Opinion Summaries

In these appeals, the court holds, as a matter of first impression, that a valid grand jury subpoena is sufficient to obtain prescription drug information maintained in New Jersey's Prescription Monitoring Program (PMP) when law enforcement personnel are investigating a prescriber.

Plaintiff filed a complaint against defendants Millville and its police department under OPRA, N.J.S.A. 47:1A-1 to -13, seeking copies of DWI/DUI, drug possession, and drug paraphernalia summonses and complaints issued by Millville police officers. The trial judge granted relief but the court reversed. The court observed that the creation of a complaint-summons starts with a police officer – at the direction of the Attorney General – inputting information into an electronic system created and maintained by the Administrative Office of the Court. Once completed, the complaint-summons is retained by the municipal court, whose authority falls under the aegis of the judiciary. The court therefore held that the municipality and its police department are not the custodians of these records and they could not be compelled to search for and turnover these records in response to an OPRA request.

Defendants appeal the Chancery Division's denial of their motion to vacate a default judgment of mortgage foreclosure. Defendants' house was severely damaged by Superstorm Sandy, and they ceased paying their mortgage loan.

Defendants filed a federal lawsuit against their flood insurance company and homeowners' insurer policies, seeking payment for the storm damage. They named the mortgage holder as a co-defendant, claiming the storm extinguished their obligation to pay the mortgage. The federal court dismissed the complaint against all three defendants.

The mortgage holder's successor then filed the present state-court foreclosure action. Defendants defaulted and final judgment was entered against them. Defendants argue the foreclosure action was barred under the Entire Controversy Doctrine, because the mortgagee had the opportunity to file a counterclaim for foreclosure in the previous federal action.

This court affirms the Chancery judge's ruling that the foreclosure action was not barred by the Entire Controversy Doctrine.

The federal case seeking insurance payments lacked a sufficient nexus to the mortgage to preclude the foreclosure case. In addition, the mortgage holder's contractual right to direct the use of any insurance proceeds does not eliminate the mortgage debt or the right to foreclose on the defaulted loan.

This matter was before the court on applications filed by both parties seeking relief concerning child support and custody. In its written opinion, the court addressed the issue of whether, for purposes of calculating child support, the court may find a parent to be underemployed, and impute to that parent income based on available overtime, where the available overtime is greater than the amount of overtime the parent had worked in the past.

The court held that a parent was not “voluntarily underemployed” for not working all available overtime, without regard to past practices. The court held that for purposes of calculating child support, the parent’s income is his or her salary plus an additional amount based on past earnings from overtime and second jobs.

This non-dissolution case addresses whether partition of a residence remains an equitable remedy among unmarried, cohabitating intimates engaged in a joint venture following 2010 amendments to the Statute of Frauds – a question of first impression.

In 2010, the Statute of Frauds was amended to extend its writing requirement to any “promise by one party to a non-marital personal relationship to provide support or other consideration for the other party.” N.J.S.A. 25:1-5(h). Although the amendment clearly made unwritten palimony agreements unenforceable, no published opinion has yet addressed whether, in the absence of a writing, the equitable remedy of partition among unmarried, cohabitating intimates survived.

Here, although the deed and mortgage to the home were in S.R.’s name only, C.N. was heavily involved in the home’s purchase by, among other things: communicating with the realtor; providing $10,000 of the $15,000 down payment; being solely responsible for the inspection; negotiating a $10,000 seller’s concession; and being a named insured. Once in the home, although S.R. largely paid the monthly mortgage, C.N. was responsible for the majority of the home’s upkeep costs, such as gas, electric, water, sewer, security, landscaping services, garbage, and pest control. He oversaw contractors. He purchased furniture. And, he worked with a lawyer to appeal a tax assessment.

After reviewing pre-amendment precedent, the plain text of the statutory amendment that used palimony language from a precedential Appellate Division opinion, and the legislative history undergirding enactment of N.J.S.A. 25:1-5(h) – legislative history that expressly discussed palimony caselaw, yet was silent as to partition – the court holds that, in the absence of a writing, partition of a residence remains an equitable remedy among unmarried, cohabitating intimates engaged in a joint venture.

Viewing the trial record in its entirety, the detective’s testimony, in context, did not compel the inference that he had superior knowledge incriminating defendant from a non-testifying witness. The testimony therefore did not violate defendant’s confrontation right or the hearsay rule. Although there was no abuse of discretion in the admission of the testimony here, the Court cautions against using the phrase “based on the evidence collected” in this context and provides guidance as to curative instructions

The court affirms the dismissal without prejudice of a Special Civil Part suit to recover unpaid legal fees based on plaintiff's failure to provide defendants' attorney with a copy of the pre-action notice required by Rule 1:20A-6 referenced in the complaint in response to his written demand in accordance with Rule 4:18-2.

The biological mother of two children appeals from the Judgment of Guardianship entered by the Family Part terminating her parental rights to her two sons. The judge assigned to manage this case made the decision to terminate appellant's parental rights after conducting a one-day trial in which she was not present nor represented by counsel. At the first case management conference, appellant complained to the judge about her inability to communicate with the attorney assigned by the Public Defender – Office of Parental Representation (OPR). Without a formal motion or prior notice to appellant, the judge granted OPR counsel's oral application to be relieved as counsel of record for appellant. The judge thereafter told appellant she had only two options: (1) retain private counsel or (2) proceed without a lawyer

This court holds the Family Part violated appellant's constitutional and statutory right to be represented by competent counsel. The trial judge's response to appellant's dissatisfaction with her assigned OPR counsel is irreconcilable with the approach the Supreme Court established in N.J. Div. of Child Prot. & Perm. v. R.L.M. (In re R.A.J.), 236 N.J. 123, 149-51 (2018). This court vacates the Judgment of Guardianship against appellant, and remands for the matter to be tried before a different judge.

This court holds the Family Part violated appellant's constitutional and statutory right to be represented by competent counsel. The trial judge's response to appellant's dissatisfaction with her assigned OPR counsel is irreconcilable with the approach the Supreme Court established in N.J. Div. of Child Prot. & Perm. v. R.L.M. (In re R.A.J.), 236 N.J. 123, 149-51 (2018). This court vacates the Judgment of Guardianship against appellant, and remands for the matter to be tried before a different judge.

Executive Order 124 creates a sufficient expectation of eligibility for release through a furlough program to call for certain due process protections. The Court adds to the Executive Order the protections summarized on pages 6 to 7 and detailed on pages 33 to 36 of the opinion to comport with due process. The Court also notes that inmates may challenge the DOC’s action, a final agency decision, by seeking review before the Appellate Division. The agency’s decision is entitled to deference on appeal. Individual inmates may also seek relief independently under Rule 3:21-10(b)(2). They do not have to exhaust the remedies available under the Executive Order before they may file a motion in court. As to sentences imposed on juveniles who are in the custody of the Juvenile Justice Commission (JJC), those individuals may seek relief from the court on an individual basis. To the extent the opinion calls for trial judges to rule on motions and the Appellate Division to review agency decisions, the Court exercises its supervisory authority to require that applications be heard and decided in a matter of days and urges the Commissioner and the Parole Board to act as expeditiously as possible.

Defendant pleaded guilty to two counts of violating N.J.S.A. 2C:40-26(b) by driving during a period of license suspension or revocation for a second or subsequent violation of N.J.S.A. 39:4-50, driving while under the influence, or N.J.S.A. 39:4-50a, refusal to provide a breath sample. The court sentenced defendant on each count to a 180-day term of imprisonment with a 180-day period of parole ineligibility as a condition of serving a two-year probationary term. The court ordered the custodial terms to be served consecutively and the probationary terms to be served concurrently.

Defendant argued his sentences are illegal because the Criminal Code does not authorize a spilt sentence with a term of imprisonment that includes a mandatory period of parole ineligibility. The court disagreed, finding the plain language of N.J.S.A. 2C:43-2(b)(2) authorizes sentences including terms of incarceration as a condition of probation, with the only limitation being the term of incarceration may not exceed 364 days. The court finds that because defendant's individual and aggregate custodial sentences require less than 364 days of imprisonment as a condition of probation, they are authorized by N.J.S.A. 2C:43-2(b)(2) even though the terms of imprisonment include mandatory periods of parole ineligibility.

The court also determined the sentencing court erred by failing to make findings supporting its imposition of consecutive sentences, see State v. Yarbough, 100 N.J. 627 (1985), and by imposing sentences that were both consecutive and concurrent, see State v. Rogers, 124 N.J. 113 (1991). The court remanded for resentencing.

In affirming defendant's conviction for murdering his former girlfriend, the court clarifies that evidence that satisfies a hearsay exception, such as defendant's prior threat to the victim, admissible as a statement of a party opponent, N.J.R.E. 803(b)(1), must also overcome the exclusion of other crimes, wrongs, and acts evidence under N.J.R.E. 404(b), as well as satisfy N.J.R.E. 403. The trial court mistakenly concluded that meeting the hearsay exception provided an independent basis for admitting the prior statement.Notwithstanding that mistake, the appellate court affirms the conviction, because the hearsay statement satisfied the Rule 404(b) test set forth in State v. Cofield, 127 N.J. 328, 338 (1992). In particular, its probative value as evidence of motive was not outweighed by its apparent prejudice.

Tax Court: Carmine Paul, Executor v. Director, Division of Taxation; Docket No. 000307-2016, opinion by Nugent, J.T.C., decided June 2, 2020. For plaintiff – Thomas M. Wolfe (Wolfe Ossa Law, attorneys); for defendant – Heather Lynn Anderson (Gurbir S. Grewal, Attorney General of New Jersey, attorney).

Decedent formed an irrevocable inter vivos trust in June 2007, funded with cash and securities, naming himself and his son-in-law, Carmine Paul, as trustees. By the terms of the Trust Indenture the trustees were required to pay to Decedent the net income from the trust on a quarterly basis. Trustees had the discretion to distribute principal to the beneficiaries in an amount limited by the trust, but Decedent was not entitled to any distribution of trust principal. At Decedent’s death, the remaining trust property was to be distributed to the beneficiaries named in the Trust Indenture. Prior to his death Decedent suffered a stroke and Carmine Paul assumed the role of trustee. Decedent continued to receive net income distributions from the trust until his death in 2013. After Decedent’s death Defendant audited the New Jersey Resident Decedent Inheritance Tax return and included in Decedent’s estate the value of the trust. Defendant found that Decedent had reserved a life estate in the trust income and assessed inheritance tax on the assets under N.J.S.A. 54:34-1(c) as a transfer “intended to take effect in possession or enjoyment at or after . . . death.” In challenging the tax, Plaintiff claimed that because the trust authorized the trustees to distribute principal to the beneficiaries on a discretionary basis, Decedent never retained a life estate in the property since the trustees could have drained the trust principal. Moreover, Plaintiff claimed the court should apply N.J.S.A. 54:34-1.1 to exempt the property from tax. The court finds that neither the statutes nor the case law provides support for Plaintiff’s claim. The facts fit within the plain text of the statutes, where Decedent reserved an interest in the property transferred for a period measured by Decedent’s life. Moreover, N.J.S.A. 54:34-1.1 requires that a Grantor who retained an interest in the property transferred must execute in writing a complete disposition of the property interest more than three years prior to death. Plaintiff failed to meet his burden of proof to establish that the transfer was outside the reach of the “at or after death” provision of the statute or that Decedent executed a timely and complete disposition of his interest in the property. Accordingly, the court grants Defendant’s motion for summary judgment affirming the assessment.

Defendant pled guilty during trial to aggravated manslaughter. The victim was the boyfriend of his former girlfriend and mother of his daughter. The State introduced text messages defendant sent to her shortly before the homicide, alleging they were threatening and demonstrated defendant's jealous nature. Defendant moved pretrial to suppress the messages seized from her cellphone. Although the State asserted that police obtained consent before searching the phone, it objected to any evidentiary hearing on the issue, arguing that defendant lacked a reasonable expectation of privacy in those text messages and the requisite standing to challenge the search. Without holding an evidentiary hearing, the judge agreed with the State and denied the motion.

The court affirms, concluding that defendant had no reasonable expectation of privacy in the text messages once they were sent and received on another's phone, and that defendant lacked standing to challenge the search because he had no "proprietary, possessory or participatory interest in either the place searched or the property seized." State v. Randolph, 228 N.J. 566, 571 (2017) (quoting State v. Alston, 88 N.J. 211, 228 (1981)).

As the Court explained in Borough of Saddle River v. 66 East Allendale, LLC, evidence that risks misleading the jury into assuming a zoning variance for purposes of calculating a property’s value must not be admitted absent a judicial finding it is reasonably probable that the variance will be obtained. 216 N.J. 115, 142 (2013). Therefore, the trial court erred by allowing the jury to consider testimony that the highest and best use of the subject property would require a variance without first confirming the probability of securing that variance.

SOMA’s legislatively enumerated purposes demonstrate that a special need -- not an immediate need to gather evidence to pursue criminal charges -- motivates the GPS monitoring prescribed by the Legislature. That satisfies the first step in a special needs analysis and allows the determination that this search may be constitutional. The Court therefore balances the interests of the parties and concludes that, although GPS monitoring is a significantly invasive search, it is outweighed by the compelling government interest advanced by the search and H.R.’s severely diminished expectation of privacy. The Court notes that H.R.’s PSL status is critical to that conclusion.

By its terms, RISA applies to services contracts. Further, in the statute as written, there is no requirement that a contract include a financing arrangement to be covered by RISA.

On leave granted, the New Jersey Department of Health Office of Emergency Medical Services appealed from a July 16, 2019 Law Division order lifting the summary suspension of plaintiff AmeriCare Emergency Medical Service, Inc.'s license to operate as an emergency medical service provider and permitting an action to proceed under the New Jersey Civil Rights Act, N.J.S.A. 10:6-1 to -2 (CRA). Although there is no jurisdictional requirement that administrative remedies be exhausted in order to bring suit under the CRA, the party alleging a claim must show a violation of a substantive right or that someone "acting under color of law" interfered with or attempted to interfere with a substantive right. State v. Quaker Valley Farms, LLC, 235 N.J. 37, 64 (2018). Since AmeriCare could not make that showing without agency adjudication of its administrative claims, the panel reversed the Law Division order.

The Court reverses and remands (a) for the Department to provide improved notice of the basis on which its investigation has found some evidence -- which the Court stresses must be some credible evidence -- to support the allegation of harm; and (b) for S.C. to have an informal opportunity before the Department to rebut and/or supplement the record before the Department finalizes its finding. The Court does not address the amici’s challenge to the validity of the “not established” category but recognizes problems with the standard as presently articulated and notes that it would be well worth the effort of the Department to revisit its regulatory language concerning the standard for making a “not established” finding as well as its processes related to such findings.

Based on its review of the extensive record, the Court finds beyond a reasonable doubt that there is cause for removal. Because of Respondent’s multiple, serious acts of misconduct -- in particular, his inappropriate behavior in a matter involving an alleged victim of domestic violence -- the Court orders his removal from office.  

This personal injury case arises from a pedestrian's fall on black ice in a parking lot leased by private owners to the Borough of Caldwell. The injured pedestrian and his wife sued both the Borough and the private owners, alleging negligent failure to maintain the parking lot and the internal driveway connected to it in a safe condition. The written lease between the owners and the Borough expressly delegates to the Borough the responsibility to clear the premises of ice and snow.

The trial court granted the Borough and the property owners summary judgment. Plaintiffs now appeal the ruling solely as to the property owners, arguing they had a non-delegable duty under tort law to keep the premises safe from accumulated ice and snow, or alternatively, that the language of the lease does not delegate that duty with sufficient clarity

We affirm, albeit for a legal reason not articulated by the trial court. Based on the Supreme Court's very recent opinion in Shields v. Ramslee Motors, 240 N.J. 479 (2020), the property owners are entitled to summary judgment as a matter of law. That is because the lease explicitly delegates to the Borough the exclusive responsibility to remove snow and ice from the premises. The fact that the tenant in this case is a public entity and that it uses the premises for a municipal parking lot does not warrant a different result than in Shields.