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In 1983, the New Jersey Supreme Court affirmed a final consent judgment for a settlement agreement between the New Jersey State Bar Association and the New Jersey Association of Realtor Boards. The terms of the settlement provided that real estate brokers and salespersons may prepare contracts to sell or lease real property, so long as a standard form is used that includes a three-day period for attorney review. Plaintiffs Michael Conley, Jr., and Katie M. Maurer (Buyers) made an offer to purchase a condominium from defendant Mona Guerrero (Seller), and, a few days later, Seller signed and executed the contract. Before the three-day attorney-review period expired, Seller s attorney sent Buyers attorney and their realtor notice of disapproval by e-mail and fax, rather than by the methods approved under the 1983 holding and prescribed in the parties' contract (certified mail, telegram, or personal service). Buyers sued for specific performance, claiming the contract was enforceable because Seller s notification of disapproval was sent improperly. At issue before the Supreme Court was whether the attorney-review provision of a standard form real estate contract had to be strictly enforced, thereby nullifying Seller's notice of disapproval and requiring enforcement of the real estate contract. The Court concluded that, because Buyers received actual notice of disapproval within the three-day attorney-review period by a method of communication commonly used in the industry, the notice of disapproval was valid. The Court also exercised its constitutional authority over the practice of law and found that an attorney's notice of disapproval of a real estate contract could be transmitted by fax, e-mail, personal delivery, or overnight mail with proof of delivery. Notice by overnight mail will be effective upon mailing. The attorney-review period within which this notice must be sent remained three business days. View "Conley v. Guerrero" on Justia Law

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At issue in this case was whether a corporation's release of a debt constituted a constructively fraudulent transfer under the Uniform Fraudulent Transfer Act (UFTA). The debt that was released had previously been owed to the corporation by a landscaping business that was a creditor of two other corporations owned by the same shareholder. The other corporations debts to the landscaping business were extinguished in exchange for the release. The trial court concluded that the transfer was constructively fraudulent under N.J.S.A.25:2-27(a) because the corporation relinquished its sole asset without receiving reasonably equivalent value in return. An Appellate Division panel reversed that determination. The panel held that the transfer benefited the debtor corporation's sole shareholder because it extinguished the debts of two other corporations that she owned. The Appellate Division determined that the transfer was therefore made for reasonably equivalent value and that it was not constructively fraudulent under N.J.S.A.25:2-27(a). The New Jersey Supreme Court held that the Appellate Division panel improperly ignored the distinction between the corporation that was the debtor for purposes of N.J.S.A.25:2-27(a) and its shareholder, as well as the distinction between the debtor corporation and the other corporate entities that the shareholder owned. The Court concluded the evidence fully supported the trial court's determination the corporation did not receive reasonably equivalent value in exchange for the disputed transfer. Accordingly, the Appellate Division's judgment was reversed and the case remanded to the panel for its consideration of issues that it did not reach. View "Motorworld, Inc. v. Benkendorf" on Justia Law

Posted in: Bankruptcy

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A grand jury indicted defendant Carl Garrison on several counts of child sexual abuse. The charges stemmed from allegations of abuse against his girlfriend s daughter, Joan. Joan testified that defendant abused her throughout the summer of 2010, when she was eleven years old, both in Alabama and New Jersey. Prior to trial, defendant moved to exclude evidence of events that took place in Alabama as inadmissible other-crimes evidence under N.J.R.E.404(b). The State also presented an expert witness’ testimony who examined Joan and found no evidence of physical abuse. The trial court found that the evidence of what occurred in Alabama was admissible not as other-crimes evidence, but as intrinsic evidence of the charged crimes. The court provided limiting instructions to the jury at the time the evidence was introduced and in the final charge to the jury. The jury subsequently convicted defendant of three counts of first-degree aggravated sexual assault, two counts of second-degree sexual assault, and one count of third-degree endangering the welfare of a child. Defendant received an aggregate sentence of fifty-two years in prison, with an eighty-five percent period of parole ineligibility. Defendant appealed, arguing that evidence of events that allegedly took place in Alabama was improperly admitted. Although not raised below, defendant also contended that the admission of a portion of the expert’s statistics-based testimony was error. The Appellate Division reversed defendant’s convictions and remanded for a new trial, rejecting the State’s contention that the Alabama evidence was intrinsic to the crimes charged and determined that this evidence should have been evaluated under N.J.R.E.404(b). The Appellate Division then concluded that the evidence failed to satisfy Rule404(b) and that its admission was not harmless error. In a footnote, the panel agreed that the expert’s testimony amounted to an improper opinion of Joan s credibility and constituted plain error. The Supreme Court disagreed, finding the Alabama evidence was admissible and given an appropriate limiting instruction. View "New Jersey v. Garrison" on Justia Law

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Before trial, defendant moved to exclude the results of a breath test in conjunction with a traffic stop, after which he was found to have been driving while intoxicated (DWI). His license was suspended. Defendant claimed that he was entitled to additional discovery, namely, more detailed repair records of the Alcotest device and data downloads of certain diagnostic tests. The municipal court judge found probable cause for the arrest and rejected defendant’s discovery arguments. The court found defendant guilty of DWI. The State dismissed the other charges. The court sentenced defendant to a total of $714 in fines and penalties, ordered him to serve twelve hours in the Intoxicated Driver Resource Center, and revoked his driving privileges for seven months, the minimum period for a first offender. Defendant requested, and without objection from the State, the municipal court judge stayed the license suspension for twenty days to allow defendant time to file an appeal. At a trial de novo before the Law Division, defendant again argued that the State failed to provide adequate discovery. The trial court rejected the claim, found defendant guilty, and imposed the same sentence. Defense counsel immediately moved to continue the stay of defendant’s license suspension, which the State opposed. The trial judge granted the request on the condition that defendant file an appeal within ten days. On appeal, defendant renewed his discovery argument. In a published opinion, the Appellate Division reviewed and rejected defendant s position. The Appellate Division also addressed an issue that the parties had not raised: both the municipal court and the Law Division stayed defendant’s license suspension pending appeal without providing any statement of reasons. Defendant filed a petition for review with the Supreme Court that did not challenge the conviction nor the sentence, only questioning the appropriate standards for a stay of judgment in a DWI case. Because defendant had completed his suspension, the standards outlined by the Supreme Court’s opinion did not apply. However, the standards announced by this opinion governed future requests for stay in a license suspension by municipal courts and the Law Division. View "New Jersey v. Robertson" on Justia Law

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Plaintiffs Emelia Jackson and Tahisha Roach purchased used cars from BM Motoring, LLC, and Federal Auto Brokers, Inc., doing business as BM Motor Cars (collectively, BM). As part of the transaction, each plaintiff signed an identical DRA, which required resolution of disputes through an arbitration in accordance with the rules of the AAA before a retired judge or an attorney. Two months later, Jackson filed a demand for arbitration against BM with the AAA, asserting a claim under the New Jersey Consumer Fraud Act (CFA) for treble damages and other relief based on overcharges and misrepresentations by BM. Despite repeated requests by the AAA, BM did not advance the filing fees that the DRA obligated it to pay, or otherwise respond to the claim. The AAA dismissed Jackson’s arbitration claim for non-payment of fees. Six months after her vehicle purchase, Roach filed a complaint in the Superior Court against BM, and similarly, received no response from BM in response to the arbitration demand. Plaintiffs then filed this action against defendants, who moved to dismiss the complaint in favor of arbitration. Defendants contended that they did not contemplate using the AAA as the forum for arbitration, and consistently had not arbitrated customer disputes before the AAA, because of the excessive filing and administrative fees that the AAA charged. In opposition to the motion, plaintiffs asserted that defendants materially breached the DRA by failing to advance filing and arbitration fees, and waived their right to arbitration. Defendants contended that they neither breached the DRA nor waived arbitration because the AAA was not the appropriate arbitral forum. The trial court found that the parties intended to resolve disputes by arbitration. The court ordered the parties to attempt to reinstate plaintiffs’ claims with the AAA; if the AAA refused to administer the claim, plaintiffs could reinstate their complaint. The AAA reinstated the arbitration, and the court dismissed plaintiffs’ complaint with prejudice. The Appellate Division affirmed the dismissal of the complaint, finding that there was a sufficient factual dispute as to the proper forum for arbitration that defendants conduct did not constitute a material breach of the DRA, nor did they voluntarily and intentionally waive their right to enforce the DRA. The Supreme Court reversed the trial court’s judgment, finding defendants’ non-payment of filing and arbitration fees amounted to a material breach of the DRA. Defendants were therefore precluded from enforcing the arbitration provision, and the case proceeded in the courts. View "Roach v. BM Motoring, LLC" on Justia Law

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Defendant was charged under separate indictments for multiple charges involving misconduct with two minors, D.H. and D.M. Defendant was arrested on November 19, 2009, and was confined until sentencing, which took place on August 22, 2012. In total, defendant spent 1007 days in pre-sentence custody. Defendant was sentenced on both indictments on August 22, 2012. For the aggravated sexual assault conviction, the court sentenced defendant to ten years imprisonment subject to an 85 percent parole ineligibility period. For the endangering the welfare of a child conviction, the court sentenced defendant to a concurrent term of three years imprisonment. The court applied 1007 days of jail credit to the sentences imposed under one of the indictments. The jail credits applied to the terms of imprisonment and to defendant's parole ineligibility period. In this appeal, the issue this case presented for the Supreme Court was whether a defendant who was simultaneously sentenced to consecutive sentences on two separate indictments was entitled to the application of jail credit against both indictments. The Court held that a proper application the controlling caselaw entitled defendant to only 1007 total days of jail credit. Nothing warranted the application of double jail credit. "Instead, defendant's sentences should be viewed together and jail credit applied to the front end of the aggregate imprisonment term for both indictments." View "New Jersey v. C.H." on Justia Law

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Although New Jersey prosecutors lodged an interstate detainer with New York officials on August 12, 2011, defendant William Joe was not transferred to New Jersey custody until after he was sentenced for the New York charges. Defendant pleaded guilty to the narcotics charges in New Jersey and sought jail credits for the time he spent in pre-sentence custody in New York. The trial court denied the credits sought, and sentenced defendant to two five-year prison terms subject to a twenty-one-month period of parole ineligibility. The sentences were to be served concurrently to each other and to any sentence defendant was serving outside of New Jersey. In this appeal, the issue this case presented for the Supreme Court's review was whether incarceration outside of New Jersey on out-of-state charges entitled defendant to jail credit. The Court answered that question in the negative. View "New Jersey v. Joe" on Justia Law

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Defendant Glenn Ciripompa was a tenured high school math teacher in the Bound Brook School District. Defendant's behavior came under the scrutiny of the Bound Brook Board of Education (Board) after the Board received copies of student Twitter posts alleging "Mr. C" was electronically transmitting nude photographs. An investigation uncovered defendant's pervasive misuse of his District-issued laptop and iPad, as well as evidence of inappropriate behavior toward female colleagues, often in the presence of students. The results of the investigation spurred the Board to seek defendant's termination from his tenured position and served as the substantive allegations of the two-count tenure complaint against defendant. In this appeal, the issue presented for the Supreme Court's review centered on whether an arbitrator exceeded his authority by applying the standard for proving a hostile-work-environment, sexual-harassment claim in a law against discrimination (LAD) case to a claim of unbecoming conduct in the teacher disciplinary hearing. After review, the Supreme Court found that the arbitrator impermissibly converted the second charge of unbecoming conduct into one of sexual harassment. The arbitrator's review was not consonant with the matter submitted; rather, he imperfectly executed his powers as well as exceeded his authority by failing to decide whether Count II stated a successful claim of unbecoming conduct in support of termination. The arbitrator's award was therefore ruled invalid. View "Bound Brook Bd. of Edu. v. Ciripompa" on Justia Law

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Defendant James Kucinski was arrested and taken to police headquarters for questioning about the bludgeoning death of his brother, John. Defendant was advised of his Miranda rights and he requested an attorney. The officers stopped the interrogation and met with their supervisor. After approximately eighty minutes they returned to the interview room and advised defendant that he was going to be charged with murder. Defendant then asked if he could speak with the officers. He was re-read his Miranda rights, which he waived. Defendant responded to a series of questions about events leading up to the fight and the injuries he sustained. As the interrogation went on, defendant continued to turn to other topics and to evade answering questions directly. Several times throughout the interrogation defendant answered questions with "I don't know." When asked how defendant felt about John's death, he said he would "rather just see a lawyer," and the interrogation ended. Before trial, defendant moved to suppress his statement to police and argued that the officers did not honor his invocation of the right to counsel. The court denied defendant's suppression motion, and the case proceeded to trial. The prosecutor asked one of the officers if defendant spoke in detail about the events on the day John died and if defendant was given an opportunity to explain what happened that day. When defense counsel objected, the trial judge sustained the objection but held that if defendant testified, the prosecutor would be permitted to cross-examine him on inconsistencies between his trial testimony and statements to police. Defendant elected to testify at trial and claimed to have acted in self-defense. On cross-examination, over defense counsel's objection, the prosecutor was permitted to question defendant about details defendant had testified to in his direct examination that contradicted what he said in his post-arrest statement to police. The prosecutor focused on details that defendant testified to but failed to mention to police during his interrogation. After further questioning by the prosecutor, defense counsel moved for a mistrial. The trial court denied the motion but instructed the jury that defendant's right to remain silent should be limited to assessing defendant's credibility and may not be used to make the determination of guilt. Defense counsel did not object. The Appellate Division reversed defendant's conviction and remanded for a new trial, determining that the prosecutor's questions on cross-examination were improper. The panel found that defendant invoked his right to remain silent by telling the police that he did not want to talk about certain subjects and answer certain questions. The panel reasoned that, accordingly, the statements could not be used for any purpose, including impeachment. Further, the Appellate Division found the trial court's instructions to the jury were fatally flawed. The Supreme Court agreed with the Appellate Division and affirmed. View "New Jersey v. Kucinski" on Justia Law

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In July 2003, plaintiff Andrew McCarrell filed a products-liability action alleging that Hoffmann-La Roche, Inc. (Roche) had failed to provide adequate warnings about the risks and side effects associated with taking Accutane. Plaintiff timely filed this products-liability action within New Jersey's statute of limitations, but Alabama's limitations period had expired by the time of the filing. The issue is which state's statute of limitations applied under New Jersey s choice-of-law jurisprudence. Roche moved for summary judgment, citing Alabama's two-year statute of limitations. The trial court denied the motion, finding that the governmental-interest test set forth in "Gantes v. Kason Corp.," (145 N.J.478 (1996)), directed that New Jersey's statute of limitations governed the case. The jury found in favor of McCarrell on the failure-to-warn claim, but the Appellate Division reversed based on evidentiary issues. The Appellate Division approved the trial court's application of New Jersey's statute of limitations to the case, however, and the Court denied Roche's petition for certification. After a new trial, a jury found Roche liable for failure to warn, awarding McCarrell $25,159,530. Roche challenged the verdict on the ground that the governmental-interest test had been supplanted by the most-significant-relationship test of sections 146, 145, and 6 of the Second Restatement of Conflicts of Law and argued that, under this test, Alabama's statute of limitations applied. The trial court denied the challenge as untimely. An appellate panel expressly declined to apply section 142 of the Second Restatement, vacated the jury's verdict and award, dismissed McCarrell's complaint as untimely, and did not reach the remaining issues raised by Roche on appeal. McCarrell's petition for certification was granted. The Supreme Court reversed and reinstated the jury's verdict and award. Analysis under section 142 of the Second Restatement lead to the conclusion that New Jersey's statute of limitations was properly applied to this action. The matter was remanded to the Appellate Division for consideration of unaddressed issues remaining on appeal. View "McCarrell v. Hoffmann-La Roche, Inc." on Justia Law