Opinion Summaries

In these consolidated foreclosure actions, the trial judge conducted – as required by our earlier decision, Brunswick Bank & Tr. v. Affiliated Bldg. Corp., 440 N.J. Super. 118 (App. Div. 2015) – an evidentiary hearing to determine whether plaintiff, during its serial collection efforts, had recouped more than it was owed. The trial judge concluded that defendants failed to provide "competent" evidence on the fair market value of properties plaintiff obtained at sheriff sales at or about the time plaintiff neared a 100% recoupment of the money due on the combined loans. In remanding again, the court held, among other things, that the judge erred in concluding defendants' evidence was incompetent, that there was admissible evidence suggesting a fair market value in excess of the amount still owed to plaintiff, and that the trial court is authorized, in the absence of the parties' production of expert testimony, to retain its own expert to opine on these relevant subjects to ensure plaintiff does not receive an undue windfall.

Because the critical causative conduct in this case was a failure to enforce the law, Bierals is entitled to absolute immunity. The City’s liability is conditioned on that of Bierals, and thus the City is entitled to absolute immunity as well.

Defendant filed a motion for reconsideration 101 calendar days after the trial court's order denying its motion to enforce an arbitration agreement. Although facially untimely, the motion judge denied the motion on its merit. Defendant appealed. This court affirms for reasons other than those expressed by the trial court. This court holds that a decision to deny a motion to enforce an arbitration agreement is a final order subject to the 20-day time restraints for filing a motion for reconsideration under Rule 4:49-2. Neither the parties nor the trial court may enlarge the time specified by Rule 4:49-2. See R. 1:3-4(c). The trial court's order denying defendant's motion to compel arbitration was appealable as of right. R. 2:2-3(a)(3). Defendant's only legally cognizable recourse after the time to file a motion for reconsideration expired was to file a timely direct appeal to this court. GMAC v. Pitella, 205 N.J. 572, 586-87 (2011).

The Appellate Division ruled that the State Police Lab's draft DNA report was not "within the possession, custody or control of the prosecutor" until the lab sent it to the county prosecutor, and in any event was not discoverable until the report was reviewed and approved by the lab. R. 3:13-3(b)(1)(C). Regardless of the speedy trial provisions, the court abused its discretion by excluding the DNA evidence rather than granting a continuance of trial under Rule 3:13-3(b)(1)(I) and -3(f), given the evidence's importance and the absence of surprise, prejudice, or a design to mislead.

Under the speedy trial rule and statute, a case may be "complex" if it has "complicated evidence," but time is excludable only if the complexity makes it unreasonable to expect adequate preparation for trial in the speedy trial period. R. 3:5-4(i)(7); N.J.S.A. 2A:162-22(b)(1)(g). The provision addressing failures to produce discovery is a limit on excludable time. N.J.S.A. 2A:162-22(b)(2). The court properly excluded time sua sponte under N.J.S.A. 2A:162-22(b)(1)(c), and retained jurisdiction to do so after the State sought and obtained leave to appeal. That provision excludes the time while an emergent relief request, or interlocutory appeal, is pending in this court. Time while the trial is stayed is excludable under N.J.S.A. 2A:162-22(b)(1)(l).

K.K., an eighty-eight-year old legal permanent resident who entered the country in 1991, left in 2007 and returned in 2014, is entitled to Medicaid payments without waiting five years because he entered the country before August 22, 1996. The agency's ruling to the contrary is reversed based on a de novo interpretation of federal statutory requirements.

In this appeal from a final agency decision by the Commissioner of Education, the court addresses the rights that part-time tenured teachers in the non-public school setting enjoy pursuant to the New Jersey Tenure Act, N.J.S.A. 18A:28-1 to -18. The court held that the omission of a contractual guaranteed number of minimum hours per year did not deprive them from the protection against a reduction in compensation or of their seniority rights. Because the record was incomplete, the court remanded with instructions to determine whether the reduction in hours constituted a reduction in their compensation and a reduction in force under the Tenure Act.

Following a sixty-six day bench trial, and before the judge ruled on the admissibility of the experts' testimony and rendered a verdict, the Department of Environmental Protection (DEP) and Exxon Mobil Corporation settled DEP's lawsuit seeking natural resource damages (NRD) caused by pollution at Exxon's refinery in Linden and facility in Bayonne. DEP provided public notice of the proposed consent order pursuant to N.J.S.A. 58:10-23.11e2, and received 16,000 comments, mostly objections, including those of appellant State Senator Raymond Lesniak and appellants, a number of public interest environmental groups.

Before DEP responded to the comments, both appellants sought to intervene in the trial court; Judge Michael J. Hogan denied their motions without prejudice, and he permitted them to file opposition as amici and argue against the proposed settlement at a subsequent hearing. After Judge Hogan approved the settlement, appellants again sought to intervene for purposes of appeal. Judge Hogan denied their motions.

The court holds that a party must have standing before it can intervene at trial under our Court Rules. Because appellants cannot bring suit for NRD under the Spill Compensation and Control Act (the Spill Act), N.J.S.A. 58:10-23.11 to 23.24, the Environmental Rights Act, N.J.S.A. 2A:35A-1 to -14, or the common law, the court affirmed Judge Hogan's denial of their motions for intervention at trial.

However, because the Appellate Division alone can decide whether an appellant has standing to appeal, and because the environmental groups have standing to assert the public's interest in challenging DEP's decision to settle the lawsuit, the court considered the merits of Judge Hogan's decision to approve the settlement.

Applying the rationale of federal decisions interpreting the Spill Act's federal counterpart, the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), 42 U.S.C. §§ 9601-675, the court concluded the appropriate standard of review is whether the judge mistakenly exercised his discretion in concluding the settlement was fair, reasonable, consistent with the Spill Act's goals, and in the public interest. The court affirmed Judge Hogan's approval of the settlement.

The court construed N.J.R.E. 609(b), which addresses the admissibility, for impeachment purposes, of remote convictions, i.e., those over ten years old. The ten-year period is calculated from the date of the conviction or release from confinement for it, whichever is later. The court held that civil commitment, pursuant to the Sexually Violent Predator Act, is not "confinement for" a criminal conviction. Therefore, a period of civil commitment may not be excluded in calculating whether a conviction is more than ten years old.

Defendant, a resident of the Special Treatment Unit (STU), was on trial for assaulting a corrections officer at the STU. Defendant had been convicted of a sexual assault in 1990, completed his sentence in 2000, and was then civilly committed to the STU. The trial court erred in determining that, due to defendant's ongoing civil commitment, his 1990 sexual assault conviction was not remote under N.J.R.E. 609(b).

Money recovered from a qui tam action brought pursuant to a provision of the federal False Claims Act, 31 U.S.C. § 3730, is a "prize or award" under N.J.S.A. 54A:5-1(l) that is subject to taxation under the New Jersey Gross Income Tax Act, N.J.S.A. 54A:1-1 to 10-12; and the taxpayer may not deduct the fees he paid to his attorneys to prosecute the action, or the amounts he paid to the plaintiffs in related qui tam actions pursuant to their joint prosecution and sharing agreement.

The parties in this matrimonial action agreed to submit issues incident to their divorce to binding economic arbitration pursuant to the New Jersey Arbitration Act (Act), N.J.S.A. 2A:23B-1 to -32. A handwritten provision inserted into the arbitration agreement read: "The parties reserve their rights to appeal the arbitrator's award to the appellate division as if the matter was determined by the trial court."

Appellant does not contend that he has satisfied any of the grounds enumerated under Section 23 of the Act to vacate the award. He argues instead, that the provision is illegal and therefore, it renders the arbitration award void in its entirety.

The court confirms that the parties cannot create subject matter jurisdiction by agreement and bypass the trial court to seek immediate appellate review.

The court concludes that striking the illegal clause does not defeat the primary purpose of the contract, which was to resolve the parties' matrimonial issues through binding arbitration pursuant to the Act. The remainder of the arbitration agreement is valid and enforceable and we confirm the arbitration award.

We hold that New Jersey courts do not have jurisdiction to hear civil claims against foreign officials when the United States, through the State Department, has issued a suggestion of immunity (SOI) determining that those officials are entitled to conduct-based immunity. Therefore, we affirm a December 9, 2016 order dismissing plaintiff's civil complaint against six Israeli rabbinical judges and an official of the Rabbinical Religious Courts Administration of Israel after the State Department determined that the judges and official were acting within the scope of their duties for a foreign sovereign nation.

The affidavit supporting a search warrant disclosed in discovery need not be disclosed as a matter of course, and no particular circumstances necessitated disclosure of that affidavit here. To the extent that the trial court’s order of release served as a “sanction” for the State’s failure to meet what the court viewed to be the State’s discovery requirements, that release order was improper.

The court, after determining the New Jersey Council of Educational Services Commission – which represents the interests of eight educational services commissions – had standing to challenge the New Jersey State Board of Education's approval of the Middlesex Regional Educational Services Commission's request to change its name to the Educational Services Commission of New Jersey, held the State Board has the statutory authority to approve an educational services commission's name-change application even absent a concomitant application to change the scope of its services, and the State Board's action was not arbitrary and capricious.

Defendant was sentenced to consecutive prison terms of twenty, seven, and five years, for first-degree aggravated manslaughter and two counts of second-degree aggravated assault, resulting from his having caused, while intoxicated, an auto accident that killed a nine-year old and seriously injured two others.

In State v. Carey, 168 N.J. 413, 429 (2001), a divided Court determined that in multiple-victim vehicular-homicide matters, sentencing judges should "ordinarily" impose "at least two consecutive terms." The Court, however, also emphasized that it had not "adopt[ed] a per se rule" and the decision to impose consecutive terms remained in the discretion of sentencing judges. Id. at 419. In considering Carey's influence here, the court remanded for resentencing because, among other things, the sentencing judge appeared to have viewed Carey as imposing a presumption in favor of consecutive terms and because the judge did not fairly consider the real-time consequence of the aggregate thirty-two year sentence, all subject to an eighty-five percent period of parole ineligibility, imposed on an offender who was fifty-eight at the time of the incident and sixty-two at the time of sentencing.

N.J.A.C. 12:17-9.3(b) does not generally impose a notice-and-inquiry requirement on every claimant who has departed her work because that work aggravated a medical condition. Nonetheless, Ardan failed to meet the burden imposed by the regulation. The Appellate Division panel properly decided this appeal based on the version of the statute that was in effect when Ardan applied for unemployment benefits in 2012.

In this statutory discrimination action under the Law Against Discrimination, the minor plaintiff retained appellant law firm to represent her against a Board of Education for failing to take appropriate steps to address bullying by other students. The retainer agreement provided for a forty-five percent contingent fee or a fee based on hourly rates, whichever was higher. After conducting discovery and surviving a defense summary judgment motion, the case settled pre-trial for $100,000, inclusive of attorney's fees and costs, with plaintiff waiving the right to make application for a fee-shifting award against defendant. Plaintiff then sought approval of the settlement at a friendly hearing without the law firm seeking approval of a contingent fee higher than twenty-five percent of the net recovery pursuant to Rule 1:21-7(f).

The trial court approved the settlement amount and costs, but reduced the contingent fee to twenty-five percent of the net recovery. The court affirmed, holding that in the absence of an application for a fee-shifting award, the contingent fee is limited to twenty-five percent of the minor plaintiff's net recovery in the absence of a successful application for an enhanced fee under Rule 1:21-7(f).

The court erred by allowing evidence that defendant threatened to burn down his girlfriend’s homes and by admitting John’s hearsay statements that defendant was responsible for the arson. However, the errors were not capable of producing an unjust result because of the overwhelming weight and quality of the evidence against defendant.

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

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

The proper standard of appellate review of pretrial detention decisions is whether the trial court abused its discretion by relying on an impermissible basis, by relying upon irrelevant or inappropriate factors, by failing to consider all relevant factors, or by making a clear error in judgment. Here, the trial court abused its discretion.