Published Appellate Court Opinions

This case stemmed from the termination of the appointment of a Special Civil Part Officer (SCPO) following the discovery of numerous violations of AOC directives. The SCPO filed a Law Division complaint against the State, the Judiciary, and the Atlantic/Cape May vicinage alleging violations of CEPA and related claims. We affirm the summary judgment dismissal of plaintiffs' claims since plaintiff was not a Vicinage employee for CEPA purposes and plaintiff failed to establish a whistle-blower claim under CEPA. This opinion was originally issued in January 2018 as an unpublished opinion. We now publish this opinion, following a request from the Committee of the Special Civil Part Supervising Judges, which submitted "that the publication of this opinion will provide important precedent to our records, practitioners and the public with regard to [SCPOs] and their status as independent contractors."

Appellant is a law firm who successfully represented plaintiff in the prosecution of a legal malpractice action. Appellant sought counsel fees from plaintiff that exceeded the amount of consequential damages proximately caused by the attorney/tortfeasor. Saffer v. Willoughby, 143 N.J. 256, 272 (1996). When plaintiff and appellant were unable to agree, the trial judge who presided over the legal malpractice action sua sponte decided to adjudicate the fee dispute over appellant's objection. This court reverses and holds the trial judge did not have subject matter jurisdiction to adjudicate this counsel fee dispute. Appellant was not a party in the case, had not filed a collection action against plaintiff, nor sought relief under N.J.S.A. 2A:13-5, commonly known as the Attorney's Lien Act.

The court reverses an order entered under RPC 3.7 barring a lawyer and every lawyer in his firm, save one, from representing themselves at deposition and trial in defense of a malpractice action brought against them by a former client. The court follows established federal authority in this circuit holding RPC 3.7 is a rule addressed only to a lawyer acting as an advocate at trial. Thus there is no ethical prohibition against a lawyer acting as an advocate in a deposition in a case in which the lawyer is likely to be a necessary witness at trial.

The court further holds that RPC 3.7 does not apply to a lawyer who is a party in the case. As lawyers have the same rights as other individuals appearing in our courts, they may appear in their own behalf at trial even if likely to be a necessary witness. Law firms, likewise, are to be treated as other entities, and thus must appear through counsel to the same extent. RPC 3.7 is fully applicable to lawyers appearing on the firm's behalf, even if the lawyer is employed by the firm. Imputed disqualification is limited as set forth in RPC 3.7.

The court affirms an order of the trial court that denied the State's request to medicate defendant involuntarily with antipsychotic medication to restore him to competency to stand trial. The court agrees with the trial court that the State did not satisfy the test under Sell v. United States, 539 U.S. 166 (2003), because the first factor is determined by consideration of defendant's probable sentence not simply the maximum sentence exposure for the offense charged. The trial court also must consider the potential effect of the medication on defendant's right to a fair trial when applying Sell. Because the Sell test was not satisfied, we have no occasion to determine whether our State Constitution would afford a defendant greater protection of individual liberty and privacy rights.

In these consolidated appeals, the court considers the enforceability of the restrictive covenant agreements (RCAs) executed by the six defendants during their employment with plaintiff ADP, LLC. Each defendant was a top-performing sales representative. To award and incentivize their success, ADP invited defendants to participate in a stock award incentive program conditioned on their acceptance and execution of an RCA. The RCA included non-solicitation and non-compete provisions that restricted an employee from soliciting ADP's clients and competing with ADP upon leaving the company. The defendants left ADP at varying times and each accepted employment with the same direct competitor.

The court concluded that ADP demonstrated a legitimate and protectable interest in its customer relationships sufficient to justify enforcing the RCAs. However, the court also found the RCAs were overly broad and imposed an undue hardship on defendants. Therefore, the court blue-penciled the non-solicitation and non-compete provisions.

The court held that ADP may only prohibit its employees, upon separation from the company, from soliciting any of ADP's actual clients with whom the former employee was directly involved or who the employee knew was ADP's client.

As to the solicitation of prospective clients, the court found it unreasonable and onerous to restrict defendants from soliciting clients unknown to them while at ADP. Therefore, when working for a competitor, a former employee is only prohibited from soliciting a prospective ADP client if the employee gained knowledge of the potential client while at ADP and directly, or indirectly, solicits that client after leaving.

In considering the non-compete provision, the court determined it was reasonable for ADP to restrict its former employees, for a reasonable time, from providing services to a competing business in the same geographical territory in which the employee operated while at ADP.

The court reverses the summary judgment orders in favor of each defendant. Because each defendant breached the RCAs to some extent, the court remands the cases to the trial court to determine the appropriate remedy for the breach and to consider ADP's applications for counsel fees.

The Union City Zoning Board of Adjustment denied plaintiff's application for preliminary and final site plan approval, which required a number of bulk variances and a use variance. In an action in lieu of prerogative writs, the Law Division rejected plaintiff's claim that the two members of the Board should have recused themselves due to a conflict of interest. Applying the Supreme Court's recent decision in Piscitelli v. City of Garfield Zoning Bd. of Adjustment, 237 N.J. 333 (2019), this court reverses and remands the matter for the Law Division to conduct an evidentiary hearing to determine whether the two Board members should have recused themselves.

Petitioner, a New Jersey resident, sought benefits under the Workers' Compensation Act (WCA), N.J.S.A. 34:15-1 to -128, alleging injuries both as the result of a specific incident, and occupational injuries "while performing repetitive duties" as an aircraft technician while employed by United Airlines at the airport in Philadelphia. The judge of compensation dismissed both petitions for lack of jurisdiction.

Relying on dicta in Bunk v. Port Authority of New York & New Jersey, 144 N.J. 176, 180-81 (1996), petitioner claimed residency alone was sufficient to confer jurisdiction. Alternatively, he argued that United's business was "localized" in New Jersey, and combined with his residency, New Jersey should exercise jurisdiction over his petitions.

The court affirmed the dismissal for lack of jurisdiction, concluding the dicta in Bunk was not controlling, and residency alone is insufficient to confer jurisdiction. The court also concluded that although United maintained a "localized" presence in New Jersey, petitioner lacked any employment relationship to that presence.

The State appeals the dismissal of two counts in the indictment that charged defendant with third-degree failure to register upon relocation as required by Megan's Law, N.J.S.A. 2C:7-2(a) and (d). When defendant was sentenced in 1999, the penalty imposed was a fourth-degree crime. The Law Division judge held the increased penalty violated the Ex Post Facto Clauses of the federal and state constitutions and dismissed those counts without prejudice to the State re-presenting the matter before a grand jury.

The court affirmed, but modified the order under review to permit amendment of the indictment to charge fourth-degree crimes.

On leave granted, the Middlesex County Prosecutor's Office appealed from the suppression of inmate telephone calls recorded by the Essex County Correctional Facility and the Middlesex County Department of Adult Corrections. The court held that the production of the recordings by the jails pursuant to the authority of grand jury subpoenas served upon them by the Prosecutor's Office did not violate an inmate's reasonable expectation of privacy, as they were advised at the beginning of every phone call that the conversations would be monitored and recorded. The court further held that the investigation and process did not violate the New Jersey Wiretapping and Electronic Surveillance Control Act (the Act), N.J.S.A. 2A:156A-1 to -37, Title III of the Federal Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510-2520, and Article I Paragraph 7 of the New Jersey Constitution. The Act and Title III were not implicated by the sharing of the lawfully obtained information for lawful purposes by law enforcement agencies.

After awarding dependent benefits under N.J.S.A. 34:15-13 to the surviving spouse of a worker who succumbed to an occupational disease, the judge of compensation awarded counsel fees based on the spouse's expected lifetime – in accordance with a 1995 amendment to N.J.S.A. 34:15-13(j) which provided that compensation shall be paid to a surviving spouse "during the entire period of survivorship" – as determined from the table of mortality and life expectancy printed as Appendix I to the New Jersey Rules of Court.

The court rejected the employer's argument on appeal that the proper calculation should have been based on the long-standing basis for counsel fee awards: the 450-week period of payments provided in N.J.S.A. 34:15-12(b) and portions of N.J.S.A. 34:15-13. N.J.S.A. 34:15-64 authorizes a judge of compensation to allow a prevailing party "a reasonable attorney fee, not exceeding [twenty percent] of the judgment." Although the court did not hold the use of the 450-week method traditionally used to calculate counsel fees was improper, it concluded the use of the table to calculate counsel fees was reasonable because it is designed to actuarially calculate the amount of time over which a surviving spouse can expect to receive benefits; in other words, it is based on the judgment amount calculated using the spouse's projected lifespan.

Alcatel-Lucent USA Inc. (Alcatel), is the owner of real property in the Township of Berkeley Heights on which is located its North American headquarters.1 There are approximately 1.5 million square feet of improvements on the 153.4 acre Berkeley Heights property – of which Alcatel contends 53 acres are woodlands.

N.J.S.A. 54:4-34 – commonly referred to as Chapter 91 (you have to read the decision to find out why) – requires every real property owner to provide "a full and true account of his [or her] name and real property and the income therefrom, in the case of income-producing property" to the municipal tax assessor upon the assessor's written request. The statute also precludes the owner from appealing the assessor's valuation and assessment if the owner fails or refuses to respond to the Chapter 91 request.

After Alcatel failed to respond to the tax assessor's request for information pertaining to its Berkeley Heights property, LTI filed a farmland assessment application for the woodland portion of the property. The assessor denied the application concluding agriculture was not the dominant use of the property; Alcatel filed a complaint with the Tax Court challenging the denial. The Tax Court dismissed the complaint holding it was precluded under Chapter 91 because Alcatel failed to respond to the assessor's Chapter 91 request.

The court rejected Alcatel's arguments that the Tax Court erred in: extending the application of the Chapter 91 preclusion penalty to its farmland assessment appeal; applying the Chapter 91 preclusion penalty to the woodland property because it is not income producing; and formulating a new rule that misinterprets our prior holding and undermines the legislative purpose of Chapter 91 and the Act. It also argued that technical deficiencies in the Township's Chapter 91 request bar preclusion of its claim.

The property was conveyed by Lucent Technologies, Inc. (Lucent) to LTI NJ Finance LLC (LTI), which simultaneously entered into a twenty-year agreement with Lucent, the sole member of LTI, pursuant to which Lucent was considered the "beneficial owner." Lucent merged with Alcatel, a French company, in 2006, to form Alcatel-Lucent USA Inc. The agreement between LTI and Lucent was terminated in 2013 and LTI was merged into Alcatel. The court was informed by Alcatel's merits brief that it is now known as "Nokia".

The court perceived no reason why Chapter 91's preclusion should not apply to Alcatel's farmland assessment complaint and affirmed Judge Joshua D.Novin's dismissal. The court recognized that the comprehensive statutory scheme requires tax assessors to assess every property at its full and fair value each year. Inasmuch as the Chapter 91 data is essential to the valuation of a split-use property, and, in turn, to the fulfillment of the assessor's statutory duties for the entire municipality, the court agreed with Judge Novin that the statute's preclusion provision should be applied to owners who fail to respond to the assessor's request.

A jury awarded plaintiff $1.8 million in damages against New Jersey Transit and its bus driver for injuries she sustained when an unidentified bus passenger struck plaintiff in the head with a thrown glass bottle. We affirm the trial court's determination to hold defendants to the common carrier standard of negligence but conclude the trial court misinterpreted applicable statutes when it denied defendants' request to include the bottle thrower on the verdict sheet.

We hold that joint tortfeasors are not required to apportion liability in cases involving a public entity. Instead, a jury should be permitted to apportion liability when a public employee or entity is determined to be a tortfeasor in a cause of action with one or more other tortfeasors.

We therefore affirm the liability verdict and award of damages but vacate the final judgment and remand for another jury to address the issue of allocation of fault between the bottle thrower and defendants.

The court held that the Chairperson of the Civil Service Commission was authorized to approve the creation of a new job title and did not act arbitrarily in approving the title at issue in this case.

In this appeal, the court considered whether an employee could seek damages from a former employer in a civil suit or was limited to recovery under the Workers Compensation Act (WCA) for injuries allegedly sustained from use of a nasal spray product developed by the employer. The court also examined whether frivolous litigation sanctions could be imposed, absent a finding the employee's attorneys acted in bad faith, particularly when the prevailing party's "safe harbor" letter failed to alert the employee's attorneys about the immunity.bar under the WCA and the prevailing party's initial motion for summary judgment was denied on all but one cause of action. The court affirmed the grant of summary judgment in the employer's favor, due to the employee's inability to demonstrate his employer had committed an "intentional wrong" under the two-prong test outlined in Millison v. E.I. du Pont de Nemours & Co.,101 N.J. 161, 178-79 (1985) and reversed the frivolous litigation sanction

this appeal, plaintiff's claims were similar to those considered by the New Jersey Supreme Court in Dugan v. TGI Fridays, Inc., 231 N.J. 24 (2017), as they related to defendant's sale of beverages from menus that did not include prices for the items sold. The court's majority determined that the Law Division improperly denied plaintiff's motion for class certification under Rule 4:32-1(b)(2). The majority concluded that the concerns raised by the Dugan Court about class certification under Rule 4:32-1(b)(3) of claims for damages under the Consumer Fraud Act (CFA), N.J.S.A. 56:8-1 to -210, and the Truth in Consumer Contract, Warranty and Notice Act (TCCWNA), N.J.S.A. 56:12-14 to -18, did not apply to plaintiff's class action for injunctive relief under (b)(2) in this case.

According to the majority neither the Dugan's Court's concern about whether plaintiff could make a showing that members of the putative class sustained an ascertainable loss under the CFA, nor its trepidation that certifying a (b)(3) class exposed the Dugan defendant to a disproportional amount of civil penalties under the TCCWNA were considerations applicable to plaintiff's motion in this case. Here, the majority held that in determining whether cohesiveness existed among class members, the trial court should have considered whether the remedy sought would be applicable to all members or to none of them.

The dissenting opinion concludes that the trial court correctly denied the motion for class certification under Rule 4:32-1(b)(2). According to the dissent, certification of the class for the CFA claims was not warranted because plaintiff would be required to establish that all members of the class sustained a bona fide ascertainable loss, which is an essential element of a claim under the CFA. Such claims are not cohesive since they depend on the individual's experience in purchasing beverages at defendant's restaurants. The claims under the TCCWNA also lack cohesion because relief could only be awarded to members of the class are "aggrieved consumers," and such claims also are dependent upon the class members' personal experiences.

In this post-judgment matrimonial case, the trial court imposed a penalty on plaintiff, in accord with his matrimonial settlement agreement (MSA), for violating one of the MSA's terms. On appeal from the award, plaintiff invoked the contract law principle that bars, as an unenforceable penalty, liquidated damages that unreasonably exceed normally compensable contract damages. The court concludes that the contract rule against penalties does not apply with equal force to MSAs. The court emphasizes that family judges retain the authority to modify an MSA's penalty provision to assure fairness and equity. Since no modification was warranted under the facts of the case, the court affirms the penalty award.

Plaintiff F.K. appeals the trial court's December 11, 2018 order granting summary judgment to defendant Integrity House and dismissing her complaint with prejudice. The trial court determined that defendant was entitled to immunity from plaintiff's negligence action under New Jersey's Charitable Immunity Act ("the Act"), N.J.S.A. 2A:53A-7 to -11. On appeal, plaintiff contends that the amount of private contributions received by defendant, roughly $250,000 or 1.26% of annual revenue, is too insignificant to entitle defendant to charitable immunity.

In addition, although a determination of the specific percentage of funding Integrity House receives from private contributions is not necessary for the court's analysis, the court notes that no published case has granted charitable immunity to a non-religious, non-educational entity with such a small portion of funding from private contributions.

The court reverses defendant's conviction after trial for murder of his estranged wife's lover. The court determines that testimony and an unabridged audiotape of defendant's invocation of the right to counsel, his refusal to consent to a search of his computer and car, and the interrogating officer's opinion that defendant was lying cumulatively constitute plain error. The court relies on federal and out-of-state case law to decide that a refusal of consent to search is inadmissible in these circumstances. Given the paucity of direct evidence of defendant's guilt, this improperly admitted evidence undermines the integrity of the verdict.

This lawsuit is brought by an Illinois resident against his New Jersey-based former employer. Plaintiff alleges the company wrongfully denied him a promotion to a position in New Jersey and thereafter wrongfully terminated him from his job with its subsidiary in Illinois.

Plaintiff claims the company engaged in "associational" discrimination against him, in violation of the New Jersey Law Against Discrimination ("NJLAD"), based on the fact that his wife was then terminally ill with cancer. The company maintains it treated plaintiff fairly, and that it justifiably discharged him for engaging in inappropriate conduct at a trade show.

The trial court concluded that Illinois law, rather than the NJLAD, must apply to plaintiff's claims of discrimination because he lived in Illinois and worked for defendants' subsidiary in Illinois. Given that Illinois law has yet to recognize a cause of action for associational discrimination, the court granted defendants' motion to dismiss plaintiff's claims with prejudice.

On appeal in this case of first impression, this court holds that the NJLAD, notwithstanding the solitary reference to "inhabitants" in its preamble, can extend in appropriate circumstances to plaintiffs who reside or work outside of this state. However, whether the NJLAD applies to a particular nonresident plaintiff's claims turns upon a weighing of the multiple choice-of-law factors set forth in the Restatement (Second) of Conflicts of Laws (Am. Law Inst. 1971), as adopted and construed by the New Jersey Supreme Court.

The court concludes that New Jersey law (specifically the NJLAD's ban against associational discrimination) applies to defendants' alleged failure to give plaintiff fair consideration for a promotion to a position in New Jersey. The Second Restatement factors strongly weigh in favor of applying New Jersey law, not Illinois law, to this failure-to-promote claim. This court therefore reverses the trial court’s dismissal of that discrete claim and reinstate it.

As for plaintiff's wrongful discharge claim, this court vacates its dismissal and remands the choice-of-law issue pertaining to that claim to the trial court, to enable the further development of critical facts and analysis bearing on the Second Restatement factors.

Plaintiff appeals from the trial court's denial of his recusal motion. Before trial of this commercial dispute, plaintiff learned that the judge secured the trial assignment in response to an ex parte communication from a former law clerk, who was an attorney with the law firm for defendant. The attorney asked the judge if she was available to preside, and identified the partner who would try the case. The judge said the partner "likes appearing before me." Plaintiff unsuccessfully argued this amounted to "judge shopping."

On appeal, the court concludes that an ex parte communication to have a case assigned to a particular judge is not a mere scheduling matter. The judge's affirmative response to the communication in this case created an appearance of impropriety. As for remedy, the court holds that less than a complete retrial can restore public confidence in the proceedings' integrity and impartiality. The court affirms the jury's verdict on liability. It decides de novo, or as a matter of original jurisdiction, the remaining evidentiary and legal issues on appeal, and remands for a new trial on damages before a new judge.