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Civil Appeals | News

Nondisparagement, Nondisclosure Clauses 'Impermissible When Used to Silence Victims' Under NJLAD

By Colleen Murphy

"Because the scope of the agreement in this case would bar individuals from describing an employer's discriminatory conduct, the agreement encompasses speech the LAD protects," Chief Justice Stuart Rabner said. "Defendants also used the agreement to try to hold the sergeant liable for making statements about her claims of discrimination, retaliation, and sexual harassment, which section 12.8 specifically protects." Read More

In the Matter of P.T. Jibsail Family Ltd. P'ship Tideland License

Practice Area: Administrative Law|Environmental Law

Date Filed: 2024-05-08

Court: Appellate Division

Judge(s): Per Curiam

Appellant trust appealed the modification of the tidelands license granted to respondent partnership. The license allowed partnership to occupy tidelands to construct a 168-foot dock extension, resulting in a 300-foot-long dog-legged dock protruding into Barnegat Bay. Partnership's predecessor in interest received a Tidelands Resource Council license to construct a dock in 2007. The license was assigned to partnership in 2013 and renewed in 2015. In 2019, New Jersey Department of Environmental Protection approved the partnership's application for a modification of the license to allow the non-conforming dock. The decision modified a 2018 tidelands license to allow for a 1.7-foot discrepancy between the location of the dock as constructed and the boundaries of the license as initially approved. Trust argued the decision to grant the initial license in 2017 exceeded agency's legislative mandate and the license and the modification had to be vacated. Trust contended the dock, as approved, was beyond established pierhead lines, was not in the public's interest, it was deprived of proper notice and dock violated its rights as an upland owner. Court affirmed. Court noted the record before the TRC showed that NJDEP considered the Coastal Zone Management rules when it issued the underlying 2017 and 2019 permits finding that partnership's dock satisfied the CZM rules. Court found TRC acted with clear statutory authority to approve the license modification application, and its decision was amply supported by the record.

Asset Acceptance, LLC v. Toft

Practice Area: Creditors' and Debtors' Rights

Date Filed: 2024-05-08

Court: Appellate Division

Judge(s): Per Curiam

Defendant appealed the denial of her motion to vacate a default judgment and wage execution entered in favor of plaintiff. Plaintiff filed a complaint for debt collection against defendant. Defendant did not respond and plaintiff obtained a default judgment in December 2013 and a wage execution in December 2014. Defendant filed a class action against plaintiff in 2019 asserting "'improper [consumer] debt collection activity without required licenses,' in violation of the New Jersey Consumer Finance Licensing Act." The dismissal of that action on entire controversy doctrine grounds was affirmed on appeal. Defendant filed to vacate the December 2013 judgment and wage execution in February 2023. Motion judge denied the motion as untimely. Defendant argued motion judge abused his discretion because the default judgment was void under the CFLA. Court disagreed. Defendant's reliance on LVNV Funding, LLC v. Deangelo, 464 N.J. Super. 103, and Berger v. Paterson Veterans Taxi Serv., 244 N.J. Super. 200, was misplaced. Plaintiff failed to explain why she let four years expire after the class action was dismissed to move to vacate the default judgment and her delay was substantially longer than the defendant's two-year delay in Berger.

Graham v. Venetianer

Practice Area: Evidence|Motor Vehicle Torts

Date Filed: 2024-05-08

Court: Appellate Division

Judge(s): Judge Smith

Plaintiff Monica Graham, after being awarded $325,000 by a jury for injuries from a car accident, appealed the judgment, arguing errors in the trial process. During trial, the defense cross-examined plaintiff using her medical history from before the accident, specifically referencing medical records not admitted as evidence from plaintiff's family doctor Dr. Linda Guirguis. Despite objections from plaintiff's counsel, the trial court allowed this line of questioning and the use of these records in the defense's closing arguments. On appeal, the court affirmed the trial court's decision, noting that the pre-accident medical statements were admissible under N.J.R.E. 803(c)(4) as they were made for medical diagnosis or treatment. The court found no abuse of discretion by the trial court and no manifest denial of justice, emphasizing that the jury's verdict considered all evidence and the defense's references to the medical records did not result in an unjust outcome. The court found that the questioning was relevant to whether plaintiff had complained of pain or other discomfort to Dr. Guirguis before the accident.

Barnes v. Dyas.

Practice Area: Family Law

Date Filed: 2024-05-08

Court: Appellate Division

Judge(s): Per Curiam

Plaintiff appealed a Family Part order on child custody and fees. Plaintiff argued trial court erred by designating defendant the parent of primary residence for the parties' four-year-old daughter, ordering plaintiff to attend an anger management class, modifying the parties' previous parenting time schedules, ordering plaintiff to permit child to attend her daycare program during a portion of plaintiff's parenting time, allowing defendant to enroll the child in a pre-K program in the school district where defendant resided, considering the "brief focused assessment" report prepared by the joint expert, denying plaintiff's request to be reimbursed for fees paid to the expert and to a parenting coordinator, requiring plaintiff to pay counsel fees to the expert's attorney after the expert successfully moved to quash a subpoena plaintiff served upon her and hyphenating the child's last name to include both parties' surnames. Court affirmed for the reasons given by the trial court. Plaintiff's arguments concerning the decision did not show that trial court made a clear mistake and record amply supported trial court's factual findings and its legal conclusions.

A.F.L. v. M.L.

Practice Area: Family Law

Date Filed: 2024-05-08

Court: Appellate Division

Judge(s): Per Curiam

Defendant appealed a final restraining order entered in favor of plaintiff. The married parties lived together until July 2022 when plaintiff alleged defendant, while intoxicated, engaged in harassing conduct by repeatedly calling her derogatory names and waking her and the children to instigate arguments. She testified defendant stuffed a firearm into the waist of his pants and plaintiff heard him telling someone on the phone plaintiff "would be sorry" and he passed out in daughter's room with the gun in his waistband. Plaintiff obtained a TRO which was later voluntarily withdrawn and the parties entered a consent order with civil restraints. The parties separated and plaintiff was living with her mother in September 2022. Defendant messaged plaintiff accusing her of violating the consent order by drinking beer during parenting time. Plaintiff replied that she had a sitter. Defendant sent plaintiff a photo of her car parked in her mother's driveway and accused her of having an affair with her boss. Defendant also messaged plaintiff's boss about the alleged affair and told plaintiff about that message. Plaintiff also testified to prior threats of violence. Defendant argued plaintiff violated the consent order, he was concerned for the safety of the children and denied any intent to harass. Trial judge found plaintiff more credible than defendant and plaintiff's description of defendant's gun play when intoxicated was credible. Defendant argued there was insufficient evidence upon which to find that he acted with the required intent. Court affirmed. Trial judge properly found defendant committed the predicate act of harassment and that a FRO was necessary.

In the Matter of the Civil Commitment of J.P.

Practice Area: Health Care Law

Date Filed: 2024-05-08

Court: Appellate Division

Judge(s): Per Curiam

Appellant appealed the continuation of his involuntary commitment and denial of his request to convert to voluntary admission status. Appellant was admitted to medical center in October 2022 after attempting to commit suicide by jumping in front of an oncoming train. The severe injuries required the amputation of both legs. He had prior diagnoses of bipolar mood disorder, multiple sclerosis, cannabis use disorder and chronic alcohol abuse. He ingested anti-freeze and received inpatient psychiatric care for approximately one month in July 2022. In August 2022, he was admitted for inpatient psychiatric care after voicing suicidal thoughts about planning to jump in front of a train. Psychiatrist found appellant was dangerous to himself because of his suicide attempt, his continued suicidal ideation, and his inability to satisfy his essential medical care and shelter needs because he was "depressed" and "unable to take care of [him]self due to decompensated psychiatric illness." Appellant admitted he did not know where he would be living, he had not continued to take his medication in the past and had suicidal thoughts while taking his medication. Trial court found appellant did not have the capacity to make an informed decision regarding a change to his status as required under Rule 4:74-7(g)(1). Court affirmed finding State met its burden to involuntarily commit appellant and trial court did not abuse its discretion.

Terhune v. Port Auth. of N.Y. & N.J.

Practice Area: Labor Law

Date Filed: 2024-05-08

Court: Appellate Division

Judge(s): Per Curiam

Respondent, the Port Authority of New York and New Jersey, appealed the final agency decision of the New Jersey Department of Labor and Workforce Development Division of Workers' Compensation. Petitioner Albert Terhune Jr., employed by the Port Authority since 2007, was injured during a mandatory snow duty shift. On December 14, 2013, while staying at a designated hotel for snow removal operations, petitioner slipped and injured his back at the hotel's pool, an incident occurring after his physician-advised light exercise. Respondent initially denied his workers' compensation claim, asserting the injury did not arise from employment duties. The Division of Workers' Compensation held a bifurcated trial, where the judge found petitioner's injury compensable, noting he was on a special mission as required by his employer and thus was within the scope of his employment. The Division emphasized that petitioner was fulfilling his employment obligations under the conditions set by respondent, which included staying at the hotel for operational readiness, thereby classifying his presence there as part of his job responsibilities. The workers' compensation judge awarded petitioner seventy-five percent permanent partial disability compensation. On appeal, respondent contested the compensability of the injury, arguing petitioner was not performing direct job duties at the time of the accident. The court affirmed the Division's decision, finding that petitioner's activities legally fell within the course of employment given the employer's directives and the nature of the assignment. The court dismissed respondent's argument that the injury occurred during a recreational activity, as the issue was not raised in the initial proceedings and petitioner's presence at the hotel was compulsory, aligning with the special mission rule under workers' compensation law.

Simmons v. City of Paterson

Practice Area: Wrongful Death

Date Filed: 2024-05-08

Court: Appellate Division

Judge(s): Per Curiam

Plaintiffs, surviving family members of JaQuill Fields, appealed the dismissal of their complaint. Fields was struck by a vehicle driven by Paterson police department detective Jose Urena. Fields' family filed a lawsuit against Urena, the City of Paterson, and several city and police officials, asserting multiple claims including wrongful death and civil rights violations. The trial court dismissed the claims against all defendants except Urena, and the plaintiffs stipulated to dismiss their claims against Urena as well, effectively ending the litigation. However, plaintiffs later attempted to reinstate the case "as to those plaintiffs who have not executed releases" with Urena, claiming the case had been administratively closed without prejudice, which the court granted. Plaintiffs then appealed the dismissal of their claims against the other defendants, but the appeal was dismissed as untimely because it was filed outside the 45-day window allowed after a final judgment, which was considered the stipulation of dismissal with Urena. The court's decision to dismiss the appeal was based on strict adherence to procedural rules regarding the timing of appeals, noting that plaintiffs failed to move to extend their time to appeal. The court held that the case was ended when plaintiffs agreed to dismiss their claims against Urena, since there were no remaining parties in the case. The court accordingly dismissed plaintiffs' appeal.

State v. Higginbotham

Practice Area: Criminal Law

Date Filed: 2024-05-08

Court: New Jersey Supreme Court

Judge(s): Justice Wainer Apter

The state appealed the appellate division's judgment reversing the trial court's denial of defendant Andrew Higginbotham's motion to dismiss his indictment. Defendant faced sixteen counts of endangering the welfare of a child under N.J.S.A. 2C:24-4(b)(1)(c), which criminalizes depicting a child for sexual stimulation without literary, artistic, political, or scientific value. The charges stemmed from defendant distributing photos of a clothed child with obscene text superimposed. He moved to dismiss the indictment, arguing the statute was unconstitutionally vague and overbroad. The trial court denied the motion, but the appellate division reversed, finding the statute overbroad as it could criminalize images that were neither obscene nor child pornography. On appeal, the court affirmed and modified the appellate division's decision and remanded to the trial court for further proceedings, holding subsection (c) was unconstitutionally overbroad because it criminalizes a wide range of material that is neither obscenity nor child pornography. The court did not address the validity of other subsections or the vagueness challenge, focusing solely on the overbreadth of subsection (c). The court underscored the importance of narrowly tailoring statutes to avoid infringing on protected speech while balancing the state's interest in protecting children from exploitation.

In the Matter of the Competitive Solar Incentive Program

Practice Area: Public Utilities

Industry: Energy, State and Local Government

Date Filed: 2024-04-23

Court: Appellate Division

Judge(s): Judge Mawla

The Mid-Atlantic Renewable Energy Coalition appealed the final decision of the New Jersey Board of Public Utilities, which denied MAREC's request for reconsideration of an order establishing siting requirements for the Competitive Solar Incentive program under the Solar Act of 2021. The Act was intended to incentivize solar development while preserving open space and farmland in New Jersey. The Act established specific siting criteria for solar energy production facilities, including by setting a statewide limit of 2.5 percent of prime agricultural lands for solar facility siting and a per county limit of five percent for prime agricultural lands.
In setting the siting limits, the board collaborated with various state agencies and undertook extensive engagement with various stakeholders. In challenging the board's order establishing the siting requirements, MAREC contended that the board misinterpreted the Act's siting limitations. MAREC argued that the five percent per county limit only applied to projects that exceeded the 2.5 percent statewide limit or that were to be built on lands restricted from solar facility development under the Act. The board denied MAREC's request for reconsideration of the order establishing the siting requirements, ruling that all CSI-eligible facilities had to meet both the 2.5 percent statewide limit and five percent per county limit, as compliance with both limitations was consistent with the Act's intent to preserve agricultural lands and open spaces across all solar projects.
On appeal, the court affirmed the board's decision. The court agreed with the board that the Act's statutory language was unambiguous and found the board's interpretation of the Act was reasonable. The court further agreed that the board's order struck the required balance between fostering solar energy development and preserving prime agricultural lands and open spaces. The court ruled that the statewide and per county limits did not apply to the same farmlands, finding that the "unpreserved" qualifier in the statutory limitations only applied to the per county limit.
The court ruled that MAREC's proffered interpretation of the Act's statutory language could lead to an absurd result in which solar developers could take up a county's entire prime agricultural land without running afoul of the siting requirements.

McKinney v. Passaic County

Practice Area: Civil Procedure

Date Filed: 2024-04-10

Court: U.S. District Court for New Jersey

Judge(s): District Judge Padin

The court considered the consolidated report and recommendation of the magistrate judge, which recommended granting defendants' motions to dismiss plaintiffs' complaints for failure to provide discovery. The court adopted the R&R and granted defendants' motions to dismiss, noting that no plaintiff filed an objection to the R&R and finding that the magistrate judge adequately examined the applicable Poulis factors to determine that plaintiffs' complaints should be dismissed. [Filed April 10, 2024]

Guimaraes v. Metal Transp. LLC

Practice Area: Civil Procedure|Contracts|Labor Law

Date Filed: 2024-04-10

Court: U.S. District Court for New Jersey

Judge(s): District Judge Farbiarz

In a class action lawsuit, Edgar Guimaraes and Donnell Clarke, representing truckers misclassified as independent contractors, sued Metal Transportation LLC and others, including defendant Evans Delivery Company, Inc. Evans moved to dismiss or transfer the case to Pennsylvania based on a forum selection clause. The court addressed the enforceability of this clause under federal law, which generally upholds such clauses unless shown to be unreasonable. Plaintiffs argued the clause was unenforceable because the underlying contract was illegal under New Jersey law and against public policy. However, the court found these arguments insufficient to override the presumption of the clause's validity, noting that challenges to the contract's overall validity should be determined by the selected forum as per the clause. Despite finding the forum selection clause enforceable, the court denied the motion to dismiss or transfer since Evans had failed to explain why the law might favor dismissal over transfer, leaving room for further motions that could affect the case's outcome. The decision allowed for additional arguments and motion practice on whether the case should remain in New Jersey based on forum non conveniens grounds despite the governing forum selection clause. [Filed April 10, 2024]

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