ALFRED LAWSON VS. OFFICER JEFF DEWAR, ET AL. (L-8788-20, MIDDLESEX COUNTY AND STATEWIDE) (A-2443-20)

 ALFRED LAWSON VS. OFFICER JEFF DEWAR, ET AL. (L-8788-20, MIDDLESEX COUNTY AND STATEWIDE) (A-2443-20)

The court granted leave to appeal and summarily vacated an order that denied reconsideration of an earlier interlocutory order because the judge invoked the "palpably incorrect" standard, which applies only to Rule 4:49-2 motions to alter or amend a final judgment or final order, instead of the more liberal standard of Rule 4:42-2, which declares that interlocutory orders "shall be subject to revision at any time before the entry of final judgment in the sound discretion of the court in the interest of justice." The court also found the judge erred by giving undue deference to the prior judge's interlocutory order and by applying the law of the case doctrine, which has no bearing in this setting.

In remanding, the court provided guidance about the prior order that precluded a non-party, who failed to appear for a subpoenaed deposition, from testifying at trial. The court observed that the first judge had applied Rule 4:23-2, which applies only to parties, instead of Rule 1:9-5, which applies when a non-party fails to honor a subpoena. The court directed that the trial judge, in ruling on the reconsideration motion, consider how the latter rule's purpose is to secure the non-party's compliance with the subpoena, not to hamper the trial's search for the truth by eliminating the non-party's potentially relevant testimony.

PREMIER PHYSICIAN NETWORK, LLC VS. ROBERT MARO, JR., M.D., ET AL. (L-0166-18 AND L-0167-18, CAMDEN COUNTY AND STATEWIDE) (A-1152-20)

 PREMIER PHYSICIAN NETWORK, LLC VS. ROBERT MARO, JR., M.D., ET AL. (L-0166-18 AND L-0167-18, CAMDEN COUNTY AND STATEWIDE) (A-1152-20)

Plaintiff, a limited liability company (LLC), sued defendants, alleging they had been members of plaintiff, were bound by an operating agreement they had not signed, and, under the terms of the operating agreement, owed plaintiff shortfall amounts and penalties when they voluntarily left plaintiff. The trial court summarily determined defendants were bound by the operating agreement, relying primarily on N.J.SA. 42:2C-12(b), which states "[a] person that becomes a member of a limited liability company is deemed to assent to the operating agreement."

Considering the definition of operating agreement set forth in N.J.S.A. 42:2C-2 and the language of N.J.S.A. 42:2C-12(b), the court held a draft operating agreement does not become the operating agreement of an LLC unless it is "the agreement . . . of all the members of" the LLC, N.J.S.A. 42:2C-2, meaning "all the members" have to agree to it. If all existing members do not agree to the draft agreement when it is proposed, then the draft operating agreement remains a draft agreement and does not become the operating agreement of the LLC. If all members agree to a draft operating agreement, it then becomes the operating agreement of the LLC and any subsequent members are bound by the already-existing operating agreement. Because the trial court misinterpreted statutory law, the court reversed the partial summary judgment entered in plaintiff's favor.

IN THE MATTER OF THE CIVIL COMMITMENT OF J.S. (SVP-24-99, ESSEX COUNTY AND STATEWIDE) (RECORD IMPOUNDED) (A-0625-19)

 IN THE MATTER OF THE CIVIL COMMITMENT OF J.S. (SVP-24-99, ESSEX COUNTY AND STATEWIDE) (RECORD IMPOUNDED) (A-0625-19)

J.S. challenged an order continuing his civil commitment to the Special Treatment Unit under the Sexually Violent Predators Act, N.J.S.A. 30:4-27.24 to -27.38 on grounds his trial counsel provided ineffective assistance. The court affirmed the order of commitment and held that a litigant subject to a civil commitment may raise claims of ineffective assistance of counsel. The court also held that such claims may be raised on appeal from the commitment order or an order continuing commitment. However, the record must be sufficient to address the claims. Otherwise, the claims of ineffective assistance of counsel must be raised to the trial court in the first instance.

BONNIE MARIE COTTRELL, ETC. VS. NATHAN HOLTZBERG, M.D, ET AL. (L-5557-16, MIDDLESEX COUNTY AND STATEWIDE) (A-3976-19)

 BONNIE MARIE COTTRELL, ETC. VS. NATHAN HOLTZBERG, M.D, ET AL. (L-5557-16, MIDDLESEX COUNTY AND STATEWIDE) (A-3976-19)

Defendant Bey Lea Village Care Center owned and operated a nursing facility where Maryann Cottrell was a patient. She signed an arbitration agreement upon her admission in 2017, was there for twenty days and discharged. She was admitted to Bey Lea again in early 2018 where she resided for ten months until her death. Maryann Cottrell did not sign an arbitration agreement for the 2018 admission. While she was a resident in 2018, Bey Lea sold the nursing facility to defendant Complete Care at Bey Lea, LLC. Defendants claim the 2017 arbitration agreement applies to the 2018 admission.

The court affirms the order denying arbitration of issues arising from the 2018 admission. The court concludes there was no arbitration agreement for the 2018 admission and the 2017 agreement did not apply. Although the 2017 arbitration agreement included a clause delegating to an arbitrator the ability to decide "gateway disputes regarding the enforceability, validity, severability and/or interpretation" of the arbitration agreement, it was for a judge —not an arbitrator— to decide whether the 2017 arbitration agreement applied to the 2018 admission. The 2017 agreement did not apply because Maryann Cottrell did not assent to arbitrate disputes about the 2018 admission.

JONATHAN JEFFREY VS. STATE OF NEW JERSEY, ET AL. (L-1007-18, UNION COUNTY AND STATEWIDE) (A-1187-18)

 JONATHAN JEFFREY VS. STATE OF NEW JERSEY, ET AL. (L-1007-18, UNION COUNTY AND STATEWIDE) (A-1187-18)

Plaintiff was severely injured in a one-vehicle motorcycle accident and was diagnosed with quadriplegia. He claims the EMTs who responded to the accident scene caused or exacerbated his injuries by the way they picked him up from the ground and placed him in the ambulance. Plaintiff appeals from the order of Law Division that denied his motion for leave to file a late notice of claim under the Tort Claims Act.

N.J.S.A. 59:8-8 requires a claimant to file a notice of claim within ninety days of its accrual. This court holds the Law Division mistakenly exercised its discretion by not giving proper consideration to the traumatic ramifications of the catastrophic, life-altering injuries plaintiff suffered in this accident. Under the standard established by the Supreme Court in S.E.W. Friel Co. v. New Jersey Turnpike Auth., 73 N.J. 107, 122 (1977), these facts are sufficient to constitute "extraordinary circumstances" pursuant to N.J.S.A. 59:8-9.

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.

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.