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Opinion Summaries

Posted Date Name of Case (Docket Number) Type
Feb. 7, 2022 WOODMONT PROPERTIES, LLC VS. TOWNSHIP OF WESTAMPTON, ET AL. (L-2494-18, BURLINGTON COUNTY AND STATEWIDE) (A-4453-19)

Plaintiff, which contracted to purchase a large tract of vacant land from Hovbros Burlington, alleged in this action that defendant TD Bank tortiously interfered with that contract by foreclosing its mortgage on the property. The trial judge dismissed for failure to state a claim.

In affirming in part, the court held that the foreclosure sale cut off plaintiff's unrecorded contract interest and thereby eviscerated plaintiff's continuing claim of a legal or equitable interest in the property despite an assumption of TD Bank's knowledge of plaintiff's contract rights when TD Bank foreclosed. In this regard, the court rejected the holding of a published trial court decision, PNC Bank v. Axelsson, 373 N.J. Super. 186 (Ch. Div. 2004), which found relevance in the application of N.J.S.A. 2A:50-30 when a foreclosing party has knowledge of an unrecorded interest.

In reversing in part, the court held that plaintiff could continue to seek damages on its tortious interference claim against TD Bank based on its theory, which the court was obligated to assume as true, that TD Bank manipulated its rights as to Hovbros and its related companies so as to interfere with plaintiff's contract rights.

Appellate
Feb. 7, 2022 State v. Samuel Ryan (A-65-20 ; 085165)

The Three Strikes Law and the mandatory life-without-parole sentence imposed upon defendant under that statute do not violate the constitutional prohibition on cruel and unusual punishment. Further, Miller and Zuber have no application to adult defendants sentenced under the Three Strikes Law.

Supreme
Feb. 7, 2022 STATE OF NEW JERSEY VS. MATTHEW DIAZ (19-07-1124, OCEAN COUNTY AND STATEWIDE) (A-3764-20)

This interlocutory appeal arises from an ongoing prosecution for strict liability for drug-induced death, N.J.S.A. 2C:35-9, following a fatal heroin overdose. The State appeals from a trial court order suppressing incriminating statements defendant made during a stationhouse interrogation because the officers did not advise him that a death had occurred and that he was facing prosecution for a first-degree homicide offense. The trial court had initially held the statements were admissible but granted defendant's motion for reconsideration that cited to the majority opinion in State v. Sims, 466 N.J. Super. 346 (App. Div.), certif. granted, 246 N.J. 146 (2021). While the parties and the trial court knew that the Supreme Court had granted certification, they appeared to be unaware that the Supreme Court had stayed the Sims opinion.

In Sims, the majority announced a new per se rule that when police make an arrest following an investigation, they must at the outset of a custodial interrogation advise the interrogee of the offense(s) for which he or she was arrested regardless of whether a complaint-warrant or arrest-warrant has been issued. 466 N.J. Super. at 367. The question to be addressed by the Supreme Court is: "[w]ere the officers required to advise defendant, who was not charged with any offenses at the time, why he was arrested before proceeding with the custodial interrogation."

In the present case, the court follows an alternate analytical route that does not depend on the outcome in Sims. The court leaves to the Supreme Court to decide whether police may remain silent during a Miranda colloquy with respect to the essence of unfiled charges for which the interrogee was taken into custody. Rather, the court focuses on the impact of the police decision in this instance to advise defendant of the reason for his arrest in a manner that was misleading. Under this analytical approach, the failure to advise defendant of the overdose death was a relevant factor to be considered in determining whether defendant's waiver of Miranda rights was made knowingly.

The court concludes, considering the totality of the circumstances, the State failed to prove beyond a reasonable doubt that defendant's waiver of his right against self-incrimination was made knowingly because the detectives affirmatively misled defendant by providing a deliberately vague and incomplete answer to his question of why he was taken into custody. The court reasons that it is one thing for police to withhold information; it is another thing entirely for them to provide an explanation that creates or reinforces a false impression.

The court recognizes that police are permitted, within limits, to use trickery or deception in the course of a custodial interrogation. The court draws a fundamental distinction, however, between police trickery with respect to the strength of the evidence against an interrogee on the one hand, and trickery with respect to the seriousness of the offense(s) for which he or she was arrested on the other hand. While police are allowed to use certain forms of trickery following a knowing and voluntary Miranda waiver, the court finds no New Jersey precedent that authorizes trickery as part of the waiver process. Indeed, the court notes that Miranda v. Arizona expressly held that "any evidence that the accused was . . . tricked . . . into a waiver will, of course, show that the defendant did not voluntarily waive his [or her] privilege." 384 U.S. 436, 476 (1966).

The court adds that affirmatively misleading an interrogee about the seriousness of the offense for which he or she was taken into custody strikes at the heart of the waiver decision. The court does not, however, propose a categorical, per se rule that any deception or trickery of this type automatically warrants suppression. Rather, the court holds that the use of such a stratagem is an important factor to be considered as part of the totality of the circumstances in determining whether the State has met its burden of proving, beyond a reasonable doubt, that defendant made a knowing waiver of his right against self-incrimination.

Finally, the court rejects the State's argument that the detectives did not have probable cause to charge defendant with the strict liability for drug-induced death offense pending the completion of autopsy and toxicology reports. Applying de novo review, the court concludes that the detectives were aware of facts constituting probable cause that defendant committed the strict liability homicide offense, viewed from the standpoint of an objectively reasonable police officer.

Appellate
Feb. 3, 2022 JOHN P. BROWN, ET AL. VS. PATRICIA BROWN (L-2367-20, MONMOUTH COUNTY AND STATEWIDE) (A-0384-21)

Following the dismissal of a chancery action against them that sought a constructive trust on the proceeds of a sale of real property, plaintiffs filed a complaint against the prior suitor, alleging, among other things, the tortious interference with their contract to sell the real property. The prior suitor sought dismissal, arguing her earlier claim was cloaked by the litigation privilege. The trial judge held that the complaint and other pleadings were insulated by the litigation privilege but not the notice of lis pendens, which had been recorded but discharged in the earlier action.

In permitting review of that interlocutory disposition, the court affirmed in part and reversed in part, holding that the notice of lis pendens – a mere statement of the complaint's claims – was insulated by the litigation privilege, but the litigation privilege did not absolve the prior suitor of the consequences of having filed that earlier suit; in other words, the litigation privilege protected the prior suitor's statements and communications in the earlier judicial proceeding but did not protect her from a later action based on the allegation that the earlier suit was frivolous, vexatious or tortious.

Appellate
Feb. 2, 2022 Erez Holdings Urban Renewal, LLC v. Director, Div. of Taxation and Twp. of Lakewood (013941-2018)

Tax Court: Erez Holdings Urban Renewal, LLC, v. Director, Division of Taxation and Township of Lakewood, Docket No. 013941-2018, opinion by Sundar, P.J.T.C., decided February 1, 2022. For plaintiff - Catherine J. Bick (Giordiano Halleran Ciesla PC, attorneys); for defendants - Joseph Palumbo, Anthony D. Tancini (Andrew J. Bruck, Acting Attorney General of New Jersey, attorney); Harold H. Hensel (Secare & Hensel, attorneys).

Held: Plaintiff’s contention that the Non-Residential Development Fee (NRDF) imposed under N.J.S.A. 40:55D-8.4 should be computed by attributing $0 to equalized assessed value of the improvements because they are exempt from local property tax under the Long - Term Tax Exemption law, N.J.S.A. 40A:20-1 to -22, is rejected based on the plain language of the NRDF statute. The amount to be excluded for the parking lot when computing the NRDF is its value as determined under the accepted methods employed for valuing all real property in the local property tax arena (cost, income, comparable sales). The court’s standard of review of the assessor’s value determination of the parking lot for purposes of its exclusion when computing the NRDF, is the same as in local property tax matters. Thus, a presumptive correctness attaches to the assessor’s determination with the burden of proof upon the property owner to overcome the same and persuade the court that the exclusion amount should be different. Here, based on the evidence provided, plaintiff failed to persuade the court that the value of the parking lot to be excluded for purposes of calculating the NRDF should be $3,407,000. The court therefore affirms the final determination of defendant, Director, Division of Taxation, that the assessor of defendant, Township of Lakewood, correctly determined the NRDF.

Tax
Feb. 1, 2022 SHAWN LABEGA VS. HETAL C. JOSHI, M.D., ET AL. (L-3088-18, MIDDLESEX COUNTY AND STATEWIDE) (CONSOLIDATED) (A-3399-20/A-3400-20/A-3401-20/A-3402-20)

The court permitted defendants in this medical malpractice action leave to appeal the trial court's denial of their motions for partial summary judgment on plaintiff's claims for breach of contract and hospital policy based on a third-party beneficiary theory as well as his claims for negligence per se for defendants' alleged violation of the hospital policies incorporated into those contracts. Because well-established precedent makes clear neither cause of action is available to plaintiff in this case as a matter of law, the court reversed the orders and remanded for entry of partial summary judgment for defendants dismissing those claims.

Appellate
Feb. 1, 2022 STATE OF NEW JERSEY V. J.T. (FO-03-0454-20)

On January 24, 2020, defendant ordered a floral arrangement that was to be delivered to his former girlfriend on February 13, 2020. One week after the order was placed, a temporary restraining order (TRO) was entered against defendant, prohibiting him from having contact with his former girlfriend. Defendant made no effort to cancel the delivery, which did not occur until after the entry and service of the TRO on defendant. Defendant was charged with contempt for violation of a TRO entered pursuant to the Prevention of Domestic Violence Act.

Following trial, it was determined that the State was not able to satisfy its burden of proving beyond a reasonable doubt that defendant "purposely or knowingly" violated the TRO, and the complaint was dismissed. Since the TRO had not yet been entered at the time the defendant ordered the flowers, he could not have possessed the requisite mental state for a finding of contempt.

Similarly, the argument that defendant had an affirmative obligation to recall the communication initiated prior to his having been served with the TRO was rejected, because the TRO provided no notice of any such requirement.

Trial
Jan. 28, 2022 STATE OF NEW JERSEY VS. DANIEL ROCHAT (13-07-1002, BERGEN COUNTY AND STATEWIDE) (A-0103-17)

This appeal presents an issue of first impression—whether DNA evidence obtained from extremely small amounts of DNA through a technique known as low copy number (LCN) DNA testing, and in one instance, by using a proprietary Forensic Statistical Tool (FST) software program, which defendant contends are not generally accepted in the relevant scientific community, was improperly admitted at trial.

Defendant was indicted for the murder of a woman he had recently visited, that worked at his father's business. Her partially burned body was found in her residence. She died from blunt force head injuries. As part of their investigation, detectives obtained DNA samples from defendant, his apartment, a condominium that he had access to, his car, and the victim's fingernails. Samples from the kitchen of the apartment tested positive for blood. The DNA samples were sent to a laboratory DNA analysis.

The trial court denied defendant's motion for a Frye1 hearing to determine the admissibility of the LCN DNA test results. At trial, the State's experts testified that DNA samples from the kitchen was consistent with the victim's DNA. Analysis of a second set of DNA samples showed a mixture of DNA from two people, one of whom was the victim. DNA samples from the victim's home did not test positive for defendant's DNA, but samples taken from the victim's fingernails did. Samples from defendant's apartment and car did not test positive for the victim's DNA. Defense experts opined that the LCN DNA testing and FST were neither reliable nor generally accepted in the relevant scientific community. Defendant was found guilty of the murder.

On appeal, the court remanded the case for a Frye hearing to determine the admissibility of the disputed DNA evidence under the standards adopted in State v. Harvey, 151 N.J. 117 (1997), and retained jurisdiction.

Following a multi-day Frye hearing, at which numerous expert witnesses testified, the trial court determined the State clearly established that the LCN DNA testing technique and FST were generally accepted in the relevant scientific community and ruled the DNA analysis was admissible.

The court rejected the trial courts determinations, concluding that the State did not clearly establish that the LCN DNA testing technique and FST were generally accepted in the relevant scientific community. Therefore, the DNA evidence derived by using that technique and software was inadmissible. Noting that the remaining evidence was not overwhelming and recognizing that DNA evidence is powerful and compelling, the court determined that admission of the disputed DNA evidence raised a reasonable doubt that the jury was led to a verdict it otherwise might not have reached. Because the error was not harmless, the court reversed defendant's conviction and remanded for retrial.

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1 Frye v. United States, 293 F. 1013 (D.C. Cir. 1923).

Appellate
Jan. 25, 2022 State v. Jamar J. Myers (A-40-20 ; 082858)

The only information the officer possessed at the time of the stop was the race and sex of the suspects, with no further descriptors. That information, which effectively placed every single Black male in the area under the veil of suspicion, was insufficient to justify the stop of the vehicle and therefore does not withstand constitutional scrutiny.

Supreme
Jan. 25, 2022 State v. Peter Nyema (A-39-20 ; 085146)

The only information the officer possessed at the time of the stop was the race and sex of the suspects, with no further descriptors. That information, which effectively placed every single Black male in the area under the veil of suspicion, was insufficient to justify the stop of the vehicle and therefore does not withstand constitutional scrutiny.

Supreme
Jan. 24, 2022 UNDERWOOD PROPERTIES, LLC VS. CITY OF HACKENSACK, ET AL. (L-7980-19, BERGEN COUNTY AND STATEWIDE) (A-0044-20)

The parties were involved in litigation relating to the Hackensack Planning Board's zoning determinations and ordinances adopted in the City's redevelopment plan. Separately, plaintiff's attorney submitted requests for records from defendants pursuant to the Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to -13, designated as OPRA requests from the attorney.

Defendants argued plaintiff lacked standing to bring suit under OPRA because the requests were submitted from plaintiff's attorney. The trial judge rejected the standing argument because counsel had implied authority to submit the requests. The trial judge also noted the Denial of Access complaint form adopted by the Government Records Council requires parties represented by counsel who make a request to state the name of the client on whose behalf the complaint is being filed.

Among other arguments raised by the parties in their respective appeals, defendants repeated their standing argument and urged the court to "establish the standard that if an attorney is filing an OPRA request on behalf of a client, it must clearly disclose that fact to the custodian of records, or if the response proceeds to litigation the attorney must be deemed the 'requestor.'"

The court affirmed, rejecting defendants' argument for the same reasons expressed by the trial judge. Although N.J.S.A. 47:1A-6 states the right to institute a suit under OPRA belongs "solely" to the requestor, OPRA and the rules of standing are broadly construed. Therefore, the literal reading of the statute urged by defendants should be eschewed.

Appellate
Jan. 24, 2022 TRENTON RENEWABLE POWER, LLC VS. DENALI WATER SOLUTIONS, LLC (C-000049-20, MERCER COUNTY AND STATEWIDE) (A-3060-20)

In this breach of contract action, the owner/operator of an aerobic biodigester facility sued defendant, Denali, which was contractually obligated to deliver quantities of organic waste to the facility for processing. Shortly after entry of the initial case management order, Denali served subpoenas on plaintiff and several nonparties, including Symbiont Science, Engineering and Construction, Inc. (Symbiont), which had designed and retrofitted the facility for plaintiff. Symbiont's subpoena required it to identify a corporate designee with familiarity in seventeen topic areas and demanded documents and electronically stored information in thirteen categories.

Much of the requested information centered on communications between plaintiff and Symbiont, such as the terms of Symbiont's agreement with plaintiff, "including the drafting, revision, and execution of the agreement"; "[t]he calculation of Symbiont's guaranteed maximum price to complete the construction to retrofit the Trenton Facility"; and "[a]ll communications with [plaintiff c]oncerning the construction and design" of the facility, "including but not limited to, the construction cost, construction schedule, and design modifications." Denali served similar requests on plaintiff.

When negotiations regarding the scope of production broke down between Denali and plaintiff, and between defendant and Symbiont, Denali moved to compel, and plaintiff and Symbiont moved to quash. The judge granted Denali's motion as to both plaintiff and Symbiont, relying on the broad scope of discovery permitted by Court Rules and case law.

The court granted Symbiont's motion for leave to appeal and reversed. Despite the broad scope of discovery permitted between parties, a court facing a discovery dispute involving a nonparty to the litigation must consider additional factors. The court also noted the special recognition the Federal Rules of Civil Procedure provide to discovery demanded from nonparties.

Appellate
Jan. 20, 2022 State v. Keith Terres (A-45-20 ; 084778)

When an arrest occurs outside a home, the police may not enter the dwelling or conduct a protective sweep in the absence of a reasonable and articulable suspicion that a person or persons are present inside and pose an imminent threat to the officers’ safety. This sensible balancing of the fundamental right to privacy in one’s home and the compelling interest in officer safety will depend on an objective assessment of the particular circumstances in each case, such as the manner of the arrest, the distance of the arrest from the home, the reasonableness of the officers’ suspicion that persons were in the dwelling and likely to launch an imminent attack, and any other relevant factors. A self-created exigency by the police cannot justify entry into the home or a protective sweep. Here, a protective sweep was not warranted in the Radel case but was constitutionally justified in the Terres case.

Supreme
Jan. 20, 2022 ESTATE OF MICAH SAMUEL TENNANT DUNMORE VS. PLEASANTVILLE BOARD OF EDUCATION ANGELA TENNANT VS. PLEASANTVILLE BOARD OF EDUCATION, ET AL. (L-0889-20 and L-0901-20, ATLANTIC COUNTY AND STATEWIDE) (CONSOLIDATED) (A-4314-19/A-4451-19)

In these matters arising out of the tragic shooting of a minor during a football game and his subsequent death several days later, the court considered whether the time for a minor's parent to file a notice of tort claim for her Portee1 claim is tolled under the New Jersey Tort Claims Act (TCA), N.J.S.A. 59:1-1 to 59:12-3. In reading in pari materia N.J.S.A. 59:8-8, which extends the statute of limitations for an injured minor to institute a cause of action until two years after their eighteenth birthday, and N.J.S.A. 2A:14-2, which tolls a parent's claim for the duration of the child's tolling period, and because the parent's Portee claim essentially includes the elements of the minor's claim, the court concludes it is only logical to toll the notice requirements under the TCA for the parent's Portee claim to coincide with the tolling period of the minor's claim. The court's ruling is consistent with the purposes underlying the entire controversy doctrine and in promoting judicial economy.

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1 Portee v. Jaffee, 84 N.J. 88 (1980).

Appellate
Jan. 20, 2022 State v. Christopher Radel (A-44-20 ; 085129)

When an arrest occurs outside a home, the police may not enter the dwelling or conduct a protective sweep in the absence of a reasonable and articulable suspicion that a person or persons are present inside and pose an imminent threat to the officers’ safety. This sensible balancing of the fundamental right to privacy in one’s home and the compelling interest in officer safety will depend on an objective assessment of the particular circumstances in each case, such as the manner of the arrest, the distance of the arrest from the home, the reasonableness of the officers’ suspicion that persons were in the dwelling and likely to launch an imminent attack, and any other relevant factors. A self-created exigency by the police cannot justify entry into the home or a protective sweep. Here, a protective sweep was not warranted in the Radel case but was constitutionally justified in the Terres case.

Supreme
Jan. 19, 2022 STATE OF NEW JERSEY VS. WILLIAM J. THOMAS (80-12-1541, ATLANTIC COUNTY AND STATEWIDE) (A-4368-19)

After being waived to adult court, defendant pled non vult to two murders that he committed when he was seventeen years old. He was sentenced to two concurrent life terms with no specified period of parole ineligibility, rendering him eligible for parole in May 1995, after serving thirteen years.

Defendant had no prior juvenile charges or adjudications of delinquency. Defendant has been a model prisoner during his decades of imprisonment. He has incurred no disciplinary infractions, committed no new crimes, obtained his GED, engaged in multiple programs to address his behavior and substance abuse, taken vocational courses, achieved and maintained gang minimum custody status, and serves as the electrician for the correctional facility. Defendant has now served over forty years in prison after being denied parole seven times and receiving lengthy future eligibility terms, despite multiple psychological evaluations that concluded he was a low risk for committing a new offense if released.

Defendant filed a motion for an adversarial hearing under Miller v. Alabama, 567 U.S. 460 (2012), to correct an unconstitutional sentence. Defendant contended that being eligible for parole was not the same as having a "meaningful opportunity for release." In support of his motion, defendant submitted parole data statistics regarding inmates who received life terms with no specified period of parole ineligibility. Defendant argued that although his sentence was life with no specified period of parole ineligibility, he was serving the practical equivalent of life without parole, which was not the intent of the sentencing judge. Defendant also emphasized that he has "a perfect institutional record" and "is a trusted inmate."

The State opposed the motion, arguing that the parole data was not relevant to whether defendant's sentence was illegal, and that defendant was not entitled to a Miller/Zuber1 hearing because his original sentence was neither life without parole nor "the practical equivalent of life without parole."

Although recognizing that defendant had a blemish-free institutional record, the trial court denied the motion, finding it did not have the authority to review Parole Board or Appellate Division decisions. While crediting the parole data submitted by defendant and acknowledging that the "continued incarceration of defendant at the hands of the Parole Board did not seem to be the intention of [the sentencing judge]," the trial court nonetheless concluded that defendant's sentence was not within the purview of Miller, Zuber, or Graham v. Florida, 560 U.S. 48 (2010). Noting the absence of any "mandated system of review for all lengthy juvenile sentences," the trial court held "there [were] no grounds for relief to defendant under the holdings in Miller, Graham or Zuber."

Applying Article I, Paragraph 12 of the New Jersey Constitution and the fundamental fairness doctrine, the court extended the procedure recently adopted by our Supreme Court in State v. Comer, ___ N.J. ___ (2022), for a juvenile convicted of homicide to petition the trial court for a review of their sentence after having served twenty years in prison, to defendant, who was sentenced to life without a specified period of parole ineligibility, and has now been imprisoned more than forty years as a result of seven parole denials.

The court reversed and remanded for an adversarial hearing to afford defendant the "meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation" envisioned by Graham v. Florida, 560 U.S. 48 (2010) and Zuber, and adopted by Comer. At the evidentiary hearing, defendant shall have the right to be represented by legal counsel, present witnesses and expert testimony, cross-examine the State's witnesses, and introduce his nonconfidential parole records and other relevant, admissible exhibits. The court left the admissibility of such records and exhibits and any request for discovery to the sound discretion of the trial court. The court directed the trial court to consider the Miller factors and determine whether defendant has demonstrated maturity and rehabilitation.

________________________________________
1 State v. Zuber, 227 N.J. 422 (2017).

Appellate
Jan. 18, 2022 Diane S. Lapsley v. Township of Sparta (A-68/69-20 ; 085422)

Lapsley’s injuries arose out of and in the course of her employment because the parking lot where she was injured was owned and maintained by the Township, adjacent to her place of work, and used by Township employees to park. Lapsley was therefore entitled to benefits under the Workers’ Compensation Act.

Supreme
Jan. 18, 2022 STATE OF NEW JERSEY VS. DIEGO ARROYO-NUNEZ (19-04-0265, UNION COUNTY AND STATEWIDE) (A-3746-20)

Defendant and the State of New Jersey jointly appeal the denial of their joint motion to modify defendant's sentence pursuant to Rule 3:21-10(b)(3). In 2019, defendant pled guilty to first-degree possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5(b)(1); the judge imposed a sentence of eleven years' imprisonment with twenty-four months of parole ineligibility, in accordance with the negotiated plea under N.J.S.A. 2C:35-12 (Section 12).

In April 2021, the Attorney General issued Law Enforcement Directive No. 2021-4, "Directive Revising Statewide Guidelines Concerning the Waiver of Mandatory Minimum Sentences in Non-Violent Drug Cases Pursuant to N.J.S.A. 2C:35-12," (the Directive). Pursuant to its terms, prosecutors were to file joint motions when requested by defendants, like defendant, who were serving mandatory minimum sentences for certain Chapter 35 offenses. The motions sought sentence modification eliminating, or reducing, the mandatory minimum feature of the sentence.

In all, more than 600 motions were filed. Defendant's motion was the first heard by a judge specially designated by the Supreme Court to hear these motions. The judge denied the motion, essentially concluding that a modification of defendant's sentence to eliminate the mandatory minimum term was contrary to the Legislature's intent when it enacted the Comprehensive Drug Reform Act of 1987 (the CDRA), N.J.S.A. 2C:35-1 to -36A-1, and the Directive thereby invaded the province of the Legislature contrary to the separation of powers doctrine. See N.J. Const. art. III, para. 1.

The court reversed, concluding the judge misconstrued Section 12 of the CDRA, and overlooked case law developed and statutory amendments enacted since its passage more than three decades ago. However, the court reiterated that the necessary finding of "good cause" for a modification under Rule 3:21-10(b)(3) is solely for the court to decide on an individual basis, and the mere filing of a joint motion did not establish "good cause" to modify the sentence.

Appellate
Jan. 13, 2022 JAMES T. KOPEC VS. ANNA M. MOERS JOSEPH LOPRESTI VS. JENNIFER LOPRESTI RICK G. ZORN VS. CHRISTINA ZORN SAMUEL MCGEE VS. LILLIAN MCGEE SANDRA WEED VS. LEROY WEED II MARY DETER VS. ROY L. DETER KAREN PREVETE VS. THOMAS MENDIBURU CHRIS DEFONTES VS. NICOLE DE (A-2551-18/A-2552-18/A-2553-18/A-2554-18/A-2726-18/A-2731-18/A-2758-18/A-3579-18/A-4190-18/A-4191-18)

In these ten back-to-back appeals, consolidated for the purpose of issuing one opinion, Weinberger Divorce & Family Law Group, LLC filed post-judgment motions in the Chancery Division, Family Part, to enforce its retainer agreements against its former clients. The law firm sought judgments for unpaid fees, or alternatively, orders compelling the parties to attend binding arbitration pursuant to an arbitration provision in its retainer agreements. The court affirms the denial of the law firm's enforcement motions, concluding: its applications should have been filed as complaints in the Law Division pursuant to the Rules of Court; the law firm was not entitled to entry of judgment for fees in any of the matters because it failed to provide the courts with the necessary information to assess the reasonableness of the fees requested by the firm; and the binding arbitration provision in the firm's retainer agreement is unenforceable because its vague, confusing and contradictory language fails to support the conclusion that the clients and the law firm mutually assented to its terms.

Appellate
Jan. 12, 2022 STEINER VS. STEINER (FM-07-2818-18, ESSEX COUNTY AND STATEWIDE) (A-2440-20)

After sixty-three years of marriage, plaintiff Sylvia Steiner commenced this divorce action. At the conclusion of a bifurcated trial for the sole purpose of resolving the parties' dispute about whether there were grounds for divorce, the trial judge found irreconcilable differences and entered a judgment of divorce. In appealing, defendant David Steiner argued, among other things, that bifurcation should not have been permitted and that the trial judge erred in finding irreconcilable differences. The court affirmed, holding that what constitutes irreconcilable differences varies from couple to couple and that the judge's determination that this couple's differences were irreconcilable and had endured for six months, as required by N.J.S.A. 2A:34-2(i), was entitled to deference. The court also held that the presiding judge did not abuse his discretion in bifurcating the cause of action from the parties' equitable distribution issues because of both the parties' ages and judicial economy, considering that a potential ruling on the cause of action in defendant's favor would negate the need for a time-consuming and costly trial on the parties' extensive equitable distribution issues.

Appellate