Halter v. NJ Dept. of Corrections, A-4117-19

Prison demands prisoner to take a pee test at 9:00. Prison orders placement of prisoner in prehearing confinement at 10:15 AM (indicating disciplinary charges have been filed). That is, the order indicating charges have been filed is 1 hour and 15 minutes after the demand.

Prisoner: They didn't give me the required 2 hours to 'void a sample'.

Hearing officer: There was no evidence they didn't give you 2 hours.

Appellate Division: CAN'T YOU PEOPLE DO MATH?

(Remedy: The prison gets a mulligan. Gee. Thanks.)

St. Louis, LLC v. Nagel Rice, LLC, A-5409-18

From the 'Delaying the Inevitable Second Malpractice Suit to Sue the Third Malpractice Attorneys who Sued the First and Second Malpractice Attorneys who Sued the Trial Attorneys' Department.

The plaintiff was an owner acting as a general contractor constructing a building. The mess started in 1993 when Plaintiff purchased land. The building never got built because the subcontractors allegedly screwed up by puncturing steel pipes with nails*. The trial attorney filed 3 separate construction defect lawsuits. In the first, The trial attorney won a net verdict for $2,250,000. In the second, plaintiff won a net verdict of $400,000 in the second but was found 40% negligent. And in the third, plaintiff won a net $100 after being ordered to reimburse the defendant $100,000 in trial expenses. (The normal way for this to happen when you win at trial is when the defendant filed a pretrial offer of judgment and the verdict was below the offer of judgment's fee-shifting threshold.) A liable defendant's appeal of the first trial was resolved in 2006 in plaintiff's favor.

So plaintiff's trial attorney went 3-0. Great work, right? Nope! Malpractice time!

Plaintiff hired a first malpractice attorney and then, dissatisfied with them, a successor second malpractice attorney to sue the trial attorney. The first malpractice attorney filed 2 suits for 2 of the 3 cases, the $2,250,000 verdict and the $400,000 verdict. The first malpractice attorney did not file the third because the malpractice expert would not provide an affidavit of merit without the trial transcripts for the third trial, and nobody got the malpractice expert the trial transcripts. Plaintiff had switched to the second malpractice attorney by trial time, and the second malpractice attorney dismissed the malpractice suit for the $2,250,000 verdict just before trial, and the remaining $400,000 verdict malpractice suit went to trial in 2015, resulting in a verdict in the trial attorney's favor.

Let's put this all behind us, right? Nope! Malpractice time!

Plaintiff sued the first malpractice attorneys, second malpractice attorneys, and malpractice expert for malpractice. As a result of various motions filed, the case was dismissed in 2017--leading to this 2021 appellate opinion partially restoring the complaints. We're back in business!

But just look at these dates: 1993, 2006, 2015, 2017, 2021. At this rate, plaintiff's third malpractice suit suing plaintiff's attorney in this suit will be going strong long after I'm dead. See, Jarndyce and Jarndyce.

* This writeup includes some details found in St. Louis, LLC v. Final Touch Glass & Mirror, Inc., 386 N.J. Super. 177, 179-85 (App. Div. 2006).

PUBLISHED: State v. Lodzinski

Wherein an equally divided New Jersey Supreme Court affirmed the defendant's conviction for not crying when her son's remains were found, for being a single mother, for his remains (cause of death unknown) being buried in a blanket she owned, and for his remains being found near a location where she once worked.

(The dissent would have held that this was insufficient evidence to sustain a conviction for murder.)

Redenburg v. Merritt, A-0110-20

Ah, condos. Without them, how would we have people outside of families living close enough together to fight?

The plaintiff in this case--a New Jersey lawyer--had a condo neighbor, King-Voisin, who complained to the municipality about the noise of his in-wall speakers, leading to the condominium association receiving a municipal violation. This lead to the condominium association, through its lawyer, Merritt--the defendant in this case--sending the plaintiff a cease and desist order demanding the plaintiff restore the wall.

So the parties resolved the issue like mature adults. Ha, ha! Nope. Plaintiff lawyered up and the parties were off to alternative dispute resolution. (To be fair to the condo association, once you've got a municipal violation, your back is pretty much against the wall.) In the course of that alternative dispute resolution, the parties retained an acoustical engineer as a joint expert to test the sound rating of the plaintiff's speaker system. 

And then Merritt wrote the expert, stating, "In speaking with the two parties, please do not copy/forward [King-Voisin] and [plaintiff] on the same email thread as they have criminal complaints filed against each other for harassment. We’d like to minimize the amount of direct contact between them to avoid a disruption." (Emphasis removed.) He copied the plaintiff's lawyer, but not the plaintiff, on that communication.

Deep foreboding voice: He was trying to avoid a disruption.

But there was no criminal complaint against the plaintiff! Presumably, she just hated his guts without filing anything with the government, like a normal, red-blooded American citizen! (The record is silent about whether he filed a complaint for harassment against her.) Oops! 

So the plaintiff, taking the moral high road, initiated this case, suing Merritt for libel. The trial court dismissed based on the litigation privilege. The plaintiff appealed.

This led to the Appellate Division affirming that communications to a joint expert in the course of alternative dispute resolution are subject to the litigation privilege, and hence not a basis for a libel complaint.

State v. Sepulveda, A-0403-19

From the "They'll Never Recognize Me" department:

Our 4 conspirators in this criminal case decided to kidnap and rob someone in the building where one of the conspirators was a super.

And they purposely had the first victim they kidnapped telephonically call in the building doorman for the doorman to be kidnapped, too.

K.L. v A.L., A-2684-19

Trial judges take note: Post-divorce, if the bipolar and schizophrenic parent (1) becomes noncompliant with their medication, (2) is involuntarily committed, and (3) gets a temporary restraining order granted against them, that constitutes a change in circumstances sufficient to modify custody rights.

Repack v. Akimova, A-3014-19

After judgment of divorce was entered, Plaintiff made an argument to set aside the judgment and enter a judgment of annulment  because "the marriage was never consummated based on newly discovered evidence" (internal quotation remarks omitted).

How do you even discover new evidence that a marriage was never consummated? 'Oh, wait. My bad. I looked in a dictionary?'

State v. Kearstan, A-4094-19

 Drinking? Driving? In an accident?

Don't go to the house of the woman you are divorcing to hide. She's totally going to rat you out.

Son v. Kaya Sushi Restaurant, A-4685-18

From the Pants on Fire department:

The plaintiff appeals their loss of a proof hearing against the non-settling, defaulting defendant ... and loses, with the Appellate Division stating:

Plaintiff appeals from that order arguing reversal is required because, although the judge "seemed to have no problem with recognizing [defendant's] liability under the PLA[,] [t]he problem is that [the judge] then committed a quantum leap by holding that, because plaintiff settled for an adequate sum of money, she should receive nothing from the defaulting defendant." The judge said no such thing, and we affirm substantially for the reasons Judge De La Cruz set forth in her cogent written decision. 

[Underlining added. Quotation marks and brackets in original.]

Negrete v. NJ Dept. of Corrections, A-0089-19

Given the following: 

1. You are a prisoner who is a member of one sect of Islam (hereafter, "the Orangemen"), and 
2. The prison Imam is a member of a different sect (hereafter, "the Irish Nationalists"), and 
3. The prison Imam accepts your challenge to a doctrinal hoedown showdown,

The Appellate Division has held that you can call the Imam "a deviant person" without facing prison discipline for threatening bodily harm.

Mesadieu v. NJ Dept. of Corrections

Another prison discipline reversal. There must be something in the water.

How did the prisoner win? 

The hearing officer didn't legibly fill out the disposition form to summarize the evidence. Then there were 2 versions of the disposition form in the record, one of which amended the charge the prisoner was found guilty of ... by crossing out the original charge after the assistant superintendent signed it.

As the Appellate Division states, "We begin with what we hope is an obvious statement:  we cannot affirm a decision we are unable to read."

Despite this, the DOC gets a mulligan.

In other news, prisons still use floppy disks. AND IF YOU BREAK OFF THE LITTLE METAL BIT OF THOSE FLOPPY DISKS THE PRISON-INDUSTRIAL COMPLEX WILL COME FOR YOUR SOUL.

State v. Stewart, A-1688-19

Person loses all money gambling at casino.

Person tries to rob convenience store. Convenience store owner ignores him because store is frequently robbed. Convenience store owner does not bother calling police at that time because it's a pain in the rear.

Person next tries to rob nearby gas station, gets smashed down by attendant (who is wielding a piece of wood) and locked in the attendant's booth (with that same piece of wood being placed through the handle to wedge the door shut). Attendant gets someone to call the police.

His shift over, convenience store owner sees police lights while driving by the gas station and recognizes defendant, who is still in the booth. Convenience store owner stops and reports the first robbery to the police.

Wagner v. Wall Township, A-1473-19

Wagner and another driver were in a 2 car accident. Both think the other was at fault. 

Police think Wagner was at fault, and ticket him for careless driving in violation of NJSA 39:4-97. Wagner filed a citizen complaint against the other driver. Everyone showed up at municipal court.

At municipal court, the matter was resolved by Wagner pleading guilty to obstructing traffic in violation of NJSA 39:4-67, apparently with no civil reservation. (Obstructing traffic is the 'so good we're not really supposed to offer it in plea bargains anymore. Go away please' charge.)

Everything over? Not quite.

Wagner filed a another 2 citizen complaints. First, he filed charges against the police officers, alleging they were guilty of official misconduct in violation of NJSA 2C:30-2. Second, Wagner filed charges against the passenger in the other driver's car, alleging she had committed theft by deception in violation of NJSA 2C:20-4 by filing an insurance claim with his car insurance. After a transfer of these complaints to another municipal court because of a conflict of interest (this is typical when municipal police are defendants), these were predictably dismissed. 

Wagner then filed a report with the County Prosecutor alleging the police committed misconduct. After investigation by the prosecutor's office and review by internal affairs, this was predictably dismissed.

Everything over? Not quite.

Plaintiff filed the lawsuit that is the subject of this appeal: Plaintiff sued the township, every police officer who had touched or reviewed the file, and the municipal prosecutor. The lawsuit was dismissed by the trial judge, who pointed out that Wagner kind of plead guilty to a charge, which means, in the context of a 'the police done me wrong on the police report' lawsuit, he has no case.

Everything over? Not quite.

Wagner appealed, on the basis that the trial judge mischaracterized his case. 

The Appellate Division opinion goes about as well for him as you can expect.

Excel Pharmacy v. Ortiz, A-2447-19

Excel Pharmacy ("Excel") terminated Ortiz, its pharmacist, effective 1/31/2018. She had, in relevant part, a 2 year noncompete (ending 1/31/2020).

In August of 2018, Excel filed a verified complaint and order to show cause claiming she violated the noncompete by working with its new rival pharmacy Heath Smart located less than a mile away. Ortiz denied this and filed a breach of contract counterclaims for $100,000 to $200,000, representing the value of withheld profit-sharing and the value of a withheld ownership share.

8/27/2018, the parties settled on the record with no money changing hands, but the parties agreeing to a modified noncompete for Ortiz ending 5/1/2019.

In April of 2019 (when the settlement noncompete was about to expire), Excel filed a new order to show cause seeking to void the settlement agreement based on Ortiz's 2018 fraudulent behavior procuring the settlement agreement. Its evidence was a bunch of 2018 documents predating the settlement that it belatedly had discovered.

Ortiz filed a certification providing her own explanation for the documents.

The court, and Appellate Division, declined to void the settlement agreement. Essentially, the Appellate Division stated that Excel couldn't prove fraud by clear and convincing evidence because it couldn't show it relied on her representation that she hadn't violated the noncompete when it settled.

This is interesting because:

1. This was a clever attempt to blow up the settlement.

2. It didn't work.

3. Even though it didn't work, it may have effectively extended the noncompete for Excel (because Ortiz may not have wanted to do any activities that could be used against her if Excel won.)

Hook v. Senyszyn, A-4557-19

The term 'Long running' is judicial speak for 'You are trying our patience. Also, you are ruining our metrics.'

Example judicial usage: 

"Defendant Kelly Senyszyn appeals from a February 25, 2020 order denying her motion to appoint a new arbitrator in this long-running dispute with plaintiffs David Hook and Modern Method Development. We affirm."

[Emphasis added.]

As far as useful takeways go: If (1) you agree to binding arbitration, and then (2) can't agree on an arbitrator so the court has to appoint one, and then (3) the arbitrator refuses to hear your counterclaims because you refuse to pay the arbitrator ... the court doesn't care, mate. You're not getting a new arbitrator.

Dalrymple v. NJ Dept of Corrections, A-1681-19

ALERT! MAN BITES DOG! AND MAN HAS RABIES!

This is not only an administrative reversal, it's a reversal of prison disciplinary charges! I am going to run out of exclamation points!

Someone who had visited a prisoner sent him a letter with drugs under the stamp. Prison officials were not amused. The prisoner stated that he should not be disciplined for someone sending him an unsolicited present, and took a urine test to show he wasn't on drugs. 

Prison officials said, 'Ha ha, people don't just send people drugs, you're guilty of possession.'

Appellate Division reversed, holding the prisoner did not have actual possession of the drugs and there was no evidence that the prisoner knew about the drugs.

So now you know, in prison disciplinary cases, the hill that the Appellate Division is willing to die on (possibly today only).

Saylor v. West NY Bd. of Ed, A-0990-19

This is a reversal of an administrative law decision. (ALERT! MAN BITES DOG!)

Saylor was hired by the Board of Education as a business department secretary. She then was promoted to be the administrative assistant of the superintendent. After some time, the Board of Education got a new superintendent and decided they wanted to fire her.

The problem with this was that Saylor had by now acquired tenure if she was counted as a secretary in both jobs. But if the jobs were different classifications, she had no tenure. So the Board of Education's case depended on their being able to demonstrate, to a preponderance of the evidence, that a secretary and an administrative assistant are different things. Surprisingly, after a hearing, both the ALJ and the Commissioner agreed!

Because 'secretary' and 'administrative assistant' are synonyms, the Appellate Division, as can be expected, had quite a bit of fun with this, leading to this line in their opinion that you, as a trial attorney, never want to see:

Lest this be read as dumping on the trial attorney, remember that he or she convinced both the ALJ and the Commissioner that secretaries and administrative assistants are not the same. That's not easy to do!

State v. Esnes, A-3751-19

This is a case where the main offender remains free.

In an elementary school, someone kept bleeding under the toilet seat for a long period of time. The eventual criminal defendant would not stand for this. He complained to other teachers and even the school nurse, but the problem persisted. Then Defendant, a physical education teacher, decided to catch this Red Ghost, and so installed a camera under the lip of the bathroom sink pointed at the stall to see who was using the bathroom at relevant times.

Those among you with a passing acquaintance of privacy law may see a problem with this approach. When someone other than Defendant found the camera, those problems manifested in the form of criminal charges--and eventually convictions.

The Red Ghost remains at large.

Pro tip: Future vigilantes take note! Bathrooms typically only have one door. Put the camera outside the bathroom! You'll still get fired, but you'll have less criminal exposure.

Graf v. NJ State Parole Board, A-1608-19

The Appellate Division fudged the margin on the first page in a way that will get your brief rejected if you do the same thing.

PUBLISHED: State v. Kanem Williamson

The dying declaration hearsay exception does not just apply when someone is dying, it applies, as the New Jersey Supreme Court cited in State v. Williamson,  when there is a "settled hopeless expectation that death was near at hand." (internal brackets omitted).

In Williamson, the defendant shot someone 4 times, then told his father about it. His father told the cops, so a cop took the defendant's photo to the victim's hospital bed. 

Because the victim was unable to move and had a breathing tube, the officer asked her a series of yes/no questions ending with him showing the photo of the defendant to the victim and her nodding that it depicted the shooter.

Medical personnel had told the victim she could die. (They did not tell she would probably die, just that she could*.) 

The victim survived for another 11 months.

And the New Jersey Supreme Court held that her hospital identification of the defendant was admissible as a dying declaration.

So, just how settled does your settled hopeless expectation of death have to be before the declaration is admissible? Not very.

 

 

* This is the part that the Supreme Court fudged reviewed using the abuse of discretion standard in the NJRE 084(b)(2) analysis for a 'statement under belief of imminent death'.