Daily Decision Service Alert: Vol. 21, No. 195 - October 5, 2012

New Jersey Law Journal

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STATE COURT CASES
 
ATTORNEY/CLIENT LEGAL MALPRACTICE
04-2-7871Sims v. Budd Larner, P.C., App. Div. (per curiam) (14 pp.) In this legal malpractice case, plaintiff John D. Sims appeals from an order dismissing his complaint and granting summary judgment to Budd Larner, P.C. (defendant). Plaintiff retained defendant to provide legal services for "a pending post-judgment matter" regarding real property. After plaintiff’s ex-wife, Kathleen, died, full ownership interest in the property they owned as tenants by the entirety passed to plaintiff. Plaintiff then filed this complaint against defendant seeking reimbursement of purported loans to Kathleen and mortgage payments he advanced for the property during her lifetime. The property passed to plaintiff by operation of law upon Kathleen's death. As a result, plaintiff was made whole. Plaintiff’s 100% interest in the property exceeds the amount that he claims he loaned or advanced to Kathleen. Receiving the interest in the property enabled plaintiff to reimburse himself money that he loaned or advanced to Kathleen. Therefore, plaintiff has failed to establish that defendant proximately caused him actual damage, an essential element in a legal malpractice claim.
 
FAMILY LAW
20-2-7872 Bang v. Bodog, App. Div. (per curiam) (7 pp.) Defendant appeals from provisions of the final judgment of divorce regarding alimony, child support and equitable distribution, entered following default. The panel affirms, holding that defendant's argument, that his failure to appear was due to illness, was not raised before the trial court and will not be considered on appeal, and that the trial judge reviewed and considered the documentation, which was verified by plaintiff, along with her testimonial evidence to impute income to defendant, set child support and alimony and allocate the equitable distribution of property, that defendant was given this information in preparation for the final hearing, he waived oral argument and consented to final disposition, and the record contains adequate support for the trial court's findings and conclusions.
 
GOVERNMENT
21-3-7873 Donovan, County Executive Of Bergen County v. Bergen County Board Of Chosen Freeholders, Law Div.-Bergen Cy. (Toskos, J.S.C.) (15 pp.) Plaintiffs filed an action in lieu of prerogative writs requesting an order invalidating Resolution #330, which purports to appoint a municipal accountant for the annual audit; declaring Bergen County Administrative Code Article 2.1(i), which provides that the Board has the power to appoint a municipal accountant, null and void; and compelling the Board to permit the County Executive or her designee to fully participate in all Board meetings. This case presents two issues regarding the separation of powers between the County Executive and Board of Freeholders in a County Executive form of government. First, whether the County Executive or the Board of Freeholders has the power to appoint the municipal accountant for the annual audit. The court finds the appointment of the municipal accountant under the Local Fiscal Affairs Law is an executive and administrative function of the County Executive. Thus, Resolution #330 and Bergen County Administrative Code Article 2.1(i) are null and void. The second issue is to what extent can a County Executive’s appointed designee participate in meetings of the Freeholder Board. The Charter Act provides the County Executive with the right to be present and participate in Board meetings. The statute does not provide the County Executive with the power to designate an administrative official to act in his or her place. The court will enter a Declaratory Judgment in favor of the Board declaring that only the County Executive, not her designee, has the right to participate in Freeholder meetings.
 
INSURANCE — AUTOMOBILES
23-2-7874 Werthmann v. New Jersey Manufacturers Ins. Co., App. Div. (per curiam) (10 pp.) Plaintiffs appeal the dismissal with prejudice of their personal injury action arising out of an auto accident, arguing that the trial court erred in denying their attorney's request for an adjournment, made for the first time on the day of trial, which had been postponed five prior times, because their expert physiatrist, who was to testify as to permanency of injury, was unavailable. The panel affirms, finding that the dismissal, made on the basis that plaintiffs could not establish an essential element , was made on the merits; that there was no denial of due process as counsel had adequate time to request an adjournment pursuant to Rule 4:36-3(b) but failed to do so and no exceptional circumstances have been shown to support granting the request made the day of trial; plaintiffs had the opportunity to take their expert's deposition which could have been used at trial in accordance with Rule 4:16-1; and the trial judge appropriately balanced the need to manage the processing of the case with plaintiffs' counsel's failure to adequately and timely prepare his case for trial or seek a timely adjournment and did not abuse his discretion in ordering the dismissal with prejudice.
 
REAL ESTATE — CONDOMINIUMS — DAMAGES AND REMEDIES
34-2-7875 Park Development West Condominium Association Inc. v. Hong, App. Div. (per curiam) (4 pp.) Plaintiff obtained a default judgment in an action against defendant, one of its condo owners, for unpaid maintenance fees. Unable to levy on defendant's personal property because defendant had rented the unit to Wang, plaintiff filed a motion in aid of litigant's rights seeking an order adjudging defendant and Wang to be in violation of its rights and seeking to compel Wang to pay his monthly rent to it until its judgment against defendant is satisfied, and requesting that if Wang failed to satisfy the judgment against defendant, an arrest warrant for both defendant and Wang issue. Plaintiff appeals the denial of its motion to find Wang in violation of its rights. The panel affirms, noting that plaintiff's judgment is against defendant, not Wang, that the judge ordered correctly that defendant is in violation of litigant's rights, that an arrest warrant may issue against defendant, and that plaintiff is unable to collect its judgment against defendant from Wang.  
 
CRIMINAL LAW AND PROCEDURE
14-2-7876 In The Matter Of The Application For Expungement Of The Criminal Records Of C.C., App. Div. (per curiam) (9 pp.) Petitioner C.C. appeals the denial of his petition for expungement. The appellate panel finds that because petitioner had multiple convictions, he was not eligible for expungement of his New Jersey conviction under the "early pathway" provisions of N.J.S.A. 2C:52-2(a)(2) and his petition was therefore correctly denied. The trial judge properly found that, because the language of the two enactments mirrored each other and imposed similar penalties, petitioner's Pennsylvania disorderly conduct conviction was the equivalent of a petty disorderly offense under New Jersey law. The trial judge also correctly found that petitioner was not eligible for expungement of his New Jersey conviction under the "young drug offender" provisions of N.J.S.A. 2C:52-5 because he was convicted of possessing a large amount of marijuana with the clear intent to distribute it.
 
FEDERAL COURT CASES
 
ARBITRATION AND MEDIATION
03-7-7877 Newark Bay Cogeneration Partnership, LP v. ETS Power Group, Dist. Ct. (Salas, U.S.D.J.) (28 pp.) Magistrate Judge Waldor issued a Report and Recommendation (“R&R”), recommending that the Court grant Defendant ETS Power Group’s motion to compel arbitration. Plaintiff Newark Bay Cogeneration Partnership, LP filed a timely objection to the R&R. ETS filed its response. Having reviewed the R&R and the submissions by the parties de novo, the Court hereby adopts the R&R in part. In addition to adopting the facts, the procedural history, the summary of the parties’ arguments, the legal standard, and the legal conclusion to compel arbitration, the Court declines to adopt Judge Waldor’s extraneous findings as to the merits of the contract formation and the incorporation of the Terms and Conditions beyond the arbitration provision. [Filed September 28, 2012]
 
BANKRUPTCY
42-6-7878 In re Mary Holder Agency Inc., U. S. Bankruptcy Ct. (Kaplan, U.S.B.J.) (5 pp.) After the debtor filed a Chapter 11 bankruptcy, which was converted to a proceeding under Chapter 7, creditor JPMorgan Chase Bank, N.A., which had entered into a loan agreement and guarantee with the debtor secured by a blanket lien on all of the debtor's assets, filed a motion to establish a super-priority administrative expense claim under 11 U.S.C. sections 503(b) and 507(b). The court denies the motion, finding that Chase has not satisfied its burden to prove its entitlement to a 507(b) priority claim because , inter alia, the court did not direct the debtor to provide adequate protection Chase, Chase has not established that any decline in value was caused by the debtor's post-petition use of the collateral, and Chase is not entitled to assert a 503(b) administrative claim, which is a necessary predicate for entitlement to super-priority status under 507(b), as Chase's claim does not arise from a post-petition transaction with the debtor. [Filed September 24, 2012]
 
CONSTITUTIONAL LAW APPORTIONMENT
10-8-7879 LaVergne v. Bryson, Third Cir. (per curiam) (8 pp.) LaVergne, a New Jersey citizen and registered voter, appeals the District Court order denying his request to convene a three-judge panel under 28 U.S.C. section 2284 and dismissing his complaint alleging that the method of congressional apportionment under 2 U.S.C. section 2a is unconstitutional. The Third Circuit summarily affirms, finding: (1) plaintiff lacks standing because, inter alia, he did not suffer a dilution of his vote, the injury he complained about, and he alleges at most, an institutional injury, not a sufficiently personal injury to establish standing; (2) the claims lack justiciability as the issue of whether a constitutional amendment has been properly ratified is a political question; (3) to the extent his arguments that the section 2a apportionment method violates the non-delegation doctrine and separation of powers present justiciable questions, they fail because Congress simply cannot do its job absent an ability to delegate power and because Congress acted within its authority by delegating the ministerial tasks of implementing the method of equal proportions for redistricting to the Department of Commerce and its employees.
 
CONTRACTS ATTORNEY/CLIENT
11-8-7880 Emmanouil v Roggio, Third Cir. (Greenaway, C.J.) (18 pp.) This matter, which has a long and tortured history, arises from a complex series of business transactions involving the parties, two of which are relevant here: a mortgage loan plaintiffs made to Roggio, on which he allegedly defaulted, and the attempted sale of West Belt Auto, plaintiffs' business, to Roggio which gave rise to an action by Roggio for breach of the contract of sale. Ultimately, a jury returned a verdict in favor of plaintiffs and the District Court granted them attorney fees. Roggio appeals the District Court's rulings on summary judgment, various pretrial motions, and the award of attorney fees. The court affirms the District Court's decisions, finding, inter alia, no abuse of discretion in its refusal to disqualify McElroy, Deutsch, Mulvaney & Carpenter from representing the Emmanouils or in granting the Emmanouils' in limine motion seeking to allow their son, who had previously represented Roggio, to testify where Roggio put his communications with the son in issue and there is no indication that the testimony regarding the mortgage or the sale would breach the attorney-client privilege. The court vacates the award of attorney fees, finding that it should be reduced by 10% since only 90% of the work done related to the recovery under the mortgage note. [Filed September 24, 2012]
 
CORRECTIONS
13-7-7881 Lawrence v. Lanigan, U. S. Dist. Ct. (Simandle, U.S.D.J.) (15 pp.) In this 42 U.S.C. section 1983 action arising out of an incident in which prison officials allegedly fabricated disciplinary charges and falsified reports to justify the charges on which plaintiff was found guilty, the court permits plaintiff's First Amendment retaliation claim, that charges were filed against him because he submitted an administrative remedy request and verbally responded to Administrator Warren's question asking for comments about the request, to proceed against Warren. The court dismisses the remaining federal claims - including that defendants violated plaintiff's due process and Eighth Amendment rights - and defendants. [Filed September 27, 2012]
 
CORRECTIONS JAIL CREDITS
13-7-7882 Gullinese v. Zickefoose, U. S. Dist. Ct. (Bumb, U.S.D.J.) (8 pp.) Petitioner, a currently-incarcerated federal prisoner, challenges the Federal Bureau of Prison's denial of credit for the pretrial period he spent on bond and in home confinement which period, he argues, was effectively equal to being in prison because of the conditions imposed on that confinement. Holding that Reno v. Koray bars the examination of his home confinement petitioner seeks, the panel dismisses the petition. [Filed September 27, 2012]
 
INSURANCE — REINSURANCE
23-7-7883 Munich Reinsurance America, Inc. v. American National Insurance Company, Dist. Ct. (Wolfson, U.S.D.J.) (56 pp.) This case involves retrocessional agreements between Munich Reinsurance America Inc. and American National Insurance Company (“ANICO”). Munich filed a motion for partial summary judgment on its breach of contract and declaratory judgment claims against ANICO and on ANICO’s rescission counterclaim. ANICO filed a cross-motion for summary judgment. The claims and counterclaim relate to ANICO’s refusal to pay certain claims submitted for payment by Munich under the agreements. Munich seeks partial summary judgment: (a) on ANICO’s rescission counterclaim, arguing that ANICO waived its right to rescind and, alternatively, that its rescission counterclaim should be dismissed on the merits; (b) on ANICO’s untimely claim submission defense to Munich’s breach of contract claim, arguing that ANICO waived its defense and for judgment on the merits; (c) that, under the agreements, Munich’s “retention” is calculated on a “ground up” basis; (d) that claims issued by Everest Re (an entity related to the underlying ceding insurer) are covered by the agreements; (e) that Munich’s “roofer” claims are covered by the agreements; and (f) that Munich’s use of bordereaux reporting did not breach the agreements. ANICO seeks summary judgment on its rescission counterclaim and, in the alternative, partial summary judgment on its untimely claim submission defense to payment. The Court grants in part, and denies in part, Munich’s partial motion for summary judgment. ANICO’s cross-motion is denied. [Filed September 28, 2012]
 
JURISDICTION — CONTRACTS
24-7-7884 Mark IV Transportation & Logistics, Inc. v. Lightning Logistics, LLC, Dist. Ct. (Salas, U.S.D.J.) (14 pp.) Plaintiff Mark IV Transportation & Logistics commenced this action against Lightning Logistics alleging claims for book account and breach of contract. The Court granted Plaintiff leave to file an amended complaint to add Traveller Logistics, John O’Riordan, Crosstown Courier, and Scott Evatt as defendants. Plaintiff contends that, as owner of Lightning, Evatt personally guaranteed Lightning’s debts. Plaintiff also contends that Evatt used Lightning as an alter ego and restructured and dissolved Lightning to avoid paying its debts. Defendants Crosstown and Evatt filed a joint motion to dismiss for failure to state a claim and for lack of personal jurisdiction. The Court declines to exercise general jurisdiction over Crosstown based solely on its website. As to specific jurisdiction, Plaintiff alleges that Crosstown is a successor to the interests of Lightning and is thus liable to Plaintiff. There is no evidence that Lightning sold or transferred its assets to Crosstown, thus the Court will not impose successor liability on Crosstown. The Court declines to consider the alter ego argument as it relates to Crosstown because it has no support in the complaint. As to Evatt, none of Plaintiff’s allegations rise to the level that would permit the Court to pierce the corporate veil and find that Evatt and Lightning were alter egos. The Court declines to exercise personal jurisdiction over Evatt. Defendants’ motion to dismiss for lack of personal jurisdiction is granted. [Filed September 28, 2012]
 
LABOR AND EMPLOYMENT DISCRIMINATION
25-8-7885 Byrd v. Merrill Lynch, Third Cir. (Barry, C.J.) (3 pp.) In this action alleging that plaintiff, an African-American male, was terminated because of race and sex in violation of Title VII of the Civil Rights Act and the New Jersey Law Against Discrimination, plaintiff appeals from the District Court's grant of defendant's motion for summary judgment. The Third Circuit affirms, substantially for the reasons expressed below, including that plaintiff's attempts to cast doubt on defendant's articulated legitimate reasons for terminating him were unpersuasive. [October 2, 2012]
 
LABOR AND EMPLOYMENT WHISTLEBLOWER LAW
25-7-7886 Patterson v. Glory Foods, Inc., Dist. Ct. (Wolfson, U.S.D.J.) (21 pp.) Plaintiff, a former employee of Glory Foods, Inc., filed this suit alleging that he was wrongfully terminated for being a “whistleblower” in violation of New Jersey’s Conscientious Employee Protection Act (“CEPA”). Plaintiff alleges that Glory Foods terminated him for reporting an accounting discrepancy relating to a client, which was the result of an illegal kick-back scheme. Defendants move for summary judgment. The Court finds the allegations of wrongdoing on the part of Glory Foods are insufficient to support Plaintiff’s belief that it was involved in a “kick-back” scheme. Plaintiff does not dispute that the accounting discrepancy occurred before his employment, and an Accrual Program was put in place to address the issue and terminated by agreement of the parties. Plaintiff was specifically informed that the issue of the overpayment had been resolved. The Court finds that: (1) Plaintiff was objectively unreasonable in his belief that his employer’s business interactions were unlawful or unethical; (2) Plaintiff’s emails to the President of Glory Foods did not amount to “blowing the whistle” within the definition of the CEPA; and (3) Plaintiff has not established a causal connection between his alleged disclosure and his ultimate termination. Defendants’ motion for summary judgment is granted. [Filed September 28, 2012]
 
PUBLIC ASSISTANCE SOCIAL SECURITY
45-7-7887 Doherty v. Commissioner of Social Security, Dist. Ct. (Pisano, U.S.D.J.) (23 pp.) Plaintiff appeals from the final decision of the Commissioner of the Social Security Administration denying his request for Disability Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”). Plaintiff filed an application for DIB and SSI on November 30, 2006, alleging that he was unable to work as of October 15, 2006 due to depression and lumbar disc disease. The decision included evaluation of Plaintiff’s subjective complaints as well as the medical reports related to Plaintiff’s various conditions. After considering the evidence in the record, the ALJ made the initial determination that Plaintiff last met the insured status requirements of the Social Security Act on March 31, 2007. The ALJ then proceeded to the five-step, sequential evaluation procedure set forth in the Social Security regulations. The ALJ appropriately followed the requisite sequential evaluation and considered the evidence. The Court concludes that the ALJ’s findings are supported by substantial evidence, and affirms the Commissioner’s final decision denying benefits for Plaintiff. [Filed September 28, 2012]
 
 
 

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