. On the question of damages, we hold that the Chancery Division has the authority to award punitive damages, provided such damages are warranted under the Punitive Damages Act. In a legal malpractice action, if punitive damages are based on defendant’s “actual malice” as defined in N.J.S.A. 2A:15-5.10, counsel fees awarded to the plaintiff constitute “compensatory damages” as defined in N.J.S.A. 2A:15-5.10. Finally, under the facts of this case, we hold that defendant, who was hired to be the chief operating officer and general counsel of plaintiff’s varied businesses, was not an “employee” entitled to the protections afforded under CEPA, pursuant to standards established by the Court in D’Annunzio v. Prudential Insurance Co. of America, 192 N.J. 110 (2007), and Stomel v. City of Camden, 192 N.J. 137 (2007). [Decided Aug. 16, 2013.]
FEDERAL COURT CASES
CIVIL PROCEDURE
11-8-1053 Hayes v. Wal-Mart Stores Inc., Third Cir. (Scirica, C.J.) (10 pp.) Plaintiff filed this putative class action asserting claims for violation of the New Jersey Consumer Fraud Act, breach of contract and unjust enrichment arising out of Wal-Part’s sale of extended warranty plans through Sam’s Club retail stores in connection with the sale of “as is” items. Finding that the class does not survive the ascertainability and numerosity requirements as articulated in Marcus v. BMW of North America LLC, which was decided postcertification, the court vacates the certification order in this case and remands to give plaintiff the opportunity to address these requirements in the trial court. [Filed Aug. 2, 2013.]
CRIMINAL LAW
14-8-1054 United States v. Smith, Third Cir. (Fuentes, C.J.) (7 pp.) The District Court’s admission of evidence of defendant’s drug distribution, two years before his trial on charges arising out of his approaching an unmarked car in which an FBI agent and three officers were conducting an undercover drug surveillance while armed with a semi-automatic handgun, violates the long-standing rule that, when seeking to introduce evidence of prior bad acts under Rule 404(b), the proponent must set forth a chain of logical inferences, no link of which can be the inference that because the defendant committed offenses before, he therefore is more likely to have committed this one. Smith’s conviction on counts one and two is vacated and the matter is remanded for a new trial. [Filed Aug. 6, 2013.]