Published Appellate Court Opinions

In this negligence and products liability action involving plaintiff's ingestion of one of defendant's products, SHED RX, a diuretic, which contained a substance banned by the World Anti-Doping Agency, this appeal required the court to reiterate well-settled principles set forth in Rule 4:50-1 relative to motions to vacate default judgments. The court also reviewed the standard for calculating damages under the New Jersey Consumer Fraud Act, N.J.S.A. 56:8-1 to -226 for plaintiff's claims of lost wages and income, reputational damages, and infliction of emotional distress, ascertainable loss, and trebling of damages.

Defendant's firearms were seized following entry of a temporary restraining order against him pursuant to the Prevention of Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17 to -35. The court entered a final restraining order (FRO) following a trial, but later granted defendant's motion for reconsideration, vacated the FRO, and, following a second trial, dismissed the domestic violence complaint because the plaintiff did not sustain her burden of proving an entitlement to an FRO.

Following entry of the FRO, the State moved for forfeiture of defendant's weapons under the PDVA. Notwithstanding the subsequent dismissal of the FRO, the State argued it was entitled to forfeiture under N.J.S.A. 2C:25-21(d)(3) because N.J.S.A. 2C:25-29(b), which requires that domestic violence FROs include a minimum two-year bar on a defendant's possession and ownership of a firearm, resulted in a disability under N.J.S.A. 2C:58-3(c)(6), which prohibits the issuance of a handgun purchase permit or firearms purchaser identification card to a person who is "subject to" a PDVA restraining order prohibiting possession of a firearm. The motion court denied the State's forfeiture application, and the State appealed.

The court affirms the motion court's denial of the forfeiture application. The court holds an FRO that is vacated as improvidently granted in the first instance does not support the otherwise mandatory bar under N.J.S.A. 2C:25-29(b), and therefore does not result in a disability under N.J.S.A. 2C:58-3(c)(6) permitting forfeiture under N.J.S.A. 2C:25-21(d)(3).

The New Jersey Education Association challenged a regulation of the Public Employee Retirement System Board that amended the definition of "willful negligence." The definition is important because a public employee seeking an accidental disability pension must prove that his or her disability did not result from his or her willful negligence. The court invalidates the regulation because it strays from the Legislature’s intent to include an element of recklessness in "willful negligence," and because the regulation’s plain language contradicts the Board’s own reasoning in defense of its proposal.

In this case of first impression in New Jersey, the court considers whether N.J.S.A. 34:15-95.5 requires a triennial redetermination of petitioners' combined awards of state workers' compensation total disability benefits and social security disability benefits (SSD) as is done under 42 U.S.C. § 424a.

Under both N.J.S.A. 34:15-95.5 and 42 U.S.C. § 424a, a petitioner is limited to the amount they can simultaneously collect from SSD and state workers' compensation benefits. If the combined monthly total benefits of SSD and state workers' compensation benefits exceeds eighty percent of the petitioner's pre-disability average current earnings (ACE), SSD is reduced. Under 42 U.S.C. § 424a, Social Security receives the benefit of the offset.

In 1980, New Jersey enacted a law authorizing the reduction of the workers' compensation award instead of SSD when determining the simultaneous collectability of benefits. Therefore, New Jersey is a reverse offset state, meaning that the employer, insurance carrier, or Second Injury Fund gets the benefit of the offset, not Social Security.

42 U.S.C. § 424a(f) requires a triennial redetermination of benefits. N.J.S.A. 34:15-95.5 does not. Petitioners contend our Legislature intended to adopt the federal triennial redetermination provision. However, the plain language of N.J.S.A. 34:15-95.5 does not include a redetermination of benefits. And the legislative history is similarly silent. See Sponsor's & Lab. Comm. Statement to A. 1206 1-17 (L.1980, c. 83). Moreover, 42 U.S.C. § 424a(d) explicitly states that a triennial redetermination is not applicable in reverse offset states.

Because our Legislature did not include a cost-of-living increase in the statute, and the federal statute exempts reverse offset states from reviewing its benefits triennially, we affirm the order denying a redetermination of benefits and for the reimbursement of overpayment of benefits.

In this appeal, the court addresses the relatively rare set of facts requiring a self-defense jury instruction when a defendant is charged with unlawful possession of a weapon in violation of N.J.S.A. 2C:39-5(d). A jury convicted defendant of fourth-degree unlawful possession of a weapon, which was a knife. Defendant argues that the jury instruction on the charge was improper because it did not include his request for a self-defense instruction. The court agrees and reverses his conviction because the jury could have found self-defense was a justification for defendant's possession of a knife, which he testified he possessed for use at work and only took out spontaneously in self-defense. Defendant's other arguments are without merit or moot.

In this interlocutory appeal, the court held that although the Legislature established a bill of rights for those living in assisted living residences, N.J.S.A. 26:2H-128(b), it did not recognize – as it had with residential health care facilities, rooming and boarding houses, dementia care homes, or nursing homes – their right to pursue a private cause of action for a breach of the bill of rights. The court also determined that the common law should not adopt such a cause of action.

This case arises out of the development of a solar energy power plant on land in Tinton Falls leased by private parties from the United States Department of the Navy at Naval Weapons Station Earle (NWS Earle).

Under Article I, Sec. 8, par. 17 of the United States Constitution, the land on which NWS Earle is located became a federal enclave in 1947 when the Governor of New Jersey ceded jurisdiction to the United States. As a result, any activities on NWS Earle, located on federal land, are free from regulation by any state or locality.

The majority of the electricians working on the project were members of plaintiff International Brotherhood of Electrical Workers Local 400 (IBEW). IBEW contended Tinton Falls was responsible for the issuance of permits and conducting inspections. The municipality and the New Jersey Department of Community Affairs (DCA) informed IBEW that state laws did not apply to federal territory. The federal government had the exclusive right to regulate its properties.

IBEW instituted suit against Tinton Falls and the DCA. IBEW did not sue the federal government. The trial court granted defendants' motions to dismiss because the federal government was a necessary party to the action and the state court lacked jurisdiction over the federal enclave.

The court affirmed. In addition to being the lessor of the property, the Navy was involved in every aspect of the construction project. The action could not be adjudicated without the joinder of the federal government required under Rule 4:28-1.

The court also found that any amendment to the complaint to join the federal government would be futile because the federal district courts have exclusive jurisdiction over the federal government and the Navy as a military branch. Therefore, the United States cannot be joined as a party in the state court suit. Because the trial court lacked jurisdiction over the federal government, the judge could not address or interpret the applicable contract. As there were no state claims left to adjudicate in the trial court , the complaint was properly dismissed under Rule 4:6-2 (a), (e), and (f).

Rule 1:21-1B governs the practice of law as an LLC. Among other things, it mandates that attorneys who do so must procure professional liability insurance that provides coverage to the LLC for damages "arising out of the performance of professional services by attorneys employed by the [LLC] in their capacities as attorneys." R. 1:21-1B(a)(4). Plaintiff, an attorney who conducted her practice as an LLC, purchased a professional liability insurance policy from defendant. Plaintiff's paralegal embezzled nearly $800,000 of clients' closing funds from the firm's trust account. Plaintiff made a claim for defense and indemnification under the policy, but defendant declined coverage, relying on the policy's definition of covered damages. That definition explicitly excluded damages for "the return or restitution of . . . misappropriated client funds . . . ."

Plaintiff sought declaratory judgment seeking reformation of the policy, arguing that the policy did not comply with the Rule, which had the force of statutory law, and which was intended to protect the public from uninsured risks. Alternatively, plaintiff argued the policy was ambiguous and failed to meet her reasonable expectations. The court rejected these arguments and affirmed the Law Division's grant of summary judgment to defendant.

M.F.'s assigned counsel appeals from a February 19, 2020 order granting M.F.'s legal guardian's application to intervene in M.F.'s involuntary commitment proceedings. On appeal, M.F.'s counsel argues the guardian has not met the criteria for intervention under Rule 4:33-1 or Rule 4:33-2, and that the plain language of N.J.S.A. 30:4-27.12 precludes intervention as a matter of law. This case presents the issue of who is entitled to express a position on whether M.F., a gravely disabled patient involuntarily committed to a psychiatric hospital, continues to meet the statutory definition of dangerousness. The issue is complicated by the fact that M.F. is unable to express his preference due to his debilitating mental illness.

Based upon the record and in light of the applicable law, the court affirmed the judge's order allowing the legal guardian to intervene, not to usurp assigned counsel's role, but to fulfill his separate duties to safeguard the welfare of his ward. Because M.F.'s views are not easily or readily ascertainable, however, and considering the sharply divergent views of the legal guardian and assigned counsel, the court directed that on remand the judge appoint an attorney to serve as guardian ad litem for M.F., to conduct an investigation and report his or her findings to the court.

A grand jury indicted defendant with first degree kidnapping, four counts of first degree aggravated sexual assault, and other related offenses. At the victim's request, the State sought a protective order pursuant to Rule 3:13-3(e)(1) to exclude her home address from the discovery made available to defendant. The trial court ordered the State to disclose the victim's home address to his counsel and investigators.

By leave granted, this court holds that the disclosure of the victim's home address in this case violates the public policy of this State, as reflected in The Victims' Rights Amendment to our State Constitution. N.J. Const., art. I, ¶ 22. This disclosure also violates the Sexual Assault Victim's Bill of Rights, N.J.S.A. 52:4B-60.1 to 60.3, which gives a victim of sexual violence the right "[t]o choose whether to participate in any investigation of the assault[.]" N.J.S.A. 52:4B-60.2(7).

Plaintiff and defendant—brother and sister, respectively—were named as co-trustees of a trust created by their mother. A few months after their mother's passing, plaintiff resigned as trustee. He later contested his resignation and his sister's actions as the remaining trustee, filing a verified complaint and subsequent amended verified complaint seeking: an order declaring him a trustee; a full accounting of the actions taken by defendant as trustee; a return of all trust and non-trust property taken by defendant or any agent of defendant; compensatory, consequential, incidental, nominal and expectation damages; and lawful interest, attorney's fees and other equitable relief.

The court determined the trial court's decision that plaintiff signed a Resignation of Trustee and did not, as he contended, delegate his authority to a co-trustee was supported by substantial, credible evidence. Neither prior notice of the resignation to the trust's beneficiaries and the co-trustee nor approval of the court was needed under N.J.S.A. 3B:31-50(a), because the trust provided if either trustee was "unable or unwilling to serve or to continue to serve, then the other shall serve as sole trustee[.]" It further provided "[n]o [t]rustee shall be required to obtain the order of any court to exercise any power or discretion" under the trust. Not only did the trust allow resignations, it provided for continuity of the trust's administration if a trustee did resign. Because plaintiff resigned, the court further rejected his argument that defendant violated N.J.S.A. 3B:31-48 by making unilateral decisions.

The court also upheld the trial court's determination that defendant did not violate the Prudent Investor Act (the Act), N.J.S.A. 3B:20-11.1 to -11.12, by holding trust assets in regular bank accounts. The prudent investor rule is a default rule—expressing "a standard of conduct, not outcome," N.J.S.A. 3B:2-11.9—and was expanded by the trust provisions granting defendant broad investment powers. The degree of caution exercised by defendant was befitting her fiduciary capacity

Although defendant breached her fiduciary duty by making a one-time distribution of trust funds to herself, she acted in accordance with the trust's broad grant of powers by delaying other interim distributions until inheritance taxes were paid. The court also determined, under N.J.S.A. 3B:31-72(a), the trial court properly found plaintiff was entitled only to five-percent interest on the amount of the co-trustee's self-serving distribution, dismissing plaintiff's request for "other appropriate relief" under N.J.S.A. 3B:31-71(b)(10), including lost investment opportunity and punitive damages, because the "opinion" of plaintiff's expert was "nothing more than speculation of what [p]laintiff might have earned if distributions were made to [him] from the [t]rust," and plaintiff did not pray for punitive damages in his complaint or prove defendant acted with actual malice or wanton and willful disregard for plaintiff.

In addition, the court determined, notwithstanding a fiduciary's duty to communicate with beneficiaries as required by N.J.S.A. 3B:31-67(a) and 3B:31-5(b)(7), there was no evidence that plaintiff suffered damages as a result of defendant's unresponsiveness to his inquiries for a brief period.

The court also summarily addressed plaintiff's counsel-fee arguments and his argument that the trial court abused its discretion by refusing to allow him to testify as a rebuttal witness.

In this third-party automobile negligence action, this court determined that plaintiff was entitled, under the Comparative Negligence Act (CNA), N.J.S.A. 2A:15-5.1 to -5.8, to fully recover his damages from defendant after the jury found her sixty percent responsible for causing the accident, even though defendant was unable to obtain contribution under the Joint Tortfeasors Contribution Law, N.J.S.A. 2A:53A-1 to -5, directly from plaintiff's uninsured motorist (UM) carrier. From a practical standpoint, defendant receives an offset up to plaintiff's uninsured motorist policy limit, thereby foreclosing the possibility of plaintiff receiving double recovery. But her inability to recover directly from the UM carrier for any amount defendant paid above her pro rata share does not present an obstacle to plaintiff's full recovery under the CNA.

This interlocutory appeal from a Rule 4:6-2(e) dismissal order raises novel issues of legal duty and tort liability in a drunk driving context. The issues concern whether a volunteer who assures police officers at a roadside stop of an apparently inebriated driver that he will take the driver and his car safely to a residence—but thereafter relinquishes the car to the driver before reaching that destination—can be civilly liable as a joint tortfeasor if the driver then collides with and injures another motorist

In the present case, police officers stopped a driver who was traveling in the wrong direction on a one-way street. Perceiving the motorist was unfit to drive, the officers asked him if he could arrange for someone to pick him up. The motorist called a friend, who quickly arrived and assured the officers that he would drive the motorist and his car to another location. Relying on this assurance, the police issued a moving violation traffic ticket to the motorist and allowed the friend to drive him away. Minutes later, the friend returned the car to the motorist at a railroad crossing and separated from him. The motorist, who was intoxicated well over the legal limit, resumed driving and crashed his car into the plaintiff's vehicle. He later pled guilty to committing assault by auto while under the influence of alcohol. The severely injured plaintiff sued the driver, a bar where the driver had been drinking that night, the police officers and their city employer, and the volunteer. The volunteer moved to dismiss the claims against him, arguing he owed no legal duty that could make him civilly liable to any extent for this accident.

After reviewing a video of the motor vehicle stop and a prosecutor's investigative report, the motion judge concluded the volunteer breached no legal duty to the injured plaintiff. The judge accordingly dismissed plaintiff's claims, as well as the police defendants’ related cross-claims for contribution, against the volunteer.

Applying statutory public policies, including John's Law, N.J.S.A. 39:4-50.22, and allied common law principles, the court reverses the motion judge's dismissal order.

The court holds that a volunteer who fails to discharge his commitment to the police in such a situation and who willingly allows a visibly intoxicated motorist to resume driving can bear a portion of the civil liability for an ensuing motor vehicle accident caused by that drunk driver. The presence of such a legal duty will hinge upon whether the volunteer is advised by the police, or objectively has reason to know from the surrounding circumstances, that his or her promise is an important obligation and that failing to carry it out could result in civil financial consequences.

The court granted leave to appeal and summarily vacated an order that denied reconsideration of an earlier interlocutory order because the judge invoked the "palpably incorrect" standard, which applies only to Rule 4:49-2 motions to alter or amend a final judgment or final order, instead of the more liberal standard of Rule 4:42-2, which declares that interlocutory orders "shall be subject to revision at any time before the entry of final judgment in the sound discretion of the court in the interest of justice." The court also found the judge erred by giving undue deference to the prior judge's interlocutory order and by applying the law of the case doctrine, which has no bearing in this setting.

In remanding, the court provided guidance about the prior order that precluded a non-party, who failed to appear for a subpoenaed deposition, from testifying at trial. The court observed that the first judge had applied Rule 4:23-2, which applies only to parties, instead of Rule 1:9-5, which applies when a non-party fails to honor a subpoena. The court directed that the trial judge, in ruling on the reconsideration motion, consider how the latter rule's purpose is to secure the non-party's compliance with the subpoena, not to hamper the trial's search for the truth by eliminating the non-party's potentially relevant testimony.

Plaintiff, a limited liability company (LLC), sued defendants, alleging they had been members of plaintiff, were bound by an operating agreement they had not signed, and, under the terms of the operating agreement, owed plaintiff shortfall amounts and penalties when they voluntarily left plaintiff. The trial court summarily determined defendants were bound by the operating agreement, relying primarily on N.J.SA. 42:2C-12(b), which states "[a] person that becomes a member of a limited liability company is deemed to assent to the operating agreement."

Considering the definition of operating agreement set forth in N.J.S.A. 42:2C-2 and the language of N.J.S.A. 42:2C-12(b), the court held a draft operating agreement does not become the operating agreement of an LLC unless it is "the agreement . . . of all the members of" the LLC, N.J.S.A. 42:2C-2, meaning "all the members" have to agree to it. If all existing members do not agree to the draft agreement when it is proposed, then the draft operating agreement remains a draft agreement and does not become the operating agreement of the LLC. If all members agree to a draft operating agreement, it then becomes the operating agreement of the LLC and any subsequent members are bound by the already-existing operating agreement. Because the trial court misinterpreted statutory law, the court reversed the partial summary judgment entered in plaintiff's favor.

A jury convicted defendant of the murder of her six-year-old son, who defendant reported went missing while both were at a Memorial Day carnival in 1991. Although defendant was immediately suspected of the crime in 1992 when her son's remains were found in a shallow grave, and the case received national media attention, the State did not indict defendant until 2014, after three women who babysat the child in the late 1980s and early 1990s identified a distinctive blanket found at the gravesite as the child's.

Defendant appealed, contending the evidence was insufficient to prove that she caused her son's death, and the delay in prosecution violated her due process rights. Defendant also argued that the judge erred by dismissing a deliberating juror who had conducted independent research and substituting an alternate juror to continue deliberations.

The court affirmed defendant's conviction, concluding that giving the State the benefit of all favorable testimony and inferences drawn from the circumstantial evidence presented to the jury, there was sufficient evidence to prove defendant purposefully or knowingly caused her son's death. The court also concluded the delay in prosecution did not deny defendant her due process rights, and the judge did not err in substituting an alternate for a deliberating juror who had violated the court's instructions and conducted independent research.

J.S. challenged an order continuing his civil commitment to the Special Treatment Unit under the Sexually Violent Predators Act, N.J.S.A. 30:4-27.24 to -27.38 on grounds his trial counsel provided ineffective assistance. The court affirmed the order of commitment and held that a litigant subject to a civil commitment may raise claims of ineffective assistance of counsel. The court also held that such claims may be raised on appeal from the commitment order or an order continuing commitment. However, the record must be sufficient to address the claims. Otherwise, the claims of ineffective assistance of counsel must be raised to the trial court in the first instance.

Defendant Bey Lea Village Care Center owned and operated a nursing facility where Maryann Cottrell was a patient. She signed an arbitration agreement upon her admission in 2017, was there for twenty days and discharged. She was admitted to Bey Lea again in early 2018 where she resided for ten months until her death. Maryann Cottrell did not sign an arbitration agreement for the 2018 admission. While she was a resident in 2018, Bey Lea sold the nursing facility to defendant Complete Care at Bey Lea, LLC. Defendants claim the 2017 arbitration agreement applies to the 2018 admission.

The court affirms the order denying arbitration of issues arising from the 2018 admission. The court concludes there was no arbitration agreement for the 2018 admission and the 2017 agreement did not apply. Although the 2017 arbitration agreement included a clause delegating to an arbitrator the ability to decide "gateway disputes regarding the enforceability, validity, severability and/or interpretation" of the arbitration agreement, it was for a judge —not an arbitrator— to decide whether the 2017 arbitration agreement applied to the 2018 admission. The 2017 agreement did not apply because Maryann Cottrell did not assent to arbitrate disputes about the 2018 admission.

Plaintiff was severely injured in a one-vehicle motorcycle accident and was diagnosed with quadriplegia. He claims the EMTs who responded to the accident scene caused or exacerbated his injuries by the way they picked him up from the ground and placed him in the ambulance. Plaintiff appeals from the order of Law Division that denied his motion for leave to file a late notice of claim under the Tort Claims Act.

N.J.S.A. 59:8-8 requires a claimant to file a notice of claim within ninety days of its accrual. This court holds the Law Division mistakenly exercised its discretion by not giving proper consideration to the traumatic ramifications of the catastrophic, life-altering injuries plaintiff suffered in this accident. Under the standard established by the Supreme Court in S.E.W. Friel Co. v. New Jersey Turnpike Auth., 73 N.J. 107, 122 (1977), these facts are sufficient to constitute "extraordinary circumstances" pursuant to N.J.S.A. 59:8-9.

The court remands the matter for resentencing of Latonia Elizabeth Bellamy, a/k/a Na-Na, Latonia E. Bellamy, Latonia Bellamy, whom a jury convicted of first-degree murder, N.J.S.A. 2C:11-3(a)(1) and (2), among other offenses. The court reiterates that a resentence, absent some specific limiting directive to the contrary, allows a judge to engage in the statutory analysis anew. State v. Case, 220 N.J. 49 (2014). The judge must sentence the defendant as he or she stands before the court at that time.

The court also addressed the applicability of N.J.S.A. 2C:44-1(b)(14), a mitigating factor enacted after defendant's prior sentence. It applies when a defendant is less than twenty-six years of age when the crimes occurred. It may be considered on remand because this is essentially a new sentence proceeding. Application of the statute is therefore not "retroactive," and even if so, the statute's ameliorative purpose allows it. This does not automatically entitle youthful defendants sentenced before October 19, 2020, with cases in the pipeline, to reconsideration of their sentences based solely on a claim that the new law should be applied.

Furthermore, defendant should be granted access, pursuant to N.J.S.A. 9:6-8.10a(b)(6), to her Division of Child Protection and Permanency records in preparation for her sentence. Defendants charged with crimes are entitled to the records, redacted by the court, to aid in their defense where relevant as a matter of due process. State v. Cusick, 219 N.J. Super. 452, 459 (App. Div. 1987). The records should be made equally available to individuals who came under the Division's care and may benefit from access to the information. The application may be made in the Law Division, not in the Family Part.