Published Appellate Court Opinions

In these ten back-to-back appeals, consolidated for the purpose of issuing one opinion, Weinberger Divorce & Family Law Group, LLC filed post-judgment motions in the Chancery Division, Family Part, to enforce its retainer agreements against its former clients. The law firm sought judgments for unpaid fees, or alternatively, orders compelling the parties to attend binding arbitration pursuant to an arbitration provision in its retainer agreements. The court affirms the denial of the law firm's enforcement motions, concluding: its applications should have been filed as complaints in the Law Division pursuant to the Rules of Court; the law firm was not entitled to entry of judgment for fees in any of the matters because it failed to provide the courts with the necessary information to assess the reasonableness of the fees requested by the firm; and the binding arbitration provision in the firm's retainer agreement is unenforceable because its vague, confusing and contradictory language fails to support the conclusion that the clients and the law firm mutually assented to its terms.

After sixty-three years of marriage, plaintiff Sylvia Steiner commenced this divorce action. At the conclusion of a bifurcated trial for the sole purpose of resolving the parties' dispute about whether there were grounds for divorce, the trial judge found irreconcilable differences and entered a judgment of divorce. In appealing, defendant David Steiner argued, among other things, that bifurcation should not have been permitted and that the trial judge erred in finding irreconcilable differences. The court affirmed, holding that what constitutes irreconcilable differences varies from couple to couple and that the judge's determination that this couple's differences were irreconcilable and had endured for six months, as required by N.J.S.A. 2A:34-2(i), was entitled to deference. The court also held that the presiding judge did not abuse his discretion in bifurcating the cause of action from the parties' equitable distribution issues because of both the parties' ages and judicial economy, considering that a potential ruling on the cause of action in defendant's favor would negate the need for a time-consuming and costly trial on the parties' extensive equitable distribution issues.

This case arises from a violent confrontation during which defendant shot and killed his sister-in-law's former boyfriend with a bow and arrow. The case examines when a trial court in a murder prosecution must instruct the jury on the lesser-included offense of passion/provocation manslaughter when the court decides to instruct the jury on self-defense. The court rejects the notion that passion/provocation manslaughter must always be charged when self-defense is raised, noting that that the two doctrines are triggered by different material elements, serve different purposes, and produce markedly different results. The court nonetheless recognizes that both doctrines address when and how a victim's conduct may affect a defendant's culpability for causing the victim's death; the same circumstances that prompt a responsive use of deadly force may provoke an impassioned reaction, requiring that the jury in a murder trial be given the option to convict for the lesser-included offense of passion/provocation manslaughter. Accordingly, the court recommends a new rule of procedure that when a trial court at a Rule 1:8-7(b) charge conference decides to instruct the jury on self-defense, the court should make findings on the record whether to charge on passion/provocation manslaughter, regardless of whether the defendant requests that instruction. This will help ensure that the decision is made in the first instance by the trial court, informed by the arguments of the parties, and not by an appellate court reviewing a cold record after a verdict has already been reached. The court also highlights the significant differences between the "rational-basis" test that applies when a defendant requests a jury instruction at trial and the more demanding "clearly-indicated" test that applies when a defendant contends for the first time on appeal that the court should have delivered the instruction sua sponte.

The court also addresses the geographic scope of the self-defense principle that a person need not retreat within his or her own dwelling before using deadly force, N.J.S.A. 2C:3-4(c). The court rejects defendant's argument that the term dwelling includes the "curtilage" of a home. The court also explains that a trial court need not instruct the jury on the principles of legal causation unless causation is at issue at trial.

This case examines whether and in what circumstances a jury trial conviction for leaving the scene of a fatal motor vehicle accident, N.J.S.A. 2C:11-5.1, merges with a conviction for endangering an injured victim, N.J.S.A. 2C:12-1.2. The State appealed from the trial court's decision to impose concurrent state prison terms, arguing that N.J.S.A. 2C:11-5.1 and N.J.S.A. 2C:12-1.2 both expressly require that the sentences be served consecutively. Defendant cross-appealed, arguing that the trial judge should have merged the two convictions. Because the decision whether to impose consecutive or concurrent prison terms necessarily presupposes that a defendant has been convicted of at least two separate crimes, the threshold question is whether defendant's two convictions merge.

The court applies the "flexible" multi-faceted test for merger that focuses on the elements of the crimes and the Legislature's intent in creating them, and on the specific facts of each case. See State v. Miller, 237 N.J. 15 (2019). The court compared the elements of the leaving-the-scene and endangering crimes and also construes the express non-merger provisions codified in both N.J.S.A. 11-5.1 and N.J.S.A. 12-1.2. Both crimes are designed to protect injured individuals by creating incentives for persons to remain at the scene of an injury, to report the incident, and to render or summon aid. The two offenses thus offer alternative bases for punishing the same criminal conduct.

With respect to the critical fact-sensitive portion of the multi-part merger test, the court concludes that there was no continuous transaction to split into stages; rather, the criminal conduct was initiated and completed in a brief instant. In this instance, the leaving-the-scene and endangering crimes involved a single voluntary act—defendant's split-second decision to abscond from the accident scene—and were committed in the same place at exactly the same time.

Considering all of the relevant circumstances, the court concludes that the convictions must be merged, rendering academic the State's contention that consecutive sentences should have been imposed.

In this appeal, plaintiffs, Seaview Harbor Alignment Committee and certain residents of Seaview Harbor, challenge Egg Harbor Township's denial of their deannexation petition, which would have permitted Seaview Harbor to secede from the Township and annex with neighboring Borough of Longport. The trial court correctly affirmed the Township's decision. In doing so, the court considered and applied the three-part test enumerated in N.J.S.A. 40A:7-12.1, and concluded that although plaintiffs established that the Township's refusal to consent to deannexation was detrimental to a majority of Seaview Harbor residents, the Township's decision was neither arbitrary nor unreasonable, and plaintiffs failed to establish that deannexation would not cause significant harm to the well-being of the Township.

The court holds that a petition under N.J.S.A. 40:7-12.1 may be appropriately denied where a municipality establishes that deannexation would be detrimental to the majority of residents despite the undisputed fact that deannexation would produce considerable property tax savings for the petitioning homeowners, who seek to become part of a lower tax municipality. That detriment can include the loss of significant services to the community at large, removal of a diverse citizenship, and likely erosion of valuable civic participation caused by the absence of those homeowners who seek to deannex from the community

Here, the harm to the residents of Egg Harbor included not only the potential loss of revenue and attendant services, but the removal of a critical municipal resource – the diverse Seaview residents. That unique loss was not limited to its current and future economic impact, but also encompassed the transfer of a portion of Egg Harbor's population that historically participated in all phases of local government, and brought significant and substantive value to the deliberative decision-making process necessary for a healthy and robust community and government.

Plaintiff alleged he was sexually molested by his sixth-grade teacher during the 1996–97 school year, but he reasonably did not realize he suffered injury as a result until 2016. His 2017 motion to file a late notice of claim was denied without prejudice; the judge concluding the certifications in support of the motion were not based on personal knowledge and otherwise inadequate.

In 2019, the Legislature made sweeping changes to the Tort Claims Act, the Child Sexual Abuse Act, and the Charitable Immunity Act, and it also enacted entirely new statutes of limitations for tort claims arising from sexual abuse and exploitation of minors, and sexual crimes committed against adults. See L. 2019, c. 120, and L. 2019, c. 239.

In particular, effective December 1, 2019, plaintiffs alleging sexual abuse as a minor that occurred prior to, on or after the effective date, may file suit at any time until reaching the age of fifty-five. The date the claim accrued no longer mattered. Effective the same date, a suit alleging sexual abuse by a public employee or employer no longer needed to comply with the predicate procedural requirements of the TCA, including, the notice of claim provision in N.J.S.A. 59:8-8. Plaintiff filed this suit in January 2020, and defendants — elementary school and school district — moved to dismiss, contending plaintiff failed to file a notice of claim within ninety days of the accrual of his claim. Ibid.

The court affirmed the motion judge's denial of defendants' motion, albeit for different reasons than he expressed. The court concluded that a retroactivity analysis was not required under the facts of this case, because plaintiff filed suit after the effective date of the new legislation and within the new statute of limitations; and, when filed, the complaint was no longer subject to the TCA's procedural requirements.

In 2019, the Legislature expanded public-entity civil liability for claims based on sexual assaults and other sexual misconduct by enacting N.J.S.A. 59:2-1.3(a), which disables in those instances the immunities provided by the Tort Claims Act. In this action, plaintiff alleges he was the victim of the sexual misconduct of a teacher employed by the defendant board of education. In appealing the partial denial of its summary judgment motion, the board argued that this new statute does not apply unless the public entity – and not just the public employee – has engaged, in the words of the statute, in "willful, wanton or grossly negligent" conduct. The board also argued that even if triggered, N.J.S.A. 59:2-1.3(a) deprives the public entity only of its Tort Claims Act immunities, and not two defenses under the Act: the verbal threshold, N.J.S.A. 59:9-2(d), and the declaration that a public entity "is not liable for the acts or omissions of a public employee constituting a crime . . .," N.J.S.A. 59:2-10.

In affirming the denial of the board's summary judgment motion, the court enforced N.J.S.A. 59:2-1.3(a)(1) as written, concluding that a public employee's sexual offense was sufficient to provide the "willful, wanton or grossly negligent" conduct required of "the public entity or public employee" (emphasis added). The court also held that N.J.S.A. 59:2-10 is an immunity disabled by N.J.S.A. 59:2-1.3(a)(1) but that the verbal threshold in N.J.S.A. 59:9-2(d) is a limitation of liability, not an immunity, and remained applicable.

This interlocutory appeal presents an unsettled question concerning the fair and appropriate sequence of proceedings in the prosecution of a juvenile offender who the State wishes to waive to adult court pursuant to N.J.S.A. 2A:4A-26.1. The question arises in a context where the juvenile moves to suppress evidence that the State will rely upon at the waiver hearing and also possibly seek to admit at an eventual trial.

The juvenile, joined by amici, argues the suppression hearing should take place first in the Family Part. Conversely, the State argues the waiver hearing should occur first, and, if the juvenile is waived, the Criminal Part then should hear the suppression motion.

Responding to the motion judge’s observation of the need for guidance in the absence of a Court Rule or precedent on point, the court holds the Family Part has the discretion to determine the optimal sequence of proceedings, depending upon the circumstances presented in a particular case. In exercising that discretion, the trial court should apply a general preference to have the suppression hearing conducted first in the Family Part. As explained in this opinion, however, that preference may be outweighed by other considerations, such as whether (as is the case here) an adult alleged co-perpetrator or an already-waived juvenile co-perpetrator has filed a cognate suppression motion in the Criminal Part. Thus, unless a future Court Rule prescribes a different approach, the sequencing decision is best handled in the trial court in a case-by-case discretionary manner with that preference in mind.

Additionally, the court adopts the State's concession that if the juvenile offender is waived first but a Criminal Part judge thereafter grants the suppression motion, the offender can move to have the case remanded back to the Family Part if the remaining non-suppressed evidence can no longer support the continued prosecution of the juvenile as an adult.

Because the Family Part judge in this case did not misapply his discretion in choosing to proceed with the waiver hearing first, the court affirms that determination.

Appellants are a group of twenty-nine New Jersey farms that maintained barns and other storage facilities on their properties. During the growing season, appellants housed farm workers in these structures. Despite this obvious change of use from structures intended to store agricultural products and equipment to residences for human beings, appellants refused to implement the additional fire safety measures required for residences by the New Jersey Uniform Construction Code (UCC), N.J.S.A. 52:27D-119 to -141.

In May 2018, the Director of the Division of Codes and Standards in the Department of Community Affairs (DCA) sent a letter to local construction officials reminding them of their responsibility to issue notices of violation when a farm failed to add fire suppression systems to the buildings in which their workers lived as required by the UCC. In March 2019, the Director sent a similar letter to the construction officials. As a result, the officials cited eighteen of the twenty-nine appellants for violating DCA's fire safety regulations between 2018 and 2019. None of these farms challenged the notices of violation.

On February 4, 2020, the Director sent a third letter to the construction officials again instructing them to enforce the change-of-use regulation when a farm converted a commercial farm building to residential living quarters for workers. The Director forwarded a similar letter to the New Jersey Secretary of Agriculture outlining the UCC requirements for residential structures used to house farm workers and the Secretary distributed that letter to a number of farms. Appellants thereafter filed a notice of appeal alleging that the Director's February 4, 2020 inter-agency letter to the Secretary constituted a "new agency rule" that DCA did not adopt in accordance with the rulemaking procedures required by the Administrative Procedure Act (APA), N.J.S.A. 52:14B-1 to -31.

The court rejected this argument and concluded the Director's February 4 letter bore few of the qualities that characterize a rulemaking activity subject to the procedural requirements of the APA as set forth in Metromedia, Inc. v. Dir., Div. of Tax'n, 97 N.J. 313, 331-32 (1984). Because the letter was not a new agency rule, the court dismissed appellants' appeal.

Defendant was charged in a one-count indictment with violating N.J.S.A. 2C:12-3(a) "and/or" (b). At trial, the jury was instructed that it could convict if it found defendant made a threat with "the purpose to terrorize" or with a "reckless disregard" of the risk of causing terror, under N.J.S.A. 2C:12-3(a), or if it found defendant threatened to kill "with the purpose" to put the victim in imminent fear of death, under N.J.S.A. 2C:12-3(b). During deliberations, the jury asked whether it was required to find a violation of both subsections (a) and (b); the judge responded one was enough but did not instruct the jurors that they had to unanimously agree on one of the theories to convict. In appealing his conviction, defendant argues N.J.S.A. 2C:12-3(a) violates the First Amendment in part and that the jury unanimity instructions were erroneous.

The court reversed, determining that N.J.S.A. 2C:12-3(a)'s "reckless disregard" standard is unconstitutionally overbroad and that the jury instructions did not adequately ensure against a patchwork verdict.

Defendant's municipal clerk determined that plaintiffs' petition for a referendum on a rent-regulation ordinance lacked sufficient signatures; the clerk's decision resulted from her discerning of differences between some of the petition's e-signatures and the corresponding voters' pen-and-ink signatures on the voter rolls. The court affirmed the trial judge's determination that the clerk acted arbitrarily and capriciously because, among other things, the court found it was unreasonable, in light of the limiting circumstance of the COVID-19 pandemic, and the Governor's emergency order precluding door-to-door solicitations, for the clerk not to reach out and provide voters with an opportunity to cure any alleged uncertain signatures before attempting to disenfranchise them from the referendum process.

On January 22, 2019, the staff of the Board of Public Utilities issued a "Cease and Desist and Refund Instructions" Letter (2019 Letter) stopping third-party suppliers of electricity generation and transmission from passing through a price increase to their fixed- or firm-rate customers when those increases were allegedly due to a new provision of the Clean Energy Act, L. 2018, c. 17 (eff. May 23, 2018). Appellant, an organization representing these suppliers, filed a petition with the Board seeking the withdrawal of the 2019 Letter. Two other providers, together with the Division of Rate Counsel, asked to participate in the matter.

Although the Board's Secretary later offered other providers the opportunity to "reach resolution and close out the matter" and "thereafter be released" from the terms of the 2019 Letter, the Board never addressed appellant's petition asking that the directive be withdrawn in its entirety. After waiting over twenty months for the Board to act, appellant filed a notice of appeal from the Board's inaction.

Under these circumstances, the court remanded the matter and directed the Board to consider and resolve appellant's petition within sixty days of the date of the remand.

An Ocean County Prosecutor's Office (OCPO) detective was operating a county vehicle while performing official duties when she struck another vehicle injuring a passenger. After the passenger sued the OCPO and the detective for personal injuries, the State agreed to defend and indemnify both defendants. However, the State asserted that pursuant to N.J.S.A. 59:10A-5 it could avail itself of the County's self-insurance and excess insurance policies mandated by N.J.S.A. 40A:10-3 as the primary sources to satisfy any judgment or settlement in the tort case. The State sued the County seeking a declaratory judgment to this effect. The trial court dismissed the complaint.

On appeal, the court affirmed and held that N.J.S.A. 59:10A-5 grants the Attorney General the ability to direct who shall take up the defense on behalf of the State. However, pursuant to Wright v. State, 169 N.J. 422 (2001), where an employee is entitled to a defense by the State, the State shall also bear the costs of indemnification. N.J.S.A. 59:10A-5 does not alter the State's obligation to defend and indemnify utilizing its resources.

This court held that the exclusionary rule applies where police violate Article I, Paragraph 7 of the New Jersey Constitution by unreasonably and unjustifiably ignoring a search warrant requirement that they knock and announce their presence before entering a dwelling. Doing so deters police from flagrantly violating knock-and-announce search warrant requirements; safeguards against unconstitutional, unreasonable, and illegal search and seizures under New Jersey law; and, importantly, upholds the rule of law and integrity of our administration of justice.

In this appeal, the court held that the Legislature intended prospective application of the amended refusal statute, N.J.S.A. 39:4-50.4a. That intent was manifested by the Legislature's express statement that the amended legislation—which imposed on all defendants convicted of refusal the less onerous penalty of installing an interlock device rather than forfeiting his or her license as mandated by the former statute—would become effective on December 1, 2019, over four months after it was signed into law, and apply only to those defendants who committed an offense on or after that date. That unequivocal legislation pronouncement militates against retroactive application even for defendants who were sentenced after December 1, 2019.

In such circumstances, courts need not consider the common law exceptions to the presumption of prospective application as discussed in Gibbons v. Gibbons, 86 N.J. 515 (1981) and James v. New Jersey Manufacturers Ins. Co., 216 N.J. 552 (2014), nor the timing of the penalty incurred under the general savings statute, N.J.S.A. 1:1–15. The Legislature's determination that interlock devices serve as a greater deterrent than license forfeiture supports the conclusion that the amended legislation was neither ameliorative nor curative, in any event.

On leave granted, the court holds that the tax filings of corporations and other businesses receive the same presumption of confidentiality as individual tax records. Hence, the heightened requirements for disclosure specified in Ullmann v. Hartford Fire Ins. Co., 87 N.J. Super. 409 (App. Div. 1965), apply to such business tax filings as well.

As Ullmann instructs, a civil litigant can only obtain an opposing party's tax filings through discovery by demonstrating to the court: (1) the filings are relevant to the case; (2) there is a "compelling need for the documents because the information likely to be contained within them is "not otherwise readily obtainable" from other sources; and (3) disclosure would serve a "substantial purpose." Id. at 415-16.

After appellants’ home was severely damaged by Superstorm Sandy, they defaulted on their mortgage loan. Their flood insurer paid out $150,000 in benefits for the damage.

Pursuant to the contract terms, the lender’s assignee held the insurance funds in escrow, while it decided whether repairs to the house would be "economically infeasible" or would lessen its security.

Over three years passed before the lender ultimately applied the insurance proceeds to the homeowners' outstanding debt. During that lengthy interval, over $40,000 in mortgage interest accrued.

The homeowners unsuccessfully argued to the Chancery judge they were entitled to a credit on the foreclosure judgment for that portion of the interest, due to the lender’s allegedly unfair conduct.

Consistent with principles of fairness and reasonableness set forth in the Restatement (Third) of Property (Mortgages) (1997), this court holds the lender in such situations owes the borrower an implied covenant of good faith and fair dealing in determining how to dispose of the property or flood insurance funds.

If the lender unreasonably delays making a decision about the proposed use of the insurance funds for repairs, the Chancery judge has the equitable power to abate the mortgage interest that accumulated in the meantime. Additionally, the lender must place the insurance funds in an interest-bearing, segregated account until the proper use of those funds is resolved.

Having announced these governing principles, the court remands this matter to Chancery Division to develop the record more fully and evaluate whether the mortgage company breached the implied covenant.

In this action to foreclose a tax sale certificate, plaintiff appeals from three Chancery Division orders. The first denied plaintiff's motion to bar redemption and impose a constructive trust. The second granted the respondent investor's motion to intervene and permit redemption. The third denied plaintiff's motion to set the time, place, and amount of redemption as moot.

The court held that when an investor has an interest in the property in foreclosure, is prepared to redeem the tax sale certificate, and files a motion to intervene in the foreclosure action before the entry of an order setting the last date for redemption, the investor is permitted to intervene and redeem the tax certificate. Accordingly, the court affirmed the three orders entered by the trial court.

In this latest appeal arising from executive orders (EOs) issued by the Governor of New Jersey in response to health-related emergencies caused by the spread of the COVID-19 coronavirus, plaintiff JWC Fitness, LLC, which until October 2020 operated a kickboxing business, claimed entitlement to compensation under the New Jersey Civil Defense and Disaster Control Act (Disaster Control Act), N.J.S.A. App. A:9-30 to -63, for the closure and limitations placed on its business under some EOs.

According to plaintiff, the EOs that temporarily limited and shut down the operations of health clubs, including gyms and fitness centers, effectively "commandeered and utilized" its property under N.J.S.A. App. A:9-34, such that the State must establish an "emergency compensation board" under N.J.S.A. App. A:9-51(c), in order to provide "payment of the reasonable value of such . . . privately owned property." N.J.S.A. App. A:9-34. Plaintiff also sought a declaratory judgment that the EOs effectuated a taking of its property without just compensation, in violation of the New Jersey Constitution, art. I, ¶ 20, and the United States Constitution, amends. V and XIV.

The court concluded that plaintiff's arguments were without merit as the statutory standard for compensation had not been implicated, and the EOs did not effectuate a taking of plaintiff's property within the meaning of the state and federal constitutions.

Plaintiff Morgan Dennehy appeals from a February 18, 2020 order denying her motion for reconsideration of a previous order granting summary judgment to defendants East Windsor Regional Board of Education, Hightstown High School, James W. Peto, Todd M. Peto, and Dezarae Fillmyer. Plaintiff was a student at Hightstown High School and a member of the field hockey team. On September 9, 2015, the field hockey team was waiting for its scheduled practice on Hightstown High School's turf field to begin and was conducting drills in the "D-zone," an area between the recently renovated turf field and the track. Some members of the team were participating in the drills while others watched. A twenty-foot-tall ball-stopper is located at each end of the turf field and separates the "D-zone" from the turf field. While the field hockey team was practicing drills in the "D-zone," the boys soccer team was practicing on the turf field and plaintiff observed several soccer balls vault the ball stopper. After the team concluded its drills, plaintiff asked defendant Coach Fillmyer if she could take a shot on goal. Defendant agreed because plaintiff rarely had the opportunity to shoot on goal. Plaintiff left the area directly behind the ball stopper and, after she finished shooting, she was struck in the back of the neck by an errant soccer ball that went over the ball stopper. Plaintiff was later taken to the hospital and was diagnosed with a concussion. Plaintiff filed suit alleging that defendants were negligent and negligent in hiring, retaining, training, and supervision of employees.

On appeal, plaintiff argues that the motion judge erroneously applied the heightened recklessness standard set forth in Crawn v. Campo, 136 N.J. 494 (1994). After reviewing the applicable case law, the court concluded that the motion judge erred in applying the heightened recklessness standard from Crawn. In this case, defendant Fillmyer was not a co-participant who directly injured plaintiff and, therefore, Crawn does not apply.

The court also determined that Rosania v. Carmona, 308 N.J. Super. 365 (App. Div. 1998) does not apply to this case. In Rosania, a martial arts instructor participated in a sparring match with a student and kicked the student in the head causing his retina to detach. The martial arts dojo had a written rule that prohibited targeting of the head. The Rosania panel determined that if the jury found the risks inherent in the karate match were materially increased by an instructor beyond those reasonably anticipated by the dojo rules, it should have been charged on the ordinary duty owed to business invitees rather than the heightened recklessness standard for competitive contact sports. The court declined to apply Rosania in this case for two reasons: first, defendant Fillmyer was not a co-participant; and second, the Rosania panel's decision was informed by cases decided by the New York Court of Appeals which contemplated a different heightened standard. The court concluded that because defendant in this case is a public employee, her duties, responsibilities, and immunities are clearly established in the New Jersey Tort Claims Act N.J.S.A. 59:1-1 to 12-3, and thus defendant is liable to the same extent as a private person for her negligence and the ordinary negligence standard should govern this case.