Opinion Summaries

In the midst of the COVID-19 pandemic, the parties in this legal malpractice action exchanged minimal discovery before the court issued its notice pursuant to Rule 4:36-2, advising that discovery would end in sixty days and any application for an extension must be made before the discovery end date (DED). Thirty days later, the court issued a trial date.

The parties secured a consensual sixty-day discovery extension, see Rule 4:24-1(c), but when defendants moved before expiration of the DED for a further extension, the judge denied the motion, concluding the exceptional circumstances standard applied because a trial date was set, and defendants failed to meet that standard. Plaintiff's motion for reconsideration was similarly denied, but not before defendants sought summary judgment, essentially arguing the lack of expert opinion doomed plaintiff's complaint. The judge granted defendants summary judgment.

The court reversed. The court construed Rule 4:24-1(c), which states a judge shall grant an extension motion upon good cause if made before the DED, but also states a court may grant a discovery extension only in exceptional circumstances once an arbitration or trial date is set. The court concluded that while court administrators may send notices setting future arbitration and trial dates before discovery ends, the plain language of the Rule, read in pari materia with other rules, requires judges to apply the good cause standard if the motion for a discovery extension is made before the DED. Plaintiff met the good cause standard.

Following years of litigation and a trial, the Borough of Englewood Cliffs (the Borough) was found to have failed for decades to comply with its constitutional obligations to provide its fair share of affordable housing. Thereafter, the Borough entered into settlement agreements to allow affordable housing to be built. Following a change in the membership of the Borough's council, however, the Borough moved to vacate the settlement agreements, contending that two council members who had voted for the agreements had conflicts of interest. That argument was in direct contradiction to the position the Borough had taken before the trial court and in a related litigation where the Borough had argued that there were no conflicts of interest.

The court affirms the trial court's rejection of the Borough's arguments for several reasons, including that the Borough was judicially estopped from claiming any conflict. The record establishes that for years the Borough has stalled various efforts to allow affordable housing to be built. The court emphasizes that the time for delaying constitutional compliance is over.

Defendants' motions for summary judgment to dismiss the complaint as untimely because it was filed four and a half years after decedent's death were denied by the trial court, which allowed the action to proceed by applying the minority tolling provision found in N.J.S.A. 2A:14-2(a), concluding the Legislature did not make clear whether the Act intended to distinguish between minors who died and minors who survived.

The court reversed, finding minority tolling applies only to actions brought on behalf of minors, and not to actions brought on behalf of decedents or their estates. The word "minor" requires a living human being and the plain legal meaning of "minor's 13th birthday" demonstrates the Legislature's intent that only living minors have birthdays. Plaintiffs were limited to wrongful death and survival claims causes of action, each of which applies a two-year statute of limitations. The court vacated the orders denying summary judgment but remanded to the trial court for findings as to whether defendants had substantially complied with those statutes.

In Liriano v. Liberty Mutual insurance Company, (Docket Essex L-5379-20), the court found that the plaintiff was barred by the entire controversy doctrine from asserting a claim for underinsured motorist coverage. Plaintiff had previously brought a lawsuit in another county naming the same defendant and based on the same accident and the same policy of insurance. In the earlier suit, which resulted in entry of a final judgment, plaintiff had made a claim for uninsured motorist coverage. Plaintiff had become aware during the pendency of the earlier suit that the tortfeasor was underinsured, not uninsured.

The court found in the circumstances of this case, that there were no genuine issues of material fact, and that defendant was entitled to judgment as a matter of law, dismissing plaintiff’s complaint.

Plaintiff moved to accept service by mail as good service in a Special Civil Part case based on electronic tracking information. The markings on the mail piece did not indicate good service. The court found that the law requires reference to the mail piece over the electronic tracking information and denied the motion.

Defendant was convicted of the lesser-included offense of passionprovocation manslaughter and attempted murder. His son was acquitted of all charges. The judge sentenced defendant to an aggregate sentence of twenty-years' imprisonment subject to NERA.

Defendant testified in his own behalf at trial, asserting self-defense and defense of his son. Defendant admitted during cross-examination that the statement he provided to police on the night of the incident failed to include critical details, for example, that his son was present or that defendant stabbed the two victims. Defendant admitted that he lied to police.

During the course of his summation, the prosecutor expressed his personal opinion that defendant was guilty, repeatedly called defendant a "liar," told the jury "we know he's a liar," and said defendant's testimony was "a story created by a liar." The court concluded the prosecutor's repeated derogatory comments amounted to plain error requiring reversal.

The court also held the judge's charge was fatally deficient because the judge never told the jury that self-defense and defense of others also applied to passion-provocation manslaughter, and the judge failed to instruct the jury on the lawful use of a weapon for a protective purpose with respect to the two weapons convictions.

In amending in 1990 Sections 11 and 13 of the Municipal Vacancy Law, N.J.S.A. 40A:16-11 and -13, the Legislature removed the governing body’s discretion to keep vacant a seat previously occupied by a nominee of a political party. Instead, the Legislature empowered the municipal committee of the political party whose nominee previously occupied the vacant seat to submit three names to the governing body. N.J.S.A. 40A:16 11. Section 11 mandates that the governing body choose one of the municipal committee’s three nominees.

The information the officers possessed at the time of the stop did not amount to specific and particularized suspicion that defendant was engaged in criminal activity. Therefore, the officers did not have reasonable and articulable suspicion to initiate an investigatory detention of defendant, and the evidence seized must be suppressed.

In this criminal prosecution, the court granted the State's motion for leave to appeal from an order suppressing evidence seized from a motor vehicle without a warrant. Police conducted an investigatory stop after surveilling the car for more than an hour and developing information that the front seat passenger, defendant Kyle A. Smart, was engaged in drug activity. At the roadside stop, no evidence of drug activity was observed in plain view; the occupants of the car neither made incriminating statements nor furtive movements; and the driver denied consent to search. Police then requested a K-9 unit. The dog alerted to the presence of narcotics, leading to a warrantless search of the car and seizure of a loaded handgun and drugs from the cabin.

Finding police had reasonable and articulable suspicion to pull over the vehicle, the motion judge upheld the stop and further determined probable cause arose when the canine sniff revealed the presence of narcotics in the car. However, the judge found the circumstances giving rise to probable cause were not "unforeseeable and spontaneous," justifying a warrantless search under the automobile exception to the warrant requirement pursuant to State v. Witt, 223 N.J. 409, 450 (2015). Accordingly, the judge suppressed the evidence seized.

Although the court agrees with the State that police could not have secured a warrant before the car was stopped and, in that sense, they did not "sit" on probable cause, under the circumstances proscribed by Witt, the court disagrees with the State's contention that probable cause was unforeseeable and spontaneous within the meaning of Witt. Because probable cause did not arise until the canine alerted for the presence of narcotics, the court concludes those circumstances were not unforeseeable and spontaneous and, as such, the automobile exception to the warrant requirement did not apply to this warrantless search. The court thus affirms the motion judge's order for slightly different reasons.

As to the duty to warn, an asbestos manufacturer or supplier that places inadequate warnings on asbestos bags used in the workplace has breached its duty to the worker, regardless of whether it provides the employer with the correct information, which is reasonably intended to reach its employees. As to medical causation, the trial court’s modified Model Jury Charge on proximate cause sufficiently guided the jury.

This matter concerns the right of a foreign country to modify a child support order entered in New York and subsequently registered in New Jersey. The parties, who had three children together, were divorced in New York in 2011. At the time, they entered into a marital settlement agreement which required Plaintiff to pay Defendant child support in the amount of $1,700 per month. Defendant and the children moved to New Jersey in 2012 and the parties later consented to the registration of the foreign divorce in New Jersey. Defendant and the children have lived in New Jersey continuously since that time. Plaintiff was deported to Ireland in 2014. While there, the Probation Division commenced proceedings for the international enforcement of Plaintiff’s child support obligation. In response to this enforcement action, Ireland entered an order reducing Plaintiff’s child support obligation. Plaintiff eventually returned to the United States. Defendant sought to enforce the original child support obligation and argued that Plaintiff owed her the balance between what he was required to pay under the original support order and what he actually paid pursuant to the Ireland order. Conversely, Plaintiff argued that the Ireland order was binding, his future support obligation should be the amount established by the Ireland court and he did not owe Defendant any arrears.

The court first determined which treaty governing the international enforcement of child support orders applied: The United Nations Convention on the Recovery Abroad of Maintenance, New York, 1956 (1956 UN Convention) or The Hague Convention on the International Recovery of Child Support and Other Forms of Family Maintenance (Hague Convention). The court concluded that the Ireland court inappropriately applied the 1956 UN Convention, because the United States was never a signatory to this treaty. The court then determined that it was the Hague Convention that was binding on the two nations, since both Ireland and the United States were signatories to that treaty at the time the Ireland order was entered. The Court next analyzed the provisions of the Hague Convention and its implementing legislation, the Uniform Interstate Family Support Act (UIFSA), to ascertain those circumstances where a receiving country may modify a support order. It concluded that Ireland did not have the authority to modify the support order in this case, where Defendant and the children have lived in New Jersey since 2012. The court further concluded that, under UIFSA, the original child support order is the "controlling order" since Defendant and the children continuously resided in New Jersey, making New Jersey the children’s “home state” and because both parties consented to jurisdiction in New Jersey, even when Plaintiff was residing in Ireland. Accordingly, the court held that Ireland did not have the authority to modify the original child support order and that Plaintiff owed the amounts that had accrued since the Ireland order was entered.

Once defendant invoked his right to counsel, the interrogation should have stopped. Not only did the interrogation continue, but during the questioning, the detective strongly suggested that defendant would give them the information they sought if he were truly innocent. Allowing that entire exchange to be played for the jury was harmful error. In addition, the error was compounded when the prosecutor commented on that portion of the statement that should have never been before the jury in the first place. The Court discerns no error regarding the witness testimony or any of the prosecutor’s other comments during summation.

The stop was not supported by a reasonable and articulable suspicion of a motor vehicle violation. N.J.S.A. 39:3-75, which governs automotive safety glass, does not apply to window tint violations. Consistent with the plain language of N.J.S.A. 39:3-74, reasonable and articulable suspicion of a tinted windows violation arises only when a vehicle’s front windshield or front side windows are so darkly tinted that police cannot clearly see people or articles within the car.

Defendants have the right to be released two years after a judge orders them detained, excluding delays attributable to the defendant, if the prosecutor is not ready to proceed to trial. N.J.S.A. 2A:162-22(a)(2)(a). The statute is silent about what happens if the parties are ready but there are not enough courtrooms or judges to try the case. In addressing that dilemma, the Court attempts to balance the relevant interests in a way that comports with defendants’ rights under the CJRA.

In this appeal, the court considered the propriety of a negotiated plea agreement provision, permitting the State to revoke its sentencing recommendation if the defendant is arrested on new charges that are not adjudicated prior to sentencing. Because the court concluded a no-new-arrest or no-new-charges provision violates a defendant's right to due process and is fundamentally unfair, the court vacated defendant's conviction and remanded the matter to allow the parties to negotiate a new plea agreement or permit defendant to withdraw his guilty plea. The court's decision does not affect those plea agreement provisions that limit the State's right to revoke its sentencing recommendation or recommend a harsher sentence if a defendant fails to appear at sentencing, provided the defendant is afforded a fair hearing pursuant to established case law.

This post-judgment dissolution case concerns a question of first impression: may a child support obligation be modified retroactively prior to the date of application where the substantial, permanent change in circumstances is an adult adoption that terminated the obligor’s parental rights.

The parties are divorced and share three children. For the relevant time period, the child support obligation was allocated for the oldest child, but unallocated for the two other children. In 2018 – after their respective eighteenth birthdays – the two oldest children were adopted by their stepfather. Although the parties agree that the adoptions qualify as a change in circumstances warranting a modification to child support for the third child, they dispute whether the modification can be retroactive to the date of the adoption, as opposed to the date of application.

N.J.S.A. 2A:17-56.23a generally prohibits retroactive modifications of child support prior to the date of application. Caselaw, however, established limited exceptions to the statute’s general prohibition, including emancipation. The limited emancipation exception is based on the underlying premise that on emancipation, any duty of support is extinguished.

Based on the similarities between emancipation and adult adoption, most noteworthy being that by requesting an adult adoption the child has removed him- or herself from the parental sphere of influence thereby extinguishing any duty of support, the court holds that N.J.S.A. 2A:17-56.23a does not bar termination or modification of child support retroactive to the date of the supported child’s adult adoption.

In light of all the defendants’ conduct regarding KDS and KPS to strip Robert of his rightful interests, equity cannot abide imposing a marketability discount to the benefit of defendants. The trial court’s acceptance of Robert’s expert’s valuation of the company fell within its broad discretion and was fully supported by the record. Defendants were given the opportunity to present an expert valuation of the companies on remand but made the strategic decision not to do so. The Court declines to provide defendants with another bite of this thoroughly chewed apple and reinstates the judgment of the trial court.

Once Rivas invoked his right to counsel on March 18, however ambiguously, the detectives were required to clarify the ambiguity or cease questioning. The detectives did neither. Instead, the detectives interrogated Rivas for nearly six hours, eliciting a confession. After the improper interrogation and Rivas’s tainted confession -- a confession Rivas had reason to believe was lawful -- Rivas asked to see the detectives again. Those remarks cannot be fairly characterized as Rivas voluntarily initiating further communications with the detectives because the questioning never truly ceased. The interrogation and the request to speak again with the detectives were inextricably intertwined.

The crime-fraud exception cannot be properly applied to marital communications that preceded the Legislature’s amendment of N.J.R.E. 509. The Court finds no evidence that the Legislature intended that amendment to retroactively apply to otherwise privileged marital communications that occurred prior to that amendment. The trial court’s admission of the text messages therefore constituted error. However, that error was harmless given the extensive evidence presented by the State in support of defendant’s official misconduct convictions.

These six back-to-back appeals arising from Law Division orders in two vicinages have been consolidated for the issuance of a single opinion. They require the court to consider an issue of first impression –– whether in the context of Rule 4:6-2(e) motions to dismiss with prejudice, insurance policies issued by defendants did not cover business losses incurred by plaintiffs that were forced to close or limit their operations as a result of Executive Orders issued by Governor Philip Murphy to curb the COVID-19 global health crisis.

We affirm because we conclude the motion judges were correct in granting Rule 4:6-2(e) dismissals of plaintiffs' complaints with prejudice for failure to state a claim on the basis that plaintiffs' business losses were not related to any "direct physical loss of or damage to" as required by the terms of their insurance policies. We conclude plaintiffs' business losses were also not covered under their insurance policies' civil authority clauses, which provided coverage for losses sustained from governmental actions forcing closure or limiting business operations under certain circumstances. We further conclude defendants' denial of coverage was not barred by regulatory estoppel. In the alternative, we conclude that even if plaintiffs' business losses otherwise satisfied the requirements of the relevant clauses, coverage was barred by their insurance policies' virus exclusions and endorsements because the Executive Orders were a direct result of COVID-19.