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Sunday, May 16, 2021

JUSTIN GAYLES, ET AL. VS. SKY ZONE TRAMPOLINE PARK, ET AL. (L-1530-18, MORRIS COUNTY AND STATEWIDE) (A-3519-19)

 JUSTIN GAYLES, ET AL. VS. SKY ZONE TRAMPOLINE PARK, ET AL. (L-1530-18, MORRIS COUNTY AND STATEWIDE) (A-3519-19)

Defendant owned a trampoline park and required that adults who brought minors to the facility electronically execute a waiver of rights that also included an arbitration agreement at a computer station prior to entry. The adult would necessarily have to certify he/she was the parent or legal guardian of the minor or had been granted power-of-attorney to execute the waiver on behalf of the child's parent. Third-party defendant listed plaintiff's child as one of the minors seeking entry to the facility and executed the waiver. Plaintiff's child fractured his leg while using the trampolines.

Defendant sought summary judgment dismissing the complaint and compelling arbitration of plaintiff's negligence claims. Defendant argued that it reasonably believed in the third party's "apparent authority" to execute the waiver on plaintiff's behalf. The judge denied defendant's motion and defendant appealed as of rights.

The court affirmed, rejecting defendant's argument that it was entitled as a matter of law on the motion record to rely on the doctrine of apparent authority to enforce the waiver and compel arbitration. In particular, the court examined the provisions and commentary of the Restatement (Third) of Agency regarding the doctrine of apparent authority.

ESTATE OF LAURA CHRISTINE SEMPREVIVO, ET AL. VS. HASSAN LAHHAM, ET AL. (L-2343-18, ATLANTIC COUNTY AND STATEWIDE) (A-2505-19)

 ESTATE OF LAURA CHRISTINE SEMPREVIVO, ET AL. VS. HASSAN LAHHAM, ET AL. (L-2343-18, ATLANTIC COUNTY AND STATEWIDE) (A-2505-19)

This appeal implicates the proper application and limitations of Rule 1:13-7, an administrative "docket-clearing rule." The court considered two issues: (1) whether the good cause or exceptional circumstances standard applies for reinstatement of the complaint in a multi-defendant case, where no defendants have appeared in the case and participated in discovery; and (2) whether the rule empowers the trial court to dismiss a complaint with prejudice in response to a motion filed by the nondelinquent party.

The court concluded the trial court misapplied the exceptional circumstances standard under Rule 1:13-7, thereby preventing adjudication of plaintiffs' claims on the merits. In that regard, the trial court mistakenly exercised its discretion by denying plaintiffs' motion to reinstate their complaint. The court also held that Rule 1:13-7 neither empowers a trial court to dismiss a cause of action with prejudice nor authorizes a party in a case to affirmatively seek such a drastic sanction as a form of relief.

Accordingly, the court reversed and remanded the order under review so the underlying medical malpractice action can be decided on the merits.

Kim Allen v. Cape May County (083295) (Cape May County & Statewide) (A-49-19

 Kim Allen v. Cape May County (083295) (Cape May County & Statewide) (A-49-19; 083295)

Because it is unclear whether defendants’ motion for summary judgment was decided based on the CEPA provision on which plaintiff relies, the Court remands plaintiff’s claim regarding the Capehart & Scatchard proposal to the trial court. As a matter of law, plaintiff presented no prima facie evidence of a causal nexus between her comments on the retention of Ballard Spahr and the County’s decision not to renew her contract. The Court reinstates the order granting summary judgment as to that claim.

Sunday, May 2, 2021

MICHAEL C. STEELE VS. JANE D. MCDONNELL STEELE (FM-18-0584-16, SOMERSET COUNTY AND STATEWIDE) (A-5172-18)

 MICHAEL C. STEELE VS. JANE D. MCDONNELL STEELE (FM-18-0584-16, SOMERSET COUNTY AND STATEWIDE) (A-5172-18)

Defendant appealed from a declaratory judgment finding the marital agreement (MA) she and her former spouse signed eight months after they married was a valid, enforceable agreement. And, she appealed from the final judgment of divorce (JOD) that incorporated the MA. We conclude the trial court erred by deeming the agreement to be in the nature of an enforceable pre-marital agreement. The parties' mid-marriage agreement was negotiated and executed after they wed, and the inherently coercive circumstances accompanying the making of the agreement here warranted heightened judicial scrutiny to assure it was fair and equitable. Therefore, we reverse the declaratory judgment and that portion of the JOD which enforced the MA, vacate the denial of defendant's counsel fee request, and remand for further proceedings. We identify factors the trial court should consider on remand when assessing whether to enforce the agreement.

PHOENIX PINELANDS CORPORATION, ETC. VS. HARRY DAVIDOFF, ET AL. (C-000246-11, OCEAN COUNTY AND STATEWIDE) (A-2823-16)

 PHOENIX PINELANDS CORPORATION, ETC. VS. HARRY DAVIDOFF, ET AL. (C-000246-11, OCEAN COUNTY AND STATEWIDE) (A-2823-16)

The court reverses the final judgment in this quia timet and ejectment action that divested defendant State of New Jersey of its title to seven parcels of land in the Preservation Area of the Pinelands National Reserve, consisting of over 250 acres, and granted title to those properties to an adjoining landowner, plaintiff Phoenix Pinelands Corporation, operator of a grandfathered sand and gravel mine. The court declares Phoenix's surreptitious, two-decade-long quest to undermine and cloud the State's title to the properties and establish its own competing chains of title — by plotting and resurveying the titles from the original grants from the Council of Proprietors of West Jersey, searching those titles forward, purchasing the fractional interests of the descendants of long-dead record title holders, convincing the tax assessor of Little Egg Harbor to make Phoenix's principal, David Denise, the assessed owner of the State's properties, consolidating the State's lands with Phoenix's sand mine, and having the State's parcels wiped off the tax map — the nefarious acts of a title raider, which should have barred it from any relief in a court of equity.

Having declared Phoenix's attempted annexation of the State's lands as violative of public policy, the court imposes a constructive trust on the "title" Phoenix acquired to one of the State's seven parcels, finding the State equitably entitled to the parcel upon payment to Phoenix of the sum it paid to acquire it, plus simple interest, and further finds Phoenix failed to establish title to any of the State's remaining six parcels under theories of quia timet or ejectment.

Accordingly, the court remands for entry of judgment in recordable form, following the State's tender of payment as described above, declaring Denise and Phoenix have no interest in these State lands and adjudging the State the owner of each parcel in fee simple.

STEPHAN LANZO, III, ET AL. VS. CYPRUS AMAX MINERALS COMPANY, ET AL. (L-7385-16, MIDDLESEX COUNTY AND STATEWIDE) (CONSOLIDATED) (A-5711-17

 STEPHAN LANZO, III, ET AL. VS. CYPRUS AMAX MINERALS COMPANY, ET AL. (L-7385-16, MIDDLESEX COUNTY AND STATEWIDE) (CONSOLIDATED) (A-5711-17/A-5717-17)

Plaintiff Stephen Lanzo III filed a complaint alleging he contracted mesothelioma due to his long-term use of talc products that contained asbestos. His spouse asserted a claim for the loss of her husband's services, society, and consortium. The case was tried before a jury, which returned a verdict against defendants Johnson & Johnson Consumer, Inc. (JJCI), and Imerys Talc America, Inc. (Imerys).

We reverse the judgment and remand the matter to the trial court for new, separate trials against JJCI and Imerys. We conclude the trial court erred by permitting plaintiffs' experts to testify that non-asbestiform mineral fragments can cause mesothelioma because the experts' theory was not generally accepted in the scientific community and lacked support in a publication reasonably relied upon by other experts in the field.

We also conclude the trial court did not mistakenly exercise its discretion by providing an adverse inference instruction to the jury based on Imerys' discovery violations and failure to retain relevant evidence. We decided, however, that the trial court erred by failing to sever the claims against JJCI because the adverse inference instruction was unduly prejudicial to JJCI, which had no role in the discovery violations or the spoliation of evidence.

Sunday, April 25, 2021

BOARD OF EDUCATION OF EAST NEWARK, ETC. VS. KEVIN D. HARRIS, ET AL. (L-1134-21, HUDSON COUNTY AND STATEWIDE) (A-1982-20

 BOARD OF EDUCATION OF EAST NEWARK, ETC. VS. KEVIN D. HARRIS, ET AL. (L-1134-21, HUDSON COUNTY AND STATEWIDE) (A-1982-20)

This matter arises out of an emergent application by the Borough Clerk of East Newark. The court granted him permission to file a motion on short notice to stay, pending appeal, the trial court's order directing the Borough to place a ballot question to reclassify East Newark from a Type I to a Type II school district on an April 20, 2021 special election ballot even though the Borough was not conducting an election on that day.

Following receipt of the motion briefs in which the parties addressed the merits and not the standard for stay pending appeal, the court exercised its authority under Rule 2:8-3(b) to decide the case summarily. Because N.J.S.A. 18A:9-5 permits a reclassification question in a Type I district to be presented to voters only "at the next municipal or general election," and the April 20 special school election is neither, the court reversed and remanded for dismissal of the School Board's complaint.