Opinion Summaries

Tax Court: Eagle Rock Convalescent Center v. Township of West Caldwell; Docket Nos. 006780-2008; 008154-2009; 002089-2010; 010834-2011; 000264-2012; 000868-2013; 005687-2014, opinion by Nugent, J.T.C., decided January 6, 2021. For plaintiff – Daniel J. Pollok, Esq. (Brach Eichler L.L.C., attorneys); for defendant – Levi Kool*, Esq. (O’Donnell McCord, P.C., attorneys).

*Levi Kool argued the matters but the opinion is being sent to the current municipal attorney, Joseph McGlone.

Taxpayer, Nursing Home filed complaints alleging the property was over-assessed. Utilizing the income and cost approaches Taxpayer’s appraisal expert reconciled the concluded values opining that the property’s market value exceeded the value as equalized. Under the income approach the expert utilized the property’s actual income and expenses as economic rent in the absence of market leases. The court rejected the proofs as insufficient and found the allocation between income attributable to the business versus the real estate to be lacking. The court found the value conclusion reached under the cost approach unreliable where Taxpayer’s expert utilized the Marshall & Swift, SwiftEstimator computer program for all tax years. The program’s scientific reliability has yet to be established, and it yielded inconsistent results in this case. West Caldwell relied on two appraisal experts who both utilized only the cost approach. Because of a town-wide 2011 revaluation, West Caldwell’s revaluation first expert opined on value for tax years 2011 and 2012. The second expert utilized the SwiftEstimator software for the remaining tax years a method not accepted by the court, and where the proofs revealed a similar inconsistency in the computer output. The assessments were affirmed for lack of proofs for tax years 2008-2010, and 2013 and 2014. The court accepted Taxpayer’s expert’s land value, and the replacement cost new under the cost approach opined by West Caldwell’s revaluation expert using the Marshall & Swift calculator method. The court found no basis to apply external obsolescence or functional non-curable obsolescence but applied depreciation for physical and functional curable obsolescence. Finding the assessments for tax years 2012 fell within the common level range the court affirmed the assessment. The court also affirmed the assessment for tax year 2011 since West Caldwell did not file a counterclaim, thus, the court cannot increase the assessment.

Tax Court: Township of Freehold v. CentraState Healthcare Services, Inc., Docket Nos. 000047-2016; 000048-2016; opinion by Sundar, J.T.C., decided January 5, 2021. For plaintiff – Martin Allen, Esq. (DiFrancesco Bateman et al., P.C. (Kevin A. McDonald, Esq. and Wesley E. Buirkle, Esq., on the brief); for defendant – David B. Wolfe, Esq. (Skoloff & Wolfe, P.C.)

Held: Plaintiff taxing district’s omitted assessment complaints for tax years 2014 and 2015 are dismissed for failure to file timely appeals. Although the court, in January 2018, after reconsideration, had granted partial summary judgment motions to plaintiff taxing district denying local property tax exemption to an office condominium owned by defendant (CHSI) because CHSI was a for-profit entity, the lack of the court’s subject matter jurisdiction can be raised at any time, especially as to non-final interlocutory orders. Therefore, although CHSI’s motions do not state a cause of action for reconsideration under R. 4:49-2, the court deems them as motions to dismiss under R. 1:6-2 for untimely filing. Those motions are granted pursuant to the ruling in Borough of Red Bank v. RMC-Meridian Health, 30 N.J. Tax 551 (Tax 2018), aff’d, 2019 N.J. Super. Unpub. LEXIS 574, *1 (App. Div.), motion for leave to appeal denied, 238 N.J. 455 (2019), and the taxing district’s omitted assessment complaints are dismissed for lack of subject matter jurisdiction. As a result of the dismissals, claims raised by both parties pertaining to valuation of the property do not survive.

In this criminal appeal, defendant principally contends the trial judge should not have admitted opinion testimony from a police officer and a civilian eyewitness estimating the range of heights and ages of children they had observed near defendant in a public park. The witnesses saw the group of children, accompanied by several adults, playing on equipment in a playground. The State relied on their testimony to prove that one or more of the children was under the age of thirteen, a statutory grading element of the charged offenses of lewdness and sexual assault by contact.

The trial court rejected defendant’s contention that the opinion testimony was too speculative to be considered by the jury. On appeal, defendant reiterates this argument, contending as a general proposition that witnesses commonly misjudge the ages and heights of other persons.

For the reasons that follow, we affirm the court’s evidentiary ruling. In the circumstances presented, the two witnesses had an adequate opportunity to view the physical characteristics and activities of the group of children to enable them to provide lay opinions under N.J.R.E. 701 about the perceived ranges of the children’s heights and ages.

Although we appreciate the inherent risks of imprecision and mistake when eyewitnesses estimate the heights or ages of other persons, such lay opinions nonetheless may be admissible under Rule 701 and helpful to the trier of fact, subject of course to cross-examination and other forms of impeachment.

In evaluating the admissibility of such evidence, a court should consider a variety of factors, such as (1) distance, (2) length of time of the observation, (3) any observed activity of the person, (4) physical comparisons with the height or size of nearby objects or other persons, (5) whether the eyewitness attests to a range rather than a specific height or age, (6) whether the observed individual has a comparatively similar age or height as the witness, (7) whether there is corroborating proof, and (8) the totality of circumstances. In appropriate cases, the court may exclude or limit the opinion testimony in its discretion under N.J.R.E. 403 and, if warranted, provide jurors with a limiting or cautionary instruction.

Because it is contrary to the Supreme Court’s evidence rules and case law governing lay opinion, we decline to apply the 1916 categorical pronouncement of the Court of Errors and Appeals that age “is not within the category of things . . . which . . . can be proved by opinion testimony."State v. Koettgen, 89 N.J.L. 678, 683 (E. & A. 1916), discussed in Part II, infra. Rather, we apply a contextual, case-by-case analysis of admissibility of such proof consistent with our modern Rules of Evidence and prevailing case law principles.

Tax Court: 30 Journal Square Partners, LLC v. City of Jersey City Docket No. 9666-2020; opinion by Brennan, J.T.C., decided December 30, 2020. For plaintiff – David B Wolfe (Skoloff & Wolfe, P.C.,attorneys); for defendant – David J. Yanotchko (Florio Kenny Raval,LLP, attorneys) and Robert D. Blau (Blau & Blau, attorneys).

Taxpayer’s motion requesting an Order verifying the exclusive jurisdiction of the Tax Court in the event of a dual filing with both the Tax Court and the County Board of Taxation, and requiring the party that filed with the County Board of Taxation to withdraw their appeal(s) with prejudice. The Tax Court confirmed its exclusive jurisdiction but ordered the county board filer to request a judgment of dismissal without prejudice from the County Board of Taxation. The court held that N.J.S.A. 54:3-21(a) did not require a withdrawal with prejudice of the county board petition(s) thereby limiting the party that filed with the county board to a timely counterclaim in order to proceed with its independent right to litigate a property tax appeal.

This appeal requires the court to determine whether the ongoing COVID-19 pandemic provided a sufficient legal reason and manifest necessity for the judge to terminate the trial, where the jury had been impaneled and sworn and the trial was well under way. The court concluded it positively and decidedly did. In reaching that conclusion, the court declined to dismiss the charges, and it applied age-old legal principles guiding the federal and state constitutional prohibition against double jeopardy.

In this criminal appeal involving a high speed vehicular pursuit of a fleeing suspect, the court affirmed the trial court's decision to preclude defendant from using the Attorney General's Guidelines on Vehicular Pursuit of a Fleeing Suspect as substantive evidence on the issue of causation in the aggravated assault while eluding arrest charge under N.J.S.A. 2C:12-1(b)(c). The court agreed with the trial court that the jury might confuse deviation from the Guidelines with causation and its prejudicial value outweighed its probative value.

The Guidelines were properly permitted to be utilized by defendant during cross-examination for the limited purpose of impeachment.

This medical negligence case arises from a 2011 surgery that defendant Dr. David Nenna performed on plaintiff to remove surgical hardware from a prior surgery. Four years later plaintiff discovered defendant left three washers in his leg.Due to medical concerns, however, plaintiff who is a paraplegic, was unable to have a second surgery to remove the hardware.

Plaintiff did not claim any physical pain or limitation as a result of the retained washers. Rather, plaintiff sought to recover damages only for the emotional distress caused by knowing surgical washers were in his leg that could not be removed. In support of his claim for damages, he provided a certification briefly describing his mental anguish, as to which he would testify at trial. The trial judge granted defendant's motion for summary judgment finding plaintiff had failed to establish emotional distress damages because he did not provide supporting medical or expert proof.

The court held that emotional distress damages ordinarily must be supported by medical or expert proof. Innes v. Marzano-Lesnevich, 435 N.J. Super. 198, 235-36 (App. Div. 2014). There are two exceptions to this general rule. The first exception is for cases involving intentional torts such as racial or sexual discrimination. Where a tortfeasor's conduct is willful, the Court has explained "the victim may recover all natural consequences of that wrongful conduct, including emotional distress and mental anguish damages . . . ." Tarr v. Ciasulli,181 N.J. 70, 82 (2003).

The second exception are cases in which "[t]he nature of [the] particular harm mitigates against the reason for an enhanced standard of proof in the first instance – the elimination of spurious claims." Innes, 435 N.J. Super. at 236. For example, medical or expert proof has not been required when plaintiffs have suffered from malicious use of process, Baglini v. Lauletta, 338 N.J. Super. 282, 307 (App. Div. 2001), wrongful birth arising from inadequate genetic counselling, Geler v. Akawie, 358 N.J. Super. 437, 457 (App. Div. 2003), and where a funeral home failed to ensure that orthodox ritual requirements were met. Menorah Chapels at Millburn v. Needle, 386 N.J. Super. 100, 116 (App. Div. 2006).

The court held that plaintiff's case did not satisfy either exception. Therefore, he was required to support his claim for emotional distress damages with medical or expert proof, which he did not do. Accordingly, the court affirmed summary judgment in favor of defendant.

For an arbitration provision in a retainer agreement to be enforceable, an attorney must generally explain to a client the benefits and disadvantages of arbitrating a prospective dispute between the attorney and client. Such an explanation is necessary because, to make an informed decision, the client must have a basic understanding of the fundamental differences between an arbitral forum and a judicial forum in resolving a future fee dispute or malpractice action. See RPC 1.4(c). That information can be conveyed in an oral dialogue or in writing, or by both, depending on how the attorney chooses best to communicate it. The Court refers the issues raised in this opinion to the Advisory Committee on Professional Ethics, which may propose further guidance on the scope of an attorney’s disclosure requirements. The new mandate will apply prospectively, except as to Delaney, who must be allowed to proceed with his malpractice action in the Law Division.

After only physically inspected the properties and examining the assessment records and tax map, plaintiffs purchased tax sale certificates on vacant lots in Brick Township. They paid accruing taxes and bided their time until entitled to commence foreclosure actions. Once their foreclosure actions were underway, plaintiffs finally obtained title searches and learned the properties were encumbered by a conservation easement, which rendered the properties undevelopable. That discovery prompted plaintiffs to commence these actions, seeking rescission of their tax sale certificate purchases and reimbursement of taxes paid. The chancery judge granted summary judgment in favor of Brick Township, and in distinguishing Twp. of Middletown v. Simon, 193 N.J. 228 (2008), the court affirmed because, unlike Middletown's conduct there, Brick Township's tax assessor was as much in the dark about the conservation easement as plaintiffs and, unlike Middletown, the township took no active steps to deprive plaintiffs of the value of their investments.

After disposition of a lengthy and hotly-contested matrimonial action, a dispute arose about the lien of one of defendant's former attorneys and whether it required payment of the attorney's fees from an escrow account holding the net proceeds of a sale of marital property. With one minor exception, the trial judge ruled against the attorney.

The court recognized that N.J.S.A. 2A:13-5 permits the attachment of an attorney's lien, as relevant here, only to an "award" or "judgment" entered in the client's favor. Because the trial judge awarded all marital assets to plaintiff, the lien could not attach to the escrow fund that was part of the award to plaintiff. And, even if it did, the court held that the lien only gave the attorney an opportunity to assert his claim; ultimately, the trial judge was required to ascertain which of the competitors to the fund had the more equitable interest. In this case, plaintiff – having been victimized by defendant's contumacious conduct and unwillingness to honor his support obligations – had the greater equitable right to the fund than defendant's former attorney.

The judgment of the Appellate Division is affirmed substantially for the reasons expressed in Judge Haas’s thoughtful opinion, which rests heavily on the plain language of N.J.S.A. 17:22-6.64. 461 N.J. Super. at 162-64. The Legislature, of course, may amend the statute if it chooses to do so.

In Ciluffo v. Middlesex General Hospital, the court adopted a framework for trial courts to follow when a plaintiff settles a negligence claim with the original tortfeasor and proceeds to trial against medical professionals whose subsequent negligent treatment resulted in additional injuries and damages. 146 N.J. Super. 476 (App. Div. 1977). To avoid a windfall to the plaintiff, the court explained that after a plaintiff settled her claim with the first of successive independent tortfeasors, the medical defendants were entitled to a full pro tanto credit for the settlement amount if that amount exceeded the total "provable damages" suffered by the plaintiff as determined by a jury; the medical defendants would receive a partial credit against any verdict if the settlement amount exceeded the difference between the total provable damages minus the amount of damages the jury apportioned to the malpractice. Id. at 482–83.

In this case, plaintiff's decedent suffered a fractured ankle resulting from a fall at a restaurant. She came under the care of medical defendants, who performed surgery on the fracture five days later. Plaintiff's decedent allegedly suffered additional injuries, and subsequently died from a pulmonary embolism, allegedly the result of defendants' medical malpractice.

While discovery was ongoing, plaintiff settled her claim with the restaurant for $1.15 million. The medical defendants moved for a declaration entitling them to the Ciluffo pro tanto settlement credit, and the motion judge entered orders to that effect.

The court granted plaintiff leave to appeal and reversed. After examining caselaw developments in the years since Ciluffo was decided, including enactment of the Comparative Negligence Act, the court concluded that awarding pro tanto settlement credits is a vestige of the common law without support in our current jurisprudence.

At issue on this appeal is the validity of an arbitration provision contained within a purported agreement between a consumer and a solar energy company. Plaintiff consumer acknowledges she memorialized her understanding of the overall agreement by affixing her signature to the signature line of an otherwise blank iPad screen, displayed to her by defendant salesperson. Plaintiff maintains, however, that she did not check any boxes on the iPad screen that would otherwise indicate her assent to arbitration.

Relying on our Supreme Court's then-recent decision in Goffe v. Foulke Management Corporation, 238 N.J. 191 (2019), the trial judge granted defendants' motion to compel arbitration and stay plaintiff's Law Division action. In doing so, the trial judge determined the arbitrator must decide threshold issues concerning the overall validity of the parties' purported written agreement, which contained the arbitration provision.

The court disagrees, concluding there exist questions of fact concerning the mutuality of assent to the arbitration provision, which is necessary to bind both parties to arbitration, thereby distinguishing this matter from Goffe. Because it is unclear from the record whether plaintiff agreed to arbitrate disputes under the agreement, the court vacates the trial court's order and remands for a plenary hearing for the judge to first make that threshold determination.

This appeal requires the court to decide whether the terms of a negotiated plea agreement waived the prosecutor's requirement to move for imposition of parole supervision for life (PSL) under N.J.S.A. 2C:43-6.4. By leave granted, the State appealed from a Law Division order that granted defendant's amended petition for post-conviction relief (PCR), as further amended by the PCR court sua sponte to a motion for reduction of sentence.

The PCR court concluded the trial court's imposition of PSL – in the absence of a motion by the prosecutor as required under the PSL statute – constituted an illegal sentence. This court, however, determined the sentence was not illegal, but remanded for the trial court to consider whether PSL should have been imposed.

Injured while boarding an elevator, plaintiff relied on res ipsa loquitur to establish her prima facie case against the elevator's owner, manager and servicer. To apply the doctrine, plaintiff had to show: 1) the accident was one that "ordinarily bespeaks negligence"; 2) the defendant exclusively controlled the instrumentality that caused the accident; and 3) the injury did not result from the plaintiff's own voluntary act or neglect. Because plaintiff could not satisfy the third prong, her suit was dismissed on summary judgment. On appeal, she asks the court to follow out-of-state authority and discard the third prong as a matter of law, contending it defeats the purpose of the Comparative Negligence Act, N.J.S.A. 2A:15-5.1 to -5.8. The court declines to do so, and affirms summary judgment, because it is not free to undo settled Supreme Court precedent absent an indication the Court would endorse the change; and the rule regarding plaintiff contribution retains some vitality, notwithstanding adoption of comparative responsibility.

In these eight appeals, appellants argued that the Department of Health made numerous errors in its selection of entities to operate Alternative Treatment Centers to grow, process, and dispense marijuana as part of the State's Medicinal Marijuana Program. They complained about, among other things, the Department's selection process, including the criteria used, the manner in which applications were scored, and the overall sufficiency and explanation of the final agency decisions; they specifically contended that the Department should at least have engaged in an interim process by which disappointed applicants could question or challenge the scores received prior to the issuance of final agency decisions that left it to the court to act as a clearing house for all such challenges. In agreeing the scoring system produced arbitrary results that have gone unexplained, the court vacated the final agency decisions and remanded for further proceedings.

These consolidated appeals ask the court to determine whether the Middlesex County Prosecutor's Office (Prosecutor's Office) can condition defendants' admissions into the pretrial intervention program (PTI) applications, N.J.S.A. 2C:43-12, on service of jail time after they were released on their own recognizance.

In accordance with plea agreements, defendants pled guilty to amended charges of third-degree criminal mischief, N.J.S.A. 2C:17-3, and they were each sentenced to a four-year term of noncustodial probation. Pursuing rights preserved in their plea agreements, defendants sought to overturn the denials of their PTI applications with appeals to the trial judge, claiming the Prosecutor's Office abused its discretion by proposing that they serve jail time to gain admission. The trial judge rejected defendants' requests without addressing the impact of the jail time proposals.

We reverse. The Prosecutor's Office abused its discretion by tainting the PTI application process through unsuccessfully seeking to have defendants agree to serve jail time to gain admission. Although imposing the condition of jail time for PTI admission was not expressly permitted or prohibited by the governing statute, court rule, or guidelines in effect at the time, we conclude it was illegal to do so because vesting such authority to the Prosecutor's Office would afford it powers contrary to the Legislature's intent in creating PTI. The trial court shall therefore enter orders vacating defendants' guilty pleas and admit them into PTI.

Rule 3:26-2(c)(2) governs a defendant's motion to relax conditions of his or her pre-trial release under the Criminal Justice Reform Act. The Rule empowers the trial court to recalibrate a releasee's conditions upon a showing of "a material change in circumstance." The court holds that pre-trial discovery that has reduced the "weight of the evidence" against the defendant may constitute such changed circumstances. So may a defendant's compliance with restrictive conditions over an extended period, if such compliance coincides with another material change demonstrating that the defendant's pre-trial behavior may be adequately managed by less restrictive means than initially imposed. Because the trial court here did not review defendant's motion to relax his release conditions under Rule 3:26-2(c)(2), the court granted defendant's motion for leave to appeal, reversed the trial court's order denying relief, and remanded for reconsideration.

In this multi-vehicle accident case involving a dump truck, the court concludes that New Jersey law requires a commercial motor carrier to provide a minimum insurance coverage amount of $750,000 when engaged in interstate or intrastate commerce, as prescribed by N.J.S.A. 39:5B-32 and N.J.A.C. 13:60-2.1. Here, the individual driving the dump truck was an employee of defendant trucking company and responsible for the accident but was not listed as a covered driver on the policy. However, he was a permissive user and therefore, the commercial insurance policy issued to the trucking company required a minimum coverage amount of $750,000 and the step-down provision in the insured's combined single limit policy is not triggered. The trial court's order granting summary judgment and capping the tortfeasor's exposure at $35,000 is reversed.

Defendant Mell, a wealthy businessman, engaged in sexual relations with B.B. over a period of months when she was fifteen years old. Upon discovery, Mell was arrested and soon convicted of federal and state crimes; he is presently incarcerated in a federal penitentiary. B.B. commenced this action for damages against Mell and others and obtained an order attaching some of Mell's assets. Soon after, Mell sought an order permitting the payment of his attorneys in this civil action from the attached funds; the judge granted that motion and later entered another order fixing the amount of fees to be paid from the fund. The court granted B.B.'s motions for leave to appeal those two orders and reversed, holding that B.B. had a greater priority to the fund even though she has yet to obtain a judgment and that the equities preclude such an invasion of the fund, noting it would be perverse to allow Mell's expenses to be paid from the fund established through valid court procedures for the benefit of his victim.