Opinion Summaries

Tax Court: R.O.P. Aviation Inc. v. Director, Division of Taxation, Docket No. 001323-2018; opinion by Sundar, P.J.T.C., decided May 27, 2021. For plaintiff – Leah Robinson and Brian Kittle (Mayer Brown LLP, Esq.); for defendant – Michael J. Duffy (Gurbir S. Grewal, Attorney General of New Jersey, attorney).

Held: Plaintiff’s partial summary judgment motion to void defendant’s audit adjustment to its carried forward net operating loss (NOL) deduction is granted and defendant’s cross-motion to amend its expert report to substantiate such adjustment is denied. The NOL deduction in the open (i.e., within the statute of limitations) audited tax years 2012-2015 derive from losses generated in 2007-2011, closed tax years because they were beyond the statute of limitations for audit under N.J.S.A. 4:49-6. Since the closed tax years were never audited by defendant, disallowing the carried forward NOLs from those years is tantamount to reopening and auditing the closed years and indirectly collecting additional tax that flows from the closed years. This is impermissible and time barred under N.J.S.A. 54:49-6. Defendant’s broad discretion under N.J.S.A. 54:10A-10 to determine a taxpayer’s fair and reasonable corporation business tax is nevertheless limited by the four-year statute of limitations under N.J.S.A. 54:49-6. Since the NOL adjustment is time barred, defendant’s cross-motion for partial summary judgment to have its expert’s report amended to substantiate the validity of such adjustment is moot and thus denied.

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.

Trial courts may conduct voir dire questioning about a prospective juror’s views on disputed issues to determine whether the juror will follow the court’s instructions and deliberate with an open mind. The trial court must ensure, however, that such questioning is not partisan and that it will not indoctrinate prospective jurors in favor of either side’s position. The court must present the issue to prospective jurors in balanced and impartial terms. In this case, the questioning addressed only the component of the legal standard that assisted the State; it did not equitably present the evidentiary issue to the prospective jurors. The responses of some of the prospective jurors indicate that the inquiry may have confused them. The form of the questioning strongly favored the State’s position and may have encouraged jurors to convict defendant. Accordingly, defendant was not afforded his right to an impartial jury and is entitled to a new trial.

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.

The novel issue presented in this appeal is whether a claim of self-defense applies to a charge of endangering an injured victim, N.J.S.A. 2C:12-1.2(a), when the injured victim has been injured by the defendant in the course of defending himself against said victim.

Following a jury trial, defendant was acquitted of murder and weapons offenses but convicted of endangering an injured victim, whom he admitted stabbing in self-defense after an altercation during which the victim forbade defendant from entering a store, threatened to beat defendant up, and threw a punch when defendant refused to heed the warnings. Defendant dodged the punch and stabbed the victim once in the chest with a knife defendant had produced from his pocket and brandished during the altercation. After the stabbing, the victim staggered around before collapsing on the ground and defendant left the scene without calling for medical assistance. The victim was later transported to the hospital where he died from the stab wound the following morning. Video surveillance footage of the entire five-minute encounter was played at the trial.

The trial judge instructed the jury on self-defense as applied to the homicide and weapons-related charges, but not the endangering charge. At trial, defense counsel neither requested the charge nor objected to its omission. However, on appeal, defendant argued the charge should have been given because self-defense applied to endangering.

After analyzing the general principles pertaining to justification defenses and considering the elements and legislative history of the endangering an injured victim statute, the court concluded that its omission in the unique facts presented in this case does not rise to the level of plain error. The court reasoned that when defendant left the scene, it was clear that his conduct had rendered the victim physically helpless such that he no longer posed a threat to defendant or anyone else. Because the victim was physically helpless, defendant could not have had a reasonable belief in the continued need to use force or the requirement to retreat without summoning medical assistance to justify self-defense. Rather than imposing an obligation on defendant to secure the safety of his attacker while endangering himself, the application of the endangering statute in this case sought to preserve a life after the threat or need for force had been neutralized.

Judge Sabatino joins in the result and issues a concurring opinion. The concurrence underscores the court's recognition that principles of self-defense, necessity or other justification may appropriately apply in some factual situations to relieve a crime victim, who has repelled and injured an attacker, of criminal liability under N.J.S.A. 2C:12-1.2(a).

Because it is unclear whether defendants’ motion for summary judgment was decided based on the CEPA provision on which plaintiff relies, the Court remands plaintiff’s claim regarding the Capehart & Scatchard proposal to the trial court. As a matter of law, plaintiff presented no prima facie evidence of a causal nexus between her comments on the retention of Ballard Spahr and the County’s decision not to renew her contract. The Court reinstates the order granting summary judgment as to that claim.

Defendant owned a trampoline park and required that adults who brought minors to the facility electronically execute a waiver of rights that also included an arbitration agreement at a computer station prior to entry. The adult would necessarily have to certify he/she was the parent or legal guardian of the minor or had been granted power-of-attorney to execute the waiver on behalf of the child's parent. Third-party defendant listed plaintiff's child as one of the minors seeking entry to the facility and executed the waiver. Plaintiff's child fractured his leg while using the trampolines.

Defendant sought summary judgment dismissing the complaint and compelling arbitration of plaintiff's negligence claims. Defendant argued that it reasonably believed in the third party's "apparent authority" to execute the waiver on plaintiff's behalf. The judge denied defendant's motion and defendant appealed as of rights.

The court affirmed, rejecting defendant's argument that it was entitled as a matter of law on the motion record to rely on the doctrine of apparent authority to enforce the waiver and compel arbitration. In particular, the court examined the provisions and commentary of the Restatement (Third) of Agency regarding the doctrine of apparent authority.

This appeal implicates the proper application and limitations of Rule 1:13-7, an administrative "docket-clearing rule." The court considered two issues: (1) whether the good cause or exceptional circumstances standard applies for reinstatement of the complaint in a multi-defendant case, where no defendants have appeared in the case and participated in discovery; and (2) whether the rule empowers the trial court to dismiss a complaint with prejudice in response to a motion filed by the nondelinquent party.

The court concluded the trial court misapplied the exceptional circumstances standard under Rule 1:13-7, thereby preventing adjudication of plaintiffs' claims on the merits. In that regard, the trial court mistakenly exercised its discretion by denying plaintiffs' motion to reinstate their complaint. The court also held that Rule 1:13-7 neither empowers a trial court to dismiss a cause of action with prejudice nor authorizes a party in a case to affirmatively seek such a drastic sanction as a form of relief.

Accordingly, the court reversed and remanded the order under review so the underlying medical malpractice action can be decided on the merits.

An explicit statement, explaining the overall fairness of a sentence imposed for multiple offenses in a single proceeding or in multiple sentencing proceedings, is essential to a proper Yarbough sentencing assessment and was lacking here. The lack of any overall assessment of the fairness of the decision to impose consecutive sentences compels reversal of defendant’s sentence and remand for a new resentencing, and the Court provides important guidance regarding that essential assessment.

Defendant appealed from a final restraining order (FRO) entered against her pursuant to the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35, based on a predicate act of harassment, N.J.S.A. 2C:33-4(a). This court reversed because the trial court did not conduct the required legal analysis necessary to enter the FRO under Silver v. Silver, 387 N.J. Super. 112 (App. Div. 2006) and the record did not demonstrate plaintiff needed future protection. Further, our review of the record also disclosed defendant was deprived of due process due to numerous trial irregularities in the remote proceeding, including that defendant had insufficient notice and opportunity to prepare a defense in her case, plaintiff's witness was not sequestered, plaintiff testified in the witness's presence with witness coaching plaintiff, and the trial court engaged in inappropriate questioning of defendant.

The trial court correctly admitted A.B.’s statement identifying defendant as her shooter as a dying declaration under N.J.R.E. 804(b)(2), and the admission of A.B.’s statement as a dying declaration does not violate the Confrontation Clause of the Sixth Amendment to the United States Constitution or Article I, Paragraph 10 of the New Jersey Constitution.

In 2019, three women alleged that J.D. sexually assaulted them years earlier when they and J.D. were minors. The State filed juvenile delinquency complaints against J.D. and moved to waive certain charges to the Criminal Part to try J.D. as an adult on the alleged assaults that occurred when he was between the ages of fifteen and seventeen.

The issue on this appeal is whether the waiver proceedings should be governed by the current statute, N.J.S.A. 2A:4A-26.1, which became effective in March 2016, or by a hybrid of the current statute and one provision of the statute in effect at the time of the alleged offenses, N.J.S.A. 2A:4A-26(e). The court holds that the current statute governs.

Plaintiffs sufficiently pled the class certification requirements to survive a motion to dismiss. The Court remands the matter for class action discovery to be conducted pursuant to Rule 4:32-2(a) so that the trial court may determine whether to certify the class.

The mother of an infant girl was unable to identify the father, so defendant was not a specified party to the KLG action the Division instituted shortly after his daughter's birth because the mother's disabilities rendered her unable to care for her daughter. Defendant remained incarcerated for the greater part of the first twelve years of her life but, after he learned of the child and established paternity, applied for visitation. By then, the child had been in the care and custody of the KLG guardian. Eventually, the trial court amended the KLG judgment and granted defendant limited contact with his daughter.

After a series of motions relating to that contact, defendant sought visitation and vacation of the KLG judgment. The trial court granted limited contact with the child—then twelve years old—and refused to address the motion to vacate the KLG judgment, concluding res judicata precluded such an application.

We reversed, determining the court erred because res judicata did not bar defendant's application to vacate the judgment rendered in an action to which he was not a party and involved proofs related solely to the mother, not defendant. We recognized the KLG judgment did not abrogate defendant's parental rights.

We reviewed the statutory grounds for vacating a KLG judgment under N.J.S.A. 3B:12A-6(f) and 3B:12-6(g), the procedures that should be followed and the criteria analyzed in determining the child's best interests when a non-party seeks to vacate a KLG judgment.

Defendant appealed from a declaratory judgment finding the marital agreement (MA) she and her former spouse signed eight months after they married was a valid, enforceable agreement. And, she appealed from the final judgment of divorce (JOD) that incorporated the MA. We conclude the trial court erred by deeming the agreement to be in the nature of an enforceable pre-marital agreement. The parties' mid-marriage agreement was negotiated and executed after they wed, and the inherently coercive circumstances accompanying the making of the agreement here warranted heightened judicial scrutiny to assure it was fair and equitable. Therefore, we reverse the declaratory judgment and that portion of the JOD which enforced the MA, vacate the denial of defendant's counsel fee request, and remand for further proceedings. We identify factors the trial court should consider on remand when assessing whether to enforce the agreement.