This week's New Jersey Legal Update is presented by Paul W. Norris, member of Stark & Stark’s Litigation Group.

You can download the New Jersey Legal Update Podcast # 57 here. (6.9 MB)

Technorati Tags:  New Jersey : Podcast :  Litigation : Construction : Miller Act

This week's New Jersey Legal Update is presented by Paul Norris, a member of the Firm's Litigation group.

You can download the New Jersey Legal Update Podcast # 44 here. (7 MB)

Technorati Tags: New Jersey : Podcast : Defamation Law

This week's New Jersey Legal Update is presented by Paul Norris, a member of the Firm's Litigation group.

You can download the New Jersey Legal Update Podcast # 20 here.(21MB)

Technorati Tags: New Jersey : Podcast

In the recent Appellate Division, Peak Construction v. Melone, the Court discussed a party's right to an award of counsel fees and the dismissal of a Lien Claim should it be found that the lien was wilfully overstated. In general, if a Lien Claim is wilfully overstated the lien is removed and the aggrieved party is entitled to counsel fees in any action brought under the overstated lien. Traditionally, the aggrieved party is entitled to any counsel fees it incurs in removing the unlawful and improper lien. The Peak Construction case is unique, however, as the Court considered whether an individual acting pro se may be entitled to an award of counsel fees. In ruling against Peak Construction in its application for $51,000.00 in pro se counsel fees, the Court explained that generally pro se litigants are not entitled to counsel fees for defending an action, and moreover, Defendant did not timely notify Plaintiff's counsel that they would be seeking counsel fees and a dismissal of the Lien Claim. As such, the practical application of this case suggests that it behooves an aggrieved party to get an attorney involved if a Construction Lien is wilfully overstated, as these fees would be recoverable. On the other hand, should a party attempt to handle this matter on their own then generally they would not be entitled to counsel fees.

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This is a classic scenario that either a General Contractor or Subcontractor is routinely faced with when a governing body, such as a Municipality, changes the design plans which may increase the project costs to the General and/or Subcontractor. In this matter, the Plaintiff-Subcontractor failed to carefully document its increased costs and to issue a Change Order to Defendant-General Contractor prior to performing the work. As a result, the Plaintiff-Subcontractor was not awarded the additional $32,000.00 which it sought upon completion of the Project. As such, all General or Subcontractor(s) should be forewarned to carefully document any Change Orders in prosecuting contract work so that they may be properly compensated for it by either the Owner or the General Contractor. In the absence of an approved, signed Change Order, it is likely that the General/Subcontractor would be held to the original plans and specifications even though a Governing Body may have made changes to the original design and/or plans. The practical application of this case is that documentation of any changes and/or revisions is essential to preserving your rights to obtain increased compensation.

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In a recent Appellate Division case, the Appellant Division discussed the interplay between direct contract interpretation as compared to work performed by a Subcontractor without a written Change Order. As has occurred many times in the past, the Court once again ruled in favor of strict contract construction instead of allowing arguments of equity to carry the day for the Subcontractor. In this matter, the Subcontractor failed to obtain a Change Order for site conditions which it believed differed from those pursuant to the original plans and specifications and performed work without receiving authorization pursuant to a written Change Order, and thereafter, attempted to bill for the increased costs. This claim was denied by the General Contractor, and thereafter, the Subcontractor sued for these increased costs. In ruling in favor of the General Contractor, the Court stated that the Contract must be strictly construed and if a written Change Order is required than no work must be paid unless this process is followed. The practical application of this case is that either a General Contractor or Subcontractor should follow the Contract carefully and obtain prior approval for any additional work instead of relying upon a clause in the Contract which may authorize said work without a Change Order. In other words, it is best to document rather than to guess.

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On November 8, 2004, the Governor signed a bill extending the deadline for registration. Home improvement contractors engaged in the business of selling or making home improvements must be registered with the Division of Consumer Affairs by December 31, 2005.

Here is a link to the Department of Law and Public Safety's website which has information on filing requirements, deadlines and copies of all necessary forms.

The process I am referring to is filing for a Petition for Expungement. The expungement process is provided for within the New Jersey Statutes and is available to all individuals who have committed any disorderly persons offense, as well as indictable offenses within the State of New Jersey. The expungement process is available to residents and/or non-residents of the State of New Jersey and an individual may expunge one or more petty disorderly persons offenses and/or indictable offenses from their criminal history. Obviously, there are limitations concerning the eligibility for expungements. In addition, certain offenses, such as murder and/or distributing a narcotic for sale, are not subject to expungement. Nonetheless, the expungement process is a valuable tool which can help many people erase and/or minimize a mistake they made in their past.

Prior to becoming eligible for an expungement, there are mandatory waiting periods after which time a party may be eligible for an expungement. For example, a person may seek an expungement ten (10) years after being discharged from probation or parole for an indictable offense. If a person is convicted a disorderly persons or petty disorderly persons offense, there is a five (5) year eligibility waiting period after discharge from probation and/or payment of the fine in full. If a person is convicted of a Municipal Ordinance, there is a two (2) year waiting period from the time the person is discharged from probation and/or has paid the fine in full. In other instances, the waiting period for an expungement may be shorter. For instance, if a person is arrested and charged with a crime, and thereafter, the charges are dismissed this individual would be eligible for an immediate expungement. Moreover, if a person is accepted into and completes a diversionary program such as Pre-trial Intervention and/or a Conditional Discharge, the waiting period for an expungement would be six (6) months from the date of discharge from probation and/or a successful completion of the program. These time periods are delineated by Statute and may not be waived regardless of the circumstances for which the Petitioner is seeking an expungement. It is also important to note that a person may only seek an expungement once in their life. As such, when a party applies for an expungement should be sure that all events which they could get expunged are covered within the petition.

Once an expungement is granted it is as if the criminal charges, the arrest surrounding the charges, and the disposition of the charges never occurred. In fact, pursuant to the expungement statute if a party is ever questioned whether they have been arrested, convicted and/or charged with a crime, they are to respond that they have not. The expungement statute also states that should any party reveal that a person was granted an expungement that this person can be charged with a criminal offense.

There are times, however, when an expungement can be disclosed. If a person is applying for a job as a law enforcement officer or accepting a position of high security within the State or Federal Government, the fact that an expungement was granted can be revealed. Moreover, should a person be convicted of a subsequent offense, the Court can review the expunged record in considering sentencing the person for the present offense. Despite these limited circumstances, however, the effect of the expungement is to erase the event from an individual's history as though it had never occurred. Once an expungement has been granted any criminal record search will yield no positive results.

In todays day and age there is almost no limit as to the negative effect that a positive criminal record search result could have on a person's present and/or future career. Fortunately, the expungement process is available to help people to erase a mistake of their past so that it will not effect their future. The range of people that can benefit from an expungement varies from the most remedial of laborers to the highest ranking executives within Fortune 500 companies. Each one of these individuals could have their career devastated by a positive criminal record search result. As such, it is suggested that should an individual have doubts regarding whether an incident may appear on their criminal record, regardless of whether the incident resulted in a conviction, it is suggested that this party have a criminal record search performed. Should this search result yield a positive result, this party can consult with an attorney who may be able to prepare an Expungement Petition on their behalf. Although an Expungement Petition may be filed pro se, it is a technical process and must be done properly, otherwise it will be denied by the Court. At one point in our lives, most people have wished that they could go back in time and make a different decision under the circumstances they were faced with. Fortunately, the expungement statute within the State of New Jersey allows you to go back in time and erase that mistake as though it had never occurred.

The Court's ruling in Raimo v. Fischer adopted the general negligence principal in lieu of the common law doctrine of premises liability which provides that all parties should be treated in a similar fashion regardless of whether the person was a business invitee, licensee, or trespasser. This new standard requires a contractor to exercise reasonable care to maintain the site in a safe condition regardless of whether the person is a business invitee, licensee, and/or trespasser. By extending the general negligence principal to a trespasser, it is now possible that a contractor may be subject to greater liability for an individual who trespasses on the project site and is injured.

The effect of this change in the law is that contractors should be forewarned that all parties who enter on their job site will be treated the same by the Court, whether they be invited or uninvited. As such, it is advisable that a contractor take special care to render the job site safe and secure at the end of a work day so as to avoid potential liability from an uninvited trespasser. Moreover, it is suggested that the contractor require all subcontractors and/or vendors to be carefully advised of any potential dangers on the job site, such as a contractor would do for a business invitee who is visiting the project site.