Published Appellate Court Opinions

A defendant in a foreclosure case may not fail to diligently pursue a germane defense and then pursue a civil case against the lender alleging fraud by foreclosure. The court affirms the dismissal of a fraud complaint alleging the lender pursued a foreclosure on the original mortgage after the mortgage was modified where the homeowner failed to object to the entry of final judgment in the foreclosure case.

The New Jersey Department of Banking and Insurance, Small Employer Health Benefits Program Board (the SEH Board), engaged in rulemaking in accordance with the expedited procedure established by N.J.S.A. 17B:27A-51 (Section 51), rather than pursuant to the Administrative Procedure Act (APA), N.J.S.A. 52:14B-1 to -31. In doing so, the SEH Board repealed an administrative rule pertaining to out-of-network benefits under certain health insurance plans. We held that the repeal constituted an "action" under the plain language of Section 51, and concluded that the SEH Board correctly relied on Section 51 rather than the APA.

In this Open Public Records Act (OPRA) litigation, the court considers whether the New Jersey Society for the Prevention of Cruelty to Animals (NJSPCA) should be exempt from complying with OPRA requests because it does not receive public funds and, staffed only with volunteers, it lacks the monies and personnel to facilitate the requests.

Discovery revealed that the NJSCPA had a budget of over $300,000 consisting of private donations and monies collected from municipal fines and penalties assessed on violators of animal cruelty laws. The trial judge determined that the OPRA request was not burdensome; most of the information sought could be found in NJSPCA's tax returns and reports.

The court concluded that because the NJSPCA is a public agency that receives public funds and performs a traditional government function, it is subject to OPRA, and must comply with requests made under the Act. It is the province of the Legislature to exempt the agency from OPRA's mandate. The court affirmed the orders compelling NJSPCA to comply with the Act and awarding plaintiff counsel fees.

In this appeal the court considers whether draft minutes prepared for a public body's approval and adoption must be provided in response to a request under the Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to -13. The Government Records Council denied the Libertarians For Transparent Government's OPRA request for unapproved minutes, contending they were records exempted from disclosure under the Act as "advisory, consultative, or deliberative material."

As the exemption under OPRA has been construed to encompass the deliberative process privilege, the court evaluated the documents under the privilege's two-pronged test, and determined that the unapproved minutes were both pre-decisional and deliberative. Because draft minutes are a preliminary document subject to revision, they remain "deliberative material" and exempt from the disclosure requirements of OPRA until approved by the public body.

Defendant pled guilty to second degree sexual assault, N.J.S.A. 2C:14-2(c)(4), reserving his right to appeal the denial of his motion to suppress the inculpatory statement. This court reverses the trial court's order denying defendant's motion to suppress his inculpatory statement. The evidence presented by the State at the N.J.R.E. 104(c) hearing does not support the motion judge's findings that the State satisfied "the heavy burden" of proving, beyond a reasonable doubt, that defendant made a knowing, intelligent, and voluntary decision to waive his constitutional rights under Miranda. The motion judge's decision upholding the methods used by the interrogating detectives improperly shifted this burden of proof to defendant.

Judge Fuentes wrote a separate concurrence addressing the use of police officers as interpreters when interrogating a suspect who is limited English proficient.

At a detention hearing held pursuant to the Criminal Justice Reform Act, N.J.S.A. 2A:162-15 to 2A:162-26 (the CJRA), the State proceeded by proffer. Defendant subpoenaed the police officer, who prepared the affidavit of probable cause as a witness, and sought to subpoena other officers. Over the State's objection, the judge entered an order that permitted defendant "to subpoena the [police] officers at the scene of the incident to testify at the [d]etention [h]earing." The court granted the State's motion for leave to appeal and reversed.

The CJRA provides that at a pretrial detention hearing, a "defendant has the right to be represented by counsel, and . . . shall be afforded an opportunity to testify, to present witnesses, to cross-examine witnesses who appear at the hearing, and to present information by proffer or otherwise." N.J.S.A. 2A:162-19(e)(1) (emphasis added). However, federal courts interpreting the Bail Reform Act that contains similar language have recognized the defendant's right to produce adverse witnesses is conditional, not absolute.

The court adopts the reasoning of the majority of federal courts, which require a defendant make a proffer as to how the anticipated testimony of an adverse witness, i.e., police officers, victims, and State's witnesses, would 1) negate the State's evidence as to probable cause; or 2) rebut or diminish the State's proffered clear and convincing evidence supporting detention.

Following O.Y.C.P. v. J.C.P., 442 N.J. Super. 625 (App. Div. 2015), the court further addressed the Family Part's jurisdiction over person between the ages of eighteen and twenty-one who apply to the Family Part for predicate findings in special immigrant juvenile (SIJ) cases. In this case, the court addressed the Family Part's jurisdiction to grant an application for child custody, made in connection with an SIJ-related application. The court held that, pursuant to N.J.S.A. 9:17B-3, the Family Part has jurisdiction to grant a parent custody of an unemancipated child who is over eighteen, but under twenty-one, and to issue a declaratory ruling that the child is dependent on the parent and is not emancipated.

This appeal requires the court to determine the procedures that should be followed by the Family Part where a person, restrained by a final restraining order (FRO) entered under the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35, requests to modify or dissolve the FRO, but the transcript of the FRO hearing is not available through no fault of the defendant. We hold that due process requires the Family Part judge to reconstruct the record if the court cannot assess whether to deny the application or is otherwise satisfied that the record before it presents a prima facie showing of changed circumstances. We reverse and remand to the Family Part for proceedings consistent with this opinion.

In this appeal, this court was asked to determine whether a patient who requires emergent psychiatric treatment, resulting in his involuntary commitment to a hospital, should be treated differently for charity care purposes than a patient who suffers a physical injury or illness. This issue of first impression arose from a dispute regarding a hospital's attempt to recover payment from an indigent mental health patient, who was involuntarily committed to its facility after being screened by a psychiatric emergency screening service, when the hospital followed the charity care procedures applicable to a non-emergent admission instead of those applicable to an admission through the hospital's emergency room. The trial court determined on summary judgment that the procedures governing a regular admission applied, and the hospital was entitled to recover from the patient based on a theory of quasi-contract.

This court reversed, holding that when a mental health patient is admitted to a hospital on an emergent basis through the referral of a psychiatric emergency screening service, the provisions of the charity care regulations dealing with emergency room admissions applied.

This appeal requires this court to determine whether certain data the Department of Corrections (DOC) is required to maintain by federal and State regulations is no longer subject to disclosure as a "government record" under the Open Public Records Act (OPRA). Specifically, whether data previously provided to the public in monthly reports is no longer available because the DOC implemented a new data collection system that does not generate these reports. The Government Records Council (GRC) upheld the DOC's denial of these records because they are no longer available in this format. This court reverses the GRC and holds that technological advancements in data storage should enhance, not diminish, the public's right to access "government records" under OPRA. Acceptance of the DOC's argument would leave the public policy of transparency and openness codified in OPRA unacceptably vulnerable to bureaucratic manipulation.

In reversing the summary judgment entered in favor of defendants on both plaintiffs' breach of contract and consumer fraud claims, the court held, among other things, that the sale of a tow truck constituted a "sale of merchandise," as defined by N.J.S.A. 56:8-2, even though it was custom built.

Plaintiff fell at a concert at a university's multipurpose center. The Appellate Division agreed the university had charitable immunity. Holding concerts open to the public to advance education was one of the university's purposes. The concert served that purpose regardless of the music's genre. The university remained immune though the performer, and the entities which selected and booked her and rented the center, were for-profit. Even a charity can rent its facilities to for-profit entities unless non-charitable activities become its dominant motive, which was not shown here. As an audience member, plaintiff was a beneficiary regardless of whether she viewed the concert as educational.

Judge Fisher dissents.

Plaintiff failed to prove defendant committed an act of domestic violence but the judge – after acknowledging the Prevention of Domestic Violence Act did not permit issuance of a final restraining order – relied on P.J.G. v. P.S.S., 297 N.J. Super. 468 (App. Div. 1997), invoked her "inherent equitable powers," and entered restraints in plaintiff's favor. The court reversed, holding that even if it represents good law, P.J.G. requires that some other vehicle – such as another pending action between the parties – must be available for the issuance of restraints based on the trial court's inherent equitable powers. There being no action between the parties except the domestic violence action in question, the trial court was not authorized to impose restraints or do anything but dismiss plaintiff's domestic violence action without granting affirmative relief.

The court reverses an order granting the judgment creditor's motion to turn over the funds in a joint marital account without a determination of whether the funds belonged to the debtor husband alone. The court notes that the wife was not a judgment debtor, did not sign the agreement with the creditor to make payments to avoid the levy, and claimed the funds were exempt pension funds.

Plaintiff appealed the dismissal of his complaint under N.J.S.A. 52:4C-1, the Mistaken Imprisonment Act. Plaintiff was convicted in 1988 of possession of cocaine and weapons. He served five and one half years and was released from prison in 1996. In April 1999, the New Jersey Office of the Attorney General issued a report acknowledging the State Police's use of racial profiling on the Turnpike from 1988 to 1999 and in 2000, agreed to vacate convictions and dismiss charges for certain cases.

In November 2011, plaintiff was convicted in the United States District Court for the Middle District of Pennsylvania for another narcotics offense and sentenced to thirty years. The federal court used plaintiff's New Jersey convictions to enhance his federal sentence because he qualified as a three-strike "career offender".

On May 2, 2014, the New Jersey court consented to order vacating defendant's 1988 New Jersey conviction because it was subject to inclusion in the aforementioned State Police racial profiling consent order. In light of the vacated conviction, the federal court resentenced plaintiff to a shorter term as he no longer qualified as a "career offender." Plaintiff filed suit under the Act on April 27, 2016.

The trial judge dismissed plaintiff's complaint. The panel affirmed the dismissal of plaintiff's complaint because the plain language of N.J.S.A. 52:4C-4 identifies two triggering events from which to calculate the two-year statute of limitations: release from imprisonment or a pardon. Because plaintiff's complaint was filed beyond the two years after his release from prison in New Jersey and the vacatur of his conviction was not a pardon, his complaint was not timely filed.

In this premises liability case, we reverse a Law Division order granting a directed verdict to defendants, a condominium association and its property manager, and dismissing with prejudice the negligence claim of plaintiff, a condominium resident. We hold that the association had a statutory duty to maintain the common areas, including a duty to identify and correct dangerous conditions, and that duty extended to residents of the condominium building, regardless of their characterization as licensees or invitees. While the condominium association has a statutory right to adopt a by-law precluding residents from suing the association for negligence, the association did not adopt such a by-law. Because plaintiff's evidence, if credited by the jury, established a prima facie case of negligence, we reverse and remand for a new trial.

In this PCR appeal, defendant collaterally challenged his conviction, after a guilty plea, to aggravated manslaughter. The panel concludes that defendant, in the course of his allocution, suggested a defense of others that was inconsistent with guilt; his waiver of that defense was not knowingly made; therefore, he did not present a sufficient factual basis of guilt. In reaching this conclusion, the panel applies the principles set forth in State v. Urbina, 221 N.J. 509 (2015), although that case involved a claim of self-defense, rather than the defense of others, suggested in the course of a guilty plea. In view of defendant's contemporaneous claim of innocence, the panel held that the failure to elicit a sufficient factual basis was of constitutional dimension and warrants PCR.

Defendant appealed from an order terminating litigation after a fact-finding hearing wherein a Family Part judge determined she had abused or neglected her son by exposing him to domestic violence and suggesting she wanted to commit suicide. The panel reversed because the trial judge impermissibly admitted and relied on insufficiently corroborated statements of the child, as well as facts and complex diagnoses within a hearsay report of a psychologist consultant of the Division of Child Protection and Permanency. In particular, the panel noted the corroboration necessary to rely on the hearsay statements of the child, N.J.S.A. 9:6-8.46(a)(4) must be direct or circumstantial and corroboration should not be conflated with reliability. The panel also reiterated when an expert is not produced as a witness, N.J.R.E. 808 requires exclusion of the expert's complex disputed opinion, even if the opinion is contained in a business record, unless the trial judge makes specific findings regarding trustworthiness.

Appellant was a volunteer firefighter when she was injured responding to a fire. She was unemployed at the time of the injury and received no wages. Following a hearing, a Workers' Compensation judge denied appellant's application for temporary total disability benefits. The panel agreed that payment of temporary disability benefits depended upon proof of lost wages. Temporary disability is intended to replace lost wages. Without proof of lost wages, appellant had no entitlement to temporary disability benefits under the Workers' Compensation Act.