MYRNA B. TAGAYUN AND ROBERT S. MANDELL v. AMERICHOICE OF NEW JERSEY, INC., ET AL. A-1628-13T1

MYRNA B. TAGAYUN AND ROBERT S. MANDELL v. AMERICHOICE OF NEW JERSEY, INC., ET AL. 

A-1628-13T1 (NEWLY PUBLISHED) 

In this matter the trial court awarded counsel fees against two pro se plaintiffs for the filing of two complaints, pursuant to N.J.S.A. 2A:15-59.1(a)(1) and Rule 1:4-8(a), which allow an award of counsel fees when a pleading filed by a non-prevailing party is frivolous. When the original complaint was dismissed by the court as lacking merit, the plaintiffs filed both a second complaint and an appeal. We concluded the award of counsel fees was appropriate for the filing of the second complaint, but not for the first complaint. 

We explain the history of the frivolous pleading sanctions and the need to strictly construe the term "frivolous" to avoid litigants becoming afraid to access the courts because of a fear they may be sanctioned if they pursue a good faith, but misguided claim. 

Ramon Cuevas v. Wentworth Group (A-30-14;

Ramon Cuevas v. Wentworth Group (A-30-14; 075077) 

A judge should not rely on personal knowledge of other verdicts or comparative-verdict methodology when deciding a remittitur motion. In this case, the trial judge did not rely on personal knowledge of other verdicts or comparable verdicts presented by the parties in deciding the remittitur motion, but rather on the record before her. The denial of remittitur here conforms to the deferential standard of review of a jury’s award of damages. 

LEONIDES VELAZQUEZ VS. CITY OF CAMDEN AND OFFICER ALEXIS RAMOS A-4627-13T4

LEONIDES VELAZQUEZ VS. CITY OF CAMDEN AND OFFICER ALEXIS RAMOS
A-4627-13T4
We reverse the no-cause verdict in this New Jersey Civil Rights Act action brought by the victim of a police shooting against a Camden police officer and the involuntary dismissal of the case against the officer's employer, City of Camden, on the basis of two critical evidentiary errors.
First, the trial court, over plaintiff's objection, permitted an assistant prosecutor who headed the homicide unit to testify that after reviewing the investigation of the shooting, he determined not to criminally prosecute the officer. The obvious import of that testimony was that the prosecutor believed the officer's shooting of plaintiff was a justifiable use of force. We conclude the assistant prosecutor's opinion was clearly inadmissible under the lay opinion rule, N.J.R.E. 701, and because the jury could very well "have ascribed almost determinative significance to that opinion," Neno v. Clinton, 167 N.J. 573, 587 (2001), the error could not be considered harmless.
Second, the trial court barred plaintiff from making any reference to the officer's mental health records, reasoning that because excessive force claims are analyzed under the Fourth Amendment's "objective reasonableness" standard, the officer's subjective state of mind was irrelevant to whether his use of force was objectively reasonable under the circumstances. Plaintiff, however, never sought to use the records to challenge the officer's subjective motivation in firing on him. Instead, plaintiff sought to use the records to challenge the officer's perceptions and his ability to make observations, a classic use of extrinsic evidence to impugn a witness's credibility under N.J.R.E. 607.
We conclude that interpreting the "objective reasonableness" standard for evaluating excessive force claims so expansively as to preclude a cross-examiner from probing whether the officer's psychiatric symptoms affected his ability to accurately perceive the events giving rise to the claim, was error. Because the ruling severely prejudiced plaintiff in his ability to prove his excessive force claim against the officer and gutted his Monell claim against the City, we reverse the verdicts in defendants' favor and remand for a new trial. 

LISA LOMBARDI VS. ANTHONY A. LOMBARDI A-3624-13T1

LISA LOMBARDI VS. ANTHONY A. LOMBARDI
          A-3624-13T1

This appeal required us to address the calculation of alimony where the parties relied on only a fraction of their household income to pay their monthly expenses and regularly saved the balance during the course of their marriage. It is well-established that the accumulation of reasonable savings should be included in alimony to protect the supported spouse against the loss of alimony. See Jacobitti v. Jacobitti, 135 N.J. 571, 582 (1994); Martindell v. Martindell, 21 N.J. 341, 354 (1956); Davis v. Davis, 184 N.J. Super. 430, 437 (App. Div. 1982). In this case, we considered whether the parties' history of regular savings as part of their marital lifestyle requires the inclusion of savings as a component of alimony even when the need to protect the supported spouse does not exist.
The Family Part found that the monthly savings were part of the marital lifestyle, but excluded the amount from its calculation of alimony because savings were not necessary to ensure future payment of alimony. We disagreed with the court's decision and held that regular savings must be considered in a determination of alimony, even when there is no need to create savings to protect the future payment of alimony. 

E & J Equities v. Board of Adjustment of the Township of Franklin (A-40-14

E & J Equities v. Board of Adjustment of the Township
of Franklin (A-40-14; 075207)

A digital billboard, as a form of communication, is
subject to the protections afforded to speech under
the First Amendment to the United States Constitution
and the New Jersey Constitution.  To the extent that a
municipality seeks to restrict billboards, the
regulation must find support in the governmental
interests that the municipality seeks to protect or
advance.  Although the Township relied upon aesthetic
and public safety concerns in banning digital
billboards, while permitting static billboards in
designated zones, the record fails to demonstrate that
the ban furthers the governmental interests that the
Township asserts.  The ordinance ban on digital
billboards is therefore unconstitutional.

LISA LOMBARDI VS. ANTHONY A. LOMBARDI A-3624-13T1

LISA LOMBARDI VS. ANTHONY A. LOMBARDI
          A-3624-13T1

This appeal required us to address the calculation of alimony where the parties relied on only a fraction of their household income to pay their monthly expenses and regularly saved the balance during the course of their marriage. It is well-established that the accumulation of reasonable savings should be included in alimony to protect the supported spouse against the loss of alimony. See Jacobitti v. Jacobitti, 135 N.J. 571, 582 (1994); Martindell v. Martindell, 21 N.J. 341, 354 (1956); Davis v. Davis, 184 N.J. Super. 430, 437 (App. Div. 1982). In this case, we considered whether the parties' history of regular savings as part of their marital lifestyle requires the inclusion of savings as a component of alimony even when the need to protect the supported spouse does not exist.
The Family Part found that the monthly savings were part of the marital lifestyle, but excluded the amount from its calculation of alimony because savings were not necessary to ensure future payment of alimony. We disagreed with the court's decision and held that regular savings must be considered in a determination of alimony, even when there is no need to create savings to protect the future payment of alimony. 

RACHEL KRANZ, ET AL. VS. STEVEN SCHUSS, M.D., ET AL. A-4918-13T1

 RACHEL KRANZ, ET AL. VS. STEVEN SCHUSS, M.D., ET AL. 

A-4918-13T1 

Represented by her mother as guardian ad litem, infant-plaintiff settled a malpractice action brought in New York that alleged her attending New York medical providers failed to timely diagnose her hip dysplasia, resulting in subsequent surgeries and the increased risk of arthritis in her hip. The New York court approved a structured settlement of $2 million. 

Plaintiff commenced suit in New Jersey, against the pediatrician and his practice group who began treating plaintiff after the family moved to New Jersey, when plaintiff was one-year old. Defendants successfully moved in limine for a pro tanto $2 million credit against any judgment entered in favor of plaintiff in the New Jersey action. 

We reversed. Examining the Joint Tortfeasors Contribution Law, and the Comparative Negligence Act, we concluded that even though the settling New York defendants were not, and, because of lack of personal jurisdiction, could not be "parties" to the New Jersey suit, defendants were not entitled to a pro tanto credit. Rather, defendants were only entitled to contribution, i.e., a reduction of any award against them by the amount of fault allocated by the jury to the settling New York defendants. 

NORTH JERSEY MEDIA GROUP INC., D/B/A COMMUNITY NEWS VS. BERGEN COUNTY PROSECUTOR'S OFFICE, ET AL. A-2393-13T3

NORTH JERSEY MEDIA GROUP INC., D/B/A COMMUNITY NEWS VS. BERGEN COUNTY PROSECUTOR'S OFFICE, ET AL. 

A-2393-13T3 

A news organization requested records from a prosecutor's office regarding a person who was not charged with any crime pursuant to the Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to -13, and the common law right of access. In this matter of first impression, we must determine whether the prosecutor's refusal to confirm or deny the existence of responsive records was permissible under OPRA and the common law or a violation thereof. We hold that an agency may "neither confirm nor deny" the existence of records in response to an OPRA request when the agency (1) relies upon an exemption authorized by OPRA that would itself preclude the agency from acknowledging the existence of such documents and (2) presents a sufficient basis for the court to determine that the claimed exemption applies. Because records relating to a person who has not been arrested or charged with an offense are entitled to confidentiality based 

upon long-established judicial precedent, an exemption exists under N.J.S.A. 47:1A-9(b) that precludes a custodian of records from disclosing whether such records exist in response to an OPRA request. We further conclude that the prosecutor's office made a sufficient showing to avail itself of this exemption and that access is also properly denied under the common law right of access. 

MIDLAND FUNDING LLC VS. ALISA JOHNSON A-5797-13T2/

MIDLAND FUNDING LLC VS. BRUCE THIEL/ 

MIDLAND FUNDING LLC VS. LUISA ACEVEDO/ 

MIDLAND FUNDING LLC VS. ALISA JOHNSON 

A-5797-13T2/A-0151-14T1/A-0152-14T1(CONSOLIDATED) 

In these three consumer debt collection actions, we hold that the statute of limitations applicable to an action filed to collect debts arising from a customer's use of a retail store's credit card, which use is restricted to the specific store, is the four-year statute of limitations that governs contracts relating to the sale of goods, N.J.S.A. 12A:2-725, rather than the six-year statute of limitations that governs most contractual claims, N.J.S.A. 2A:14-1. We also hold that if an action is filed after the expiration of the four-year period, the Fair Debt Collection Practices Act (FDCPA), 15 U.S.C.A. §§ 1692 to 1692p, requires an award of statutory damages and costs, absent a showing that the action was filed due to a "bona fide error" under the act.