Sunday, October 29, 2017
SETH POLLACK, ET AL. VS. QUICK QUALITY RESTAURANTS, INC.
In this appeal, the panel considered whether a tenant, exercising under its lease a contracted right of first refusal to adopt terms of a purchase contract for premises, is obligated to pay a commission to a broker who secured the prospective buyer for the landlord/seller.
The broker secured a prospective purchaser, who orally represented it would enter into a written commission agreement, separate and apart from the purchase contract, to pay the broker 1.5% of the purchase price. When the tenant exercised its option to purchase the premises, no commission agreement was included in the sales contract.
Because there was no contractual relationship, either express or implied, between the broker and the tenant, nor any other basis to impose an obligation to pay the commission, the panel affirmed the trial court's grant of summary judgment for the tenant. The panel also affirmed the dismissal of the tenant's counterclaim against the broker.
Monday, October 23, 2017
DCPP VS. P.D. AND A.W.
IN THE MATTER OF THE GUARDIANSHIP OF S.D.
In this appeal, we hold: (1) the Division of Child Protection and Permanency (Division) established all of the criteria for termination of parental rights in N.J.A.C. 30:4C-15.1(a), where defendant father essentially abandoned the child to the care of others, was deported and failed to maintain contact with the child for several years, the child formed a bond with her foster parent, and the Division's expert testified that the child would suffer severe and enduring harm if removed from the foster home, which defendant could not ameliorate; (2) the Vienna Convention of Consular Relations, April 23, 1963, 21 U.S.T. 77, did not require consular notice in this matter or the prior child protection proceedings because the child was a citizen of the United States; and (3) defendant father failed to establish that he was denied the effective assistance of counsel in the guardianship action.
ROBERT MELLET ET AL. VS. AQUASID, LLC ET AL. A-4438-15T1 (NEWLY PUBLISHED OPINION FOR OCT. 16, 2017)
ROBERT MELLET ET AL. VS. AQUASID, LLC ET AL.
A-4438-15T1 (NEWLY PUBLISHED OPINION FOR OCT. 16, 2017)
Plaintiffs entered into health club contracts, which charged various forms of fees including late fees, collection administrative fees, in addition to dues. Plaintiffs filed suit asserting the form of their membership contracts and the fees defendant charged violated RISA, the Consumer Fraud Act (CFA), the Health Club Services Act (HCSA), and the Truth in Consumer Contract, Warranty, and Notice Act (TCCWNA). Plaintiffs sought class certification for all persons who entered into a membership agreement with defendant. Plaintiffs were denied class
certification and defendant was granted summary judgment dismissing plaintiffs' complaint.
The Retail Installment Service Act (RISA), N.J.S.A. 17:16C-1(b) to -50, is a remedial act regulating charges associated with contracts entered into in New Jersey between a retail seller and a retail buyer evidencing an agreement to pay the retail purchase price of goods or services, which are primarily for personal, family or household purposes, or any part thereof, in two or more installments over a period of time. RISA applies to security agreements, chattel mortgages, conditional sales contracts, or other similar instruments, and any contract for the bailment or leasing of goods. RISA is to be construed liberally in favor of the consumer. Notwithstanding, the panel concluded health club contracts are not covered by RISA because they do not fall within the definition of "other similar instruments" of the sort contemplated by the statute.
L.R., ETC. VS. CAMDEN CITY PUBLIC SCHOOL DISTRICT, ET AL./ L.R., ETC. VS. PARSIPPANY-TROY HILLS TOWNSHIP PUBLIC SCHOOL DISTRICT, ET AL./ THE INNISFREE FOUNDATION VS. HILLSBOROUGH TOWNSHIP BOARD OF EDUCATION, ET AL./ THE INNISFREE FOUNDATION VS. CHERRY HILL BOARD OF EDUCATION, ET AL. A-3972-14T4/
L.R., ETC. VS. CAMDEN CITY PUBLIC SCHOOL DISTRICT, ET AL./ L.R., ETC. VS. PARSIPPANY-TROY HILLS TOWNSHIP PUBLIC SCHOOL DISTRICT, ET AL./ THE INNISFREE FOUNDATION VS. HILLSBOROUGH TOWNSHIP BOARD OF EDUCATION, ET AL./ THE INNISFREE FOUNDATION VS. CHERRY HILL BOARD OF EDUCATION, ET AL.
These four related appeals from three vicinages concern efforts by plaintiffs (a nonprofit advocacy organization for disabled students, and the mother of a disabled student in the Camden City Public Schools) to obtain from several school districts copies of settlement agreements and records reflecting the provision of special services to other qualified students. The respective school districts resisted disclosure, citing statutory and regulatory provisions that generally safeguard the privacy of students in their records. The four cases generated conflicting decisions in the Law Division.
Plaintiffs' requests for records raise several novel issues of access under the Open Public Records Act ("OPRA"), N.J.S.A. 47:1A-1 to -13, the New Jersey Pupil Records Act ("NJPRA"), N.J.S.A. 18A:36-19, and the Federal Family Educational Rights and Privacy Act of 1974 ("FERPA"), 20 U.S.C. § 1232g. The requests also implicate administrative regulations adopted under both the NJPRA and FERPA.
The panel holds that the respective plaintiffs in the Hillsborough, Parsippany-Troy Hills, and Cherry Hill cases are entitled to appropriately-redacted copies of the requested records, provided that on remand those plaintiffs either: (1) establish they have the status of "bona fide researchers" within the intended scope of N.J.A.C. 6A:32-7.5(e)(16); or (2) obtain from the Law Division a court order authorizing such access pursuant to N.J.A.C. 6A:32-7.5(e)(15). The school districts shall not turn over the redacted records until they first provide reasonable advance notice to the affected student's parents or guardians.
We remand the Camden City case for further proceedings with respect to requested documents that also could refer to other students, but affirm the trial court's grant of access concerning records that exclusively mention the requestor's child.
Sunday, October 15, 2017
AIR MASTER & COOLING, INC. VS. SELECTIVE INSURANCE COMPANY OF AMERICA, ET AL.
In this declaratory judgment action, the court addresses legal issues of property damage coverage under a Commercial General Liability ("CGL") insurance policy. The coverage issues stem from lawsuits brought by a condominium association and unit owners to remediate construction defects within a residential building. The insured, an HVAC subcontractor, worked on the roof and elsewhere in the building. The defects concern the progressive infiltration of water within the building.
After the contractor was named as a third-party defendant in the underlying construction defect cases, it sought a defense and indemnity from the insurers that had issued CGL policies to it over successive policy periods. The trial court granted summary judgment to Selective, one of those insurers, finding that the property damage had already manifested before its policy period commenced.
In reversing summary judgment and remanding for further development of the record, the panel held: (1) a "continuous trigger" theory may be applied to third-party liability claims involving progressive damage to property caused by an insured's allegedly defective construction work; and (2) the "last pull" of that trigger occurs when the essential nature and scope of the property damage first becomes known, or when one would have sufficient reason to know of it.
The panel rejected the subcontractor's novel argument that the last pull of the trigger does not occur until there is proof that "attributes" the property damage to faulty conduct by the insured.
Sunday, October 8, 2017
Debra Dugan v. TGI Friday’s, Inc. (A-92-15; 077567)
Ernest Bozzi v. OSI Restaurant Partners, LLC
Because CFA class action jurisprudence rejects “price-inflation” theories, such as the theory presented by the Dugan plaintiffs, as incompatible with the CFA’s terms, the Dugan plaintiffs have not established predominance with respect to their CFA claims. Bozzi’s allegations focus primarily on a specific pricing practice. If the Bozzi class is redefined to include only customers who make that specific CFA claim, and the claim is limited accordingly, plaintiff Bozzi has met the requirements of Rule 4:32-1 and may attempt to prove that claim on behalf of the class. As to the TCCWNA claims in both appeals, plaintiffs have failed to satisfy the predominance requirement of Rule 4:32-1.