Before Applying A 30-Year-Old Decision To Modern Technology, A New Jersey Court References A Musical From The 1890's

by: Peter J. Gallagher (LinkedIn)

In Pathri v. Kakarlamath, the issue before the court was whether a witness could testify via contemporaneous video transmission in a divorce trial. The trial court denied the witness’s request to do so and the issue went up on appeal, where the Appellate Division began its decision, naturally, by referencing Gilbert & Sullivan’s “The Major General’s Song” from The Pirates of Penzance:

In most respects, the bench and the bar might – with apologies to Gilbert and Sullivan – proclaim the court rules to be “the very model of a modern” set of civil guidelines. But, in one respect, the rules haven’t quite caught up to the technological revolution. So, feeling “plucky and adventury,” we granted leave to appeal to consider how a judge should assess a party’s request to appear at trial and present testimony by way of contemporaneous video transmission.

Pathri was a matrimonial action. Plaintiff and defendant, both of whom were originally from India, came to the United States in 2007. Plaintiff sued defendant in 2018 and moved back to India shortly thereafter. Defendant countersued for divorce. One week before the scheduled trial, plaintiff requested that he be allowed to appear and testify at trial via “contemporaneous video transmission” from India. He claimed he could not obtain a visa to enter the United States. Plaintiff opposed the request and the trial judge denied it, because it would “inhibit her ability to assess plaintiff’s testimony and credibility.” Plaintiff appealed.

The Appellate Division stayed the divorce trial and heard the appeal on an emergent basis. It vacated the trial court’s decision and remanded the matter back to the trial court with instructions on how to address the issue.

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On Amateur Chihuahua Breeding And Bailments

by: Peter J. Gallagher (LinkedIn)

After reading the opening paragraph of the Appellate Division’s decision in Rivera v. Canseo, I was hooked. Here it is:

[Plaintiff] owns a female chihuahua. Defendant . . . owns a male Chihuahua. [Plaintiff] and [defendant] reached an oral agreement to have their dogs mate. [Plaintiff] was to obtain puppies from the mating and [defendant] was to receive consideration for the use of his dog.

Interesting facts, check. Awkward references to uncomfortable subjects reminiscent of 1950’s health class videos – “obtain puppies from the mating” – check. And what exactly does it mean to “receive consideration for the use of his dog”? Needless to say, I was hooked.

[As it turns out, the consideration question was never answered. Plaintiff claimed that defendant was to receive “the pick of the litter if the mating ultimately resulted in the birth of puppies,” while defendant claimed he was to receive $500, “regardless of whether [plaintiff’s] dog was impregnated.” Because “[t]he exact nature of [defendant’s] expected consideration [was] not material” to the court’s decision, however, the dispute was never resolved.]

In Rivera, after plaintiff and defendant agreed to have their Chihuahuas mate, plaintiff brought her dog to defendant’s home, along with a supply of the dog food to which her dog was accustomed. According to plaintiff, her dog was in good health when she left her at defendant’s home. Clearly a hopeless romantic, “[defendant] placed [plaintiff’s] dog and his dog in the basement together” and locked the door.

Continue reading “On Amateur Chihuahua Breeding And Bailments”

Fee Dispute Between Counsel Inspires Court To Bemoan The Death Of The Practice Of Law As A Profession

by: Peter J. Gallagher (LinkedIn)

In the final scene of the movie Scent of a Woman, Al Pacino’s character defends Chris O’Donnell’s character, who is about to be expelled from the (fictional) prestigious Baird School. Among many other things, Pacino’s character exclaims: “I don’t know who went to this place. William Howard Taft. William Jennings Bryant. William Tell, whoever. Their spirit is dead, if they ever had one.” Similarly, although slightly less dramatically, a fee dispute between counsel in Meister v. Verizon New Jersey Inc. led the trial court to eulogize the law as a profession:

This unfortunate fee dispute, coming as it does in the midst of seemingly final negotiations of a settlement, should resolve, with certainty, any lingering doubt that the practice of law, that storied profession of Marshall and Jefferson and Lincoln, is really now just another capitalist enterprise.

The court walked these comments back, slightly, by acknowledging that “[t]he practice of law is not a hobby” and “[h]ard working and industrious counsel who take risks to advance a client’s case and to maximize a client’s recovery should be rewarded.” But it then immediately returned to its original thesis:

However, while lawyers may indeed make a client’s life better through their advocacy and vigilant protection of that client’s interests, they are uniquely able to make it seem as though they are not doing so when quarreling, as they are here, over who gets to spell out how much they should be paid from their paralyzed client’s recovery and why one is more entitled to do so than another.

This is probably not how the lawyers in the case hoped the court would start its opinion.

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“But you yada yada’d over the best part!”

by: Peter J. Gallagher (@pjsgallagher) (LinkedIn)

As any Seinfeld fan knows, you cannot “yada yada” over the best part of a story. But in a recent decision, a New Jersey court did just that.

In Barry v. Melmed Construction Company, Inc., the court spent eleven pages discussing a relatively routine case where defendant waived the right to enforce the arbitration provision in its contract with plaintiffs – defendant waited too long to raise the issue, actively participated in litigation in state court, etc. – but then dropped this bomb at the very end of the decision:

We acknowledge the anomaly of plaintiffs’ assertion that they are not bound by the arbitration clause their counsel drafted and they insisted be included in the contract between the parties, particularly in light of counsel’s apparent admission that he drafted the clause to allow plaintiffs to argue it could not be enforced against them. While not endorsing such conduct, we do not address it in light of defendants’ waiver of an arbitration remedy.

So let me get this straight, plaintiffs demanded that their contract with defendant include an arbitration provision, and then had their counsel draft the provision so that they could later argue that the provision could not be enforced against them?!? And the court waited until the end of the case, in a footnote no less, to bring this up?!? This was the most interesting part of the case! Reducing it to a footnote on the last page, and then not even discussing it substantively, is the judicial equivalent of “yada yada-ing” the best part of the story.

Husband’s Foreclosure Defense? I Had No Idea My Wife Entered Into Those Mortgages (Or Had Those Credit Cards, Or Drained Our Savings . . . )

by: Peter J. Gallagher (@pjsgallagher) (LinkedIn)

Unfortunately, New Jersey still has the highest foreclosure rate in the country. Most weeks, the Appellate Division issues several decisions related to residential foreclosure, and most follow a predictable pattern – a lender forecloses and obtains final judgement of foreclosure, the borrower appeals, claiming that the bank lacked standing to foreclose, and the Appellate Division affirms entry of final judgment of foreclosure. But every now and then a case comes along that breaks that mold. U.S. Bank National Association v. Gallagher is one of those cases. (Note: I am not related to the Gallaghers in this case or the Gallaghers in the Showtime series, Shameless, but the facts of this case might actually fit in that show.)

Gallagher starts off normal enough. Defendants were married in 1986. In 1996 they bought property and built their marital home. Two years later, they used the property as security for a loan. Over the next ten years, they refinanced the mortgage on the property four times. Eventually, however, they were unable to make the monthly payments and the bank foreclosed.

That is when it gets interesting.

Continue reading “Husband’s Foreclosure Defense? I Had No Idea My Wife Entered Into Those Mortgages (Or Had Those Credit Cards, Or Drained Our Savings . . . )”

School Not Liable For Injuries To Student During Student/Teacher Basketball Game

by: Peter J. Gallagher (@pjsgallagher) (LinkedIn)

My children’s school has a nice tradition for the fifth grade students. Towards the end of the year, the fifth graders play a basketball game against a group of teachers and parents. It is a fun event. I have played in it twice, once against my daughter and once against my oldest son. In each game, I was called for a foul. In each game, best as I can recall, I was the only person called for a foul. (Not to sound too much like Draymond Green, but neither call was warranted. My kids flopped.) But with this history in mind, I read C.H. v. Rahway Board of Education with some interest.

In C.H., plaintiff was an eighth grader and a member of her school’s basketball team. At the end of the school year, she was part of a team of students that played a team of teachers and school personnel. The game was an annual fundraising event, and participation was voluntary. There was at least one referee officiating the game, and five teachers who did not play in the game also attended to help supervise.

During the game, while going up for a rebound, plaintiff came into contact with a teacher, landed awkwardly, and was injured. Plaintiff testified that she and the teacher were close to the basket vying for the rebound. The teacher was between her and the basket with his back to her. When the shot was taken, the teacher jumped up and backwards (towards plaintiff), while plaintiff jumped up and forward (towards the rim, and the teacher). Their upper bodies collided. Plaintiff fell and injured her knee.

Plaintiff sued the teacher involved in the incident, the school, and the town board of education. After discovery, the trial court granted defendants’ summary judgment motion and dismissed plaintiff’s lawsuit. Plaintiff appealed.

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“BorgataBabes” Lawsuit Revived As Trial Court Is Chided For Ignoring Appellate Division

Some of the best parts of the movie “My Cousin Vinny” are the interactions between Vinny, played by Joe Pesci, and Judge Haller, played by the late Fred Gwynne. In one scene, Judge Haller admonishes Vinny for failing to dress appropriately for court. When Vinny comes to court the next day wearing exactly the same thing he had on the day before, the following exchange occurs:

Judge Haller: Mr. Gambini, didn’t I tell you that the next time you appear in my court that you dress appropriately?

Vinny: You were serious about that?

Judge Haller was serious, and Vinny spent a night in jail as a result. I was reminded of this scene when I read Schiavo v. Marina District Development Company, LLC d/b/a Borgata Casino Hotel & Spa, where the Appellate Division had to remind the trial court that it was serious about a prior decision.

Schiavo has been pending for more than a decade. Plaintiffs worked as “costumed beverage servers” in the defendant’s “BorgataBabes” program. (Disclaimer: This is the actual name of the program, not my name for it.) They claimed that “defendant’s adoption and application of personal appearance standards (PAS) subjected them to illegal gender stereotyping, sexual harassment, disparate treatment, disparate impact, and . . . resulted in adverse employment actions.”

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