Party Cannot Lose Its Right To Jury Trial For Violating Procedural Rules

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

Jury (pd)It is not often that a case that starts in the Special Civil Part — New Jersey's small-claims court — ends up before the New Jersey Supreme Court. But this is exactly what happened in Williams v. American Auto Logistics. It could not have been cost effective for the plaintiff to see this case through two separate bench trials, two separate appeals to the Appellate Division, and finally an appeal to the Supreme Court. But the issue in the case was so important that, notwithstanding the costs, the effort was likely worthwhile.

In Williams, plaintiff had his car shipped from Alaska to New Jersey by defendant. After he picked up the car, he discovered water damage in the trunk. Plaintiff sued in the Special Civil Part after efforts to amicably resolve the dispute failed. Plaintiff did not demand a jury trial in his complaint, but defendant did in its answer. At the pretrial conference, the trial court referred the parties to mediation, which was unsuccessful. Upon returning from mediation, defendant waived its jury demand. Plaintiff objected, but the trial court granted defendant's request. In support of its decision, the trial court noted that plaintiff had violated Rule 4:25-7 by failing to make the requisite pretrial submissions. (Among other things, Rule 4:25-7 requires parties to submit proposed voir dire questions, jury instructions, and jury verdict forms.) The trial court held that it could deny plaintiff's request for a jury trial as a sanction for this failure. Therefore, the case proceeded to a bench trial, where the trial court found no merit to plaintiff's claims.

Plaintiff appealed and the Appellate Division reversed and remanded. It held that a jury demand can only be withdrawn by consent, even when only one party demanded a jury trial and that party seeks to withdraw the demand. It further explained that "a trial judge may impose sanctions, including striking the jury demand, on a party that fails to submit the requisite pretrial information," but that the trial court in Williams erred by "allowing a single party to unilaterally waive the jury demand."

Continue reading “Party Cannot Lose Its Right To Jury Trial For Violating Procedural Rules”

Funny, I didn’t see the double homicide in the seller’s disclosure!

by:  Peter J. Gallagher

 

Do sellers of real estate have a duty to warn potential buyers about murders or suicides that occurred at the property they are trying to sell?  The answer in most states, somewhat surprisingly, is no.  As MSNBC reported in a recent article, “3 BR, hot tub, 3 murders: How homicide homes hold their secrets,” only two states – Alaska and South Dakota –  require that sellers’ agents  reveal whether a homicide or suicide occurred in the property within the previous 12 months.  According to the article, five other states – Connecticut, Delaware, New Hampshire, North Dakota, and Oklahoma – require that agents “truthfully answer the question” if a prospective buyer asks about “past bloodshed.”  The article further reports on a study, which showed that so-called stigmatized homes languish for longer on the market and ultimately sell for less if their macabre history is revealed, either by sellers or through the grapevine.

Finally, lest you think potential buyers are just being overly paranoid, consider the tragic ending to the story of the man profiled in the MSNBC piece:

Days after closing on his dream home – a brick colonial near the Washington, D.C., school he was toiling to save – principal Brian Betts learned of his property’s ghastly past.

Inside the house, 11 months earlier, an intruder had shot and killed a 9-year-old girl and her father. Horrified, Betts demanded the transaction be rescinded. When that effort failed, he invited two ministers to pray over his new place. Then Betts tried to paint over the grim history, refinishing the woodwork and refurbishing the kitchen.

 Seven years later, in April 2010, a robber shot and killed Betts in his bedroom.