In Construing Wills and Trusts, “Plain Meaning” of Language Gives Way to “Testator’s Probable Intent”

In re Trust of Violet Nelson, ___ N.J. Super. ___ (App. Div. 2018).  As Judge Ostrer stated in his opinion in this case today, the issue was “whether a trial court may look beyond the apparently plain language of a trust that benefitted the settlor’s ‘grandchildren’ to determine whether the settlor intended to benefit only […]

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Volunteer Firefighter seeks Worker’s Compensation

The New Jersey Workers' Compensation act has a pretty liberal definition of who qualifies as an employee. To determine whether an individual is part of an employee-employers relationship the courts have devised two 'tests.' There is the 'control test' which asks what the nature of the relationship between the business and individual is. If the business has the right to supervise and control the individuals actions and how those actions should be completed, the courts would be hard pressed not to find that individual an employee. In the 'relative nature of the work' test the court will look at the relationship between employer and individual to determine if the individual relies on the earnings to live, and if the individual's duties are an essential part of the employers business.

Four More Criminal Cases for the Supreme Court

The Supreme Court announced this afternoon that it has granted certification in four new cases, all criminal matters.  Here is the summary. In State v. Nelson, the question presented, as phrased by the Supreme Court Clerk’s Office, is “Under the circumstances presented, did the police have a reasonable articulable suspicion to stop defendant’s car; and […]

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Judge Fuentes Offers Appellate Practice Tips

Judge Jose Fuentes has often been willing to share his views about what is and is not good appellate practice.  Examples of that were discussed here and here.  At last night’s NJSBA Appellate Practice Committee meeting, Judge Fuentes took questions from committee members and offered a number of practice pointers.  Some have been stated before, […]

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Basics of Binding Contracts

In virtually every industry, contracts are the instruments which govern the relationship between two entities that wish to conduct business. As such, it is helpful to know the basics as to what constitutes a binding contract to provide materials or services.

In general, a contract is a legally enforceable agreement to do or not to do something. In order for a contract to exist, there must be a meeting of the minds between the parties to agree to do or not do something in the form of an offer by one party, consideration provided to one party to either do something or not do something, the existence of certain terms, and finally, an acceptance of the terms.

In order for there to be a meeting of the minds, both parties must understand and agree what they have chosen to do and not to do. An acceptance of an offer must be clear and unambiguous. Consideration can be a benefit for one party or loss of the benefit for another. Its actual value in monetary terms is not important. Finally, for the contract to be enforceable there must be a certainty to its terms.

Although Contracts are typically in writing, there is no requirement that a Contract be in writing. At times, the Contract can be undated, and even unsigned. In fact, it can be entirely oral, partly oral, or partly in writing. In order for a Contract to be enforceable, however, it must meet the foregoing items set forth above. Finally, a Contract can be made of several different documents if it is intended that the documents be incorporated into one binding agreement.

A Contract may be express, implied, or a mixture of the two. An express Contract is one by which the parties have shown their agreement by words. Express Contracts can be Contracts which are oral, or Contracts which have been place into writing. On the other hand, an implied Contract is one in which the parties share their agreement by conduct. For example, if somebody provides materials or services to another under circumstances that do not support that they were donated or free, the law implies an obligation to pay for the reasonable value for the materials or services. As such, an implied Contract is an agreement inferred from the parties’ conduct or the circumstances surrounding their relationship.

The aforementioned examples are merely a short summary as to what constitutes a binding Contract. The case law and the decisions of the Court are wide spread as to whether a valid agreement has been reached, whether it be oral, or writing. The main tenements with regard to a Contract, however, involve a meeting of the minds, an offer and acceptance, consideration, and a certainty of terms. Nonetheless, when a party is entering into a Contract or has any questions with concerning same, it is suggested they consult with an attorney who is well versed in this area of the law. Attorneys at Stark & Stark are well versed in this area and would be happy to assist any party in determining whether or not they have a binding Contract.

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When It’s All About the Dicta

City Select Auto Sales, Inc. v. David Randall Associates, Inc., ___ F.3d ___ (3d Cir. 2018).  This Telephone Consumer Protection Act (“TCPA”) case, involving unwanted faxes, was tried to a jury as to the individual defendant, the former president and co-owner of the corporate defendant.  The jury returned a defense verdict.  Plaintiff appealed, complaining of […]

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Deference to Division of Child Protection and Permanency Findings Not Absolute

Although the typical matrimonial practitioner may not undertake Division of Child Protection and Permanency (“Division”) on a regular basis, we oftentimes face situations wherein a trial court, in a related matrimonial proceedings, determines Division investigations to be relevant to determinations of custody and parenting time before it. The recent case of DCP&P v. R.R., — N.J. Super. — (Mar. 19, 2018)(slip. Op. at 13), is an interesting new opinion that offers some guidance as to whether these types of investigations may be rendered reliable and when they may be challenged.

There, the subject father appealed from a finding of the Division following an investigation initiated at the request of a Family Part judge in a related matrimonial proceeding, that allegations he abused or neglected his daughter, E.R., were “not established.” In assessing whether to accord deference to such finding, the Appellate Division noted several omissions in the Division’s screening summary, including that the court’s concerns were inaccurately conveyed to the Division; the screening summary inaccurately identified the child involved; and, inaccurate details were recorded.

The Appellate Division ultimately concluded that the Division’s finding was “arbitrary and unreasonable, because the Division failed to consider essential documents and relevant facts,” including failing to obtain and review submissions in the matrimonial matter; or,  any testimony presented at the hearing on the return date. In so finding, the Court stated:

Although the record does not include these documents, it was incumbent upon the Division in this case to consider them as part of a reliable investigation…We recognize that the Division’s regulation governing “requirements for an investigation,” N.J.A.C. 3A:10-3.1, does not require review of relevant court documents. See also N.J.A.C. 3A:10-2.4 (evidence needed to support a finding). However, we cannot have confidence in an investigation – nor are we obliged to defer to the resulting finding – where the Division overlooked such relevant information under the circumstances of this case. Cf. In re Proposed Quest Acad. Charter Sch. of Montclair Founders Grp., 216 N.J. 370, 386 (2013) (“failure to consider all evidence in a record would perforce lead to arbitrary decision making” and a “decision based on a complete misperception of the facts . . . would render the agency’s conclusion unreasonable”); see also Bailey v. Bd. of Review, 339 N.J. Super. 29, 33 (App. Div. 2001) (stating that an appellate court’s deference to an agency decision “is premised on our confidence that there has been a careful consideration of the facts in issue”).

Where to use this type of case: If a trial court determines a Division investigation to be of import to its underlying findings as to custody and parenting time without examining the quality of the investigation done, particularly where the Division’s finding lacks fair support in the investigatory record that the Division compiled.

_________________________________________________________________________________________________________________________________________

Eliana T. Baer is a contributor to the New Jersey Family Legal Blog and a member of the Family Law Practice Group of Fox Rothschild LLP. Eliana practices in Fox Rothschild’s Princeton, New Jersey office and focuses her state-wide practice on representing clients on issues relating to divorce, equitable distribution, support, custody, adoption, domestic violence, premarital agreements and Appellate Practice. You can reach Eliana at (609) 895-3344, or etbaer@foxrothschild.com.

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Domestic Abuse and Restraining Orders: What You Need to Know

Domestic abuse is an unfortunate reality of our everyday world. While it's kept mostly in the shadows, many of us have known or know of someone who has been in an abusive relationship. Most readers will also be aware of someone who stayed far too long in one of these relationships because of societal pressure or for fear of retribution.

Revised Emergent Application Procedures in the Appellate Division

The Appellate Division has issued updated guidelines for the treatment of emergent applications.  Those guidelines, available here, update its August 26, 2015 guidelines, which were discussed here. The updates are essentially in two areas, since most of the guidelines have remained the same.  First, the updated version provides a new telephone number for those seeking […]

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The Appellate Division and the Weather for March 21 and 22

The Appellate Division has announced that in light of yet another Nor’easter that will hit New Jersey, oral arguments scheduled for tomorrow, March 21, are postponed, and oral argument scheduled for Thursday, March 22, will be heard by telephone.

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Teen Fashion Retailer Claire’s Files for Chapter 11 Protection

Today, Claire’s Stores, Inc., along with seven affiliates and subsidiaries filed for Chapter 11 bankruptcy protection in the Delaware (Case No. 18-10584). Claire’s is a well-known specialty retailer of teen and young women jewelry, accessories, and beauty products, as well as ear piercings at local malls, based in Cook County, Illinois.

Back in January 2018, I included them on my list of Retailers to Watch for a Bankruptcy Filing in 2018.

According to Court pleadings, the company negotiated a restructuring support agreement and plan term sheet with an ad hoc group of its first lien noteholders and is seeking approval of up to $135 million in DIP financing.

The company lists 92 stores to close, on top of the 100 that it closed last year. Still, Claire’s indicates that it intends to operate the remaining 1,600 Claire’s and Icing brand stores through a restructuring.

Many landlords were not paid March rents; a tactic that debtors like Claire’s used to avoid paying rent during the early stages of a bankruptcy proceeding. Under the Bankruptcy Code, the retailer would have to pay April rent to stores it is operating.

If you are a landlord with a Claire’s or Icing store, it is important to know your rights, now. Stark & Stark’s Shopping Center & Retail Development Group can help. Our bankruptcy attorneys regularly represent landlords throughout the country, including recently in the District of Delaware, Eastern District of Missouri, District of New Jersey, Southern District of New York, District of Minnesota and Eastern District of Pennsylvania on a variety of issues. Most recently, our Shopping Center Group has represented landlords and trade creditors in the Charming Charlie, Toys R Us, Macaroni Grille, Joe’s Crab Shack, Payless, Eastern Outfitters (EMS Part 2), EMS, Golfsmith, RadioShack, General Wireless (RadioShack Part 2), Gander Mountain, and A&P, Chapter 11 bankruptcy cases.

For more information on how Stark & Stark can assist you, please contact Thomas Onder, Shareholder at (609) 219-7458 or tonder@stark-stark.com. Mr. Onder writes regularly on commercial real estate issues and is an active member of ICSC and Chair of the ICSC PA/NJ/DE Conference and Deal Making Show for 2018 in Philadelphia this September.

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A Reminder About the Importance of the Appellate Appendix

White Glove Hospitality, LLC v. Stockton University, 2018 WL _____ (App. Div. March 16, 2018).  Many seminars and articles about appellate practice focus on tips for writing better briefs or making more compelling oral arguments.  Preparing a proper appendix, a facially less interesting subject, rarely gets addressed in any detail.  Perhaps as a result of […]

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4 Critical Aspects of Family Law

If you’re not sure whether or not you should file for divorce, you should contact our team of family law, criminal and DUI lawyers serving Bridgewater, NJ, and beyond. We can provide you with legal advice and make sure you’re safe from inappropriate behavior such as predatory practices from the person you are divorcing or their lawyers. Don’t wait until it’s too late to seek assistance.

The Supreme Court Takes Up a Firefighter’s Claim for Temporary Disability Benefits

The Supreme Court announced that it has granted review in Kocanowski v. Bridgewater Tp.  The question presented, as phrased by the Supreme Court Clerk’s Office, is “Is claimant, a volunteer firefighter, entitled to temporary disability payments for injuries that occurred when she was unemployed and therefore not earning a wage?”  The Appellate Division, in an […]

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State Agency’s “Contumacious” Discovery Failures Over Many Years Called for Dismissal of Agency’s License Suspension Proceeding

New Jersey Department of Children & Families v. E.L., ___ N.J. Super. ___ (App. Div. 2018).  Courts often give public entity parties more leeway in complying with rules, court orders, and the like than private parties are given.  Sometimes Court Rules themselves give preference to public agencies, as is so, for example, of Rule 2:9-6(b), […]

The post State Agency’s “Contumacious” Discovery Failures Over Many Years Called for Dismissal of Agency’s License Suspension Proceeding appeared first on Appellate Law NJ Blog.

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The New Jersey Arbitration Act Does Not Require That Arbitration Proceedings Be Conducted in Person

State Farm Guaranty Ins. Co. v. Hereford Ins. Co., ___ N.J. Super. ___ (App. Div. 2018).  Following an auto accident, the two insurance company parties to this appeal had a dispute about the reimbursement of personal injury protection (“PIP”) benefits.  State Farm had paid PIP benefits to its insured and then sued Hereford for reimbursement.  […]

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The Supreme Court Adds Two More Criminal Appeals

The Supreme Court announced two more criminal cases that have been added to its calendar.  One is there by virtue of a dissent in the Appellate Division, while the Court granted certification in the other matter. In State v. Vasco, the question presented, as phrased by the Supreme Court Clerk’s Office, is “Under the circumstances […]

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Man Seeks to Have Charges Overturned Because the Law Doesn’t Factor in Alcoholism

In a news cycle that saw a bride arrested for a DWI on the way to the wedding. A story out of Texas may be even higher on the strange drinking-and-driving crazy story scale due to it's sheer audacity.

Challenging a Previously Concealed Will

In general, the time to contest a Last Will and Testament is very short. An in-state resident who is aware of the notice of probate will have four months to challenge a Will from the time it is submitted to probate. On the other hand, an out of state resident would have six months to challenge a Last Will and Testament once it is admitted to probate.

Recently, the Appellate Division determined whether a person could contest a Last Will and Testament which had been concealed by the Defendant for over 8 years. In this matter, the Court addressed the Court Rule which requires that a Will contest be commenced in the abbreviated time period set forth above.

In ruling in favor of Plaintiffs, the Court explained that Defendant’s argument that the challenge to the Will was time barred lacked merit. The fact that Defendant herself knowingly concealed the Will from the other parties who filed the lawsuit resulted in the Statute of Limitations being tolled on behalf of Plaintiffs until such time as the Last Will and Testament was discovered.

The Court found that Plaintiffs’ failure to bring the action within four to six months was not barred due to the willful concealment of the Last Will and Testament by Defendants.

As such, Defendant’s attempt to conceal the Last Will and Testament, and thereafter, to admit it to probate after the statutory period was unsuccessful.

The Plaintiffs challenged the Last Will and Testament and were successful in overturning it due to numerous factors. Most importantly, however, is the Court’s decision that it will toll the Statute of Limitations to file an action to contest a Will if there is willful concealment by a party who benefits by the Will, or the Executor of the Estate.

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The Latest Grants of Supreme Court Review: Life Insurance (Another Certified Question), Unemployment Compensation, Parental Rights, and Parole Ineligibility

The Supreme Court announced four more cases that will come before it.  The subject matters, and the paths that the cases took to reach the Court, are quite varied. Sun Life Assurance Co. of Canada v. Wells Fargo Bank, N.A. is a matter in which the Court agreed to address questions certified to it by […]

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A Medical Malpractice Case Headed for the Supreme Court?

T.L. v. Goldberg, ___ N.J. Super. ___ (App. Div. 2018).  The Appellate Division split 2-1 in this medical malpractice case.  The issue was whether the defendant doctor’s unexpected change in his sworn testimony, from an interrogatory answer that stated that he would not rely on expert evidence other than that offered by plaintiffs and analogous […]

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Allocation Among Multiple Defendants of Attorneys’ Fees Under Fee-Shifting Statutes

Empower our Neighborhoods v. Guadagno, ___ N.J. Super. ___ (App. Div. 2018).  This was an election case under the federal and New Jersey civil rights acts, both of which provide attorneys’ fee-shifting in favor of a prevailing plaintiff.  At the trial level, Judge Mary Jacobson observed that the lawsuit brought by plaintiff, an advocacy group, […]

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Some Tips on the Appellate Rules from Judge Messano

State of New Jersey in the Interest of N.P., ___ N.J. Super. ___ (App. Div. 2018).  This decision by Judge Messano addresses four appeals involving seven different juveniles. The broad issue presented was “whether a juvenile complaint charging a crime or repetitive disorderly persons offense may be diverted without the prosecutor’s consent.”  Judge Messano carefully […]

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Another Expedited Criminal Appeal for the Supreme Court

The Supreme Court announced today that it has granted review in State v. Hyppolite.  The question presented, as phrased by the Supreme Court Clerk’s Office, is “Did the State withhold exculpatory evidence from defendant at the time of the detention hearing, and, if so, what is the appropriate remedy under the circumstances where defendant since […]

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Attorney Failure to Take Any Action Regarding Affidavit of Merit is Not “Extraordinary Circumstance” That Defeats Dismissal With Prejudice

Estate of Yearby v. Middlesex County, ___ N.J. Super. ___ (App. Div. 2018).  Today’s snowstorm offered the opportunity to circle back, belatedly, to this opinion by Judge Fuentes, which was issued on February 27. Plaintiffs’ decedent, who was allegedly mentally ill, was arrested for assault and resisting arrest.  Placed in the Middlesex County Adult Correctional […]

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Due to Weather, No Appellate Division Oral Arguments Today or Tomorrow

All state courts and offices, as well as the United States District Court for the District of New Jersey, are closed today due to the snowstorm that has already begun.  The Appellate Division has postponed all oral arguments that had been scheduled for today or for tomorrow.

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The Supreme Court Will Re-Visit Health Club Waivers of Liability

The Supreme Court announced that it has granted certification in Pulice v. Greenbrook Sports & Fitness, LLC.  The question presented in that appeal, as phrased by the Supreme Court Clerk’s Office, is “Did the trial court properly dismiss plaintiffs’ complaint seeking damages for injuries suffered at defendant’s health club based on the waiver signed by […]

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The Deadline for Property Tax Appeals is Close!

The Deadline to appeal your property taxes is April 1st, so make sure you are aware of whether or not you qualify, it could save you thousands of dollars.

Fictitious Party (“John Doe”) Pleading, and Deadlines to Seek Dismissal Based on Statute of Limitations

Baez v. Paulo, ___ N.J. Super. ___ (App. Div. 2018).  This was a medical malpractice/wrongful death case.  The Law Division had precluded plaintiff from adding three doctors as defendants after the statute of limitations had expired, ruling that plaintiff had not exercised sufficient diligence to identify those defendants, who had been named as fictitious defendants […]

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Read This Before You Press “Record”

Technology is making it easier and easier to satisfy our curiosity about just what the heck the people in our lives are up to.  Are you curious about your husband’s whereabouts?  You could plant a GPS device on his car.  Do you want to know what your wife is saying to the kids?  There are many ways to go about recording those conversations.  Are you dying to know what your spouse is doing on that laptop, tablet, or smartphone of his/hers?  You could install spyware or other programs (I’ve even heard of some of them referred to as “spouseware”) to secretly find out.  Learning about your spouse’s or ex’s comings and goings, who they are living with, or what they are talking to the kids about can all be valuable information when there are custody issues, questions about whether your ex is cohabiting with someone else for purposes of termination or suspension of alimony, and many other legal issues.  It’s certainly tempting…

BUT DON’T DO IT.  At least not without talking to an attorney.  Because even though technology gives you the ability to do this, it doesn’t make it right and it doesn’t make it legal.

I am seeing these issues come up more and more in my practice, and while much is unclear about where the boundaries can and should be drawn because of the fact sensitive nature of the use of technology in family law cases, a few things appear clear to me.  Using technology to track your spouse or significant other leaves you open to a claim of stalking under the New Jersey Prevention of Domestic Violence Act.  When you use technology to record parties to a conversation without their consent, you may also be subject to criminal and civil liability under Federal and State wiretapping laws – in New Jersey, this is known as the New Jersey Wiretapping and Electronic Surveillance Act, N.J.S.A. 2A:156A.  This is not to mention other civil claims such as invasion of privacy.

This is why it is critical that, before you take any step to use technology to surveil your spouse, you speak with an attorney to ensure that you are not doing anything that may subject you to civil or criminal liability, or to discuss alternative options that will allow you to surveil your spouse or family member without taking this risk.  When you are dealing with a criminal charge of stalking, the “But the private investigator I consulted with said it was okay” defense is no defense at all.  While private investigators know all about technology that can be used to surveil your spouse or other family member, they are not always thinking about or even aware of the legal ramifications of their advice.

And, importantly, once the proverbial cat is out of the bag and your spouse or other family member learns that they were being spied on, you cannot try to cover your tracks by destroying the evidence – this is known as “spoliation” of evidence and if you do it, you will likely be subject to sanctions and/or adverse inferences drawn by the Court.  In other words, the Court will punish you for destroying evidence, and may assume that you did engage in the illegal use of technology by virtue of the fact that you felt the need to destroy the evidence of your conduct.  Just ask the Plaintiff in the recent case out of New York State, Crocker C. v. Anne R., in which the Plaintiff installed spyware on his wife’s electronic devices to monitor all of her communications and listen in on her conversations with third parties including privileged communications with her attorneys and her psychiatrist.  When the Defendant discovered this, the Plaintiff immediately “wiped” all trace of the spyware from these devices so that it was not possible to determine the extent to which he intercepted her communications.  He was sanctioned and found in contempt.

And if you find yourself on the receiving end of being spied on by your spouse or family member, it is critical to obtain the immediate services of a forensic expert who can examine any device being used to record or surveil you and can take steps to preserve any such device for evidence purposes.

Remember:  In many ways, the legal uses of technology – especially in the context of family law issues – is a bit like the Wild West.  We are still trying to figure out the rules and the exceptions to those rules when it comes to the legal issues that arise in family law disputes, and it is always best to consult with an attorney before taking action.

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Jessica C. Diamond is an associate in the firm’s Family Law Practice, resident in the Morristown, NJ, office. You can reach Jessica at (973) 994.7517 or jdiamond@foxrothschild.com.

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How to prepare for a DCPP/DYFS Dodd Hearing in NJ

If the DCPP comes into your home and has reason to suspect abuse or neglect is taking place, they have the option of taking the child out of the home immediately in what is called a Dodd removal. These removals are incredibly jarring moments in a parent and child's life, which really can't be prepared for. The DCPP has even gone so far as to threaten an immediate removal to coerce a parent into allowing more access into the family's life.