D.M.C. VS. K.H.G. (FM-15-1271-16, OCEAN COUNTY AND STATEWIDE) (RECORD IMPOUNDED) (A-1326-20)

 D.M.C. VS. K.H.G. (FM-15-1271-16, OCEAN COUNTY AND STATEWIDE) (RECORD IMPOUNDED) (A-1326-20)

During the parties' divorce proceedings defendant was declared incapacitated due to a breakdown and multiple psychiatric hospitalizations. Following an investigation and filing of a complaint in the Probate Part by the guardian ad litem, the parties' adult children were appointed as co-guardians for defendant. The guardians, assisted by the guardian ad litem and an experienced divorce attorney, settled the case, and entered a comprehensive PSA.

Nearly two years after the divorce, the Probate Part deemed defendant competent and dissolved the guardianship. Approximately one year after dissolution of the guardianship defendant filed a Rule 4:50-1(f) motion to declare the PSA invalid. She argued her children should not have been appointed co-guardians because they were financially dependent on plaintiff and controlled by him and engaged in misconduct. The Family Part judge denied the motion.

On appeal, the court held the appointment of a party's adult child to serve as their guardian in a divorce proceeding pursuant to Rule 4:26-2(a) does not in itself render the subsequent settlement of the case unconscionable. The party seeking to undo the settlement must demonstrate misconduct by the guardian and that the settlement is unconscionable.

MARC RUSSI VS. CITY OF NEWARK, ET AL. (L-5182-19, ESSEX COUNTY AND STATEWIDE) (A-1064-20)

 MARC RUSSI VS. CITY OF NEWARK, ET AL. (L-5182-19, ESSEX COUNTY AND STATEWIDE) (A-1064-20)

While plaintiff was driving his car on a road owned by Passaic County, a falling tree limb struck his car, causing him to suffer significant injuries. The tree with the broken limb was located in a 35,000 acre conservation easement owned by the City of Newark. The trial judge granted summary judgment to the City relying, in part, on the Landowner's Liability Act (LLA), N.J.S.A. 2A:42A-1 to -10. The judge also granted summary judgment to Passaic County, which had been sued under the Tort Claims Act.

The court held N.J.S.A. 2A:42A-8.1 of the LLA, entitled "[l]iability to persons injured on premises with conservation restriction," precluded the imposition of liability against the City. The statute provides immunity to an owner of premises on which "a conservation restriction is held by the State, [or] a local unit . . . and upon which premises subject to the conservation restriction public access is allowed, or of premises upon which public access is allowed pursuant to a public pathway or trail easement held by the State, [or] a local unit . . . ."

Because plaintiff's car travelled on a road providing public access and serving as a public pathway and the tree with the fallen limb stood within a conservation easement, the City was entitled to immunity under the LLA. The County likewise was properly granted summary judgment because the alleged dangerous condition was not on its property. N.J.S.A. 59:4-2.

IN THE MATTER OF THE APPLICATION OF T.I.C.-C. TO ASSUME THE NAME OF A.B.C.-C. (L-1330-20, MERCER COUNTY AND STATEWIDE) (RECORD IMPOUNDED) (A-1706-20)

 IN THE MATTER OF THE APPLICATION OF T.I.C.-C. TO ASSUME THE NAME OF A.B.C.-C. (L-1330-20, MERCER COUNTY AND STATEWIDE) (RECORD IMPOUNDED) (A-1706-20)

Appellant A.B.C.-C. is a transgender man who sought to change his name to conform his identification documents with his gender identity. As part of his application, appellant submitted evidence showing transgender people are subject to a particularized threat to their safety based upon their identity and asked that the record of his name change be sealed to protect him from such discrimination and violence. The trial court denied appellant's request. Because appellant demonstrated good cause to seal the record, the court reversed the trial court's denial of appellant's motion, ordered that the record be sealed, and remanded for any necessary further proceedings.

GILBERT ANTONUCCI VS. CURVATURE NEWCO, INC., ET AL. (L-1034-20, GLOUCESTER COUNTY AND STATEWIDE) (A-1983-20)

 GILBERT ANTONUCCI VS. CURVATURE NEWCO, INC., ET AL. (L-1034-20, GLOUCESTER COUNTY AND STATEWIDE) (A-1983-20)

Plaintiff appeals from an order compelling arbitration and dismissing with prejudice his discrimination complaint against his former employer and two of its employees. This appeal presents an issue of first impression in this court: whether the Federal Arbitration Act (FAA), 9 U.S.C. §§ 1-16, pre-empts a 2019 amendment, adding N.J.S.A. 10:5-12.7 (Section 12.7), to New Jersey's Law Against Discrimination (LAD). Section 12.7 prohibits the waiver of procedural and substantive rights under LAD. The court holds that the arbitration agreement is enforceable, and that the FAA pre-empts Section 12.7 of LAD when applied to an arbitration agreement governed by the FAA. The court affirms the portion of the order compelling arbitration, but remands for entry of a new order that stays the litigation pending the arbitration.

OLIVIA CHECCHIO, ET AL. VS. EVERMORE FITNESS, LLC, ET AL. (L-7065-20, MIDDLESEX COUNTY AND STATEWIDE) (A-3461-20)

 

OLIVIA CHECCHIO, ET AL. VS. EVERMORE FITNESS, LLC, ET AL. (L-7065-20, MIDDLESEX COUNTY AND STATEWIDE) (A-3461-20) In August 2018, fourteen-year-old Olivia Checchio went to Sky Zone South Plainfield—an indoor trampoline park—with four friends and Gina Valenti—the mother of one of the children. Upon arrival at the park, Valenti signed an agreement that included an arbitration provision, under which the signing adult on behalf of the minor child waived a jury trial and agreed to arbitrate any dispute or claim arising out of the child's use of the Sky Zone premises. The trial court, relying on this court's recent decision in Gayles v. Sky Zone Trampoline Park, 468 N.J. Super. 17, 21-22 (App. Div. 2021), denied defendants' motion to dismiss the complaint and compel arbitration. Defendants moved for reconsideration, producing for the first time five agreements signed by Olivia's mother, Lisa, when she took Olivia to the park in 2016. Defendants asserted Gayles was distinguishable from the circumstances here because the 2016 agreements demonstrated a pattern of prior conduct, and, therefore, establish apparent authority. The court noted the 2016 agreements contained different language than the 2018 agreement. The 2016 agreements did not vest Valenti with the authority to enter into the 2018 agreement or any future agreement on Olivia's behalf. Nor did the 2016 agreements manifest any understanding on Lisa's part that Valenti or any other adult could sign a future waiver agreement in the place of Lisa or on Olivia's behalf. The court found there was no evidence demonstrating that Lisa would have signed the 2018 agreement. And, Lisa's prior execution of the 2016 agreements did not establish a pattern that she would authorize another person to sign an agreement on behalf of her daughter. Therefore, the court held the 2016 agreements did not establish Valenti had apparent authority to waive Olivia's trial rights under the 2018 agreement.

NEW JERSEY STATE POLICEMEN'S BENEVOLENT ASSOCIATION VS. PHILIP D. MURPHY, ETC. NEW JERSEY SUPERIOR OFFICERS LAW ENFORCEMENT ASSOCIATION VS. PHILIP D. MURPHY, ETC. (EXECUTIVE ORDER NO. 283) (CONSOLIDATED) (A-1525-21

 NEW JERSEY STATE POLICEMEN'S BENEVOLENT ASSOCIATION VS. PHILIP D. MURPHY, ETC. NEW JERSEY SUPERIOR OFFICERS LAW ENFORCEMENT ASSOCIATION VS. PHILIP D. MURPHY, ETC. (EXECUTIVE ORDER NO. 283) (CONSOLIDATED) (A-1525-21/A-1548-21)

Appellants challenge the Governor's Executive Order 283, which imposes a COVID-19 vaccination mandate for, among others, the State's corrections officers. The court held that the Civilian Defense and Disaster Control Act, N.J.S.A. App. A:9-33 to -63, empowered the Governor to issue the order and that the order's vaccination mandate was rationally and adequately tailored to the problem posed.

WOODMONT PROPERTIES, LLC VS. TOWNSHIP OF WESTAMPTON, ET AL. (L-2494-18, BURLINGTON COUNTY AND STATEWIDE) (A-4453-19)

 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.

Graphnet, Inc. v. Retarus, Inc. (085529) (Hudson County & Statewide) (A-71-20

 Graphnet, Inc. v. Retarus, Inc. (085529) (Hudson County & Statewide) (A-71-20; 085529)

As the Appellate Division found, remittitur was improper without Graphnet’s consent. But this matter requires a new trial on all damages in which the jury is properly instructed on actual and nominal damages. The Court also refers Model Civil Jury Charge 8.46D to the Committee on Model Civil Jury Charges to be amended.

Thomas J. Stewart v. New Jersey Turnpike Authority/Garden State Parkway (085416) (Monmouth County & Statewide) (A-61/62-20

 Thomas J. Stewart v. New Jersey Turnpike Authority/Garden State Parkway (085416) (Monmouth County & Statewide) (A-61/62-20; 085416)

The Court agrees with the trial court that plaintiffs’ new theory should not have been considered given its late presentation. The Court nonetheless holds, for completeness, that plaintiffs’ new theory did not raise an issue of material fact. The Court reinstates summary judgment in favor of defendants and dismisses the complaint with prejudice. The Court also finds that Earle is entitled to derivative immunity.

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

 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.

SHAWN LABEGA VS. HETAL C. JOSHI, M.D., ET AL. (L-3088-18, MIDDLESEX COUNTY AND STATEWIDE) (CONSOLIDATED) (A-3399-20

 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.