Opinion Summaries

Plaintiff, who was fired from her job as a physician, appeals from an order of the Superior Court, Law Division staying her complaint against defendants pending arbitration.  Plaintiff's claims included allegations of sexual assault, intentional infliction of emotional distress, and a statutory retaliation claim under the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -50.

Defendants moved to compel arbitration pursuant to plaintiff's employment contract.  The trial court granted the motion, finding the contract's arbitration clause was valid and enforceable.

The court engaged in a de novo review of the employment contract using well-settled contract principles, and it held the mandatory arbitration clause was ambiguous and therefore unenforceable against plaintiff.  Holding the arbitration clause unenforceable, the court declined to reach the question of whether the Federal Arbitration Act applies.

In a separate opinion concurring with the result, a member of the panel would reverse for a different reason, discerning no ambiguity in the arbitration provision and concluding, unlike the contract at issue in Antonucci v. Curvature Newco, Inc., 470 N.J. Super. 553 (2022), the present contract is not governed by the FAA.  Accordingly, plaintiff's LAD claims would not be arbitrable pursuant to N.J.S.A. 10:5-12.7.

A plaintiff can establish an ascertainable loss by demonstrating either an out-of-pocket loss or a deprivation of the benefit of one’s bargain. The Court does not find either type of ascertainable loss applicable here because plaintiffs purchased non-defective, conforming goods with no objective, measurable disparity between the product they reasonably thought they were buying and what they ultimately received. Plaintiffs’ CFA claim therefore fails, and, absent an ascertainable loss pursuant to the CFA, plaintiffs are not “aggrieved consumers” under TCCWNA, cannot show injury or damages under their common law claims, and are without claims entitling them to equitable relief.

In this matter, the court considers the novel issue of the circumstances under which a municipality may decline to adopt a Resolution of Support (ROS) for an applicant seeking to obtain a Class 5 Cannabis Retailer License (CRL) from the State of New Jersey Cannabis Regulatory Commission (the Commission) under N.J.S.A. 24:6I-31 to -56, the Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act (CREAMMA).

Plaintiff filed an order to show cause (OTSC) and a verified complaint against the Township of West Milford, the Council of West Milford Township (collectively referred to as the Township), and SoulFlora, Inc. after the Township effectively denied plaintiff's request for a ROS for its CRL application by not placing it on a public meeting agenda for consideration by the governing body.  The Township asserts its de facto denial was predicated on a Township ordinance prohibiting businesses with CRLs to be located less than 2,500 feet from each other.  The proposed location of plaintiff's cannabis business was less than 500 feet from SoulFlora's. 

Plaintiff sought injunctive relief to prevent SoulFlora from establishing a cannabis business; enjoining the Township from issuing a ROS to any other new cannabis business applicants; revoking SoulFlora's ROS; and requesting attorneys' fees and costs.  The court affirms denial of plaintiff's OTSC under Crowe v. De Gioia, 90 N.J. 126, 132-34 (1982).  The court holds plaintiff did not have a likelihood of success on the merits, finding the Township's effective denial of plaintiff's request for a ROS was not arbitrary, capricious, or unreasonable since under CREAMMA, municipalities are delegated the authority to promulgate location and density requirements for cannabis retail businesses and are statutorily vested with the right to decline to provide local support for applicants who fail to meet those requirements. 

The court reverses the with-prejudice dismissal of the claims against the Township and remands to the trial court to issue a statement of reasons pursuant to Rule 1:7‑4(a), along with an accompanying order.   The court affirms the dismissal of the complaint against SoulFlora with prejudice, while finding that it is an indispensable party for notice purposes only. 

          In this matter, the court considers whether the trial court properly dismissed plaintiff's complaint with prejudice after finding it was barred by the entire controversy doctrine and res judicata.  Plaintiff's putative class action complaint, filed in Essex County, sought to claw back funds she paid in full satisfaction of a final default judgment, entered in a prior lawsuit adjudicated in Bergen County.  The court holds that the entire controversy doctrine precludes plaintiff from relitigating a final default judgment through the filing of a new complaint in a different court when she failed to pursue any of her substantive arguments in the previous litigation. 

          Plaintiff defaulted on paying an outstanding credit card balance, so the bank closed out her account and assigned her outstanding debt to defendants.  Through a complaint filed in Bergen County, defendants obtained a final default judgment against plaintiff, which she did not move to vacate or otherwise appeal.  Plaintiff fully satisfied the judgment through wage garnishments.

          Plaintiff filed a putative class action complaint in Essex County against defendants seeking a declaratory judgment voiding the debt and any judgments enforcing that debt, as well as treble damages and disgorgement of amounts previously paid to defendants, based on the assertion that defendant was not licensed, as required by the New Jersey Consumer Finance Licensing Act (CFLA), N.J.S.A. 17:11C-1 to -49. 

          Since the entire controversy doctrine precludes plaintiff from pursuing the Essex County litigation predicated on substantive defenses that could have been raised in the prior Bergen County litigation, there was no amendment to the pleading that could have rendered plaintiff's complaint viable.  Thus, dismissal of the complaint with prejudice based on the entire controversy doctrine was appropriate.  The court affirms the Essex County order.

Requests for reasonable accommodations like the one here should be assessed under the following framework: Individuals who seek an accommodation must show that they have a disability under the LAD and demonstrate that the requested accommodation may be necessary to afford them an “equal opportunity to use and enjoy a dwelling.” N.J.A.C. 13:13-3.4(f)(2). Housing providers then have the burden to prove the requested accommodation is unreasonable. During that process, both sides should engage in a good-faith, interactive dialogue. In the end, if the parties cannot resolve the request, courts may be called on to balance the need for, and benefits of, the requested accommodation against the cost and administrative burdens it presents. Here, the claims should not have been dismissed.

          Following the 2020 decennial United States Census, the City of Jersey City Ward Commission (the Commission) redrew the six election wards for the City of Jersey City (the City).  In these two consolidated appeals, plaintiffs challenge the ward boundaries and map adopted by the Commission.  Plaintiffs contend that the new ward map violates the Municipal Ward Law (the MW Law), N.J.S.A. 40:44-9 to -18, the New Jersey Civil Rights Act (the CR Act), N.J.S.A. 10:6-1 to -2, and their rights of free speech, free association, and equal protection under the New Jersey Constitution.  They also argue that the Commission did not comply with the Open Public Meetings Act (the OPMA), N.J.S.A. 10:4-6 to -21.

The court affirms in part and reverses in part the dismissal of plaintiffs' complaints in lieu of prerogative writs.  The court affirms the dismissal of the claims asserting violations of plaintiffs' constitutional rights, the CR Act, and the OPMA.  The court reverses the dismissal of the claims of violations of the MW Law.  Resolution of those statutory claims requires some, albeit limited, fact-finding.  Therefore, the court remands the MW Law claims for a focused and limited proceeding on whether the Commission had a rational basis for the ward boundaries and map it adopted.

In this matter, the court considers whether the trial court properly denied defendant's motion to suppress evidence seized after a search of the vehicle defendant was operating following a traffic stop.  When the officer approached defendant's vehicle, he noticed a burnt smell of marijuana emanating from it.  The officer did not intend to search the vehicle at that point.  However, after the dispatcher informed the officer defendant had an outstanding warrant necessitating defendant's arrest, and the officer smelled a perceptible odor of raw marijuana on defendant's person as they sat together in the patrol car, the officer decided to search the vehicle.

The court concludes that the officer's testimony regarding the odors established probable cause for the subsequent search of the vehicle.  In addition, the finding of probable cause arose in unforeseeable and spontaneous circumstances.  There were not two stops as argued by defendant.  The discovery of the warrant and new smell emanating from defendant's person permitted the officer to continue the investigation.  The search was permissible under the automobile exception to the warrant requirement as articulated in State v. Witt, 223 N.J. 409 (2015).  The court affirms the order denying defendant's suppression motion.

LOCAL PROPERTY TAXATION – MUNICIPAL CHARGE – NON-RESIDENTIAL SITE DEVELOPMENT FEE – PLANNING BOARD ESCROW FEES – LEGISLATION, INTERPRETATION – LOCAL GOVERNMENTS, FINANCE
Tax Court:  Freda, Joseph A. by Acme as tenant v. City of Sea Isle City; Docket No. 006381-2023, opinion by Cimino, J.T.C., decided March 5, 2024.  For plaintiff – Pablo M. Kim(Heinze Law, P.A.); for defendant – Paul J. Baldini, (Paul J. Baldini, P.A.).
Held:  A tax appeal cannot go forward if a municipal charge is not paid.  Municipal charge is a term of art defined by the Legislature.  Since neither the non-residential development fee nor the planning board escrow fees constitute a municipal charge in this case, nonpayment cannot bar a tax appeal. 
(11 pages)
 

The sought-after affidavit is physical evidence of the crimes of witness tampering and kidnapping for which defendant and others have been charged. It is therefore subject to reciprocal discovery under Rule 3:3-13(b)(2)(B) and (D).

The proper analysis for determining whether the State can obtain this physical evidence rests within the principles of search and seizure under the Fourth Amendment. Neither the Fifth nor the Sixth Amendment would preclude issuing a valid search warrant for the bullet in this case, and the trial court should have determined whether there exists probable cause on which to issue such a warrant.

          Along with another offense, a grand jury indicted defendant on first-degree unlawful possession of a weapon under N.J.S.A. 2C:39-5(b)(1) and N.J.S.A. 2C:39-5(j).  Pursuant to a plea agreement, defendant pled guilty to first-degree unlawful possession of a weapon.  At sentencing, defendant argued N.J.S.A. 2C:39-5(j) was not subject to the Graves Act, N.J.S.A. 2C:43-6(c), which requires a mandatory period of parole ineligibility because N.J.S.A. 2C:43-6(c) did not enumerate N.J.S.A. 2C:39-5(j).  The sentencing judge disagreed and held N.J.S.A. 2C:39-5(j) is a grading statute, and sentenced defendant to a ten-year sentence with a five-year period of parole ineligibility, pursuant to the Graves Act.

          Defendant's appeal was initially heard on the court's sentencing oral argument calendar.  It was then transferred to the plenary calendar given the question of law raised, and to resolve differing interpretations of the Graves Act and N.J.S.A. 2C:39-5(j) in unpublished opinions, and reported uneven practices in the trial courts.  The central question on appeal was whether N.J.S.A. 2C:39-5(j) is a substantive offense not subject to the Graves Act or whether N.J.S.A. 2C:39-5(j) acts as a grading statute, thereby enhancing the penalty, which is subject to the Graves Act.

          The court concluded N.J.S.A. 2C:39-5(j) is not a separate offense but instead a grading statute that is subject to the Graves Act penalty.  Reading the statute to the contrary would lead to an absurd result because a person convicted of a first-degree unlawful weapons offense could serve less time than a person convicted of a lesser-degree offense by virtue of parole eligibility.  The court concluded the more sensible reading of N.J.S.A. 2C:39-5(j) was as a grading statute and therefore affirmed defendant's sentence.

Plaintiffs first sued two pharmaceutical companies in federal court in Texas asserting claims under the federal False Claims Act and the New Jersey False Claims Act (NJFC Act), N.J.S.A. 2A:32C-1 to -18.  After the claims under the NJFC Act were dismissed without prejudice, plaintiffs sued the same pharmaceutical companies in New Jersey re-asserting the NJFC Act claims.   Because the allegations in plaintiffs' complaints had previously been publicly disclosed and because plaintiffs were not the original source of that information, the court holds that plaintiffs' complaints were properly dismissed under the public disclosure bar of the NJFC Act.  See N.J.S.A. 2A:32C-9(c).

This appeal requires us to determine whether defendant Boys and Girls Clubs of America (BGCA), an out-of-state non-profit national youth organization, is subject to the specific personal jurisdiction of our state courts in a lawsuit pertaining to the alleged sexual abuse of plaintiffs by a counselor employed by defendant Boys and Girls Club of Hudson County (Hudson County BGC), a New Jersey non-profit youth member organization affiliated with BGCA. 

The motion judge found specific personal jurisdiction over BGCA regarding plaintiffs' sexual abuse claims.  The court disagrees and reverses. 

Jurisdictional discovery revealed BGCA had no influence or control over Hudson County BGC's hiring, training, or supervision of the counselor.  Consequently, our state courts have no specific personal jurisdiction over BGCA in this matter because BGCA did not purposefully avail itself of benefits in or from New Jersey.

In State v. Witt, our Supreme Court held police cannot conduct a search pursuant to the automobile exception to the warrant requirement once a vehicle has been towed away and impounded.  223 N.J. 409, 448-49 (2015).  John's Law generally requires police to impound a vehicle for at least twelve hours when the driver is arrested for driving while intoxicated (DWI).  This case addresses the novel question of whether police may conduct a search under the automobile exception when they are required to impound a vehicle pursuant to John's Law, but the vehicle has yet to be removed from the scene of the stop.

The trial judge suppressed a handgun found under the front passenger seat, reasoning that because the officers were required to impound the vehicle, they were also required to obtain a search warrant even though the search occurred roadside.  After considering the plain text and rationale of Witt, the court reverses the suppression order, holding the inherent exigency justifying a warrantless search at the scene continues to exist so long as the detained vehicle remains at the location of the stop.  The court reasons the inherent exigency is not abated by the fact the vehicle will eventually be removed from the scene.  Nor is such exigency abated when the decision is made to remove the vehicle, regardless of whether the decision is made in the exercise of police discretion or in compliance with a statutory impoundment mandate.  The court concludes the authority to conduct an automobile-exception search lapses only after the vehicle has been removed to a secure location, not in anticipation of such removal.  So long as police satisfy the foundational requirements of probable cause, spontaneity, and unforeseeability, a contemporaneous on-the-spot search is permitted regardless of the ultimate disposition of the vehicle.  Accordingly, the court declines to create a new bright-line rule making vehicles subject to John's Law categorically ineligible for an on-scene search under the automobile exception.

THIRD PARTY APPEALS; TRANSFERS OF MATTERS NOT COGNIZABLE IN TAX COURT TO LAW DIVISION

Tax Court:  Westerhold v. Toms River Township, Docket Nos. 008087-2022, 007534-2023, 009583-2022, 007535-2023;  Westerhold v. Brick Township, Docket Nos. 010281-2020, 010282-2020, 008086-2022, 007536-2023, 008085-2022, 007532-2023, opinion by Fiamingo, J.T.C., decided February 20, 2024.  For plaintiffs - Paul Tannenbaum, Peter Zipp, Michael Kurpiewski (Zipp & Tannenbaum, attorneys).  For defendant, Toms River Township – Kelsey A. McGuckin-Anthony (Dasti, Murphy, Ulaky, Loutsouris & Connor, attorneys); for defendant, Brick Township – Scott W. Kenneally (Starkey, Kelly, Kenneally, Cunningham, et al., attorneys). 

HELD:  Plaintiffs’ complaints contesting the local property tax assessments of third parties filed after February 21, 2021, were not cognizable in the Tax Court as a result of amendment to N.J.S.A. 54:3-21 eliminating subject matter jurisdiction over such appeals in the County Boards of Taxation and the Tax Court; third party tax appeals filed in the Tax Court after February 21, 2021, should be transferred to the Law Division pursuant to R.1:13-4, to be heard as actions in lieu of prerogative writs, per R. 4:69. 

(11 pages)
 

In this appeal the court addresses whether an entire county prosecutor's office must be recused from a criminal prosecution when the county prosecutor has a personal, disqualifying conflict.  The court holds that so long as the prosecutor has been completely screened from and has no oversight of the matter, the prosecutor's office should not be disqualified.  Accordingly, the court affirms the trial court's order denying defendant's motion to disqualify the entire Monmouth County Prosecutor's Office from continuing to prosecute defendant and multiple co-defendants in this criminal matter.

In this case the court is asked to answer three questions:  first, whether a governmental body, serving as a Redevelopment Agency, is obligated to apply electric vehicle ("EV") parking credits, as required under N.J.S.A. 40:55D-66.20 ("the EV statute"), when determining a concept plan's consistency with a redevelopment plan adopted pursuant to the Local Redevelopment and Housing Law ("LRHL") (N.J.S.A. 40A:12A-1 to -89); second, under section (f) of the EV statute, when applying EV credits, how the credits are to be rounded up; and last, whether a rounded-up EV credit may reduce the total required parking by more than the ten percent limit set forth under section (e) of the EV statute.

The court held that EV credits are to be applied when determining a concept plan's consistency with a redevelopment plan.  Otherwise, a plan that was confirmed as consistent by the Borough would not be the same as the one to be potentially approved at time of preliminary site plan approval.  The court also concluded that when applying EV credits to the total number of calculated spaces and that number includes any decimal, based on the plain language of the statute, the calculation must be rounded up to the next whole parking spot.  However, also based on the plain language of the statute, the court rejected the contention that a rounded-up EV credit can reduce the total required parking by more than the ten percent limit set forth under section (e) of the EV statute, which is more specific than section (f) and therefore controls.

Applying these principles, the court affirmed the Law Division's denial of plaintiff's motion for summary judgment and grant of defendant's cross-motion for summary judgment.

Plaintiff, a tenured professor, was fired after a university received a series of student complaints.  The university issued charges against plaintiff and conducted dismissal proceedings pursuant to its faculty handbook, a document which, among other things, detailed the process for removing a tenured professor.  The university's board of trustees found by clear and convincing evidence that plaintiff had engaged in willful misconduct and terminated his employment.

Plaintiff filed suit, alleging the board failed to establish adequate cause for termination by clear and convincing evidence.  The trial court granted the board's motion for summary judgment, finding the board was not arbitrary, capricious, or unreasonable in its decision to terminate plaintiff in accordance with the agreed-upon guidelines established in the faculty handbook.

After a de novo review of the trial court's summary judgment order, the court affirmed, holding that the administrative agency standard of review used to analyze the internal decision-making of public universities applied to a private university's termination of a tenured professor.

In this medical malpractice action, the court granted defendant Perry Loesberg, M.D. leave to appeal Law Division's order's denying his motions to dismiss plaintiff's amended complaint due to their failure to serve an affidavit of merit (AOM) within 120 days of the filing of defendant's answer in accordance with N.J.S.A. 2A:53A-27.  The court affirms, concluding the orders were supported by the record because there were extraordinary circumstances warranting an extension of the AOM 120-day filing deadline. 

Prior to defendant being named in the amended complaint, a court order granted plaintiff's motion to waive the filing of an AOM as to the then-named defendants.  The lack of a Ferreira conference after defendant answered the amended complaint, coupled with the prior court order and defendant's discovery response failure to raise the lack of an AOM as a defense, constituted "an almost perfect storm" of events that warrant affording plaintiff additional time to submit an AOM.  See A.T. v. Cohen, 231 N.J. 337, 350 (2017).  A Ferreira conference should have been conducted to bring the parties together to address the applicability of the AOM waiver order on the claims against the newly-added defendant.  Permitting plaintiff to file an AOM outside the 120-day statutory deadline and denying defendant's motions to dismiss prevents an injustice.

In this appeal, as an issue of first impression, the court was asked to consider whether N.J.S.A. 43:21-19(i)(10)— from the time of its enactment in 2010—provided an exemption for court reporters under the Unemployment Compensation Law ("UCL"), N.J.S.A. 43:21-1 to -71, or whether court reporters must still establish a Federal Unemployment Tax Act ("FUTA") exemption pursuant N.J.S.A. 43:21-19(i)(1)(G).  The court determined N.J.S.A. 43:21-19(i)(10) does provide such an exemption and there is no requirement for court reporters to establish a FUTA exemption.

The court noted the express language of N.J.S.A. 43:21-19(i)(10) provides that services performed by court reporters "shall not be deemed to be employment subject" to the UCL.  The court presumed the Legislature understood the implications of removing court reporters from N.J.S.A. 43:21-19(i)(7)(Y) and the corresponding FUTA mandate and placing the amendment in a different section.  The DOL asserted there were no scenarios in which the new statute, N.J.S.A. 43:21-19(i)(10), would apply to court reporters in a manner distinct from the operation of the prior exemption under N.J.S.A. 43:21-19(i)(7)(Y).  The court rejected that interpretation, which would have rendered N.J.S.A. 43:21-19(i)(10) meaningless because the amended statute must be read in harmony with N.J.S.A. 43:21-19(i)(7)(Y) and the rest of the statute.  The court further determined the Legislature was fully aware of the prior requirement for court reporters to establish a FUTA exemption under N.J.S.A. 43:21-19(i)(7)(Y), which is why it amended the statute to remove the requirement for a FUTA exemption under N.J.S.A. 43:21-19(i)(10).

The court noted that although a sensible reading of N.J.S.A. 43:21-19(i)(10) provides an exemption for court reporters, to the extent the statutory language resulted in more than one reasonable interpretation, the legislative history unequivocally established the Legislature intended to dispense with the requirement to establish a FUTA exemption.  Accordingly, the court reversed the Commissioner's holding with respect to the applicability of N.J.S.A. 43:21-19(i)(10) and concluded petitioners are exempt from the time of the enactment of the statute in 2010.