New Jersey Attorney Law Review Blog

In an important decision that provides guidelines for retiring judges seeking future employment in the legal profession, on September 24, 2008 the New Jersey Supreme Court ordered that a new trial must be conducted because of the appearance of impropriety created by a then soon-to-be retiring Chancery Court trial judge who, before the case had been concluded, began negotiating employment with an attorney appearing before him whose firm represented one of the litigants in the same case. DeNike v. Cupo (A-61-07, September 24, 2008). In so ruling, the New Jersey Supreme Court reversed the decision of the lower court (Appellate Division) which had determined that the trial judge's conduct, although inappropriate, did not influence the outcome of the case because the trial judge already had issued his substantive rulings in several written opinions and that his remaining functions as the presiding judge in this case were "ministerial." The NJ Supreme Court concluded that the...

A bank employee who misappropriates a customer's cash deposit can expose the bank to a claim under the New Jersey Consumer Fraud Act, a NJ appeals court ruled in Lee v. First Union National Bank, et al. , App. Div., Case No.: 09-2-1547. In this case, the plaintiff, an existing customer of First Union National Bank, alleged she paid $2,000 in cash to a bank employee who worked in the bank's brokerage services unit which was supposed to be used to purchase shares of a mutual fund. Instead of depositing these funds into her brokerage account, the plaintiff claimed the bank's employee misappropriated her $2,000 cash tender for his own personal use which resulted in an overdraft in her checking account. The bank covered the shortfall by taking money from plaintiff's checking account and liquidating some of the mutual fund shares. Plaintiff's complaint alleged violation of the Consumer Fraud Act (CFA) and common-law conversion. The trial judge granted summary judgment in ...

Banks beware! In a case of first impression, a New Jersey appeals court held that a bank that pursues criminal charges against an innocent third party whose identify is stolen and used to defraud the bank can be sued civilly for negligence and malicious prosecution. In this particular case, Brunson v. Affinity Federal Credit Union , A-4439-06, the bank employed a fraud and loss prevention specialist (Mr. Wilcox) who happened to be a certified fraud examiner. According to the appellate record, an imposter posing as the plaintiff Brunson opened an Affinity account in Brunson's name using Brunson's social security number and an out-of-state driver's license bearing Brunson's date of birth and a Paterson, NJ address (misspelled with two "t's".) Within days of opening this account, the imposter successfully cashed $9,506 in phony checks drawn against a corporation known as Viva International Group. The bank's fraud and loss prevention specialist Wilcox wa...

In Simmermon v. Dryvit Systems, Inc. (A55-07), the New Jersey Supreme Court was presented with determining whether the full faith and credit clause of the US Constitution requires a New Jersey court to give preclusive effect to a nationwide class action consumer fraud settlement approved by a Tennessee circuit court. (View the video of oral argument before the NJ Suprem Court http://njlegallib.rutgers.edu/supct/args/A_55_07.php ) The New Jersey Supreme Court held that the Tennessee court is the appropriate forum to determine whether Simmermon should be bound by the settlement entered in that court and thus barred from pursuing his own individual case in New Jersey. However, because of tactical gamesmanship employed by the principal defendant in Simmermon's individual lawsuit, the New Jersey Supreme Court held that the defendant will be responsible for Simmermon's attorneys' fees and litigation expenses. In the New Jersey lawsuit, the plaintiff asserted the same types of cl...

Richard A. Pulaski Construction Co., Inc. v. Air Frame Hangars, Inc. (A-40-07, July 1, 2008). The New Jersey Supreme Court leaves open the question of whether New Jersey common law recognizes a prima facie tort claim. The legal definition of "prima facie" is evidence sufficient in law to establish a fact unless rebutted. In this case the New Jersey Supreme Court had to decide whether New Jersey common law provides a remedy for misconduct that did not meet the traditional standards of a tort cause of action (i.e., such as fraud). This was not the first time the Court confronted this issue, for 10 years earlier in Taylor v. Metzger , 152 N.J. 490 (1998), the Court expressly declined to recognize a prima facie tort claim under New Jersey common law. However, in Taylor the Court noted that a leading treatise (Restatement) explained that such a cause of action encompasses the intentional, willful and malicious harms that "fall within the gaps of the law" and have been m...

On June 4, 2008, the New Jersey Supreme Court in Romagnola v. Gillispie, Inc. (A-57-07), held that a litigant who complied with a procedural court rule that was subsequently amended was entitled to enforce the rule as it existed pre-amendment. The plaintiff in this case availed himself of the offer of judgment rule, R. 4:58-2, which allows a litigant to recover his/her counsel fees if the litigant offers to accept a judgment for a specific amount, the defendant rejects the offer, and the litigant prevails at trial. Prior to September 1, 2004, to trigger an award of counsel fees R. 4:58-2 required that the litigant obtain a money judgment for a sum "as least as favorable as the rejected offer." On September 1, 2004, R. 4:58-2 was amended to increase the money judgment requirement to be "an amount that is 120% of the offer or more." In 2002 plaintiff sued the defendants for breach of contract and other related claims. The parties engaged in extensive pretrial discover...

Score a victory for homeowners in New Jersey who have been duped by “white knight” lenders on the eve of sheriff’s foreclosure sale! In a published opinion issued by the New Jersey Appellate Division on May 19, 2008, Nowoleska vs. Steele, et als., Appellate Div. 2008, Docket No.: A-5759-06T15759-06T1, the Court came to the rescue of an elderly lady and her daughter and son-in-law who unwittingly gave up title to their family home in order to avoid a sheriff’s sale thinking they would be able to get the property back. In this case, the Appellate Division was presented with the question of whether to vacate a default judgment entered against defendants that resulted in awarding possession of the family home to a subsequent purchaser who acquired title to the property based upon prior predatory lending practices of predecessors in title. Defendants, including an 83-year old woman named Marjorie Steele, faced ejectment from the house that was occupied as the family home for 43 years. Origi...

A self-professed problem gambler who voluntarily placed himself on the New Jersey Casino Control Commission's lifetime self-exclusion list is not entitled to removal from that list on becoming aware that out-of-state casinos affiliated with New Jersey casinos would also exclude him from their gaming facilities, the Appellate Division ruled on March 20, 2008 in The Matter of the Petition of S.D. for Removal From the Voluntary Self-Exclusion List , A-3427-06T2. In this particular case, on July 26, 2004 the gambler (S.D.) submitted a "self-exclusion questionnaire" for lifetime placement on New Jersey's self-exclusion list. In signing the questionnaire, S.D. acknowledged that he was a problem gambler; that he authorized the New Jersey casino and casino simulcasting facilities to exclude him from all gaming activities; that he read and understood the instructions appearing on the questionnaire; and affixed his initials to to a question explaining that by choosing a lifetim...

In a victory for homeowners, the New Jersey Supreme Court has ruled that where notice of a sheriff's sale was procedurally deficient, the equitable doctrine of laches will not serve to bar relief to the homeowner. U.S. v. Scurry , A-14 September Term 2007. In this case, the homeowner was sued in foreclosure by her lender after falling behind in her mortgage payments. The homeowner subsequently filed Chapter 13 bankruptcy in an effort to save her home, however she also fell behind in her post-petition mortgage payments resulting in the bank obtaining relief from the automatic stay of the bankruptcy case. The bank then returned to the foreclosure court, obtained final judgment and received notice of a sheriff's sale date. Pursuant to NJ Court Rule 4:65-2, the bank was required to provide the homeowner with at least 10 days' prior written notice of the sheriff's sale by registered or certified mail return receipt requested. The bank was unable to prove that it satisfied t...

In a decision rendered on January 15, 2008, the New Jersey Supreme Court held that a tax sale certificate and subsequent foreclosure by the purchaser of a tax sale certificate did not prevent the municipality from obtaining the land, which prior owners had dedicated for public use as a park 78 years ago. However, the township must reimburse the tax sale certificate holder for its expenses plus interest, the Supreme Court ruled. The irony of this case is that the township sold the lot at a municipal tax sale without realizing that the property was previously dedicated for public use. After the sale, the township approached the purchaser on several occasions offering to buy the lot back so that it could be dedicated as a park. The purchaser declined, and thereafter successfully obtained title to the property in a separately filed foreclosure suit, and contracted to sell the property to a construction company for the building of a residence. The township filed a separate lawsuit against...

In a case that merits attention by banks and lawyers practicing debtor and creditors' rights, the Chancery Division in Middlesex County held that upon satisfaction of a final judgment of foreclosure a mortgagor is entitled to receive only a warrant of satisfaction of judgment, not a discharge of the mortgage in the County recording office. Washington Mutual, FA v. Wroblewski , F-1865-05. In this case, the bank sought reconsideration of an order issued by the Chancery Court requiring that it provide a discharge of mortgage to the defendant mortgagor based on the mortgagor's satisfaction/payment of the final judgment of foreclosure. The applicable statute, N.J.S.A. 2A:50-32 provides that when a judgment of foreclosure is satisfied, a warrant of satisfaction shall be entered. The defendants argued that upon satisfaction of a final judgment of foreclosure the lender should no longer have a claim for monies due and the mortgage should therefore be discharged. The bank's counter...

September 12, 2007 In this case, the New Jersey Supreme Court was faced with the difficult question of determining whether a physician is required to inform a patient, who was in the 6th to 8th week of her pregnancy, that an abortion procedure will kill not just potential life, but an actual existing human being. In this case, the plaintiff filed a medical malpractice action claiming that her physician, an obstetrician-gynecologist, performed an abortion without her informed consent. Specifically, the plaintiff alleged in her Complaint that the doctor breached his duty to her by failing to inform her of "the scientific and medical fact [that her six-to-eight-week-old embryo] was a complete, separate, unique, and irreplaceable human being" and that an abortion would result in "killing an existing human being." In finding in favor of the doctor, the New Jersey Supreme Court concluded that there is no common law duty requiring a physician to inform a pregnant patient t...

June 1, 2007. New Jersey Supreme Court Justice Roberto Rivera-Soto conceded that he violated judicial ethics rules by creating an appearance of impropriety in contacting school, police and court authorities in a dispute involving his son, but denied any deliberate misconduct. In a letter to the Advisory Committee on Judicial Conduct, he stated that in order to "prevent any further harm to the Court's reputation" he would waive a formal hearing and stipulate that the charges against him be decided on the basis of the investigatory record and his statement in lieu of formal testimony. "I deeply regret that my actions in defense of my son have raised questions about my integrity, and have created the potential to undermine the public's trust and confidence in the Court," Rivera-Soto remarked, adding he was "profoundly sorry" for his actions and their effect. But Rivera-Soto did not recede his position asserted in his May 18 answer that he sought ...

A New Jersey judicial ethics committee filed a Complaint against New Jersey associate Supreme Court Justice Roberto River-Soto on May 11, 2007 accusing him of violating certain Judicial Canons, and R. 4:15-8(a)(6) which bars conduct that brings the judicial office into disrepute. The Complaint stems from Justice Rivero-Soto's involvement with his son's juvenile delinquency complaint filed in municipal court against another high school football player accused of harassment. Rivera-Soto's son accused the captain of the Haddonfield Memorial High School football team of assaulting him during practice. According to the ethics committee complaint — just the second ethics complaint filed against a state Supreme Court justice in more than three decades — Rivera-Soto made phone calls or wrote letters to team and school officials, the local police chief, two judges and the Camden County prosecutor on behalf of his son. At times, the ethics complaint charged, Rivera-Soto alluded to hi...

Computer users in New Jersey can expect that personal information they give their Internet service providers will be treated as private, a state appellate court decided yesterday in the first such case considered in the state. The court ruled that a computer user whose screen name hid her identity had a "legitimate and substantial" interest in anonymity . As a result, New Jersey and several other states will give greater privacy rights to computer users than do most federal courts, and law-enforcement officers in New Jersey will need to obtain valid subpoenas or search warrants to obtain the information. The appellate panel's unanimous ruling stemmed from the indictment of Shirley Reid, who was suspected of breaking into the computer system of her employer in Cape May County in 2004 and changing its shipping address and password for suppliers. The decision upholds a lower court ruling suppressing information from Reid's Internet service provider that linked her with a...

A trial court judge's actions in interrupting a litigant's testimony during cross-examination to warn him about possible criminal implications if his testimony revealed tax fraud was improper, the Appellate Division held in All Modes Transport Inc. v. Hecksteden, A-0361-05T5, December 27, 2006 . Combined with this warning, the trial court suggested the parties settle the case. After this exchange by the trial judge, the defendants agreed to settle the case for a substantial sum of money. Shortly thereafter, the defendants filed a motion requesting the trial court to vacate the settlement arguing that they were coerced into the settlement by the trial judge's threat of criminal prosecution. The trial court denied defendants' motion, concluding that the settlement agreement was not procured by coercion. The trial court was of the opinion that it had a duty to warn to warn the defendant that continuation of his testimony on cross-examination could result in self-inc...

On December 21, 2006 New Jersey became the third U.S. state to provide equal rights for same-sex couples in committed relationships known as civil unions. Gov. Jon Corzine, signing the Civil Unions bill into law, said the state has an obligation to give such partnerships the same legal rights as married couples. "We must recognize that many gay and lesbian couples in New Jersey are in committed relationships, and deserve the same benefits and rights as every other family in the state," Corzine said in a statement. The bill was passed by lawmakers last week following a ruling by the state Supreme Court affirming equal rights for same-sex couples, but deferring to the legislature a decision on whether to call their relationships "marriage." Lawmakers opted to call them "civil unions." Massachusetts is the only U.S. state to have legalized same-sex marriage, which supporters say is necessary to establish true equality for homosexual partnerships. Connecticut ...

On October 25, 2006, the New Jersey Supreme Court ruled in a 4-3 decision that New Jersey must extend all the rights of marriage to gay couples. But the Supreme Court justices left it to the New Jersey legislature to decide whether to provide those rights in the form of marriages, civil unions or something else — and gave the Legislature 180 days to reach a decision. The New Jersey Supreme Court ruling is similar to the 1999 high-court ruling in Vermont that led that state to create civil unions, which confer all of the rights and benefits available to married couples under state law. "Although we cannot find that a fundamental right to same-sex marriage exists in this state, the unequal dispensation of rights and benefits to committed same-sex partners can no longer be tolerated under our state Constitution," New Jersey Supreme Court Justice Barry T. Albin wrote for New Jersey's four-member majority. The court said the Legislature "must either amend the marriage sta...

Plemmons v. Blue Chip Insurance Services, A-0414-04T3, Appellate Division (August 21, 2006). An insurance broker is excluded from liability under the New Jersey Consumer Fraud Act for the performance of brokerage services, the Appellate Division held in a published opinion approved for publication on August 21, 2006. In this particular case, the plaintiff entered into a contract to purchase residential property in New Jersey, which he planned to convert to commercial use. In anticipation of a closing, plaintiff paid a $361 premium to obtain homeowner's insurance coverage from defendant Blue Chip Insurance, and Blue Chip issued a policy declaration sheet providing for homeowner's coverage. The policy was ultimtely voided because of a delay in the closing date, however Blue Chip never refunded plaintiff his $361 premium. A new closing date was arranged,and prior thereto an insurance representative with Blue Chip advised plaintiff's representative that plaintiff needed ...

A New Jersey judge facing a Supreme Court hearing on charges he made inappropriate comments to jurors and about other judges is asking that two members of the New Jersey Supreme Court recuse themselves due to alleged bias. Superior Court Judge Wilbur Mathesius filed a motion on Aug. 23, 2006 urging that Chief Justice Deborah Poritz and Justice Jaynee LaVecchia not participate in his disciplinary case because they have criticized him in the past. Mathesius is challenging the Advisory Committee on Judicial Conduct's findings that he committed ethics violations the committee said warranted a six-month suspension, half without pay. At issue is Mathesius' conduct in Mercer County's Criminal Part in 2004 and 2005 and conduct resulting in two admonitions while he was a municipal court judge. ACJC Chairman Alan Handler found that ethics prosecutors proved by clear and convincing evidence allegations in a four-count complaint charging that Mathesius: • berated a jury for acquitting ...