Published Appellate Court Opinions

Plaintiff brought a civil action for damages, under N.J.S.A. 2C:21-22a, against defendant, a law school professor and Pennsylvania attorney, resulting from defendant's alleged unauthorized practice of law regarding his involvement in plaintiff's prior medical malpractice suit. Plaintiff also sought disgorgement of a $52,145.42 referral fee she claimed defendant received improperly.

The Law Division judge granted plaintiff's motion for summary judgment and then entered judgment against defendant for $308,181.68, with $52,145.42 representing the disgorged referral fee and $256,036.26 representing treble damages and attorney's fees, under N.J.S.A. 2C:21-22a. Because disgorgement is a remedy, not a cause of action, and because we find no evidence that defendant caused plaintiff to sustain an "ascertainable loss," a required element for a cause of action under N.J.S.A. 2C:21-22a, we reverse.

During the arbitration of the parties' dispute, the arbitrator participated in settlement discussions. After he advised counsel he would be issuing an opinion in favor of defendant, plaintiff complained about the arbitrator's participation in the settlement discussions and the resumption of role of arbitrator. The motion judge denied defendant's motion to confirm the arbitration award and granted plaintiff's motion to vacate it on the basis the arbitrator had exceeded his powers. The motion judge apparently based those decisions on the lack of a written agreement regarding whether the arbitrator could participate in settlement discussions and resume arbitrating, citing Minkowitz v. Israeli, 433 N.J. Super. 111 (App. Div. 2013). Clarifying Minkowitz, the court held that although the parties had to agree to an arbitrator participating in settlement discussions and continuing to act as an arbitrator, that agreement did not have to be in writing. The court remanded for an evidentiary hearing.

In this appeal, the State challenges the court's denial of a final extreme risk protective order under the Extreme Risk Protective Order Act of 2018, which empowers a court to remove firearms from a person who "poses a significant danger of bodily injury to . . . self or others" by possessing them. N.J.S.A. 2C:58-24(b). Because the trial court did not admit critical evidence, did not require or ensure the State presented information and evidence upon which it relied in support of its petition, and did not make essential findings of fact, the court reverses and remands for further proceedings.

In this appeal, the court considered an internet-based company's method of communicating its terms and conditions in the ever -evolving arena of online consumer contracts. At issue is the validity of an arbitration provision embedded in those terms and conditions that "could" be accessed via a hyperlink before plaintiff submitted her request for defendant's services. Because the defendant company did not demonstrate that the consumer plaintiff was on notice of the arbitration provision prior to submitting her service request through the website, the court held defendant failed to establish plaintiff was aware of the arbitration provision.

Applying a fact-intensive inquiry, the court held plaintiff did not knowingly and voluntarily agree to waive her right to resolve her disputes in court. Accordingly, the court reversed the order under review that enforced arbitration, and remanded for reinstatement of the complaint.

A construction company and its principal, a resident and taxpayer of Bergen County, filed separate complaints challenging the proposed selection process for a general contractor to rehabilitate the historic Bergen County Courthouse. The City of Hackensack designated the county improvement authority (BCIA) as a "redevelopment entity" pursuant to the Local Redevelopment and Housing Law (LRHL). In turn, the BCIA solicited responses to a request for qualifications (RFQ), which set out the scope of the project and BCIA's intention to enter into a contract with a "redeveloper," the general contractor chosen. The selection process did not require public bidding under the Local Public Contracts Law (LPCL).

The Law Division judge dismissed both complaints, essentially concluding that because the BCIA was acting as a "redevelopment entity," its selection of a "redeveloper" was not subject to the LPCL. He dismissed both complaints with prejudice.

The court affirmed dismissal of the construction company's complaint on procedural and equitable grounds. However, the court reversed dismissal of the individual taxpayer's complaint, concluding that the BCIA generally was subject to the LPCL, and the "goods and services" at issue would normally be subject to public bidding. Although the BCIA was acting as a redevelopment entity under the LRHL, it could not avoid the strictures of the LPCL by simply denominating the general contractor as a "redeveloper." The court remanded the matter to the Law Division to permanently restrain the BCIA from proceeding with the selection process anticipated under the RFQ.

In this post judgment matrimonial appeal, the court addressed whether a trial court may determine that plaintiff's obligation to pay defendant previously awarded counsel fees was non-dischargeable as a domestic support obligation in any future federal bankruptcy proceeding pursuant to 11 U.S.C. § 523(a)(5) (Section 5). Defendant had twice tried unsuccessfully to discharge obligations in the bankruptcy court, thus, despite the lack of a pending bankruptcy proceeding, there was clearly an ongoing dispute as to the payment of counsel fees, which presented an actual controversy over which the trial court had jurisdiction. The court held the lack of a filed bankruptcy action does not bar review of non-dischargeability when the record itself presupposes it, as it did here.

Pursuant to 11 U.S.C. § 1328(a)(2), domestic support obligations as defined in Section 5 are not dischargeable in bankruptcy cases filed under Chapters 7, 11, 12, or 13 of the Bankruptcy Code. However, obligations arising solely under Section 15 may be dischargeable in Chapter 13 filings. 11 U.S.C. § 1328(a)(2). The court held the trial judge properly determined the counsel fee award to be non-dischargeable as a domestic support obligation. The underlying matter involved defendant's attempt to preserve his ability to visit with his daughters regularly, despite plaintiff's attempt to relocate them across the country. Accordingly, the trial court further established that the funds in this matter could have been used for the children's support including tuition and child support payments, such that the counsel fee award was tantamount to an award of support for the benefit of the children.

Plaintiff appealed from an administrative determination of the Board of the Teachers' Pension and Annuity Fund (TPAF) rejecting her request that a portion of interest payments owed on her pension loan be waived. In 2004, plaintiff secured a $26,860 pension loan from TPAF and retired after having made two payments through payroll deduction. The Division of Pensions and Benefits (Division) did not deduct plaintiff's loan payments from her distributions once she had retired, and she did not inquire about her loan repayment status between 2004 and 2017.

In September 2017, the Division notified plaintiff that an audit of pension loans revealed she owed an outstanding balance of $25,973.83 plus additional accrued interest of $21,227, for a total of $47,200.83 and that it would begin deducting loan payments from her monthly retirement allowance to cover the repayment of principal and interest. Plaintiff offered to repay the remaining balance and five years of interest, at four percent, in a lump sum payment if the Board of Trustees for TPAF (Board) would waive the interest accrued after the original five-year term. The Board rejected her offer and denied her request to waive the accrued interest assessed on her outstanding loan obligation. Notably, the State had entered into a closing agreement with the Internal Revenue Service (IRS) under which outstanding pension loans, plus interest, would be repaid to State-administered retirement systems, including TPAF, to protect their tax-qualified status. Plaintiff appealed the Board's determination.

The trial court affirmed the Board. The Internal Revenue Code, § 72(p), N.J.S.A. 18A:66-35, N.J.S.A. 18A:66-35.1, and N.J.S.A. 18A:66-63 controlled the interest obligation, even though it was the Division's fault the payments were not deducted from plaintiff's pension checks.

When a pension loan is not repaid within five years of its distribution, the loan funds are essentially converted to taxable income as a "deemed distribution." I.R.C. § 72(p)(2)(B) sets forth an exception from a taxable deemed distribution for a loan from a qualified employer plan, provided the loan is repaid within five years. I.R.C. § 72(p)(1) ("If during any taxable year a participant or beneficiary receives, directly or indirectly, any amount as a loan from a qualified employer plan, such amount shall be treated as having been received by such individual as a distribution under such plan."). Repayment of interest to TPAF is crucial to maintain the pension plan's tax-qualified status.

The Board's decision was not arbitrary, capricious, or unreasonable. The Board's decision comported with the IRS requirement that TPAF collect a sum sufficient to repay the amount borrowed with interest thereon.

In this one-sided appeal, plaintiff-landlord Talmadge Village LLC challenges the trial court's stay of the October 8, 2020 order ejecting defendant Keith Wilson from the apartment he shared with Talmadge's former tenant and restoring possession to the landlord. The lease had expired, defendant was never on the lease, and he never notified the landlord he lived there.

Plaintiff initiated an ejectment action to have defendant removed from the apartment. Following a hearing during which both parties participated, the trial court issued an order for possession in plaintiff's favor and directed defendant to vacate the premises. The judge then stayed enforcement of his order "pursuant to Executive Order 106 and P.L. 2020, c. 1 for the duration of the moratorium imposed thereby." Because the court concludes the governor's moratorium on evictions, as set forth in Executive Order 106, does not extend to persons having the legal status of squatters, the court vacates the stay.

Even though plaintiff marshaled considerable evidence demonstrating that his ex-wife has been in a fourteen-year relationship with another man, with whom she has traveled extensively and attended numerous family events, that she recently stayed in his home for a number of uninterrupted months, and that the other man has repeatedly described defendant as "my wife" in social media postings, the trial judge denied plaintiff's motion to modify or terminate alimony based on the contention that defendant had either remarried or was cohabiting. The court reversed, finding there was a genuine factual dispute about whether defendant had remarried and that plaintiff presented a prima facie case of cohabitation that warranted discovery and an evidentiary hearing. In so holding, the court rejected the notion that Landau v. Landau, 461 N.J. Super. 107, 118-19 (App. Div. 2019) created a template for what constitutes a prima facie case of cohabitation, and concluded that a prima facie case is determined by the central thesis of cohabitation without the need for an affirmative showing on all the items listed in N.J.S.A. 2A:34-23(n). The court therefore held that a prima facie case is made when, assuming the truth of the movant's allegations and providing the movant with all reasonable inferences, the opponent appears to be in "a mutually supportive, intimate personal relationship" in which the new couple "has undertaken duties and privileges that are commonly associated with marriage or civil union." N.J.S.A. 2A:34-23(n).

Appellant won the November 2020 election for the Atlantic County Third District County Commissioner race defeating her opponent by 286 votes. The election was primarily a vote-by-mail election pursuant to Executive Order and subsequently enacted legislation.

Appellant's opponent contested the election results because the Atlantic County Clerk sent incorrect ballots that failed to list the Third District County Commissioner race to a segment of voters, which totaled more than the margin of victory. Among other grounds, the opponent contested the election pursuant to N.J.S.A. 19:29-1(e), which permits a challenge "[w]hen illegal votes have been received, or legal votes rejected at the polls sufficient to change the result . . . ." Appellant argued the court could not overturn the election because pursuant to N.J.S.A. 19:63-26, "[n]o election shall be held to be invalid due to any irregularity or failure in the preparation or forwarding of any mail-in ballots prepared or forwarded pursuant to the provisions of [the Vote By Mail Law]." The Law Division Judge granted the relief sought by the opponent, revoked appellant's certificate of election, declared a vacancy, and scheduled a special election for the position.

On appeal, the court affirmed the Law Division's decision, and in a case of first impression held, N.J.S.A. 19:63-26 establishes a rebuttable presumption that limits the ability to invalidate an election due to any irregularity or failure in the preparation or forwarding of any mail-in ballots. However, a contestant may rebut the presumption by asserting one or more of the grounds under N.J.S.A. 19:29-1 as a basis to invalidate the election. An election shall be set aside if the trial judge concludes the contestant has proved a basis to do so under N.J.S.A. 19:29-1 by a preponderance of the evidence and the judge finds that no person was duly elected, as per N.J.S.A. 19:29-9.

Celeste Fernandez was one of four candidates in the November 3, 2020 election for two Commissioner at Large (CAL) positions in Atlantic County. Fernandez placed third, 381 votes behind John W. Risley, Jr. Fernandez filed a petition with the Law Division seeking a recount pursuant to N.J.S.A. 19:28-1.

The State had selected the Atlantic County CAL election as one that would be subject to an audit in which two percent of the ballots cast would be recounted. The audit reduced Risley's margin of victory over Fernandez by one vote. However, the State's audit indicated there were errors in the identification of overvotes (where the voter selects more than two candidates for the CAL position and no vote is counted) and undervotes (where the voter selects one or no candidate for the CAL position).

The trial court ordered an audit or recheck of two additional four percent of the votes, using the same procedures that the Board had used in the State-mandated audit. The combined results of the initial audit and court-ordered recheck indicated that 1,297 votes originally tallied as overvotes or undervotes had been recounted, and seventy-four votes were changed to recorded votes for candidates.

The court rejected Fernandez's contention that she was entitled to an automatic right to a recount pursuant to N.J.S.A. 19:28-1. We held that to obtain a recount pursuant to the statute, a candidate must present sufficient credible evidence to show there is reason to believe an error was made in the counting of the votes, and the court should order a recount if the claimed error could affect the outcome of the election.

Here, Fernandez presented sufficient evidence establishing that there is reason to believe an error was made in the counting of the votes for the CAL election, specifically the votes initially recorded as overvotes or undervotes. We therefore conclude the trial court mistakenly exercised its discretion by denying Fernandez's request for a machine re-scanning of all ballots cast in the CAL election, and a hand recount of all votes identified as overvotes or undervotes.

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.

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).

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.

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.