Published Appellate Court Opinions

Defendants – an attorney and law firm – have a client that produced a report, which asserts plaintiffs unlawfully conducted gambling-related business in forbidden countries. At the client's behest, the defendant attorneys forwarded the report to the New Jersey Division of Gaming Enforcement. When the media learned of the report, plaintiffs sued the defendant attorneys, as well as their anonymous client and other fictitious persons, alleging defamation and other torts. Plaintiffs successfully obtained an order compelling the defendant attorneys to provide their client's identity. The court granted the defendant attorneys' motion for leave to appeal.

Although RPC 1.6 generally imposes on attorneys the ethical obligation to refrain from disclosing a client's identity without the client's consent, the court held that this interest in preserving confidentiality cannot be used to thwart justice and, in appropriate circumstances, a client's right to anonymity may be overcome in favor of an injured party's right to seek redress in our courts. To resolve the conflict between these interests, there must be a deeper examination of the claim's merits than occurred here. The court, therefore, vacated the disclosure order and remanded for the judge's inquiry into the veracity of the report that lies at the heart of plaintiffs' civil action, leaving to the judge's discretion the methodology to be employed.

         In this opinion, the court addresses the novel issue of whether a party to a pending litigation may compel a non-party State agency to turn over its employees' State-issued and personal cell phones to that party's expert for forensic examination, even when the agency has already produced the relevant records from the devices.  Having reviewed this issue in light of the record, the arguments of the parties, and the applicable law, the court concludes that the trial court misapplied its discretion when it required the New Jersey Department of Health (Department) to give the cell phones to plaintiffs' expert for evaluation.  The trial court's order violated civil discovery rules and case law by requiring the production of materials not in the Department's possession, custody, or control, not allowing for privilege and confidentiality review, and being unnecessary and unduly burdensome.  The order also contravened the employees' constitutional right to privacy.  Therefore, the court reverses the trial court's order mandating that the Department turn over any State-issued or personal electronic devices for examination by plaintiffs' expert, and remands the matter for resolution of any outstanding issues relating to the completeness of the Department's response to plaintiffs' subpoena.

The court affirms Law Division orders consolidating and dismissing seven inverse condemnation actions against the Department of Environmental Protection under the entire controversy doctrine, leaving plaintiffs to their remedies in the DEP's condemnation action against their homeowners association, in which plaintiffs have been participating since 2019.

The case arises out of the State's acquisition of a perpetual storm damage reduction easement by eminent domain in the Association's unbuildable, two-and-a-half-acre beach lot along the Atlantic Ocean in Point Pleasant Beach as part of the Manasquan Inlet to Barnegat Inlet Storm Damage Reduction Project.  Plaintiffs are seven of the twenty-two homeowner members of the Association, each holding a non-exclusive easement appurtenant for recreational purposes in the Association's beach. 

When the court declared DEP had the authority to partially condemn the Association's beach for shore protection in 2016, it entered orders permitting members of the Association to present claims for severance damages allegedly caused to their homes by the partial taking of the beach lot before the condemnation commissioners.  Plaintiffs appeared at the commissioners' hearing in 2019 and have appealed from the commissioners' report and award.  They have an order in the condemnation action ensuring that among the issues to be tried to a jury will be "the separate just compensation due to each of the respective [plaintiffs] by reason of the taking . . . of property of each . . . and any damages to their respective residential lots."  Because plaintiffs' rights to separate awards for just compensation for the loss of value to their homes, if any, resulting from DEP's exercise of eminent domain as to the beach lot are fully protected through their participation in the earlier filed condemnation action, the court affirms dismissal of their inverse condemnation actions under the entire controversy doctrine.

          The court also affirms rejection of plaintiffs' claim that their recreational easements provided them the right to exclude non-Association members from the Association's beach, as neither the express wording of the easement nor the Association's reservation of the right to operate the beach commercially in a 2005 settlement of public trust litigation supports that claim.

In this appeal from proceeding filed in the Family Part involving the cremation remains and personal effects of the parties' son, who died unexpectedly and suddenly at age twenty, the mother unilaterally decided to have the body cremated without informing the father that their son had died, preventing him from participating in that decision and attending the memorial service.  The mother has sole possession of the cremation remains and the son's remaining personal effects and refuses to divide them with the father.  

The court concluded the father had ample opportunity to litigate Colleen's alleged alienation of their son's affection and interference with his parenting time and communication with his late son in the Family Part during the years leading up to his son's eighteenth birthday.  He chose not to do so, and instead waited until the dispute over the cremation remains and personal effects erupted more than two years after their son turned eighteen to first raise those issues.  The court deemed those issues waived and, in turn, concluded that a plenary hearing regarding the parties conduct during the last five years of their son's life is not required as the evidence overwhelming demonstrated the mother had a closer relationship with their son.  Applying a four-prong test, the court held the mother shall have control over the cremation remains.  

The court affirmed the termination of child support, retroactive to the date of death.  

The court also provides guidance on the proper procedure to be utilized in future similar disputes, by filing a complaint in the Probate Part, rather than applications in the Family Part.  

These consolidated appeals present an issue of first impression – whether plaintiffs state viable claims for breach of contract, unjust enrichment, conversion, or money had and received, because the universities they attended transitioned to total online instruction rather than an in-person, on-campus education experience for which they paid, during the statewide health emergency caused by the COVID-19 pandemic.  The universities contend they are immune from liability pursuant to the Emergency Health Powers Act (EHPA), N.J.S.A. 26:13-1 to -36, because their decisions to pause in-person instruction were made in compliance with the executive orders issued by the Governor during a public health emergency to limit the spread of COVID-19 among students, faculty, and the community.  

The court affirms the Rule 4:6-2(e) dismissal of plaintiffs' complaints for failure to state a claim upon which relief can be granted, concluding the universities are immune from liability under N.J.S.A. 26-13-19.  

In this appeal, plaintiff American Civil Liberties Union of New Jersey (ACLU) contended defendant County Prosecutors Association of New Jersey (CPANJ) is a public agency subject to records requests under the Open Public Records Act (OPRA) and the common law right of access.  The ACLU requested CPANJ to produce documents regarding CPANJ's funding, the context and contents of its meetings and events (including dates, times, and locations), and the people performing its operating functions.  CPANJ denied the records request in its entirety, contending it is "not a public agency subject to the dictates of OPRA or requests made under the common law right of access." 

The court held CPANJ is not a public agency subject to OPRA and is not a public entity subject to the common law right of access.  Therefore, disclosure of the requested records was properly denied.  

This case addresses the issue of whether sales tax should be included when calculating the "full retail value" of merchandise under New Jersey's shoplifting gradation statute.  N.J.S.A. 2C:20-11(c).  Defendant pled guilty to shoplifting an Xbox One with an advertised price of $499.99.  Shoplifting constitutes a crime of the third degree "if the full retail value of the merchandise exceeds $500 but is less than $75,000" and a crime of the fourth degree "if the full retail value of the merchandise is at least $200 but does not exceed $500."  N.J.S.A. 2C:20–11(c)(2) and (c)(3).    The State utilized sales tax in grading defendant's offense, and he was therefore charged with a third-degree offense.  

The court analyzed the theft statute, which specifically utilizes sales tax to calculate the "amount involved" in its statutory gradation scheme.  However, the court observed the shoplifting statute contains no such provision.  The court concluded because the Legislature did not determine sales tax should be included in the valuation of full retail value in enacting the shoplifting gradation statute, it was improper for sales tax to have been utilized to increase defendant's charge to a third-degree offense.   

Defendant's car was subjected to a warrantless search incident to an unrelated sting operation planned and carried out by New Jersey State Police.  The State Police detained defendant after a parking lot melee involving three other persons, including the target of the sting operation.  Due to the cold weather, state troopers detained defendant in his car.  After a state trooper opened defendant's car door and placed him inside, the trooper smelled the odor of marijuana.  Based on the trooper's detection of marijuana, the State Police sought defendant's consent to search the car.  After initially refusing, defendant consented, and the State Police conducted a search of the car.  The State Police found no marijuana in the car, but they recovered an illegal gun.  Defendant filed a motion to suppress the gun, arguing the initial entry into his vehicle constituted an unconstitutional search.  The trial court denied the motion, finding the State Police's justification that it was too cold to detain defendant outside was sufficient under the totality of the circumstances.

The Court held that the trial court mistakenly applied State v. Woodson, 236 N.J. Super. 537 (App. Div. 1989), and State v. Conquest, 243 N.J. Super. 528 (App. Div. 1990), and that the opening of the car door constituted an impermissible search.

Reversed and remanded.  

 Defendant was charged with first-degree murder, two weapons offenses, and hindering apprehension.  Tried to a jury, defendant was convicted of the lesser-included offense of second-degree passion-provocation manslaughter, third-degree possession of a weapon for an unlawful purpose, and fourth-degree unlawful possession of a weapon, and not guilty of hindering apprehension.  The trial court found aggravating factors one, three, four, and nine, N.J.S.A. 2C:44-1(a)(1), (3), (4), and (9), and mitigating factor seven N.J.S.A. 2C:44-1(b)(7), but rejected mitigating factor nine, N.J.S.A. 2C:44-1(b)(9).  Following merger of the weapons counts, he was sentenced to a nine-and-one-half-year term, subject to the parole ineligibility and parole supervision imposed by the No Early Release Act, N.J.S.A. 2C:43-7.2.  

The court addressed the judicial factfinding undertaken by the trial court as part of its sentencing analysis.  The court concluded that the trial court's findings regarding the degree of provocation and sufficient time to cool off before delivering the fatal blows were contrary to the jury's verdict and violated the doctrine of fundamental fairness.  
The court also held that aggravating factor four applies to a defendant taking "advantage of a position of trust or confidence" relating to the victim "to commit the offense," not to a minor's subsequent participation in an attempted coverup of the homicide.  

The court also addressed the need for a trial court to provide a detailed explanation of how it reconciles its application of aggravating factor three and mitigating factor seven, the weight assigned to those factors, and how those factors are balanced with respect to a defendant who had no prior juvenile or criminal history and no subsequent criminal history in the decade that elapsed before his arrest.  

 The court vacated defendant's sentence and remanded for resentencing, directing the trial court to not consider whether defendant was adequately provoked or had adequate time to cool off before inflicting the fatal blows, to not apply aggravating factor four, and to apply mitigating factor fourteen.  The court further directed that the trial court reconsider whether aggravating factor three applies and if so, the weight to be given to it.  

Plaintiff Fritzy Rivera was shot by her estranged husband after leaving a friend's apartment at Cherry Hills Towers.  She alledged defendant Vikco, Inc.'s negligence in failing to provide a safe environment as property manager of Cherry Hills Towers allowed him to enter the apartment complex through an open security gate.  Defendant was not the property manager when the assault occurred, but plaintiff contends the open security gate was a practice established by defendant and continued by the new property management company.

The motion court denied defendant's summary judgment motion to dismiss plaintiff's complaint.  Having granted defendant leave to appeal, we reverse. 

We disagree with the court's reasoning that there was a genuine issue of material fact to be determined by the jury as to whether defendant owed plaintiff a duty to provide a safe environment at Cherry Hill Towers when it was not the apartment complex's property manager at the time of the shooting.  Whether defendant owed plaintiff a duty is a question of law to be determined by the court, not by a jury at trial.  Under the circumstances of this case, we conclude our common law does not support plaintiff's theory that defendant's duty to provide a safe and secure environment at Cherry Hill Towers continued after its management services were discontinued.   Summary judgment is granted to Vikco.

In this contract payment dispute between a general contractor and its subcontractor, the court held as a matter of first impression that a "pay-if-paid" provision in a construction contract is enforceable as a matter of law.  The court adopted the construction industry's definition of "pay-if-paid" provisions as conditions precedent to payment that shift the risk of a project owner's nonpayment from the general contractor to the subcontractor, by virtue of which the subcontractor is paid by the general contractor only if the owner pays the general contractor for that subcontractor's work.  The court held that subject to the parties' implied duty to not frustrate conditions precedent to performance, such provisions are neither unfair, unconscionable, nor against public policy so long as the contract specifies a clear and unambiguous intent to shift the risk of nonpayment.

 
Given the court's holding regarding the enforceability of a "pay-if-paid" provision and determination that the subcontractor expressed a clear and unambiguous intent to be bound by such terms, the court concluded that a counterclaim relying on the "pay-if-paid" provision to bar payment to the subcontractor based on the owner's nonpayment for the subcontractor's work adequately suggested a cause of action for breach of contract to withstand dismissal under Rule 4:6-2(e) for failure to state a claim.  Consequently, the court affirmed the motion judge's order denying the subcontractor's motion to dismiss the counterclaim pursuant to Rule 4:6-2(e).  However, the court reversed the motion judge's order granting summary judgment dismissal of the subcontractor's claims for payment because there was a factual dispute as to whether the owner's nonpayment was precipitated by the general contractor's wrongful conduct.

Plaintiff brought a subrogation claim against defendants to recoup insurance benefits it paid to its insured on account of damage caused by a fire at a construction site.  In an effort to obtain relevant information pertaining to the cause of the fire, the civil action parties served a subpoena duces tecum on the Somerset County Prosecutor's Office (SCPO), a non-party law enforcement agency, and moved to compel production of its criminal investigation file relating to the ongoing prosecution of the individual who was suspected of starting the fire.  The trial judge rejected the SCPO's claim that the criminal investigation materials were privileged and confidential, and ordered it to turn over to the civil action parties:  (1) videos and photographs depicting the events giving rise to the criminal prosecution, (2) the suspect's statement to police, and (3) witness statements, or alternatively, witness contact information. 

The court granted the SCPO's motion for leave to appeal and reversed the disclosure order.  Because the materials sought were subject to a qualified privilege, the court determined that the trial judge failed to properly balance the competing interests at stake.  The court held that the civil action parties' discovery interests were subordinate to the State's paramount interest in preserving the integrity of an ongoing criminal prosecution and the underlying evidential record.  The court acknowledged that the privilege was not absolute but pointed out that the materials were not essential to the resolution of the subrogation claim and the presence of significant monetary damages did not of itself outweigh the SCPO's interests in protecting and maintaining the confidentiality of its criminal investigation materials.  Further, the civil parties failed to meet their burden of demonstrating that at least some of the information could not be obtained from other sources. 

Our Supreme Court granted leave to defendants Henry Trino, Charlene Trino, Airel Trino, and Kevin Garcia to appeal the denial of their summary judgment motions to dismiss the complaint by plaintiffs Silvana Lansigan Delvalle, as administrator of Raniel Hernandez's estate and individually, and Ralph Hernandez.  These appeals were calendared back-to-back and consolidated to issue a single opinion. 

Plaintiffs' common law claims of negligence and intentional infliction of emotional distress, as well as the claim based on the principal of Portee v. Jaffee, 84 N.J. 88 (1980), arise from the accidental drowning of their son Raniel, while he was swimming, intoxicated, at a pool party hosted by the Trinos. 

 The trial court denied summary judgment to defendants on the ground there were genuine issues of material facts in dispute with respect to their negligence.  As to Garcia, the dispute involved his active role in Raniel's drowning.  Concerning the Trinos, the dispute involved the common law duty owed to an intoxicated Raniel and the implementation of reasonable pool safety protections to prevent his drowning.  The motion court did not address dismissal of plaintiffs' intentional infliction of emotional distress and Portee claims.

We reverse. Garcia should have been granted summary judgment because the undisputed record indicates he had no role in Raniel's decision to enter the pool, nor did he have a duty to rescue Raniel.  Furthermore, there is no indication Garcia failed to exercise good faith when he tried to save Raniel.  The Trinos should have been granted summary judgment because the Social Host Liability Act, N.J.S.A. 2A:15-5.5 to 5.8, does not govern plaintiff's drowning and, under our current state law, they owed Raniel no common law duty to prevent him from swimming while intoxicated.  As for the intentional infliction of emotional distress and Portee claims, they fail as a matter of law.  Defendants' conduct in not knowing or indicating how Raniel drowned did not constitute intentional infliction of emotional distress, and there is no viable Portee claim because plaintiffs did not witness the drowning.

This appeal raises the novel issue of whether it is appropriate for a trial court to consider acquitted conduct to determine a registrant's Megan's Law tier designation. The court held the trial court properly considered acquitted conduct because of the non-punitive, civil nature of a Megan's Law proceeding, the public safety purpose underpinning the statute, and the less demanding standard utilized to make a tier designation. The court determined this situation was distinguishable from imposing an enhanced criminal sentence based on acquitted conduct, which our Supreme Court recently held to be improper. State v. Melvin, 248 N.J. 321, 352 (2021). This is because the trial court's utilization of acquitted conduct was not for the purpose of increasing the registrant's punishment, but for a legitimate public safety purpose consistent with In re Registrant C.A., 146 N.J. 71, 80 (1996). The court remanded, however, for the trial court to conduct a more comprehensive review of the record and to consider portions of the trial transcript and other documents identified by the registrant, which he contends rebuts the acquitted conduct relied upon by the court to increase his tier classification.

The court granted leave to appeal to consider the enforceability of a forum selection clause contained in commercial loan agreements executed by sophisticated parties.  The court concluded such provisions are enforceable despite allegations that the contracts in which they are embedded are unenforceable due to fraud, unless the alleged fraud improperly induced assent to the forum selection clause specifically.  In doing so, the court relied upon the United States Supreme Court ruling in Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388 U.S. 395, 403-04 (1967), and the New Jersey Supreme Court ruling in Goffe v. Foulke Mgmt. Corp., 238 N.J. 191, 216-17 (2019), both of which applied this principle to enforce arbitration provisions.  The court also acknowledged authority from other jurisdictions that have applied this rule to uphold forum selection clauses and explained that its holding aligns with the majority approach. 

In addition, distinguishing McNeil v. Zoref, 297 N.J. Super. 213, 219 (App. Div. 1997), the court held the entire controversy doctrine does not vitiate an otherwise-enforceable forum selection clause when the enforcing party is severable from the litigation.  Following Wilfred v. MacDonald Inc. v. Cushman Inc., 256 N.J. Super. 58, 65 (App. Div. 1992), the court also concluded no appreciable inconvenience would result from enforcing the forum selection clause, thereby requiring the parties to litigate their claims in Utah.  

Finally, the court held that the seven-factor analysis detailed by the New Jersey Supreme Court in Cole v. Jersey City Med. Ctr., 215 N.J. 265, 280-81 (2013) to determine whether a party waived the right to enforce an arbitration provision applies equally to the question of whether a party waived the right to enforce a forum selection clause.  The court further explained that the analysis required under Cole is necessarily fact-intensive and therefore declined to exercise original jurisdiction under Rule 2:10-5. 

The Legislature has declared that no business entity may be awarded a public contract unless, prior to or along with its bid, the business entity submits "a statement setting forth the names and addresses" of the individuals owning more than ten percent of the entity.  N.J.S.A. 52:25-24.2 (emphasis added).  In this appeal, the court held that the Legislature did not intend the word "addresses" to be synonymous with "home addresses" and that the statute's requirement is met when the bidder provides its owners' mailing addresses.

The court granted leave to appeal to consider the denial of cross-motions for summary judgment – based on stipulated facts – about whether plaintiff Paul M. Carelli was entitled to enforcement of a contractual provision, upon the early termination of his third four-year term as the Borough of Caldwell's administrator, that purported to allow him a severance package "equal to one month salary for each year of service." The court concluded that this contractual provision was unenforceable because, in allowing a severance package of more than eight months' salary, it was inconsistent with N.J.S.A. 40A:9-138, which imposes both a ceiling and a floor on a municipal administrator's severance to "any unpaid balance of his [or her] salary and his [or her] salary for the next 3 calendar months." For that reason, the court reversed and remanded for entry of summary judgment dismissing Carelli's complaint.

In this appeal the court addresses a question of first impression:  is a licensed practical nurse a "licensed person" as defined in and covered by the Affidavit of Merit (AOM) statute, N.J.S.A. 2A:53A-26 to -29.  Defendant Susan Junod, a licensed practical nurse, appeals from orders declaring that plaintiff did not need to file an AOM to pursue professional-negligence claims against her and denying her motion to dismiss the complaint for failure to provide an AOM.  The court affirms both orders because the AOM statute applies only to certain specified "licensed person[s]" and a licensed practical nurse is not included in the statute.

Ameribuilt Contractors appeals the workers' compensation judge's February 1, 2022 order rejecting a proposed settlement and disqualifying its assigned insurance counsel, Brown & Connery, LLP (B&C), on the basis of a perceived conflict between Ameribuilt's workers' compensation carrier, Travelers Property Casualty Insurance Co. (Travelers), and Travelers' ostensible insured, respondent Robert Alam.  The court concludes that the judge erred in finding that a conflict existed and, thus, there was no basis for the disqualification.  Accordingly, the court is constrained to reverse.

A trial judge may order the removal of counsel where there is a violation of the Rules of Professional Conduct.  Here, the judge disqualified B&C based on a violation of R.P.C. 1.7, which states, in pertinent part, that "a lawyer shall not represent a client if the representation involves a concurrent conflict of interest."  In evaluating whether a conflict exists, however, we are mindful that "[a] corporation is regarded as an entity separate and distinct from its shareholders."  Tully v. Mirz, 457 N.J. Super. 114, 123 (App. Div. 2018) (quoting Strasenburgh v. Straubmuller, 146 N.J. 527, 549 (1996)).  Additionally, "a corporation is regarded in law as an entity distinct from its individual officers, directors, and agents."  Printing Mart-Morristown v. Sharp Elecs. Corp., 116 N.J. 739, 761 (1989) (citation omitted).

Guided by these well-established legal principles, the court concludes that the trial judge erred in finding a conflict between Travelers and Alam.  In reaching that conclusion, we hold that the judge failed to distinguish Ameribuilt, the corporation, from Alam, an owner and shareholder.

Defendant appealed from a judgment of guardianship after trial, terminating her parental rights to four of her children.  The panel addressed whether the trial court improperly considered evidence of the children's relationship with their foster parents in violation of prong two of the best-interests test.  That prong was recently amended by the Legislature, which removed the sentence:  "[s]uch harm may include evidence that separating the child from his resource family parents would cause serious and enduring emotional or psychological harm to the child."  N.J.S.A. 30:4C-15.1(a)(2) (amended 2021).  The Legislature did not alter the other components of the best-interests standard.

The panel rejected the argument that, by deleting the above language from prong two, the Legislature intended to bar all evidence concerning a child's relationship with resource caregivers, even in the context of the other prongs of the best-interest standard.  Prong two as amended emphasizes consideration of whether a parent is able to overcome harm to the child as well as whether the parent can cease causing future harm.  The amendment clearly isolates those specific inquiries from consideration of the bonds a child has forged with resource caregivers.  Nevertheless, the amendments to prong two do not mean that such a bond may never be considered within any part of the best-interests analysis.  Neither the legislative history nor the plain text necessitates such a sweeping conclusion. 

The panel construed the deletion from prong two to give greater effect to the alteration, in a manner that remains coherent with prong four.  The amended statute requires a court to make a finding under prong two that does not include considerations of caregiver bonding, and then weigh that finding against all the evidence that may be considered under prong four—including the harm that would result from disrupting whatever bonds the child has formed.