Brian Delaney v. Trent S. Dickey and Sills Cummis & Gross, PC (083440)(Essex County & Statewide) (A-30-19; 083440)

 Brian Delaney v. Trent S. Dickey and Sills Cummis & Gross, PC (083440)(Essex County & Statewide) (A-30-19; 083440)

For an arbitration provision in a retainer agreement to be enforceable, an attorney must generally explain to a client the benefits and disadvantages of arbitrating a prospective dispute between the attorney and client. Such an explanation is necessary because, to make an informed decision, the client must have a basic understanding of the fundamental differences between an arbitral forum and a judicial forum in resolving a future fee dispute or malpractice action. See RPC 1.4(c). That information can be conveyed in an oral dialogue or in writing, or by both, depending on how the attorney chooses best to communicate it. The Court refers the issues raised in this opinion to the Advisory Committee on Professional Ethics, which may propose further guidance on the scope of an attorney’s disclosure requirements. The new mandate will apply prospectively, except as to Delaney, who must be allowed to proceed with his malpractice action in the Law Division.

GARDEN STATE INVESTMENT VS. TOWNSHIP OF BRICK, NEW JERSEY AND THE APPROVED REALTY GROUP VS. TOWNSHIP OF BRICK, ET AL. (C-0234-17 and C-0080-18, OCEAN COUNTY AND STATEWIDE) (CONSOLIDATED) (A-0082-1

 GARDEN STATE INVESTMENT VS. TOWNSHIP OF BRICK, NEW JERSEY AND THE APPROVED REALTY GROUP VS. TOWNSHIP OF BRICK, ET AL. (C-0234-17 and C-0080-18, OCEAN COUNTY AND STATEWIDE) (CONSOLIDATED) (A-0082-19T2/A-0093-19T2)

After only physically inspected the properties and examining the assessment records and tax map, plaintiffs purchased tax sale certificates on vacant lots in Brick Township. They paid accruing taxes and bided their time until entitled to commence foreclosure actions. Once their foreclosure actions were underway, plaintiffs finally obtained title searches and learned the properties were encumbered by a conservation easement, which rendered the properties undevelopable. That discovery prompted plaintiffs to commence these actions, seeking rescission of their tax sale certificate purchases and reimbursement of taxes paid. The chancery judge granted summary judgment in favor of Brick Township, and in distinguishing Twp. of Middletown v. Simon, 193 N.J. 228 (2008), the court affirmed because, unlike Middletown's conduct there, Brick Township's tax assessor was as much in the dark about the conservation easement as plaintiffs and, unlike Middletown, the township took no active steps to deprive plaintiffs of the value of their investments.

LISA IPPOLITO VS. TOBIA IPPOLITO, ET AL. (FM-14-0147-13, MORRIS COUNTY AND STATEWIDE) (A-3619-19T1)

 LISA IPPOLITO VS. TOBIA IPPOLITO, ET AL. (FM-14-0147-13, MORRIS COUNTY AND STATEWIDE) (A-3619-19T1)

After disposition of a lengthy and hotly-contested matrimonial action, a dispute arose about the lien of one of defendant's former attorneys and whether it required payment of the attorney's fees from an escrow account holding the net proceeds of a sale of marital property. With one minor exception, the trial judge ruled against the attorney.

The court recognized that N.J.S.A. 2A:13-5 permits the attachment of an attorney's lien, as relevant here, only to an "award" or "judgment" entered in the client's favor. Because the trial judge awarded all marital assets to plaintiff, the lien could not attach to the escrow fund that was part of the award to plaintiff. And, even if it did, the court held that the lien only gave the attorney an opportunity to assert his claim; ultimately, the trial judge was required to ascertain which of the competitors to the fund had the more equitable interest. In this case, plaintiff – having been victimized by defendant's contumacious conduct and unwillingness to honor his support obligations – had the greater equitable right to the fund than defendant's former attorney.

Johnson & Johnson v. Director, Division of Taxation

 Johnson & Johnson v. Director, Division of Taxation (083612)(Statewide) (A-51-19; 083612)

The judgment of the Appellate Division is affirmed substantially for the reasons expressed in Judge Haas’s thoughtful opinion, which rests heavily on the plain language of N.J.S.A. 17:22-6.64. 461 N.J. Super. at 162-64. The Legislature, of course, may amend the statute if it chooses to do so.

KATHLEEN PANNUCCI VS. EDGEWOOD PARK SENIOR HOUSING - PHASE 1, LLC, ET AL. (L-4098-15, MONMOUTH COUNTY AND STATEWIDE) (A-4735-17T3)

 KATHLEEN PANNUCCI VS. EDGEWOOD PARK SENIOR HOUSING - PHASE 1, LLC, ET AL. (L-4098-15, MONMOUTH COUNTY AND STATEWIDE) (A-4735-17T3)

Injured while boarding an elevator, plaintiff relied on res ipsa loquitur to establish her prima facie case against the elevator's owner, manager and servicer. To apply the doctrine, plaintiff had to show: 1) the accident was one that "ordinarily bespeaks negligence"; 2) the defendant exclusively controlled the instrumentality that caused the accident; and 3) the injury did not result from the plaintiff's own voluntary act or neglect. Because plaintiff could not satisfy the third prong, her suit was dismissed on summary judgment. On appeal, she asks the court to follow out-of-state authority and discard the third prong as a matter of law, contending it defeats the purpose of the Comparative Negligence Act, N.J.S.A. 2A:15-5.1 to -5.8. The court declines to do so, and affirms summary judgment, because it is not free to undo settled Supreme Court precedent absent an indication the Court would endorse the change; and the rule regarding plaintiff contribution retains some vitality, notwithstanding adoption of comparative responsibility.

Johnson & Johnson v. Director, Division of Taxation (083612)(Statewide) (A-51-19; 083612)

 Johnson & Johnson v. Director, Division of Taxation (083612)(Statewide) (A-51-19; 083612)

The judgment of the Appellate Division is affirmed substantially for the reasons expressed in Judge Haas’s thoughtful opinion, which rests heavily on the plain language of N.J.S.A. 17:22-6.64. 461 N.J. Super. at 162-64. The Legislature, of course, may amend the statute if it chooses to do so.