Opinion Summaries

This appeal arises from a tragic highway collision in which defendant Stephen Rando's sports utility vehicle fatally struck plaintiff's son, Patrick Dutton, as he was riding his bicycle. Following a trial, the jury found that defendant was sixty percent responsible for the accident while Patrick was responsible for the remaining forty percent. The jury awarded plaintiff Mary Dutton, representing her son's estate, $500,000 in wrongful death damages and $108,000 in survivorship damages. The trial court entered judgment in the sum of $364,800 in damages and additional interest, fees, and costs.

Defendant appeals from the judgment memorializing the verdict and from the trial court's order denying his motion for a new trial. Among other things, defendant contends that the jury's award of wrongful death damages is unsupported by the evidence, particularly without any expert testimony to substantiate the pecuniary value of the loss of Patrick's advice, guidance, and companionship. This court rejects defendant's contention and reaffirms the long-standing principle, as expressed in Lesniak v. County of Bergen, 117 N.J. 12, 32-33 (1989), that expert testimony is not required to establish the pecuniary value of such services in claims for wrongful death. This holding is consistent with the common law in the fourteen other jurisdictions that, like New Jersey, restrict recovery in wrongful death actions to pecuniary loss, but do not require expert testimony to substantiate damages.

Defendant is charged in an indictment with attempted theft by extortion, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:20-5(c). The evidence presented to the grand jury shows that while defendant was located in Maryland, he called and emailed the victim's attorney in New Jersey and communicated threats to disclose private facts about the victim, who resided in New York, unless the victim agreed to contribute monies to an alleged charity defendant operated. The Law Division judge dismissed the indictment, finding New Jersey lacked territorial jurisdiction over the alleged crime, N.J.S.A. 2C:1-3.

The court reverses the dismissal of the indictment. The court concludes that defendant's delivery of the threats into, and the victim's attorney's receipt of the threats in, New Jersey constitute conduct occurring in New Jersey that is an element of the crime of attempted theft by extortion, and therefore there is territorial jurisdiction over the crime charged in the indictment under N.J.S.A. 2C:1-3(a)(1).

The issue in this opinion is whether plaintiff’s counsel can question his client about whether a passenger in plaintiff’s vehicle sustained an injury in order to help establish that plaintiff was also injured in the accident. The court ultimately ruled that the question was not relevant. There are many variables that factor into whether an individual sustains an injury in a motor vehicle accident. Some individuals are frail while others are not readily susceptible to injury. Certain individuals involved in the same accident may sustain the brunt of the impact from the other vehicle or may be positioned in such a way to cause them be more susceptible to being injured. In short, simply because one person gets injured in an accident does not mean that someone else in the same vehicle must have also sustained an injury.

This appeal affects members of the Public Employees' Retirement System (PERS) who converted their group life insurance policy into an individual policy, but died while their retirement applications were pending and whose beneficiaries chose "retired" benefits. In upholding N.J.A.C. 17:2-3.8(b) (clarifying the effective date for converted individual insurance policies) and N.J.A.C. 17:2-3.13 (addressing benefits payable to beneficiaries when members die with retirement applications pending), this court recognized the longstanding practice that beneficiaries of PERS members may receive either a "retired" benefit or an "active" benefit, but not both.

The Appellate Division’s opinion deprives trial judges of their discretion to make nuanced assessments of the nature and circumstances of offenses involving child pornography. Miller’s possession charge involved child pornographic material beyond that involved in his distribution charge -- there was pornographic material in Miller’s possession for an extended period of time that was not encompassed in the distribution charge. The possession and distribution offenses were therefore distinct, and the trial court appropriately determined that the offenses did not merge for sentencing purposes.

In this Consumer Fraud Act action, the Law Division found defendants engaged in an unconscionable commercial practice by filing a criminal complaint against plaintiff as a means of collecting a consumer debt. The parties settled on damages and defendants reserved the right to appeal the summary -judgment decision on liability. A different judge awarded plaintiff six percent of the counsel fees requested and no costs of suit or filing fees. Both parties now appeal.

This court holds defendants bargained away their right to challenge the summary judgment decision and dismisses their appeal pursuant to Winberry v. Salisbury, 5 N.J. 240, 255 (1950). With respect to the award of counsel fees, this court holds the Law Division did not follow the standards established by the Court in Rendine v. Pantzer, 141 N.J. 292, 316-45 (1995) and violated N.J.S.A. 56:8-19 because it failed to award plaintiff costs of suit and filing fees.

Decedent’s parents, who are divorced, each filed petitions seeking control over their son’s remains pursuant to N.J.S.A. 45:27-22. Decedent’s father wished his son’s remains to be buried, while decedent’s mother wished her son’s remains to be cremated. Decedent was unmarried and died without issue, without a will, and without any written directive regarding his funeral or disposition of remains. While the Statute provides the order of persons to be granted the right to control the funeral arrangements and disposition of human remains, and the court is empowered to resolve disputes, there is no guidance in the Statute, or in New Jersey case law, on how to resolve a dispute that arises between even numbers of next-of-kin of equal statutory standing (i.e., surviving adult children, parents, siblings or other next-of-kin according to the degree of consanguinity). Finding that the statutory intent of the Statute is to adhere to the wishes and desires of the decedent, the court held that where next-of-kin of equal statutory standing find themselves in dispute over funeral arrangements and/or disposition of remains, the court should consider the following factors when selecting the person in control under N.J.S.A. 45:27-22: (1) Who is more likely to abide by the wishes and desires of the decedent as expressed through communications with another, to the extent the decedent made those communications; (2) Who established a closer relationship to the decedent and is thereby in a better position to surmise the decedent’s desires and expectations upon death; (3) Who is more likely to adhere to the religious beliefs and/or cultural practices of the decedent, to the extent that funeral arrangements and/or disposal of remains are addressed by such beliefs and practices, and to the extent that those beliefs and practices are relevant to inform the court as to the wishes, desires and expectations of the decedent upon death; and (4) Who will ultimately be designated administrator(s) of the estate and act in the best interests of the estate to: (a) determine the costs of funeral arrangements and/or disposition of human remains; (b) assess the ability of the estate to pay for the costs of funeral arrangements and/or disposition of human remains; and (c) arrange for alternative funding and/or resources to effectuate the funeral and/or disposition in the event that the estate does not have the ability to pay for the costs of human remains (i.e., locating funding from other next-of-kin, charities, fraternal organizations, religious institutions, governmental agencies, etc.). If material facts are in dispute, an expeditious plenary hearing should be held. When rendering its decision, the court should conduct a qualitative analysis of each factor, giving due weight to each as appropriate. Upon review of all relevant factors, the court granted relief to decedent’s father who had been the next-of-kin with a closer relationship, as he had lived with the decedent for several years up until his death.

The Appellate Division’s judgment is reversed. While N.J.S.A. 34:15-75’s language is unclear, its legislative history indicates a strong intent to provide temporary disability coverage to volunteer firefighters at the maximum compensation provided for in the Act.

The issue in this opinion is whether it is appropriate, in the context of an automobile negligence case, for plaintiff's counsel to question his client as to whether his vehicle was "totaled" as a result of the accident with defendant's vehicle. The court determined this was not an appropriate inquiry. Because the term "totaled" has a colloquial meaning and an objective meaning within the insurance industry, whether a car was totaled does not provide the jury with meaningful information with respect to the severity of the impact. Accordingly, any line of inquiry regarding whether a vehicle was totaled in an accident in the context of a personal injury action is irrelevant.

Atlantic County Assignment Judge Julio Mendez dismissed the condemnation complaint as a manifest abuse of power because the Casino Reinvestment Development Authority (CRDA) did not provide reasonable assurances that the proposed redevelopment would come to fruition in the foreseeable future. The CRDA sought to condemn the property in furtherance of its mandate to promote tourism in Atlantic City. At the time of the decision under review, the CRDA had no specific redevelopment plans under consideration for the Project; it had not issued a request for proposals (RFP) to prospective developers, and no developer had committed to redeveloping within the South Inlet Mixed Use Development Project area. Nevertheless, the CRDA maintained it had a right to "bank" the property for redevelopment at some unspecified time in the future. Agreeing with Judge Mendez, the court affirms.

Appellant A.Y. appeals from a judgment civilly committing him to the Special Treatment Unit (STU) as a sexually violent predator pursuant to the Sexually Violent Predator Act, N.J.S.A. 30:4-27.24 to -27.38. He was convicted of the predicate act of second-degree sexual assault, N.J.S.A. 2C:14-2(c), and was diagnosed as suffering from Antisocial Personality Disorder and other conditions.

The State's experts opined appellant's personality disorder affects his cognitive, volitional, or emotional capacity, making it highly likely he will sexually reoffend if not kept under the care, control and treatment of a secure facility such as the STU. The State's experts relied, in part, on the results of the MnSOST-R and Static-99R actuarial instruments to determine whether A.Y. was highly likely to sexually reoffend.

Appellant argued he had regained volitional control over his sexually assaultive behavior through treatment and medication compliance. Appellant further argued the State's experts rendered inadmissible net opinions lacking any probability basis to find him highly likely to sexually reoffend. Appellant also argued the State's experts could not point to any methodology or objective standards used to reach their sexual recidivism risk findings.

The court found the State's experts relied on information reasonably relied on by experts in the field, the State's experts did not render inadmissible net opinions, the actuarial instruments were properly used by the State's experts in the formation of the basis of their opinions, and the methodology utilized by the State's experts satisfied the requirements imposed by the Court in In re Accutane Litig., 234 N.J. 340 (2018). Accordingly, the court determined the trial court did not abuse its discretion in admitting and considering the testimony of the State's experts, including their use and reliance upon the MnSOST-R and Static-99R actuarial instruments.

The court affirmed, finding the credible evidence in the record supported the trial court's finding that appellant suffered from a personality disorder that makes it highly likely he will not control his sexually violent behavior and will reoffend if not confined to the STU for treatment.

The issue presented on this appeal is whether a county register or clerk has the authority to charge a "convenience fee" or surcharge for the electronic filing of documents concerning real property. The Legislature has prescribed the fees a county register or clerk may charge for the filing of documents, and a convenience fee is not one of the legislatively authorized fees. Accordingly, the court holds that a county register or clerk cannot impose such a fee. The court therefore reverses a June 23, 2017 order granting summary judgment to the Essex County Register of Deeds and Mortgages (Essex Register) and dismissing the complaint of plaintiff, the New Jersey Land Title Association (Association). The court remands with direction that the Association be granted partial summary judgment on its claim to enjoin, prospectively, the Essex Register from collecting the convenience fee. On remand, the trial court will also address the Association's claim for disgorgement of the fees previously paid.

This is an appeal from the decision of the trial court which found that a condition attached to a variance approval, which required the property owner to file a deed with restrictive covenants permitting only one of two units in this two family home to be rented to a tenant, was illegal and unenforceable. The court found it was contrary to public policy to impose as a condition of zoning board approval a restriction that treated a tenant different from an owner-occupant of property. The trial court reasoned the condition was arbitrary, capricious and unreasonable because it was based upon the status of the occupant of the property, rather than the use of the property. The court further found the condition reflected an illegal bias based upon a perceived notion that tenant occupied use was a less desirable use of property than occupancy by an owner.

Defendants, the Borough of Point Pleasant Beach and the Borough's Zoning Board of Adjustment, appeal the trial court's May 3, 2018 decision in this land use case. The court declared invalid and unenforceable a variance provision and associated deed restriction that requires one unit of the subject two-family dwelling to be occupied by the owner and not rented to a third-party tenant.

These owner-occupancy limitations were imposed by the Board in 1999 as a condition of approving a variance allowing plaintiff Maria I. Tirpak and her now-deceased husband to raze their then-existing dwelling and construct a new two-family dwelling in a zone limited to single-family residences. The Board also required the Tirpaks to memorialize the condition as a recorded deed restriction.

The trial court concluded the variance condition and deed restriction impermissibly discriminated against renters, and wrongfully predicated the allowable use of the property upon the identities of its occupants.

On appeal, defendants argue the trial court should have dismissed plaintiff's challenge to the restrictions as untimely. They further contend the trial court misapplied the law and principles of equity in nullifying the variance condition and deed restriction.

This appellate court rejects defendants' arguments, substantially for the sound reasons expressed in Assignment Judge Marlene Ford's May 3, 2018 written decision, which is published in tandem with this opinion at ___ N.J. Super. ___ (App. Div. 2019).

The State sought to introduce into evidence the statements made by the mother of the victim to a physician providing treatment to her child. The court held that N.J.R.E. 803(c)(4) permits the admission into evidence not only of statements made by a patient to a physician for purposes of obtaining medical treatment, but also statements made by others to a physician for the purpose of providing medical treatment where sufficient indicia of reliability exists.

Defendant was charged with first-degree murder but convicted of aggravated manslaughter. He argued in his direct appeal that the trial judge should have severed his charges from those brought against a co-defendant and that, even though not requested, the trial judge should have sua sponte instructed the jury on self-defense. In rejecting his severance argument, the court recognized a self-defense theory was "presented" and defendant received its benefit when the jury convicted him "of aggravated manslaughter rather than first-degree murder." But, in rejecting the other argument, the court held that the judge was not required to instruct on self-defense because "the defense of self-defense would likely have been unsuccessful."

In appealing the later denial of his post-conviction relief petition after an evidentiary hearing, defendant argued his trial counsel was ineffective for failing to request jury instructions on self-defense. In reversing and remanding for a new trial, the court held that trial counsel should have requested those instructions and defendant was prejudiced as a result. Even though, in the direct appeal, the court inconsistently considered the role self-defense played at trial, the court in this post-conviction relief appeal concluded that the evidence supported a self-defense theory and appropriate jury instructions might have provided benefits for defendant even greater than he received when the jury found him guilty on a lesser-included offense of first-degree murder.

This case presents the court with an issue of first impression in New Jersey. Namely, whether, after a defendant has been detained pretrial, a later defense attack on the state’s detention hearing proffer can be sufficient to reopen the detention hearing. On June 6, 2017, the trial court ordered defendant detained pending trial. The thrust of defendant’s motion to reopen the detention hearing attacks the state’s detention hearing proffer related to probable cause. The court ultimately held that a defendant who has been detained pretrial cannot attack the initial detention decision by seeking to undermine the state’s probable cause proffer. Unless some new information would create serious doubt about the state’s initial proffer, and only where a grand jury has not yet handed up an indictment, would the court consider disturbing an initial finding of probable cause.

In State in the Interest of N.P., 453 N.J. Super. 480 (App. Div. 2018), the court determined a Family Part judge may not divert juvenile complaints from court action without first affording the State an opportunity to be heard. Following that decision, the Family Part judge duly noticed the State of its intention to divert complaints filed against C.F., A.G., and T.S., but conducted the hearings without providing notice to the juveniles.

In these three consolidated appeals, the court reverses the trial judge's orders. Because the matters were heard in open court, due process mandates notice to the juveniles, affording them the opportunity to be heard and to consult with counsel before their complaints are diverted from court action.

The Off-Track and Account Wagering Act, N.J.S.A. 5:5-127 to -160, does not permit persons with accounts in New Jersey's account-wagering system (AWS) from placing wagers with the AWS while located outside the State, and this restriction on wagering does not violate the Commerce Clause of the United States Constitution.

In Mansell v. Mansell, 490 U.S. 581 (1989), the United States Supreme Court held the Uniformed Services Former Spouses Protection Act, 10 U.S.C. § 1408, federally preempted state family courts from equitably distributing a disability retirement pension in a divorce. In 2017, the Court in Howell v. Howell, __ U.S. __, 137 S. Ct. 1400 (2017), held family courts are federally preempted from indemnifying a spouse for the inability to distribute disability benefits, but could take such a contingency into consideration by other means, including modifying or awarding alimony.

In this case, the court reverses the trial court's order, which required the spouse receiving disability benefits to indemnify the payee spouse by paying her a hypothetical value of her share of the pension, because indemnification was preempted by Howell. However, the court holds conversion of the pension into a disability benefit was a substantial and permanent change in circumstances, which invalidated the parties' alimony waiver, and accordingly reverses the trial court's order denying alimony for consideration of such an award.