Opinion Summaries

    Following denial of his motion to suppress evidence seized pursuant to a search warrant, defendant Jorge L. Gomez entered a guilty plea to second-degree possession of a firearm during the commission of a controlled dangerous substance ("CDS") offense, N.J.S.A. 2C:39-4.1(a).  He was sentenced to five years in prison with a minimum forty-two months of parole ineligibility pursuant to the Graves Act, N.J.S.A. 2C:43-6(c).  
    Defendant contended that the search warrant application did not allege criminal conduct, and in the absence of allegations of the specific quantity of CDS, law enforcement needed to allege that defendant had been warned for a first offense of distributing marijuana before the search warrant could be issued.
    The court reviewed the New Jersey Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act ("CREAMMA"), codified in relevant part at N.J.S.A. 24:6I-31 to -56; and N.J.S.A. 2C:35-5 to -10, and concluded the legislature did not intend to alter how police conduct investigations of those illegally distributing marijuana or alter the probable cause requirement for obtaining search warrants.  As a result, the court affirmed denial of defendant's suppression motion and affirmed his conviction.
 

The Court Rules allow certified attorneys to pay referral fees to lawyers in other states even if they are not licensed here, and the payment of referral fees does not raise concerns about the unauthorized practice of law. The Court vacates Opinion 745, which reached the opposite conclusion.

Defendants moved to compel arbitration after approximately sixteen months of litigation in the trial court.  The trial court granted defendants' motion, finding they had not waived their asserted contractual right to arbitrate.  On appeal, plaintiff argued the trial court erred in compelling arbitration because defendants had waived their right to arbitrate through their litigation conduct.  In response, defendants contended the court lacked jurisdiction to decide the appeal because the trial court's order was "interlocutory" and the arbitration agreement at issue was governed by the Federal Arbitration Act (FAA), 9 U.S.C. §§ 1 to 16.

The court reversed the order.  The court held it had jurisdiction to decide the appeal because the FAA does not preempt Rule 2:2-3(a), a neutral procedural rule that identifies the types of orders that are appealable as of right.  Conducting a de novo review of the waiver factors established by the New Jersey Supreme Court in Cole v. Jersey City Medical Center, 215 N.J. 265, 280-81 (2013), the court found defendants had waived their right to arbitration by their litigation conduct, including their failure to indicate their intention to seek arbitration in their Rule 4:5-1(b)(2) certification or to fulfill their continuing obligation to amend the certification.
 

In this interlocutory appeal the court considers the first element of third-degree endangering an injured victim, N.J.S.A. 2C:12-1.2(a), as applied to the conduct of third parties who allegedly aid or abet another person after that person injures the victim.  The State alleges defendants aided their son after he shot the victim and left him for dead.  More particularly, the State claims defendants failed to call 9-1-1 emergency services after defendants arrived at the scene of the injury, observed the injured victim, and learned he was shot.  Crucially, the State does not allege defendants aided or assisted their son in causing the injuries.
 

On appeal, the court affirms the Law Division order reconsidering and reversing an earlier order that denied defendants' motion to dismiss the endangering count.  Discerning no procedural irregularity in the court's reconsideration of the interlocutory order under review, the court considers de novo the plain language of N.J.S.A. 2C:12-1.2, as it applies to those who aid or assist another person who caused bodily injury to the victim.  
 

The court concludes, as did the trial judge, defendants cannot be held liable for aiding or abetting their son within the meaning of the endangering statute because defendants did not knowingly aid their son in causing bodily injury to the victim.  Accordingly, the court holds a third party cannot be held liable under N.J.S.A. 2C:12-1.2(a), unless the third party "knowingly solicited, aided, encouraged, purposely attempted or knowingly agreed to aid another person in causing bodily injury to the victim" as reflected in the pertinent model jury charge.  See Model Jury Charges (Criminal), "Endangering Injured Victim (N.J.S.A. 2C:12-1.2)" (rev. Mar. 14, 2016).  
 

    This matter presents a novel issue of whether an alternative dispute resolution (ADR) provision is enforceable if the party drafting the contract reserves the right to file certain claims in court while the other party does not have that same right.  The court holds that the unilateral right to file in court is unenforceable.
    Plaintiff entered into a written contract with defendant to build an in-ground swimming pool.  Defendant prepared a contract, which contained an ADR provision that both parties electronically signed.  The court holds the portion of the ADR provision requiring mediation and arbitration of any controversy, dispute, or claim, including statutory claims, is valid and enforceable under Atalese v. U.S. Legal Servs. Grp., L.P., 219 N.J. 430 (2014).
    However, the court finds the reservation of rights provision contained in the ADR section of the contract, which created an exception to arbitration only for defendant, to pursue a claim for money damages in court if plaintiff failed to pay under the contract while plaintiff was barred from seeking any relief in court, is unconscionable and therefore, unenforceable.  However, the court determined the reservation of rights provision was severable and struck it from the contract, which will allow the parties to mediate and arbitrate their disputes.
 

     In this tax appeal, the court is asked to determine whether the four-year limitation period governing the additional assessment of the Sales and Use Tax (SUT) applies to the issuance of a Notice of Finding of Responsible Person (Responsible Person Notice) for SUTs that a corporation has acknowledged it owed.  A merchant collects SUTs and holds them in trust "as trustee for and on account of the State."  N.J.S.A. 54:32B-12(a).  Thus, an officer or responsible person of a business is held personally liable for these taxes when the business fails to remit them to the State.
     The court concludes that the Responsible Person Notice is a collection tool for a previously determined, fixed, and final tax liability assessed against the business and not an additional assessment. Therefore, the issuance of a Responsible Person Notice for liability of SUT is not subject to a limitations period.  Accordingly, we affirm the Tax Court's order denying, in part, plaintiff Christopher Gill's motion for summary judgment and granting, in part, defendant Division of Taxation's motion for summary judgment.
 

D.T. has not demonstrated that the Archdiocese’s exercise of supervisory authority over McCarthy gave rise to the minimum contacts between the Archdiocese and New Jersey that would be necessary to exercise specific jurisdiction under Fourteenth Amendment due process principles in the setting of this appeal

     Appellants (the "LLCs") appeal from identical orders of the Law Division authorizing condemnation in accordance with the Township of Jackson's exercise of eminent domain against their respective properties, Lots 84 and 90.  The original ordinance authorizing the condemnation of the LLCs' land stated the public purpose for condemning the properties was for use as open space.  The second ordinance, passed after the LLCs had opposed the Township's condemnation efforts, elaborated and stated condemnation of the lots was necessary to affect a land-swap agreement the Township had with a private developer, but still did not otherwise identify the proposed use of the condemned lots.  
     Lots 84 and 90 are not being used for the asserted public purpose of open space—an otherwise valid public purpose for the exercise of eminent domain.  Instead, the lots are being condemned and combined with land the Township already owns to exchange them for land intended to be used as open space.  This court is aware of no reported case in New Jersey, nor has one been brought to its attention, where a private property was lawfully condemned for the sole purpose of exchanging it for other property that will be put to public use.  Neither Kelo v. City of New London, 545 U.S. 469, 477 (2005), nor the Eminent Domain Act, N.J.S.A. 20:3-1 to -50, contemplates the condemnation of a property for use solely as an asset in a scheme for an otherwise valid public purpose on some other property.  The record before us is bereft of any indication as to the intended use of the condemned lots, other than as what is, in essence, currency, to exchange for open space.
     Moreover, because the trial court's prior order authorizing the Township's land-swap agreement included Lots 84 and 90 although those lots were not owned by the Township, the land-swap agreement does not preclude the LLCs from opposing the condemnation, as claimed by the Township.  The Eminent Domain Act offers the exclusive procedure for a property owner's right to challenge the government's authority to condemn its private property.  Accordingly, the Law Division's orders approving the condemnation of the lots are reversed.
 

The issue before this court, one of first impression, is whether the Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to -13, compels the disclosure of email logs of public officials' personal computers discussing public business.  The trial judge's order denied plaintiff Alex Rosetti's OPRA request of defendants Ramapo-Indian Hills Regional High School Board of Education (Board) and Thomas Lambe, the Board's records custodian, seeking email logs from the personal computers of past and current Board members (collectively Board members) discussing Board business.  The judge decided the email logs were not government records and, if they were, they are too burdensome to produce. 

The court reverses the trial judge's order and remands this matter.  The court concludes the email logs on private servers are government records under N.J.S.A. 47:1A-1, and are disclosable based on Ass'n for Government Responsibility, Ethics & Transparency v. Borough of Mantoloking, 478 N.J. Super. 470, 489 (App. Div. 2024), where we held "OPRA's broad reach can include emails concerning government business, sent to or from personal accounts of government officials –– if the emails fall within the definition of government records."  

 
On remand, the Board members must search their personal email accounts to determine if the sought-after email logs are available.  If they determine the email logs are unavailable or there are burdens in producing them, they must produce Paff v. New Jersey Dep't of Labor, 392 N.J. Super. 334, 341 (App. Div. 2007). certifications.  After giving plaintiff the opportunity to respond, the trial judge must then decide if a fact-finding hearing is necessary.  Moreover, the judge must be satisfied the parties made good faith efforts to reasonably resolve their dispute.  Only after this process occurs can the judge decide if production of the email logs should be provided, or if they are too burdensome to provide.  
 

Preemption is not an issue here because the N.J.S.A. 3B:3-14 does not conflict with the federal regulations that govern U.S. savings bonds. Given that the DSA did not direct the disposition of the savings bonds, the bonds have no bearing on Michael’s -- and later the Estate’s -- obligation to pay Jeanine $200,000, and the bonds’ value should not have been credited against that obligation. Pursuant to the DSA, the Estate must make whatever payments remain to Jeanine. 

LOCAL PROPERTY TAXATION - FREEZE ACT APPLICATION

Tax Court; Gabriel Ades v. Borough of Deal; Docket No. 007334-2024, opinion by Sundar, P.J.T.C., decided January 24, 2025.  For plaintiff - Chad E. Wolf (Wolf Vespasiano LLC, attorney); for defendant - Paul V. Fernicola (Fernicola & Associates, LLC, attorney).

HELD: A final judgment of a county board of taxation that is coded 2B, which stands for “presumption of correctness not overturned,” does not qualify as a base year’s final judgment for purposes of the application of the Freeze Act, N.J.S.A. 54:3-26.  This is because the judgment was not the result of a value determination by the county board.  That the county board of taxation’s judgment re-states or recites the original assessment in the “judgment” column does not change judgment into one resulting from a determination of the value of the subject property.

(17 Pages)
 

This commercial litigation mainly presents issues under the New Jersey Franchise Practices Act ("NJFPA"), N.J.S.A. 56:10-1 to -15.  As its principal claim in this case, defendant/third-party plaintiff Eastern Outdoor Furnishings ("Eastern Outdoor") contends that third-party defendant AMD Direct, Inc., ("AMD") violated the NJFPA in terminating Eastern Outdoor's alleged franchise to sell AMD's products.  AMD denies that such a franchise relationship existed.

The motion judge granted summary judgment to AMD, dismissing Eastern Outdoor's claims under the statute, upon specifically finding there was no "written agreement" establishing a franchise between the parties.  Eastern Outdoor has appealed that decision, along with other rulings made by the trial court. 

The court affirms the motion judge's grant of summary judgment dismissing the NJFPA claims, albeit based on somewhat different reasoning.  The court holds that to establish a franchise enforceable under the NJFPA, the statute does not require a comprehensive and integrated "written agreement" between the parties.  Instead, N.J.S.A. 56:10-3(a) more flexibly defines a franchise to consist of a "written arrangement" that also meets various other requirements.  Nonetheless, it is clear the record—even when viewed in a light most favorable to Eastern Outdoor—fails to provide sufficient evidence to establish such a qualifying "written arrangement."

Although the court affirms dismissal of the NJFPA claims, it remands the case to adjudicate Eastern Outdoor's separate claims of tortious interference and indemnification that were not expressly addressed in the motion judge's decision.
 

The primary issue in this appeal concerns the applicability of self-defense to all categories of homicide.  The court reaffirms the well-settled principle that self-defense, once found by a jury, shall serve as a complete justification for murder as well as all manslaughter offenses charged or otherwise permitted for consideration as lesser-included offenses.
 

Here, the jury found defendant met the self-defense test for murder but not passion/provocation manslaughter, returning a guilty verdict for the latter offense.  Based on that facially inconsistent verdict, our jurisprudence, and the established precept that self-defense is a complete defense to all categories of homicide, the court reverses defendant's conviction for passion/provocation manslaughter.   
 

In the unpublished portion of this opinion, the court addresses defendant's remaining arguments, including the trial court declining to charge aggravated assault, the applicability of self-defense to the weapons charges, the value of Rios's vehicle as it relates to the theft charge, and a review of the sentence imposed, respectively.  These arguments are largely rendered moot, affirmed, or remanded for resentencing. 
 

When a defending physician practices in more than one specialty and the treatment involved falls within any of that physician’s specialty areas, then an AOM from a physician specializing in one of those specialties is sufficient.

Subsection (k) of N.J.S.A. 40A:14-118.5 does not permit plaintiffs to review the video in this case because Fuster has already requested that the video be retained for three years and Devine is neither the subject of the video nor one of the other specified persons entitled to review. The Court does not decide whether subsection (l) of the BWCL abrogates OPRA’s exemptions because there is no OPRA exemption that supports defendants’ refusal to release the video in this case. OPRA does not contain any explicit exemption for information received by law enforcement regarding an individual who was not arrested or charged. Neither has New Jersey case law ever held that such information must automatically be withheld under OPRA. The Court therefore reverses the Appellate Division’s judgment and orders that the body worn camera footage be released to plaintiffs under the circumstances of this case, without reaching plaintiffs’ common law claims.

When a plaintiff accepts a final judgment, that party may still appeal if the party can show that (1) it made known its intention to appeal prior to accepting payment of the final judgment and prior to executing the warrant to satisfy judgment, and (2) prevailing on the appellate issue will not in any way impact the final judgment other than to potentially increase it. Because Brehme cannot show either that she expressed her intention to appeal before accepting payment of the final judgment and before her counsel executed the warrant to satisfy the judgment or that the appeal will not impact the final judgment other than to increase it, Brehme’s appeal cannot proceed. For that reason, no decision rendered can affect the outcome of the case, and her appeal was properly dismissed as moot.

In this interlocutory appeal, the court considers the propriety of a bench warrant issued by the Law Division following defendant's failure to appear in person for a pretrial conference, even though he appeared virtually at this conference and nearly all prior court hearings.  A non-citizen of the United States and Mexican national, defendant was deported after he was indicted for third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a)(1), and fourth-degree criminal sexual contact, N.J.S.A. 2C:14-3(b).  The motion judge issued the bench warrant, at the State's request, to serve as a detainer should defendant illegally reenter the United States or if the State elected to extradite defendant from Mexico.  The State thereafter acknowledged it was unlikely to extradite defendant on the third- and fourth-degree charges.  The motion judge denied defendant's ensuing motion to vacate the bench warrant and dismiss the indictment.  
 

On appeal, the court affirmed the order denying defendant's motion to dismiss the indictment, but reversed and remanded for the motion judge to vacate the bench warrant and permit defendant to appear remotely at all proceedings, including trial.  The court was persuaded, under the evolving jurisprudence, the judge erroneously denied defendant's reasonable request to appear virtually at an otherwise in-person trial in view of defendant's inability to legally reenter the United States and physically appear in court.  The court concluded defendant's virtual appearance is a reasonable accommodation given the circumstances presented in this case, not only to afford defendant an opportunity to contest the charges, but also to ensure the victim's rights are protected.  
 

The trial court’s finding that Celestine’s crimes were extraordinarily heinous, cruel, and depraved was supported by substantial evidence in the record, and the trial court’s application of extraordinary aggravating factor one was not an abuse of discretion. In addition, in denying Celestine’s petition for compassionate release, the trial court appropriately considered significant mitigating factors raised by Celestine alongside the extraordinary aggravating factors raised by the State.

In this public bidding dispute, the court is asked to determine if an archeologist, who is a subcontractor on a public works project, must be registered in accordance with the Public Works Contractor Registration Act (PWCR Act), N.J.S.A. 34:11-56.48 to -56.57.  Because the archeologist will not be performing "public work" as defined by the Prevailing Wage Act, N.J.S.A. 34:11-56.25 to -56.47, the court holds that the archeologist was not required to be registered under the PWCR Act.  Accordingly, the court affirms a Law Division order dismissing the challenge of Carbo Constructors Corp., a losing bidder, to the Passaic Valley Water Commission's award of the public contractor to J. Fletcher Creamer & Sons, Inc., the lowest qualified bidder.

The issue presented on this appeal is whether claims of insurance fraud under the Insurance Fraud Prevention Act (the Fraud Act), N.J.S.A. 17:33A-1 to -30, and the New Jersey Anti-Racketeering Act (RICO), N.J.S.A. 2C:41-1 to -6.2, are subject to arbitration under the Automobile Insurance Cost Reduction Act (AICRA), N.J.S.A. 39:6A-1.1 to -35.  The resolution of that issue involves discerning and harmonizing the Legislature's intent in enacting the Fraud Act, RICO, AICRA, and the arbitration system set up under AICRA for the resolution of disputes concerning personal injury protection (PIP) benefits.  The court holds that insurance fraud claims under the Fraud Act and RICO are not subject to PIP arbitration under AICRA.  Accordingly, the court reverses and vacates three orders in this matter that compelled plaintiffs' Fraud Act, RICO, and related declaratory judgment claims to PIP arbitration.