New Jersey Superior Court, Appellate Division - Unpublished Opinions Decisions 2018
Opinions 1501 - 2000 of 2104
LIBERTARIANS FOR TRANSPARENT GOVERNMENT v. WILLIAM PATERSON UNIVERSITY
Date: April 12, 2018
Docket Number: a2570-16
Date: April 12, 2018
Docket Number: a2570-16
DIRECT COAST TO COAST, LLC v. DOOR TO DOOR COURIER SERVICE LLC
Date: April 12, 2018
Docket Number: a3820-16
Date: April 12, 2018
Docket Number: a3820-16
J.C. v. DIVISION OF MEDICAL ASSISTANCE AND HEALTH SERVICES
Date: April 11, 2018
Docket Number: a0775-15
Date: April 11, 2018
Docket Number: a0775-15
WILLIAM WESTPHAL v. BOARD OF TRUSTEES, POLICE AND FIREMAN'S RETIREMENT SYSTEM
Date: April 11, 2018
Docket Number: a4911-15
Date: April 11, 2018
Docket Number: a4911-15
YURIKO ANDERSON v. K. HOVNANIAN AT PORT IMPERIAL URBAN RENEWAL II, LLC
Date: April 11, 2018
Docket Number: a5209-15
Date: April 11, 2018
Docket Number: a5209-15
A.S. v. DIVISION OF MEDICAL ASSISTANCE AND HEALTH SERVICES
Date: April 10, 2018
Docket Number: a0276-15
Date: April 10, 2018
Docket Number: a0276-15
MICHELE M. JELLEY v. BOARD OF REVIEW, DEPARTMENT OF LABOR
Date: April 10, 2018
Docket Number: a0583-16
Date: April 10, 2018
Docket Number: a0583-16
STATEOF NEW JERSEY v. MARLIN SCHNEEBERGER STATE OF NEW JERSEY v. MARYELLEN SCHNEEBERGER
Date: April 10, 2018
Docket Number: a2220-16a229 PER CURIAM Defendants Marlin Schneeberger and Maryellen Schneeberger appeal from their Law Division convictions for the disorderly persons offense of obstructing the administration of law, N.J.S.A. 2C:29-1(a), for which they were each sentenced to pay $158 in fines and costs.1 In deciding Marlin's case, the court did not make its own factual findings but instead improperly relied on the findings of the municipal court. Accordingly, we vacate Marlin's conviction and sentence and remand her case to the Law Division for reconsideration and independent factual findings. 1 Defendants were tried together in the municipal court and their Law Division appeals were heard at the same time. Therefore, we have consolidated the appeals for purposes of this opinion. Intending no disrespect, we will refer to defendants by their first names because they share the same last name. 2 A-2220-16T2 In deciding Maryellen's case, the Law Division made its own clear and specific factual findings, which are supported by substantial credible evidence. We affirm Maryellen's conviction. I The convictions arose from defendants' dispute with a neighboring restaurant over the latter's use of a construction crane in the parties' shared driveway. Defendants were initially charged with multiple offenses, primarily based on their alleged conduct after the police arrived on the scene. However, defendants were acquitted of all charges except obstruction. Therefore, we will focus our factual discussion on the events relevant to the obstruction charges. The police were initially dispatched to the scene based on a 9-1-1 call reporting that an irate woman was tearing down some "no parking" signs on Warren Avenue and interfering with a construction crane.2 When they arrived, an officer observed Marlin standing next to a green car, which was parked in the designated "no parking" area, and he observed that one of the parking signs had been torn down. Her car was also blocking a construction crane from entering the driveway and reaching the neighboring restaurant premises. According to the police, Marlin appeared to be acting 2 Officer Cantrell had previously posted the no parking signs, specifically to enable the crane to enter the construction site. 3 A-2220-16T2 in an "irrational" manner, but she eventually moved her car at the direction of the police. Marlin then insisted on calling 9-1-1, although the police had previously warned her not to do so because they were already present. After she called 9-1-1, the police attempted to place Marlin under arrest for creating a false public alarm. The State presented evidence that Marlin refused to put her hands behind her back to be handcuffed, flailed her arms, and otherwise actively resisted, requiring the police to use some degree of force to subdue her. The defense version was that Marlin was distraught because she believed the crane was not lawfully permitted to use the driveway, and she was upset that the police were not protecting her property rights. Defendants contended that the police were rude and abusive, Marlin called 9-1-1 because she was afraid of them, and Marlin did not intentionally resist arrest or otherwise obstruct the police. The defense presented testimony that Marlin was physically disabled and could not put her arms behind her back to be handcuffed. The relevant evidence against Maryellen was brief. Through the testimony of police officers, and through a videotape, the State presented evidence that Maryellen, who was Marlin's daughter, attempted to physically prevent the police from 4 A-2220-16T2 arresting Marlin. The State presented testimony that, despite her brother's efforts to restrain her from interfering, Maryellen "drape[d] herself over [the arresting officer's] back" and started scratching his arm and back. Maryellen denied assaulting the officer. She asserted that she was only trying to talk to him, to convince him that her mother was disabled and could not put her hands behind her back. Her brother and Marlin corroborated that testimony. In addition to the testimony, both sides referred to the video of the incident. II On an appeal of a municipal conviction to the Law Division, the Law Division judge must decide the matter de novo on the record. State v. Adubato, 420 N.J. Super. 167, 176 (App. Div. 2011). This means that the Law Division judge must independently make his or her own factual findings, rather than determining whether the findings of the municipal judge were supported by sufficient credible evidence. See ibid.; State v. Johnson, 42 N.J. 146, 157 (1964). However, in making findings about witness credibility, the Law Division judge should give "due" but "not necessarily controlling" weight to the municipal judge's credibility determinations, because the municipal judge had the opportunity to observe the testimony firsthand. Adubato, 420 N.J. Super. at 176 (quoting Johnson, 42 N.J. at 157). 5 A-2220-16T2 When we review the Law Division judge's decision, our standard is different. We do not decide the facts de novo. Rather we decide whether the Law Division judge's factual findings are supported by sufficient credible evidence. Adubato, 420 N.J. Super. at 176; State v. Locurto, 157 N.J. 463, 470-71 (1999). Where both the municipal judge and the Law Division judge have found a witness credible, we owe particularly strong deference to the Law Division judge's credibility finding. Id. at 474. We review the Law Division judge's legal conclusions de novo. See State v. Rivera, 411 N.J. Super. 492, 497 (App. Div. 2010). III On her appeal, Marlin Schneeberger presents the following points of argument: POINT I: THE COURT BELOW ERRED IN FINDING MRS. SCHNEEBERGER GUILTY OF OBSTRUCTING THE ADMINISTRATION OF LAW. POINT II: MRS. SCHNEEBERGER'S STATEMENTS WERE IMPROPERLY ADMITTED INTO EVIDENCE BECAUSE THERE WAS NO RULE 104 HEARING AND THE STATE FAILED TO NOTIFY DEFENSE COUNSEL BEFORE TRIAL THAT IT INTENDED TO ADMIT SAID STATEMENTS. POINT III: THE COURT BELOW FAILED TO REMEDY A CONFLICT OF INTEREST DESPITE ACKNOWLEDGING SAID CONFLICT. Defendant's last two points are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). However, we find the first point has merit and requires a remand. 6 A-2220-16T2 With respect to the obstruction charge against Marlin, the Law Division judge did not make the independent factual findings required on a municipal appeal. She stated that her standard of review was de novo, but then indicated that the purpose of the municipal appeal was "to determine whether the findings could reasonably have been reached on sufficient credible evidence presented on the record." In specifically addressing the obstruction charge, the Law Division judge made the following very brief statement: I don't find that the [municipal] court erred here beyond a reasonable doubt in finding the defendant guilty of this charge because once the officers say you're under arrest, even if they charged her, even if they're wrong, her only option at that point is to say fine, I'm going with you and I'll deal with it at a later date. By not doing that, she did obstruct the administration of law and . . . I am finding her guilty on that charge. That was insufficient for two reasons. First, the judge was required to make independent factual and legal findings, not decide whether the municipal judge's decision "erred . . . beyond a reasonable doubt." Second, the judge did not make specific findings as to what Marlin actually did, so as to constitute obstruction. That deficiency probably resulted from the mistaken 7 A-2220-16T2 belief that, as to Marlin, the judge could rely on the findings of the municipal judge. Because the Law Division did not conduct the review legally required on a municipal appeal, we are constrained to vacate Marlin's conviction and the sentence. We remand the case back to the Law Division to make a genuinely de novo review, using the correct legal standards and making independent, specific factual findings. We imply no view as to the result the Law Division should reach on remand. IV On her appeal, Maryellen Schneeberger raises the following points of argument: POINT ONE: THIS COURT SHOULD REVERSE THE GUILTY FINDING ON COMPLAINT NO 2015 S 2014- 000167 BECAUSE THE RULINGS OF THE LAW DIVISION ARE FATALLY INCOMPATIBLE. POINT TWO: THE EVIDENCE PRESENTED IS NOT SUFFICIENT TO SUPPORT THE LAW DIVISION'S FINDING THAT MARYELLEN SCHNEEBERGER OBSTRUCTED THE ADMINISTRATION OF LAW PURSUANT TO N.J.S.A. 2C:29-1(A). We find no merit in either point, because with respect to Maryellen's case, the Law Division made an independent review and made specific factual findings sufficient to sustain the conviction. A discussion of the municipal and Law Division findings illustrates our conclusions. 8 A-2220-16T2 Addressing the charges against Maryellen, the municipal judge found that the police officers were credible witnesses and that the video corroborated their testimony that Maryellen jumped on the arresting officer's back and attempted to obstruct the arrest of her mother. The municipal judge also found that Maryellen scratched the arresting officer and therefore assaulted him. The Law Division judge also credited the police officers' version of the events with respect to the obstruction charge against Maryellen. She found that the video showed Maryellen "did jump on the officer," thus corroborating the officer's testimony. Based on her evaluation of the evidence, the Law Division judge made specific factual findings to that effect. However, unlike the municipal judge, the Law Division judge found insufficient evidence that Maryellen scratched the officer. For that reason, the judge acquitted Maryellen of simple assault, but convicted her of obstruction. The Law Division's factual findings are supported by sufficient credible evidence.3 We owe particular deference to her 3 Appellants did not provide us with the video or any other trial exhibits. At oral argument, Maryellen's attorney candidly stated that although he did not share the Law Division judge's interpretation of the video, he conceded that one might construe it the way she did. As our Supreme Court has reminded us, it is not our role to second-guess a trial judge's interpretation of a video. See State v. S.S., 229 N.J. 360, 386 (2017). 9 A-2220-16T2 finding that the police were credible, because the municipal judge made the same credibility finding. Locurto, 157 N.J. at 474. Contrary to defendant's argument, the acquittal on the separate assault charge, which was premised on defendant allegedly scratching the officer, did not fatally undermine the obstruction conviction. Among other acts, the obstruction statute prohibits purposely attempting "to prevent a public servant from lawfully performing an official function by means of . . . force . . . or physical interference or obstacle." N.J.S.A. 2C:29-1(a). Jumping on the officer's back in order to interfere with an arrest constituted obstruction, even if defendant did not assault the officer by scratching him. Apparently, the officer felt rather than saw what he thought was scratching, and the judge found there was "no clear evidence" as to how he was injured. The judge could reasonably find that the officer was mistaken in concluding that Maryellen scratched him, but that he and other officers accurately perceived that Maryellen jumped on his back. Accordingly, we affirm Maryellen's conviction for obstruction. Affirmed as to Maryellen Schneeberger. Vacated and remanded as to Marlin Schneeberger. We do not retain jurisdiction. 10 A-2220-16T2
Date: April 10, 2018
Docket Number: a2220-16a229 PER CURIAM Defendants Marlin Schneeberger and Maryellen Schneeberger appeal from their Law Division convictions for the disorderly persons offense of obstructing the administration of law, N.J.S.A. 2C:29-1(a), for which they were each sentenced to pay $158 in fines and costs.1 In deciding Marlin's case, the court did not make its own factual findings but instead improperly relied on the findings of the municipal court. Accordingly, we vacate Marlin's conviction and sentence and remand her case to the Law Division for reconsideration and independent factual findings. 1 Defendants were tried together in the municipal court and their Law Division appeals were heard at the same time. Therefore, we have consolidated the appeals for purposes of this opinion. Intending no disrespect, we will refer to defendants by their first names because they share the same last name. 2 A-2220-16T2 In deciding Maryellen's case, the Law Division made its own clear and specific factual findings, which are supported by substantial credible evidence. We affirm Maryellen's conviction. I The convictions arose from defendants' dispute with a neighboring restaurant over the latter's use of a construction crane in the parties' shared driveway. Defendants were initially charged with multiple offenses, primarily based on their alleged conduct after the police arrived on the scene. However, defendants were acquitted of all charges except obstruction. Therefore, we will focus our factual discussion on the events relevant to the obstruction charges. The police were initially dispatched to the scene based on a 9-1-1 call reporting that an irate woman was tearing down some "no parking" signs on Warren Avenue and interfering with a construction crane.2 When they arrived, an officer observed Marlin standing next to a green car, which was parked in the designated "no parking" area, and he observed that one of the parking signs had been torn down. Her car was also blocking a construction crane from entering the driveway and reaching the neighboring restaurant premises. According to the police, Marlin appeared to be acting 2 Officer Cantrell had previously posted the no parking signs, specifically to enable the crane to enter the construction site. 3 A-2220-16T2 in an "irrational" manner, but she eventually moved her car at the direction of the police. Marlin then insisted on calling 9-1-1, although the police had previously warned her not to do so because they were already present. After she called 9-1-1, the police attempted to place Marlin under arrest for creating a false public alarm. The State presented evidence that Marlin refused to put her hands behind her back to be handcuffed, flailed her arms, and otherwise actively resisted, requiring the police to use some degree of force to subdue her. The defense version was that Marlin was distraught because she believed the crane was not lawfully permitted to use the driveway, and she was upset that the police were not protecting her property rights. Defendants contended that the police were rude and abusive, Marlin called 9-1-1 because she was afraid of them, and Marlin did not intentionally resist arrest or otherwise obstruct the police. The defense presented testimony that Marlin was physically disabled and could not put her arms behind her back to be handcuffed. The relevant evidence against Maryellen was brief. Through the testimony of police officers, and through a videotape, the State presented evidence that Maryellen, who was Marlin's daughter, attempted to physically prevent the police from 4 A-2220-16T2 arresting Marlin. The State presented testimony that, despite her brother's efforts to restrain her from interfering, Maryellen "drape[d] herself over [the arresting officer's] back" and started scratching his arm and back. Maryellen denied assaulting the officer. She asserted that she was only trying to talk to him, to convince him that her mother was disabled and could not put her hands behind her back. Her brother and Marlin corroborated that testimony. In addition to the testimony, both sides referred to the video of the incident. II On an appeal of a municipal conviction to the Law Division, the Law Division judge must decide the matter de novo on the record. State v. Adubato, 420 N.J. Super. 167, 176 (App. Div. 2011). This means that the Law Division judge must independently make his or her own factual findings, rather than determining whether the findings of the municipal judge were supported by sufficient credible evidence. See ibid.; State v. Johnson, 42 N.J. 146, 157 (1964). However, in making findings about witness credibility, the Law Division judge should give "due" but "not necessarily controlling" weight to the municipal judge's credibility determinations, because the municipal judge had the opportunity to observe the testimony firsthand. Adubato, 420 N.J. Super. at 176 (quoting Johnson, 42 N.J. at 157). 5 A-2220-16T2 When we review the Law Division judge's decision, our standard is different. We do not decide the facts de novo. Rather we decide whether the Law Division judge's factual findings are supported by sufficient credible evidence. Adubato, 420 N.J. Super. at 176; State v. Locurto, 157 N.J. 463, 470-71 (1999). Where both the municipal judge and the Law Division judge have found a witness credible, we owe particularly strong deference to the Law Division judge's credibility finding. Id. at 474. We review the Law Division judge's legal conclusions de novo. See State v. Rivera, 411 N.J. Super. 492, 497 (App. Div. 2010). III On her appeal, Marlin Schneeberger presents the following points of argument: POINT I: THE COURT BELOW ERRED IN FINDING MRS. SCHNEEBERGER GUILTY OF OBSTRUCTING THE ADMINISTRATION OF LAW. POINT II: MRS. SCHNEEBERGER'S STATEMENTS WERE IMPROPERLY ADMITTED INTO EVIDENCE BECAUSE THERE WAS NO RULE 104 HEARING AND THE STATE FAILED TO NOTIFY DEFENSE COUNSEL BEFORE TRIAL THAT IT INTENDED TO ADMIT SAID STATEMENTS. POINT III: THE COURT BELOW FAILED TO REMEDY A CONFLICT OF INTEREST DESPITE ACKNOWLEDGING SAID CONFLICT. Defendant's last two points are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). However, we find the first point has merit and requires a remand. 6 A-2220-16T2 With respect to the obstruction charge against Marlin, the Law Division judge did not make the independent factual findings required on a municipal appeal. She stated that her standard of review was de novo, but then indicated that the purpose of the municipal appeal was "to determine whether the findings could reasonably have been reached on sufficient credible evidence presented on the record." In specifically addressing the obstruction charge, the Law Division judge made the following very brief statement: I don't find that the [municipal] court erred here beyond a reasonable doubt in finding the defendant guilty of this charge because once the officers say you're under arrest, even if they charged her, even if they're wrong, her only option at that point is to say fine, I'm going with you and I'll deal with it at a later date. By not doing that, she did obstruct the administration of law and . . . I am finding her guilty on that charge. That was insufficient for two reasons. First, the judge was required to make independent factual and legal findings, not decide whether the municipal judge's decision "erred . . . beyond a reasonable doubt." Second, the judge did not make specific findings as to what Marlin actually did, so as to constitute obstruction. That deficiency probably resulted from the mistaken 7 A-2220-16T2 belief that, as to Marlin, the judge could rely on the findings of the municipal judge. Because the Law Division did not conduct the review legally required on a municipal appeal, we are constrained to vacate Marlin's conviction and the sentence. We remand the case back to the Law Division to make a genuinely de novo review, using the correct legal standards and making independent, specific factual findings. We imply no view as to the result the Law Division should reach on remand. IV On her appeal, Maryellen Schneeberger raises the following points of argument: POINT ONE: THIS COURT SHOULD REVERSE THE GUILTY FINDING ON COMPLAINT NO 2015 S 2014- 000167 BECAUSE THE RULINGS OF THE LAW DIVISION ARE FATALLY INCOMPATIBLE. POINT TWO: THE EVIDENCE PRESENTED IS NOT SUFFICIENT TO SUPPORT THE LAW DIVISION'S FINDING THAT MARYELLEN SCHNEEBERGER OBSTRUCTED THE ADMINISTRATION OF LAW PURSUANT TO N.J.S.A. 2C:29-1(A). We find no merit in either point, because with respect to Maryellen's case, the Law Division made an independent review and made specific factual findings sufficient to sustain the conviction. A discussion of the municipal and Law Division findings illustrates our conclusions. 8 A-2220-16T2 Addressing the charges against Maryellen, the municipal judge found that the police officers were credible witnesses and that the video corroborated their testimony that Maryellen jumped on the arresting officer's back and attempted to obstruct the arrest of her mother. The municipal judge also found that Maryellen scratched the arresting officer and therefore assaulted him. The Law Division judge also credited the police officers' version of the events with respect to the obstruction charge against Maryellen. She found that the video showed Maryellen "did jump on the officer," thus corroborating the officer's testimony. Based on her evaluation of the evidence, the Law Division judge made specific factual findings to that effect. However, unlike the municipal judge, the Law Division judge found insufficient evidence that Maryellen scratched the officer. For that reason, the judge acquitted Maryellen of simple assault, but convicted her of obstruction. The Law Division's factual findings are supported by sufficient credible evidence.3 We owe particular deference to her 3 Appellants did not provide us with the video or any other trial exhibits. At oral argument, Maryellen's attorney candidly stated that although he did not share the Law Division judge's interpretation of the video, he conceded that one might construe it the way she did. As our Supreme Court has reminded us, it is not our role to second-guess a trial judge's interpretation of a video. See State v. S.S., 229 N.J. 360, 386 (2017). 9 A-2220-16T2 finding that the police were credible, because the municipal judge made the same credibility finding. Locurto, 157 N.J. at 474. Contrary to defendant's argument, the acquittal on the separate assault charge, which was premised on defendant allegedly scratching the officer, did not fatally undermine the obstruction conviction. Among other acts, the obstruction statute prohibits purposely attempting "to prevent a public servant from lawfully performing an official function by means of . . . force . . . or physical interference or obstacle." N.J.S.A. 2C:29-1(a). Jumping on the officer's back in order to interfere with an arrest constituted obstruction, even if defendant did not assault the officer by scratching him. Apparently, the officer felt rather than saw what he thought was scratching, and the judge found there was "no clear evidence" as to how he was injured. The judge could reasonably find that the officer was mistaken in concluding that Maryellen scratched him, but that he and other officers accurately perceived that Maryellen jumped on his back. Accordingly, we affirm Maryellen's conviction for obstruction. Affirmed as to Maryellen Schneeberger. Vacated and remanded as to Marlin Schneeberger. We do not retain jurisdiction. 10 A-2220-16T2
N.M. v. DIVISION OF MEDICAL ASSISTANCE AND HEALTH SERVICES
Date: April 4, 2018
Docket Number: a0400-15
Date: April 4, 2018
Docket Number: a0400-15
S.H. v. DIVISION OF MEDICAL ASSISTANCE AND HEALTH SERVICES
Date: April 2, 2018
Docket Number: a0277-15
Date: April 2, 2018
Docket Number: a0277-15
NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION COASTAL AND LAND USE COMPLIANCE AND ENFORCEMENT v. JOHN BLEIMAIER
Date: March 28, 2018
Docket Number: a0001-16
Date: March 28, 2018
Docket Number: a0001-16
NEW YORK SMSA LIMITED PARTNERSHIP v. ZONING BOARD OF ADJUSTMENT OF THE TOWNSHIP OF EAST BRUNSWICK
Date: March 26, 2018
Docket Number: a0238-16
Date: March 26, 2018
Docket Number: a0238-16
RICHARD RIVERA v. MIDDLESEX COUNTY PROSECUTOR'S OFFICE
Date: March 20, 2018
Docket Number: a1498-15 PER CURIAM Defendants, the Middlesex County Prosecutor's Office (MCPO) and James E. O'Neill, the records custodian for MCPO (collectively, MCPO or defendants), appeal from a November 13, 2015 order awarding counsel fees and costs to Richard Rivera and Collene Wronko as prevailing parties in two separate actions brought under the Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to -13.1 We affirm. 1 Defendants filed two appeals, one from the order as it related to the action brought by Rivera, and a second from the order as it related to the action brought by Wronko. We address both appeals in a consolidated opinion because defendants are appealing from the same order, and they make the same arguments in both appeals. 2 A-1498-15T4 I. On January 14, 2015, a police officer shot and killed a man inside his home after the police responded to a report of a domestic disturbance. The following day, on January 15, 2015, plaintiffs filed separate OPRA requests with MCPO and Old Bridge Township, where the shooting occurred. Plaintiffs are New Jersey citizens who have concerns about, and seek to investigate, the use of force by police officers. Accordingly, Rivera sought fifteen categories of records related to the police-related shooting on January 14, 2015. Wronko sought seven categories of records related to the same incident. Both plaintiffs sought copies of all 911 calls, computer-aided dispatch (CAD) reports, and police dispatch reports. Rivera also sought copies of standard operating procedures and policies (SOPs) currently in effect, except those with security exemptions, and OPRA requests made by other persons or entities related to the shooting. On February 17, 2015, MCPO responded to both plaintiffs' requests for itself and the township. MCPO granted plaintiffs access to certain records, but denied access to other records. In terms of the denials, MCPO refused to produce the 911 call, the CAD reports, the police dispatch reports, the SOPs, and the OPRA requests made by other persons. MCPO informed plaintiffs that 3 A-1498-15T4 those requested records were exempted from disclosure under OPRA's criminal investigatory records and security interest exemptions, N.J.S.A. 47:1A-1.1; ongoing investigation exemption, N.J.S.A. 47:1A-3; and privacy interest exemption, N.J.S.A. 47:1A-1. Rivera and Wronko each filed a verified complaint on April 1, 2015. In their complaints, plaintiffs challenged MCPO's denial of the request for access to the 911 call, the CAD reports, the police dispatch reports, the SOPs, and the OPRA requests made by other persons. Plaintiffs went on to allege that MCPO violated OPRA by "[f]ailing to redact any exempt information from the records responsive to plaintiff's requests while permitting access to the nonexempt portions, in violation of N.J.S.A. 47:1A-5(g)." Plaintiffs also requested that the trial court "review the records in camera and then require [d]efendants to delete or excise from the records the portion(s) which are exempt from public access and promptly permit access to the remainder of the record[.]" On April 30, 2015, MCPO provided Rivera with copies of the OPRA requests submitted by other persons. MCPO thereafter gave both plaintiffs redacted versions of the 911 call. MCPO, however, 4 A-1498-15T4 did not give plaintiffs a Vaughn index or any other document explaining why redactions were made.2 On June 10, 2015, the trial court heard oral argument on plaintiffs' requests for access to the records. The trial court also heard arguments on two related matters, where media organizations sought access to the 911 call for the January 14, 2015 police shooting. See NJ Advance Media, LLC v. Middlesex Cty. Prosecutor's Office, No. L-2022-15 (Law Div. Nov. 6, 2015); Home News Tribune v. Middlesex Cty. Prosecutor's Office, No. L-1938-15 (Law Div. Nov. 4, 2015).3 At oral argument, it became apparent that when the media organizations received copies of the redacted 911 call, they also were given a Vaughn index explaining the redactions and a certification. Thus, the trial court ordered MCPO to provide Rivera and Wronko with the Vaughn index and certification. 2 Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973). "A Vaughn index is comprised of affidavits containing a 'relatively detailed' justification for the claim of privilege being asserted for each document." Paff v. Div. of Law, 412 N.J. Super. 140, 161 n.9 (App. Div. 2010). 3 MCPO appealed the trial court's rulings in the NJ Advance Media and Home News Tribune matters. We have issued a separate opinion addressing those appeals. See Middlesex Cty. Prosecutor's Office v. NJ Advance Media, LLC, No. A-1276-15 (App. Div. Mar. 2, 2018). 5 A-1498-15T4 On June 12, 2015, the trial court read into the record its decision regarding access to the 911 call. The trial court explained that it had reviewed the full 911 call in camera, and it concluded that the call only needed to be produced in redacted form. In that regard, the court found that the privacy interests of the person making the call exempted the unredacted portions from disclosure under OPRA. The court went on to explain that it was permitting plaintiffs to file fee applications because the redacted version of the call was produced only after the lawsuits were filed. An order memorializing the court's decision was entered on June 24, 2015. On July 13, 2015, the trial court issued written findings of fact and conclusions of law regarding plaintiffs' requests for the CAD reports, the police dispatch reports, and the SOPs. An order memorializing that decision was entered on August 7, 2015. The trial court ordered MCPO to produce the SOPs and "a Vaughn [i]ndex of CAD entries and dispatch reports that they believe should be redacted or withheld in their entirety, . . . or alternatively, produce those CAD entries and dispatch reports which 'do not discuss or relate to the criminal investigation[.]'" In response to that order, MCPO elected to produce the redacted CAD and dispatch reports, but did not produce a Vaughn index. 6 A-1498-15T4 Thereafter, plaintiffs, who were represented by the same law firm, filed a joint application for counsel fees. MCPO filed a late response and argued that any award of counsel fees should be reduced because plaintiffs did not obtain unredacted copies of the requested documents and large portions of the documents were exempted from disclosure. The trial court rejected MCPO's arguments and, on November 13, 2015, it awarded plaintiffs $20,812.50 in attorney's fees and $924.65 in costs. The court explained the reasons for its ruling in a written decision. Specifically, the trial court found plaintiffs to be the prevailing parties. The court also rejected defendants' argument that the fee award should be limited because of plaintiffs' alleged "limited success." The trial court noted that as a result of plaintiffs' lawsuits, plaintiffs obtained access to portions of all the records that were initially withheld. The court also found that the number of hours that plaintiffs' attorneys spent on both matters was reasonable and their hourly rates were reasonable. MCPO filed notices of appeal from the November 13, 2015 order. II. In both the Rivera and Wronko appeals, MCPO makes the same two arguments. First, it contends that the trial court erred in ordering the production of redacted CAD and dispatch reports under 7 A-1498-15T4 OPRA. Second, it argues that the trial court erred in awarding plaintiffs attorney's fees and costs. The first argument was not preserved for this appeal and the second argument lacks merit. 1. The Issue on Appeal MCPO did not appeal from the trial court's August 7, 2015 order compelling MCPO to either produce redacted CAD and dispatch reports or provide a Vaughn index. In both notices of appeal, MCPO only identified the November 13, 2015 order as the order being appealed. Moreover, in the accompanying civil case information statements, MCPO confirmed that it was only appealing the November 13, 2015 order. In response to the request to identify the order being appealed, MCPO stated: "Order entered on November 13, 2015, by the Honorable [Judge] awarding attorney[']s fees in the amount of $20,812.50, plus $924.65 in costs." Only judgments or orders designated in the notice of appeal are subject to appeal. See R. 2:5-1(f)(3)(A); 1266 Apartment Corp. v. New Horizon Deli, Inc., 368 N.J. Super. 456, 459 (App. Div. 2004) ("[I]t is only the judgment or orders designated in the notice of appeal which are subject to the appeal process and review[.]" (citation omitted)). Further, an appeal of the August 7, 2015 order would be moot because MCPO has already produced the redacted documents in compliance with that order. 8 A-1498-15T4 2. The Award of Attorney's Fees and Costs We review awards of counsel fees under an abuse of discretion standard. McGowan v. O'Rourke, 391 N.J. Super. 502, 508 (App. Div. 2007). Determinations regarding counsel fees "will be disturbed only on the rarest of occasions, and then only because of a clear abuse of discretion." Ibid. (quoting Packard-Bamberger & Co. v. Collier, 167 N.J. 427, 444 (2001)). An OPRA "requestor who prevails in any proceeding shall be entitled to a reasonable attorney's fee." N.J.S.A. 47:1A-6. A requestor is entitled to attorney's fees "[i]f the court determines that the custodian [of the record] unjustifiably denied access to the record in question[.]" New Jerseyans for a Death Penalty Moratorium v. N.J. Dep't of Corr., 185 N.J. 137, 153 (2005). The purpose of the fee shifting provision of OPRA is to ensure "that plaintiffs with bona fide claims are able to find lawyers to represent them[,] . . . to attract competent counsel in cases involving an infringement of statutory rights[,] . . . and to ensure justice for all citizens." Coleman v. Fiore Bros., Inc., 113 N.J. 594, 598 (1989). Our courts use the "catalyst theory" to determine whether a plaintiff is a prevailing party in a litigation. A plaintiff must demonstrate: "(1) 'a factual causal nexus between plaintiff's litigation and the relief ultimately achieved'; and (2) 'that the 9 A-1498-15T4 relief ultimately secured by plaintiffs had a basis in law.'" Mason v. City of Hoboken, 196 N.J. 51, 76 (2008) (citing Singer v. State, 95 N.J. 487, 494 (1984)). In determining the amount of counsel fees to award, the court calculates the "lodestar," which is the number of hours reasonably expended by the successful party's counsel, multiplied by a reasonable hourly rate. Litton Indus., Inc. v. IMO Indus., Inc., 200 N.J. 372, 386 (2009). In calculating the "lodestar," the court considers: (1) the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly; (2) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer; (3) the fee customarily charged in the locality for similar legal services; (4) the amount involved and the results obtained; (5) the time limitations imposed by the client or by the circumstances; (6) the nature and length of the professional relationship with the client; (7) the experience, reputation, and ability of the lawyer or lawyers performing the services; (8) whether the fee is fixed or contingent. 10 A-1498-15T4 [Id. at 387 (citing R.P.C. 1.5(a)).] The lodestar may be reduced "if the level of success achieved in the litigation is limited as compared to the relief sought." Death Penalty Moratorium, 185 N.J. at 154 (quoting Rendine v. Pantzer, 141 N.J. 292, 336 (2005)). An award of counsel fees should not, however, be reduced "simply because the plaintiff failed to prevail on every contention raised in the lawsuit." Ibid. (quoting Hensley v. Eckerhart, 461 U.S. 424, 435 (1983)). To determine a plaintiff's degree of success, the court "should conduct a qualitative analysis that weighs such factors as the number of documents received versus the number of documents requested, and whether the purpose of OPRA was vindicated by the litigation." Id. at 155. "[S]uccess under [] OPRA––even a high degree of success––might be acquiring 'that one smoking gun record hidden amongst hundreds of pages or . . . it may be the absence of any records.'" Ibid. (citations omitted). MCPO argues that plaintiffs were not prevailing parties, because plaintiffs requested unredacted copies of the 911 tape, the SOPs, and the CAD reports, and instead received redacted copies of the documents. In other words, MCPO contends that plaintiffs were not awarded their requested relief because the documents that 11 A-1498-15T4 they ultimately received were redacted. That argument is factually inaccurate and lacks merit. Plaintiffs did not specifically demand that the requested documents be "unredacted." Their complaints alleged that MCPO violated OPRA by "[f]ailing to redact any exempt information from the records responsive to [p]laintiff's requests while permitting access to the nonexempt portions, in violation of N.J.S.A. 47:1A- 5(g)." Moreover, plaintiffs requested that the trial court "review the records in camera and then require [d]efendants to delete or excise from the records the portion(s) which are exempt from public access and promptly permit access to the remainder of the record[.]" Thus, the trial court found that "[b]ased on the language in their respective [c]omplaints, this [c]ourt does not find that Wronko or Rivera were exclusively seeking unredacted versions of their requests." The trial court also found that, as a direct result of the litigation, MCPO was compelled to produce all of the documents requested by plaintiffs. In their complaints, plaintiffs requested, and ultimately received, the 911 call recording and Vaughn index, the SOPs, the CAD and dispatch reports, and OPRA requests filed by others concerning the shooting. Many of the documents ultimately received were redacted. Nevertheless, the trial court concluded that "making redactions to records does not 12 A-1498-15T4 limit the success achieved[.]" We discern no abuse of discretion in that ruling and no error of law. McGowan, 391 N.J. Super. at 508. Finally, the trial court found that counsel's hourly rates and the number of hours expended by counsel were reasonable. Consequently, the court awarded plaintiffs $21,737.15, consisting of $20,812.50 in fees and $924.65 in costs. The record demonstrates that the application for fees and counsel's certification of services were thorough. The certification outlined counsel's qualifications, hourly rate, and compensation in similar matters, and provided a detailed chart of the work counsel performed and the time expended. Accordingly, we discern no abuse of discretion in the amount of fees and costs awarded. Affirmed. 13 A-1498-15T4
Date: March 20, 2018
Docket Number: a1498-15 PER CURIAM Defendants, the Middlesex County Prosecutor's Office (MCPO) and James E. O'Neill, the records custodian for MCPO (collectively, MCPO or defendants), appeal from a November 13, 2015 order awarding counsel fees and costs to Richard Rivera and Collene Wronko as prevailing parties in two separate actions brought under the Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to -13.1 We affirm. 1 Defendants filed two appeals, one from the order as it related to the action brought by Rivera, and a second from the order as it related to the action brought by Wronko. We address both appeals in a consolidated opinion because defendants are appealing from the same order, and they make the same arguments in both appeals. 2 A-1498-15T4 I. On January 14, 2015, a police officer shot and killed a man inside his home after the police responded to a report of a domestic disturbance. The following day, on January 15, 2015, plaintiffs filed separate OPRA requests with MCPO and Old Bridge Township, where the shooting occurred. Plaintiffs are New Jersey citizens who have concerns about, and seek to investigate, the use of force by police officers. Accordingly, Rivera sought fifteen categories of records related to the police-related shooting on January 14, 2015. Wronko sought seven categories of records related to the same incident. Both plaintiffs sought copies of all 911 calls, computer-aided dispatch (CAD) reports, and police dispatch reports. Rivera also sought copies of standard operating procedures and policies (SOPs) currently in effect, except those with security exemptions, and OPRA requests made by other persons or entities related to the shooting. On February 17, 2015, MCPO responded to both plaintiffs' requests for itself and the township. MCPO granted plaintiffs access to certain records, but denied access to other records. In terms of the denials, MCPO refused to produce the 911 call, the CAD reports, the police dispatch reports, the SOPs, and the OPRA requests made by other persons. MCPO informed plaintiffs that 3 A-1498-15T4 those requested records were exempted from disclosure under OPRA's criminal investigatory records and security interest exemptions, N.J.S.A. 47:1A-1.1; ongoing investigation exemption, N.J.S.A. 47:1A-3; and privacy interest exemption, N.J.S.A. 47:1A-1. Rivera and Wronko each filed a verified complaint on April 1, 2015. In their complaints, plaintiffs challenged MCPO's denial of the request for access to the 911 call, the CAD reports, the police dispatch reports, the SOPs, and the OPRA requests made by other persons. Plaintiffs went on to allege that MCPO violated OPRA by "[f]ailing to redact any exempt information from the records responsive to plaintiff's requests while permitting access to the nonexempt portions, in violation of N.J.S.A. 47:1A-5(g)." Plaintiffs also requested that the trial court "review the records in camera and then require [d]efendants to delete or excise from the records the portion(s) which are exempt from public access and promptly permit access to the remainder of the record[.]" On April 30, 2015, MCPO provided Rivera with copies of the OPRA requests submitted by other persons. MCPO thereafter gave both plaintiffs redacted versions of the 911 call. MCPO, however, 4 A-1498-15T4 did not give plaintiffs a Vaughn index or any other document explaining why redactions were made.2 On June 10, 2015, the trial court heard oral argument on plaintiffs' requests for access to the records. The trial court also heard arguments on two related matters, where media organizations sought access to the 911 call for the January 14, 2015 police shooting. See NJ Advance Media, LLC v. Middlesex Cty. Prosecutor's Office, No. L-2022-15 (Law Div. Nov. 6, 2015); Home News Tribune v. Middlesex Cty. Prosecutor's Office, No. L-1938-15 (Law Div. Nov. 4, 2015).3 At oral argument, it became apparent that when the media organizations received copies of the redacted 911 call, they also were given a Vaughn index explaining the redactions and a certification. Thus, the trial court ordered MCPO to provide Rivera and Wronko with the Vaughn index and certification. 2 Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973). "A Vaughn index is comprised of affidavits containing a 'relatively detailed' justification for the claim of privilege being asserted for each document." Paff v. Div. of Law, 412 N.J. Super. 140, 161 n.9 (App. Div. 2010). 3 MCPO appealed the trial court's rulings in the NJ Advance Media and Home News Tribune matters. We have issued a separate opinion addressing those appeals. See Middlesex Cty. Prosecutor's Office v. NJ Advance Media, LLC, No. A-1276-15 (App. Div. Mar. 2, 2018). 5 A-1498-15T4 On June 12, 2015, the trial court read into the record its decision regarding access to the 911 call. The trial court explained that it had reviewed the full 911 call in camera, and it concluded that the call only needed to be produced in redacted form. In that regard, the court found that the privacy interests of the person making the call exempted the unredacted portions from disclosure under OPRA. The court went on to explain that it was permitting plaintiffs to file fee applications because the redacted version of the call was produced only after the lawsuits were filed. An order memorializing the court's decision was entered on June 24, 2015. On July 13, 2015, the trial court issued written findings of fact and conclusions of law regarding plaintiffs' requests for the CAD reports, the police dispatch reports, and the SOPs. An order memorializing that decision was entered on August 7, 2015. The trial court ordered MCPO to produce the SOPs and "a Vaughn [i]ndex of CAD entries and dispatch reports that they believe should be redacted or withheld in their entirety, . . . or alternatively, produce those CAD entries and dispatch reports which 'do not discuss or relate to the criminal investigation[.]'" In response to that order, MCPO elected to produce the redacted CAD and dispatch reports, but did not produce a Vaughn index. 6 A-1498-15T4 Thereafter, plaintiffs, who were represented by the same law firm, filed a joint application for counsel fees. MCPO filed a late response and argued that any award of counsel fees should be reduced because plaintiffs did not obtain unredacted copies of the requested documents and large portions of the documents were exempted from disclosure. The trial court rejected MCPO's arguments and, on November 13, 2015, it awarded plaintiffs $20,812.50 in attorney's fees and $924.65 in costs. The court explained the reasons for its ruling in a written decision. Specifically, the trial court found plaintiffs to be the prevailing parties. The court also rejected defendants' argument that the fee award should be limited because of plaintiffs' alleged "limited success." The trial court noted that as a result of plaintiffs' lawsuits, plaintiffs obtained access to portions of all the records that were initially withheld. The court also found that the number of hours that plaintiffs' attorneys spent on both matters was reasonable and their hourly rates were reasonable. MCPO filed notices of appeal from the November 13, 2015 order. II. In both the Rivera and Wronko appeals, MCPO makes the same two arguments. First, it contends that the trial court erred in ordering the production of redacted CAD and dispatch reports under 7 A-1498-15T4 OPRA. Second, it argues that the trial court erred in awarding plaintiffs attorney's fees and costs. The first argument was not preserved for this appeal and the second argument lacks merit. 1. The Issue on Appeal MCPO did not appeal from the trial court's August 7, 2015 order compelling MCPO to either produce redacted CAD and dispatch reports or provide a Vaughn index. In both notices of appeal, MCPO only identified the November 13, 2015 order as the order being appealed. Moreover, in the accompanying civil case information statements, MCPO confirmed that it was only appealing the November 13, 2015 order. In response to the request to identify the order being appealed, MCPO stated: "Order entered on November 13, 2015, by the Honorable [Judge] awarding attorney[']s fees in the amount of $20,812.50, plus $924.65 in costs." Only judgments or orders designated in the notice of appeal are subject to appeal. See R. 2:5-1(f)(3)(A); 1266 Apartment Corp. v. New Horizon Deli, Inc., 368 N.J. Super. 456, 459 (App. Div. 2004) ("[I]t is only the judgment or orders designated in the notice of appeal which are subject to the appeal process and review[.]" (citation omitted)). Further, an appeal of the August 7, 2015 order would be moot because MCPO has already produced the redacted documents in compliance with that order. 8 A-1498-15T4 2. The Award of Attorney's Fees and Costs We review awards of counsel fees under an abuse of discretion standard. McGowan v. O'Rourke, 391 N.J. Super. 502, 508 (App. Div. 2007). Determinations regarding counsel fees "will be disturbed only on the rarest of occasions, and then only because of a clear abuse of discretion." Ibid. (quoting Packard-Bamberger & Co. v. Collier, 167 N.J. 427, 444 (2001)). An OPRA "requestor who prevails in any proceeding shall be entitled to a reasonable attorney's fee." N.J.S.A. 47:1A-6. A requestor is entitled to attorney's fees "[i]f the court determines that the custodian [of the record] unjustifiably denied access to the record in question[.]" New Jerseyans for a Death Penalty Moratorium v. N.J. Dep't of Corr., 185 N.J. 137, 153 (2005). The purpose of the fee shifting provision of OPRA is to ensure "that plaintiffs with bona fide claims are able to find lawyers to represent them[,] . . . to attract competent counsel in cases involving an infringement of statutory rights[,] . . . and to ensure justice for all citizens." Coleman v. Fiore Bros., Inc., 113 N.J. 594, 598 (1989). Our courts use the "catalyst theory" to determine whether a plaintiff is a prevailing party in a litigation. A plaintiff must demonstrate: "(1) 'a factual causal nexus between plaintiff's litigation and the relief ultimately achieved'; and (2) 'that the 9 A-1498-15T4 relief ultimately secured by plaintiffs had a basis in law.'" Mason v. City of Hoboken, 196 N.J. 51, 76 (2008) (citing Singer v. State, 95 N.J. 487, 494 (1984)). In determining the amount of counsel fees to award, the court calculates the "lodestar," which is the number of hours reasonably expended by the successful party's counsel, multiplied by a reasonable hourly rate. Litton Indus., Inc. v. IMO Indus., Inc., 200 N.J. 372, 386 (2009). In calculating the "lodestar," the court considers: (1) the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly; (2) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer; (3) the fee customarily charged in the locality for similar legal services; (4) the amount involved and the results obtained; (5) the time limitations imposed by the client or by the circumstances; (6) the nature and length of the professional relationship with the client; (7) the experience, reputation, and ability of the lawyer or lawyers performing the services; (8) whether the fee is fixed or contingent. 10 A-1498-15T4 [Id. at 387 (citing R.P.C. 1.5(a)).] The lodestar may be reduced "if the level of success achieved in the litigation is limited as compared to the relief sought." Death Penalty Moratorium, 185 N.J. at 154 (quoting Rendine v. Pantzer, 141 N.J. 292, 336 (2005)). An award of counsel fees should not, however, be reduced "simply because the plaintiff failed to prevail on every contention raised in the lawsuit." Ibid. (quoting Hensley v. Eckerhart, 461 U.S. 424, 435 (1983)). To determine a plaintiff's degree of success, the court "should conduct a qualitative analysis that weighs such factors as the number of documents received versus the number of documents requested, and whether the purpose of OPRA was vindicated by the litigation." Id. at 155. "[S]uccess under [] OPRA––even a high degree of success––might be acquiring 'that one smoking gun record hidden amongst hundreds of pages or . . . it may be the absence of any records.'" Ibid. (citations omitted). MCPO argues that plaintiffs were not prevailing parties, because plaintiffs requested unredacted copies of the 911 tape, the SOPs, and the CAD reports, and instead received redacted copies of the documents. In other words, MCPO contends that plaintiffs were not awarded their requested relief because the documents that 11 A-1498-15T4 they ultimately received were redacted. That argument is factually inaccurate and lacks merit. Plaintiffs did not specifically demand that the requested documents be "unredacted." Their complaints alleged that MCPO violated OPRA by "[f]ailing to redact any exempt information from the records responsive to [p]laintiff's requests while permitting access to the nonexempt portions, in violation of N.J.S.A. 47:1A- 5(g)." Moreover, plaintiffs requested that the trial court "review the records in camera and then require [d]efendants to delete or excise from the records the portion(s) which are exempt from public access and promptly permit access to the remainder of the record[.]" Thus, the trial court found that "[b]ased on the language in their respective [c]omplaints, this [c]ourt does not find that Wronko or Rivera were exclusively seeking unredacted versions of their requests." The trial court also found that, as a direct result of the litigation, MCPO was compelled to produce all of the documents requested by plaintiffs. In their complaints, plaintiffs requested, and ultimately received, the 911 call recording and Vaughn index, the SOPs, the CAD and dispatch reports, and OPRA requests filed by others concerning the shooting. Many of the documents ultimately received were redacted. Nevertheless, the trial court concluded that "making redactions to records does not 12 A-1498-15T4 limit the success achieved[.]" We discern no abuse of discretion in that ruling and no error of law. McGowan, 391 N.J. Super. at 508. Finally, the trial court found that counsel's hourly rates and the number of hours expended by counsel were reasonable. Consequently, the court awarded plaintiffs $21,737.15, consisting of $20,812.50 in fees and $924.65 in costs. The record demonstrates that the application for fees and counsel's certification of services were thorough. The certification outlined counsel's qualifications, hourly rate, and compensation in similar matters, and provided a detailed chart of the work counsel performed and the time expended. Accordingly, we discern no abuse of discretion in the amount of fees and costs awarded. Affirmed. 13 A-1498-15T4
W.S. v. DIVISION OF MEDICAL ASSISTANCE AND HEALTH SERVICES
Date: March 20, 2018
Docket Number: a2815-16
Date: March 20, 2018
Docket Number: a2815-16
JAMES DUNCKLEY v. BOARD OF EDUCATION ROCKAWAY TOWNSHIP, MORRIS COUNTY
Date: March 19, 2018
Docket Number: a1152-16
Date: March 19, 2018
Docket Number: a1152-16
IN THE MATTER OF MIDDLESEX COUNTY SHERIFF'S OFFICE and PHIILIP S. MANDATO
Date: March 19, 2018
Docket Number: a1728-16
Date: March 19, 2018
Docket Number: a1728-16
DIVISION OF CHILD PROTECTION AND PERMANENCY v. P.R.
Date: March 19, 2018
Docket Number: a4988-15 PER CURIAM Defendants P.R. (Pam) and C.W. (Charles) are the biological parents of J.W. (Julie), a little girl born in January 2014. Within weeks of Julie's birth, Pam was involuntarily committed to a psychiatric hospital; she was also found to have overdosed on illicit drugs. Charles was incarcerated at the time his daughter was born. On January 28, 2014, the Division of Child Protection and Permanency (the Division) filed a verified complaint and order to show cause for Julie's custody, care, and supervision under Title Nine, N.J.S.A. 9:6-8.21, and Title Thirty, N.J.S.A. 30:4C- 12.1. The court granted the Division's application in an order entered on that same date. The Division placed Julie in a non- family resource home where she has been living since she was five 2 A-4988-15T4 months old.1 Her resource parent is eager to adopt her. After nearly two years of active involvement with defendants, which included the provision of extensive family and psychological services, the Division decided to seek the termination of defendants' parental rights over Julie and filed a verified guardianship complaint and order to show cause. On the return of the order to show cause, the court ordered Pam to attend psychiatric and bonding evaluations and provide a list of relatives to the Division in order to determine whether any of these individuals were capable and willing to assume responsibility for Julie's care. At trial, the Division presented evidence that defendants received a variety of services, including counseling, training, and transportation. The expert witnesses unanimously opined that defendants remained incapable of providing Julie with a safe and stable parenting environment. Pam was diagnosed as suffering from schizophrenia and refused to submit to medical treatment. Charles failed to complete many of the court-ordered services on a timely basis. The Division also claimed that the parties' relationship had a history of domestic violence. 1 Julie was briefly reunited with her parents during this period of time. 3 A-4988-15T4 The court conducted the guardianship trial over several days in June 2016. The Division called five witnesses, including two healthcare providers whom the court admitted as expert witnesses. With respect to Julie, the experts agreed the child had formed a strong and close bond to her resource parent, with whom she had resided for the past two and a half years. The experts opined Julie would suffer severe and enduring psychological and emotional harm if her relationship with her pre-adoptive parent was terminated. By contrast, the termination of defendants' parental rights would not do Julie more harm than good. At the conclusion of the trial, the judge entered an order terminating defendants' parental rights. The trial judge described his factual findings and legal analysis in a comprehensive sixty-page, single-space memorandum of opinion.2 Defendants filed separate notices of appeal challenging the court's ruling. We consolidate these appeals for purposes of our review and ultimate decision. Defendants argue that the trial judge erred when he found the Division established, by clear and convincing evidence, all four statutory elements of N.J.S.A. 30:4C-15.1(a). Charles also claims the court impermissibly shifted the burden of proof by requiring him to prove that he was 2 The judge also submitted an amended opinion to correct certain typographical errors. 4 A-4988-15T4 a fit parent. We reject these arguments and affirm the judgment of guardianship as to both defendants. We incorporate by reference the detailed factual findings made by the trial judge as reflected in his memorandum of opinion. We make only the following brief comments. The Division continued to provide services to defendants throughout their tumultuous relationship, including counseling and services related to the prevention of domestic violence. Defendants were uncooperative and consequently failed to reap the benefits offered by these services.3 They continued to struggle and engage in violence throughout the time leading to the trial. Pam was arrested and charged with assault after she allegedly stabbed Charles with a fork during a dispute. On February 1, 2016, Charles was arrested and charged with sexually assaulting Pam as well as committing other acts of physical violence against her. Pam left New Jersey to stay with her mother in Georgia the same day Charles was arrested on these charges. She claimed her decision to relocate was prompted by the death of her niece, not 3 In February 2016, the YMCA terminated the supervised visitation arrangement with Pam and Charles due to their failure to attend. The record shows Charles missed twenty-three visitation appointments between August and December 2015. 5 A-4988-15T4 the domestic violence issues she was having with Charles. Pam's mother consistently offered to serve as a placement option for Julie in Georgia. The Division conducted its investigation in this State and completed an interstate compact application. Pam remained in her mother's home in Georgia at the time of the guardianship trial. The suitability of placing Julie with her maternal grandmother was not determined before the guardianship trial ended. At trial, Charles called Dr. Denise Williams-Johnson to address the issue of bonding and familial ties to Julie. In October 2015, she conducted a bonding evaluation between Charles and Julie during one of the YMCA visits. Dr. Williams-Johnson also conducted a separate bonding evaluation with Julie and her resource mother. She opined that Julie's bond with Charles was strong enough to overcome the difficulty of being removed from her foster home. However, she also stated that Julie's bond with her foster mother was sufficient to mitigate any harm she may endure if she were to be permanently separated from her father. Of particular note, Dr. Williams-Johnson did not affirmatively recommend reunification between father and daughter. As ordered by the court, defendants met with the Division's psychologist Robert Kanen on April 14, 2016, for psychological and bonding evaluations with Julie. Dr. Kanen concluded Pam's mental 6 A-4988-15T4 illness rendered her incapable of parenting Julie. Dr. Kanen found Charles' evaluation "raises concerns about [Charles's] capacity to be a responsible, predictable, and dependable parent[.]" Dr. Kanen expressed serious doubts about Charles' purported new plan to end his relationship with Pam. He diagnosed him as suffering from a "personality disorder with antisocial features." Dr. Kanen also mentioned Charles' past history of violence created the potential for child neglect. With respect to bonding with Julie, Dr. Kanen opined that "both parents are emotional[ly] cold and unexpressive toward the child." He noted that "Julie appears to have a severely impaired attachment to P[am] and C[harles]." He concluded that Julie would not suffer serious or enduring harm if permanently separated from her parents. Dr. Kanen also conducted a bonding evaluation of Julie and her foster mother. He noted that Julie calls her "mommy" and the foster mother is also very sensitive to the child's needs. Dr. Kanen opined that "J[ulie] is securely attached to the foster mother" and concluded that she "would suffer serious and enduring harm if removed from the foster mother's care[.]" The scope of an appellate court's review of the trial court's decision to terminate parental rights is limited. N.J. Div. of Youth & Family Servs. v. R.G., 217 N.J. 527, 552 (2014). "[T]he trial court's factual findings should be upheld when supported by 7 A-4988-15T4 adequate, substantial, and credible evidence." Ibid. "Concomitantly, reviewing courts should defer to the trial court's credibility determinations." Ibid. "Moreover, by virtue of its specific jurisdiction, the Family Part 'possess[es] special expertise in the field of domestic relations' and thus 'appellate courts should accord deference to [F]amily [Part] factfinding.'" Id. at 553 (quoting Cesare v. Cesare, 154 N.J. 394, 412-13 (1998)). However, "'[a] trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference.'" Id. at 552 (quoting Manalapan Realty v. Manalapan Twp. Comm., 140 N.J. 366, 378 (1995)). As we noted earlier, the trial judge observed the testimony of the witnesses and carefully reviewed the evidence presented by the Division and the parties. Based on this evidence, the judge concluded the Division had presented sufficient competent evidence to satisfy the four statutory prong in N.J.S.A. 30:4C-15.1(a). We discern no legal basis to disagree. Finally, we conclude the Division followed the requisite procedure when it evaluated the propriety of placing Julie with her maternal grandmother in Georgia. As explained in N.J. Div. of Youth & Family Servs. v. T.M., 399 N.J. Super. 453, 468 (App. Div. 2008), the Interstate Compact on the Placement of Children (ICPC), N.J.S.A. 9:23-5, requires: 8 A-4988-15T4 if children are removed from the [s]tate of New Jersey and are placed in a home outside the [s]tate of New Jersey under any circumstances, the child welfare authorities in that particular state have to be notified. They have to, at a bare minimum, look over the physical plant where the children are and check out the entire situation and be the eyes and ears of [the Division] in that particular state. Pam argues that ICPC did not apply here because the placement was with a relative. Pam cites to dicta in McComb v. Wambaugh, 934 F.2d 474, 481 (3d Cir. 1991) for this proposition. While it is true that ICPC does not apply to "[t]he sending or bringing of a child into a receiving state by his parent, step-parent, grandparent, adult brother or sister, adult uncle or aunt, or his guardian . . . ," N.J.S.A. 9:23-5-VIII(a), the placement here would have been made by the Division, who had care and supervision of Julie. Although the term 'guardian' is undefined in that statute, the ICPC process was required unless we were to deem the Division as Julie's guardian under the statute. Notwithstanding this determination, Pam's move to her mother's home in February 2016 made Julie's placement there impossible. In accordance with the ICPC process, the Division contacted Georgia authorities to determine the suitability of the grandmother's home. The grandmother expressed an interest in housing Julie beginning in 2014. The record is unclear, however, 9 A-4988-15T4 about when the interstate compact application was completed. It is clear that the application process was initiated some time before October 2015. Division caseworker Jacqueline Livingston continued to follow up with the Trenton-based liaison to Georgia on a regular basis throughout this litigation seeking approval of the grandmother's home. Pam's move to the home in February 2016 "froze" the ICPC evaluation process. Thus, even if Julie had been placed with the grandmother immediately in 2014, she would have been removed when Pam joined the household in February 2016. Pam's decision to relocate to Georgia in the midst of this guardianship trial did not do anything to address her serious psychiatric illness. This disruption in Julie's life and stability would have undermined her emotional and psychological wellbeing. Finally, Pam's reliance on N.J. Div. of Youth & Family Servs. v. K.F., 353 N.J. Super. 623 (App. Div. 2002) is misplaced. Unlike the situation we confront here, K.F. involved out-of-state grandparents affirmatively filing for custody. Here, Pam's mother merely expressed a willingness to house Julie. The trial judge correctly emphasized the importance of "permanency in the only home [Julie] has ever known." Affirmed. 10 A-4988-15T4
Date: March 19, 2018
Docket Number: a4988-15 PER CURIAM Defendants P.R. (Pam) and C.W. (Charles) are the biological parents of J.W. (Julie), a little girl born in January 2014. Within weeks of Julie's birth, Pam was involuntarily committed to a psychiatric hospital; she was also found to have overdosed on illicit drugs. Charles was incarcerated at the time his daughter was born. On January 28, 2014, the Division of Child Protection and Permanency (the Division) filed a verified complaint and order to show cause for Julie's custody, care, and supervision under Title Nine, N.J.S.A. 9:6-8.21, and Title Thirty, N.J.S.A. 30:4C- 12.1. The court granted the Division's application in an order entered on that same date. The Division placed Julie in a non- family resource home where she has been living since she was five 2 A-4988-15T4 months old.1 Her resource parent is eager to adopt her. After nearly two years of active involvement with defendants, which included the provision of extensive family and psychological services, the Division decided to seek the termination of defendants' parental rights over Julie and filed a verified guardianship complaint and order to show cause. On the return of the order to show cause, the court ordered Pam to attend psychiatric and bonding evaluations and provide a list of relatives to the Division in order to determine whether any of these individuals were capable and willing to assume responsibility for Julie's care. At trial, the Division presented evidence that defendants received a variety of services, including counseling, training, and transportation. The expert witnesses unanimously opined that defendants remained incapable of providing Julie with a safe and stable parenting environment. Pam was diagnosed as suffering from schizophrenia and refused to submit to medical treatment. Charles failed to complete many of the court-ordered services on a timely basis. The Division also claimed that the parties' relationship had a history of domestic violence. 1 Julie was briefly reunited with her parents during this period of time. 3 A-4988-15T4 The court conducted the guardianship trial over several days in June 2016. The Division called five witnesses, including two healthcare providers whom the court admitted as expert witnesses. With respect to Julie, the experts agreed the child had formed a strong and close bond to her resource parent, with whom she had resided for the past two and a half years. The experts opined Julie would suffer severe and enduring psychological and emotional harm if her relationship with her pre-adoptive parent was terminated. By contrast, the termination of defendants' parental rights would not do Julie more harm than good. At the conclusion of the trial, the judge entered an order terminating defendants' parental rights. The trial judge described his factual findings and legal analysis in a comprehensive sixty-page, single-space memorandum of opinion.2 Defendants filed separate notices of appeal challenging the court's ruling. We consolidate these appeals for purposes of our review and ultimate decision. Defendants argue that the trial judge erred when he found the Division established, by clear and convincing evidence, all four statutory elements of N.J.S.A. 30:4C-15.1(a). Charles also claims the court impermissibly shifted the burden of proof by requiring him to prove that he was 2 The judge also submitted an amended opinion to correct certain typographical errors. 4 A-4988-15T4 a fit parent. We reject these arguments and affirm the judgment of guardianship as to both defendants. We incorporate by reference the detailed factual findings made by the trial judge as reflected in his memorandum of opinion. We make only the following brief comments. The Division continued to provide services to defendants throughout their tumultuous relationship, including counseling and services related to the prevention of domestic violence. Defendants were uncooperative and consequently failed to reap the benefits offered by these services.3 They continued to struggle and engage in violence throughout the time leading to the trial. Pam was arrested and charged with assault after she allegedly stabbed Charles with a fork during a dispute. On February 1, 2016, Charles was arrested and charged with sexually assaulting Pam as well as committing other acts of physical violence against her. Pam left New Jersey to stay with her mother in Georgia the same day Charles was arrested on these charges. She claimed her decision to relocate was prompted by the death of her niece, not 3 In February 2016, the YMCA terminated the supervised visitation arrangement with Pam and Charles due to their failure to attend. The record shows Charles missed twenty-three visitation appointments between August and December 2015. 5 A-4988-15T4 the domestic violence issues she was having with Charles. Pam's mother consistently offered to serve as a placement option for Julie in Georgia. The Division conducted its investigation in this State and completed an interstate compact application. Pam remained in her mother's home in Georgia at the time of the guardianship trial. The suitability of placing Julie with her maternal grandmother was not determined before the guardianship trial ended. At trial, Charles called Dr. Denise Williams-Johnson to address the issue of bonding and familial ties to Julie. In October 2015, she conducted a bonding evaluation between Charles and Julie during one of the YMCA visits. Dr. Williams-Johnson also conducted a separate bonding evaluation with Julie and her resource mother. She opined that Julie's bond with Charles was strong enough to overcome the difficulty of being removed from her foster home. However, she also stated that Julie's bond with her foster mother was sufficient to mitigate any harm she may endure if she were to be permanently separated from her father. Of particular note, Dr. Williams-Johnson did not affirmatively recommend reunification between father and daughter. As ordered by the court, defendants met with the Division's psychologist Robert Kanen on April 14, 2016, for psychological and bonding evaluations with Julie. Dr. Kanen concluded Pam's mental 6 A-4988-15T4 illness rendered her incapable of parenting Julie. Dr. Kanen found Charles' evaluation "raises concerns about [Charles's] capacity to be a responsible, predictable, and dependable parent[.]" Dr. Kanen expressed serious doubts about Charles' purported new plan to end his relationship with Pam. He diagnosed him as suffering from a "personality disorder with antisocial features." Dr. Kanen also mentioned Charles' past history of violence created the potential for child neglect. With respect to bonding with Julie, Dr. Kanen opined that "both parents are emotional[ly] cold and unexpressive toward the child." He noted that "Julie appears to have a severely impaired attachment to P[am] and C[harles]." He concluded that Julie would not suffer serious or enduring harm if permanently separated from her parents. Dr. Kanen also conducted a bonding evaluation of Julie and her foster mother. He noted that Julie calls her "mommy" and the foster mother is also very sensitive to the child's needs. Dr. Kanen opined that "J[ulie] is securely attached to the foster mother" and concluded that she "would suffer serious and enduring harm if removed from the foster mother's care[.]" The scope of an appellate court's review of the trial court's decision to terminate parental rights is limited. N.J. Div. of Youth & Family Servs. v. R.G., 217 N.J. 527, 552 (2014). "[T]he trial court's factual findings should be upheld when supported by 7 A-4988-15T4 adequate, substantial, and credible evidence." Ibid. "Concomitantly, reviewing courts should defer to the trial court's credibility determinations." Ibid. "Moreover, by virtue of its specific jurisdiction, the Family Part 'possess[es] special expertise in the field of domestic relations' and thus 'appellate courts should accord deference to [F]amily [Part] factfinding.'" Id. at 553 (quoting Cesare v. Cesare, 154 N.J. 394, 412-13 (1998)). However, "'[a] trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference.'" Id. at 552 (quoting Manalapan Realty v. Manalapan Twp. Comm., 140 N.J. 366, 378 (1995)). As we noted earlier, the trial judge observed the testimony of the witnesses and carefully reviewed the evidence presented by the Division and the parties. Based on this evidence, the judge concluded the Division had presented sufficient competent evidence to satisfy the four statutory prong in N.J.S.A. 30:4C-15.1(a). We discern no legal basis to disagree. Finally, we conclude the Division followed the requisite procedure when it evaluated the propriety of placing Julie with her maternal grandmother in Georgia. As explained in N.J. Div. of Youth & Family Servs. v. T.M., 399 N.J. Super. 453, 468 (App. Div. 2008), the Interstate Compact on the Placement of Children (ICPC), N.J.S.A. 9:23-5, requires: 8 A-4988-15T4 if children are removed from the [s]tate of New Jersey and are placed in a home outside the [s]tate of New Jersey under any circumstances, the child welfare authorities in that particular state have to be notified. They have to, at a bare minimum, look over the physical plant where the children are and check out the entire situation and be the eyes and ears of [the Division] in that particular state. Pam argues that ICPC did not apply here because the placement was with a relative. Pam cites to dicta in McComb v. Wambaugh, 934 F.2d 474, 481 (3d Cir. 1991) for this proposition. While it is true that ICPC does not apply to "[t]he sending or bringing of a child into a receiving state by his parent, step-parent, grandparent, adult brother or sister, adult uncle or aunt, or his guardian . . . ," N.J.S.A. 9:23-5-VIII(a), the placement here would have been made by the Division, who had care and supervision of Julie. Although the term 'guardian' is undefined in that statute, the ICPC process was required unless we were to deem the Division as Julie's guardian under the statute. Notwithstanding this determination, Pam's move to her mother's home in February 2016 made Julie's placement there impossible. In accordance with the ICPC process, the Division contacted Georgia authorities to determine the suitability of the grandmother's home. The grandmother expressed an interest in housing Julie beginning in 2014. The record is unclear, however, 9 A-4988-15T4 about when the interstate compact application was completed. It is clear that the application process was initiated some time before October 2015. Division caseworker Jacqueline Livingston continued to follow up with the Trenton-based liaison to Georgia on a regular basis throughout this litigation seeking approval of the grandmother's home. Pam's move to the home in February 2016 "froze" the ICPC evaluation process. Thus, even if Julie had been placed with the grandmother immediately in 2014, she would have been removed when Pam joined the household in February 2016. Pam's decision to relocate to Georgia in the midst of this guardianship trial did not do anything to address her serious psychiatric illness. This disruption in Julie's life and stability would have undermined her emotional and psychological wellbeing. Finally, Pam's reliance on N.J. Div. of Youth & Family Servs. v. K.F., 353 N.J. Super. 623 (App. Div. 2002) is misplaced. Unlike the situation we confront here, K.F. involved out-of-state grandparents affirmatively filing for custody. Here, Pam's mother merely expressed a willingness to house Julie. The trial judge correctly emphasized the importance of "permanency in the only home [Julie] has ever known." Affirmed. 10 A-4988-15T4
DONJU FRAZIER v. NEW JERSEY STATE PRISON DEPARTMENT OF CORRECTIONS
Date: March 16, 2018
Docket Number: a1239-16
Date: March 16, 2018
Docket Number: a1239-16
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY v. A.P.
Date: March 16, 2018
Docket Number: a1545-16
Date: March 16, 2018
Docket Number: a1545-16
CHARLENE TECH v. BOARD OF REVIEW, DEPARTMENT OF LABOR AND WORKFORCE DEVELOPMENT
Date: March 16, 2018
Docket Number: a3229-16
Date: March 16, 2018
Docket Number: a3229-16
KEVINO'LAUGHLIN v. BOARD OF REVIEW, DEPARTMENT OF LABOR
Date: March 16, 2018
Docket Number: a3361-16
Date: March 16, 2018
Docket Number: a3361-16
TOWNSHIP OF MONROE v. UNITED SERVICE WORKERS UNION LOCAL 255
Date: March 16, 2018
Docket Number: a3684-16
Date: March 16, 2018
Docket Number: a3684-16
JOHN BUSELEA v. NEW JERSEY DEPARTMENT OF COMMUNITY AFFAIRS
Date: March 15, 2018
Docket Number: a1005-16
Date: March 15, 2018
Docket Number: a1005-16
WAYNE BRYANT v. BOARD OF TRUSTEES OF THE PUBLIC EMPLOYEES' RETIREMENT SYSTEM
Date: March 15, 2018
Docket Number: a5234-15
Date: March 15, 2018
Docket Number: a5234-15
A.D. v. DIVISION OF MEDICAL ASSISTANCE AND HEALTH SERVICES
Date: March 14, 2018
Docket Number: a2604-16
Date: March 14, 2018
Docket Number: a2604-16
P.D. v. DIVISION OF MEDICAL ASSISTANCE AND HEALTH SERVICES
Date: March 14, 2018
Docket Number: a2605-16
Date: March 14, 2018
Docket Number: a2605-16
DIVISION OF CHILD PROTECTION AND PERMANENCY v. D.A.G.
Date: March 14, 2018
Docket Number: a3546-15 PER CURIAM In these four consolidated appeals, a mother and three fathers appeal from the April 7, 2016 judgment terminating their parental rights. The mother, D.A.G. (Danielle)1 appeals from the termination of her parental rights to her three children: M.G. (Michael), presently fourteen years old, J.V.J. (Jennifer), presently twelve years old, and J.S.-T.G. (Jason), presently ten years old.2 R.L.B. (Robert) appeals from the termination of his 1 Pursuant to Rule 1:38-3(d)(12), we use pseudonyms for the parents and children to protect their confidentiality. 2 Danielle is also the mother of a fourth child, J.C., who is presently eight years old and is not the subject of these termination of parental rights proceedings. 2 A-3546-15T1 parental rights to Michael; R.J. (Richard) appeals from the termination of his parental rights to Jennifer; and S.T. (Samuel) appeals from the termination of his parental rights to Jason. The parents argue that the judgment should be reversed because the Division of Child Protection and Permanency (Division) did not prove all four prongs of the best interests of the child test under N.J.S.A. 30:4C-15.1(a). The Law Guardian argues that the Division proved all four prongs as to the fathers, but failed to prove prong four as to Danielle. Robert also argues that the Interstate Compact on the Placement of Children (ICPC), N.J.S.A. 9:23-5, does not apply to out-of-state placements of children with their biological parents, and therefore the court erred in relying upon Florida's negative ICPC assessment of his home. In a comprehensive and well-reasoned ninety-four-page written opinion, Judge Marysol Rosero found the Division satisfied the four-prong test by clear and convincing evidence and held that the termination was in the children's best interests. In re Guardianship of K.H.O., 161 N.J. 337 (1999). Based on our review of the record and applicable law, we are satisfied the evidence in favor of the guardianship petition adequately supports the termination of the parents' respective parental rights. See N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007) (holding that a reviewing court should uphold the factual findings 3 A-3546-15T1 respecting the termination of parental rights if they are supported by substantial and credible evidence in the record as a whole). Accordingly, we affirm. I. The guardianship trial commenced on June 23, 2015, and continued on various non-consecutive dates until March 24, 2016. At the trial, the Division moved 235 exhibits into evidence, and presented testimony from Eric Kirschner, Ph.D., a psychologist; Ashley Mystila, a Division caseworker; and Emerald Irby, the Division's adoption/select home specialist. Danielle testified on her own behalf. For the most part, the fathers did not appear at trial, except Richard appeared for a few days, as did Robert (by telephone from Florida). The judge also conducted interviews of the children. The evidence adduced at the trial is set forth at length in Judge Rosero's opinion and need not be repeated in the same level of detail here. We recount the most significant evidence to lend context to the analysis that follows. The Children (i) Michael and Jason After the Division removed the children from Danielle's care in 2011, both Michael and Jason were evaluated and observed to have short attention spans, and hyperactivity with aggressive 4 A-3546-15T1 behavior. Throughout the Division's involvement, both children have been provided with services, including psychological and psychiatric evaluations, therapy, and medication to address their trauma and behavioral issues, as well as educational interventions. Although the boys initially were placed in the same resource home, Michael was removed from that home in early 2012, due to his inappropriate sexual touching of Jason, with Jason indicating that Michael had behaved similarly in the past. Michael was placed in a therapeutic resource home, but due to his dangerous and uncontrollable behavior, he was taken to the hospital numerous times in March 2012. He was placed on medication, moved to a different resource home, and ultimately moved to a residential treatment center in April 2012. In the residential treatment facility, Michael continued to experience depression, demonstrate aggression, and present behavioral problems. In January 2014, however, he was stepped down to a different program, due to improvements in his behavior. Michael struggled in his new placement and complained of mistreatment by the staff. The Division declared his allegations unfounded, but nevertheless moved him to a new residential treatment facility in November 2014, where he remained at the time of trial. 5 A-3546-15T1 Jason remained in the same resource home between 2011 and March 2013, when he was moved to a placement committed to adoption. However, he was subsequently moved to multiple resource homes due to his serious behavioral issues. In November 2013, he was admitted to a hospital for psychiatric care after becoming violent at school. In January 2014, Jason was moved to a group home, where he gradually improved over time. During trial, in August 2015, he was moved to a treatment home, where his behavior continued to improve. (ii) Jennifer Jennifer also experienced significant behavioral problems and received evaluations, therapy, medication, and educational services to address her needs. Nevertheless, Jennifer's initial placement with her paternal great-grandmother was stable through early 2014, with the great-grandmother expressing a desire for Jennifer to stay with her on a permanent basis, either through kinship legal guardianship or adoption. In February 2014, after the permanency plan was changed to adoption, the new caseworker observed that the relationship between Jennifer and her great-grandmother became strained. Danielle also reported to the Division that the great-grandmother was neglecting Jennifer. The Division's emergency response unit investigated the allegation, and moved Jennifer to a new resource 6 A-3546-15T1 home based upon the alleged medical neglect, as well as Jennifer's claim that her great-grandmother had been hitting her. During a psychosocial evaluation conducted in March 2014, Jennifer alleged physical abuse and neglect by her great- grandmother; corporal punishment by her father and great- grandmother; sexual abuse by Danielle's boyfriend, M.H.; witnessing M.H. physically abuse Danielle; and witnessing Danielle and M.H. having sexual intercourse. The evaluator recommended therapy, in-home services to assist in behavior management, and assignment of a mentor, as well as parenting lessons for Jennifer's father, and a psychological evaluation and parenting assessment of the great-grandmother, should the Division consider returning Jennifer to her care. The evaluator also reported Jennifer's abuse and neglect allegations to the Division. The Division investigated, and substantiated that Jennifer was a sexually and physically abused child, who also had been neglected and exposed to domestic violence. Jennifer received psychiatric and psychological services. However, her behavior deteriorated to such an extent that she was moved through multiple resource homes over the course of the next few months. In August 2014, Jennifer was hospitalized for inpatient evaluation and treatment. Upon her release, Jennifer was placed in a group home where 7 A-3546-15T1 she continued to receive services. However, she still exhibited behavioral problems, including aggressive behavior and inappropriate sexual interactions with other girls in the home. She also complained of mistreatment by staff members and of threats made by another girl in the home. Jennifer was admitted to a hospital for psychiatric care in October 2014, and again in May 2015. By the time of trial, however, the Division caseworker testified that Jennifer's behavior had improved, and the Division was hoping to move her to a treatment home. That move ultimately occurred in November 2015. Throughout Jennifer's multiple placements, her great- grandmother expressed a desire that Jennifer be returned to her. Jennifer, however, expressed ambivalence on the issue, and her parents and law guardian opposed that plan. The Division nevertheless investigated the possibility, and in November 2015, it sent the great-grandmother for a psychological evaluation, as well as a bonding evaluation with Jennifer. The Division also provided the great-grandmother therapeutic visitation with Jennifer, although she did not attend all of the scheduled visits. Ultimately, the psychologist did not support reunification unless the great-grandmother first received services, and the Division decided not to return Jennifer to her great-grandmother's care. The Division sent the great-grandmother a rule-out letter 8 A-3546-15T1 in January 2016, advising that "the recommendations from your evaluations from November 2015 did not support reunification." At trial, when interviewed, Jennifer told the judge she did not want to live with her great-grandmother. The Fathers (i) Jennifer's Father The Division referred Jennifer's father, Richard, to Dr. Kirschner for a psychological and bonding evaluation. During the evaluation, Richard admitted a past history of drug distribution, and stated he was presently unemployed and receiving public assistance, as well as financial assistance from his mother. He stated Jennifer would "be fine" if he had custody of her, and his family would assist in raising her. Dr. Kirschner found Richard was unable to provide Jennifer with consistency, stability, or permanence due to his lack of parenting skills, independent income, or housing, and his failure to be a consistent presence in Jennifer's life. Although Jennifer had a parent-child bond with Richard, it was an insecure bond given Richard's pattern of inconsistent involvement in Jennifer's life. Dr. Kirschner opined Jennifer might suffer some psychological harm if Richard's parental rights were terminated. However, he believed that harm could be mitigated through mental health 9 A-3546-15T1 services, and the formation of a bond between Jennifer and a caregiver who met her needs. Moreover, notwithstanding there was no prospective adoptive home for Jennifer, Dr. Kirschner opined that termination of Richard's parental rights would not do more harm than good. Citing Jennifer's need for permanence, and the length of time the Division had been involved with the family, he supported the Division's plan for termination of parental rights followed by select home adoption. (ii) Michael's Father Michael's father, Robert, lived in Florida. In September 2011, the Division advised him of Michael's foster placement. At that time, Robert did not offer himself as a placement for Michael. Instead, he stated he would be offering his brother as a placement for Michael. However, Michael had never met this uncle, nor did Robert provide a name or any contact information for his brother. Robert did not offer himself as a placement for Michael until May 2014, after the guardianship complaint had been filed. However, the interstate evaluation requested by the Division rejected Robert as a placement for Michael because he did not comply with the fingerprint process in Florida, and he did not have adequate financial resources, nor space or appropriate sleeping arrangements for Michael in the one-bedroom apartment he shared with his two older sons. 10 A-3546-15T1 During the interstate evaluation in 2015, Robert provided the names of his brother and sister-in-law in Texas. However, he again did not provide any contact information for them, and the Division did not make any attempt to contact them at that time. Although the Division did attempt to communicate with Robert's brother during trial, the caseworker was never able to make contact with him, and the brother never communicated with the Division or expressed any interest in serving as a relative placement for Michael. The record further reflects that Robert failed to keep in touch with the Division. He was advised of court proceedings, but for the most part he did not attend, either in person or by telephone. At trial he appeared only twice, by telephone, including to provide testimony. Robert did not visit with Michael other than in September 2014, when the Division paid for him to come to New Jersey for psychological and bonding evaluations. The Division had no record of Robert maintaining contact with Michael after that visit, even though he was provided with Michael's contact information. Dr. Kirschner conducted Robert's psychological and bonding evaluations in September 2014. He concluded Robert was unable to assume physical custody of Michael and provide him with the consistency, stability or permanence he needed. Dr. Kirschner 11 A-3546-15T1 noted Robert's limited involvement in Michael's life, his limited appreciation of Michael's needs, and the struggles Michael faced with controlling his emotions and behaviors, which resulted in his multiple placements. Thus, Dr. Kirschner found it particularly disconcerting that Robert's plan was for Michael to first temporarily reside with a paternal uncle in Texas, whom Michael had never met, and later live with Robert in Florida, because of the emotional upheaval this would cause in Michael's life. Dr. Kirschner acknowledged, however, that the Division's plan to place Michael in a resource home would present similar concerns. Based on his bonding evaluation, Dr. Kirschner found Robert and Michael had no bond. Consequently, Michael would not experience serious and enduring harm if Robert's parental rights were terminated. Dr. Kirschner concluded termination of Robert's parental rights would not do more harm than good, and he supported the Division's goal of termination of parental rights followed by select home adoption. For his part, Robert testified at trial that he had been self-employed for eighteen years, and lived with his two sons, ages seventeen and twelve, in an apartment in Jacksonville, Florida. He stated he raised these children their entire lives, and he felt capable of raising Michael as well. In terms of the interstate evaluation, Robert admitted he did 12 A-3546-15T1 not have his fingerprints taken in Florida. However, he claimed he was fingerprinted in New Jersey in September 2014. He also stated he would accept the Division's assistance in obtaining a larger space if that was required in order for Michael to live with him, although the Division never made such an offer or offer other services. Robert claimed he provided money to Danielle for Michael's needs. However, he admitted: he never sought custody of Michael before the Division became involved; before the visit in September 2014, he had not seen Michael since 2007 or 2008; and he did not know much about Michael's circumstances because he did not communicate with him other than when Danielle called him in Florida. (iii) Jason's Father The Division was unable to locate Jason's father, Samuel, until March 2014, a month after the guardianship complaint was filed. Thereafter, Samuel attended only one court hearing, and he did not attend the guardianship trial. During his psychological evaluation, Samuel told Dr. Kirschner he was unemployed, and the longest he had held a job was about two years. Samuel stated that for the past year he lived with his brother and his family, and before that he lived for a year with his sister and her family. The last time he had his own 13 A-3546-15T1 apartment was about two years earlier, but he could not afford it because of his child support obligations. Samuel told Dr. Kirschner he believed Jason was about five years old, although he was actually seven. Samuel said he last lived with Jason when Jason was about three years old, and he took care of Jason for two months in the summer before the Division took custody of the children. That summer was the last time Samuel saw Jason, and he made no attempt to keep in contact with him thereafter. Based upon his psychological evaluation of Samuel and his review of background materials, Dr. Kirschner found Samuel suffered from significant cognitive deficits; lacked financial and residential stability; and "essentially abandoned [Jason] to the care of others," while externalizing responsibility for his failure to maintain contact with his son. Dr. Kirschner opined that Samuel was unable to take custody of Jason and provide him with consistency, stability, or permanence. Based on his bonding evaluation, Dr. Kirschner concluded Samuel and Jason were essentially strangers, without any parent- child bond or attachment. When Jason met Samuel at Dr. Kirschner's office, Jason did not recognize Samuel or understand he was his father. Moreover, during the evaluation, the two did not make eye contact or display any affection toward one another. Accordingly, 14 A-3546-15T1 Dr. Kirschner supported the Division's plan for termination of Samuel's parental rights. He opined that Jason would not experience any psychological trauma if Samuel's parental rights were terminated, and terminating his rights would not do more harm than good. Danielle In her trial testimony, Danielle admitted that in the past she and the children had lived in a shelter. She also admitted the children witnessed domestic violence when she lived with M.H., and that after the children were removed from her care she became aware of their allegations that M.H. physically abused them and sexually abused Jennifer. Danielle further admitted Michael had behavioral issues before the Division took custody of him. However, she denied any awareness that the children engaged in sexualized behaviors when they were in her care. Danielle testified that since January 2016, she had been working full-time earning $11 per hour. She had previously worked through a temporary agency, and prior to that, between September 2014 and July or August 2015, she worked for another employer. At the time of trial, Danielle was living in her sister's two-bedroom apartment, with her sister and her sister's two children, trying to save money "so in the event that the kids do return home [she'd] be . . . more financially stable." She 15 A-3546-15T1 believed her children could live in her sister's apartment with her, or with her aunt, both of whom she believed provided safe care for the children upon her arrest in 2011. Danielle denied being told she required therapy before the children could be returned to her. She testified she loved her children, and she felt able to care for them notwithstanding their behavior during some of the visitations. The Division caseworker testified the Division could not return the children to their mother due to her lack of housing and proven employment, and because she never completed individual counseling. Dr. Kirschner performed two psychological evaluations of Danielle, one in July 2014, and the second in February 2015. In August 2014, he also performed a bonding evaluation between Danielle and all three children together. He did not perform separate observations of Danielle with each child individually because Danielle's plan was to be reunified with all three children. Dr. Kirschner concluded Danielle had unresolved psychological issues from her own childhood trauma, which included abuse by her biological mother and in foster placements, and she experienced recurrent episodes of depression. Nevertheless, she was not compliant with the recommended psychological treatment and felt 16 A-3546-15T1 it was neither necessary nor useful. According to Dr. Kirschner, Danielle lacked insight into how her mental health affected her ability to function and her capacity to parent. She also accepted minimal responsibility for her role in the removal of her children. Moreover, she did not appreciate the extent of each of her children's mental health and behavioral problems, and she expressed a willingness to continue their treatment only because it was court-ordered. Dr. Kirschner testified the children experienced "significant trauma and maltreatment while they were in the care" of their mother. In his report, he elaborated: [T]he clinical data suggested that each of [Danielle's] children had experienced a history of psychological trauma, maltreatment and neglect, including exposure to domestic violence, parental substance abuse, inappropriate adult sexual behavior, and physical abuse while in [their] mother's care. Each of these three children have been in residential treatment for the past years and continue to do so at this time. Each of them are at-risk for long-term impairment of their emotional, behavioral and interpersonal functioning and will likely need to continue to receive intensive mental health services for the foreseeable future regardless of their eventual placement. Based upon all these issues, as well as Danielle's lack of stable housing and employment, and a viable plan for reunification, Dr. Kirschner opined that Danielle was unable to provide the 17 A-3546-15T1 children with safety, consistency, stability, or permanency, at the present time or in the foreseeable future. Based on his bonding evaluation, Dr. Kirschner concluded that Michael and Jennifer had insecure parent-child bonds and attachment relationships with their mother. Thus, they would likely suffer some psychological harm if Danielle's parental rights were terminated. However, termination of Danielle's parental rights would not do more harm than good because: termination would end the harm the children were suffering currently based upon the uncertainty of their current situation, and provide them with a viable option for the future; and the harm from termination could be mitigated if the children were able to form bonds with another caregiver. Dr. Kirschner therefore supported the Division's goal of terminating Danielle's parental rights as to Michael and Jennifer, followed by select home adoption, with the children continuing to receive intensive mental health treatment. As for Jason, Dr. Kirschner concluded that although he expressed a desire to be reunified with his mother, his behavior was inconsistent with his having a bond or attachment relationship with her. Therefore, Jason would not be expected to experience serious and enduring psychological harm should Danielle's parental rights be terminated, and termination of her parental rights would 18 A-3546-15T1 not cause him more harm than good. Even assuming Jason had a bond with his mother, however, Dr. Kirschner's opinion would not change given the length of time Jason has been in out-of-home placements and the harm that was causing him. In Dr. Kirschner's opinion, any harm caused to Jason from the termination of his mother's parental rights could be mitigated with intensive mental health treatment and formation of a bond with a caregiver who appropriately met his needs. Thus, Dr. Kirschner also supported the Division's plan for the termination of Danielle's parental rights to Jason, so he could become legally free for select home adoption. Select Home Adoption and the Children's Interviews The Division's family service specialist, Emerald Irby, testified regarding the select home adoption process and her unit's past success in finding adoptive homes for children with difficulties similar to Michael, Jennifer, and Jason. Irby stated her belief that adoptive homes could be found for the children, including the possibility of a home where they could be placed together. The children's caseworker, however, testified that at the time of trial none of the children were eligible to be placed together. Jennifer and Jason had been placed in separate treatment homes, and were not eligible to be placed together, whereas Michael 19 A-3546-15T1 remained in a residential treatment facility and was not eligible to be placed with either of his siblings. Moreover, the caseworker testified that a clinician would have to assess whether the children could live together in the future. When interviewed by the court, all three children stated they wished to live with their mother and siblings. Michael and Jennifer were opposed to adoption, although Jennifer seemingly less so than Michael. Jennifer expressed that she would like to live with a family if she could not live with her mother, whereas Michael said he would not. For his part, Jason said he would feel "good" if he were adopted, and he wanted to live with a family if he could not live with his mother. II. In her comprehensive written opinion, Judge Rosero found the Division witnesses were "knowledgeable and credible," while Danielle and Robert were only "partially credible" because some of their testimony was contradicted by the Division's evidence. Ultimately, the court concluded the Division proved all four prongs of the statutory test by clear and convincing evidence, which the parents challenge on appeal. We address each of the four prongs, and the evidence supporting them, in turn. A. Prongs One and Two "The first two elements of the best interests of the child 20 A-3546-15T1 standard relate to the finding of harm arising out of the parental relationship." In re Guardianship of D.M.H., 161 N.J. 365, 378 (1999). The first prong ("The child's safety, health, or development has been or will continue to be endangered by the parental relationship")3 "does not concentrate on a single or isolated harm or past harm as such. Although a particularly egregious single harm can trigger the standard, the focus is on the effect of harms arising from the parent-child relationship over time on the child's health and development." K.H.O., 161 N.J. at 348. The harm may be physical or psychological. N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 604-05 (1986); N.J. Div. of Youth & Family Servs. v. L.J.D., 428 N.J. Super. 451, 480 (App. Div. 2012). The second prong ("The parent is unwilling or unable to eliminate the harm facing the child or is unable or unwilling to provide a safe and stable home for the child and the delay of permanent placement will add to the harm")4 "is aimed at determining whether the parent has cured and overcome the initial harm that endangered the health, safety, or welfare of the child, and is able to continue a parental relationship without recurrent 3 N.J.S.A. 30:4C-15.1(a)(1). 4 N.J.S.A. 30:4C-15.1(a)(2). 21 A-3546-15T1 harm to the child." K.H.O., 161 N.J. at 348. Alternatively, the second prong may be established through proof "that the parent is unable to provide a safe and stable home for the child and that the delay in securing permanency continues or adds to the child's harm." Id. at 348-49. While the second prong more directly focuses on conduct that equates with parental unfitness, the two components of the harm requirement, N.J.S.A. 30:4C-15.1(a)(1) and (2) are related to one another, and evidence that supports one informs and may support the other as part of the comprehensive basis for determining the best interests of the child. [D.M.H., 161 N.J. at 379.] Addressing prong one, the court found the children's safety, health, or development had been harmed by their relationship with Danielle based upon the "multiple traumas" they suffered while in her care, as evidenced in the numerous evaluations conducted following their removal from her custody. The court cited the children having witnessed domestic violence as well as sexual activity between Danielle and M.H.; Jennifer's reports of sexual abuse by M.H.; and the children's resulting impulse control and behavioral issues, including violent episodes and episodes of sexually inappropriate behavior. The court found the harm Danielle caused the children was continuing because Danielle was "given numerous opportunities to 22 A-3546-15T1 become stable, engage in services, including individual and family counseling, obtain safe and secure housing for her children, and adequately plan for her children, but she failed to do so." Citing Dr. Kirschner's opinion, the court found Danielle was unable to provide the consistency and permanency the children required, at present or for the foreseeable future, and the children were harmed as a result. With respect to Robert, Richard, and Samuel, the court found the children had been psychologically harmed by their relationships with their fathers because of the fathers' past and present "failure to provide their respective child with the nurture and care required for their safety and well-being . . . ." The court found the fathers had not been consistently or significantly involved in their children's lives, nor had they made themselves viable placement options for their children through engagement in services or otherwise. The court also cited Dr. Kirschner's conclusions that termination of the fathers' parental rights would not cause their children serious and enduring harm. Addressing prong two of the statutory test, the court found the parents were "unable or unwilling to eliminate the harm that has endangered the children and the parental relationship." The court noted the length of time the children had been out of their parents' care; Danielle's failure to complete therapeutic 23 A-3546-15T1 services, including family and individual therapy; Danielle's failure to obtain a safe and stable home for the children, notwithstanding the Division's offers of assistance with a security deposit and the first month's rent; Danielle's failure to provide the Division with proof of her employment; and Danielle's numerous missed visits with the children, without valid excuse, which caused the children great distress. The court also relied on Dr. Kirschner's assessment that the children would be in significant danger if placed in Danielle's care. Regarding the fathers, the court noted Robert's failure to maintain contact with Michael both before and after he was removed from Danielle's custody; his lack of knowledge about Michael's status and his emotional, medical, and educational needs; and Robert's failure to develop a viable plan for Michael to be placed in his care or the care of a paternal relative. As for Richard, the court found he "made no efforts to make himself available to care for [Jennifer]," and "showed a lack of desire and commitment to being a part of [Jennifer's] life." The court noted Richard's failure to comply with services offered by the Division, including parenting skills classes and individual therapy, as well as missed visits with Jennifer. Additionally, Richard's proposed placement of Jennifer with his grandmother was not viable given the grandmother's alleged physical abuse and 24 A-3546-15T1 medical neglect of the child. Finally, regarding Samuel, the court noted his complete absence from Jason's life, such that Jason did not recognize him or know Samuel was his father when they were together for a bonding evaluation. The court also noted Samuel's failure to provide a viable plan for Jason, and Dr. Kirschner's opinion that Samuel was unable to assume physical custody of Jason and provide him with consistency, stability, or permanence. On appeal, the parents contend the first two prongs of the test were not met because there was never any finding of abuse or neglect made against them. However, a prior finding of abuse or neglect is not a prerequisite to the Division's pursuing a termination of parental rights. N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 443-44 (2012). The record amply supports the court's conclusion on prongs one and two of the statutory test regarding all of the fathers. As the court found, the record reflects that the fathers were not involved in their children's lives. At most, they had occasional and inconsistent contact with their children. Of the three fathers, only Robert offered himself as a placement for his child, although he had no viable plan for doing so, and alternatively offered relatives as possible placements. Richard and Samuel failed to engage in the services offered by the Division and 25 A-3546-15T1 professed an inability to support their children, instead offering relatives as possible placements. All of the possible relative placements were reasonably ruled out by the Division. While Robert complains that the Division did not timely assess his offered placements, see N.J.S.A. 30:4C- 12.1(a), when the Division ultimately did inquire of the proposed relatives, they either ignored the Division's inquiries or responded they did not want to serve as a placement for Michael. The fathers' absence from their children's lives, both before and after their removal, and their persistent inability or unwillingness to provide the children with a safe and stable home, constitutes a present and continuing harm recognized under prongs one and two of the statutory test. D.M.H., 161 N.J. at 379-83. "[I]njury to children need not be physical to give rise to State termination of biological parent-child relationships. Serious and lasting emotional or psychological harm to children as the result of the action or inaction of their biological parents can constitute injury sufficient to authorize the termination of parental rights." In re Guardianship of K.L.F., 129 N.J. 32, 44 (1992). Moreover, "[a] parent's withdrawal of . . . solicitude, nurture, and care for an extended period of time is in itself a harm that endangers the health and development of the child." 26 A-3546-15T1 D.M.H., 161 N.J. at 379; see also K.H.O., 161 N.J. at 353 (stating that second prong may be established by "indications of parental dereliction and irresponsibility," including "the inability to provide a stable and protective home," or "the withholding of parental attention and care"); In re Adoption of Children by G.P.B., 161 N.J. 396, 414 (1999) (O'Hern, J., concurring) (stating that a "father who never sees his child or never makes efforts to be a part of a child's life sufficient to cause the child to view the person as a parent, causes harm to the child"). The record is also replete with evidence supporting the court's conclusion that prongs one and two were satisfied as to Danielle. Notably, Danielle admitted that all of her romantic relationships involved domestic violence. At trial, she also admitted the children were exposed to M.H.'s domestic violence, which constitutes harm. F.M., 211 N.J. at 449; N.J. Div. of Youth and Family Servs. v. S.V., 362 N.J. Super. 76, 84 (App. Div. 2003). Moreover, as the court found, the children's behaviors while in the Division's custody, and their need for significant psychological, educational, and behavioral interventions, are indicative of Danielle's failure to provide them with a safe and stable environment prior to removal, which caused them psychological harm. See N.J. Div. of Youth & Family Servs. v. B.G.S., 291 N.J. Super. 582, 591-92 (App. Div. 1996) ("Evidence 27 A-3546-15T1 of serious emotional injury or developmental delay satisfies [prong one]."). Further, Dr. Kirschner testified the children experienced trauma and neglect while in Danielle's care. See D.M.H., 161 N.J. at 380 (citing expert testimony attributing children's behaviors to the instability and turmoil in their early lives). Finally, the court reasonably concluded Danielle has been unwilling or unable to provide her children with a safe and stable home, and the delay of permanent placement will add to the harm (prong two), citing her failure to engage in therapy or obtain housing, and her lack of consistency in visiting the children, as well as Dr. Kirschner's testimony. B. Prong Three The third prong of the statutory test requires proof that the Division "made reasonable efforts to provide services to help the parent correct the circumstances which led to the child's placement outside the home and the court has considered alternatives to termination of parental rights[.]" N.J.S.A. 30:4C-15.1(a)(3). It requires the Division "to undertake diligent efforts to reunite the family." K.H.O., 161 N.J. at 354. Where, as here, one parent has been the custodial parent and takes the primary or dominant role in caring for the children, it is reasonable for [the Division] to continue to focus its efforts of family reunification on that custodial parent, 28 A-3546-15T1 so long as [the Division] does not ignore or exclude the non-custodial parent. [D.M.H., 161 N.J. at 393.] Here, the trial court found the Division made reasonable efforts to assist the parents in correcting the circumstances that led to their children's placement outside the home. Specifically, the court found the Division offered the parents visitation. However, the fathers did not participate, and Danielle's participation was inconsistent. In addition, the court found the Division communicated regularly with the parents and offered them psychological evaluations, substance abuse assessments, parenting skills programs, individual and family therapy, family team meetings, case plans, family agreements, domestic violence counseling, assessments of relative placements, and housing and transportation assistance. However, while Danielle completed one year of individual counseling through domestic violence services, she was "less than minimally involved in the other Division recommended services." Also, all of the proposed relative placements were ruled out. The court further found the Division provided the children with a multitude of services to address their needs, including medical evaluations, individual and family therapy, psychological 29 A-3546-15T1 evaluations, psychiatric evaluations, neuropsychological evaluations, educational assistance, in-home therapy, medication monitoring, foster placement, board payments, and an early intervention assessment. Finally, the court considered alternatives to the termination of parental rights. For example, the court noted that in the past it had rejected the Division's proposed plan for adoption, and instead provided Danielle with additional time to complete services and secure appropriate housing. However, Danielle did not do what was necessary, and none of the proposed relative placements were viable. Thus, the court found no alternative to termination. The record supports the court's factual findings and legal conclusions on prong three. Contrary to the parents' arguments on appeal, the Division offered them relevant services to effectuate family reunification, but the parents did not comply with those services, or did not benefit from them. In particular, Danielle and Robert argue that the only thing standing in the way of reunification with their children is their inadequate housing, which is a result of their poverty. However, the record does not support their arguments. To the contrary, the court properly noted that the Division offered Danielle support in finding housing, including an offer to pay the first month's 30 A-3546-15T1 rent and a security deposit, but more than four years after the children's removal she still had not secured a residence. Moreover, housing was not Danielle's only deficiency, as she was also non-compliant with individual therapy. With respect to Robert, his inadequate housing was not the only barrier to his taking custody of Michael. Rather, the most significant barrier was his almost complete absence from Michael's life. Importantly, Robert failed to communicate with Michael or visit with him both before and after the Division took custody, and consequently he lacked any understanding of Michael's circumstances and his needs. Robert also complains that the Division failed to make a timely search for relative placements for Michael. See N.J.S.A. 30:4C-12.1; N.J. Div. of Youth & Family Servs. v. J.S., 433 N.J. Super. 69, 81-83 (App. Div. 2013). In this regard, at trial, much was made of the fact that during the interstate evaluation in 2015, Robert provided the names of his brother and sister-in-law in Texas. However, Robert did not provide any contact information for these relatives. Thus, the Division did not attempt to contact them. In any event, during trial, the Division attempted to contact Robert's brother, and also communicated with Robert's parents. However, these efforts were unfruitful. Robert's parents declined 31 A-3546-15T1 to serve as a placement for Michael, and his brother never communicated with the Division or expressed any interest in caring for Michael. Thus, any lack of timeliness on the part of the Division in investigating these proposed family placements ultimately had no bearing on the termination of Robert's parental rights. C. Prong Four "[T]he fourth prong — whether termination of parental rights will do more harm than good — is a 'fail-safe' inquiry guarding against an inappropriate or premature termination of parental rights." F.M., 211 N.J. at 453. It does not require proof that no harm will befall the child from termination of their parents' rights. K.H.O., 161 N.J. at 355. "[T]he risk to children stemming from the deprivation of the custody of their natural parent inheres in the termination of parental rights and is based on the paramount need the children have for permanent and defined parent-child relationships." In re Guardianship of J.N.H., 172 N.J. 440, 478 (2002). Where, as here, no bond or relationship exists between the child and a resource parent, courts should exercise particular caution, because "terminating parental rights without any compensating benefit, such as adoption, may do great harm to a child." N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 32 A-3546-15T1 109 (2008). Nevertheless, there is no requirement that the children have a relationship with a resource parent for the Division to establish prong four. The Supreme Court has recognized that "termination of parental rights does not automatically lead to adoption or other comparable permanent arrangements." K.H.O., 161 N.J. at 359. Moreover, "there will be circumstances when the termination of parental rights must precede the permanency plan." A.W., 103 N.J. at 611. Although there is a "natural tendency to want to continue working with parents to restore the family unit," the court "must not lose sight of time from the perspective of the child's needs," and must keep in mind the State's "strong public policy in favor of permanency." K.H.O., 161 N.J. at 357. "Children must not languish indefinitely in foster care while a birth parent attempts to correct the conditions that resulted in an out-of-home placement." N.J. Div. of Youth & Family Servs. v. S.F., 392 N.J. Super. 201, 209 (App. Div. 2007); see also N.J. Div. of Youth & Family Servs. v. A.G., 344 N.J. Super. 418, 438 (App. Div. 2001) (stating that keeping a child "in limbo, hoping for some long term unification plan, would be a misapplication of the law"). "Long- term foster care is the exception to the general rule favoring adoption, and is available under only very limited circumstances 33 A-3546-15T1 . . ." K.H.O., 161 N.J. at 360. In the present case, the trial court concluded it was in the children's best interests that their parents' rights be terminated, and termination of their parental rights would not do more harm than good. The court cited Dr. Kirschner's opinions and the factual record, and found "no realistic likelihood" that any of the parents would "be able to safely and appropriately care for" their children "now or in the foreseeable future." While the court acknowledged the children's opposition to termination, and their desire to live with their mother, it determined their wishes were not dispositive. Rather, the court found the children were "in desperate need of permanency and stability," and concluded these needs were "of paramount concern at this time." Citing the factual record and Dr. Kirschner's opinion, the court concluded Danielle was "not in the position to care for her children," nor would it be in their best interests to be placed in her care. Moreover, the court relied on Dr. Kirschner's opinion in concluding the children had only insecure attachments to their mother, as they were uncertain of her ability to care for them. The court also relied upon Dr. Kirschner's assessment in concluding the children were "still of the age that they can form healthy attachments provided they are able to bond with another 34 A-3546-15T1 caregiver" through a select home adoption, "which would offer the children the opportunity to have a permanent, safe and stable home" and overcome any harm caused by the termination of their parents' rights. Addressing the fathers in particular, the court cited Dr. Kirschner's opinion and Robert's minimal involvement in Michael's life in concluding that Michael had no bond or attachment with his father, and would not experience serious and enduring harm if Robert's parental rights were terminated, particularly if he were able to form a bond with another caregiver. As for Richard, the court found he had not shown any commitment to Jennifer, as he had been in and out of her life and never provided her with a safe and stable home. The court relied upon Dr. Kirschner's opinions in finding that Jennifer had a parent-child bond with her father, and would experience some psychological harm if his parental rights were terminated; however, that harm could be mitigated if Jennifer were able to form a bond with another caregiver. As for Samuel, the court found he had no bond with Jason, and was unable to provide Jason with a safe and stable home. The court again relied on Dr. Kirschner's opinion that because there was no bond between father and son, Jason would not suffer any harm if Samuel's parental rights were terminated. 35 A-3546-15T1 Finally, the court accepted Irby's testimony that, notwithstanding the children's issues, it was likely all three could be placed with a family through the select home adoption process, and termination of parental rights would open new avenues for finding them adoptive homes. While we appreciate the Law Guardian's concern that the fourth prong has not been met as to Danielle, ultimately we conclude otherwise. We find sufficient credible evidence in the record to support Judge Rosero's finding that termination of parental rights will not do more harm than good, and would be in the children's best interests. At this stage, the children's need for permanency is paramount. They have been out of Danielle's care for more than six years, and have little or no relationship with their respective fathers. They should not continue to languish, especially where the undisputed expert evidence establishes there is "no realistic likelihood" that Danielle will be able to safely and appropriately care for them within the foreseeable future. III. Finally, Robert argues separately that the ICPC is inapplicable to placement of a child with a biological parent, and that the trial court erred in accepting the Division's "blanket adoption" of the interstate study performed by the State of Florida. We do not find this argument persuasive. 36 A-3546-15T1 In support of his position, Robert relies on N.J. Div. of Youth & Family Servs. v. K.F., 353 N.J. Super. 623, 625-26, 635 (App. Div. 2002), where we held the ICPC "does not apply to relative placement and, therefore, it does not require the prior approval of the receiving state when a court in this state has decided against foster care in favor of placing children with their out-of-state maternal grandparents." (emphasis added). However, K.F. does not address the Division's obligations with respect to assessing and placing a child with an out-of-state relative, parent or otherwise. The case only speaks to the court's ability to place a child with an out-of-state relative without reference to the ICPC standards, particularly where the court had dismissed the Division's case, and the relatives were deemed appropriate caretakers for the children, had complied with services, and had filed for custody of the children. Id. at 635- 38. Moreover, to the extent we held in K.F. that a placement to a natural parent is exempt from the ICPC, our holding was premised on the "nonsensical" application of the ICPC "to prohibit a court's placement of children with their natural family solely because that family resides in another state." Id. at 635. Indeed, "[t]he ICPC was intended to remove, not to create, obstacles to out-of- state placements that are in the best interests of children." 37 A-3546-15T1 Ibid. Here, regardless of whether the Division or the trial court were bound by the result of Florida's ICPC assessment, under the circumstances presented, it was reasonable for the Division to request the assessment. An assessment of Robert's fitness was necessary because Robert never had custody of his son, there was no shared custody arrangement between Danielle and Robert, and Michael was a deeply troubled child in need of supervision and services provided by a state child protective services agency. Thus, neither the Division nor the court could send Michael to live with Robert in Florida without first determining if it was in Michael's best interests to do so, and, if he were placed in Robert's custody, also arranging for after-placement care and supervision. Ultimately, the trial court barely referenced the results of the Florida interstate evaluation in concluding it was in Michael's best interests to terminate Robert's parental rights. Rather, the court merely noted that the results of the ICPC showed Robert made no real effort to make himself a viable placement for his son, which is consistent with ample additional evidence in the record. Affirmed. 38 A-3546-15T1
Date: March 14, 2018
Docket Number: a3546-15 PER CURIAM In these four consolidated appeals, a mother and three fathers appeal from the April 7, 2016 judgment terminating their parental rights. The mother, D.A.G. (Danielle)1 appeals from the termination of her parental rights to her three children: M.G. (Michael), presently fourteen years old, J.V.J. (Jennifer), presently twelve years old, and J.S.-T.G. (Jason), presently ten years old.2 R.L.B. (Robert) appeals from the termination of his 1 Pursuant to Rule 1:38-3(d)(12), we use pseudonyms for the parents and children to protect their confidentiality. 2 Danielle is also the mother of a fourth child, J.C., who is presently eight years old and is not the subject of these termination of parental rights proceedings. 2 A-3546-15T1 parental rights to Michael; R.J. (Richard) appeals from the termination of his parental rights to Jennifer; and S.T. (Samuel) appeals from the termination of his parental rights to Jason. The parents argue that the judgment should be reversed because the Division of Child Protection and Permanency (Division) did not prove all four prongs of the best interests of the child test under N.J.S.A. 30:4C-15.1(a). The Law Guardian argues that the Division proved all four prongs as to the fathers, but failed to prove prong four as to Danielle. Robert also argues that the Interstate Compact on the Placement of Children (ICPC), N.J.S.A. 9:23-5, does not apply to out-of-state placements of children with their biological parents, and therefore the court erred in relying upon Florida's negative ICPC assessment of his home. In a comprehensive and well-reasoned ninety-four-page written opinion, Judge Marysol Rosero found the Division satisfied the four-prong test by clear and convincing evidence and held that the termination was in the children's best interests. In re Guardianship of K.H.O., 161 N.J. 337 (1999). Based on our review of the record and applicable law, we are satisfied the evidence in favor of the guardianship petition adequately supports the termination of the parents' respective parental rights. See N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007) (holding that a reviewing court should uphold the factual findings 3 A-3546-15T1 respecting the termination of parental rights if they are supported by substantial and credible evidence in the record as a whole). Accordingly, we affirm. I. The guardianship trial commenced on June 23, 2015, and continued on various non-consecutive dates until March 24, 2016. At the trial, the Division moved 235 exhibits into evidence, and presented testimony from Eric Kirschner, Ph.D., a psychologist; Ashley Mystila, a Division caseworker; and Emerald Irby, the Division's adoption/select home specialist. Danielle testified on her own behalf. For the most part, the fathers did not appear at trial, except Richard appeared for a few days, as did Robert (by telephone from Florida). The judge also conducted interviews of the children. The evidence adduced at the trial is set forth at length in Judge Rosero's opinion and need not be repeated in the same level of detail here. We recount the most significant evidence to lend context to the analysis that follows. The Children (i) Michael and Jason After the Division removed the children from Danielle's care in 2011, both Michael and Jason were evaluated and observed to have short attention spans, and hyperactivity with aggressive 4 A-3546-15T1 behavior. Throughout the Division's involvement, both children have been provided with services, including psychological and psychiatric evaluations, therapy, and medication to address their trauma and behavioral issues, as well as educational interventions. Although the boys initially were placed in the same resource home, Michael was removed from that home in early 2012, due to his inappropriate sexual touching of Jason, with Jason indicating that Michael had behaved similarly in the past. Michael was placed in a therapeutic resource home, but due to his dangerous and uncontrollable behavior, he was taken to the hospital numerous times in March 2012. He was placed on medication, moved to a different resource home, and ultimately moved to a residential treatment center in April 2012. In the residential treatment facility, Michael continued to experience depression, demonstrate aggression, and present behavioral problems. In January 2014, however, he was stepped down to a different program, due to improvements in his behavior. Michael struggled in his new placement and complained of mistreatment by the staff. The Division declared his allegations unfounded, but nevertheless moved him to a new residential treatment facility in November 2014, where he remained at the time of trial. 5 A-3546-15T1 Jason remained in the same resource home between 2011 and March 2013, when he was moved to a placement committed to adoption. However, he was subsequently moved to multiple resource homes due to his serious behavioral issues. In November 2013, he was admitted to a hospital for psychiatric care after becoming violent at school. In January 2014, Jason was moved to a group home, where he gradually improved over time. During trial, in August 2015, he was moved to a treatment home, where his behavior continued to improve. (ii) Jennifer Jennifer also experienced significant behavioral problems and received evaluations, therapy, medication, and educational services to address her needs. Nevertheless, Jennifer's initial placement with her paternal great-grandmother was stable through early 2014, with the great-grandmother expressing a desire for Jennifer to stay with her on a permanent basis, either through kinship legal guardianship or adoption. In February 2014, after the permanency plan was changed to adoption, the new caseworker observed that the relationship between Jennifer and her great-grandmother became strained. Danielle also reported to the Division that the great-grandmother was neglecting Jennifer. The Division's emergency response unit investigated the allegation, and moved Jennifer to a new resource 6 A-3546-15T1 home based upon the alleged medical neglect, as well as Jennifer's claim that her great-grandmother had been hitting her. During a psychosocial evaluation conducted in March 2014, Jennifer alleged physical abuse and neglect by her great- grandmother; corporal punishment by her father and great- grandmother; sexual abuse by Danielle's boyfriend, M.H.; witnessing M.H. physically abuse Danielle; and witnessing Danielle and M.H. having sexual intercourse. The evaluator recommended therapy, in-home services to assist in behavior management, and assignment of a mentor, as well as parenting lessons for Jennifer's father, and a psychological evaluation and parenting assessment of the great-grandmother, should the Division consider returning Jennifer to her care. The evaluator also reported Jennifer's abuse and neglect allegations to the Division. The Division investigated, and substantiated that Jennifer was a sexually and physically abused child, who also had been neglected and exposed to domestic violence. Jennifer received psychiatric and psychological services. However, her behavior deteriorated to such an extent that she was moved through multiple resource homes over the course of the next few months. In August 2014, Jennifer was hospitalized for inpatient evaluation and treatment. Upon her release, Jennifer was placed in a group home where 7 A-3546-15T1 she continued to receive services. However, she still exhibited behavioral problems, including aggressive behavior and inappropriate sexual interactions with other girls in the home. She also complained of mistreatment by staff members and of threats made by another girl in the home. Jennifer was admitted to a hospital for psychiatric care in October 2014, and again in May 2015. By the time of trial, however, the Division caseworker testified that Jennifer's behavior had improved, and the Division was hoping to move her to a treatment home. That move ultimately occurred in November 2015. Throughout Jennifer's multiple placements, her great- grandmother expressed a desire that Jennifer be returned to her. Jennifer, however, expressed ambivalence on the issue, and her parents and law guardian opposed that plan. The Division nevertheless investigated the possibility, and in November 2015, it sent the great-grandmother for a psychological evaluation, as well as a bonding evaluation with Jennifer. The Division also provided the great-grandmother therapeutic visitation with Jennifer, although she did not attend all of the scheduled visits. Ultimately, the psychologist did not support reunification unless the great-grandmother first received services, and the Division decided not to return Jennifer to her great-grandmother's care. The Division sent the great-grandmother a rule-out letter 8 A-3546-15T1 in January 2016, advising that "the recommendations from your evaluations from November 2015 did not support reunification." At trial, when interviewed, Jennifer told the judge she did not want to live with her great-grandmother. The Fathers (i) Jennifer's Father The Division referred Jennifer's father, Richard, to Dr. Kirschner for a psychological and bonding evaluation. During the evaluation, Richard admitted a past history of drug distribution, and stated he was presently unemployed and receiving public assistance, as well as financial assistance from his mother. He stated Jennifer would "be fine" if he had custody of her, and his family would assist in raising her. Dr. Kirschner found Richard was unable to provide Jennifer with consistency, stability, or permanence due to his lack of parenting skills, independent income, or housing, and his failure to be a consistent presence in Jennifer's life. Although Jennifer had a parent-child bond with Richard, it was an insecure bond given Richard's pattern of inconsistent involvement in Jennifer's life. Dr. Kirschner opined Jennifer might suffer some psychological harm if Richard's parental rights were terminated. However, he believed that harm could be mitigated through mental health 9 A-3546-15T1 services, and the formation of a bond between Jennifer and a caregiver who met her needs. Moreover, notwithstanding there was no prospective adoptive home for Jennifer, Dr. Kirschner opined that termination of Richard's parental rights would not do more harm than good. Citing Jennifer's need for permanence, and the length of time the Division had been involved with the family, he supported the Division's plan for termination of parental rights followed by select home adoption. (ii) Michael's Father Michael's father, Robert, lived in Florida. In September 2011, the Division advised him of Michael's foster placement. At that time, Robert did not offer himself as a placement for Michael. Instead, he stated he would be offering his brother as a placement for Michael. However, Michael had never met this uncle, nor did Robert provide a name or any contact information for his brother. Robert did not offer himself as a placement for Michael until May 2014, after the guardianship complaint had been filed. However, the interstate evaluation requested by the Division rejected Robert as a placement for Michael because he did not comply with the fingerprint process in Florida, and he did not have adequate financial resources, nor space or appropriate sleeping arrangements for Michael in the one-bedroom apartment he shared with his two older sons. 10 A-3546-15T1 During the interstate evaluation in 2015, Robert provided the names of his brother and sister-in-law in Texas. However, he again did not provide any contact information for them, and the Division did not make any attempt to contact them at that time. Although the Division did attempt to communicate with Robert's brother during trial, the caseworker was never able to make contact with him, and the brother never communicated with the Division or expressed any interest in serving as a relative placement for Michael. The record further reflects that Robert failed to keep in touch with the Division. He was advised of court proceedings, but for the most part he did not attend, either in person or by telephone. At trial he appeared only twice, by telephone, including to provide testimony. Robert did not visit with Michael other than in September 2014, when the Division paid for him to come to New Jersey for psychological and bonding evaluations. The Division had no record of Robert maintaining contact with Michael after that visit, even though he was provided with Michael's contact information. Dr. Kirschner conducted Robert's psychological and bonding evaluations in September 2014. He concluded Robert was unable to assume physical custody of Michael and provide him with the consistency, stability or permanence he needed. Dr. Kirschner 11 A-3546-15T1 noted Robert's limited involvement in Michael's life, his limited appreciation of Michael's needs, and the struggles Michael faced with controlling his emotions and behaviors, which resulted in his multiple placements. Thus, Dr. Kirschner found it particularly disconcerting that Robert's plan was for Michael to first temporarily reside with a paternal uncle in Texas, whom Michael had never met, and later live with Robert in Florida, because of the emotional upheaval this would cause in Michael's life. Dr. Kirschner acknowledged, however, that the Division's plan to place Michael in a resource home would present similar concerns. Based on his bonding evaluation, Dr. Kirschner found Robert and Michael had no bond. Consequently, Michael would not experience serious and enduring harm if Robert's parental rights were terminated. Dr. Kirschner concluded termination of Robert's parental rights would not do more harm than good, and he supported the Division's goal of termination of parental rights followed by select home adoption. For his part, Robert testified at trial that he had been self-employed for eighteen years, and lived with his two sons, ages seventeen and twelve, in an apartment in Jacksonville, Florida. He stated he raised these children their entire lives, and he felt capable of raising Michael as well. In terms of the interstate evaluation, Robert admitted he did 12 A-3546-15T1 not have his fingerprints taken in Florida. However, he claimed he was fingerprinted in New Jersey in September 2014. He also stated he would accept the Division's assistance in obtaining a larger space if that was required in order for Michael to live with him, although the Division never made such an offer or offer other services. Robert claimed he provided money to Danielle for Michael's needs. However, he admitted: he never sought custody of Michael before the Division became involved; before the visit in September 2014, he had not seen Michael since 2007 or 2008; and he did not know much about Michael's circumstances because he did not communicate with him other than when Danielle called him in Florida. (iii) Jason's Father The Division was unable to locate Jason's father, Samuel, until March 2014, a month after the guardianship complaint was filed. Thereafter, Samuel attended only one court hearing, and he did not attend the guardianship trial. During his psychological evaluation, Samuel told Dr. Kirschner he was unemployed, and the longest he had held a job was about two years. Samuel stated that for the past year he lived with his brother and his family, and before that he lived for a year with his sister and her family. The last time he had his own 13 A-3546-15T1 apartment was about two years earlier, but he could not afford it because of his child support obligations. Samuel told Dr. Kirschner he believed Jason was about five years old, although he was actually seven. Samuel said he last lived with Jason when Jason was about three years old, and he took care of Jason for two months in the summer before the Division took custody of the children. That summer was the last time Samuel saw Jason, and he made no attempt to keep in contact with him thereafter. Based upon his psychological evaluation of Samuel and his review of background materials, Dr. Kirschner found Samuel suffered from significant cognitive deficits; lacked financial and residential stability; and "essentially abandoned [Jason] to the care of others," while externalizing responsibility for his failure to maintain contact with his son. Dr. Kirschner opined that Samuel was unable to take custody of Jason and provide him with consistency, stability, or permanence. Based on his bonding evaluation, Dr. Kirschner concluded Samuel and Jason were essentially strangers, without any parent- child bond or attachment. When Jason met Samuel at Dr. Kirschner's office, Jason did not recognize Samuel or understand he was his father. Moreover, during the evaluation, the two did not make eye contact or display any affection toward one another. Accordingly, 14 A-3546-15T1 Dr. Kirschner supported the Division's plan for termination of Samuel's parental rights. He opined that Jason would not experience any psychological trauma if Samuel's parental rights were terminated, and terminating his rights would not do more harm than good. Danielle In her trial testimony, Danielle admitted that in the past she and the children had lived in a shelter. She also admitted the children witnessed domestic violence when she lived with M.H., and that after the children were removed from her care she became aware of their allegations that M.H. physically abused them and sexually abused Jennifer. Danielle further admitted Michael had behavioral issues before the Division took custody of him. However, she denied any awareness that the children engaged in sexualized behaviors when they were in her care. Danielle testified that since January 2016, she had been working full-time earning $11 per hour. She had previously worked through a temporary agency, and prior to that, between September 2014 and July or August 2015, she worked for another employer. At the time of trial, Danielle was living in her sister's two-bedroom apartment, with her sister and her sister's two children, trying to save money "so in the event that the kids do return home [she'd] be . . . more financially stable." She 15 A-3546-15T1 believed her children could live in her sister's apartment with her, or with her aunt, both of whom she believed provided safe care for the children upon her arrest in 2011. Danielle denied being told she required therapy before the children could be returned to her. She testified she loved her children, and she felt able to care for them notwithstanding their behavior during some of the visitations. The Division caseworker testified the Division could not return the children to their mother due to her lack of housing and proven employment, and because she never completed individual counseling. Dr. Kirschner performed two psychological evaluations of Danielle, one in July 2014, and the second in February 2015. In August 2014, he also performed a bonding evaluation between Danielle and all three children together. He did not perform separate observations of Danielle with each child individually because Danielle's plan was to be reunified with all three children. Dr. Kirschner concluded Danielle had unresolved psychological issues from her own childhood trauma, which included abuse by her biological mother and in foster placements, and she experienced recurrent episodes of depression. Nevertheless, she was not compliant with the recommended psychological treatment and felt 16 A-3546-15T1 it was neither necessary nor useful. According to Dr. Kirschner, Danielle lacked insight into how her mental health affected her ability to function and her capacity to parent. She also accepted minimal responsibility for her role in the removal of her children. Moreover, she did not appreciate the extent of each of her children's mental health and behavioral problems, and she expressed a willingness to continue their treatment only because it was court-ordered. Dr. Kirschner testified the children experienced "significant trauma and maltreatment while they were in the care" of their mother. In his report, he elaborated: [T]he clinical data suggested that each of [Danielle's] children had experienced a history of psychological trauma, maltreatment and neglect, including exposure to domestic violence, parental substance abuse, inappropriate adult sexual behavior, and physical abuse while in [their] mother's care. Each of these three children have been in residential treatment for the past years and continue to do so at this time. Each of them are at-risk for long-term impairment of their emotional, behavioral and interpersonal functioning and will likely need to continue to receive intensive mental health services for the foreseeable future regardless of their eventual placement. Based upon all these issues, as well as Danielle's lack of stable housing and employment, and a viable plan for reunification, Dr. Kirschner opined that Danielle was unable to provide the 17 A-3546-15T1 children with safety, consistency, stability, or permanency, at the present time or in the foreseeable future. Based on his bonding evaluation, Dr. Kirschner concluded that Michael and Jennifer had insecure parent-child bonds and attachment relationships with their mother. Thus, they would likely suffer some psychological harm if Danielle's parental rights were terminated. However, termination of Danielle's parental rights would not do more harm than good because: termination would end the harm the children were suffering currently based upon the uncertainty of their current situation, and provide them with a viable option for the future; and the harm from termination could be mitigated if the children were able to form bonds with another caregiver. Dr. Kirschner therefore supported the Division's goal of terminating Danielle's parental rights as to Michael and Jennifer, followed by select home adoption, with the children continuing to receive intensive mental health treatment. As for Jason, Dr. Kirschner concluded that although he expressed a desire to be reunified with his mother, his behavior was inconsistent with his having a bond or attachment relationship with her. Therefore, Jason would not be expected to experience serious and enduring psychological harm should Danielle's parental rights be terminated, and termination of her parental rights would 18 A-3546-15T1 not cause him more harm than good. Even assuming Jason had a bond with his mother, however, Dr. Kirschner's opinion would not change given the length of time Jason has been in out-of-home placements and the harm that was causing him. In Dr. Kirschner's opinion, any harm caused to Jason from the termination of his mother's parental rights could be mitigated with intensive mental health treatment and formation of a bond with a caregiver who appropriately met his needs. Thus, Dr. Kirschner also supported the Division's plan for the termination of Danielle's parental rights to Jason, so he could become legally free for select home adoption. Select Home Adoption and the Children's Interviews The Division's family service specialist, Emerald Irby, testified regarding the select home adoption process and her unit's past success in finding adoptive homes for children with difficulties similar to Michael, Jennifer, and Jason. Irby stated her belief that adoptive homes could be found for the children, including the possibility of a home where they could be placed together. The children's caseworker, however, testified that at the time of trial none of the children were eligible to be placed together. Jennifer and Jason had been placed in separate treatment homes, and were not eligible to be placed together, whereas Michael 19 A-3546-15T1 remained in a residential treatment facility and was not eligible to be placed with either of his siblings. Moreover, the caseworker testified that a clinician would have to assess whether the children could live together in the future. When interviewed by the court, all three children stated they wished to live with their mother and siblings. Michael and Jennifer were opposed to adoption, although Jennifer seemingly less so than Michael. Jennifer expressed that she would like to live with a family if she could not live with her mother, whereas Michael said he would not. For his part, Jason said he would feel "good" if he were adopted, and he wanted to live with a family if he could not live with his mother. II. In her comprehensive written opinion, Judge Rosero found the Division witnesses were "knowledgeable and credible," while Danielle and Robert were only "partially credible" because some of their testimony was contradicted by the Division's evidence. Ultimately, the court concluded the Division proved all four prongs of the statutory test by clear and convincing evidence, which the parents challenge on appeal. We address each of the four prongs, and the evidence supporting them, in turn. A. Prongs One and Two "The first two elements of the best interests of the child 20 A-3546-15T1 standard relate to the finding of harm arising out of the parental relationship." In re Guardianship of D.M.H., 161 N.J. 365, 378 (1999). The first prong ("The child's safety, health, or development has been or will continue to be endangered by the parental relationship")3 "does not concentrate on a single or isolated harm or past harm as such. Although a particularly egregious single harm can trigger the standard, the focus is on the effect of harms arising from the parent-child relationship over time on the child's health and development." K.H.O., 161 N.J. at 348. The harm may be physical or psychological. N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 604-05 (1986); N.J. Div. of Youth & Family Servs. v. L.J.D., 428 N.J. Super. 451, 480 (App. Div. 2012). The second prong ("The parent is unwilling or unable to eliminate the harm facing the child or is unable or unwilling to provide a safe and stable home for the child and the delay of permanent placement will add to the harm")4 "is aimed at determining whether the parent has cured and overcome the initial harm that endangered the health, safety, or welfare of the child, and is able to continue a parental relationship without recurrent 3 N.J.S.A. 30:4C-15.1(a)(1). 4 N.J.S.A. 30:4C-15.1(a)(2). 21 A-3546-15T1 harm to the child." K.H.O., 161 N.J. at 348. Alternatively, the second prong may be established through proof "that the parent is unable to provide a safe and stable home for the child and that the delay in securing permanency continues or adds to the child's harm." Id. at 348-49. While the second prong more directly focuses on conduct that equates with parental unfitness, the two components of the harm requirement, N.J.S.A. 30:4C-15.1(a)(1) and (2) are related to one another, and evidence that supports one informs and may support the other as part of the comprehensive basis for determining the best interests of the child. [D.M.H., 161 N.J. at 379.] Addressing prong one, the court found the children's safety, health, or development had been harmed by their relationship with Danielle based upon the "multiple traumas" they suffered while in her care, as evidenced in the numerous evaluations conducted following their removal from her custody. The court cited the children having witnessed domestic violence as well as sexual activity between Danielle and M.H.; Jennifer's reports of sexual abuse by M.H.; and the children's resulting impulse control and behavioral issues, including violent episodes and episodes of sexually inappropriate behavior. The court found the harm Danielle caused the children was continuing because Danielle was "given numerous opportunities to 22 A-3546-15T1 become stable, engage in services, including individual and family counseling, obtain safe and secure housing for her children, and adequately plan for her children, but she failed to do so." Citing Dr. Kirschner's opinion, the court found Danielle was unable to provide the consistency and permanency the children required, at present or for the foreseeable future, and the children were harmed as a result. With respect to Robert, Richard, and Samuel, the court found the children had been psychologically harmed by their relationships with their fathers because of the fathers' past and present "failure to provide their respective child with the nurture and care required for their safety and well-being . . . ." The court found the fathers had not been consistently or significantly involved in their children's lives, nor had they made themselves viable placement options for their children through engagement in services or otherwise. The court also cited Dr. Kirschner's conclusions that termination of the fathers' parental rights would not cause their children serious and enduring harm. Addressing prong two of the statutory test, the court found the parents were "unable or unwilling to eliminate the harm that has endangered the children and the parental relationship." The court noted the length of time the children had been out of their parents' care; Danielle's failure to complete therapeutic 23 A-3546-15T1 services, including family and individual therapy; Danielle's failure to obtain a safe and stable home for the children, notwithstanding the Division's offers of assistance with a security deposit and the first month's rent; Danielle's failure to provide the Division with proof of her employment; and Danielle's numerous missed visits with the children, without valid excuse, which caused the children great distress. The court also relied on Dr. Kirschner's assessment that the children would be in significant danger if placed in Danielle's care. Regarding the fathers, the court noted Robert's failure to maintain contact with Michael both before and after he was removed from Danielle's custody; his lack of knowledge about Michael's status and his emotional, medical, and educational needs; and Robert's failure to develop a viable plan for Michael to be placed in his care or the care of a paternal relative. As for Richard, the court found he "made no efforts to make himself available to care for [Jennifer]," and "showed a lack of desire and commitment to being a part of [Jennifer's] life." The court noted Richard's failure to comply with services offered by the Division, including parenting skills classes and individual therapy, as well as missed visits with Jennifer. Additionally, Richard's proposed placement of Jennifer with his grandmother was not viable given the grandmother's alleged physical abuse and 24 A-3546-15T1 medical neglect of the child. Finally, regarding Samuel, the court noted his complete absence from Jason's life, such that Jason did not recognize him or know Samuel was his father when they were together for a bonding evaluation. The court also noted Samuel's failure to provide a viable plan for Jason, and Dr. Kirschner's opinion that Samuel was unable to assume physical custody of Jason and provide him with consistency, stability, or permanence. On appeal, the parents contend the first two prongs of the test were not met because there was never any finding of abuse or neglect made against them. However, a prior finding of abuse or neglect is not a prerequisite to the Division's pursuing a termination of parental rights. N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 443-44 (2012). The record amply supports the court's conclusion on prongs one and two of the statutory test regarding all of the fathers. As the court found, the record reflects that the fathers were not involved in their children's lives. At most, they had occasional and inconsistent contact with their children. Of the three fathers, only Robert offered himself as a placement for his child, although he had no viable plan for doing so, and alternatively offered relatives as possible placements. Richard and Samuel failed to engage in the services offered by the Division and 25 A-3546-15T1 professed an inability to support their children, instead offering relatives as possible placements. All of the possible relative placements were reasonably ruled out by the Division. While Robert complains that the Division did not timely assess his offered placements, see N.J.S.A. 30:4C- 12.1(a), when the Division ultimately did inquire of the proposed relatives, they either ignored the Division's inquiries or responded they did not want to serve as a placement for Michael. The fathers' absence from their children's lives, both before and after their removal, and their persistent inability or unwillingness to provide the children with a safe and stable home, constitutes a present and continuing harm recognized under prongs one and two of the statutory test. D.M.H., 161 N.J. at 379-83. "[I]njury to children need not be physical to give rise to State termination of biological parent-child relationships. Serious and lasting emotional or psychological harm to children as the result of the action or inaction of their biological parents can constitute injury sufficient to authorize the termination of parental rights." In re Guardianship of K.L.F., 129 N.J. 32, 44 (1992). Moreover, "[a] parent's withdrawal of . . . solicitude, nurture, and care for an extended period of time is in itself a harm that endangers the health and development of the child." 26 A-3546-15T1 D.M.H., 161 N.J. at 379; see also K.H.O., 161 N.J. at 353 (stating that second prong may be established by "indications of parental dereliction and irresponsibility," including "the inability to provide a stable and protective home," or "the withholding of parental attention and care"); In re Adoption of Children by G.P.B., 161 N.J. 396, 414 (1999) (O'Hern, J., concurring) (stating that a "father who never sees his child or never makes efforts to be a part of a child's life sufficient to cause the child to view the person as a parent, causes harm to the child"). The record is also replete with evidence supporting the court's conclusion that prongs one and two were satisfied as to Danielle. Notably, Danielle admitted that all of her romantic relationships involved domestic violence. At trial, she also admitted the children were exposed to M.H.'s domestic violence, which constitutes harm. F.M., 211 N.J. at 449; N.J. Div. of Youth and Family Servs. v. S.V., 362 N.J. Super. 76, 84 (App. Div. 2003). Moreover, as the court found, the children's behaviors while in the Division's custody, and their need for significant psychological, educational, and behavioral interventions, are indicative of Danielle's failure to provide them with a safe and stable environment prior to removal, which caused them psychological harm. See N.J. Div. of Youth & Family Servs. v. B.G.S., 291 N.J. Super. 582, 591-92 (App. Div. 1996) ("Evidence 27 A-3546-15T1 of serious emotional injury or developmental delay satisfies [prong one]."). Further, Dr. Kirschner testified the children experienced trauma and neglect while in Danielle's care. See D.M.H., 161 N.J. at 380 (citing expert testimony attributing children's behaviors to the instability and turmoil in their early lives). Finally, the court reasonably concluded Danielle has been unwilling or unable to provide her children with a safe and stable home, and the delay of permanent placement will add to the harm (prong two), citing her failure to engage in therapy or obtain housing, and her lack of consistency in visiting the children, as well as Dr. Kirschner's testimony. B. Prong Three The third prong of the statutory test requires proof that the Division "made reasonable efforts to provide services to help the parent correct the circumstances which led to the child's placement outside the home and the court has considered alternatives to termination of parental rights[.]" N.J.S.A. 30:4C-15.1(a)(3). It requires the Division "to undertake diligent efforts to reunite the family." K.H.O., 161 N.J. at 354. Where, as here, one parent has been the custodial parent and takes the primary or dominant role in caring for the children, it is reasonable for [the Division] to continue to focus its efforts of family reunification on that custodial parent, 28 A-3546-15T1 so long as [the Division] does not ignore or exclude the non-custodial parent. [D.M.H., 161 N.J. at 393.] Here, the trial court found the Division made reasonable efforts to assist the parents in correcting the circumstances that led to their children's placement outside the home. Specifically, the court found the Division offered the parents visitation. However, the fathers did not participate, and Danielle's participation was inconsistent. In addition, the court found the Division communicated regularly with the parents and offered them psychological evaluations, substance abuse assessments, parenting skills programs, individual and family therapy, family team meetings, case plans, family agreements, domestic violence counseling, assessments of relative placements, and housing and transportation assistance. However, while Danielle completed one year of individual counseling through domestic violence services, she was "less than minimally involved in the other Division recommended services." Also, all of the proposed relative placements were ruled out. The court further found the Division provided the children with a multitude of services to address their needs, including medical evaluations, individual and family therapy, psychological 29 A-3546-15T1 evaluations, psychiatric evaluations, neuropsychological evaluations, educational assistance, in-home therapy, medication monitoring, foster placement, board payments, and an early intervention assessment. Finally, the court considered alternatives to the termination of parental rights. For example, the court noted that in the past it had rejected the Division's proposed plan for adoption, and instead provided Danielle with additional time to complete services and secure appropriate housing. However, Danielle did not do what was necessary, and none of the proposed relative placements were viable. Thus, the court found no alternative to termination. The record supports the court's factual findings and legal conclusions on prong three. Contrary to the parents' arguments on appeal, the Division offered them relevant services to effectuate family reunification, but the parents did not comply with those services, or did not benefit from them. In particular, Danielle and Robert argue that the only thing standing in the way of reunification with their children is their inadequate housing, which is a result of their poverty. However, the record does not support their arguments. To the contrary, the court properly noted that the Division offered Danielle support in finding housing, including an offer to pay the first month's 30 A-3546-15T1 rent and a security deposit, but more than four years after the children's removal she still had not secured a residence. Moreover, housing was not Danielle's only deficiency, as she was also non-compliant with individual therapy. With respect to Robert, his inadequate housing was not the only barrier to his taking custody of Michael. Rather, the most significant barrier was his almost complete absence from Michael's life. Importantly, Robert failed to communicate with Michael or visit with him both before and after the Division took custody, and consequently he lacked any understanding of Michael's circumstances and his needs. Robert also complains that the Division failed to make a timely search for relative placements for Michael. See N.J.S.A. 30:4C-12.1; N.J. Div. of Youth & Family Servs. v. J.S., 433 N.J. Super. 69, 81-83 (App. Div. 2013). In this regard, at trial, much was made of the fact that during the interstate evaluation in 2015, Robert provided the names of his brother and sister-in-law in Texas. However, Robert did not provide any contact information for these relatives. Thus, the Division did not attempt to contact them. In any event, during trial, the Division attempted to contact Robert's brother, and also communicated with Robert's parents. However, these efforts were unfruitful. Robert's parents declined 31 A-3546-15T1 to serve as a placement for Michael, and his brother never communicated with the Division or expressed any interest in caring for Michael. Thus, any lack of timeliness on the part of the Division in investigating these proposed family placements ultimately had no bearing on the termination of Robert's parental rights. C. Prong Four "[T]he fourth prong — whether termination of parental rights will do more harm than good — is a 'fail-safe' inquiry guarding against an inappropriate or premature termination of parental rights." F.M., 211 N.J. at 453. It does not require proof that no harm will befall the child from termination of their parents' rights. K.H.O., 161 N.J. at 355. "[T]he risk to children stemming from the deprivation of the custody of their natural parent inheres in the termination of parental rights and is based on the paramount need the children have for permanent and defined parent-child relationships." In re Guardianship of J.N.H., 172 N.J. 440, 478 (2002). Where, as here, no bond or relationship exists between the child and a resource parent, courts should exercise particular caution, because "terminating parental rights without any compensating benefit, such as adoption, may do great harm to a child." N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 32 A-3546-15T1 109 (2008). Nevertheless, there is no requirement that the children have a relationship with a resource parent for the Division to establish prong four. The Supreme Court has recognized that "termination of parental rights does not automatically lead to adoption or other comparable permanent arrangements." K.H.O., 161 N.J. at 359. Moreover, "there will be circumstances when the termination of parental rights must precede the permanency plan." A.W., 103 N.J. at 611. Although there is a "natural tendency to want to continue working with parents to restore the family unit," the court "must not lose sight of time from the perspective of the child's needs," and must keep in mind the State's "strong public policy in favor of permanency." K.H.O., 161 N.J. at 357. "Children must not languish indefinitely in foster care while a birth parent attempts to correct the conditions that resulted in an out-of-home placement." N.J. Div. of Youth & Family Servs. v. S.F., 392 N.J. Super. 201, 209 (App. Div. 2007); see also N.J. Div. of Youth & Family Servs. v. A.G., 344 N.J. Super. 418, 438 (App. Div. 2001) (stating that keeping a child "in limbo, hoping for some long term unification plan, would be a misapplication of the law"). "Long- term foster care is the exception to the general rule favoring adoption, and is available under only very limited circumstances 33 A-3546-15T1 . . ." K.H.O., 161 N.J. at 360. In the present case, the trial court concluded it was in the children's best interests that their parents' rights be terminated, and termination of their parental rights would not do more harm than good. The court cited Dr. Kirschner's opinions and the factual record, and found "no realistic likelihood" that any of the parents would "be able to safely and appropriately care for" their children "now or in the foreseeable future." While the court acknowledged the children's opposition to termination, and their desire to live with their mother, it determined their wishes were not dispositive. Rather, the court found the children were "in desperate need of permanency and stability," and concluded these needs were "of paramount concern at this time." Citing the factual record and Dr. Kirschner's opinion, the court concluded Danielle was "not in the position to care for her children," nor would it be in their best interests to be placed in her care. Moreover, the court relied on Dr. Kirschner's opinion in concluding the children had only insecure attachments to their mother, as they were uncertain of her ability to care for them. The court also relied upon Dr. Kirschner's assessment in concluding the children were "still of the age that they can form healthy attachments provided they are able to bond with another 34 A-3546-15T1 caregiver" through a select home adoption, "which would offer the children the opportunity to have a permanent, safe and stable home" and overcome any harm caused by the termination of their parents' rights. Addressing the fathers in particular, the court cited Dr. Kirschner's opinion and Robert's minimal involvement in Michael's life in concluding that Michael had no bond or attachment with his father, and would not experience serious and enduring harm if Robert's parental rights were terminated, particularly if he were able to form a bond with another caregiver. As for Richard, the court found he had not shown any commitment to Jennifer, as he had been in and out of her life and never provided her with a safe and stable home. The court relied upon Dr. Kirschner's opinions in finding that Jennifer had a parent-child bond with her father, and would experience some psychological harm if his parental rights were terminated; however, that harm could be mitigated if Jennifer were able to form a bond with another caregiver. As for Samuel, the court found he had no bond with Jason, and was unable to provide Jason with a safe and stable home. The court again relied on Dr. Kirschner's opinion that because there was no bond between father and son, Jason would not suffer any harm if Samuel's parental rights were terminated. 35 A-3546-15T1 Finally, the court accepted Irby's testimony that, notwithstanding the children's issues, it was likely all three could be placed with a family through the select home adoption process, and termination of parental rights would open new avenues for finding them adoptive homes. While we appreciate the Law Guardian's concern that the fourth prong has not been met as to Danielle, ultimately we conclude otherwise. We find sufficient credible evidence in the record to support Judge Rosero's finding that termination of parental rights will not do more harm than good, and would be in the children's best interests. At this stage, the children's need for permanency is paramount. They have been out of Danielle's care for more than six years, and have little or no relationship with their respective fathers. They should not continue to languish, especially where the undisputed expert evidence establishes there is "no realistic likelihood" that Danielle will be able to safely and appropriately care for them within the foreseeable future. III. Finally, Robert argues separately that the ICPC is inapplicable to placement of a child with a biological parent, and that the trial court erred in accepting the Division's "blanket adoption" of the interstate study performed by the State of Florida. We do not find this argument persuasive. 36 A-3546-15T1 In support of his position, Robert relies on N.J. Div. of Youth & Family Servs. v. K.F., 353 N.J. Super. 623, 625-26, 635 (App. Div. 2002), where we held the ICPC "does not apply to relative placement and, therefore, it does not require the prior approval of the receiving state when a court in this state has decided against foster care in favor of placing children with their out-of-state maternal grandparents." (emphasis added). However, K.F. does not address the Division's obligations with respect to assessing and placing a child with an out-of-state relative, parent or otherwise. The case only speaks to the court's ability to place a child with an out-of-state relative without reference to the ICPC standards, particularly where the court had dismissed the Division's case, and the relatives were deemed appropriate caretakers for the children, had complied with services, and had filed for custody of the children. Id. at 635- 38. Moreover, to the extent we held in K.F. that a placement to a natural parent is exempt from the ICPC, our holding was premised on the "nonsensical" application of the ICPC "to prohibit a court's placement of children with their natural family solely because that family resides in another state." Id. at 635. Indeed, "[t]he ICPC was intended to remove, not to create, obstacles to out-of- state placements that are in the best interests of children." 37 A-3546-15T1 Ibid. Here, regardless of whether the Division or the trial court were bound by the result of Florida's ICPC assessment, under the circumstances presented, it was reasonable for the Division to request the assessment. An assessment of Robert's fitness was necessary because Robert never had custody of his son, there was no shared custody arrangement between Danielle and Robert, and Michael was a deeply troubled child in need of supervision and services provided by a state child protective services agency. Thus, neither the Division nor the court could send Michael to live with Robert in Florida without first determining if it was in Michael's best interests to do so, and, if he were placed in Robert's custody, also arranging for after-placement care and supervision. Ultimately, the trial court barely referenced the results of the Florida interstate evaluation in concluding it was in Michael's best interests to terminate Robert's parental rights. Rather, the court merely noted that the results of the ICPC showed Robert made no real effort to make himself a viable placement for his son, which is consistent with ample additional evidence in the record. Affirmed. 38 A-3546-15T1
DIVISION OF CHILD PROTECTION AND PERMANENCY v. D.P.
Date: March 14, 2018
Docket Number: a3672-16 PER CURIAM In these matters, consolidated for the purpose of this opinion, defendants D.P. (Dave)1 and T.J. (Terri) appeal from the Family Part order that terminated their parental rights to their special needs sons, two-year-old D.P. (Donny) and eight-month-old K.P. (Kenny). Our review of the trial judge's decision is limited. We defer to the expertise of Family Part judges, Cesare v. Cesare, 154 N.J. 394, 413 (1998), and we are bound to their factual findings when supported by sufficient credible evidence. N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007) (citing In re Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div. 1993)). After reviewing the record, we reject defendants' contentions that the Division of Child Protection and Permanency (Division) failed to meet its burden under the four prongs of the best interests test, N.J.S.A. 30:4C-15.1(a), by clear and 1 We use pseudonyms for the children, parents, and resource parent to protect their privacy and for ease of reference. 2 A-3672-16T1 convincing evidence. And although the trial judge should have more fully set forth the legal basis for his decision, we conclude that the credible evidence set forth in his oral decision sustains the statutory requirement that termination of defendants' parental rights was in the boys' best interests. Accordingly, we add the following comments. As to prong one of the best interest test, the Division must prove that "[t]he child's safety, health, or development has been or will continue to be endangered by the parental relationship[.]" N.J.S.A. 30:4C-15.1(a)(1). "[T]he relevant inquiry focuses on the cumulative effect, over time, of harms arising from the home life provided by the parent." M.M., 189 N.J. at 289. "Serious and lasting emotional or psychological harm to children as the result of the action or inaction of their biological parents can constitute injury sufficient to authorize the termination of parental rights." In re Guardianship of K.L.F., 129 N.J. 32, 44 (1992) (citing In re Guardianship of J.C., 129 N.J. 1, 18 (1992)). Thus, "courts must consider the potential psychological damage that may result from reunification[,] as the 'potential return of a child to a parent may be so injurious that it would bar such an alternative.'" N.J. Div. of Youth & Family Servs. v. L.J.D., 428 N.J. Super. 451, 480-81 (App. Div. 2012) 3 A-3672-16T1 (quoting N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 605 (1986)). The Division does not have to prove physical abuse or neglect to terminate parental rights. A.W., 103 N.J. at 605 (quoting In re Guardianship of R., 155 N.J. Super. 186, 194 (App. Div. 1977)). "A parent's withdrawal of . . . solicitude, nurture, and care for an extended period of time is in itself a harm that endangers the health and development of the child." In re Guardianship of DMH, 161 N.J. 365, 379 (1999). Moreover, "[c]ourts need not wait to act until a child is actually irreparably impaired by parental inattention or neglect." Id. at 383. Contrary to Terri's contention that she did not harm her sons, the credible evidence shows that she did so through her inability to curtail her drug addiction. Both of them tested positive for drugs at birth and went through withdrawal. Considering that Donny entered the world with this affliction, it is even more disconcerting that Terri would thereafter inflict his younger brother with the same infirmity. Further, Terri essentially abandoned her sons after they were both removed from her at birth. During the six months prior to the termination hearing, she failed, without explanation, to visit them through the Division's arrangements. In fact, Donny has not seen his mother the last third of his life. Because of Terri's disinterest 4 A-3672-16T1 in seeing her sons, the Division's expert evaluator, David Brandwein, Psy.D, could not conduct a bonding evaluation. Finding Brandwein's testimony credible, and without challenge from an expert presented by Terri, the judge understandably accepted his opinion that she was incapable of parenting. As for Dave, the record supports the judge's finding that he inflicted harm on his sons by not parenting them when Terri could not, and showing no interest in doing so. When the Division instituted the guardianship proceeding, Dave missed four court appearances, appearing thereafter when he was incarcerated and brought to court through court order. Equally telling are his three unexcused missed appointments for paternity tests; paternity could only be confirmed when he was tested while incarcerated. And like Terri, he declined the Division's visitation arrangements and chose not to visit his sons. Moreover, Dave's repetitive pattern of incarceration kept him from being the father his sons needed. With respect to the second prong of the best interests test, only Dave challenges the judge's findings. Under this prong, the Division must prove that he is "unwilling or unable to eliminate the harm facing the child[ren] or is unable or unwilling to provide a safe and stable home . . . and the delay of permanent placement will add to the harm." N.J.S.A. 30:4C-15.1(a)(2). That harm may 5 A-3672-16T1 include evidence that separating the children from their resource parent "would cause serious and enduring emotional or psychological harm . . . ." Ibid. The Division can establish the second prong by proving that a "child will suffer substantially from a lack of stability and a permanent placement[,] and from the disruption of" a bond with the resource parents. In re Guardianship of K.H.O., 161 N.J. 337, 363 (1999). Because they are related, evidence supporting the first prong may also support the second prong "as part of the comprehensive basis for determining the best interests of the child." DMH, 161 N.J. at 379. The judge's finding under the first prong that the Division established Dave's lack of interest in parenting his sons also satisfies the Division's burden under the second prong. Crediting Brandwein's uncontroverted opinion, the judge found that to remove the boys from the resource parent, who wants to adopt them, would disrupt the bond that is developing and the progress she has made in addressing the boys' needs. On the other hand, there is no bond between Dave and his sons. The fact that Dave is in prison until February 2021, and would need almost two years following his release to demonstrate he has the stability to parent, would unreasonably delay the permanent placement the boys need. In other words, Dave's history of incarceration and instability, and 6 A-3672-16T1 his demonstrated lack of concern for his sons, are strong predictors that he will be unable to make lifestyle changes that will enable him to properly parent them. Both parents contest the judge's third-prong findings. This prong requires the Division to make "reasonable efforts to provide services to help the parent correct the circumstances which led to the child's placement outside the home[,] and the court['s] consider[ation of] alternatives to termination of parental rights[.]" N.J.S.A. 30:4C-15.1(a)(3). It also "contemplates efforts that focus on reunification of the parent with the child and assistance to the parent to correct and overcome those circumstances that necessitated the placement of the child into foster care." K.H.O., 161 N.J. at 354. The record shows that there was credible evidence supporting the judge's findings that the Division made reasonable efforts to provide services to both parents in order to enable them to properly parent their sons. Terri repeatedly spurned the Division's effort to help her eradicate her drug addiction to cocaine and opioids, the roadblock to her ability to parent her sons. Before Dave was incarcerated, his avoidance of paternity testing and court hearings thwarted the Division's effort to offer him services that would help him parent. And although his incarceration made it possible to establish paternity and resulted 7 A-3672-16T1 in his court appearances, it impeded the Division's effort to provide him those services. Additionally, the record shows there was credible evidence supporting the judge's findings that there were no viable alternatives to termination by placing the boys with any of the parent's family members. Terri's father showed little interest in his grandsons' welfare through his minimal visits, and was ruled out by the Division because he had no real plan as to how he would care for the toddlers during his three times a week dialysis treatment and within the confines of his one-bedroom apartment. His failure to appeal the ruling further showed his lack of sincere interest. As for Terri's aunt, who lived in the Midwest and did not come forward as a possible caretaker until a month before the guardianship hearing, the judge found her testimony that the Division did not reach out to her lacked credibility in the face of the agency's credible proofs that she did not respond to their correspondence soliciting her interest in taking care of her grand-nephews. See N.J. Div. of Youth & Family Servs. v. K.L.W., 419 N.J. Super. 568, 582 (App. Div. 2011) (noting that the Division is not obligated to wait to investigate relatives presented on the eve of trial). The fact that she was unaware of the boys' special needs was yet another reason she was not a viable placement option. 8 A-3672-16T1 Dave, likewise, did not present a viable placement option. The judge determined that his mother, also an eleventh-hour alternative, was not a credible witness because she never sought to visit her grandsons and was unaware that they were under the Division's care. And her poor health due to a stroke, an aneurism, and stress caused by the deaths of family members, would prevent her from independently caring for two special needs toddlers. Only Dave challenges the judge's ruling under prong four, which requires there must exist sufficient credible evidence to show that "[t]ermination of parental rights will not do more harm than good." N.J.S.A. 30:4C-15.1(a)(4). Relying on Brandwein's expert testimony, the court credited his opinion that the resource parent has been "effortlessly" meeting the boys' special needs and that should not be disrupted. Dave's contention that the Division did not conduct a bonding evaluation2 between him and his sons is of little significance because it is clear he never established a relationship with them. Consequently, there is no harm to them in terminating Dave's parental rights. Finally, Terri's argument that the Division's improper addition of Kenny to the guardianship petition after it was filed for Donny violated her due process rights is without merit. 2 The children were not medically cleared to visit Dave. 9 A-3672-16T1 In accordance with N.J.S.A. 30:4C-15(c), the Division may seek termination of parental rights when "it appears that the best interest of any child under the care or custody of the [D]ivision require that he be placed under guardianship." The Court articulated in DMH, that efforts to terminate parental rights "need not wait to act until a child is actually irreparably impaired by parental inattention or neglect" where there is a risk of future harm. DMH, 161 N.J. at 383. Indeed, the Division should not delay guardianship efforts where the mistreatment of one child is a "dangerous harbinger" to siblings. Div. of Youth & Family Servs. v. Robert M., 347 N.J. Super. 44, 68 (App. Div. 2002). Although Kenny's guardianship was added to the petition when he was about seven months old, the Division's concerns over Terri's inability to parent Donny were evident as Donny was in foster care for a year before Kenny's birth. Further, prior to Donny's birth, the Division obtained a court order awarding it care and supervision of Terri's first child due to her drug addiction. Moreover, since Kenny was removed at birth and Terri stopped visiting him, a bond never existed between them. These factors, coupled with the desired benefit of keeping the brothers together and the need to bring permanency to their lives, justified the Division's prompt and proactive effort to place Kenny in a stable and nurturing environment. 10 A-3672-16T1 Affirmed. 11 A-3672-16T1
Date: March 14, 2018
Docket Number: a3672-16 PER CURIAM In these matters, consolidated for the purpose of this opinion, defendants D.P. (Dave)1 and T.J. (Terri) appeal from the Family Part order that terminated their parental rights to their special needs sons, two-year-old D.P. (Donny) and eight-month-old K.P. (Kenny). Our review of the trial judge's decision is limited. We defer to the expertise of Family Part judges, Cesare v. Cesare, 154 N.J. 394, 413 (1998), and we are bound to their factual findings when supported by sufficient credible evidence. N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007) (citing In re Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div. 1993)). After reviewing the record, we reject defendants' contentions that the Division of Child Protection and Permanency (Division) failed to meet its burden under the four prongs of the best interests test, N.J.S.A. 30:4C-15.1(a), by clear and 1 We use pseudonyms for the children, parents, and resource parent to protect their privacy and for ease of reference. 2 A-3672-16T1 convincing evidence. And although the trial judge should have more fully set forth the legal basis for his decision, we conclude that the credible evidence set forth in his oral decision sustains the statutory requirement that termination of defendants' parental rights was in the boys' best interests. Accordingly, we add the following comments. As to prong one of the best interest test, the Division must prove that "[t]he child's safety, health, or development has been or will continue to be endangered by the parental relationship[.]" N.J.S.A. 30:4C-15.1(a)(1). "[T]he relevant inquiry focuses on the cumulative effect, over time, of harms arising from the home life provided by the parent." M.M., 189 N.J. at 289. "Serious and lasting emotional or psychological harm to children as the result of the action or inaction of their biological parents can constitute injury sufficient to authorize the termination of parental rights." In re Guardianship of K.L.F., 129 N.J. 32, 44 (1992) (citing In re Guardianship of J.C., 129 N.J. 1, 18 (1992)). Thus, "courts must consider the potential psychological damage that may result from reunification[,] as the 'potential return of a child to a parent may be so injurious that it would bar such an alternative.'" N.J. Div. of Youth & Family Servs. v. L.J.D., 428 N.J. Super. 451, 480-81 (App. Div. 2012) 3 A-3672-16T1 (quoting N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 605 (1986)). The Division does not have to prove physical abuse or neglect to terminate parental rights. A.W., 103 N.J. at 605 (quoting In re Guardianship of R., 155 N.J. Super. 186, 194 (App. Div. 1977)). "A parent's withdrawal of . . . solicitude, nurture, and care for an extended period of time is in itself a harm that endangers the health and development of the child." In re Guardianship of DMH, 161 N.J. 365, 379 (1999). Moreover, "[c]ourts need not wait to act until a child is actually irreparably impaired by parental inattention or neglect." Id. at 383. Contrary to Terri's contention that she did not harm her sons, the credible evidence shows that she did so through her inability to curtail her drug addiction. Both of them tested positive for drugs at birth and went through withdrawal. Considering that Donny entered the world with this affliction, it is even more disconcerting that Terri would thereafter inflict his younger brother with the same infirmity. Further, Terri essentially abandoned her sons after they were both removed from her at birth. During the six months prior to the termination hearing, she failed, without explanation, to visit them through the Division's arrangements. In fact, Donny has not seen his mother the last third of his life. Because of Terri's disinterest 4 A-3672-16T1 in seeing her sons, the Division's expert evaluator, David Brandwein, Psy.D, could not conduct a bonding evaluation. Finding Brandwein's testimony credible, and without challenge from an expert presented by Terri, the judge understandably accepted his opinion that she was incapable of parenting. As for Dave, the record supports the judge's finding that he inflicted harm on his sons by not parenting them when Terri could not, and showing no interest in doing so. When the Division instituted the guardianship proceeding, Dave missed four court appearances, appearing thereafter when he was incarcerated and brought to court through court order. Equally telling are his three unexcused missed appointments for paternity tests; paternity could only be confirmed when he was tested while incarcerated. And like Terri, he declined the Division's visitation arrangements and chose not to visit his sons. Moreover, Dave's repetitive pattern of incarceration kept him from being the father his sons needed. With respect to the second prong of the best interests test, only Dave challenges the judge's findings. Under this prong, the Division must prove that he is "unwilling or unable to eliminate the harm facing the child[ren] or is unable or unwilling to provide a safe and stable home . . . and the delay of permanent placement will add to the harm." N.J.S.A. 30:4C-15.1(a)(2). That harm may 5 A-3672-16T1 include evidence that separating the children from their resource parent "would cause serious and enduring emotional or psychological harm . . . ." Ibid. The Division can establish the second prong by proving that a "child will suffer substantially from a lack of stability and a permanent placement[,] and from the disruption of" a bond with the resource parents. In re Guardianship of K.H.O., 161 N.J. 337, 363 (1999). Because they are related, evidence supporting the first prong may also support the second prong "as part of the comprehensive basis for determining the best interests of the child." DMH, 161 N.J. at 379. The judge's finding under the first prong that the Division established Dave's lack of interest in parenting his sons also satisfies the Division's burden under the second prong. Crediting Brandwein's uncontroverted opinion, the judge found that to remove the boys from the resource parent, who wants to adopt them, would disrupt the bond that is developing and the progress she has made in addressing the boys' needs. On the other hand, there is no bond between Dave and his sons. The fact that Dave is in prison until February 2021, and would need almost two years following his release to demonstrate he has the stability to parent, would unreasonably delay the permanent placement the boys need. In other words, Dave's history of incarceration and instability, and 6 A-3672-16T1 his demonstrated lack of concern for his sons, are strong predictors that he will be unable to make lifestyle changes that will enable him to properly parent them. Both parents contest the judge's third-prong findings. This prong requires the Division to make "reasonable efforts to provide services to help the parent correct the circumstances which led to the child's placement outside the home[,] and the court['s] consider[ation of] alternatives to termination of parental rights[.]" N.J.S.A. 30:4C-15.1(a)(3). It also "contemplates efforts that focus on reunification of the parent with the child and assistance to the parent to correct and overcome those circumstances that necessitated the placement of the child into foster care." K.H.O., 161 N.J. at 354. The record shows that there was credible evidence supporting the judge's findings that the Division made reasonable efforts to provide services to both parents in order to enable them to properly parent their sons. Terri repeatedly spurned the Division's effort to help her eradicate her drug addiction to cocaine and opioids, the roadblock to her ability to parent her sons. Before Dave was incarcerated, his avoidance of paternity testing and court hearings thwarted the Division's effort to offer him services that would help him parent. And although his incarceration made it possible to establish paternity and resulted 7 A-3672-16T1 in his court appearances, it impeded the Division's effort to provide him those services. Additionally, the record shows there was credible evidence supporting the judge's findings that there were no viable alternatives to termination by placing the boys with any of the parent's family members. Terri's father showed little interest in his grandsons' welfare through his minimal visits, and was ruled out by the Division because he had no real plan as to how he would care for the toddlers during his three times a week dialysis treatment and within the confines of his one-bedroom apartment. His failure to appeal the ruling further showed his lack of sincere interest. As for Terri's aunt, who lived in the Midwest and did not come forward as a possible caretaker until a month before the guardianship hearing, the judge found her testimony that the Division did not reach out to her lacked credibility in the face of the agency's credible proofs that she did not respond to their correspondence soliciting her interest in taking care of her grand-nephews. See N.J. Div. of Youth & Family Servs. v. K.L.W., 419 N.J. Super. 568, 582 (App. Div. 2011) (noting that the Division is not obligated to wait to investigate relatives presented on the eve of trial). The fact that she was unaware of the boys' special needs was yet another reason she was not a viable placement option. 8 A-3672-16T1 Dave, likewise, did not present a viable placement option. The judge determined that his mother, also an eleventh-hour alternative, was not a credible witness because she never sought to visit her grandsons and was unaware that they were under the Division's care. And her poor health due to a stroke, an aneurism, and stress caused by the deaths of family members, would prevent her from independently caring for two special needs toddlers. Only Dave challenges the judge's ruling under prong four, which requires there must exist sufficient credible evidence to show that "[t]ermination of parental rights will not do more harm than good." N.J.S.A. 30:4C-15.1(a)(4). Relying on Brandwein's expert testimony, the court credited his opinion that the resource parent has been "effortlessly" meeting the boys' special needs and that should not be disrupted. Dave's contention that the Division did not conduct a bonding evaluation2 between him and his sons is of little significance because it is clear he never established a relationship with them. Consequently, there is no harm to them in terminating Dave's parental rights. Finally, Terri's argument that the Division's improper addition of Kenny to the guardianship petition after it was filed for Donny violated her due process rights is without merit. 2 The children were not medically cleared to visit Dave. 9 A-3672-16T1 In accordance with N.J.S.A. 30:4C-15(c), the Division may seek termination of parental rights when "it appears that the best interest of any child under the care or custody of the [D]ivision require that he be placed under guardianship." The Court articulated in DMH, that efforts to terminate parental rights "need not wait to act until a child is actually irreparably impaired by parental inattention or neglect" where there is a risk of future harm. DMH, 161 N.J. at 383. Indeed, the Division should not delay guardianship efforts where the mistreatment of one child is a "dangerous harbinger" to siblings. Div. of Youth & Family Servs. v. Robert M., 347 N.J. Super. 44, 68 (App. Div. 2002). Although Kenny's guardianship was added to the petition when he was about seven months old, the Division's concerns over Terri's inability to parent Donny were evident as Donny was in foster care for a year before Kenny's birth. Further, prior to Donny's birth, the Division obtained a court order awarding it care and supervision of Terri's first child due to her drug addiction. Moreover, since Kenny was removed at birth and Terri stopped visiting him, a bond never existed between them. These factors, coupled with the desired benefit of keeping the brothers together and the need to bring permanency to their lives, justified the Division's prompt and proactive effort to place Kenny in a stable and nurturing environment. 10 A-3672-16T1 Affirmed. 11 A-3672-16T1
IAN BETZ v. BOARD OF ADJUSTMENT OF THE TOWNSHIP OF SOUTH ORANGE VILLAGE
Date: March 14, 2018
Docket Number: a3830-14
Date: March 14, 2018
Docket Number: a3830-14
DIVISION OF CHILD PROTECTION AND PERMANENCY v. C.S.
Date: March 14, 2018
Docket Number: a4731-15 PER CURIAM Defendants C.S. (Cathy) and R.B. (Robert)1 appeal from a December 2, 2014 order finding they abused or neglected five minor children by using excessive physical discipline and by exposing the children to domestic violence, substance abuse, and a sexual abuser. We affirm because the findings of abuse or neglect are supported by substantial credible evidence. I. Cathy is the mother of six children: K.B., born in December 2002; Q.B., born in November 2003; C.M., born in May 2006; S.B., born in February 2013; R.B., Jr., born in April 2014; and A.B., born in April 2015. Robert is the biological father of the three youngest children. There were no findings of abuse or neglect against the biological fathers of the three oldest children. 1 We use fictitious names for the parents and initials for the children to protect their privacy interests. R. 1:38-3(d)(12). 2 A-4731-15T4 The Division of Child Protection and Permanency (Division) has been involved with the family since 2008. The findings of abuse or neglect focus on four incidents that occurred between April and September 2014. At that time, the five older children ranged in ages from eleven years old to less than one year old. The sixth child was born in 2015, and was not the subject of the findings of abuse or neglect. The first instance involved excessive physical punishment. In April 2014, the older children reported physical punishment, which included being hit with hangers, belts, and shoes. Both Cathy and Robert admitted to using physical discipline on the children. Cathy told a Division worker that she used objects to discipline the children when they were misbehaving. Robert told a Division worker that he also physically disciplined the children because "that's how [he] was raised." The second incident involved exposing the children to domestic violence. In July 2014, the older children reported that Cathy and Robert frequently argued and that Robert had choked and punched Cathy. In addition, a Division worker observed a door in the home, which appeared to have been kicked in. While Cathy and Robert denied engaging in domestic violence, Cathy did acknowledge to a Division worker that Robert had kicked down a door and that there were times when she and Robert pushed each other. 3 A-4731-15T4 The third incident involved the three older daughters being exposed to sexual abuse by Robert's brother and the failure of Cathy and Robert to protect the children from that abuse. Robert's brother lived with Robert's mother, who often cared for the children. Two of the daughters reported various times when Robert's brother would inappropriately touch them. One of the daughters also told a Division worker that she had informed her mother of the inappropriate touching. Cathy, however, continued to leave the children in the care of the paternal grandmother even when Robert's brother was present. As a result of Cathy's failure to keep the daughters away from Robert's brother, a third daughter was inappropriately touched by Robert's brother. The fourth incident involved physical abuse, inadequate supervision, and exposure to substance abuse. In September 2014, the children reported that Cathy and Robert continued to use physical punishment. Specifically, two of the children reported being hit, including Robert hitting one of the children in the head with his knuckles and Cathy hitting another child with a broomstick. One child also reported that she and her siblings had been left alone without either parent present or adult supervision. In addition, two of the children reported that Cathy and Robert were using marijuana. One of the children described what marijuana looked like and how to roll marijuana in paper. The 4 A-4731-15T4 other child stated that she had observed both Cathy and Robert consume marijuana. Cathy denied using marijuana and Robert refused to answer questions about his marijuana use. Both parents, however, tested positive for marijuana. A fact-finding hearing was conducted on December 2, 2014. The Division presented testimony from two of its workers and submitted supporting documents. Cathy testified, but Robert did not. The Family judge found the Division workers credible and Cathy incredible. The judge then found that the Division had proven abuse or neglect by a preponderance of the evidence. Specifically, the court found that Cathy and Robert had used excessive physical discipline on the children and exposed the children to domestic violence, substance abuse, and a known sexual abuser. Following the fact-finding hearing, the Division continued to provide services to Cathy and Robert. Ultimately, the children were reunited with Cathy and returned to her custody. The Division then moved to terminate the Title 9 litigation. Cathy moved to compel the Division to produce copies of its records. The court denied that motion in an order entered on May 26, 2016. In that same order, the court terminated the Title 9 litigation. 5 A-4731-15T4 II. Cathy and Robert filed separate appeals, which we consolidated. Cathy makes three arguments on her appeal. First, she contends that the Division did not demonstrate that she abused or neglected her children. Second, she argues that the Family judge erred by relying on an expert report from a non-testifying expert. Finally, she challenges the order denying her request for copies of the Division's records. In his appeal, Robert makes one argument contending that there was insufficient evidence to show that he abused or neglected the children. We are not persuaded by any of these arguments and we affirm. The scope of our review is limited. N.J. Div. of Child Prot. & Permanency v. Y.A., 437 N.J. Super. 541, 546 (App. Div. 2014). We will uphold the Family judge's factual findings and credibility determinations if they are supported by substantial credible evidence. N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007). Accordingly, we will only overturn the judge's findings if they "went so wide of the mark that the judge was clearly mistaken." Ibid. We do not, however, give "special deference" to the Family Part's interpretation of the law. D.W. v. R.W., 212 N.J. 232, 245 (2012) (citing N.J. Div. of Youth & Family Servs. v. I.S., 202 N.J. 145, 183 (2010)). Consequently, 6 A-4731-15T4 we apply a de novo standard of review to legal issues. Id. at 245-46. The adjudication of abuse or neglect is governed by Title 9, which is designed to protect children. N.J.S.A. 9:6-8.21 to -8.73; N.J.S.A. 9:6-8.8. Under Title 9, a child is abused or neglected if: [a] parent or guardian . . . creates or allows to be created a substantial or ongoing risk of physical injury to such child by other than accidental means which would be likely to cause death or serious or protracted disfigurement, or protracted loss or impairment of the function of any bodily organ; . . . commits or allows to be committed an act of sexual abuse against the child; . . . or a child whose physical, mental, or emotional condition has been impaired or is in imminent danger of becoming impaired as the result of the failure of his parent or guardian . . . to exercise a minimum degree of care . . . in providing the child with proper supervision or guardianship, by unreasonably inflicting or allowing to be inflicted harm, or substantial risk thereof, including the infliction of excessive corporal punishment[.] [N.J.S.A. 9:6-8.21(c)(2), (3), and (4)(b).] The statute does not require that the child experience actual harm. N.J.S.A. 9:6-8.21(c)(4)(b). Instead, a child is abused or neglected if his or her physical, mental, or emotional condition has been impaired or is in imminent danger of becoming impaired. Ibid. In cases where there is an absence of actual harm, but 7 A-4731-15T4 there exists a substantial risk of harm or imminent danger, the court must consider whether the parent exercised a minimum degree of care under the circumstances. G.S. v. Dep't of Human Servs., 157 N.J. 161, 171 (1999). The failure to exercise a "minimum degree of care" refers to "conduct that is grossly or wantonly negligent, but not necessarily intentional." Id. at 178. "Conduct is considered willful or wanton if done with the knowledge that injury is likely to, or probably will, result." Ibid. A parent fails to exercise a minimum degree of care if, despite being "aware of the dangers inherent in a situation[,]" the parent "fails adequately to supervise the child or recklessly creates a risk of serious injury to that child." Id. at 181. The Division must prove by a preponderance of the competent, material, and relevant evidence that a child is abused or neglected. N.J.S.A. 9:6-8.46(b). This burden of proof requires the Division to demonstrate a probability of present or future harm. N.J. Div. of Youth & Family Servs. v. S.S., 372 N.J. Super. 13, 24 (App. Div. 2004), certif. denied, 182 N.J. 426 (2005). Title 9 cases are fact-sensitive, and the court should base its findings on the totality of the circumstances. N.J. Div. of Youth & Family Servs. v. V.T., 423 N.J. Super. 320, 329 (App. Div. 2011). A. The Substantial Credible Evidence 8 A-4731-15T4 The Division presented evidence that the children had been excessively disciplined and had been exposed to domestic violence, substance abuse, and a known sexual abuser. A substantial portion of that evidence came from what the children reported to Division workers. The children's reports, however, were corroborated by other evidence. See N.J.S.A. 9:6-8.46(a)(4); see also Y.A., 437 N.J. Super. at 547 (stating that when the Division's case involves out of court statements by a child, the child's statements must be corroborated by "eyewitness testimony, a confession, an admission or medical or scientific evidence"). For example, the children's reports of excessive physical discipline were corroborated by both parents acknowledging that they used physical discipline. Cathy told a Division worker that she used objects to hit the children. Robert also acknowledged that he used physical discipline and refused to cease using physical discipline on the children. The reports by three daughters about being inappropriately touched by Robert's brother were also corroborated by Cathy's and Robert's admissions. Cathy told a Division worker that she was aware of prior instances where Robert's brother had attempted to inappropriately touch two of her daughters. Robert also admitted that he knew about the prior incidents involving his brother inappropriately touching the daughters. Nevertheless, Cathy and 9 A-4731-15T4 Robert continued to leave the children in the care of the paternal grandmother, while Robert's brother was present. The children's reports of exposure to substance abuse were also corroborated. One of the children described what marijuana looked like and how to roll it into a cigarette. Another child described observing both Cathy and Robert consume marijuana. Within days of the children making those reports, both Cathy and Robert tested positive for marijuana. Finally, the children's reports of domestic violence were corroborated by statements made by Cathy. One of the children reported seeing Robert choke and punch Cathy. A Division worker also observed a broken door in the home. Cathy denied the domestic violence, but acknowledged to a Division worker that Robert had kicked open a door during an argument and that she and Robert pushed each other during arguments. The Family Part found each of those incidents involved abuse or neglect. While Cathy and Robert challenge aspects of the individual acts and incidents, in totality the acts and incidents constitute a preponderance of evidence that Cathy and Robert exposed their children to a substantial risk of harm. N.J.S.A. 9:6-8.21(c); N.J.S.A. 9:6-8.46(b); V.T., 423 N.J. Super. at 329. B. The Expert Report 10 A-4731-15T4 Cathy contends that the Family Part committed reversible error when it relied on an expert report from a non-testifying witness, which was not admitted into evidence. Specifically, she contends that the Family Part relied on an expert psychological report and related documents. The record does not support Cathy's argument. In making the findings of abuse or neglect, the Family judge referenced and stated he was relying on the testimony of the Division workers, which he found to be credible, and documents that had been admitted into evidence. He did not reference a psychological evaluation of Cathy in making his factual findings concerning abuse or neglect. Instead, the reference to the psychological evaluation came up in response to an argument made by Cathy's counsel during summation. Consequently, the record does not support Cathy's argument that the Family judge impermissibly relied on an expert report without hearing the testimony of the expert. C. Cathy's Request for the Division Records Following the finding of abuse or neglect, the Division provided services to Cathy and Robert and the court conducted a series of compliance reviews. The Division ultimately agreed to return custody of the children to Cathy. At that point, Cathy made a request for copies of the Division's records. The Family 11 A-4731-15T4 judge initially postponed terminating the litigation to give Cathy an opportunity to file a motion to compel the production of her Division records. Under Title 9, all records of child abuse reports are confidential and may only be released under very narrow, enumerated circumstances. N.J.S.A. 9:6-8.10a(a). One of the exceptions allows for the release of Division records to a person appealing a finding of abuse or neglect, but only when disclosure of the records is necessary for a determination of an issue on appeal. N.J.S.A. 9:6-8.10a(b)(12). Here, the Family judge explained to Cathy that all of the Division records would be available for her review at her attorney's office. The Family judge then found that Cathy's request for personal copies of the Division records was insufficient to warrant disclosure, denied her motion, and entered an order terminating the Title 9 litigation. The judge advised Cathy that he would entertain a motion for reconsideration if she could establish a need for personal copies of the records. Cathy never filed a motion for reconsideration. Cathy argues that she needed personal copies of the documents to pursue this appeal. The record on appeal, however, demonstrates that Cathy was given access to the Division records that supported the findings of abuse or neglect, and that she failed to establish 12 A-4731-15T4 a sufficient need for personal copies of those documents. Accordingly, the Family judge correctly denied Cathy's motion to compel the production of her Division records. Affirmed. 13 A-4731-15T4
Date: March 14, 2018
Docket Number: a4731-15 PER CURIAM Defendants C.S. (Cathy) and R.B. (Robert)1 appeal from a December 2, 2014 order finding they abused or neglected five minor children by using excessive physical discipline and by exposing the children to domestic violence, substance abuse, and a sexual abuser. We affirm because the findings of abuse or neglect are supported by substantial credible evidence. I. Cathy is the mother of six children: K.B., born in December 2002; Q.B., born in November 2003; C.M., born in May 2006; S.B., born in February 2013; R.B., Jr., born in April 2014; and A.B., born in April 2015. Robert is the biological father of the three youngest children. There were no findings of abuse or neglect against the biological fathers of the three oldest children. 1 We use fictitious names for the parents and initials for the children to protect their privacy interests. R. 1:38-3(d)(12). 2 A-4731-15T4 The Division of Child Protection and Permanency (Division) has been involved with the family since 2008. The findings of abuse or neglect focus on four incidents that occurred between April and September 2014. At that time, the five older children ranged in ages from eleven years old to less than one year old. The sixth child was born in 2015, and was not the subject of the findings of abuse or neglect. The first instance involved excessive physical punishment. In April 2014, the older children reported physical punishment, which included being hit with hangers, belts, and shoes. Both Cathy and Robert admitted to using physical discipline on the children. Cathy told a Division worker that she used objects to discipline the children when they were misbehaving. Robert told a Division worker that he also physically disciplined the children because "that's how [he] was raised." The second incident involved exposing the children to domestic violence. In July 2014, the older children reported that Cathy and Robert frequently argued and that Robert had choked and punched Cathy. In addition, a Division worker observed a door in the home, which appeared to have been kicked in. While Cathy and Robert denied engaging in domestic violence, Cathy did acknowledge to a Division worker that Robert had kicked down a door and that there were times when she and Robert pushed each other. 3 A-4731-15T4 The third incident involved the three older daughters being exposed to sexual abuse by Robert's brother and the failure of Cathy and Robert to protect the children from that abuse. Robert's brother lived with Robert's mother, who often cared for the children. Two of the daughters reported various times when Robert's brother would inappropriately touch them. One of the daughters also told a Division worker that she had informed her mother of the inappropriate touching. Cathy, however, continued to leave the children in the care of the paternal grandmother even when Robert's brother was present. As a result of Cathy's failure to keep the daughters away from Robert's brother, a third daughter was inappropriately touched by Robert's brother. The fourth incident involved physical abuse, inadequate supervision, and exposure to substance abuse. In September 2014, the children reported that Cathy and Robert continued to use physical punishment. Specifically, two of the children reported being hit, including Robert hitting one of the children in the head with his knuckles and Cathy hitting another child with a broomstick. One child also reported that she and her siblings had been left alone without either parent present or adult supervision. In addition, two of the children reported that Cathy and Robert were using marijuana. One of the children described what marijuana looked like and how to roll marijuana in paper. The 4 A-4731-15T4 other child stated that she had observed both Cathy and Robert consume marijuana. Cathy denied using marijuana and Robert refused to answer questions about his marijuana use. Both parents, however, tested positive for marijuana. A fact-finding hearing was conducted on December 2, 2014. The Division presented testimony from two of its workers and submitted supporting documents. Cathy testified, but Robert did not. The Family judge found the Division workers credible and Cathy incredible. The judge then found that the Division had proven abuse or neglect by a preponderance of the evidence. Specifically, the court found that Cathy and Robert had used excessive physical discipline on the children and exposed the children to domestic violence, substance abuse, and a known sexual abuser. Following the fact-finding hearing, the Division continued to provide services to Cathy and Robert. Ultimately, the children were reunited with Cathy and returned to her custody. The Division then moved to terminate the Title 9 litigation. Cathy moved to compel the Division to produce copies of its records. The court denied that motion in an order entered on May 26, 2016. In that same order, the court terminated the Title 9 litigation. 5 A-4731-15T4 II. Cathy and Robert filed separate appeals, which we consolidated. Cathy makes three arguments on her appeal. First, she contends that the Division did not demonstrate that she abused or neglected her children. Second, she argues that the Family judge erred by relying on an expert report from a non-testifying expert. Finally, she challenges the order denying her request for copies of the Division's records. In his appeal, Robert makes one argument contending that there was insufficient evidence to show that he abused or neglected the children. We are not persuaded by any of these arguments and we affirm. The scope of our review is limited. N.J. Div. of Child Prot. & Permanency v. Y.A., 437 N.J. Super. 541, 546 (App. Div. 2014). We will uphold the Family judge's factual findings and credibility determinations if they are supported by substantial credible evidence. N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007). Accordingly, we will only overturn the judge's findings if they "went so wide of the mark that the judge was clearly mistaken." Ibid. We do not, however, give "special deference" to the Family Part's interpretation of the law. D.W. v. R.W., 212 N.J. 232, 245 (2012) (citing N.J. Div. of Youth & Family Servs. v. I.S., 202 N.J. 145, 183 (2010)). Consequently, 6 A-4731-15T4 we apply a de novo standard of review to legal issues. Id. at 245-46. The adjudication of abuse or neglect is governed by Title 9, which is designed to protect children. N.J.S.A. 9:6-8.21 to -8.73; N.J.S.A. 9:6-8.8. Under Title 9, a child is abused or neglected if: [a] parent or guardian . . . creates or allows to be created a substantial or ongoing risk of physical injury to such child by other than accidental means which would be likely to cause death or serious or protracted disfigurement, or protracted loss or impairment of the function of any bodily organ; . . . commits or allows to be committed an act of sexual abuse against the child; . . . or a child whose physical, mental, or emotional condition has been impaired or is in imminent danger of becoming impaired as the result of the failure of his parent or guardian . . . to exercise a minimum degree of care . . . in providing the child with proper supervision or guardianship, by unreasonably inflicting or allowing to be inflicted harm, or substantial risk thereof, including the infliction of excessive corporal punishment[.] [N.J.S.A. 9:6-8.21(c)(2), (3), and (4)(b).] The statute does not require that the child experience actual harm. N.J.S.A. 9:6-8.21(c)(4)(b). Instead, a child is abused or neglected if his or her physical, mental, or emotional condition has been impaired or is in imminent danger of becoming impaired. Ibid. In cases where there is an absence of actual harm, but 7 A-4731-15T4 there exists a substantial risk of harm or imminent danger, the court must consider whether the parent exercised a minimum degree of care under the circumstances. G.S. v. Dep't of Human Servs., 157 N.J. 161, 171 (1999). The failure to exercise a "minimum degree of care" refers to "conduct that is grossly or wantonly negligent, but not necessarily intentional." Id. at 178. "Conduct is considered willful or wanton if done with the knowledge that injury is likely to, or probably will, result." Ibid. A parent fails to exercise a minimum degree of care if, despite being "aware of the dangers inherent in a situation[,]" the parent "fails adequately to supervise the child or recklessly creates a risk of serious injury to that child." Id. at 181. The Division must prove by a preponderance of the competent, material, and relevant evidence that a child is abused or neglected. N.J.S.A. 9:6-8.46(b). This burden of proof requires the Division to demonstrate a probability of present or future harm. N.J. Div. of Youth & Family Servs. v. S.S., 372 N.J. Super. 13, 24 (App. Div. 2004), certif. denied, 182 N.J. 426 (2005). Title 9 cases are fact-sensitive, and the court should base its findings on the totality of the circumstances. N.J. Div. of Youth & Family Servs. v. V.T., 423 N.J. Super. 320, 329 (App. Div. 2011). A. The Substantial Credible Evidence 8 A-4731-15T4 The Division presented evidence that the children had been excessively disciplined and had been exposed to domestic violence, substance abuse, and a known sexual abuser. A substantial portion of that evidence came from what the children reported to Division workers. The children's reports, however, were corroborated by other evidence. See N.J.S.A. 9:6-8.46(a)(4); see also Y.A., 437 N.J. Super. at 547 (stating that when the Division's case involves out of court statements by a child, the child's statements must be corroborated by "eyewitness testimony, a confession, an admission or medical or scientific evidence"). For example, the children's reports of excessive physical discipline were corroborated by both parents acknowledging that they used physical discipline. Cathy told a Division worker that she used objects to hit the children. Robert also acknowledged that he used physical discipline and refused to cease using physical discipline on the children. The reports by three daughters about being inappropriately touched by Robert's brother were also corroborated by Cathy's and Robert's admissions. Cathy told a Division worker that she was aware of prior instances where Robert's brother had attempted to inappropriately touch two of her daughters. Robert also admitted that he knew about the prior incidents involving his brother inappropriately touching the daughters. Nevertheless, Cathy and 9 A-4731-15T4 Robert continued to leave the children in the care of the paternal grandmother, while Robert's brother was present. The children's reports of exposure to substance abuse were also corroborated. One of the children described what marijuana looked like and how to roll it into a cigarette. Another child described observing both Cathy and Robert consume marijuana. Within days of the children making those reports, both Cathy and Robert tested positive for marijuana. Finally, the children's reports of domestic violence were corroborated by statements made by Cathy. One of the children reported seeing Robert choke and punch Cathy. A Division worker also observed a broken door in the home. Cathy denied the domestic violence, but acknowledged to a Division worker that Robert had kicked open a door during an argument and that she and Robert pushed each other during arguments. The Family Part found each of those incidents involved abuse or neglect. While Cathy and Robert challenge aspects of the individual acts and incidents, in totality the acts and incidents constitute a preponderance of evidence that Cathy and Robert exposed their children to a substantial risk of harm. N.J.S.A. 9:6-8.21(c); N.J.S.A. 9:6-8.46(b); V.T., 423 N.J. Super. at 329. B. The Expert Report 10 A-4731-15T4 Cathy contends that the Family Part committed reversible error when it relied on an expert report from a non-testifying witness, which was not admitted into evidence. Specifically, she contends that the Family Part relied on an expert psychological report and related documents. The record does not support Cathy's argument. In making the findings of abuse or neglect, the Family judge referenced and stated he was relying on the testimony of the Division workers, which he found to be credible, and documents that had been admitted into evidence. He did not reference a psychological evaluation of Cathy in making his factual findings concerning abuse or neglect. Instead, the reference to the psychological evaluation came up in response to an argument made by Cathy's counsel during summation. Consequently, the record does not support Cathy's argument that the Family judge impermissibly relied on an expert report without hearing the testimony of the expert. C. Cathy's Request for the Division Records Following the finding of abuse or neglect, the Division provided services to Cathy and Robert and the court conducted a series of compliance reviews. The Division ultimately agreed to return custody of the children to Cathy. At that point, Cathy made a request for copies of the Division's records. The Family 11 A-4731-15T4 judge initially postponed terminating the litigation to give Cathy an opportunity to file a motion to compel the production of her Division records. Under Title 9, all records of child abuse reports are confidential and may only be released under very narrow, enumerated circumstances. N.J.S.A. 9:6-8.10a(a). One of the exceptions allows for the release of Division records to a person appealing a finding of abuse or neglect, but only when disclosure of the records is necessary for a determination of an issue on appeal. N.J.S.A. 9:6-8.10a(b)(12). Here, the Family judge explained to Cathy that all of the Division records would be available for her review at her attorney's office. The Family judge then found that Cathy's request for personal copies of the Division records was insufficient to warrant disclosure, denied her motion, and entered an order terminating the Title 9 litigation. The judge advised Cathy that he would entertain a motion for reconsideration if she could establish a need for personal copies of the records. Cathy never filed a motion for reconsideration. Cathy argues that she needed personal copies of the documents to pursue this appeal. The record on appeal, however, demonstrates that Cathy was given access to the Division records that supported the findings of abuse or neglect, and that she failed to establish 12 A-4731-15T4 a sufficient need for personal copies of those documents. Accordingly, the Family judge correctly denied Cathy's motion to compel the production of her Division records. Affirmed. 13 A-4731-15T4
21ST CENTURY PINNACLE INSURANCE COMPANY v. A.C. WINGS, LLC
Date: March 13, 2018
Docket Number: a4801-16
Date: March 13, 2018
Docket Number: a4801-16
JAMES DEFEO v. BOARD OF TRUSTEES, PUBLIC EMPLOYEES' RETIREMENT SYSTEM
Date: March 9, 2018
Docket Number: a0448-16
Date: March 9, 2018
Docket Number: a0448-16
APPLIED MONROE LENDER, LLC v. CITY OF HOBOKEN PLANNING BOARD and CITY OF HOBOKEN
Date: March 9, 2018
Docket Number: a3048-15
Date: March 9, 2018
Docket Number: a3048-15
HUDSON-TROYTOWERS APARTMENT, CORPORATION v. HEALTHY DOZEN CORPORATION
Date: March 9, 2018
Docket Number: a3768-15
Date: March 9, 2018
Docket Number: a3768-15
A.M.S. v. M.L.S.
Date: March 8, 2018
Docket Number: a2324-16 PER CURIAM In these appeals, calendared back-to-back, and consolidated for the purpose of this opinion, defendants challenge the entry of Final Restraining Orders (FROs) against them pursuant to the Prevention of Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17 to -35. The trial court concluded that the FROs were warranted because defendants assaulted plaintiff during a family argument and plaintiff is in need of protection from defendants' future acts or threats of violence. Defendants argue that the trial court's findings are not supported by the evidence. We affirm. I. The trial court found the following facts after an evidentiary hearing during which plaintiff, defendants and another witness testified. Plaintiff A.M.S. and defendant M.L.S. were married in 2015.1 They resided together with M.L.S.'s mother, D.S., and his father, L.S. At the time of the relevant incident, M.L.S.'s 1 We use initials throughout this opinion because these appeals involve domestic violence litigation. R. 1:38-3(a). 2 A-2324-16T4 sister, defendant K.L.S., and her infant child, also were staying in the home. Approximately a week prior to November 21, 2016, A.M.S. began an extended stay at the home of her mother to assist with her mother's affairs. On November 21, 2016, A.M.S. returned to the marital home to retrieve clothing and personal items. Plaintiff's husband and his family members who resided in the home were present when A.M.S. arrived. It is undisputed that a conversation among A.M.S., her husband, and her husband's family commenced in an upstairs bedroom. Although the tenor and subject of the conversation were disputed at trial, the court found that the discussion was "hostile and volatile and loud," and concerned the relationship between A.M.S. and M.L.S. and his family. The court found that during the conversation A.M.S. decided to leave the residence. As A.M.S. attempted to go downstairs, M.L.S. grabbed her ankle, causing A.M.S. to fall, and tried to pull her back into the bedroom by dragging her across the floor. The judge determined that this constituted an assault on A.M.S. by M.L.S., which resulted in physical injuries to A.M.S., including bruising to her knees and a cracked big toe toenail. In addition, the court found that during M.L.S.'s assault on A.M.S., her sister-in-law, K.L.S., pulled A.M.S.'s hair, and 3 A-2324-16T4 attempted to pull from A.M.S.'s neck a religious necklace signifying her marriage to M.L.S., as well as attempted to forcibly remove A.M.S.'s engagement ring from her finger. The court found that these acts constituted an assault on A.M.S. by K.L.S., which resulted in physical injury, including a scratch on A.M.S.'s finger. The court also determined that A.M.S. was in need of protection from future acts or threats of violence by both M.L.S. and K.L.S. The court reasoned that A.M.S. had by the time of the hearing initiated divorce proceedings, that M.L.S. and K.L.S. had displayed significant anger during the assaults, that they had both assaulted A.M.S. as she was attempting to leave the family residence, and that during a recorded telephone conversation shortly after the assaults, M.L.S.'s mother told A.M.S. that she had to learn to handle M.L.S.'s anger. The court also found credible A.M.S.'s testimony that, although there had been no reported prior acts of physical violence between A.M.S. and M.L.S., he had previously engaged in "controlling behavior" toward A.M.S. As a result of these conclusions, the court entered FROs against both M.L.S. and K.L.S., and associated monetary penalties, 4 A-2324-16T4 an award of emergent support to assist A.M.S. to relocate from the marital home, and attorney's fees.2 On appeal, M.L.S. and K.L.S. argue that the trial court's findings are not supported by sufficient, credible evidence, that the judge overlooked inconsistencies in A.M.S.'s testimony, did not consider the two-day gap between the assaults and plaintiff's application for TROs against defendants, and failed to consider A.M.S.'s alleged improper motivation – to gain an advantage in the divorce proceedings – for seeking FROs against defendants. II. A judge must apply the two-factor test set forth in Silver v. Silver, 387 N.J. Super. 112 (App. Div. 2006), to determine whether to grant a FRO pursuant to the PDVA. "First, the judge must determine whether the plaintiff has proven, by a preponderance of the credible evidence, that one or more of the predicate acts 2 Plaintiff also sought a FRO against M.L.S.'s father, L.S., and mother, D.S. Although the court found that L.S. committed an act of harassment against A.M.S. during the November 21, 2016, episode, it determined that A.M.S. was not in need of protection from future acts or threats of violence from L.S. The court, therefore, declined to enter a FRO against L.S. and vacated a temporary restraining order (TRO) that had been entered against him. The court also determined that plaintiff did not establish by a preponderance of the evidence that D.S. committed an act of domestic violence against A.M.S. on November 21, 2016. The court, therefore, declined to enter a FRO against D.S. and dismissed the TRO previously entered against her. These orders were not appealed. 5 A-2324-16T4 set forth in N.J.S.A. 2C:25-19(a) has occurred." Id. at 125. If the judge finds that defendant committed one of the predicate acts, the judge must determine whether a restraining order is required to protect the plaintiff from future acts or threats of violence. Id. at 126. This determination requires evaluation of: (1) The previous history of domestic violence between the plaintiff and defendant, including threats, harassment and physical abuse; (2) The existence of immediate danger to person or property; (3) The financial circumstances of the plaintiff and defendant; (4) The best interest of the victim and any child; (5) In determining custody and parenting time the protection of the victim's safety; and (6) The existence of a verifiable order of protection from another jurisdiction. [N.J.S.A. 2C:25-29(a); see also Cesare v. Cesare, 154 N.J. 394, 401 (1998).] The judge must also consider whether a restraining order is necessary to protect the victim from an immediate danger or to prevent further abuse. Silver, 387 N.J. Super. at 127. When reviewing a trial court's decision to issue a FRO after a hearing, we are bound by the trial court's factual findings if they are "supported by adequate, substantial, [and] credible evidence." Cesare, 154 N.J. at 411-12 (citing Rova Farms Resort, 6 A-2324-16T4 Inc. v. Inv'rs Ins. Co., 65 N.J. 474, 484 (1974)). Such deference is "especially appropriate when the evidence is largely testimonial and involves questions of credibility." In re Return of Weapons to J.W.D., 149 N.J. 108, 117 (1997). A greater degree of deference is to be accorded to the Family Part as it possesses "special jurisdiction and expertise," and we "should accord deference to the family court factfinding." Cesare, 154 N.J. at 413. We are not, however, bound by the judge's interpretations of the legal consequences that flow from established facts. Manalapan Realty, LP v. Twp. Comm., 140 N.J. 366, 378 (1995). Here, Judge John A. Jorgensen, heard the testimony of plaintiff, both defendants and another witness, reviewed evidence, including photographs of plaintiff's injuries, and listened to a recording of a heated telephone conversation shortly after the events in question between plaintiff, M.L.S., and M.L.S.'s parents. The court considered, and rejected on credibility grounds, the testimony of M.L.S. and K.L.S. that the family's interactions with A.M.S. on November 21, 2016, were peaceful attempts at reconciliation, and that A.M.S. brought baseless claims against them. Defendants assert no convincing argument that the trial court's credibility determinations should be set aside. 7 A-2324-16T4 In addition, having reviewed the hearing record, we are confident that Judge Jorgensen's fact findings and legal conclusions are based on substantial, credible evidence. There is ample support in the record for the court's conclusion that both defendants assaulted A.M.S. during the November 21, 2016 incident and that A.M.S. is in need of the protections provided by the FROs entered against defendants. Affirmed.3 3 In the "preliminary statements" in their briefs, defendants assert that "[d]uring the trial of the matter, an unknown amount of testimony was not recorded." They do not mention this claim in the point headings of their briefs or expound on it at length in their written arguments. A transcript of the December 6, 2016 hearing notes during plaintiff's testimony "[a]t this point the witness's microphone is turned off and remains off for the remainder of the hearing, rendering portions of the testimony inaudible." Seventy-eight pages of testimony follow this notation. On those pages the notation "(inaudible)" appears a few times, mostly mid-sentence. Defendants did not move to settle the record, R. 2:5-5, and given their failure to include any reference to the adequacy of the transcript in the point headings of their briefs, R. 2:6-2(a)(6), we deem any argument on this issue waived. 8 A-2324-16T4
Date: March 8, 2018
Docket Number: a2324-16 PER CURIAM In these appeals, calendared back-to-back, and consolidated for the purpose of this opinion, defendants challenge the entry of Final Restraining Orders (FROs) against them pursuant to the Prevention of Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17 to -35. The trial court concluded that the FROs were warranted because defendants assaulted plaintiff during a family argument and plaintiff is in need of protection from defendants' future acts or threats of violence. Defendants argue that the trial court's findings are not supported by the evidence. We affirm. I. The trial court found the following facts after an evidentiary hearing during which plaintiff, defendants and another witness testified. Plaintiff A.M.S. and defendant M.L.S. were married in 2015.1 They resided together with M.L.S.'s mother, D.S., and his father, L.S. At the time of the relevant incident, M.L.S.'s 1 We use initials throughout this opinion because these appeals involve domestic violence litigation. R. 1:38-3(a). 2 A-2324-16T4 sister, defendant K.L.S., and her infant child, also were staying in the home. Approximately a week prior to November 21, 2016, A.M.S. began an extended stay at the home of her mother to assist with her mother's affairs. On November 21, 2016, A.M.S. returned to the marital home to retrieve clothing and personal items. Plaintiff's husband and his family members who resided in the home were present when A.M.S. arrived. It is undisputed that a conversation among A.M.S., her husband, and her husband's family commenced in an upstairs bedroom. Although the tenor and subject of the conversation were disputed at trial, the court found that the discussion was "hostile and volatile and loud," and concerned the relationship between A.M.S. and M.L.S. and his family. The court found that during the conversation A.M.S. decided to leave the residence. As A.M.S. attempted to go downstairs, M.L.S. grabbed her ankle, causing A.M.S. to fall, and tried to pull her back into the bedroom by dragging her across the floor. The judge determined that this constituted an assault on A.M.S. by M.L.S., which resulted in physical injuries to A.M.S., including bruising to her knees and a cracked big toe toenail. In addition, the court found that during M.L.S.'s assault on A.M.S., her sister-in-law, K.L.S., pulled A.M.S.'s hair, and 3 A-2324-16T4 attempted to pull from A.M.S.'s neck a religious necklace signifying her marriage to M.L.S., as well as attempted to forcibly remove A.M.S.'s engagement ring from her finger. The court found that these acts constituted an assault on A.M.S. by K.L.S., which resulted in physical injury, including a scratch on A.M.S.'s finger. The court also determined that A.M.S. was in need of protection from future acts or threats of violence by both M.L.S. and K.L.S. The court reasoned that A.M.S. had by the time of the hearing initiated divorce proceedings, that M.L.S. and K.L.S. had displayed significant anger during the assaults, that they had both assaulted A.M.S. as she was attempting to leave the family residence, and that during a recorded telephone conversation shortly after the assaults, M.L.S.'s mother told A.M.S. that she had to learn to handle M.L.S.'s anger. The court also found credible A.M.S.'s testimony that, although there had been no reported prior acts of physical violence between A.M.S. and M.L.S., he had previously engaged in "controlling behavior" toward A.M.S. As a result of these conclusions, the court entered FROs against both M.L.S. and K.L.S., and associated monetary penalties, 4 A-2324-16T4 an award of emergent support to assist A.M.S. to relocate from the marital home, and attorney's fees.2 On appeal, M.L.S. and K.L.S. argue that the trial court's findings are not supported by sufficient, credible evidence, that the judge overlooked inconsistencies in A.M.S.'s testimony, did not consider the two-day gap between the assaults and plaintiff's application for TROs against defendants, and failed to consider A.M.S.'s alleged improper motivation – to gain an advantage in the divorce proceedings – for seeking FROs against defendants. II. A judge must apply the two-factor test set forth in Silver v. Silver, 387 N.J. Super. 112 (App. Div. 2006), to determine whether to grant a FRO pursuant to the PDVA. "First, the judge must determine whether the plaintiff has proven, by a preponderance of the credible evidence, that one or more of the predicate acts 2 Plaintiff also sought a FRO against M.L.S.'s father, L.S., and mother, D.S. Although the court found that L.S. committed an act of harassment against A.M.S. during the November 21, 2016, episode, it determined that A.M.S. was not in need of protection from future acts or threats of violence from L.S. The court, therefore, declined to enter a FRO against L.S. and vacated a temporary restraining order (TRO) that had been entered against him. The court also determined that plaintiff did not establish by a preponderance of the evidence that D.S. committed an act of domestic violence against A.M.S. on November 21, 2016. The court, therefore, declined to enter a FRO against D.S. and dismissed the TRO previously entered against her. These orders were not appealed. 5 A-2324-16T4 set forth in N.J.S.A. 2C:25-19(a) has occurred." Id. at 125. If the judge finds that defendant committed one of the predicate acts, the judge must determine whether a restraining order is required to protect the plaintiff from future acts or threats of violence. Id. at 126. This determination requires evaluation of: (1) The previous history of domestic violence between the plaintiff and defendant, including threats, harassment and physical abuse; (2) The existence of immediate danger to person or property; (3) The financial circumstances of the plaintiff and defendant; (4) The best interest of the victim and any child; (5) In determining custody and parenting time the protection of the victim's safety; and (6) The existence of a verifiable order of protection from another jurisdiction. [N.J.S.A. 2C:25-29(a); see also Cesare v. Cesare, 154 N.J. 394, 401 (1998).] The judge must also consider whether a restraining order is necessary to protect the victim from an immediate danger or to prevent further abuse. Silver, 387 N.J. Super. at 127. When reviewing a trial court's decision to issue a FRO after a hearing, we are bound by the trial court's factual findings if they are "supported by adequate, substantial, [and] credible evidence." Cesare, 154 N.J. at 411-12 (citing Rova Farms Resort, 6 A-2324-16T4 Inc. v. Inv'rs Ins. Co., 65 N.J. 474, 484 (1974)). Such deference is "especially appropriate when the evidence is largely testimonial and involves questions of credibility." In re Return of Weapons to J.W.D., 149 N.J. 108, 117 (1997). A greater degree of deference is to be accorded to the Family Part as it possesses "special jurisdiction and expertise," and we "should accord deference to the family court factfinding." Cesare, 154 N.J. at 413. We are not, however, bound by the judge's interpretations of the legal consequences that flow from established facts. Manalapan Realty, LP v. Twp. Comm., 140 N.J. 366, 378 (1995). Here, Judge John A. Jorgensen, heard the testimony of plaintiff, both defendants and another witness, reviewed evidence, including photographs of plaintiff's injuries, and listened to a recording of a heated telephone conversation shortly after the events in question between plaintiff, M.L.S., and M.L.S.'s parents. The court considered, and rejected on credibility grounds, the testimony of M.L.S. and K.L.S. that the family's interactions with A.M.S. on November 21, 2016, were peaceful attempts at reconciliation, and that A.M.S. brought baseless claims against them. Defendants assert no convincing argument that the trial court's credibility determinations should be set aside. 7 A-2324-16T4 In addition, having reviewed the hearing record, we are confident that Judge Jorgensen's fact findings and legal conclusions are based on substantial, credible evidence. There is ample support in the record for the court's conclusion that both defendants assaulted A.M.S. during the November 21, 2016 incident and that A.M.S. is in need of the protections provided by the FROs entered against defendants. Affirmed.3 3 In the "preliminary statements" in their briefs, defendants assert that "[d]uring the trial of the matter, an unknown amount of testimony was not recorded." They do not mention this claim in the point headings of their briefs or expound on it at length in their written arguments. A transcript of the December 6, 2016 hearing notes during plaintiff's testimony "[a]t this point the witness's microphone is turned off and remains off for the remainder of the hearing, rendering portions of the testimony inaudible." Seventy-eight pages of testimony follow this notation. On those pages the notation "(inaudible)" appears a few times, mostly mid-sentence. Defendants did not move to settle the record, R. 2:5-5, and given their failure to include any reference to the adequacy of the transcript in the point headings of their briefs, R. 2:6-2(a)(6), we deem any argument on this issue waived. 8 A-2324-16T4
INTHE MATTER OF THE ESTATE OF WILLIAM J MALLAS, Deceased
Date: March 6, 2018
Docket Number: a5593-15
Date: March 6, 2018
Docket Number: a5593-15
BERGENCOUNTY IMPROVEMENT AUTHORITY AND BERGEN COUNTY v. BERGEN REGIONAL MEDICAL CENTER LP, SOLOMON HEALTH GROUP, LLC SOLOMON HEALTHCARE GROUP, LLC GLOBAL EMPLOYEE BENEFITS MANAGEMENT, LLC, BERGEN REGIONAL ANESTHESIOLOGY GROUP, PA, BERGEN REGIONAL MEDIC
Date: March 2, 2018
Docket Number: a0050-16
Date: March 2, 2018
Docket Number: a0050-16
MIDDLESEXCOUNTY PROSECUTOR'S OFFICE v. NJ ADVANCE MEDIA, LLC and HOME NEWS TRIBUNE NJ ADVANCE MEDIA, LLC v. MIDDLESEX COUNTY PROSECUTOR'S OFFICE, and JAMES E. O'NEILL, in his capacity as Custodian of Records for the Middlesex County Prosecutor's Off
Date: March 2, 2018
Docket Number: a1276-15a127 PER CURIAM Appellant Middlesex County Prosecutor's Office (MCPO) appeals from orders of the Law Division dated November 4, 2015, and 2 A-1276-15T4 November 6, 2015, awarding attorney's fees to respondents NJ Advance Media, LLC (NJAM) and Home News Tribune (HNT) (collectively, the Newspapers) as prevailing parties in litigation arising from the Newspapers' requests for records pursuant to the Open Public Records Act, N.J.S.A. 47:1A-1 to -13 (OPRA or Act). We affirm. On January 14, 2015, police responded to a 911 call from a home in Old Bridge. In responding to that call, police shot and killed an Old Bridge man who resided in the home. The next day, NJAM made an OPRA request to the MCPO for any and all 911 recordings related to the Old Bridge shooting. On January 16, 2015, HNT sent a similar OPRA request to the MCPO. On January 23, 2015, the MCPO advised NJAM that it had a recording of the 911 call, but declined to disclose the recording, citing N.J.S.A. 47:1A-3, which allows non-disclosure of records that "pertain to an investigation in progress," and N.J.S.A. 47:1A- 1, which allows non-disclosure of "a citizen's personal information . . . when disclosure thereof would violate the citizen's reasonable expectation of privacy." On February 17, 2015, the MCPO denied HNT's request for the 911 call for the same reasons. On February 18, 2015, NJAM wrote to the MCPO disputing that the 911 call was subject to the active investigation exception. 3 A-1276-15T4 NJAM also argued the identity of the 911 caller was public information and, therefore, there was no privacy concern supporting non-disclosure of the 911 call. NJAM warned that if the MCPO declined to reconsider its denial of the requested information, NJAM would litigate the matter, seek to recover attorney's fees and costs under N.J.S.A. 47:1A-6, and request sanctions under N.J.S.A. 47:1A-11. On February 19, 2015, HNT sent a similar letter to the MCPO. In addition to the arguments presented by NJAM, HNT argued the expectation of privacy exemption applied only to personal information entrusted to the agency, and was not applicable to the 911 call. HNT noted that if there was information that needed protection, the correct course of action under OPRA was redaction of the protected information and prompt disclosure of the remaining portion of the 911 call, even in redacted form. Despite the Newspapers' renewed requests, the MCPO refused to release the 911 call. On March 3, 2015, knowing the Newspapers would file OPRA litigation based on its refusal to provide the 911 call, the MCPO filed a motion for a protective order under Rule 4:10-3. The MCPO requested the court to "evaluate the entire 911 call in camera and make a determination that it should not be provided." Since there was no pending litigation when the MCPO filed its motion, the 4 A-1276-15T4 matter was captioned "IN RE THE REQUEST FOR THE DISCLOSURE OF 911 CALL OF JANUARY 14, 2015 TO OLD BRIDGE POLICE." In its motion, the MCPO argued the 911 call, made by a family member of the deceased, "reveal[ed] a highly charged emotional situation," and the MCPO believed it "should not provide the 911 recordings where a victim or family member has a reasonable expectation of privacy in the call or the conversation." The MCPO further argued releasing the 911 call would discourage citizens from calling 911 in an emergency. Upon receipt of the MCPO's motion, NJAM responded by sending a Rule 1:4-8 letter. NJAM asserted the MCPO's "pre-complaint motion" was "procedurally improper and utterly lack[ed] a legal basis." NJAM advised that only a requesting party is allowed to initiate litigation under OPRA. NJAM demanded that the MCPO withdraw its motion or else NJAM would move for sanctions, costs, and attorney's fees incurred in opposing the motion. HNT also sent a Rule 1:4-8 letter to the MCPO. HNT claimed the MCPO's application was frivolous and improper because: (1) Rule 4:10-3 is a discovery rule, and there was no pending litigation; (2) there was no justiciable controversy, because the MCPO had already denied HNT's request for the 911 call; and (3) the MCPO had no legal authority to initiate OPRA litigation. 5 A-1276-15T4 In response, counsel for the MCPO "categorically den[ied]" its motion was improper. The MCPO proposed a stipulation in which the Newspapers could seek reasonable attorney's fees in the event that: (1) the MCPO's motion was denied; and (2) the court ordered complete disclosure of the 911 call. HNT responded to the proposed stipulation by insisting the MCPO withdraw its motion. HNT repeated its intent to file an OPRA complaint and suggested the MCPO could assert all applicable defenses in the OPRA litigation rather than circumvent OPRA by way of an improper motion for a protective order. The MCPO declined to withdraw its motion. On April 1, 2015, HNT filed a verified complaint and order to show cause (OTSC) against the MCPO seeking disclosure of the 911 call, as well as costs and attorney's fees. HNT sent a courtesy copy of the complaint and OTSC to the MCPO's attorney by overnight courier. On April 7, 2015, the judge signed HNT's OTSC. That same day, the MCPO sent a disc containing a redacted version of the 911 call to NJAM and HNT. The disc was received by NJAM on April 9, 2015, and by HNT on April 10, 2015. 6 A-1276-15T4 Because the MCPO was providing only a redacted copy of the 911 call, the Newspapers requested a Vaughn2 index in support of the MCPO's redactions. HNT specifically asked the MCPO to "advise how long the total unredacted recording is and how many seconds/minutes were redacted and whether the redactions were made in one place or multiple places," as well as "the legal basis for all redactions." The MCPO responded it would not produce a Vaughn index unless the judge required an index as part of the protective order motion. On April 8, 2015, one day before receiving the redacted 911 disc, NJAM filed a verified complaint against the MCPO and its records custodian seeking disclosure of the 911 call, as well as costs and attorney's fees. The MCPO received HNT's filed complaint and signed OTSC on April 10, 2015. On April 13, 2015, the MCPO received a copy of NJAM's complaint. The MCPO filed answers to the Newspapers' complaints. As an affirmative defense to the Newspapers' legal actions, the MCPO claimed non-disclosure of portions of the 911 call was justified 2 Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973). "A Vaughn index is comprised of affidavits containing a 'relatively detailed' justification for the claim of privilege being asserted for each document." Paff v. Div. of Law, 412 N.J. Super. 140, 161 n.9 (App. Div. 2010). 7 A-1276-15T4 based upon the privacy interests of the caller and others on the recording. The judge heard argument on the MCPO's motion for a protective order and HNT's OTSC. Without a Vaughn index, the Newspapers argued they lacked an ability to respond to the MCPO's privilege claims. The judge was persuaded by the Newspapers' argument, and ordered the MCPO to provide a Vaughn index. The parties were advised that they would return to court for substantive argument on the pending applications after receipt of the Vaughn index. Before concluding the hearing, the judge asked the MCPO's counsel whether, "[i]n light of what we have done today, are you withdrawing [the motion for a protective order]?" The MCPO responded it would not withdraw the motion. Two days after the court proceeding, the MCPO mailed a Vaughn index to the Newspapers. While the Vaughn index listed the length of time for each redaction and described the redacted portions of the 911 call, it did not identify the parties on the recording (i.e., police, victim, wife, or other family member). According to the MCPO, the reason for all redactions was the protection of the "privacy rights" of the caller and other family members. On June 10, 2015, the parties returned to court on the motion for a protective order. The Newspapers argued the Vaughn index was inadequate because it failed to identify the people on the 8 A-1276-15T4 call, the precise nature of the privacy rights being protected, and whose specific rights were being protected. According to the Newspapers, since the victim was killed by the police, the entire call concerned a matter of public interest implicated under OPRA. The MCPO argued the motion for a protective order was filed proactively to obtain a legal determination from the court balancing the public's right to the 911 call versus the privacy interests of the caller and family members. The MCPO also contended that N.J.S.A. 47:1A-6 did not preclude its legal action. In denying the motion for a protective order, the judge found: With regard to the motion for a protective order, the [c]ourt finds that . . . [OPRA] does not in any way provide or even suggest that such a proceeding would be appropriate with respect to protecting information that the governmental entity or the public entity believes should not be provided to the requestor based on a privacy interest. The statute and all of the associated case law creates a procedure for protecting . . . information that the entity might consider to be private by . . . the provi[sion] of a Vaughn index with an explanation . . . of why the information should not be provided. The [c]ourt finds no basis to depart from the clear language of the statute. The option of where to institute the action, the [Government Records Council] or the Superior Court, and the option of whether to go to court at all are exclusively that of the requestor. The public entity cannot call individuals into 9 A-1276-15T4 court based on their own denial and then require those parties to expend legal fees in order to respond.3 The motion for a protective order is procedurally deficient pursuant to Rule 4:10- 3, which is . . . a Rule utilized in the context of pretrial discovery . . . . The judge told counsel he would listen to the unredacted 911 call with the Vaughn index, and issue a separate ruling on the propriety of the MCPO's redactions. On June 12, 2015, the judge ruled the MCPO’s redaction of the 911 call was proper in light of the "incredibly private, passionate, heart-wrenching" statements made during the call, which revealed "[a] horrific tragedy that this [c]ourt could not imagine before hearing the tape." By order dated June 24, 2015, the judge denied the MCPO’s motion for a protective order and the Newspapers' complaints to the extent the Newspapers sought an unredacted copy of the 911 call. Based on the judge's ruling, HNT filed a motion for costs and attorney’s fees incurred in opposing the MCPO’s improper motion for a protective order and sanctions under Rule 1:4-8 and N.J.S.A. 3 The judge's ruling preceded the Court's decision in Carter v. Doe (In re N.J. Firemen's Ass'n Obligation), 230 N.J. 258, 278 (2017) (holding "OPRA clearly and unambiguously confers the right to initiate a suit after a public agency's denial of access only upon the requestor.") 10 A-1276-15T4 2A:15-59.1. HNT filed a separate motion for attorney’s fees incurred in its OPRA lawsuit against the MCPO. The next day, NJAM filed a motion for costs, attorney’s fees, and sanctions under Rule 4:10-3 and OPRA. In opposition to the fee motions with respect to the protective order, the MCPO argued: (1) its motion for a protective order was justified as an "innovative and creative" approach to protecting the privacy rights of the people on the 911 call; (2) since the court held Rule 4:10-3 was inapplicable to the MCPO's motion, it would be illogical for the court to impose fees under that Rule; and (3) if the court had ruled on the substantive issues in the OPRA cases first, the protective order would have been rendered moot, as the substantive reasons advanced by the MCPO in support of its motion were affirmed by the judge's ruling on June 12, 2015. In opposition to the fee motions with respect to the Newspapers' OPRA complaints, the MCPO argued the Newspapers were not prevailing parties under OPRA because the court deemed the MCPO's redaction of the 911 call to be proper. During argument on the fee motions, the MCPO insisted the redacted 911 call was not mailed to the Newspapers as a result of their OPRA lawsuits. The MCPO maintained the redacted 911 call was sent to the Newspapers as part of its motion for a protective order. However, the MCPO's counsel stated that "there was no 11 A-1276-15T4 doubt in this case, after [the MCPO] denied the OPRA request[s] for the 911 call, . . . that counsel were going to bring OPRA actions against the prosecutor's office," and further admitted to the judge that the Newspapers "filed their complaints before my effort to, in fact . . . get[] [them] the redacted disc." The MCPO did not dispute the hourly rates charged or the time expended by counsel for the Newspapers, but it did object to fees for any legal work done after it provided the redacted 911 call. On September 11, 2015, the judge issued a decision on the Newspapers' fee motions. The judge determined the Newspapers were prevailing parties under OPRA. The judge found there was a causal nexus between the Newspapers' lawsuits and the MCPO’s release of the redacted 911 call. The judge expressly found: [T]he filing of the verified complaints and orders to show cause were indeed the catalysts for the production of the 911 recording. After a blanket denial . . . for the 911 recording and refusal to even reconsider the denial in February [20]15, the filing of the lawsuits caused . . . a subsequent disclosure . . . . The filing of the two lawsuits was a necessary and important factor in obtaining the relief, because, up to that point, the prosecutor’s office remained steadfast in its denial of the requests for access . . . . 12 A-1276-15T4 The judge also ruled there was a basis in law for the disclosure of the 911 call because "[t]he requested 911 recording [was] a public government record and hence subject to disclosure under OPRA." The judge also rejected the MCPO’s claim that the Newspapers should not recover fees for legal work after disclosure of the redacted 911 call. The judge found that even after the disclosure of the redacted 911 call, the Newspapers "incurred attorney’s fees by continuing to litigate the issue of the prosecutor’s failure to provide a Vaughn index and by defending against the motion for a protective order filed by the prosecutor’s office, which was procedurally infirm." The judge further rejected the MCPO’s claim that the Newspapers achieved limited success because their complaints sought the unredacted 911 call. The judge found the Newspapers requested "access [to] any recording relating to the 911 call or call to the police relating to the January 14 shooting" and that the Newspapers' obtaining the redacted 911 call, with the Vaughn index, constituted a "high degree of success" under OPRA. With respect to the Newspapers' attorney's fees incurred as a result of the MCPO's motion for a protective order, the judge held the Newspapers were entitled to fees under OPRA because the MCPO's motion "was a direct result of the OPRA request[s]." The 13 A-1276-15T4 judge found there was "no legal authority" for the MCPO's motion, which was "in direct violation of the express language of OPRA," thus there was "no substantial justification to exempt [the MCPO] from paying fees and costs." In light of the numerous opportunities the MCPO had to withdraw its motion, the judge held it was not unjust to award fees to the Newspapers. By orders dated November 4, 2015, the judge awarded $71,848.28 in costs and attorney’s fees to HNT as a prevailing party in its OPRA case and for opposing the MCPO's motion for a protective order. By order dated November 6, 2015, the judge awarded $39,583.51 in costs and attorney’s fees to NJAM. The MCPO appealed. On appeal, the MCPO argues: (1) the Newspapers were not prevailing parties under OPRA; and (2) the judge should have reduced the fees awarded to the Newspapers based on their "limited success" in the OPRA litigations. We review fee determinations for an abuse of discretion. Rendine v. Pantzer, 141 N.J. 292, 317 (1995). "[F]ee determinations by trial courts will be disturbed only on the rarest of occasions, and then only because of a clear abuse of discretion." Packard-Bamberger & Co. v. Collier, 167 N.J. 427, 444 (2001) (citing Rendine, 141 N.J. 292). In determining whether a party is entitled to attorney's fees under a fee-shifting statute such as OPRA, courts employ "a two- 14 A-1276-15T4 fold test to determine whether a litigant qualifies as a prevailing party. [First, a] party must demonstrate that [the] lawsuit was causally related to securing the relief obtained," meaning "plaintiff[‘s] efforts are a necessary and important factor in obtaining the relief. This determination is factual." Singer v. State, 95 N.J. 487, 494 (1984) (citation omitted). Second, "plaintiff must establish that the relief granted had some basis in law." Ibid. This two-part test is known as the "catalyst" theory. Teeters v. Div. of Youth & Family Servs., 387 N.J. Super. 423, 429-31 (App. Div. 2006). A trial court's evaluation of the causal nexus under the Singer test is a "fact-sensitive inquiry on a case-by-case basis, evaluating the reasonableness of, and motivations for, an agency's decisions." Mason v. City of Hoboken, 196 N.J. 51, 79 (2008). Usually, it is the requestor's burden to prove prevailing party status to recover attorney's fees. Id. at 76-77. "[A] party can be considered 'prevailing' for the purposes of the . . . Act even though the disposition of the case does not include a final judgment entered in plaintiff's favor . . . ." Singer, 95 N.J. at 495. "A plaintiff is considered a prevailing party 'when actual relief on the merits of [the] claim materially alters the relationship between the parties by modifying the defendant's behavior in a way that directly benefits the 15 A-1276-15T4 plaintiff.'" Warrington v. Vill. Supermarket, Inc., 328 N.J. Super. 410, 420 (App. Div. 2000) (second alteration in original) (quoting Farrar v. Hobby, 506 U.S. 103, 111-12 (1992)). The MCPO argues the judge erred in determining the Newspapers were prevailing parties under OPRA. The MCPO contends the Newspapers sought only the unredacted 911 call and, therefore, did not prevail because the judge determined that producing the redacted 911 call was proper. The MCPO also argues the Newspapers' lawsuits could not have been the catalyst for disclosure of the 911 call, because the MCPO voluntarily released the 911 call as part of its motion for a protective order. We agree with the motion judge that the Newspapers' lawsuits were a catalyst for the disclosure of the 911 call. As early as February 2015, the MCPO knew the Newspapers intended to file OPRA lawsuits if the 911 call was not released. Knowing the Newspapers planned to file litigation, the MCPO filed its "procedurally deficient" motion for a protective order. It was not until after HNT filed suit -- nearly two months after the MCPO first denied disclosure of the 911 call and nearly one month after the MCPO filed its motion -- that the MCPO released the redacted 911 call, which then required the Newspapers to seek a Vaughn index. The MCPO's repeated refusal to disclose any portion of the 911 call for three months after the Newspapers' OPRA requests provides 16 A-1276-15T4 substantial credible evidence that the Newspapers' OPRA litigations were a catalyst for the MCPO's disclosure of the call. Based on the record, the judge correctly held the Newspapers were prevailing parties entitled to fees pursuant to OPRA. We reject the MCPO's argument that the judge should have reduced the fee award in light of the Newspapers' limited success in obtaining only a redacted copy of the 911 call. As our Supreme Court held in New Jerseyans for a Death Penalty Moratorium v. New Jersey Department of Correction: [w]e reject "'a mathematical approach comparing the total number of issues in the case with those actually prevailed upon' because '[s]uch a ratio provides little aid in determining what is a reasonable fee in light of all the relevant factors.'" Stated differently, "the fee award should not be reduced simply because the plaintiff failed to prevail on every contention raised in the lawsuit." [New Jerseyans for a Death Penalty Moratorium v. N.J. Dep't of Corr., 185 N.J. 137, 154-55 (2005) (citations omitted).] The MCPO separately appeals from an order awarding fees to NJAM incurred in defending against the motion for a protective order. The MCPO claims the judge erred in awarding fees to NJAM pursuant to Rule 4:10-3. We find the MCPO's argument misunderstands the basis for the judge's fee award. The judge expressly awarded fees to NJAM as a prevailing party under OPRA, 17 A-1276-15T4 not pursuant to Rule 4:10-3. Section 6 of OPRA provides that "[a] requestor who prevails in any proceeding shall be entitled to a reasonable attorney’s fee." N.J.S.A. 47:1A-6. We concur with the judge's findings that the MCPO's motion for a protective order was "any proceeding," thus entitling NJAM to attorney’s fees under OPRA. There is ample support in the record for the judge's determination that the Newspapers were prevailing parties under OPRA and, thus, entitled to recover legal fees and costs. 4 We discern no basis to disturb the amount of the fees awarded by the judge as the MCPO did not object to the amount awarded. Affirmed. 4 Based on the certifications filed by the Newspapers in support of their requested fee awards, the judge assessed the legal tasks performed by counsel and the time expended in determining the proper fee award, ultimately awarding approximately forty percent less to NJAM than he awarded to HNT, based on the efforts of each Newspaper relative to obtaining the 911 call. 18 A-1276-15T4
Date: March 2, 2018
Docket Number: a1276-15a127 PER CURIAM Appellant Middlesex County Prosecutor's Office (MCPO) appeals from orders of the Law Division dated November 4, 2015, and 2 A-1276-15T4 November 6, 2015, awarding attorney's fees to respondents NJ Advance Media, LLC (NJAM) and Home News Tribune (HNT) (collectively, the Newspapers) as prevailing parties in litigation arising from the Newspapers' requests for records pursuant to the Open Public Records Act, N.J.S.A. 47:1A-1 to -13 (OPRA or Act). We affirm. On January 14, 2015, police responded to a 911 call from a home in Old Bridge. In responding to that call, police shot and killed an Old Bridge man who resided in the home. The next day, NJAM made an OPRA request to the MCPO for any and all 911 recordings related to the Old Bridge shooting. On January 16, 2015, HNT sent a similar OPRA request to the MCPO. On January 23, 2015, the MCPO advised NJAM that it had a recording of the 911 call, but declined to disclose the recording, citing N.J.S.A. 47:1A-3, which allows non-disclosure of records that "pertain to an investigation in progress," and N.J.S.A. 47:1A- 1, which allows non-disclosure of "a citizen's personal information . . . when disclosure thereof would violate the citizen's reasonable expectation of privacy." On February 17, 2015, the MCPO denied HNT's request for the 911 call for the same reasons. On February 18, 2015, NJAM wrote to the MCPO disputing that the 911 call was subject to the active investigation exception. 3 A-1276-15T4 NJAM also argued the identity of the 911 caller was public information and, therefore, there was no privacy concern supporting non-disclosure of the 911 call. NJAM warned that if the MCPO declined to reconsider its denial of the requested information, NJAM would litigate the matter, seek to recover attorney's fees and costs under N.J.S.A. 47:1A-6, and request sanctions under N.J.S.A. 47:1A-11. On February 19, 2015, HNT sent a similar letter to the MCPO. In addition to the arguments presented by NJAM, HNT argued the expectation of privacy exemption applied only to personal information entrusted to the agency, and was not applicable to the 911 call. HNT noted that if there was information that needed protection, the correct course of action under OPRA was redaction of the protected information and prompt disclosure of the remaining portion of the 911 call, even in redacted form. Despite the Newspapers' renewed requests, the MCPO refused to release the 911 call. On March 3, 2015, knowing the Newspapers would file OPRA litigation based on its refusal to provide the 911 call, the MCPO filed a motion for a protective order under Rule 4:10-3. The MCPO requested the court to "evaluate the entire 911 call in camera and make a determination that it should not be provided." Since there was no pending litigation when the MCPO filed its motion, the 4 A-1276-15T4 matter was captioned "IN RE THE REQUEST FOR THE DISCLOSURE OF 911 CALL OF JANUARY 14, 2015 TO OLD BRIDGE POLICE." In its motion, the MCPO argued the 911 call, made by a family member of the deceased, "reveal[ed] a highly charged emotional situation," and the MCPO believed it "should not provide the 911 recordings where a victim or family member has a reasonable expectation of privacy in the call or the conversation." The MCPO further argued releasing the 911 call would discourage citizens from calling 911 in an emergency. Upon receipt of the MCPO's motion, NJAM responded by sending a Rule 1:4-8 letter. NJAM asserted the MCPO's "pre-complaint motion" was "procedurally improper and utterly lack[ed] a legal basis." NJAM advised that only a requesting party is allowed to initiate litigation under OPRA. NJAM demanded that the MCPO withdraw its motion or else NJAM would move for sanctions, costs, and attorney's fees incurred in opposing the motion. HNT also sent a Rule 1:4-8 letter to the MCPO. HNT claimed the MCPO's application was frivolous and improper because: (1) Rule 4:10-3 is a discovery rule, and there was no pending litigation; (2) there was no justiciable controversy, because the MCPO had already denied HNT's request for the 911 call; and (3) the MCPO had no legal authority to initiate OPRA litigation. 5 A-1276-15T4 In response, counsel for the MCPO "categorically den[ied]" its motion was improper. The MCPO proposed a stipulation in which the Newspapers could seek reasonable attorney's fees in the event that: (1) the MCPO's motion was denied; and (2) the court ordered complete disclosure of the 911 call. HNT responded to the proposed stipulation by insisting the MCPO withdraw its motion. HNT repeated its intent to file an OPRA complaint and suggested the MCPO could assert all applicable defenses in the OPRA litigation rather than circumvent OPRA by way of an improper motion for a protective order. The MCPO declined to withdraw its motion. On April 1, 2015, HNT filed a verified complaint and order to show cause (OTSC) against the MCPO seeking disclosure of the 911 call, as well as costs and attorney's fees. HNT sent a courtesy copy of the complaint and OTSC to the MCPO's attorney by overnight courier. On April 7, 2015, the judge signed HNT's OTSC. That same day, the MCPO sent a disc containing a redacted version of the 911 call to NJAM and HNT. The disc was received by NJAM on April 9, 2015, and by HNT on April 10, 2015. 6 A-1276-15T4 Because the MCPO was providing only a redacted copy of the 911 call, the Newspapers requested a Vaughn2 index in support of the MCPO's redactions. HNT specifically asked the MCPO to "advise how long the total unredacted recording is and how many seconds/minutes were redacted and whether the redactions were made in one place or multiple places," as well as "the legal basis for all redactions." The MCPO responded it would not produce a Vaughn index unless the judge required an index as part of the protective order motion. On April 8, 2015, one day before receiving the redacted 911 disc, NJAM filed a verified complaint against the MCPO and its records custodian seeking disclosure of the 911 call, as well as costs and attorney's fees. The MCPO received HNT's filed complaint and signed OTSC on April 10, 2015. On April 13, 2015, the MCPO received a copy of NJAM's complaint. The MCPO filed answers to the Newspapers' complaints. As an affirmative defense to the Newspapers' legal actions, the MCPO claimed non-disclosure of portions of the 911 call was justified 2 Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973). "A Vaughn index is comprised of affidavits containing a 'relatively detailed' justification for the claim of privilege being asserted for each document." Paff v. Div. of Law, 412 N.J. Super. 140, 161 n.9 (App. Div. 2010). 7 A-1276-15T4 based upon the privacy interests of the caller and others on the recording. The judge heard argument on the MCPO's motion for a protective order and HNT's OTSC. Without a Vaughn index, the Newspapers argued they lacked an ability to respond to the MCPO's privilege claims. The judge was persuaded by the Newspapers' argument, and ordered the MCPO to provide a Vaughn index. The parties were advised that they would return to court for substantive argument on the pending applications after receipt of the Vaughn index. Before concluding the hearing, the judge asked the MCPO's counsel whether, "[i]n light of what we have done today, are you withdrawing [the motion for a protective order]?" The MCPO responded it would not withdraw the motion. Two days after the court proceeding, the MCPO mailed a Vaughn index to the Newspapers. While the Vaughn index listed the length of time for each redaction and described the redacted portions of the 911 call, it did not identify the parties on the recording (i.e., police, victim, wife, or other family member). According to the MCPO, the reason for all redactions was the protection of the "privacy rights" of the caller and other family members. On June 10, 2015, the parties returned to court on the motion for a protective order. The Newspapers argued the Vaughn index was inadequate because it failed to identify the people on the 8 A-1276-15T4 call, the precise nature of the privacy rights being protected, and whose specific rights were being protected. According to the Newspapers, since the victim was killed by the police, the entire call concerned a matter of public interest implicated under OPRA. The MCPO argued the motion for a protective order was filed proactively to obtain a legal determination from the court balancing the public's right to the 911 call versus the privacy interests of the caller and family members. The MCPO also contended that N.J.S.A. 47:1A-6 did not preclude its legal action. In denying the motion for a protective order, the judge found: With regard to the motion for a protective order, the [c]ourt finds that . . . [OPRA] does not in any way provide or even suggest that such a proceeding would be appropriate with respect to protecting information that the governmental entity or the public entity believes should not be provided to the requestor based on a privacy interest. The statute and all of the associated case law creates a procedure for protecting . . . information that the entity might consider to be private by . . . the provi[sion] of a Vaughn index with an explanation . . . of why the information should not be provided. The [c]ourt finds no basis to depart from the clear language of the statute. The option of where to institute the action, the [Government Records Council] or the Superior Court, and the option of whether to go to court at all are exclusively that of the requestor. The public entity cannot call individuals into 9 A-1276-15T4 court based on their own denial and then require those parties to expend legal fees in order to respond.3 The motion for a protective order is procedurally deficient pursuant to Rule 4:10- 3, which is . . . a Rule utilized in the context of pretrial discovery . . . . The judge told counsel he would listen to the unredacted 911 call with the Vaughn index, and issue a separate ruling on the propriety of the MCPO's redactions. On June 12, 2015, the judge ruled the MCPO’s redaction of the 911 call was proper in light of the "incredibly private, passionate, heart-wrenching" statements made during the call, which revealed "[a] horrific tragedy that this [c]ourt could not imagine before hearing the tape." By order dated June 24, 2015, the judge denied the MCPO’s motion for a protective order and the Newspapers' complaints to the extent the Newspapers sought an unredacted copy of the 911 call. Based on the judge's ruling, HNT filed a motion for costs and attorney’s fees incurred in opposing the MCPO’s improper motion for a protective order and sanctions under Rule 1:4-8 and N.J.S.A. 3 The judge's ruling preceded the Court's decision in Carter v. Doe (In re N.J. Firemen's Ass'n Obligation), 230 N.J. 258, 278 (2017) (holding "OPRA clearly and unambiguously confers the right to initiate a suit after a public agency's denial of access only upon the requestor.") 10 A-1276-15T4 2A:15-59.1. HNT filed a separate motion for attorney’s fees incurred in its OPRA lawsuit against the MCPO. The next day, NJAM filed a motion for costs, attorney’s fees, and sanctions under Rule 4:10-3 and OPRA. In opposition to the fee motions with respect to the protective order, the MCPO argued: (1) its motion for a protective order was justified as an "innovative and creative" approach to protecting the privacy rights of the people on the 911 call; (2) since the court held Rule 4:10-3 was inapplicable to the MCPO's motion, it would be illogical for the court to impose fees under that Rule; and (3) if the court had ruled on the substantive issues in the OPRA cases first, the protective order would have been rendered moot, as the substantive reasons advanced by the MCPO in support of its motion were affirmed by the judge's ruling on June 12, 2015. In opposition to the fee motions with respect to the Newspapers' OPRA complaints, the MCPO argued the Newspapers were not prevailing parties under OPRA because the court deemed the MCPO's redaction of the 911 call to be proper. During argument on the fee motions, the MCPO insisted the redacted 911 call was not mailed to the Newspapers as a result of their OPRA lawsuits. The MCPO maintained the redacted 911 call was sent to the Newspapers as part of its motion for a protective order. However, the MCPO's counsel stated that "there was no 11 A-1276-15T4 doubt in this case, after [the MCPO] denied the OPRA request[s] for the 911 call, . . . that counsel were going to bring OPRA actions against the prosecutor's office," and further admitted to the judge that the Newspapers "filed their complaints before my effort to, in fact . . . get[] [them] the redacted disc." The MCPO did not dispute the hourly rates charged or the time expended by counsel for the Newspapers, but it did object to fees for any legal work done after it provided the redacted 911 call. On September 11, 2015, the judge issued a decision on the Newspapers' fee motions. The judge determined the Newspapers were prevailing parties under OPRA. The judge found there was a causal nexus between the Newspapers' lawsuits and the MCPO’s release of the redacted 911 call. The judge expressly found: [T]he filing of the verified complaints and orders to show cause were indeed the catalysts for the production of the 911 recording. After a blanket denial . . . for the 911 recording and refusal to even reconsider the denial in February [20]15, the filing of the lawsuits caused . . . a subsequent disclosure . . . . The filing of the two lawsuits was a necessary and important factor in obtaining the relief, because, up to that point, the prosecutor’s office remained steadfast in its denial of the requests for access . . . . 12 A-1276-15T4 The judge also ruled there was a basis in law for the disclosure of the 911 call because "[t]he requested 911 recording [was] a public government record and hence subject to disclosure under OPRA." The judge also rejected the MCPO’s claim that the Newspapers should not recover fees for legal work after disclosure of the redacted 911 call. The judge found that even after the disclosure of the redacted 911 call, the Newspapers "incurred attorney’s fees by continuing to litigate the issue of the prosecutor’s failure to provide a Vaughn index and by defending against the motion for a protective order filed by the prosecutor’s office, which was procedurally infirm." The judge further rejected the MCPO’s claim that the Newspapers achieved limited success because their complaints sought the unredacted 911 call. The judge found the Newspapers requested "access [to] any recording relating to the 911 call or call to the police relating to the January 14 shooting" and that the Newspapers' obtaining the redacted 911 call, with the Vaughn index, constituted a "high degree of success" under OPRA. With respect to the Newspapers' attorney's fees incurred as a result of the MCPO's motion for a protective order, the judge held the Newspapers were entitled to fees under OPRA because the MCPO's motion "was a direct result of the OPRA request[s]." The 13 A-1276-15T4 judge found there was "no legal authority" for the MCPO's motion, which was "in direct violation of the express language of OPRA," thus there was "no substantial justification to exempt [the MCPO] from paying fees and costs." In light of the numerous opportunities the MCPO had to withdraw its motion, the judge held it was not unjust to award fees to the Newspapers. By orders dated November 4, 2015, the judge awarded $71,848.28 in costs and attorney’s fees to HNT as a prevailing party in its OPRA case and for opposing the MCPO's motion for a protective order. By order dated November 6, 2015, the judge awarded $39,583.51 in costs and attorney’s fees to NJAM. The MCPO appealed. On appeal, the MCPO argues: (1) the Newspapers were not prevailing parties under OPRA; and (2) the judge should have reduced the fees awarded to the Newspapers based on their "limited success" in the OPRA litigations. We review fee determinations for an abuse of discretion. Rendine v. Pantzer, 141 N.J. 292, 317 (1995). "[F]ee determinations by trial courts will be disturbed only on the rarest of occasions, and then only because of a clear abuse of discretion." Packard-Bamberger & Co. v. Collier, 167 N.J. 427, 444 (2001) (citing Rendine, 141 N.J. 292). In determining whether a party is entitled to attorney's fees under a fee-shifting statute such as OPRA, courts employ "a two- 14 A-1276-15T4 fold test to determine whether a litigant qualifies as a prevailing party. [First, a] party must demonstrate that [the] lawsuit was causally related to securing the relief obtained," meaning "plaintiff[‘s] efforts are a necessary and important factor in obtaining the relief. This determination is factual." Singer v. State, 95 N.J. 487, 494 (1984) (citation omitted). Second, "plaintiff must establish that the relief granted had some basis in law." Ibid. This two-part test is known as the "catalyst" theory. Teeters v. Div. of Youth & Family Servs., 387 N.J. Super. 423, 429-31 (App. Div. 2006). A trial court's evaluation of the causal nexus under the Singer test is a "fact-sensitive inquiry on a case-by-case basis, evaluating the reasonableness of, and motivations for, an agency's decisions." Mason v. City of Hoboken, 196 N.J. 51, 79 (2008). Usually, it is the requestor's burden to prove prevailing party status to recover attorney's fees. Id. at 76-77. "[A] party can be considered 'prevailing' for the purposes of the . . . Act even though the disposition of the case does not include a final judgment entered in plaintiff's favor . . . ." Singer, 95 N.J. at 495. "A plaintiff is considered a prevailing party 'when actual relief on the merits of [the] claim materially alters the relationship between the parties by modifying the defendant's behavior in a way that directly benefits the 15 A-1276-15T4 plaintiff.'" Warrington v. Vill. Supermarket, Inc., 328 N.J. Super. 410, 420 (App. Div. 2000) (second alteration in original) (quoting Farrar v. Hobby, 506 U.S. 103, 111-12 (1992)). The MCPO argues the judge erred in determining the Newspapers were prevailing parties under OPRA. The MCPO contends the Newspapers sought only the unredacted 911 call and, therefore, did not prevail because the judge determined that producing the redacted 911 call was proper. The MCPO also argues the Newspapers' lawsuits could not have been the catalyst for disclosure of the 911 call, because the MCPO voluntarily released the 911 call as part of its motion for a protective order. We agree with the motion judge that the Newspapers' lawsuits were a catalyst for the disclosure of the 911 call. As early as February 2015, the MCPO knew the Newspapers intended to file OPRA lawsuits if the 911 call was not released. Knowing the Newspapers planned to file litigation, the MCPO filed its "procedurally deficient" motion for a protective order. It was not until after HNT filed suit -- nearly two months after the MCPO first denied disclosure of the 911 call and nearly one month after the MCPO filed its motion -- that the MCPO released the redacted 911 call, which then required the Newspapers to seek a Vaughn index. The MCPO's repeated refusal to disclose any portion of the 911 call for three months after the Newspapers' OPRA requests provides 16 A-1276-15T4 substantial credible evidence that the Newspapers' OPRA litigations were a catalyst for the MCPO's disclosure of the call. Based on the record, the judge correctly held the Newspapers were prevailing parties entitled to fees pursuant to OPRA. We reject the MCPO's argument that the judge should have reduced the fee award in light of the Newspapers' limited success in obtaining only a redacted copy of the 911 call. As our Supreme Court held in New Jerseyans for a Death Penalty Moratorium v. New Jersey Department of Correction: [w]e reject "'a mathematical approach comparing the total number of issues in the case with those actually prevailed upon' because '[s]uch a ratio provides little aid in determining what is a reasonable fee in light of all the relevant factors.'" Stated differently, "the fee award should not be reduced simply because the plaintiff failed to prevail on every contention raised in the lawsuit." [New Jerseyans for a Death Penalty Moratorium v. N.J. Dep't of Corr., 185 N.J. 137, 154-55 (2005) (citations omitted).] The MCPO separately appeals from an order awarding fees to NJAM incurred in defending against the motion for a protective order. The MCPO claims the judge erred in awarding fees to NJAM pursuant to Rule 4:10-3. We find the MCPO's argument misunderstands the basis for the judge's fee award. The judge expressly awarded fees to NJAM as a prevailing party under OPRA, 17 A-1276-15T4 not pursuant to Rule 4:10-3. Section 6 of OPRA provides that "[a] requestor who prevails in any proceeding shall be entitled to a reasonable attorney’s fee." N.J.S.A. 47:1A-6. We concur with the judge's findings that the MCPO's motion for a protective order was "any proceeding," thus entitling NJAM to attorney’s fees under OPRA. There is ample support in the record for the judge's determination that the Newspapers were prevailing parties under OPRA and, thus, entitled to recover legal fees and costs. 4 We discern no basis to disturb the amount of the fees awarded by the judge as the MCPO did not object to the amount awarded. Affirmed. 4 Based on the certifications filed by the Newspapers in support of their requested fee awards, the judge assessed the legal tasks performed by counsel and the time expended in determining the proper fee award, ultimately awarding approximately forty percent less to NJAM than he awarded to HNT, based on the efforts of each Newspaper relative to obtaining the 911 call. 18 A-1276-15T4
RASULJENKINS, a/k/a RASOOL JACOBS, RASUL JACOBS, RASOOL JENKINS, MONEY BAGS, and ROY SIMMINS v. NEW JERSEY DEPARTMENT OF CORRECTIONS
Date: March 2, 2018
Docket Number: a5186-15
Date: March 2, 2018
Docket Number: a5186-15
ALFREDPETIT-CLAIR, JR v. BOARD OF TRUSTEES, PUBLIC EMPLOYEES' RETIREMENT SYSTEM -
Date: March 1, 2018
Docket Number: a2048-16
Date: March 1, 2018
Docket Number: a2048-16
WILLIAMWILLIAMS v. HUDSON CITY SAVINGS BANK and MORTGAGE ACCESS CORP., d/b/a WEICHERT FINANCIAL SERVICES, and KEITH WANAMAKER
Date: March 1, 2018
Docket Number: a2276-15
Date: March 1, 2018
Docket Number: a2276-15
OFCHILD PROTECTION AND PERMANENCY v. D.C. and D.W IN THE MATTER OF D.W., JR., and B.W., Minors.1
Date: March 1, 2018
Docket Number: a2526-16a252 PER CURIAM After a fact-finding hearing in the Family Part, the court determined that defendants D.C. and D.W., the parents of two then- minor sons D.W., Jr. and B.W.,2 had committed abuse or neglect in violation of N.J.S.A. 9:6-8.21(c) by housing the sons in a residence that lacked electricity, running water, and other sanitary facilities. The trial judge found the conditions at the house, which had a placard on display declaring it to be an unsafe structure, placed the sons "at imminent risk of substantial harm." In addition, the judge found that "another safe alternative was reasonably available" for housing the sons. In their consolidated appeal, the parents contend the evidence at the hearing was inadequate to support the trial court's findings. They contend their sons sustained no actual harm, nor had they been imperiled by the risk of any serious harm. The 2 D.W., Jr. is now emancipated. B.W., who is now age sixteen, was initially placed with an aunt and uncle, but has since been returned to the custody of the parents. 2 A-2526-16T2 parents stress that during the time frame in question, the sons bathed, washed their clothes, and addressed their hygiene needs at the residence of their maternal grandmother. They further emphasize that school officials had observed their sons to be well groomed, wearing clean clothes, maintaining good grades, and having steady attendance. As a central theme of their appeal, the parents argue the trial court unfairly penalized them because of their poverty. They stress their financial distress had been compounded by factors beyond their control, including damage to their home caused by Superstorm Sandy and a subsequent fire, the mother's ongoing disability, the father's recent loss of work, and multiple rejections of his application for SSI benefits. In essence, they contend they looked after their sons' needs the best they could while coping with difficult circumstances. The Division of Child Protection and Permanency ("Division") and the Law Guardian oppose the parents' appeal. They contend the record contains ample credible evidence to support the judge's findings of abuse or neglect, and that the judge did not improperly base those findings upon the parents' impoverished status. 3 A-2526-16T2 I. The portion of N.J.S.A. 9:6-8.21(c) relevant to this case defines an "abused or neglected" child as one whose physical, mental, or emotional condition has been impaired or is in imminent danger of becoming impaired as the result of the failure of his parent or guardian . . . to exercise a minimum degree of care . . . in supplying the child with adequate food, clothing, shelter, education, medical or surgical care though financially able to do so or though offered financial or other reasonable means to do so [N.J.S.A. 9:6-8.21(c)(4)(emphasis added).] To make a finding of neglect under this provision, the court must be persuaded that: (1) the child has a physical, mental or emotional condition that is either impaired or in imminent danger of being impaired; (2) such impairment is or would be the result of the parent's failure to exercise a minimum degree of care in supplying the child with adequate food, clothing, shelter, education, medical, or surgical care; and (3) the parent is financially able to do so, or he or she can do so through offered aid or other "reasonable means." See Doe v. G.D., 146 N.J. Super. 419, 430 (App. Div. 1976), aff'd o.b., 74 N.J. 196 (1977). The statute does not require that a child experience actual harm. N.J.S.A. 9:6-8.21(c)(4); see also N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 449 (2012) (explaining that 4 A-2526-16T2 the Division need not wait until a child experiences an actual injury). Instead, a court may find a child has been abused and neglected if his or her physical, mental, or emotional condition has been "impaired or is in imminent danger of becoming impaired." N.J.S.A. 9:6-8.21(c)(4). The Supreme Court has instructed that this abuse and neglect standard is satisfied when the Division demonstrates at a hearing by a preponderance of the evidence that a parent has failed to exercise a minimum degree of care. See, e.g., G.S. v. Dep't of Human Servs., 157 N.J. 161, 181 (1999) (citation omitted). A "minimum degree of care" encompasses conduct that was grossly or wantonly negligent, but not necessarily intentional. Id. at 178. Wanton negligence is conduct that was engaged in with the parent's knowledge that injury is likely to result. Ibid. A parent's action or inaction can rise to the level of wanton negligence even if he or she did not intend to cause a child injury. Id. at 179. The Court has thus recognized that a parent should be liable for the foreseeable consequences of his or her actions and inactions. Ibid. In applying these standards in abuse or neglect cases brought by the Division, our courts must bear in mind that the purpose of Title 9 is "to protect children 'who have had serious injury inflicted upon them' and make sure they are 'immediately 5 A-2526-16T2 safeguarded from further injury . . . .'" N.J. Div. of Youth & Family Servs v. A.L., 213 N.J. 1, 18 (2013) (quoting N.J.S.A. 9:6- 8.8(a)). Therefore, in such cases, the focus is on "promptly protecting a child who has suffered harm or faces imminent danger." Ibid. (citing N.J.S.A. 9:6-8.21(c)(4)). Appellants appropriately remind us that a parent's "poverty alone is not a basis for a finding of abuse and neglect." N.J. Div. of Child Prot. and Permanency v. L.W., 435 N.J. Super. 189, 195 (App. Div. 2014). In L.W., a mother, who was incarcerated for drugs, received services and had her child returned to her. Id. at 191-92. The mother relocated to Georgia, but later returned to the Division, explaining that she could not find housing. Id. at 192. The children were temporarily placed into foster care. Ibid. When brought to the Division, the children were clean, well-fed, and well-clothed. Ibid. The mother had returned to New Jersey due to a death in her fiancée's family, but did not have the funds to return to Georgia. Id. at 193. The mother was unsuccessful in finding a job or housing. Ibid. The trial judge in L.W. found the mother was not credible because he did not believe that welfare authorities would have offered a program but deny necessary child care and that the mother was irresponsible in booking a plane ticket with insufficient funds to return. Id. at 193-195. We reversed, finding that the 6 A-2526-16T2 evidence in the record did not justify the trial judge's finding that the mother was not credible. Id. at 195. We found that the trial judge had improperly assumed that welfare programs function in an optional way. Ibid. We also noted that the mother's poor planning was a side effect of poverty, and that she had made efforts to find housing and employment. Id. at 196. We observed that parents should be encouraged to seek aid without fear of being found neglectful. Ibid. In L.W., the mother had done the responsible thing to seek such aid from the Division. Ibid. In N.J. Div. of Youth and Family Serv. v. P.W.R., 205 N.J. 17, 37 (2009), the Supreme Court reversed a finding of abuse and neglect that had been based, in part, on the absence of heating in the child's home. The Court recognized that the failure of the Division to offer the parents assistance to remedy the deficient heat was "troubling, particularly to the extent that the deficient central heating component of the home was used as a basis for removing [the child]." Ibid. The Court distinguished the circumstances in P.W.R. from those in N.J. Div. of Youth and Family Servs. v. K.M., 136 N.J. 546, 550 (1994), in which a finding of abuse or neglect was upheld. Id. at 34. In K.M., the parents had been physically and financially capable of providing for their children's basic needs of food, clothing, and shelter but failed to do so. K.M., 136 7 A-2526-16T2 N.J. at 550-551. Additionally in K.M., the neglect continued even after the Division had provided assistance and services. Id. at 551-52. II. Guided by these principles, we have reviewed the record in this case, according due deference to the expertise of the Family Part and the trial judge's first-hand opportunity to evaluate the factual proofs. We generally defer to the factual findings of the Family Part if they are sustained by "adequate, substantial, and credible evidence" in the record. N.J. Div. of Youth & Family Servs. v. R.G., 217 N.J. 527, 552 (2014). However, "[w]here the issue to be decided is an alleged error in the trial judge's evaluation of the underlying facts and the implications to be drawn therefrom, we expand the scope of our review." N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007) (citations and internal quotation marks omitted). Having completed our assessment of the record in light of these review standards and the applicable law, we affirm the trial court's findings in part and remand in part for additional proceedings. A. With respect to the trial judge's determination that the parents placed their minor sons at risk of serious harm, we agree 8 A-2526-16T2 this finding is supported by substantial credible evidence in the record. Although the sons apparently did not become ill as the result of the lack of working utilities in their parents' home, the trial judge rightly found the unsanitary conditions posed a serious risk of harm. According to the sons, the conditions had persisted "for months[,]" which the judge deemed to be an extensive and unacceptable period of time. As one graphic example of the conditions, the children were forced to use a makeshift hole in the ground as an outdoor toilet. Although they were able to wash and use a bathroom at their grandmother's residence, that arrangement was not appropriate for an extended period of time. We reject the parents' claim they were penalized simply because of their poverty, as there is no indication the Division would have withheld services had they been requested. We therefore affirm this key aspect of the trial judge's decision, i.e., that the parents had failed to provide their sons with "adequate . . . shelter." N.J.S.A. 9:6-8.21(c)(4). B. The second aspect of the judge's findings relates to the statutory criterion of whether the parents had "other reasonable means" to meet their sons' needs. Ibid. On this point the judge specifically found that "another reasonable safe alternative existed in the home of the maternal grandparents, where the 9 A-2526-16T2 children could have stayed in place of a home without running water or electricity." As was revealed at subsequent proceedings, it appears the judge's key assumption about the availability of the grandparents' residence may have been mistaken. Information that emerged at a later permanency hearing indicates the grandparents live in an age-restricted community with rules3 that limit the amount of allowable overnight stays by minors apparently to one month. Hence, the judge's assumption that the sons could have moved in with their grandparents on an ongoing basis may have been incorrect. The judge made no finding that the boys' aunt and uncle, with whom they ultimately were placed after their removal, were a viable and willing alternative for the parents before the time of the Division's involvement. We are cognizant there is hearsay evidence that in a previous referral, a Division caseworker had observed the children's sleeping arrangements and personal items at the maternal grandparents' residence, and that the parents told Division caseworkers their sons had been staying overnight with the grandparents. However, neither parent testified about this subject, nor about the community rules that allegedly limit to one 3 The information was presented through an unsworn representation to the court by the Law Guardian. 10 A-2526-16T2 month the frequency and duration of such overnight stays. Nor did the grandparents or any witnesses from their community testify. Given the significance of what may have been a mistaken pivotal assumption within the trial court's fact-finding analysis, we are constrained to remand this case to develop the record further on the discrete issue of "reasonable alternatives." The parties are encouraged to adduce further proofs on the subject on remand. As part of the remand, we invite the parties and the court to delve into whether the parents had deliberately misled caseworkers4 about material facts, and if so, whether such false statements compel the application of the doctrine of invited error, see N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 340-42 (2010), or equitable estoppel, see W.V. Pangborne & Co. v. N.J. Dep't of Transp., 116 N.J. 543, 557 (1989). Affirmed in part and remanded in part. The remand shall be completed within ninety days. We do not retain jurisdiction. 4 We do not make such an inference ourselves, as it is conceivable the parents' representations to caseworkers about where the sons were then staying might have occurred during the community's allowable "one-month" visiting period. 11 A-2526-16T2
Date: March 1, 2018
Docket Number: a2526-16a252 PER CURIAM After a fact-finding hearing in the Family Part, the court determined that defendants D.C. and D.W., the parents of two then- minor sons D.W., Jr. and B.W.,2 had committed abuse or neglect in violation of N.J.S.A. 9:6-8.21(c) by housing the sons in a residence that lacked electricity, running water, and other sanitary facilities. The trial judge found the conditions at the house, which had a placard on display declaring it to be an unsafe structure, placed the sons "at imminent risk of substantial harm." In addition, the judge found that "another safe alternative was reasonably available" for housing the sons. In their consolidated appeal, the parents contend the evidence at the hearing was inadequate to support the trial court's findings. They contend their sons sustained no actual harm, nor had they been imperiled by the risk of any serious harm. The 2 D.W., Jr. is now emancipated. B.W., who is now age sixteen, was initially placed with an aunt and uncle, but has since been returned to the custody of the parents. 2 A-2526-16T2 parents stress that during the time frame in question, the sons bathed, washed their clothes, and addressed their hygiene needs at the residence of their maternal grandmother. They further emphasize that school officials had observed their sons to be well groomed, wearing clean clothes, maintaining good grades, and having steady attendance. As a central theme of their appeal, the parents argue the trial court unfairly penalized them because of their poverty. They stress their financial distress had been compounded by factors beyond their control, including damage to their home caused by Superstorm Sandy and a subsequent fire, the mother's ongoing disability, the father's recent loss of work, and multiple rejections of his application for SSI benefits. In essence, they contend they looked after their sons' needs the best they could while coping with difficult circumstances. The Division of Child Protection and Permanency ("Division") and the Law Guardian oppose the parents' appeal. They contend the record contains ample credible evidence to support the judge's findings of abuse or neglect, and that the judge did not improperly base those findings upon the parents' impoverished status. 3 A-2526-16T2 I. The portion of N.J.S.A. 9:6-8.21(c) relevant to this case defines an "abused or neglected" child as one whose physical, mental, or emotional condition has been impaired or is in imminent danger of becoming impaired as the result of the failure of his parent or guardian . . . to exercise a minimum degree of care . . . in supplying the child with adequate food, clothing, shelter, education, medical or surgical care though financially able to do so or though offered financial or other reasonable means to do so [N.J.S.A. 9:6-8.21(c)(4)(emphasis added).] To make a finding of neglect under this provision, the court must be persuaded that: (1) the child has a physical, mental or emotional condition that is either impaired or in imminent danger of being impaired; (2) such impairment is or would be the result of the parent's failure to exercise a minimum degree of care in supplying the child with adequate food, clothing, shelter, education, medical, or surgical care; and (3) the parent is financially able to do so, or he or she can do so through offered aid or other "reasonable means." See Doe v. G.D., 146 N.J. Super. 419, 430 (App. Div. 1976), aff'd o.b., 74 N.J. 196 (1977). The statute does not require that a child experience actual harm. N.J.S.A. 9:6-8.21(c)(4); see also N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 449 (2012) (explaining that 4 A-2526-16T2 the Division need not wait until a child experiences an actual injury). Instead, a court may find a child has been abused and neglected if his or her physical, mental, or emotional condition has been "impaired or is in imminent danger of becoming impaired." N.J.S.A. 9:6-8.21(c)(4). The Supreme Court has instructed that this abuse and neglect standard is satisfied when the Division demonstrates at a hearing by a preponderance of the evidence that a parent has failed to exercise a minimum degree of care. See, e.g., G.S. v. Dep't of Human Servs., 157 N.J. 161, 181 (1999) (citation omitted). A "minimum degree of care" encompasses conduct that was grossly or wantonly negligent, but not necessarily intentional. Id. at 178. Wanton negligence is conduct that was engaged in with the parent's knowledge that injury is likely to result. Ibid. A parent's action or inaction can rise to the level of wanton negligence even if he or she did not intend to cause a child injury. Id. at 179. The Court has thus recognized that a parent should be liable for the foreseeable consequences of his or her actions and inactions. Ibid. In applying these standards in abuse or neglect cases brought by the Division, our courts must bear in mind that the purpose of Title 9 is "to protect children 'who have had serious injury inflicted upon them' and make sure they are 'immediately 5 A-2526-16T2 safeguarded from further injury . . . .'" N.J. Div. of Youth & Family Servs v. A.L., 213 N.J. 1, 18 (2013) (quoting N.J.S.A. 9:6- 8.8(a)). Therefore, in such cases, the focus is on "promptly protecting a child who has suffered harm or faces imminent danger." Ibid. (citing N.J.S.A. 9:6-8.21(c)(4)). Appellants appropriately remind us that a parent's "poverty alone is not a basis for a finding of abuse and neglect." N.J. Div. of Child Prot. and Permanency v. L.W., 435 N.J. Super. 189, 195 (App. Div. 2014). In L.W., a mother, who was incarcerated for drugs, received services and had her child returned to her. Id. at 191-92. The mother relocated to Georgia, but later returned to the Division, explaining that she could not find housing. Id. at 192. The children were temporarily placed into foster care. Ibid. When brought to the Division, the children were clean, well-fed, and well-clothed. Ibid. The mother had returned to New Jersey due to a death in her fiancée's family, but did not have the funds to return to Georgia. Id. at 193. The mother was unsuccessful in finding a job or housing. Ibid. The trial judge in L.W. found the mother was not credible because he did not believe that welfare authorities would have offered a program but deny necessary child care and that the mother was irresponsible in booking a plane ticket with insufficient funds to return. Id. at 193-195. We reversed, finding that the 6 A-2526-16T2 evidence in the record did not justify the trial judge's finding that the mother was not credible. Id. at 195. We found that the trial judge had improperly assumed that welfare programs function in an optional way. Ibid. We also noted that the mother's poor planning was a side effect of poverty, and that she had made efforts to find housing and employment. Id. at 196. We observed that parents should be encouraged to seek aid without fear of being found neglectful. Ibid. In L.W., the mother had done the responsible thing to seek such aid from the Division. Ibid. In N.J. Div. of Youth and Family Serv. v. P.W.R., 205 N.J. 17, 37 (2009), the Supreme Court reversed a finding of abuse and neglect that had been based, in part, on the absence of heating in the child's home. The Court recognized that the failure of the Division to offer the parents assistance to remedy the deficient heat was "troubling, particularly to the extent that the deficient central heating component of the home was used as a basis for removing [the child]." Ibid. The Court distinguished the circumstances in P.W.R. from those in N.J. Div. of Youth and Family Servs. v. K.M., 136 N.J. 546, 550 (1994), in which a finding of abuse or neglect was upheld. Id. at 34. In K.M., the parents had been physically and financially capable of providing for their children's basic needs of food, clothing, and shelter but failed to do so. K.M., 136 7 A-2526-16T2 N.J. at 550-551. Additionally in K.M., the neglect continued even after the Division had provided assistance and services. Id. at 551-52. II. Guided by these principles, we have reviewed the record in this case, according due deference to the expertise of the Family Part and the trial judge's first-hand opportunity to evaluate the factual proofs. We generally defer to the factual findings of the Family Part if they are sustained by "adequate, substantial, and credible evidence" in the record. N.J. Div. of Youth & Family Servs. v. R.G., 217 N.J. 527, 552 (2014). However, "[w]here the issue to be decided is an alleged error in the trial judge's evaluation of the underlying facts and the implications to be drawn therefrom, we expand the scope of our review." N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007) (citations and internal quotation marks omitted). Having completed our assessment of the record in light of these review standards and the applicable law, we affirm the trial court's findings in part and remand in part for additional proceedings. A. With respect to the trial judge's determination that the parents placed their minor sons at risk of serious harm, we agree 8 A-2526-16T2 this finding is supported by substantial credible evidence in the record. Although the sons apparently did not become ill as the result of the lack of working utilities in their parents' home, the trial judge rightly found the unsanitary conditions posed a serious risk of harm. According to the sons, the conditions had persisted "for months[,]" which the judge deemed to be an extensive and unacceptable period of time. As one graphic example of the conditions, the children were forced to use a makeshift hole in the ground as an outdoor toilet. Although they were able to wash and use a bathroom at their grandmother's residence, that arrangement was not appropriate for an extended period of time. We reject the parents' claim they were penalized simply because of their poverty, as there is no indication the Division would have withheld services had they been requested. We therefore affirm this key aspect of the trial judge's decision, i.e., that the parents had failed to provide their sons with "adequate . . . shelter." N.J.S.A. 9:6-8.21(c)(4). B. The second aspect of the judge's findings relates to the statutory criterion of whether the parents had "other reasonable means" to meet their sons' needs. Ibid. On this point the judge specifically found that "another reasonable safe alternative existed in the home of the maternal grandparents, where the 9 A-2526-16T2 children could have stayed in place of a home without running water or electricity." As was revealed at subsequent proceedings, it appears the judge's key assumption about the availability of the grandparents' residence may have been mistaken. Information that emerged at a later permanency hearing indicates the grandparents live in an age-restricted community with rules3 that limit the amount of allowable overnight stays by minors apparently to one month. Hence, the judge's assumption that the sons could have moved in with their grandparents on an ongoing basis may have been incorrect. The judge made no finding that the boys' aunt and uncle, with whom they ultimately were placed after their removal, were a viable and willing alternative for the parents before the time of the Division's involvement. We are cognizant there is hearsay evidence that in a previous referral, a Division caseworker had observed the children's sleeping arrangements and personal items at the maternal grandparents' residence, and that the parents told Division caseworkers their sons had been staying overnight with the grandparents. However, neither parent testified about this subject, nor about the community rules that allegedly limit to one 3 The information was presented through an unsworn representation to the court by the Law Guardian. 10 A-2526-16T2 month the frequency and duration of such overnight stays. Nor did the grandparents or any witnesses from their community testify. Given the significance of what may have been a mistaken pivotal assumption within the trial court's fact-finding analysis, we are constrained to remand this case to develop the record further on the discrete issue of "reasonable alternatives." The parties are encouraged to adduce further proofs on the subject on remand. As part of the remand, we invite the parties and the court to delve into whether the parents had deliberately misled caseworkers4 about material facts, and if so, whether such false statements compel the application of the doctrine of invited error, see N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 340-42 (2010), or equitable estoppel, see W.V. Pangborne & Co. v. N.J. Dep't of Transp., 116 N.J. 543, 557 (1989). Affirmed in part and remanded in part. The remand shall be completed within ninety days. We do not retain jurisdiction. 4 We do not make such an inference ourselves, as it is conceivable the parents' representations to caseworkers about where the sons were then staying might have occurred during the community's allowable "one-month" visiting period. 11 A-2526-16T2
A.B v. BOARD OF TRUSTEES OF THE PUBLIC EMPLOYEES' RETIREMENT SYSTEM
Date: March 1, 2018
Docket Number: a2684-16
Date: March 1, 2018
Docket Number: a2684-16
STATEOF NEW JERSEY v. LUCIOUS THOMAS, a/k/a POODA LUCIOUS THOMAS, LUCIAS THOMAS and LUCUS THOMAS
Date: March 1, 2018
Docket Number: a2885-16
Date: March 1, 2018
Docket Number: a2885-16
PEDROMORAN-ALVARDO,1 v. NEVADA COURT REALTY, LLC EZ DONUTS, T/A DUNKIN' DONUTS and NEVADA COURT REALTY, LLC v. EZ DONUTS, INC. AND M&M LANDSCAPING and TRAVELERS INSURANCE COMPANY 1 is also referred to in the record as Pedro Moran Alvarado
Date: March 1, 2018
Docket Number: a4164-14
Date: March 1, 2018
Docket Number: a4164-14
FREDM. BURG v. BOARD OF REVIEW DEPARTMENT OF LABOR AND WORKFORCE DEVELOPMENT and BROOKDALE COMMUNITY COLLEGE
Date: March 1, 2018
Docket Number: a4755-14
Date: March 1, 2018
Docket Number: a4755-14
INTHE MATTER OF THE DENIAL OF THE APPLICATION FOR THREE PERMITS TO PURCHASE A HANDGUN BY P.A.P
Date: March 1, 2018
Docket Number: a4916-14
Date: March 1, 2018
Docket Number: a4916-14
S.G v. BOARD OF EDUCATION OF THE HUNTERDON CENTRAL REGIONAL SCHOOL DISTRICT, HUNTERDON COUNTY -
Date: March 1, 2018
Docket Number: a5199-15
Date: March 1, 2018
Docket Number: a5199-15
RONALDSALAHUDDIN v. BOARD OF TRUSTEES, PUBLIC EMPLOYEES' RETIREMENT SYSTEM -
Date: March 1, 2018
Docket Number: a5588-15
Date: March 1, 2018
Docket Number: a5588-15
INTHE MATTER OF COREY CORBO UNION CITY POLICE DEPARTMENT
Date: March 1, 2018
Docket Number: a5610-15
Date: March 1, 2018
Docket Number: a5610-15
WILLIAMA. BOGAGE and JILL BOGAGE v. DISPLAY GROUP 21, LLC, a Delaware Limited Liability Company, STALLION HOLDINGS, LLC, f/k/a THE STRIVE GROUP LLC, an Illinois Limited Liability Company, JEFFREY SHARFSTEIN, and DOUGLAS SHARFSTEIN and ZURICH AMERICAN I
Date: February 28, 2018
Docket Number: a2285-13a238 GOODEN BROWN, J.A.D. Plaintiffs, William A. Bogage and his wife, Jill Bogage,1 sued 1 Due to their shared surnames, we refer to the parties by their first names for clarity and ease of reference. We intend no disrespect. 2 A-2285-13T1 their former employer and its owners, defendants Display Group 21, LLC (Display Group), Stallion Holdings, LLC, f/k/a the Strive Group, LLC (Strive), Jeffrey Sharfstein, and Douglas Sharfstein, for breach of contract, fraud, and interference with prospective economic advantage, as well as other claims that were dismissed before jury deliberations. The lawsuit stemmed from plaintiffs' allegations that Strive, of which William was also a minority owner, wrongfully terminated William's employment with Display Group for cause pursuant to his employment contract, and that Display Group wrongfully fired Jill, who was an at-will employee. Defendants filed various counterclaims, which were, for the most part, the converse of plaintiffs' allegations. The jury found no cause of action on plaintiffs' claims and found for defendants on their counterclaims, but unanimously awarded defendants no damages. In these back-to-back appeals, consolidated for purposes of issuing this opinion, plaintiffs argue the trial court erred by denying their motions for directed verdict on their breach of contract claim, by requiring plaintiffs to bear the burden of proving William's improper termination under an inapplicable subjective standard, and by not dismissing defendants' counterclaims. Defendants argue the court erred by denying their motion for counsel fees and costs as prevailing parties. We have 3 A-2285-13T1 considered these arguments in light of the record and applicable legal principles. We reject each point and affirm. I. We derive the following pertinent facts from the voluminous record. Between 1983 and 2001, William worked as a salesperson for Advertising Display Company (ADC), selling "point-of-display" products, which are the display stands often found near a store's cash registers. He earned about $2 million a year and worked with Jill, Fulvio Pagnozzi, and John Feindt, among others. In 2001, when ADC was going into bankruptcy, William and twenty others from his office, including Jill, Pagnozzi, and Feindt, formed Display Group 21 to continue selling point-of-display products. However, because they needed a manufacturer, they approached Pride Container, a manufacturer of corrugated boxes owned by the Sharfsteins, with a business proposal, and the parties signed an agreement. As a result: (1) Pride Container changed its name to Strive; (2) Jeffrey and Douglas maintained ownership of forty percent of Strive and were Strive's majority owners; (3) William, Pagnozzi, and Feindt each contributed their shares of Display Group 21 to Strive in exchange for six percent ownership of Strive; (4) Strive agreed to manufacture point-of-display products in the Chicago area; (5) Strive created a Display Group east coast division with 4 A-2285-13T1 its main office in New Jersey; (6) William, Pagnozzi, and Feindt signed employment agreements with the newly created Display Group and became general managers; and (7) Jill became an at-will employee at the Display Group office. During his first five-year employment contract with Strive's Display Group, William went from earning over $2 million annually at ADC to earning a couple hundred thousand dollars a year, a ninety percent salary reduction. However, his sales were rising, as he had retained most of his clients and attracted new ones. William also worked closely with Jill, whom he later married and worked with out of the North Carolina office. As the years passed, Display Group became more successful. Pagnozzi worked mostly in production, and Feindt worked in the creative and finance departments. William was in charge of sales and developing new accounts. On April 26, 2005, William signed a second five-year "Amended and Restated Employment Agreement" (Agreement) with Display Group, wherein he agreed to continue working as a general manager for Display Group at an annual base salary of $400,000. Section 2 of the agreement, entitled Employment Duties, made William "responsible for the day-to-day operations of the Company, including hiring and firing employees, entering into contracts, engaging contractors and such other activities related to the foregoing as may be necessary." 5 A-2285-13T1 Section 2 also stated: Employee shall serve the Company faithfully, diligently, competently and to the best of his ability, and Employee shall use his best efforts to further enhance and develop the Company's internal organization, operations, business affairs, interests and welfare. Employee shall devote his best efforts and full business time and attention to the business and affairs of the Company and the performance of his duties hereunder. Section 3 of the agreement, entitled Compensation, stated: (a) As compensation for all services to be performed for the Company and the duties and responsibilities to be assumed by Employee pursuant to this Agreement, the Company shall pay to Employee: (i) during the Employment Term, a salary ("Base Salary") for all services rendered by Employee under this Agreement at the rate of four hundred thousand dollars ($400,000) per annum. The Base Salary shall be payable in accordance with the Company's ordinary payment practices, but in no event less frequently than monthly. . . . (iii) during the Employment Term, an incentive payment ("Incentive Payment") for each calendar year, based upon a percentage of Adjusted EBITDA [("earnings from operations of the Company before interest, taxes, depreciation and amortization").] Section 5 of the agreement, entitled Reimbursement of Expenses, declared that Employee shall be entitled to reimbursement for ordinary, necessary and reasonable out- of-pocket trade or business expenses which 6 A-2285-13T1 Employee incurs in connection with performing his duties under this Agreement, including reasonable travel and meal expenses. The reimbursement of all such expenses shall be made in accordance with the Company's customary practices and policies (including presentation of evidence reasonably satisfactory to the Company of the amounts and nature of such expenses). Section 10(a) of the Agreement, entitled Termination, provided that the "[e]mployee's employment . . . may be terminated at any time by the Board for any reason (or no reason), including for Cause." The Agreement defined "Cause" as any act "involving dishonesty or fraud with respect to the Company or any of its subsidiaries." Under the Agreement, "Cause" also included "intentional misconduct that is or may be materially injurious to the Company or its subsidiaries as reasonably determined by the Board"; "the failure to observe all material Company policies, which failure is or may be materially injurious to the Company as reasonably determined by the Board"; "the failure to devote adequate time and effort to the Company's affairs as reasonably determined by the Board, based upon industry standards and past practice"; and "any other material breach by Employee of this Agreement or any other agreement or policy relating to employment . . . to which Employee is a party or bound." The Agreement specified that the employee had thirty days following written notice of "misconduct[,]" "failure[,]" or 7 A-2285-13T1 "breach" to "cure[]" it, "if curable." Under the Agreement, if employment was terminated for cause, the employee would "not be entitled to any continuation of his Base Salary or any other compensation or benefits . . . following the date of such termination (other than any payments or benefits required by law and reimbursement of expenses incurred by Employee through the effective date of such termination as provided in Section 5)." Section 13 of the Agreement, entitled General Provisions, stated that the Agreement superseded and preempted any prior understandings and agreements. Section 13(e), entitled Choice of Law, provided "[t]his Agreement shall be governed and controlled as to validity, enforcement, interpretation, construction, effect and in all other respects by the internal laws of the State of New Jersey applicable to contracts made in that state." Section 13(f) stated: (f) Remedies. Each of the parties to this Agreement shall be entitled to enforce its rights under this Agreement specifically, to recover damages and costs caused by any breach of any provision of this Agreement and to exercise all other rights existing in such party's favor. In the event of a dispute hereunder, the prevailing party's reasonable attorney's fees and costs shall be promptly reimbursed by the opposing party or parties in such dispute. The parties hereto agree and acknowledge that money damages may not be an adequate remedy for any breach of the provisions of this Agreement and that any party may in its sole discretion apply to any court of law or equity of competent 8 A-2285-13T1 jurisdiction . . . for specific performance and/or other injunctive relief in order to enforce or prevent any violations of the provisions of this Agreement. William's best sales year was 2007 when he made close to $11 million in sales revenues. In March 2008, Display Group's managers received $200,000 in bonuses, and the Sharfsteins took even larger bonuses for themselves. However, the economy took a downturn in 2008, and a month after receiving their bonuses, William, Pagnozzi, and Feindt met with Jeffrey to discuss the downturn's effect on the company. Because Strive and Display Group had lost a lot of business, Jeffrey told them the company needed to reduce costs by implementing headcount reductions and a salary deferral. According to William, Jeffrey announced the company would cut their salaries by $160,000, but would reinstate them sometime in 2009. Feindt corroborated William's account, but indicated that he, William, Pagnozzi, and Jeffrey had agreed to the cut in order to avoid having to fire their co-workers. Douglas corroborated Feindt's account and explained that emails sent to William in early 2008 showed that he knew some portion of his compensation was going to be deferred. These emails stated that, because of difficult times, all senior managers and equity holders would be deferring a portion of their compensation. In late 2008, Jeffrey began firing subordinates in William and Jill's direct support group. For example, Jeffrey fired 9 A-2285-13T1 Natalie Zito, William's assistant, who had been running the North Carolina office and was responsible for submitting William's and Jill's expense reimbursement requests for the previous seven years. As a result, William and Jill moved to New Jersey to work out of Display Group's New Jersey office, and Jill began submitting their monthly expense reimbursement requests to James Fritzen, Strive's comptroller in the New Jersey office. Although William denied having input into Zito's firing, Feindt indicated that it was William who suggested firing Zito. Feindt explained that William's work flow had been declining, as had Jill's. In fact, according to Feindt, the entire point-of- display industry was declining because it depended on the retail industry, and retail sales were falling. Fritzen corroborated Feindt's account of William's involvement in Zito's termination. In October 2009, six months before their employment agreements ended, William, Pagnozzi, and Feindt received letters from Strive stating that their employment agreements would not be renewed. Jeffrey held a meeting with all three in November 2009 to inform them he no longer wanted to treat them as "a team," but wanted to negotiate with them individually. Because William wanted to stay at Strive, he tried to negotiate a new agreement with 10 A-2285-13T1 Jeffrey, but the negotiations became contentious.2 In January 2010, the Sharfsteins hired Argo, a consulting company, to test the efficiency of the New Jersey office and eliminate between $3 and $3.5 million in costs and personnel. On February 12, 2010, Argo finalized its study, identifying $3 million in cost savings. The same day, Jeffrey told William to cancel a business meeting in Chicago because, effective that day, his employment with Strive had been terminated "for cause" under the employment agreement and all other applicable agreements. Jeffrey accused William of stealing from the company and submitting false expense reimbursement requests and handwritten receipts. Jill was also fired that same afternoon. Two months after his termination, William received a letter from Strive warning against solicitations. On February 16, 2010, four days after William and Jill were fired, they filed a fourteen-count complaint against defendants, challenging their terminations, and alleging various contract and tort claims. On March 3, 2010, plaintiffs filed an amended complaint, adding a count for piercing the corporate veil. On April 26, 2010, plaintiffs filed a second amended complaint 2 In December 2009, William, Pagnozzi, and Feindt met with a lawyer and asked him to write a letter to Jeffrey indicating that they were all owed a total of $91,000 for 2008, and $66,000 for 2009. William signed the letter, but Pagnozzi and Feindt refused. 11 A-2285-13T1 alleging: breach of contract against Display Group (count one); a declaratory judgment against Display Group that William had not breached the agreement (count two); tortious interference with contract against the Sharfsteins (count three); tortious interference with prospective economic advantage against the Sharfsteins (counts four and five); defamation against the Sharfsteins (count six); fraud against the Sharfsteins (count seven); civil conspiracy against all defendants (counts eight and nine); and piercing the corporate veil against both the Sharfsteins and Strive (count ten). Plaintiffs filed a motion for partial summary judgment on their breach of contract claim against Display Group, and sought, among other things, to recover William's unpaid base salary under the employment agreement for 2008 and 2009 with interest. Although defendants did not dispute that William was entitled to receive unpaid salary for 2008 and 2009, they opposed any determination that Display Group had breached William's employment agreement by failing to pay him a portion of his base salary during those years and also opposed the dollar amount sought. Following oral argument, Judge Alberto Rivas determined in a June 2, 2010 written decision that William was entitled to his "rightfully earned" deferred salary of $136,923. The judge also declared that "[i]n reaching []his decision there [was] no finding 12 A-2285-13T1 by the [c]ourt that the [d]efendants breached [William's] employment contract[,] and [his] decision specifically [did] not address that question[,] and it remain[ed] an open issue in th[e] litigation." On June 15, 2010, the judge entered a memorializing order directing Display Group to pay William $136,923. A week later, defense counsel complied by sending a check to plaintiffs' counsel for $77,770.09, the net after-tax sum due to plaintiff. Though no direct appeal was taken from this order, it formed the basis for the trial court's later determination that William was a prevailing party in this action. On June 16, 2010, the judge dismissed count two (declaratory judgment) with prejudice and part of count ten (piercing the corporate veil) against the Sharfsteins. However, the judge denied defendants' motion to dismiss the allegation in count ten against Strive. On June 29, 2010, defendants answered the second amended complaint, generally denying liability and asserting various affirmative defenses. Over a year later, on September 26, 2011, defendants filed an amended answer, adding counterclaims seeking compensatory and punitive damages, attorneys' fees, interest, and costs, and alleging: breach of contract against William (counts one and six); unjust enrichment (count two); breach of fiduciary duty against William (counts three and seven); aiding and abetting against Jill (counts four and eight); fraud (count five); and 13 A-2285-13T1 seeking a declaratory judgment that William had been terminated properly for cause (count nine). Defendants essentially claimed William had submitted false and/or improper expense reports for reimbursement and had failed to devote his best efforts and full business time and attention to the company's affairs and the performance of his duties. In early December 2011, the court dismissed count nine of defendants' counterclaim (declaratory judgment) with prejudice.3 Judge Phillip L. Paley presided over a jury trial between November 26, 2012 and January 7, 2013. At trial, William and Jill testified that they often grouped their expenses and submitted their reimbursement requests together. Between November 2009 and January 2010, they submitted reimbursement requests totaling $16,305.95, and between January and February 2010, they submitted reimbursement requests totaling $2918.44, which Strive had not paid. William admitted he had expensed gift cards for his subordinates totaling $1450, but claimed both Pagnozzi and Feindt had also expensed gift cards and had never received any discipline. William also admitted he expensed tickets to various major sporting events in 2009, but claimed they were only for clients. Pagnozzi 3 Between December 2011 and March 2012, plaintiffs filed separate lawsuits against defendants in various jurisdictions, asserting derivative claims. Motions to consolidate those cases with this case were denied. 14 A-2285-13T1 and Feindt acknowledged they had also expensed season tickets to sporting events but were not disciplined. Additionally, William admitted he had submitted $2000 a month in 2009 for reimbursement of his car lease expenses, even though those expenses totaled only about $1300 a month. He explained that, at Fritzen's suggestion, he was trying to make up for past shortfalls. Fritzen denied ever making that suggestion or having any conversation with William about increasing his auto allowance. Feindt testified that he had agreed with Pagnozzi and William, "as a group," to submit car expense reimbursement requests of only $1000 a month. William also admitted he had expensed an airline ticket for his dog and other airfare without submitting a receipt. He explained that, in one instance, it was a change ticket order, and he had forgotten to get a receipt. According to William, he sometimes forgot to get receipts, especially when he paid cash, so he would put handwritten notes about the missing receipts on other receipts. Jill testified that, often, she did not keep her receipts either. In addition, William admitted that, in 2003, he and Jill began a new real estate venture called "Billbo, LLC," to sell, lease, and manage properties. William acknowledged using Display Group's address in North Carolina to start Billbo and admitted to 15 A-2285-13T1 using his work email address to receive correspondence to and from Billbo. However, he denied working on Billbo matters while working for Strive. William further admitted that while renegotiating his employment contract with Strive and Jeffrey at the end of 2009, he was also communicating with a competitor about bringing his team and co-employees under the competitor's corporate umbrella. In January 2010, he gave the competitor a business plan and business strategy, which listed the initials of the colleagues he wanted to have join him. The plan stated in part: New Co. will satisfy a strategic growth opportunity to increase business[-]to[-]business delivery of in-store merchandising materials from concept, engineering and manufacturing through fulfillment and delivery to the retail environment. We will concentrate on utilizing sustainable solutions for merchandising requirements. Although William denied soliciting his co-employees to join his new venture, Fritzen testified that William approached him three times about joining. Likewise, Feindt testified that he and Pagnozzi met with the competitor and William about the plan. However, according to Feindt, he and Pagnozzi ultimately decided they were not ready to leave Strive and Display Group. Eventually, Jeffrey offered Feindt and Pagnozzi new employment agreements that were very similar to their former contracts. 16 A-2285-13T1 Plaintiffs presented Kristin Kucsma, an expert in economics, to testify about their estimated economic damages. Her analysis of adjusted loss earnings accounted for earnings William would have received but for defendants' actions. Based on her analysis, she estimated, to a reasonable degree of economic certainty, that defendant's actions caused William a total loss of $982,200 between his termination in February 2010 and the trial in December 2012. Kucsma also calculated that William would have lost $1,997,749 in expected income between 2012 and 2015, which is when her analysis indicated he should have secured comparable employment. According to Kucsma, if William never found comparable employment before his expected date of retirement in 2023, his damages would total $4,080,690. Finally, William testified that, before his termination, he was never warned about any documentation deficiencies or irregularities in his expense reimbursement requests. William explained that there was no policy regarding business expenses in effect at the time of his termination. Although plaintiffs produced Strive's written "Business Travel and Expenses Policy," dated April 2010, because the policy had not been in place before plaintiffs' firing on February 12, 2010, the parties agreed to a limiting instruction. Jeffrey and Fritzen testified that Display Group and Strive had always expected its employees to submit back- 17 A-2285-13T1 up documentation for all expense reimbursement requests. Defendants calculated William had submitted over $30,000 in improper and/or fraudulent expenses, which Display Group had reimbursed. On December 17, 2012, after plaintiffs rested their case-in- chief, defendants moved for a directed verdict. After oral argument, the judge dismissed, with prejudice, William's claims for interference with contractual relations (count three), defamation (count six), and civil conspiracy (count eight), as well as Jill's claim for civil conspiracy (count nine). Thus, the case proceeded against defendants on plaintiffs' claims for breach of contract, fraud, and interference with prospective economic advantage. On December 26, 2012, after all of the evidence had been presented, plaintiffs moved for a directed verdict on their breach of contract claims and for an order dismissing defendants' counterclaims for lack of damages, both of which the judge denied. However, the judge limited defendants' recovery on their counterclaims to $50,000, and dismissed their counterclaims against Jill in counts four through eight with prejudice. Thus, the case proceeded against plaintiffs on defendants' counterclaims for breach of contract, breach of fiduciary duty, and fraud against William, and their claims for unjust enrichment against both 18 A-2285-13T1 plaintiffs. During the jury charge, the judge limited recovery on defendants' counterclaims to $50,000 in the aggregate. On the verdict sheet, the judge also limited the damages relating to plaintiffs' claims as follows: (1) $20,500 for William's unpaid base salary from 2008 to 2009; (2) $22,682 for unpaid expense reimbursements; (3) $770,000 for William's unpaid bonuses; (4) $76,926 for William's unpaid base salary for 2010; (5) $38,460 for unpaid vacation pay; and $1.5 million for a non-competition clause. On January 7, 2013, the jury unanimously returned a no cause of action verdict against plaintiffs, finding that: (1) plaintiffs had not proven breach of contract based on defendants' nonpayment of William's 2008 to 2009 base salary compensation or of certain expense reimbursement requests for 2009 to 2010, or based on the termination of his employment; and (2) plaintiffs had not proven the Sharfsteins had interfered with William's prospective economic advantage or committed fraud against him. On the counterclaims, the jury found defendants had proven: (1) breach of contract against William and unjust enrichment against plaintiffs; and (2) that William had breached his duty of 19 A-2285-13T1 loyalty and committed fraud.4 Specifically, the jury found that: (a) William had breached his employment contract by submitting false and/or improper requests for expense reimbursement, but had not breached it by soliciting employees and/or taking actions intended to persuade such employees to leave their employ; (b) either one or both plaintiffs had been unjustly enriched by submitting false and/or improper requests for expense reimbursements, and had received those reimbursements; (c) William had breached his duty of loyalty to Display Group; and (d) William had committed fraud and/or submitted improper requests for reimbursement of expenses. The jury unanimously awarded defendants $0 damages on each counterclaim. Thereafter, because the jury had not awarded compensatory damages, the judge dismissed all claims for punitive damages as a matter of law. On January 25, 2013, the judge entered judgment dismissing plaintiffs' second amended complaint with prejudice. On defendants' counterclaims, the judge awarded judgment, but no damages: (1) to Display Group and Strive against William (a) for breach of contract, (b) for unjust enrichment, and (c) for fraud; (2) to Display Group, Strive, and the Sharfsteins against William for breach of fiduciary duty; and (3) to Display Group and Strive 4 The court charged the jury on breach of loyalty instead of breach of fiduciary duty to conform to the proofs. 20 A-2285-13T1 against Jill for unjust enrichment. On April 17, 2013, defendants filed a motion requesting $3,697,602.52 in attorneys' fees and $390,159.17 in costs. Defendants argued they were the prevailing parties under the employment agreement because they had prevailed on their counterclaims, even if the jury did not award damages. Defendants later updated the amounts to $3,900,749.70 in fees and $390,849.95 in costs, to account for the work performed in bringing their motion. On May 9, 2013, plaintiffs cross moved for attorneys' fees and costs. Thereafter, Zurich American Insurance Co. (Zurich), which had already paid $2,000,000 in litigation fees and costs pursuant to defendants' liability insurance policy for company directors, officers, and employees, filed a motion to intervene on the issue of attorneys' fees and costs. Zurich also submitted a separate complaint against plaintiffs, seeking subrogation damages for breach of contract as defendants' insurer and subrogee. On September 20, 2013, Judge Paley granted Zurich's motion to intervene. Although the judge "refer[red] Zurich's proposed Complaint, case information statement and filing fee . . . to the Civil Division for processing and filing[,] to which the parties may answer or otherwise respond," the judge never consolidated the cases. On the same date, the judge heard arguments on the cross- 21 A-2285-13T1 motions for attorneys' fees and costs. On November 8, 2013, the judge denied defendants' motion but granted plaintiffs' motion, awarding William $48,750 in attorneys' fees and $1401.82 in costs, totaling $50,151.82. Defendants moved for reconsideration, and on December 30, 2013, after hearing arguments, the judge denied reconsideration of his November 8, 2013 order. Defendants filed a timely notice of appeal from the court's: (1) June 15, 2010 order granting plaintiffs' motion for partial summary judgment; (2) November 8, 2013 order denying defendants' motion for attorneys' fees and costs; and (3) December 30, 2013 order denying defendants' motion for reconsideration of the November 8, 2013 order. Plaintiffs filed a timely notice of appeal from the court's January 25, 2013 order entering judgment and dismissing plaintiffs' complaint with prejudice. II. Plaintiffs argue in Point I that the judge erred by denying their motion for a directed verdict on their breach of contract claim based on defendants' reduction or deferral of William's base salary in 2008 and 2009. We disagree. Rule 4:40-1 provides in relevant part that "[a] motion for judgment, stating specifically the grounds therefor, may be made by a party either at the close of all the evidence or at the close of the evidence offered by an opponent." The standard applicable 22 A-2285-13T1 to a motion for a directed verdict in either event is equivalent to the standard applicable for summary judgment. Frugis v. Bracigliano, 177 N.J. 250, 269 (2003). To determine whether the moving party is entitled to judgment as a matter of law, the trial court must accept as true all evidence that supports the non‑moving party's position and all favorable legitimate inferences drawn therefrom. Dolson v. Anastasia, 55 N.J. 2, 5-6 (1969). After considering the evidence, the trial court must deny the motion "if reasonable minds could differ." Johnson v. Salem Corp., 97 N.J. 78, 92 (1984). Any legitimate disputes of material fact must be left to the jury. Lewis v. Am. Cyanamid Co., 155 N.J. 544, 567 (1998). However, the court must grant the motion if the evidence and uncontradicted testimony is "so one-sided that one party must prevail as a matter of law." Frugis, 177 N.J. at 269 (quoting Brill v. Guardian Life Ins. Co., 142 N.J. 520, 536 (1995)). The same standard applies to our review on appeal. Ibid.; see also Estate of Roach v. TRW, Inc., 164 N.J. 598, 612 (2000). Plaintiffs assert that the judge erred, as a matter of law, because defendants' deferral or failure to pay William's base salary in 2008 and 2009 constituted a per se violation of the New Jersey Wage Payment Law (WPL), N.J.S.A. 34:11-2 to -33.6, and therefore invalidated or breached the employment agreement as 23 A-2285-13T1 early as 2008. They claim William was an employee under the WPL, and the Sharfsteins and corporate defendants were his employers. Further, according to plaintiffs, because defendants breached the employment agreement, William had no obligation to continue performing after 2008. Thus, defendants' action in terminating him in February 2010 was ultra vires, entitling plaintiffs to a directed verdict on their breach of contract claim. Plaintiffs made similar arguments in their pre-trial motion for partial summary judgment and in their subsequent motion for a directed verdict. Defendants responded, as they do here, that William had agreed to modify the contract and that the WPL did not apply to him because he was more than a mere employee due to his status as an equity owner of Strive. The WPL requires every employer to "pay the full amount of wages due to his employees at least twice during each calendar month," and that the "end of the pay period for which payment is made on a regular payday shall not be more than [ten] working days before such regular payday." N.J.S.A. 34:11-4.2. "An employer may establish regular paydays less frequently than semimonthly for bona fide executive, supervisory and other special classifications of employees provided that the employee shall be paid in full at least once each calendar month on a regularly established schedule." Ibid. 24 A-2285-13T1 "Wages" are "the direct monetary compensation for labor or services rendered by an employee, where the amount is determined on a time, task, piece, or commission basis excluding any form of supplementary incentives and bonuses which are calculated independently of regular wages and paid in addition thereto." N.J.S.A. 34:11-4.1(c). An employer is "any individual . . . [or] corporation . . . employing any person in this State." N.J.S.A. 34:11-4.1(a). For purposes of the obligation to pay wages, the officers of a corporation who are responsible for its management are the "employers of the employees of the corporation." Ibid. In Finkler v. Elsinore Shore Associates, 725 F. Supp. 828, 832 (D.N.J. 1989), the court explained that N.J.S.A. 34:11-4.2 "clearly indicates that 'wages' are payments promised in advance of the services performed and paid promptly, or at least intended to be paid promptly, after services are rendered." Because an employment agreement that violates the WPL is "null and void," an employer may not enter into an agreement with an employee for the payment of wages except as provided by the WPL, other than to agree to pay wages more frequently than prescribed by the WPL or to pay wages in advance. N.J.S.A. 34:11-4.7. In his written decision, Judge Rivas found that William "clearly qualifie[d] as an employee" under the WPL, pursuant to N.J.S.A. 34:11-4.1(b), and that "the only provision that 25 A-2285-13T1 provide[d] for him to be treated different[ly] because of his status in the company [was] set forth in N.J.S.A. 34:11-4.2, which provides that certain high ranking employees can be paid monthly." Judge Rivas further declared that although "there was an elementary agreement to defer compensation entered into with [William] and his fellow employees," the exact parameters of that agreement, such as when they would be paid, were not established. Thus, the judge ruled that, absent a clear deferral agreement between William and defendants, and in light of William's termination, the WPL applied, and ordered defendants to pay him his deferred salary. However, the judge refused to rule that defendants breached the employment agreement by deferring William's salary. Thereafter, in his oral decision on plaintiffs' motion for a directed verdict on their breach of contract claim, Judge Paley disagreed with plaintiffs' interpretation of the WPL and determined that William was "not only an employee," but also an owner. In denying plaintiffs' motion, Judge Paley concluded that the employment agreement was "a hybrid contract which includes, in effect, a partnership or co-ownership of a corporate entity, not just employers." Whether a worker, who is an owner of the parent company and working for the subsidiary, is an employee for purposes of the WPL is a novel issue. However, because defendants paid William his 26 A-2285-13T1 deferred base salary pursuant to Judge Rivas' order for partial summary judgment, we need not address the issue, as we do not resolve novel questions unless absolutely necessary to the disposition of the litigation. Ahto v. Weaver, 39 N.J. 418, 428 (1963). III. Plaintiffs argue in Point II that the judge erred by denying their motion for a directed verdict on their breach of contract claims against defendants based on their failure to pay William's out-of-pocket expense reimbursements upon his termination. Plaintiffs claim there was no dispute that the company owed William $9980.10 for unchallenged unreimbursed expenses because none of the witnesses testified that those expenses were unusual. Defendants respond, as they did before the trial court, that there was evidence to prove that Display Group had already reimbursed William for over $30,000 of improper and/or fraudulent expenses in 2009, and that the jury could consider the unreimbursed expenses as a "set-off." Plaintiffs rely on Zulla Steel, Inc. v. A & M Gregos, Inc., 174 N.J. Super. 124 (App. Div. 1980), to support their assertion that one contracting party's failure to pay the other a required monetary payment constitutes a material breach of their contract. However, plaintiffs' reliance on Zulla is misplaced. In Zulla, 27 A-2285-13T1 the plaintiff, a subcontractor, brought an action alleging that the defendant, the prime contractor, had breached a contract by not making progress payments when due on a subcontract for structural work the plaintiff performed for the defendant. Id. at 128. After a bench trial, the judge found the defendant's failure to make the invoiced payments was a material breach of their contract because it was not based on any alleged shortcomings in the plaintiff's performance. Id. at 128-32. Here, accepting as true all evidence and favorable legitimate inferences that supported defendants' position as the non-moving party, there was a material dispute presented to the jury as to "the Company's customary practices and policies" governing reimbursements. The employment agreement was silent on the definition of defendants' customary practices and policies, and the testimony was not definitive. In fact, a written policy did not come into effect until after plaintiffs' terminations. Thus, reasonable minds could differ that the expense requests William submitted were not "for ordinary, necessary and reasonable out- of-pocket trade or business expenses." Furthermore, there was a material dispute as to whether plaintiffs incurred their expenses "in connection with performing" their duties under the agreement. While testifying, William recounted instances in which he had failed to submit all of his 28 A-2285-13T1 receipts, such as an airline change order, as well as instances in which he had knowingly submitted inflated car expenses. Because there was no written policy on reimbursements in effect at the time, the factual predicates for his requests were subject to dispute. Thus, denial of plaintiffs' motion for a directed verdict was proper. IV. Plaintiffs argue in Point III that the judge erred by requiring William, as the employee, to bear the burden of proving breach of contract based on improper termination under an inapplicable subjective standard. They argue the judge should have required defendants to prove William was terminated for "cause" as defined under the employment agreement. They assert defendants should have been required to prove William stole from the company or committed fraud by submitting fraudulent expense reimbursement requests, and thereby breached the contract, leading to his termination. Plaintiffs' arguments are unavailing. "[T]he burden of establishing a breach of contract rests with the party who asserts the breach; a breach of contract will not be presumed." Nolan v. Control Data Corp., 243 N.J. Super. 420, 438 (App. Div. 1990). In Silvestri v. Optus Software, Inc., 175 N.J. 113, 121-22 (2003), the Court addressed the differences between judging an employee's performance in an employment 29 A-2285-13T1 agreement subjectively and objectively in connection with a breach of employment contract claim. The Court stated: Agreements containing a promise to perform in a manner satisfactory to another, or to be bound to pay for satisfactory performance, are a common form of enforceable contract. Such "satisfaction" contracts are generally divided into two categories for purposes of review: (1) contracts that involve matters of personal taste, sensibility, judgment, or convenience; and (2) contracts that contain a requirement of satisfaction as to mechanical fitness, utility, or marketability. The standard for evaluating satisfaction depends on the type of contract. Satisfaction contracts of the first type are interpreted on a subjective basis, with satisfaction dependent on the personal, honest evaluation of the party to be satisfied. Absent language to the contrary, however, contracts of the second type—involving operative fitness or mechanical utility—are subject to an objective test of reasonableness, because in those cases the extent and quality of performance can be measured by objective tests. [Ibid. (citations omitted).] The Court explained that "a satisfaction-clause employment relationship is not to be confused with an employment-at-will relationship in which an employer is entitled to terminate an employee for any reason, or no reason, unless prohibited by law or public policy." Id. at 123. Indeed, "[o]rdinarily, an express employment contract serves to create an other than at-will employment relationship." Jackson v. Ga.-Pac. Corp., 296 N.J. Super. 1, 11 (App. Div. 1996). By contrast, "[i]n a satisfaction 30 A-2285-13T1 clause employment setting, there must be honest dissatisfaction with the employee's performance." Silvestri, 175 N.J. at 123. Accordingly, the Court announced that "the language of the contract itself must be examined to determine context and the parties' intentions concerning the standard for evaluation of the promisor's performance." Id. at 125. Here, in their amended request to charge the jury, plaintiffs requested that an objective standard be used to determine whether William violated Section 10(a) of the employment agreement. The judge rejected plaintiffs' request, concluding that "the [p]laintiff has the burden to prove breach of contract." Plaintiffs argue the court erred by not shifting the burden of proof and by not requiring defendants to prove they had terminated William for a proper cause based on an objective finding that he had stolen money from Display Group and Strive. However, the employment agreement stated that "Employee's employment . . . may be terminated at any time by the Board for any reason (or no reason), including for Cause." Consequently, although there was disputed evidence that William had submitted improper expense reimbursement requests and had tried to solicit clients and colleagues to join his new venture, the jury did not have to find that defendants had any cause to terminate William under the employment agreement in order to conclude that defendants 31 A-2285-13T1 did not breach the contract. Essentially, the agreement equated to an at-will employment relationship. Under an employment-at- will arrangement, "an employer may fire an employee for good reason, bad reason, or no reason at all," except for a discriminatory reason or a reason contrary to a clear mandate of public policy, neither of which is implicated here. Witkowski v. Thomas J. Lipton, Inc., 136 N.J. 385, 397 (1994). V. Plaintiffs argue in Point IV that the court erred by denying their motion to dismiss defendants' counterclaims when there was no evidence in the record that they had suffered any damages. We disagree. When a party alleges breach of a contract, and "it is certain that damages have resulted, mere uncertainty as to the amount will not preclude recovery." Jersey City Redev. Agency v. Clean-O-Mat Corp., 289 N.J. Super. 381, 402 (App. Div. 1996) (quoting Wolpaw v. Gen. Accident Ins. Co., 272 N.J. Super. 41, 46 (App. Div. 1994)). It is sufficient that the party prove damages with such certainty as the nature of the case may permit, "laying a foundation which will enable the trier of the facts to make a fair and reasonable estimate." Lane v. Oil Delivery, Inc., 216 N.J. Super. 413, 420 (App. Div. 1987). The non-breaching party must, however, demonstrate that its loss was a reasonably certain 32 A-2285-13T1 consequence of the breach and the "appropriate method for quantifying that loss." Totaro, Duffy, Cannova & Co., LLC v. Lane, Middleton & Co., LLC, 191 N.J. 1, 14-15 (2007). Thus, the evidence presented must afford a basis for the factfinder to estimate damages with some reasonable degree of certainty. Jersey City Redevelopment Agency, 289 N.J. Super. at 402. After admitting that their "counterclaims were simply a more affirmative way for [them] to state [their] defenses," and acknowledging difficulty in quantifying damages, defendants later argued their damages included: (1) the expenses they reimbursed to plaintiffs during 2009 that were later investigated and determined to be unsupported by adequate proofs and receipts; (2) the cost to perform those internal investigations; and (3) the salary they paid William while he was soliciting business and employees for his own new venture. Judge Paley agreed there was evidence that defendants had reimbursed some inappropriate expenses to William and that William had spent some of his work time advancing his own ventures. However, after concluding there was insufficient specificity in the evidence for the jury to quantify these damages, the judge determined: So the answer to this problem is to allow the counterclaim on breach of contract, to allow you to argue unjust enrichment, breach of fiduciary responsibility, and fraud. And 33 A-2285-13T1 it seems to me, based on . . . Jeffrey Sharfstein['s testimony] and the failure to be more specific, that there has to be some limitation in the amount of recovery available to [defendants]. And I'm going to set that limitation at $50,000. So the jury is going to be asked, did . . . [d]efendants prove by a preponderance of the evidence that they are entitled to repayment . . . Yes or no? If so, what is the fair amount not to exceed $50,000. Plaintiffs now argue that, because the jury did not award defendants damages, the judge should have dismissed the counterclaims as a matter of law. However, damages in breach of contract actions are limited by the general principles that: (1) [T]he damages are those arising naturally according to the usual course of things from the breach of the contract, or such as may fairly and reasonably be supposed to have been in the contemplation of the parties to the contract at the time it was made, as a probable result of the breach; and (2) there must be reasonably certain and definite consequences of the breach as distinguished from the mere quantitative uncertainty. [Tessmar v. Grosner, 23 N.J. 193, 203 (1957).] Further, "[t]he rule relating to the uncertainty of damages applies to the uncertainty as to the fact of damage and not as to its amount, and where it is certain that damage has resulted, mere uncertainty as to the amount will not preclude the right of recovery." Ibid. Here, from William's base salary alone, the jury could have 34 A-2285-13T1 computed the breach of contract damages resulting from the time he spent emailing others about the new venture he was proposing. Thus, the judge did not err in denying plaintiffs' motion to dismiss the counterclaims. VI. Defendants argue in Points A through E of their brief that the judge erred by denying their motion for counsel fees and costs. We disagree. In his written decision, citing Litton Industries, Inc. v. IMO Industries, Inc., 200 N.J. 372, 385 (2009), Judge Paley found that, in New Jersey, fees may be shifted to a prevailing party pursuant to a private contract. Here, Section 13(f) of the agreement expressly provided for "the prevailing party's reasonable attorney's fees and costs." The judge examined what it meant to be a "prevailing party" under the employment agreement, which he noted relied on New Jersey law pursuant to the "Choice of Law" provision in Section 13(e). Quoting Singer v. State, 95 N.J. 487, 495 (1984), Judge Paley declared that to be considered a prevailing party under New Jersey law, a party must show: (1) "a 'factual causal nexus between the litigation and the relief ultimately achieved,'" and (2) "that 'the relief ultimately secured by [the party] had a basis in law.'" Citing H.I.P. v. K. Hovnanian at Mahwah VI, Inc., 291 N.J. 35 A-2285-13T1 Super. 144, 154-55 (Law Div. 1996), Judge Paley explained part one of the formula as follows: Fundamentally, a prevailing party is one who achieves a substantial portion of the relief it sought . . . . The first inquiry in determining prevailing party status is whether the judgment provided the movant with a sufficient degree of success on the merits of its claim . . . . Whatever relief the plaintiff secures must directly benefit him at the time of judgment or settlement. [(Emphasis added.)] The judge, however, recognized that a party need not win "everything" to be prevailing, and that it was "immaterial" whether the prevailing party was the plaintiff or the defendant because a defendant could prevail on a counterclaim. According to the judge, "[s]o long as the relief awarded a party directly benefits that party, and therefore materially alters the relationship between the parties by modifying one party's behavior in a way that directly benefits the successful party, that party is deemed prevailing." Applying these principles, the judge reasoned: Here, [William] is a prevailing party. This suit is causally related to his having secured the relief obtained; the relief granted him had some basis in law. [Singer, 95 N.J. at 494]. He is the only party who actually secured a benefit from the lawsuit: back pay, which he characterized as a claim for breach of contract. A party need not win everything to be considered prevailing. See, e.g., [N. Bergen Rex Transp., Inc. v. Trailer 36 A-2285-13T1 Leasing Co., 158 N.J. 561, 572-74 (1999); Kellam Assocs., Inc. v. Angel Projects, LLC, 357 N.J. Super. 132, 139-41 (App. Div. 2003)]. The relief obtained by [William] had a clear basis in law. [Nadeau v. Helgemoe, 581 F.2d 275, 284 (1st Cir. 1978).] The basis was clearly articulated by Judge Rivas in his decision on the summary judgment motion. Defendants argue that [William] is not "prevailing[,"] because of the defense['s] willingness to provide back pay prior to Judge Rivas's ruling. That argument ignores that that willingness was precipitated by the filing of the complaint and the summary judgment motion. Defense counsel may have realized the risk of an adverse ruling - a potential liability for legal fees - but that realization does not disentitle [William] from receiving a reasonable allowance for legal fees incurred in obtaining that payment. Despite the original arguments propounded forcefully by [defendants' counsel] to the contrary, defendants are not prevailing parties. While their defense was vigorous and intense (to say the least) and ultimately successful in practical terms, that defense did not "materially alter the relationship between the parties." [Warrington v. Vill. Supermarket, Inc., 328 N.J. Super. 410, 420 (App. Div. 2000)]. This court has discerned no authority for the proposition that a successful defense in and of itself creates a prevailing party status under the Singer formula outlined above. Similarly, the court has found no authority holding that, when an employee and an employer litigate their respective claims and defenses, the employer who gleans no monetary award is considered a prevailing party. Citing Szczepanski v. Newcomb Medical Center, Inc., 141 N.J. 346, 366 (1995), the judge further noted that courts have a 37 A-2285-13T1 heightened responsibility to review fee requests in cases when the requested fee is disproportionate to the damages recovered. In Szczepanski, the Court rejected an absolute requirement that a fee award be proportionate to the amount recovered, but explained the trial court has a heightened responsibility to weigh the damages in dispute, the damages actually recovered, the interests sought to be vindicated, as well as any circumstances incidental to the litigation that directly or indirectly affected the extent of counsel's efforts. Id. at 366-67. Judge Paley pointed out that defendants had obtained a judgment for $0 as to each of their counterclaims, yet they requested fees exceeding $4,000,000. Thus, the judge denied defendants' request for fees and awarded William $48,750 in fees as a prevailing party on the summary judgment motion. The amount awarded to William was "based on the legal services provided prior to June 15, 2010, when Judge Rivas's order awarding back pay was executed." The judge was satisfied with plaintiffs' counsel's supporting submissions, noting "[p]rincipal counsel for both sides . . . [had] considerable experience in complex commercial litigation; all counsel [had] wide knowledge of common and statutory law, both New Jersey and federal." On reconsideration, Judge Paley again rejected defendants' request for attorneys' fees and costs. Citing North Bergen Rex 38 A-2285-13T1 Transport, 158 N.J. at 570-71, the judge agreed that "a defendant may certainly prevail on its counterclaim." However, the judge concluded that William was the only prevailing party because he was "the only party who actually secured a benefit," while "[d]efendants secured no analogous relief." Judge Paley explained that "the corporate defendants lost on the issue of breach of contract, which was central to the fee-shifting provision of the contract [and] . . . was the only issue on which [William] prevailed . . . . [E]ach side here successfully defended against substantial claims raised by the adversary." The judge also rejected defendants' reliance on unreported cases and cases from foreign jurisdictions as "a sufficient basis alone to allow reconsideration." He explained that in none of the cases cited by defendants was "there a statement supporting the view that a defendant who pays damages to plaintiff is a prevailing party simply because that defendant successfully defends against other claims." Additionally, Judge Paley emphasized that Litton, which allowed fee shifting by contract, explicitly added a proportionality analysis to the standard lodestar analysis. In Litton, the Court stated: Beyond the lodestar amount, in cases in which the fee requested far exceeds the damages recovered, "the trial court should consider the damages sought and the damages actually recovered." In addition to that proportionality analysis, the court must 39 A-2285-13T1 evaluate the reasonableness of the total fee requested as compared to the amount of the jury award. That is, when the amount actually recovered is less than the attorney's fee request, the court must consider that fact in determining the overall reasonableness of the attorney's fee award. [Litton, 200 N.J. at 387-88 (citation omitted) (quoting Packard-Bamberger & Co. v. Collier, 167 N.J. 427, 446 (2001)).] Applying those principles, Judge Paley reiterated that the fee defendants requested was disproportionate to the damages recovered. Indeed, "the defense sought a fee exceeding $4,000,000 for services rendered in litigation in which plaintiff received an award of $136,923 affirmatively[,] and defendants received $0 on each of several counterclaims." Thus, the judge concluded that even if his analysis of the prevailing party was incorrect, defendants' motion for reconsideration was "academic." Unless public policy dictates otherwise, contracts that provide for reasonable counsel fees as part of damages are generally enforceable. Belfer v. Merling, 322 N.J. Super. 124, 141 (App. Div. 1999). In Litton, the Court recognized that "a party may agree by contract to pay attorneys' fees," including "those instances where, as here, the parties have bargained for an aggrieved party to recover its counsel fees and costs as part of its contract damages or 'losses.'" Litton, 200 N.J. at 406 (quoting N. Bergen Rex Transp., 158 N.J. at 570). The attorney 40 A-2285-13T1 fee strictures of Rule 4:42-9 do not apply to these contract provisions. Belfer, 322 N.J. Super. at 141. Instead, fees are considered as another possible element of damages to be proven before the fact finder in right and in amount, and any award is subject to review for reasonableness. Id. at 141-42. An appellate court generally reviews the grant or denial of attorneys' fees under a mistaken exercise of discretion standard. Packardâ€
Date: February 28, 2018
Docket Number: a2285-13a238 GOODEN BROWN, J.A.D. Plaintiffs, William A. Bogage and his wife, Jill Bogage,1 sued 1 Due to their shared surnames, we refer to the parties by their first names for clarity and ease of reference. We intend no disrespect. 2 A-2285-13T1 their former employer and its owners, defendants Display Group 21, LLC (Display Group), Stallion Holdings, LLC, f/k/a the Strive Group, LLC (Strive), Jeffrey Sharfstein, and Douglas Sharfstein, for breach of contract, fraud, and interference with prospective economic advantage, as well as other claims that were dismissed before jury deliberations. The lawsuit stemmed from plaintiffs' allegations that Strive, of which William was also a minority owner, wrongfully terminated William's employment with Display Group for cause pursuant to his employment contract, and that Display Group wrongfully fired Jill, who was an at-will employee. Defendants filed various counterclaims, which were, for the most part, the converse of plaintiffs' allegations. The jury found no cause of action on plaintiffs' claims and found for defendants on their counterclaims, but unanimously awarded defendants no damages. In these back-to-back appeals, consolidated for purposes of issuing this opinion, plaintiffs argue the trial court erred by denying their motions for directed verdict on their breach of contract claim, by requiring plaintiffs to bear the burden of proving William's improper termination under an inapplicable subjective standard, and by not dismissing defendants' counterclaims. Defendants argue the court erred by denying their motion for counsel fees and costs as prevailing parties. We have 3 A-2285-13T1 considered these arguments in light of the record and applicable legal principles. We reject each point and affirm. I. We derive the following pertinent facts from the voluminous record. Between 1983 and 2001, William worked as a salesperson for Advertising Display Company (ADC), selling "point-of-display" products, which are the display stands often found near a store's cash registers. He earned about $2 million a year and worked with Jill, Fulvio Pagnozzi, and John Feindt, among others. In 2001, when ADC was going into bankruptcy, William and twenty others from his office, including Jill, Pagnozzi, and Feindt, formed Display Group 21 to continue selling point-of-display products. However, because they needed a manufacturer, they approached Pride Container, a manufacturer of corrugated boxes owned by the Sharfsteins, with a business proposal, and the parties signed an agreement. As a result: (1) Pride Container changed its name to Strive; (2) Jeffrey and Douglas maintained ownership of forty percent of Strive and were Strive's majority owners; (3) William, Pagnozzi, and Feindt each contributed their shares of Display Group 21 to Strive in exchange for six percent ownership of Strive; (4) Strive agreed to manufacture point-of-display products in the Chicago area; (5) Strive created a Display Group east coast division with 4 A-2285-13T1 its main office in New Jersey; (6) William, Pagnozzi, and Feindt signed employment agreements with the newly created Display Group and became general managers; and (7) Jill became an at-will employee at the Display Group office. During his first five-year employment contract with Strive's Display Group, William went from earning over $2 million annually at ADC to earning a couple hundred thousand dollars a year, a ninety percent salary reduction. However, his sales were rising, as he had retained most of his clients and attracted new ones. William also worked closely with Jill, whom he later married and worked with out of the North Carolina office. As the years passed, Display Group became more successful. Pagnozzi worked mostly in production, and Feindt worked in the creative and finance departments. William was in charge of sales and developing new accounts. On April 26, 2005, William signed a second five-year "Amended and Restated Employment Agreement" (Agreement) with Display Group, wherein he agreed to continue working as a general manager for Display Group at an annual base salary of $400,000. Section 2 of the agreement, entitled Employment Duties, made William "responsible for the day-to-day operations of the Company, including hiring and firing employees, entering into contracts, engaging contractors and such other activities related to the foregoing as may be necessary." 5 A-2285-13T1 Section 2 also stated: Employee shall serve the Company faithfully, diligently, competently and to the best of his ability, and Employee shall use his best efforts to further enhance and develop the Company's internal organization, operations, business affairs, interests and welfare. Employee shall devote his best efforts and full business time and attention to the business and affairs of the Company and the performance of his duties hereunder. Section 3 of the agreement, entitled Compensation, stated: (a) As compensation for all services to be performed for the Company and the duties and responsibilities to be assumed by Employee pursuant to this Agreement, the Company shall pay to Employee: (i) during the Employment Term, a salary ("Base Salary") for all services rendered by Employee under this Agreement at the rate of four hundred thousand dollars ($400,000) per annum. The Base Salary shall be payable in accordance with the Company's ordinary payment practices, but in no event less frequently than monthly. . . . (iii) during the Employment Term, an incentive payment ("Incentive Payment") for each calendar year, based upon a percentage of Adjusted EBITDA [("earnings from operations of the Company before interest, taxes, depreciation and amortization").] Section 5 of the agreement, entitled Reimbursement of Expenses, declared that Employee shall be entitled to reimbursement for ordinary, necessary and reasonable out- of-pocket trade or business expenses which 6 A-2285-13T1 Employee incurs in connection with performing his duties under this Agreement, including reasonable travel and meal expenses. The reimbursement of all such expenses shall be made in accordance with the Company's customary practices and policies (including presentation of evidence reasonably satisfactory to the Company of the amounts and nature of such expenses). Section 10(a) of the Agreement, entitled Termination, provided that the "[e]mployee's employment . . . may be terminated at any time by the Board for any reason (or no reason), including for Cause." The Agreement defined "Cause" as any act "involving dishonesty or fraud with respect to the Company or any of its subsidiaries." Under the Agreement, "Cause" also included "intentional misconduct that is or may be materially injurious to the Company or its subsidiaries as reasonably determined by the Board"; "the failure to observe all material Company policies, which failure is or may be materially injurious to the Company as reasonably determined by the Board"; "the failure to devote adequate time and effort to the Company's affairs as reasonably determined by the Board, based upon industry standards and past practice"; and "any other material breach by Employee of this Agreement or any other agreement or policy relating to employment . . . to which Employee is a party or bound." The Agreement specified that the employee had thirty days following written notice of "misconduct[,]" "failure[,]" or 7 A-2285-13T1 "breach" to "cure[]" it, "if curable." Under the Agreement, if employment was terminated for cause, the employee would "not be entitled to any continuation of his Base Salary or any other compensation or benefits . . . following the date of such termination (other than any payments or benefits required by law and reimbursement of expenses incurred by Employee through the effective date of such termination as provided in Section 5)." Section 13 of the Agreement, entitled General Provisions, stated that the Agreement superseded and preempted any prior understandings and agreements. Section 13(e), entitled Choice of Law, provided "[t]his Agreement shall be governed and controlled as to validity, enforcement, interpretation, construction, effect and in all other respects by the internal laws of the State of New Jersey applicable to contracts made in that state." Section 13(f) stated: (f) Remedies. Each of the parties to this Agreement shall be entitled to enforce its rights under this Agreement specifically, to recover damages and costs caused by any breach of any provision of this Agreement and to exercise all other rights existing in such party's favor. In the event of a dispute hereunder, the prevailing party's reasonable attorney's fees and costs shall be promptly reimbursed by the opposing party or parties in such dispute. The parties hereto agree and acknowledge that money damages may not be an adequate remedy for any breach of the provisions of this Agreement and that any party may in its sole discretion apply to any court of law or equity of competent 8 A-2285-13T1 jurisdiction . . . for specific performance and/or other injunctive relief in order to enforce or prevent any violations of the provisions of this Agreement. William's best sales year was 2007 when he made close to $11 million in sales revenues. In March 2008, Display Group's managers received $200,000 in bonuses, and the Sharfsteins took even larger bonuses for themselves. However, the economy took a downturn in 2008, and a month after receiving their bonuses, William, Pagnozzi, and Feindt met with Jeffrey to discuss the downturn's effect on the company. Because Strive and Display Group had lost a lot of business, Jeffrey told them the company needed to reduce costs by implementing headcount reductions and a salary deferral. According to William, Jeffrey announced the company would cut their salaries by $160,000, but would reinstate them sometime in 2009. Feindt corroborated William's account, but indicated that he, William, Pagnozzi, and Jeffrey had agreed to the cut in order to avoid having to fire their co-workers. Douglas corroborated Feindt's account and explained that emails sent to William in early 2008 showed that he knew some portion of his compensation was going to be deferred. These emails stated that, because of difficult times, all senior managers and equity holders would be deferring a portion of their compensation. In late 2008, Jeffrey began firing subordinates in William and Jill's direct support group. For example, Jeffrey fired 9 A-2285-13T1 Natalie Zito, William's assistant, who had been running the North Carolina office and was responsible for submitting William's and Jill's expense reimbursement requests for the previous seven years. As a result, William and Jill moved to New Jersey to work out of Display Group's New Jersey office, and Jill began submitting their monthly expense reimbursement requests to James Fritzen, Strive's comptroller in the New Jersey office. Although William denied having input into Zito's firing, Feindt indicated that it was William who suggested firing Zito. Feindt explained that William's work flow had been declining, as had Jill's. In fact, according to Feindt, the entire point-of- display industry was declining because it depended on the retail industry, and retail sales were falling. Fritzen corroborated Feindt's account of William's involvement in Zito's termination. In October 2009, six months before their employment agreements ended, William, Pagnozzi, and Feindt received letters from Strive stating that their employment agreements would not be renewed. Jeffrey held a meeting with all three in November 2009 to inform them he no longer wanted to treat them as "a team," but wanted to negotiate with them individually. Because William wanted to stay at Strive, he tried to negotiate a new agreement with 10 A-2285-13T1 Jeffrey, but the negotiations became contentious.2 In January 2010, the Sharfsteins hired Argo, a consulting company, to test the efficiency of the New Jersey office and eliminate between $3 and $3.5 million in costs and personnel. On February 12, 2010, Argo finalized its study, identifying $3 million in cost savings. The same day, Jeffrey told William to cancel a business meeting in Chicago because, effective that day, his employment with Strive had been terminated "for cause" under the employment agreement and all other applicable agreements. Jeffrey accused William of stealing from the company and submitting false expense reimbursement requests and handwritten receipts. Jill was also fired that same afternoon. Two months after his termination, William received a letter from Strive warning against solicitations. On February 16, 2010, four days after William and Jill were fired, they filed a fourteen-count complaint against defendants, challenging their terminations, and alleging various contract and tort claims. On March 3, 2010, plaintiffs filed an amended complaint, adding a count for piercing the corporate veil. On April 26, 2010, plaintiffs filed a second amended complaint 2 In December 2009, William, Pagnozzi, and Feindt met with a lawyer and asked him to write a letter to Jeffrey indicating that they were all owed a total of $91,000 for 2008, and $66,000 for 2009. William signed the letter, but Pagnozzi and Feindt refused. 11 A-2285-13T1 alleging: breach of contract against Display Group (count one); a declaratory judgment against Display Group that William had not breached the agreement (count two); tortious interference with contract against the Sharfsteins (count three); tortious interference with prospective economic advantage against the Sharfsteins (counts four and five); defamation against the Sharfsteins (count six); fraud against the Sharfsteins (count seven); civil conspiracy against all defendants (counts eight and nine); and piercing the corporate veil against both the Sharfsteins and Strive (count ten). Plaintiffs filed a motion for partial summary judgment on their breach of contract claim against Display Group, and sought, among other things, to recover William's unpaid base salary under the employment agreement for 2008 and 2009 with interest. Although defendants did not dispute that William was entitled to receive unpaid salary for 2008 and 2009, they opposed any determination that Display Group had breached William's employment agreement by failing to pay him a portion of his base salary during those years and also opposed the dollar amount sought. Following oral argument, Judge Alberto Rivas determined in a June 2, 2010 written decision that William was entitled to his "rightfully earned" deferred salary of $136,923. The judge also declared that "[i]n reaching []his decision there [was] no finding 12 A-2285-13T1 by the [c]ourt that the [d]efendants breached [William's] employment contract[,] and [his] decision specifically [did] not address that question[,] and it remain[ed] an open issue in th[e] litigation." On June 15, 2010, the judge entered a memorializing order directing Display Group to pay William $136,923. A week later, defense counsel complied by sending a check to plaintiffs' counsel for $77,770.09, the net after-tax sum due to plaintiff. Though no direct appeal was taken from this order, it formed the basis for the trial court's later determination that William was a prevailing party in this action. On June 16, 2010, the judge dismissed count two (declaratory judgment) with prejudice and part of count ten (piercing the corporate veil) against the Sharfsteins. However, the judge denied defendants' motion to dismiss the allegation in count ten against Strive. On June 29, 2010, defendants answered the second amended complaint, generally denying liability and asserting various affirmative defenses. Over a year later, on September 26, 2011, defendants filed an amended answer, adding counterclaims seeking compensatory and punitive damages, attorneys' fees, interest, and costs, and alleging: breach of contract against William (counts one and six); unjust enrichment (count two); breach of fiduciary duty against William (counts three and seven); aiding and abetting against Jill (counts four and eight); fraud (count five); and 13 A-2285-13T1 seeking a declaratory judgment that William had been terminated properly for cause (count nine). Defendants essentially claimed William had submitted false and/or improper expense reports for reimbursement and had failed to devote his best efforts and full business time and attention to the company's affairs and the performance of his duties. In early December 2011, the court dismissed count nine of defendants' counterclaim (declaratory judgment) with prejudice.3 Judge Phillip L. Paley presided over a jury trial between November 26, 2012 and January 7, 2013. At trial, William and Jill testified that they often grouped their expenses and submitted their reimbursement requests together. Between November 2009 and January 2010, they submitted reimbursement requests totaling $16,305.95, and between January and February 2010, they submitted reimbursement requests totaling $2918.44, which Strive had not paid. William admitted he had expensed gift cards for his subordinates totaling $1450, but claimed both Pagnozzi and Feindt had also expensed gift cards and had never received any discipline. William also admitted he expensed tickets to various major sporting events in 2009, but claimed they were only for clients. Pagnozzi 3 Between December 2011 and March 2012, plaintiffs filed separate lawsuits against defendants in various jurisdictions, asserting derivative claims. Motions to consolidate those cases with this case were denied. 14 A-2285-13T1 and Feindt acknowledged they had also expensed season tickets to sporting events but were not disciplined. Additionally, William admitted he had submitted $2000 a month in 2009 for reimbursement of his car lease expenses, even though those expenses totaled only about $1300 a month. He explained that, at Fritzen's suggestion, he was trying to make up for past shortfalls. Fritzen denied ever making that suggestion or having any conversation with William about increasing his auto allowance. Feindt testified that he had agreed with Pagnozzi and William, "as a group," to submit car expense reimbursement requests of only $1000 a month. William also admitted he had expensed an airline ticket for his dog and other airfare without submitting a receipt. He explained that, in one instance, it was a change ticket order, and he had forgotten to get a receipt. According to William, he sometimes forgot to get receipts, especially when he paid cash, so he would put handwritten notes about the missing receipts on other receipts. Jill testified that, often, she did not keep her receipts either. In addition, William admitted that, in 2003, he and Jill began a new real estate venture called "Billbo, LLC," to sell, lease, and manage properties. William acknowledged using Display Group's address in North Carolina to start Billbo and admitted to 15 A-2285-13T1 using his work email address to receive correspondence to and from Billbo. However, he denied working on Billbo matters while working for Strive. William further admitted that while renegotiating his employment contract with Strive and Jeffrey at the end of 2009, he was also communicating with a competitor about bringing his team and co-employees under the competitor's corporate umbrella. In January 2010, he gave the competitor a business plan and business strategy, which listed the initials of the colleagues he wanted to have join him. The plan stated in part: New Co. will satisfy a strategic growth opportunity to increase business[-]to[-]business delivery of in-store merchandising materials from concept, engineering and manufacturing through fulfillment and delivery to the retail environment. We will concentrate on utilizing sustainable solutions for merchandising requirements. Although William denied soliciting his co-employees to join his new venture, Fritzen testified that William approached him three times about joining. Likewise, Feindt testified that he and Pagnozzi met with the competitor and William about the plan. However, according to Feindt, he and Pagnozzi ultimately decided they were not ready to leave Strive and Display Group. Eventually, Jeffrey offered Feindt and Pagnozzi new employment agreements that were very similar to their former contracts. 16 A-2285-13T1 Plaintiffs presented Kristin Kucsma, an expert in economics, to testify about their estimated economic damages. Her analysis of adjusted loss earnings accounted for earnings William would have received but for defendants' actions. Based on her analysis, she estimated, to a reasonable degree of economic certainty, that defendant's actions caused William a total loss of $982,200 between his termination in February 2010 and the trial in December 2012. Kucsma also calculated that William would have lost $1,997,749 in expected income between 2012 and 2015, which is when her analysis indicated he should have secured comparable employment. According to Kucsma, if William never found comparable employment before his expected date of retirement in 2023, his damages would total $4,080,690. Finally, William testified that, before his termination, he was never warned about any documentation deficiencies or irregularities in his expense reimbursement requests. William explained that there was no policy regarding business expenses in effect at the time of his termination. Although plaintiffs produced Strive's written "Business Travel and Expenses Policy," dated April 2010, because the policy had not been in place before plaintiffs' firing on February 12, 2010, the parties agreed to a limiting instruction. Jeffrey and Fritzen testified that Display Group and Strive had always expected its employees to submit back- 17 A-2285-13T1 up documentation for all expense reimbursement requests. Defendants calculated William had submitted over $30,000 in improper and/or fraudulent expenses, which Display Group had reimbursed. On December 17, 2012, after plaintiffs rested their case-in- chief, defendants moved for a directed verdict. After oral argument, the judge dismissed, with prejudice, William's claims for interference with contractual relations (count three), defamation (count six), and civil conspiracy (count eight), as well as Jill's claim for civil conspiracy (count nine). Thus, the case proceeded against defendants on plaintiffs' claims for breach of contract, fraud, and interference with prospective economic advantage. On December 26, 2012, after all of the evidence had been presented, plaintiffs moved for a directed verdict on their breach of contract claims and for an order dismissing defendants' counterclaims for lack of damages, both of which the judge denied. However, the judge limited defendants' recovery on their counterclaims to $50,000, and dismissed their counterclaims against Jill in counts four through eight with prejudice. Thus, the case proceeded against plaintiffs on defendants' counterclaims for breach of contract, breach of fiduciary duty, and fraud against William, and their claims for unjust enrichment against both 18 A-2285-13T1 plaintiffs. During the jury charge, the judge limited recovery on defendants' counterclaims to $50,000 in the aggregate. On the verdict sheet, the judge also limited the damages relating to plaintiffs' claims as follows: (1) $20,500 for William's unpaid base salary from 2008 to 2009; (2) $22,682 for unpaid expense reimbursements; (3) $770,000 for William's unpaid bonuses; (4) $76,926 for William's unpaid base salary for 2010; (5) $38,460 for unpaid vacation pay; and $1.5 million for a non-competition clause. On January 7, 2013, the jury unanimously returned a no cause of action verdict against plaintiffs, finding that: (1) plaintiffs had not proven breach of contract based on defendants' nonpayment of William's 2008 to 2009 base salary compensation or of certain expense reimbursement requests for 2009 to 2010, or based on the termination of his employment; and (2) plaintiffs had not proven the Sharfsteins had interfered with William's prospective economic advantage or committed fraud against him. On the counterclaims, the jury found defendants had proven: (1) breach of contract against William and unjust enrichment against plaintiffs; and (2) that William had breached his duty of 19 A-2285-13T1 loyalty and committed fraud.4 Specifically, the jury found that: (a) William had breached his employment contract by submitting false and/or improper requests for expense reimbursement, but had not breached it by soliciting employees and/or taking actions intended to persuade such employees to leave their employ; (b) either one or both plaintiffs had been unjustly enriched by submitting false and/or improper requests for expense reimbursements, and had received those reimbursements; (c) William had breached his duty of loyalty to Display Group; and (d) William had committed fraud and/or submitted improper requests for reimbursement of expenses. The jury unanimously awarded defendants $0 damages on each counterclaim. Thereafter, because the jury had not awarded compensatory damages, the judge dismissed all claims for punitive damages as a matter of law. On January 25, 2013, the judge entered judgment dismissing plaintiffs' second amended complaint with prejudice. On defendants' counterclaims, the judge awarded judgment, but no damages: (1) to Display Group and Strive against William (a) for breach of contract, (b) for unjust enrichment, and (c) for fraud; (2) to Display Group, Strive, and the Sharfsteins against William for breach of fiduciary duty; and (3) to Display Group and Strive 4 The court charged the jury on breach of loyalty instead of breach of fiduciary duty to conform to the proofs. 20 A-2285-13T1 against Jill for unjust enrichment. On April 17, 2013, defendants filed a motion requesting $3,697,602.52 in attorneys' fees and $390,159.17 in costs. Defendants argued they were the prevailing parties under the employment agreement because they had prevailed on their counterclaims, even if the jury did not award damages. Defendants later updated the amounts to $3,900,749.70 in fees and $390,849.95 in costs, to account for the work performed in bringing their motion. On May 9, 2013, plaintiffs cross moved for attorneys' fees and costs. Thereafter, Zurich American Insurance Co. (Zurich), which had already paid $2,000,000 in litigation fees and costs pursuant to defendants' liability insurance policy for company directors, officers, and employees, filed a motion to intervene on the issue of attorneys' fees and costs. Zurich also submitted a separate complaint against plaintiffs, seeking subrogation damages for breach of contract as defendants' insurer and subrogee. On September 20, 2013, Judge Paley granted Zurich's motion to intervene. Although the judge "refer[red] Zurich's proposed Complaint, case information statement and filing fee . . . to the Civil Division for processing and filing[,] to which the parties may answer or otherwise respond," the judge never consolidated the cases. On the same date, the judge heard arguments on the cross- 21 A-2285-13T1 motions for attorneys' fees and costs. On November 8, 2013, the judge denied defendants' motion but granted plaintiffs' motion, awarding William $48,750 in attorneys' fees and $1401.82 in costs, totaling $50,151.82. Defendants moved for reconsideration, and on December 30, 2013, after hearing arguments, the judge denied reconsideration of his November 8, 2013 order. Defendants filed a timely notice of appeal from the court's: (1) June 15, 2010 order granting plaintiffs' motion for partial summary judgment; (2) November 8, 2013 order denying defendants' motion for attorneys' fees and costs; and (3) December 30, 2013 order denying defendants' motion for reconsideration of the November 8, 2013 order. Plaintiffs filed a timely notice of appeal from the court's January 25, 2013 order entering judgment and dismissing plaintiffs' complaint with prejudice. II. Plaintiffs argue in Point I that the judge erred by denying their motion for a directed verdict on their breach of contract claim based on defendants' reduction or deferral of William's base salary in 2008 and 2009. We disagree. Rule 4:40-1 provides in relevant part that "[a] motion for judgment, stating specifically the grounds therefor, may be made by a party either at the close of all the evidence or at the close of the evidence offered by an opponent." The standard applicable 22 A-2285-13T1 to a motion for a directed verdict in either event is equivalent to the standard applicable for summary judgment. Frugis v. Bracigliano, 177 N.J. 250, 269 (2003). To determine whether the moving party is entitled to judgment as a matter of law, the trial court must accept as true all evidence that supports the non‑moving party's position and all favorable legitimate inferences drawn therefrom. Dolson v. Anastasia, 55 N.J. 2, 5-6 (1969). After considering the evidence, the trial court must deny the motion "if reasonable minds could differ." Johnson v. Salem Corp., 97 N.J. 78, 92 (1984). Any legitimate disputes of material fact must be left to the jury. Lewis v. Am. Cyanamid Co., 155 N.J. 544, 567 (1998). However, the court must grant the motion if the evidence and uncontradicted testimony is "so one-sided that one party must prevail as a matter of law." Frugis, 177 N.J. at 269 (quoting Brill v. Guardian Life Ins. Co., 142 N.J. 520, 536 (1995)). The same standard applies to our review on appeal. Ibid.; see also Estate of Roach v. TRW, Inc., 164 N.J. 598, 612 (2000). Plaintiffs assert that the judge erred, as a matter of law, because defendants' deferral or failure to pay William's base salary in 2008 and 2009 constituted a per se violation of the New Jersey Wage Payment Law (WPL), N.J.S.A. 34:11-2 to -33.6, and therefore invalidated or breached the employment agreement as 23 A-2285-13T1 early as 2008. They claim William was an employee under the WPL, and the Sharfsteins and corporate defendants were his employers. Further, according to plaintiffs, because defendants breached the employment agreement, William had no obligation to continue performing after 2008. Thus, defendants' action in terminating him in February 2010 was ultra vires, entitling plaintiffs to a directed verdict on their breach of contract claim. Plaintiffs made similar arguments in their pre-trial motion for partial summary judgment and in their subsequent motion for a directed verdict. Defendants responded, as they do here, that William had agreed to modify the contract and that the WPL did not apply to him because he was more than a mere employee due to his status as an equity owner of Strive. The WPL requires every employer to "pay the full amount of wages due to his employees at least twice during each calendar month," and that the "end of the pay period for which payment is made on a regular payday shall not be more than [ten] working days before such regular payday." N.J.S.A. 34:11-4.2. "An employer may establish regular paydays less frequently than semimonthly for bona fide executive, supervisory and other special classifications of employees provided that the employee shall be paid in full at least once each calendar month on a regularly established schedule." Ibid. 24 A-2285-13T1 "Wages" are "the direct monetary compensation for labor or services rendered by an employee, where the amount is determined on a time, task, piece, or commission basis excluding any form of supplementary incentives and bonuses which are calculated independently of regular wages and paid in addition thereto." N.J.S.A. 34:11-4.1(c). An employer is "any individual . . . [or] corporation . . . employing any person in this State." N.J.S.A. 34:11-4.1(a). For purposes of the obligation to pay wages, the officers of a corporation who are responsible for its management are the "employers of the employees of the corporation." Ibid. In Finkler v. Elsinore Shore Associates, 725 F. Supp. 828, 832 (D.N.J. 1989), the court explained that N.J.S.A. 34:11-4.2 "clearly indicates that 'wages' are payments promised in advance of the services performed and paid promptly, or at least intended to be paid promptly, after services are rendered." Because an employment agreement that violates the WPL is "null and void," an employer may not enter into an agreement with an employee for the payment of wages except as provided by the WPL, other than to agree to pay wages more frequently than prescribed by the WPL or to pay wages in advance. N.J.S.A. 34:11-4.7. In his written decision, Judge Rivas found that William "clearly qualifie[d] as an employee" under the WPL, pursuant to N.J.S.A. 34:11-4.1(b), and that "the only provision that 25 A-2285-13T1 provide[d] for him to be treated different[ly] because of his status in the company [was] set forth in N.J.S.A. 34:11-4.2, which provides that certain high ranking employees can be paid monthly." Judge Rivas further declared that although "there was an elementary agreement to defer compensation entered into with [William] and his fellow employees," the exact parameters of that agreement, such as when they would be paid, were not established. Thus, the judge ruled that, absent a clear deferral agreement between William and defendants, and in light of William's termination, the WPL applied, and ordered defendants to pay him his deferred salary. However, the judge refused to rule that defendants breached the employment agreement by deferring William's salary. Thereafter, in his oral decision on plaintiffs' motion for a directed verdict on their breach of contract claim, Judge Paley disagreed with plaintiffs' interpretation of the WPL and determined that William was "not only an employee," but also an owner. In denying plaintiffs' motion, Judge Paley concluded that the employment agreement was "a hybrid contract which includes, in effect, a partnership or co-ownership of a corporate entity, not just employers." Whether a worker, who is an owner of the parent company and working for the subsidiary, is an employee for purposes of the WPL is a novel issue. However, because defendants paid William his 26 A-2285-13T1 deferred base salary pursuant to Judge Rivas' order for partial summary judgment, we need not address the issue, as we do not resolve novel questions unless absolutely necessary to the disposition of the litigation. Ahto v. Weaver, 39 N.J. 418, 428 (1963). III. Plaintiffs argue in Point II that the judge erred by denying their motion for a directed verdict on their breach of contract claims against defendants based on their failure to pay William's out-of-pocket expense reimbursements upon his termination. Plaintiffs claim there was no dispute that the company owed William $9980.10 for unchallenged unreimbursed expenses because none of the witnesses testified that those expenses were unusual. Defendants respond, as they did before the trial court, that there was evidence to prove that Display Group had already reimbursed William for over $30,000 of improper and/or fraudulent expenses in 2009, and that the jury could consider the unreimbursed expenses as a "set-off." Plaintiffs rely on Zulla Steel, Inc. v. A & M Gregos, Inc., 174 N.J. Super. 124 (App. Div. 1980), to support their assertion that one contracting party's failure to pay the other a required monetary payment constitutes a material breach of their contract. However, plaintiffs' reliance on Zulla is misplaced. In Zulla, 27 A-2285-13T1 the plaintiff, a subcontractor, brought an action alleging that the defendant, the prime contractor, had breached a contract by not making progress payments when due on a subcontract for structural work the plaintiff performed for the defendant. Id. at 128. After a bench trial, the judge found the defendant's failure to make the invoiced payments was a material breach of their contract because it was not based on any alleged shortcomings in the plaintiff's performance. Id. at 128-32. Here, accepting as true all evidence and favorable legitimate inferences that supported defendants' position as the non-moving party, there was a material dispute presented to the jury as to "the Company's customary practices and policies" governing reimbursements. The employment agreement was silent on the definition of defendants' customary practices and policies, and the testimony was not definitive. In fact, a written policy did not come into effect until after plaintiffs' terminations. Thus, reasonable minds could differ that the expense requests William submitted were not "for ordinary, necessary and reasonable out- of-pocket trade or business expenses." Furthermore, there was a material dispute as to whether plaintiffs incurred their expenses "in connection with performing" their duties under the agreement. While testifying, William recounted instances in which he had failed to submit all of his 28 A-2285-13T1 receipts, such as an airline change order, as well as instances in which he had knowingly submitted inflated car expenses. Because there was no written policy on reimbursements in effect at the time, the factual predicates for his requests were subject to dispute. Thus, denial of plaintiffs' motion for a directed verdict was proper. IV. Plaintiffs argue in Point III that the judge erred by requiring William, as the employee, to bear the burden of proving breach of contract based on improper termination under an inapplicable subjective standard. They argue the judge should have required defendants to prove William was terminated for "cause" as defined under the employment agreement. They assert defendants should have been required to prove William stole from the company or committed fraud by submitting fraudulent expense reimbursement requests, and thereby breached the contract, leading to his termination. Plaintiffs' arguments are unavailing. "[T]he burden of establishing a breach of contract rests with the party who asserts the breach; a breach of contract will not be presumed." Nolan v. Control Data Corp., 243 N.J. Super. 420, 438 (App. Div. 1990). In Silvestri v. Optus Software, Inc., 175 N.J. 113, 121-22 (2003), the Court addressed the differences between judging an employee's performance in an employment 29 A-2285-13T1 agreement subjectively and objectively in connection with a breach of employment contract claim. The Court stated: Agreements containing a promise to perform in a manner satisfactory to another, or to be bound to pay for satisfactory performance, are a common form of enforceable contract. Such "satisfaction" contracts are generally divided into two categories for purposes of review: (1) contracts that involve matters of personal taste, sensibility, judgment, or convenience; and (2) contracts that contain a requirement of satisfaction as to mechanical fitness, utility, or marketability. The standard for evaluating satisfaction depends on the type of contract. Satisfaction contracts of the first type are interpreted on a subjective basis, with satisfaction dependent on the personal, honest evaluation of the party to be satisfied. Absent language to the contrary, however, contracts of the second type—involving operative fitness or mechanical utility—are subject to an objective test of reasonableness, because in those cases the extent and quality of performance can be measured by objective tests. [Ibid. (citations omitted).] The Court explained that "a satisfaction-clause employment relationship is not to be confused with an employment-at-will relationship in which an employer is entitled to terminate an employee for any reason, or no reason, unless prohibited by law or public policy." Id. at 123. Indeed, "[o]rdinarily, an express employment contract serves to create an other than at-will employment relationship." Jackson v. Ga.-Pac. Corp., 296 N.J. Super. 1, 11 (App. Div. 1996). By contrast, "[i]n a satisfaction 30 A-2285-13T1 clause employment setting, there must be honest dissatisfaction with the employee's performance." Silvestri, 175 N.J. at 123. Accordingly, the Court announced that "the language of the contract itself must be examined to determine context and the parties' intentions concerning the standard for evaluation of the promisor's performance." Id. at 125. Here, in their amended request to charge the jury, plaintiffs requested that an objective standard be used to determine whether William violated Section 10(a) of the employment agreement. The judge rejected plaintiffs' request, concluding that "the [p]laintiff has the burden to prove breach of contract." Plaintiffs argue the court erred by not shifting the burden of proof and by not requiring defendants to prove they had terminated William for a proper cause based on an objective finding that he had stolen money from Display Group and Strive. However, the employment agreement stated that "Employee's employment . . . may be terminated at any time by the Board for any reason (or no reason), including for Cause." Consequently, although there was disputed evidence that William had submitted improper expense reimbursement requests and had tried to solicit clients and colleagues to join his new venture, the jury did not have to find that defendants had any cause to terminate William under the employment agreement in order to conclude that defendants 31 A-2285-13T1 did not breach the contract. Essentially, the agreement equated to an at-will employment relationship. Under an employment-at- will arrangement, "an employer may fire an employee for good reason, bad reason, or no reason at all," except for a discriminatory reason or a reason contrary to a clear mandate of public policy, neither of which is implicated here. Witkowski v. Thomas J. Lipton, Inc., 136 N.J. 385, 397 (1994). V. Plaintiffs argue in Point IV that the court erred by denying their motion to dismiss defendants' counterclaims when there was no evidence in the record that they had suffered any damages. We disagree. When a party alleges breach of a contract, and "it is certain that damages have resulted, mere uncertainty as to the amount will not preclude recovery." Jersey City Redev. Agency v. Clean-O-Mat Corp., 289 N.J. Super. 381, 402 (App. Div. 1996) (quoting Wolpaw v. Gen. Accident Ins. Co., 272 N.J. Super. 41, 46 (App. Div. 1994)). It is sufficient that the party prove damages with such certainty as the nature of the case may permit, "laying a foundation which will enable the trier of the facts to make a fair and reasonable estimate." Lane v. Oil Delivery, Inc., 216 N.J. Super. 413, 420 (App. Div. 1987). The non-breaching party must, however, demonstrate that its loss was a reasonably certain 32 A-2285-13T1 consequence of the breach and the "appropriate method for quantifying that loss." Totaro, Duffy, Cannova & Co., LLC v. Lane, Middleton & Co., LLC, 191 N.J. 1, 14-15 (2007). Thus, the evidence presented must afford a basis for the factfinder to estimate damages with some reasonable degree of certainty. Jersey City Redevelopment Agency, 289 N.J. Super. at 402. After admitting that their "counterclaims were simply a more affirmative way for [them] to state [their] defenses," and acknowledging difficulty in quantifying damages, defendants later argued their damages included: (1) the expenses they reimbursed to plaintiffs during 2009 that were later investigated and determined to be unsupported by adequate proofs and receipts; (2) the cost to perform those internal investigations; and (3) the salary they paid William while he was soliciting business and employees for his own new venture. Judge Paley agreed there was evidence that defendants had reimbursed some inappropriate expenses to William and that William had spent some of his work time advancing his own ventures. However, after concluding there was insufficient specificity in the evidence for the jury to quantify these damages, the judge determined: So the answer to this problem is to allow the counterclaim on breach of contract, to allow you to argue unjust enrichment, breach of fiduciary responsibility, and fraud. And 33 A-2285-13T1 it seems to me, based on . . . Jeffrey Sharfstein['s testimony] and the failure to be more specific, that there has to be some limitation in the amount of recovery available to [defendants]. And I'm going to set that limitation at $50,000. So the jury is going to be asked, did . . . [d]efendants prove by a preponderance of the evidence that they are entitled to repayment . . . Yes or no? If so, what is the fair amount not to exceed $50,000. Plaintiffs now argue that, because the jury did not award defendants damages, the judge should have dismissed the counterclaims as a matter of law. However, damages in breach of contract actions are limited by the general principles that: (1) [T]he damages are those arising naturally according to the usual course of things from the breach of the contract, or such as may fairly and reasonably be supposed to have been in the contemplation of the parties to the contract at the time it was made, as a probable result of the breach; and (2) there must be reasonably certain and definite consequences of the breach as distinguished from the mere quantitative uncertainty. [Tessmar v. Grosner, 23 N.J. 193, 203 (1957).] Further, "[t]he rule relating to the uncertainty of damages applies to the uncertainty as to the fact of damage and not as to its amount, and where it is certain that damage has resulted, mere uncertainty as to the amount will not preclude the right of recovery." Ibid. Here, from William's base salary alone, the jury could have 34 A-2285-13T1 computed the breach of contract damages resulting from the time he spent emailing others about the new venture he was proposing. Thus, the judge did not err in denying plaintiffs' motion to dismiss the counterclaims. VI. Defendants argue in Points A through E of their brief that the judge erred by denying their motion for counsel fees and costs. We disagree. In his written decision, citing Litton Industries, Inc. v. IMO Industries, Inc., 200 N.J. 372, 385 (2009), Judge Paley found that, in New Jersey, fees may be shifted to a prevailing party pursuant to a private contract. Here, Section 13(f) of the agreement expressly provided for "the prevailing party's reasonable attorney's fees and costs." The judge examined what it meant to be a "prevailing party" under the employment agreement, which he noted relied on New Jersey law pursuant to the "Choice of Law" provision in Section 13(e). Quoting Singer v. State, 95 N.J. 487, 495 (1984), Judge Paley declared that to be considered a prevailing party under New Jersey law, a party must show: (1) "a 'factual causal nexus between the litigation and the relief ultimately achieved,'" and (2) "that 'the relief ultimately secured by [the party] had a basis in law.'" Citing H.I.P. v. K. Hovnanian at Mahwah VI, Inc., 291 N.J. 35 A-2285-13T1 Super. 144, 154-55 (Law Div. 1996), Judge Paley explained part one of the formula as follows: Fundamentally, a prevailing party is one who achieves a substantial portion of the relief it sought . . . . The first inquiry in determining prevailing party status is whether the judgment provided the movant with a sufficient degree of success on the merits of its claim . . . . Whatever relief the plaintiff secures must directly benefit him at the time of judgment or settlement. [(Emphasis added.)] The judge, however, recognized that a party need not win "everything" to be prevailing, and that it was "immaterial" whether the prevailing party was the plaintiff or the defendant because a defendant could prevail on a counterclaim. According to the judge, "[s]o long as the relief awarded a party directly benefits that party, and therefore materially alters the relationship between the parties by modifying one party's behavior in a way that directly benefits the successful party, that party is deemed prevailing." Applying these principles, the judge reasoned: Here, [William] is a prevailing party. This suit is causally related to his having secured the relief obtained; the relief granted him had some basis in law. [Singer, 95 N.J. at 494]. He is the only party who actually secured a benefit from the lawsuit: back pay, which he characterized as a claim for breach of contract. A party need not win everything to be considered prevailing. See, e.g., [N. Bergen Rex Transp., Inc. v. Trailer 36 A-2285-13T1 Leasing Co., 158 N.J. 561, 572-74 (1999); Kellam Assocs., Inc. v. Angel Projects, LLC, 357 N.J. Super. 132, 139-41 (App. Div. 2003)]. The relief obtained by [William] had a clear basis in law. [Nadeau v. Helgemoe, 581 F.2d 275, 284 (1st Cir. 1978).] The basis was clearly articulated by Judge Rivas in his decision on the summary judgment motion. Defendants argue that [William] is not "prevailing[,"] because of the defense['s] willingness to provide back pay prior to Judge Rivas's ruling. That argument ignores that that willingness was precipitated by the filing of the complaint and the summary judgment motion. Defense counsel may have realized the risk of an adverse ruling - a potential liability for legal fees - but that realization does not disentitle [William] from receiving a reasonable allowance for legal fees incurred in obtaining that payment. Despite the original arguments propounded forcefully by [defendants' counsel] to the contrary, defendants are not prevailing parties. While their defense was vigorous and intense (to say the least) and ultimately successful in practical terms, that defense did not "materially alter the relationship between the parties." [Warrington v. Vill. Supermarket, Inc., 328 N.J. Super. 410, 420 (App. Div. 2000)]. This court has discerned no authority for the proposition that a successful defense in and of itself creates a prevailing party status under the Singer formula outlined above. Similarly, the court has found no authority holding that, when an employee and an employer litigate their respective claims and defenses, the employer who gleans no monetary award is considered a prevailing party. Citing Szczepanski v. Newcomb Medical Center, Inc., 141 N.J. 346, 366 (1995), the judge further noted that courts have a 37 A-2285-13T1 heightened responsibility to review fee requests in cases when the requested fee is disproportionate to the damages recovered. In Szczepanski, the Court rejected an absolute requirement that a fee award be proportionate to the amount recovered, but explained the trial court has a heightened responsibility to weigh the damages in dispute, the damages actually recovered, the interests sought to be vindicated, as well as any circumstances incidental to the litigation that directly or indirectly affected the extent of counsel's efforts. Id. at 366-67. Judge Paley pointed out that defendants had obtained a judgment for $0 as to each of their counterclaims, yet they requested fees exceeding $4,000,000. Thus, the judge denied defendants' request for fees and awarded William $48,750 in fees as a prevailing party on the summary judgment motion. The amount awarded to William was "based on the legal services provided prior to June 15, 2010, when Judge Rivas's order awarding back pay was executed." The judge was satisfied with plaintiffs' counsel's supporting submissions, noting "[p]rincipal counsel for both sides . . . [had] considerable experience in complex commercial litigation; all counsel [had] wide knowledge of common and statutory law, both New Jersey and federal." On reconsideration, Judge Paley again rejected defendants' request for attorneys' fees and costs. Citing North Bergen Rex 38 A-2285-13T1 Transport, 158 N.J. at 570-71, the judge agreed that "a defendant may certainly prevail on its counterclaim." However, the judge concluded that William was the only prevailing party because he was "the only party who actually secured a benefit," while "[d]efendants secured no analogous relief." Judge Paley explained that "the corporate defendants lost on the issue of breach of contract, which was central to the fee-shifting provision of the contract [and] . . . was the only issue on which [William] prevailed . . . . [E]ach side here successfully defended against substantial claims raised by the adversary." The judge also rejected defendants' reliance on unreported cases and cases from foreign jurisdictions as "a sufficient basis alone to allow reconsideration." He explained that in none of the cases cited by defendants was "there a statement supporting the view that a defendant who pays damages to plaintiff is a prevailing party simply because that defendant successfully defends against other claims." Additionally, Judge Paley emphasized that Litton, which allowed fee shifting by contract, explicitly added a proportionality analysis to the standard lodestar analysis. In Litton, the Court stated: Beyond the lodestar amount, in cases in which the fee requested far exceeds the damages recovered, "the trial court should consider the damages sought and the damages actually recovered." In addition to that proportionality analysis, the court must 39 A-2285-13T1 evaluate the reasonableness of the total fee requested as compared to the amount of the jury award. That is, when the amount actually recovered is less than the attorney's fee request, the court must consider that fact in determining the overall reasonableness of the attorney's fee award. [Litton, 200 N.J. at 387-88 (citation omitted) (quoting Packard-Bamberger & Co. v. Collier, 167 N.J. 427, 446 (2001)).] Applying those principles, Judge Paley reiterated that the fee defendants requested was disproportionate to the damages recovered. Indeed, "the defense sought a fee exceeding $4,000,000 for services rendered in litigation in which plaintiff received an award of $136,923 affirmatively[,] and defendants received $0 on each of several counterclaims." Thus, the judge concluded that even if his analysis of the prevailing party was incorrect, defendants' motion for reconsideration was "academic." Unless public policy dictates otherwise, contracts that provide for reasonable counsel fees as part of damages are generally enforceable. Belfer v. Merling, 322 N.J. Super. 124, 141 (App. Div. 1999). In Litton, the Court recognized that "a party may agree by contract to pay attorneys' fees," including "those instances where, as here, the parties have bargained for an aggrieved party to recover its counsel fees and costs as part of its contract damages or 'losses.'" Litton, 200 N.J. at 406 (quoting N. Bergen Rex Transp., 158 N.J. at 570). The attorney 40 A-2285-13T1 fee strictures of Rule 4:42-9 do not apply to these contract provisions. Belfer, 322 N.J. Super. at 141. Instead, fees are considered as another possible element of damages to be proven before the fact finder in right and in amount, and any award is subject to review for reasonableness. Id. at 141-42. An appellate court generally reviews the grant or denial of attorneys' fees under a mistaken exercise of discretion standard. Packardâ€
TONYBARADHI v. JEHAD DAHER and LATIFE A. NASSER and LOUAY ASSOCIATES, LLC -
Date: February 28, 2018
Docket Number: a2864-16
Date: February 28, 2018
Docket Number: a2864-16
OFCHILD PROTECTION AND PERMANENCY v. M.L IN THE MATTER OF P.P., III
Date: February 28, 2018
Docket Number: a3559-16
Date: February 28, 2018
Docket Number: a3559-16
PATRICIASANTANGELO v. BOARD OF TRUSTEES, TEACHERS PENSION AND ANNUITY FUND -
Date: February 28, 2018
Docket Number: a4112-15
Date: February 28, 2018
Docket Number: a4112-15
ANIMINVESTMENT COMPANY v. GEORGE SHALHOUB and KATHLEEN SHALHOUB, d/b/a GJ SHALHOUB, INC -
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Date: February 28, 2018
Docket Number: a5266-15
539GATES, LLC, EFRAIM ALTER and RAFI MAMAN v. HMC HOLDING CORP., a/k/a HMC HOLDING, INC., and MESHULAM HAAS and EYAL KALFA, individually
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Date: February 26, 2018
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ANNETTESMITH and LORRAINE JOHNSON v. SHAREEF A. SALAAM
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Docket Number: a0661-16
Date: February 26, 2018
Docket Number: a0661-16
INTHE MATTER OF THE APPLICATION FOR THE EXPUNGEMENT OF THE CRIMINAL RECORD BELONGING TO J.W
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Docket Number: a1730-16
Date: February 26, 2018
Docket Number: a1730-16
PARSONSINFRASTRUCTURE AND ENVIRONMNENT GROUP, INC v. STATE OF NEW JERSEY, DEPARTMENT OF TREASURY, DIVISION OF PURCHASE AND PROPERTY, SGS TESTCOM, INC and OPUS INSPECTION, INC and APPLUS TECHNOLOGIES, INC
Date: February 26, 2018
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Date: February 26, 2018
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CITYOF HOBOKEN v. PONTE EQUITIES, INC., UNITY ENVIRONMENTAL CORP., d/b/a UNITY EDUCATIONAL SYSTEMS, INC and PUBLIC SERVICE ELECTRIC AND GAS COMPANY, LAZ PARKING NEW YORK NEW JERSEY, LLC and STATE OF NEW JERSEY
Date: February 26, 2018
Docket Number: a3822-15
Date: February 26, 2018
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LAURAJ. FREDA v. BOARD OF REVIEW DEPARTMENT OF LABOR AND ATHENIA MASON SUPPLY INC
Date: February 26, 2018
Docket Number: a5106-15
Date: February 26, 2018
Docket Number: a5106-15
ADRIANNEBRANDECKER individually and as Executrix and Executrix ad Prosequendum of the Estate of LORENZ BRANDECKER v. E&B MILL SUPPLY CO.; GENERAL ELECTRIC CO.; HOMASOTE COMPANY LAIRD PLASTICS, INC individually and as successor in-interest to Almac Plas
Date: February 26, 2018
Docket Number: a5733-14
Date: February 26, 2018
Docket Number: a5733-14
OFCHILD PROTECTION AND PERMANENCY v. S.E and J.M IN THE MATTER OF J.M Minor
Date: February 23, 2018
Docket Number: a0391-16
Date: February 23, 2018
Docket Number: a0391-16
WELLSFARGO BANK, N.A v. DOMENIC MAGRO a/k/a DOMENICK MAGRO; JACQUALINE MAGRO a/k/a JACQUELINE MAGRO, his wife and UNITED STATES OF AMERICA STATE OF NEW JERSEY; ST BARNABAS MEDICAL CENTER; NEW JERSEY ANESTHESIA ASSOCIATES NEW CENTURY FINANCIAL SERVICES
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OFCHILD PROTECTION AND PERMANENCY v. P.M and A.C. and S.P IN THE MATTER OF C.C. and S.P Minors
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Docket Number: a0813-16
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ANNM. EDMONDS v. BOARD OF REVIEW, DEPARTMENT OF LABOR, ROWAN COLLEGE OF GLOUCESTER COUNTY1 AND ROWAN UNIVERSITY/RUTGERS-CAMDEN -
Date: February 23, 2018
Docket Number: a1419-16
Date: February 23, 2018
Docket Number: a1419-16
STATEOF NEW JERSEY v. SYREE HAKINS a/k/a ROBERT TAYLOR and TAYLOR RASHEED
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Date: February 23, 2018
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DOLORESSMYTHE and CHRISTINA CUNNINGHAM (Power of Attorney for Dolores Smythe v. WESTINGHOUSE REDEVELOPMENT ACT, INC. and MAURICE BETHEA INFINITY HOME MORTGAGE CO
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Date: February 23, 2018
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STATEOF NEW JERSEY v. OSHA L. DABNEY a/k/a OMAR GOODING
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U.S.BANK NATIONAL ASSOCIATION as Trustee for Citigroup Mortgage Loan Trust 2006-HE3 Asset-Backed Pass Through Certificates, Series 2006-HE3 v. INDIA MCRAE, her heirs, devisees and personal representatives and his, their or any of their successors in ri
Date: February 23, 2018
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Date: February 23, 2018
Docket Number: a3144-16
STATEOF NEW JERSEY v. EDWARD L. GRIMES, a/k/a EDDIE CHAMBERS
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Docket Number: a4022-15
Date: February 23, 2018
Docket Number: a4022-15
PHARMACY& HEALTHCARE COMMUNICATIONS, LLC and INTELLISPHERE, LLC v. NATIONAL CASUALTY COMPANY and HARTFORD INSURANCE COMPANY OF THE MIDWEST, INC., EXECUTIVE RISK INDEMNITY, INC., ADP STATEWIDE INSURANCE AGENCIES, INC., ADP STATEWIDE WEST INSURANCE, INC
Date: February 23, 2018
Docket Number: a4428-16
Date: February 23, 2018
Docket Number: a4428-16
INTHE MATTER OF THE TENURE HEARING OF FELICIA A PUGLIESE, STATE-OPERATED SCHOOL DISTRICT OF THE CITY OF NEWARK, ESSEX COUNTY
Date: February 23, 2018
Docket Number: a5064-14
Date: February 23, 2018
Docket Number: a5064-14
WELLSFARGO BANK, N.A v. KHADIJA AWADALLAH, his/her heirs, devisees and personal representatives, and his, her their or any of their successors in right, title and interest and MR. AWADALLAH, HUSBAND OF KHADIJA AWADALLAH; MORTGAGE ELECTRONIC REGISTRATIO
Date: February 23, 2018
Docket Number: a5564-15
Date: February 23, 2018
Docket Number: a5564-15
INTHE MATTER OF THE ESTATE OF JOAN MCFADDEN, Deceased
Date: February 22, 2018
Docket Number: a2484-15
Date: February 22, 2018
Docket Number: a2484-15
BACHOME LOAN SERVICING LP, f/k/a/ COUNTYWIDE HOME LOANS SERVICING, LP v. GREGORY SKINNER and MRS GREGORY SKINNER, his wife
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Docket Number: a2703-16
Date: February 22, 2018
Docket Number: a2703-16
STATEOF NEW JERSEY v. VICTOR MEJIA, a/k/a VICTOR MANUEL MEJIA
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Docket Number: a3022-16
Date: February 22, 2018
Docket Number: a3022-16
STATEOF NEW JERSEY v. EMMANUEL PIERREVIL STATE OF NEW JERSEY v. JAMEEL ROLLINS
Date: February 22, 2018
Docket Number: a3198-15a472 PER CURIAM Co-defendants Emmanuel Pierrevil and Jameel Rollins were tried together and convicted by a jury of second-degree conspiracy to commit carjacking, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:15-2; second-degree conspiracy to commit aggravated assault, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:12-1b(1); second-degree eluding, N.J.S.A. 2C:29-2b; two counts of second-degree unlawful possession of a firearm, N.J.S.A. 2C:39-5b; two counts of second-degree possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39-4a; two counts of third-degree receiving stolen property, N.J.S.A. 2C:20-7; and two counts of third-degree resisting arrest by creating a risk of physical injury, N.J.S.A. 2C:29-2a(3)(b). State v. Rollins, No. A-2468-11, A-2492-11 (App. Div. Aug. 19, 2014) (slip op. at 2-3). 2 A-3198-15T4 On direct appeal, we vacated Rollins' conviction as to one count charging him alone with aggravated assault, id. at 30-31, and otherwise affirmed his and Pierrevil's conviction and sentence. Id. at 36. The Supreme Court denied each defendant's petition for certification. 220 N.J. 573 (2015). Defendants filed separate petitions seeking post-conviction relief (PCR). The PCR judge, who was also the trial judge, denied both in written opinions accompanied by conforming orders. These appeals, which we now consolidate for purposes of issuing a single opinion, followed. A-3198-15 Pierrevil's pro se petition alleged trial counsel provided ineffective assistance (IAC) by not objecting to the judge's failure to hold a formal charge conference on the record.1 The court appointed PCR counsel, and Pierrevil filed a supplemental certification, asserting that despite a "deep desire to testify," trial counsel advised against it, and defendant did not understand he could "overrule trial counsel's advice." In his brief, PCR 1 At trial, the judge met with the attorneys informally to "go over the charge," before outlining the intended charge on the record and incorporating some specific language requested by Rollins' counsel. Rollins, slip op. at 23-24. There were no objections from either defense counsel, and Pierrevil raised no substantive objection to the charge on direct appeal. Id. at 25- 26. 3 A-3198-15T4 counsel also argued that trial counsel was ineffective for failing to move to dismiss the indictment, defendant was denied his right to cross-examine the State's witnesses and appellate counsel provided ineffective assistance. The judge rejected Pierrevil's IAC claims. After setting out the Strickland/Fritz2 standard, the judge concluded trial counsel was not deficient for failing to seek dismissal of the indictment because the evidence the State allegedly failed to produce before the grand jury "neither directly negate[d] guilt nor [was it] clearly exculpatory." See State v. Hogan, 144 N.J. 216, 237 (1996). The judge also determined the trial record belied defendant's claim that defense counsel coerced or misled him into not testifying, and defense counsel's strategic decision not to cross-examine A.M., one of the victims, was understandable, because A.M. did not identify either defendant at trial.3 2 Strickland v. Washington, 466 U.S. 668 (1984); State v. Fritz, 105 N.J. 42 (1987). A defendant must show "'that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed . . . by the Sixth Amendment.'" Fritz, 105 N.J. at 52 (quoting Strickland, 466 U.S. at 687). Second, a defendant must prove that he suffered prejudice due to counsel's deficient performance. Strickland, 466 U.S. at 691-92. 3 A.M. had previously identified both defendants from a photo array; however, in the grand jury and at trial, A.M. did not (footnote continued next page) 4 A-3198-15T4 The judge noted we had rejected defendant's claim that the manner by which the judge conducted the charge conference violated defendant's due process rights. See Rollins, slip op. at 24-25 (disapproving "the practice actually employed" but finding no prejudice). Therefore, trial counsel's performance in failing to object was not deficient. Lastly, the judge rejected Pierrevil's claim that appellate counsel provided ineffective assistance because none of the arguments now raised would have succeeded on appeal. See State v. Echols, 199 N.J. 344, 361 (2009). Before us, Pierrevil raises the following arguments: POINT ONE THE PCR COURT ERRED WHEN IT DETERMINED THAT THE CLAIMS CONTAINED IN THE DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF WERE PROCEDURALLY BARRED. POINT TWO THE PCR COURT ERRED IN DENYING THE DEFENDANT AN EVIDENTIARY HEARING DESPITE THE FACT THAT HE DEMONSTRATED A PRIMA FACIE CASE OF THE INEFFECTIVE ASSISTANCE OF TRIAL AND APPELLATE COUNSEL. A. TRIAL COUNSEL WAS INEFFECTIVE IN FAILING TO MOVE TO DISMISS THE INDICTMENTS. (footnote continued) identify either defendant and claimed both wore ski masks during the incident. Rollins, slip op. at 7. Rollins' trial counsel also posed no questions to A.M. 5 A-3198-15T4 B. THE DEFENDANT WAS DEPRIVED OF HIS CONSTITUTIONAL RIGHT TO TESTIFY ON HIS OWN BEHALF. C. THE DEFENDANT WAS DEPRIVED OF HIS RIGHT TO CROSS-EXAMINE THE STATE'S WITNESSES. D. THE DEFENDANT WAS DENIED HIS CONSTITUTIONAL RIGHT OF DUE PROCESS BY BEING IMPROPERLY EXCLUDED FROM THE CHARGE CONFERENCE. E. THE DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF APPELLATE COUNSEL. We affirm, substantially for the reasons expressed by the judge in his comprehensive written decision. We only add the following. Although the judge cited Rule 3:22-4(a)4 as procedurally barring defendant's PCR claims, he nonetheless addressed the 4 Rule 3:22-4(a) provides: Any ground for relief not raised in the proceedings resulting in the conviction, or in a post-conviction proceeding brought and decided prior to the adoption of this rule, or in any appeal taken in any such proceedings is barred from assertion in a proceeding under this rule unless the court on motion or at the hearing finds: (1) that the ground for relief not previously asserted could not reasonably have been raised in any prior proceeding; or (footnote continued next page) 6 A-3198-15T4 merits of the petition. Because we affirm the order denying defendant's PCR petition, we need not address whether the claims were procedurally barred. See State v. Scott, 229 N.J. 469, 479 (2017) (quoting Do-Wop Corp. v. City of Rahway, 168 N.J. 191, 199 (2001)) ("It is a long-standing principle underlying appellate review that 'appeals are taken from orders and judgments and not from opinions . . . or reasons given for the ultimate conclusion.'"). A-4726-15 Rollins asserted a number of specific allegations supporting his IAC claim in his pro se PCR petition. After the court appointed PCR counsel, Rollins filed an amended petition relying upon IAC arguments raised in counsel's brief, in particular, that trial counsel failed to adequately inform Rollins of the pre-trial plea offer and potential sentencing exposure. Defendant also argued (footnote continued) (2) that enforcement of the bar to preclude claims, including one for ineffective assistance of counsel, would result in fundamental injustice; or (3) that denial of relief would be contrary to a new rule of constitutional law under either the Constitution of the United States or the State of New Jersey. 7 A-3198-15T4 that trial counsel failed to cross-examine A.M., particularly as to A.M.'s alleged cooperation with the State.5 The judge denied the petition for reasons stated in a comprehensive written decision. This appeal followed. Before us, Rollins argues: POINT I THE LOWER COURT ERRED IN DENYING DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF WITHOUT AFFORDING HIM AN EVIDENTIARY HEARING BECAUSE HE ESTABLISHED A PRIMA FACIE CASE OF TRIAL COUNSEL'S INEFFECTIVENESS FOR, AMONG OTHER THINGS, FAILING TO CROSS-EXAMINE THE STATE'S KEY WITNESS, [A.M.], FAILING TO INVESTIGATE [A.M.]'S POTENTIAL COOPERATION WITH THE STATE, AND FAILING TO ADVISE DEFENDANT OF HIS SENTENCING EXPOSURE DURING THE PLEA BARGAINING PROCESS. A. NO EXPLANATION APPEARS IN THE RECORD FOR TRIAL COUNSEL'S FAILURE TO CROSS-EXAMINE [A.M.]. B. NO EXPLANATION APPEARS IN THE RECORD FOR TRIAL COUNSEL'S FAILURE TO INVESTIGATE [A.M.]'S POTENTIAL COOPERATION WITH THE STATE, NOR DOES IT APPEAR FROM THE LOWER COURT'S DECISION THAT THE STATE EVEN DENIED THIS ALLEGATION. C. THE PRETRIAL MEMORANDUM WAS AN INSUFFICIENT BASIS TO DISPENSE WITH DEFENDANT'S CLAIM THAT TRIAL COUNSEL DID NOT ADEQUATELY ADVISE HIM OF HIS SENTENCING EXPOSURE SO THAT HE COULD MAKE AN INFORMED 5 Defendant raised other issues before the PCR judge that are not presented on appeal. 8 A-3198-15T4 DECISION WHETHER TO ACCEPT A FAVORABLE PLEA OFFER. Again, we affirm substantially for the reasons expressed by the judge. The judge characterized trial counsel's decision not to cross-examine A.M. as a strategic one, to which the court owed "'extreme deference.'" Fritz, 105 N.J. at 52. As already noted, because A.M. could not identify either defendant at trial, it made no sense to cross-examine him about his prior out-of-court identification. As the judge noted, defense counsel wisely avoided the risk of "eliciting a positive . . . identification." The judge also noted that Rollins assumed A.M. cooperated with law enforcement because A.M. was previously convicted of drug offenses when he testified at trial. However, Rollins had no "specific facts whatsoever showing that [A.M.] ever cooperated with law enforcement." At trial, the prosecutor asked A.M. about his conviction, and A.M. denied the State offered any incentive in return for his testimony. Rollins asserts no facts to the contrary. The judge also rejected defendant's claim that trial counsel failed to adequately advise him of his sentence exposure, thereby negatively influencing defendant's decision to reject a more favorable plea offer. The judge noted defendant executed a 9 A-3198-15T4 pretrial memorandum that clearly stated he was eligible for an extended term. Defendant contends the pre-trial memorandum was "an insufficient basis" upon which to deny his IAC claim. However, the pre-trial memorandum directly negated defendant's assertions in his PCR petition that he was "never informed . . . he was subject to an extended term of imprisonment," and that "the failure to inform [defendant] of the same during pre-trial conference removed what would have been the last opportunity to enter a plea agreement." Accordingly, there was no need to hold an evidentiary hearing. Affirmed in A-3198-15; affirmed in A-4726-15. 10 A-3198-15T4
Date: February 22, 2018
Docket Number: a3198-15a472 PER CURIAM Co-defendants Emmanuel Pierrevil and Jameel Rollins were tried together and convicted by a jury of second-degree conspiracy to commit carjacking, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:15-2; second-degree conspiracy to commit aggravated assault, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:12-1b(1); second-degree eluding, N.J.S.A. 2C:29-2b; two counts of second-degree unlawful possession of a firearm, N.J.S.A. 2C:39-5b; two counts of second-degree possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39-4a; two counts of third-degree receiving stolen property, N.J.S.A. 2C:20-7; and two counts of third-degree resisting arrest by creating a risk of physical injury, N.J.S.A. 2C:29-2a(3)(b). State v. Rollins, No. A-2468-11, A-2492-11 (App. Div. Aug. 19, 2014) (slip op. at 2-3). 2 A-3198-15T4 On direct appeal, we vacated Rollins' conviction as to one count charging him alone with aggravated assault, id. at 30-31, and otherwise affirmed his and Pierrevil's conviction and sentence. Id. at 36. The Supreme Court denied each defendant's petition for certification. 220 N.J. 573 (2015). Defendants filed separate petitions seeking post-conviction relief (PCR). The PCR judge, who was also the trial judge, denied both in written opinions accompanied by conforming orders. These appeals, which we now consolidate for purposes of issuing a single opinion, followed. A-3198-15 Pierrevil's pro se petition alleged trial counsel provided ineffective assistance (IAC) by not objecting to the judge's failure to hold a formal charge conference on the record.1 The court appointed PCR counsel, and Pierrevil filed a supplemental certification, asserting that despite a "deep desire to testify," trial counsel advised against it, and defendant did not understand he could "overrule trial counsel's advice." In his brief, PCR 1 At trial, the judge met with the attorneys informally to "go over the charge," before outlining the intended charge on the record and incorporating some specific language requested by Rollins' counsel. Rollins, slip op. at 23-24. There were no objections from either defense counsel, and Pierrevil raised no substantive objection to the charge on direct appeal. Id. at 25- 26. 3 A-3198-15T4 counsel also argued that trial counsel was ineffective for failing to move to dismiss the indictment, defendant was denied his right to cross-examine the State's witnesses and appellate counsel provided ineffective assistance. The judge rejected Pierrevil's IAC claims. After setting out the Strickland/Fritz2 standard, the judge concluded trial counsel was not deficient for failing to seek dismissal of the indictment because the evidence the State allegedly failed to produce before the grand jury "neither directly negate[d] guilt nor [was it] clearly exculpatory." See State v. Hogan, 144 N.J. 216, 237 (1996). The judge also determined the trial record belied defendant's claim that defense counsel coerced or misled him into not testifying, and defense counsel's strategic decision not to cross-examine A.M., one of the victims, was understandable, because A.M. did not identify either defendant at trial.3 2 Strickland v. Washington, 466 U.S. 668 (1984); State v. Fritz, 105 N.J. 42 (1987). A defendant must show "'that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed . . . by the Sixth Amendment.'" Fritz, 105 N.J. at 52 (quoting Strickland, 466 U.S. at 687). Second, a defendant must prove that he suffered prejudice due to counsel's deficient performance. Strickland, 466 U.S. at 691-92. 3 A.M. had previously identified both defendants from a photo array; however, in the grand jury and at trial, A.M. did not (footnote continued next page) 4 A-3198-15T4 The judge noted we had rejected defendant's claim that the manner by which the judge conducted the charge conference violated defendant's due process rights. See Rollins, slip op. at 24-25 (disapproving "the practice actually employed" but finding no prejudice). Therefore, trial counsel's performance in failing to object was not deficient. Lastly, the judge rejected Pierrevil's claim that appellate counsel provided ineffective assistance because none of the arguments now raised would have succeeded on appeal. See State v. Echols, 199 N.J. 344, 361 (2009). Before us, Pierrevil raises the following arguments: POINT ONE THE PCR COURT ERRED WHEN IT DETERMINED THAT THE CLAIMS CONTAINED IN THE DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF WERE PROCEDURALLY BARRED. POINT TWO THE PCR COURT ERRED IN DENYING THE DEFENDANT AN EVIDENTIARY HEARING DESPITE THE FACT THAT HE DEMONSTRATED A PRIMA FACIE CASE OF THE INEFFECTIVE ASSISTANCE OF TRIAL AND APPELLATE COUNSEL. A. TRIAL COUNSEL WAS INEFFECTIVE IN FAILING TO MOVE TO DISMISS THE INDICTMENTS. (footnote continued) identify either defendant and claimed both wore ski masks during the incident. Rollins, slip op. at 7. Rollins' trial counsel also posed no questions to A.M. 5 A-3198-15T4 B. THE DEFENDANT WAS DEPRIVED OF HIS CONSTITUTIONAL RIGHT TO TESTIFY ON HIS OWN BEHALF. C. THE DEFENDANT WAS DEPRIVED OF HIS RIGHT TO CROSS-EXAMINE THE STATE'S WITNESSES. D. THE DEFENDANT WAS DENIED HIS CONSTITUTIONAL RIGHT OF DUE PROCESS BY BEING IMPROPERLY EXCLUDED FROM THE CHARGE CONFERENCE. E. THE DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF APPELLATE COUNSEL. We affirm, substantially for the reasons expressed by the judge in his comprehensive written decision. We only add the following. Although the judge cited Rule 3:22-4(a)4 as procedurally barring defendant's PCR claims, he nonetheless addressed the 4 Rule 3:22-4(a) provides: Any ground for relief not raised in the proceedings resulting in the conviction, or in a post-conviction proceeding brought and decided prior to the adoption of this rule, or in any appeal taken in any such proceedings is barred from assertion in a proceeding under this rule unless the court on motion or at the hearing finds: (1) that the ground for relief not previously asserted could not reasonably have been raised in any prior proceeding; or (footnote continued next page) 6 A-3198-15T4 merits of the petition. Because we affirm the order denying defendant's PCR petition, we need not address whether the claims were procedurally barred. See State v. Scott, 229 N.J. 469, 479 (2017) (quoting Do-Wop Corp. v. City of Rahway, 168 N.J. 191, 199 (2001)) ("It is a long-standing principle underlying appellate review that 'appeals are taken from orders and judgments and not from opinions . . . or reasons given for the ultimate conclusion.'"). A-4726-15 Rollins asserted a number of specific allegations supporting his IAC claim in his pro se PCR petition. After the court appointed PCR counsel, Rollins filed an amended petition relying upon IAC arguments raised in counsel's brief, in particular, that trial counsel failed to adequately inform Rollins of the pre-trial plea offer and potential sentencing exposure. Defendant also argued (footnote continued) (2) that enforcement of the bar to preclude claims, including one for ineffective assistance of counsel, would result in fundamental injustice; or (3) that denial of relief would be contrary to a new rule of constitutional law under either the Constitution of the United States or the State of New Jersey. 7 A-3198-15T4 that trial counsel failed to cross-examine A.M., particularly as to A.M.'s alleged cooperation with the State.5 The judge denied the petition for reasons stated in a comprehensive written decision. This appeal followed. Before us, Rollins argues: POINT I THE LOWER COURT ERRED IN DENYING DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF WITHOUT AFFORDING HIM AN EVIDENTIARY HEARING BECAUSE HE ESTABLISHED A PRIMA FACIE CASE OF TRIAL COUNSEL'S INEFFECTIVENESS FOR, AMONG OTHER THINGS, FAILING TO CROSS-EXAMINE THE STATE'S KEY WITNESS, [A.M.], FAILING TO INVESTIGATE [A.M.]'S POTENTIAL COOPERATION WITH THE STATE, AND FAILING TO ADVISE DEFENDANT OF HIS SENTENCING EXPOSURE DURING THE PLEA BARGAINING PROCESS. A. NO EXPLANATION APPEARS IN THE RECORD FOR TRIAL COUNSEL'S FAILURE TO CROSS-EXAMINE [A.M.]. B. NO EXPLANATION APPEARS IN THE RECORD FOR TRIAL COUNSEL'S FAILURE TO INVESTIGATE [A.M.]'S POTENTIAL COOPERATION WITH THE STATE, NOR DOES IT APPEAR FROM THE LOWER COURT'S DECISION THAT THE STATE EVEN DENIED THIS ALLEGATION. C. THE PRETRIAL MEMORANDUM WAS AN INSUFFICIENT BASIS TO DISPENSE WITH DEFENDANT'S CLAIM THAT TRIAL COUNSEL DID NOT ADEQUATELY ADVISE HIM OF HIS SENTENCING EXPOSURE SO THAT HE COULD MAKE AN INFORMED 5 Defendant raised other issues before the PCR judge that are not presented on appeal. 8 A-3198-15T4 DECISION WHETHER TO ACCEPT A FAVORABLE PLEA OFFER. Again, we affirm substantially for the reasons expressed by the judge. The judge characterized trial counsel's decision not to cross-examine A.M. as a strategic one, to which the court owed "'extreme deference.'" Fritz, 105 N.J. at 52. As already noted, because A.M. could not identify either defendant at trial, it made no sense to cross-examine him about his prior out-of-court identification. As the judge noted, defense counsel wisely avoided the risk of "eliciting a positive . . . identification." The judge also noted that Rollins assumed A.M. cooperated with law enforcement because A.M. was previously convicted of drug offenses when he testified at trial. However, Rollins had no "specific facts whatsoever showing that [A.M.] ever cooperated with law enforcement." At trial, the prosecutor asked A.M. about his conviction, and A.M. denied the State offered any incentive in return for his testimony. Rollins asserts no facts to the contrary. The judge also rejected defendant's claim that trial counsel failed to adequately advise him of his sentence exposure, thereby negatively influencing defendant's decision to reject a more favorable plea offer. The judge noted defendant executed a 9 A-3198-15T4 pretrial memorandum that clearly stated he was eligible for an extended term. Defendant contends the pre-trial memorandum was "an insufficient basis" upon which to deny his IAC claim. However, the pre-trial memorandum directly negated defendant's assertions in his PCR petition that he was "never informed . . . he was subject to an extended term of imprisonment," and that "the failure to inform [defendant] of the same during pre-trial conference removed what would have been the last opportunity to enter a plea agreement." Accordingly, there was no need to hold an evidentiary hearing. Affirmed in A-3198-15; affirmed in A-4726-15. 10 A-3198-15T4
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INTHE MATTER OF THE ESTATE OF JOHN J. MCLAUGHLIN, Deceased
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STATE OF NEW JERSEY v. STANLEY COOPER
Date: February 1, 2018
Docket Number: a0882-15 PER CURIAM In these back-to-back appeals, consolidated for purposes of this opinion, defendant appeals from two orders, each of which denied him post-conviction relief (PCR). We affirm. I These appeals arise out of a string of robberies that occurred in and for which defendant was prosecuted in Middlesex and Union Counties. Because necessary for context, we briefly recount the salient facts. At approximately 2:00 a.m. on March 8, 2008, the Woodbridge Police Department received a report of an armed robbery at a Quick Chek in that municipality. The perpetrator, later identified as defendant, was observed wearing dark clothes and a dark ski mask, and drove from the store in a white Chevy Lumina. A Woodbridge police officer pulled over a car consistent with that description and radioed for back-up assistance. Defendant was driving and three others occupied the 2 A-0882-15T2 car, including defendant's sister, the owner of the car (sister). The police ordered the occupants out of the car and, as each emerged, they were frisked, handcuffed and placed in a patrol car. The police then opened and searched the trunk of the car, where they found a ski mask, black gloves, a black skull cap, black jogging pants, a black handgun, and a Quick Chek bag containing cash. The four occupants of the car were taken to the Woodbridge Police Station. While under arrest and in custody, the police commenced interviewing the occupants of the car. Defendant's sister gave a statement and, at about 7:00 a.m., consented to the search of her car. The officers then seized the aforementioned contents from the trunk. At approximately 10:45 a.m., defendant waived his Miranda1 rights and gave a statement to the police admitting his involvement in the robbery earlier that morning, as well as in robberies that occurred in other municipalities in Middlesex County and in Union County, specifically, Linden and Rahway. After defendant completed giving his statement, the Woodbridge police contacted the Linden and Rahway Police 1 Miranda v. Arizona, 384 U.S. 436 (1966). 3 A-0882-15T2 Departments and reported what they had learned from defendant. By 3:00 p.m. a detective from the Linden Police Department and by 4:30 p.m. a detective from the Rahway Police Department had secured separate statements from defendant inculpating himself in various robberies in these two Union County municipalities. Defendant was subsequently indicted in Middlesex County for armed robbery and related offenses, which we refer to as the "Middlesex matter." He was similarly indicted in Union County, which we refer to as the "Union matter." Defendant filed a motion in the Middlesex matter to suppress both the evidence seized from the trunk of the car and his statement to the police. The trial court initially determined the warrantless search of the trunk when defendant was pulled over violated defendant's constitutional rights. However, the court ultimately determined the sister's subsequent consent to search the trunk was sufficiently attenuated from the illegal search at the scene. Thus, on the basis of the consent search, the court declined to suppress the evidence discovered in the trunk. The court also declined to suppress the statement defendant gave to the Woodbridge police. Thereafter, defendant pled guilty in the Middlesex matter. Specifically, he pled to eight counts of first-degree robbery, N.J.S.A. 2C:15-1, and one count of second-degree possession of a 4 A-0882-15T2 firearm by certain persons, N.J.S.A. 2C:39-7(b). However, he preserved his right to appeal the denial of his suppression motions, and the parties agreed that if he were successful on appeal, his guilty pleas would be vacated. Defendant was sentenced to thirty years of imprisonment, with an eighty-five percent period of parole ineligibility. After his suppression motion in the Middlesex matter was decided, defendant filed a motion in the Union matter to suppress the statements he gave to the detectives of the Linden and Rahway Police Departments. Citing the law of the case doctrine, the trial court rejected defendant's argument to reconsider any of the rulings made by the trial court in the Middlesex matter, but did note defendant's statements to the Linden and Rahway detectives were rendered voluntarily. The court then denied defendant's suppression motion. Thereafter, defendant pled guilty to eleven counts of first-degree robbery, N.J.S.A. 2C:15-1, and one count of second- degree robbery, N.J.S.A. 2C:15-1. Defendant preserved his right to appeal the denial of his motion, but the parties did not further agree to vacate the pleas in the event defendant prevailed on appeal. He was sentenced in the aggregate to thirty years of imprisonment, with an eighty-five percent period 5 A-0882-15T2 of parole ineligibility, to run concurrently to the sentence imposed in the Middlesex matter. Defendant appealed from the orders denying his motions in both the Middlesex and Union matters. In the Middlesex matter, defendant contended the items seized from the trunk and his statement to the police were inadmissible "as fruit of the illegal police conduct." As for the Union matter, defendant argued his statements to the Linden and Rahway detectives were similarly inadmissible "as fruit of the unconstitutional . . . search conducted by the Woodbridge police." He did not assert the seizure of the items from the trunk constituted improper police conduct warranting suppression. In a consolidated opinion, we noted that, in the Middlesex matter, the issue whether it was lawful for the police to open the trunk when defendant was initially pulled over was not before us. State v. Cooper, Nos. A-1048-10, A-1049-10 (App. Div. Dec. 5, 2012) (slip op. at 12). Notwithstanding, we did comment that we accepted the trial court's legal conclusion the police's initial entry into the trunk was improper. Id. at 16. However, we disagreed with the trial court's legal conclusion the sister's subsequent consent to search the trunk removed the taint from that improper search. Id. at 19. Accordingly, we 6 A-0882-15T2 reversed that portion of the order denying defendant's motion to suppress the evidence seized from the trunk. Id. at 20. We affirmed the denial of defendant's motion to suppress his statement to the Woodbridge police. Id. at 23. We determined defendant's confession was not the "fruit" of improper police conduct because there were "sufficient intervening circumstances that purged the taint of any prior illegality." Id. at 21-22. In addition, we concurred with the trial court's legal conclusion defendant's statement to the police was rendered knowingly and voluntarily after he was apprised of his Miranda rights. Id. at 23. We observed the plea bargain permitted defendant to vacate his plea in the Middlesex matter if he prevailed on appeal, but we further noted the parties did not provide for what was to occur in the event he only partially succeeded. Ibid. Accordingly, we determined fairness dictated all of defendant's pleas be vacated and the matter remanded for further proceedings. Id. at 24. On remand, defendant pled guilty to the same offenses to which he had previously pled, but was sentenced to only fifteen years in prison, subject to an eighty- five percent period of parole ineligibility. In the Union matter, we affirmed the trial court's order denying defendant's motion to suppress his statement for 7 A-0882-15T2 essentially the same reasons we affirmed the trial court in the Middlesex matter on this issue. Specifically, defendant's statements were not tainted by the illegal search of the trunk and they were knowingly and voluntarily conveyed to the Linden and Rahway detectives. Id. at 26-27. The Supreme Court denied defendant's petition for certification, 214 N.J. 176 (2013). Two months later, defendant filed a petition for post-conviction relief in connection with the Union matter, and in 2015 filed a separate petition with respect to the Middlesex matter. We address each petition separately. II A In the Union matter, the principal contention defendant asserted before the PCR court relevant to the issues on appeal was as follows. Defendant maintained appellate counsel was ineffective for failing to assert that the inappropriate search of the trunk was not validated by the sister's consent, rendering the evidence discovered in the trunk inadmissible in the Union matter. Defendant conjectured that, had we reviewed the constitutionality of the initial search and found the sister's consent failed to validate that search, ultimately we 8 A-0882-15T2 would have suppressed the evidence found in the trunk and vacated defendant's guilty pleas in the Union matter. Following an evidentiary hearing, the PCR court denied defendant's petition for post-conviction relief. Among other things, the court credited appellate counsel's assertion none of the evidence in the trunk linked defendant to the robberies with which he had been charged in Union County. Therefore, the PCR court reasoned, it was unnecessary for counsel to advance any argument on appeal in support of suppressing the evidence in the trunk. The PCR court also noted that, given his confessions, it was improbable defendant would have rejected the plea offer and have proceeded to trial even if the evidence in the trunk had been suppressed. Defendant's prior convictions subjected him to the Three Strikes Law, N.J.S.A. 2C:43-7.1. Defendant faced a maximum of 230 years in prison even if he were not subject to an extended term. As the PCR court found, "it is unreasonable, unfathomable, . . . to believe that defendant would have turned down a plea offer which called for an aggregate of 30 years . . . on 11 first degree robberies and 1 second degree robbery. All of which was concurrent to the Middlesex County sentence." On appeal, defendant reprises essentially the same arguments. We briefly review the applicable law. The standard 9 A-0882-15T2 for determining whether counsel's performance was ineffective for purposes of the Sixth Amendment was formulated in Strickland v. Washington, 466 U.S. 668 (1984), and adopted by our Supreme Court in State v. Fritz, 105 N.J. 42 (l987). In order to prevail on a claim of ineffective assistance of counsel, defendant must meet a two-prong test. The first prong is counsel's performance was deficient and he or she made errors so egregious counsel was not functioning effectively as guaranteed by the Sixth Amendment to the United States Constitution. Strickland, 466 U.S. at 687, 694. The second prong is the defect in performance prejudiced defendant's rights to a fair trial and there exists a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Ibid. If a defendant has pled guilty, the second prong a defendant must satisfy is "'there is a reasonable probability that, but for counsel's errors, [the defendant] would not have pled guilty and would have insisted on going to trial.'" State v. Nunez-Valdez, 200 N.J. 129, 139 (2009) (quoting State v. DiFrisco, 137 N.J. 434, 457 (1994)). Here, having reviewed the record, we conclude defendant's arguments are without sufficient merit to warrant discussion in another opinion. R. 2:11-3(e)(2). We affirm the denial of the 10 A-0882-15T2 PCR petition arising out of the Union matter for the reasons stated in the comprehensive and well-reasoned opinion rendered by the PCR court. In short, there is no competent evidence defendant met either prong of the Strickland standard. B The arguments defendant advanced before the PCR court in the Middlesex matter relevant to the issues on appeal are that plea counsel failed to (1) share all discovery with him before he pled guilty2, and (2) file a motion to dismiss the indictment. The PCR court did not hold an evidentiary hearing. In a written opinion, the court rejected both -- as well as other -- arguments and denied defendant's petition. The PCR court found defendant did not identify what discovery his counsel failed to provide and, thus, it was unable to determine if counsel had been ineffective under the Strickland prongs. As for the indictment, defendant argued the prosecutor presented all indictments to the same grand jury rather than present each offense to separate grand juries. Defendant argued such practice could have suggested to the grand jury defendant 2 Defendant does not specify whether counsel failed to provide him with all discovery before his initial plea or his plea following his appeal and remand, but we assume it was the latter. 11 A-0882-15T2 was likely culpable if he had so many charges brought against him, not to mention the certain persons not to have weapons charge revealed he had a prior conviction. The PCR court rejected defendant's argument on the ground he failed to provide the transcript of the grand jury proceeding. On appeal, defendant claims the court's ruling on discovery was erroneous, but does not address the fact he did not identify for the PCR court (or on appeal) the discovery counsel failed to provide and how such discovery would have made a difference to his decision to plead guilty. Defendant's contention plea counsel failed to provide him the discovery necessary to have enabled him to make an informed decision on whether to plead guilty does not merit further discussion. R. 2:11-3(e)(2). As for the indictment, defendant contends it was not necessary for the PCR court to review the transcripts of the grand jury proceeding. He argues once the PCR court was made aware all charges were presented to one grand jury panel, the court knew defendant was prejudiced in the manner he alleges. This argument is barred by Rule 3:22-4(a). Defendant had ample opportunity to challenge the indictment in his direct appeal and did not do so, preventing review of the validity of the indictment in the appropriate proceeding. We discern no fundamental injustice to defendant in barring that claim now. 12 A-0882-15T2 Finally, defendant argues PCR counsel was ineffective for failing to provide the transcript of the grand jury proceeding to the PCR court. In light of our disposition, we need not reach this claim. Accordingly, we affirm the denial of the PCR petition arising out of the Middlesex matter. Affirmed. 13 A-0882-15T2
Date: February 1, 2018
Docket Number: a0882-15 PER CURIAM In these back-to-back appeals, consolidated for purposes of this opinion, defendant appeals from two orders, each of which denied him post-conviction relief (PCR). We affirm. I These appeals arise out of a string of robberies that occurred in and for which defendant was prosecuted in Middlesex and Union Counties. Because necessary for context, we briefly recount the salient facts. At approximately 2:00 a.m. on March 8, 2008, the Woodbridge Police Department received a report of an armed robbery at a Quick Chek in that municipality. The perpetrator, later identified as defendant, was observed wearing dark clothes and a dark ski mask, and drove from the store in a white Chevy Lumina. A Woodbridge police officer pulled over a car consistent with that description and radioed for back-up assistance. Defendant was driving and three others occupied the 2 A-0882-15T2 car, including defendant's sister, the owner of the car (sister). The police ordered the occupants out of the car and, as each emerged, they were frisked, handcuffed and placed in a patrol car. The police then opened and searched the trunk of the car, where they found a ski mask, black gloves, a black skull cap, black jogging pants, a black handgun, and a Quick Chek bag containing cash. The four occupants of the car were taken to the Woodbridge Police Station. While under arrest and in custody, the police commenced interviewing the occupants of the car. Defendant's sister gave a statement and, at about 7:00 a.m., consented to the search of her car. The officers then seized the aforementioned contents from the trunk. At approximately 10:45 a.m., defendant waived his Miranda1 rights and gave a statement to the police admitting his involvement in the robbery earlier that morning, as well as in robberies that occurred in other municipalities in Middlesex County and in Union County, specifically, Linden and Rahway. After defendant completed giving his statement, the Woodbridge police contacted the Linden and Rahway Police 1 Miranda v. Arizona, 384 U.S. 436 (1966). 3 A-0882-15T2 Departments and reported what they had learned from defendant. By 3:00 p.m. a detective from the Linden Police Department and by 4:30 p.m. a detective from the Rahway Police Department had secured separate statements from defendant inculpating himself in various robberies in these two Union County municipalities. Defendant was subsequently indicted in Middlesex County for armed robbery and related offenses, which we refer to as the "Middlesex matter." He was similarly indicted in Union County, which we refer to as the "Union matter." Defendant filed a motion in the Middlesex matter to suppress both the evidence seized from the trunk of the car and his statement to the police. The trial court initially determined the warrantless search of the trunk when defendant was pulled over violated defendant's constitutional rights. However, the court ultimately determined the sister's subsequent consent to search the trunk was sufficiently attenuated from the illegal search at the scene. Thus, on the basis of the consent search, the court declined to suppress the evidence discovered in the trunk. The court also declined to suppress the statement defendant gave to the Woodbridge police. Thereafter, defendant pled guilty in the Middlesex matter. Specifically, he pled to eight counts of first-degree robbery, N.J.S.A. 2C:15-1, and one count of second-degree possession of a 4 A-0882-15T2 firearm by certain persons, N.J.S.A. 2C:39-7(b). However, he preserved his right to appeal the denial of his suppression motions, and the parties agreed that if he were successful on appeal, his guilty pleas would be vacated. Defendant was sentenced to thirty years of imprisonment, with an eighty-five percent period of parole ineligibility. After his suppression motion in the Middlesex matter was decided, defendant filed a motion in the Union matter to suppress the statements he gave to the detectives of the Linden and Rahway Police Departments. Citing the law of the case doctrine, the trial court rejected defendant's argument to reconsider any of the rulings made by the trial court in the Middlesex matter, but did note defendant's statements to the Linden and Rahway detectives were rendered voluntarily. The court then denied defendant's suppression motion. Thereafter, defendant pled guilty to eleven counts of first-degree robbery, N.J.S.A. 2C:15-1, and one count of second- degree robbery, N.J.S.A. 2C:15-1. Defendant preserved his right to appeal the denial of his motion, but the parties did not further agree to vacate the pleas in the event defendant prevailed on appeal. He was sentenced in the aggregate to thirty years of imprisonment, with an eighty-five percent period 5 A-0882-15T2 of parole ineligibility, to run concurrently to the sentence imposed in the Middlesex matter. Defendant appealed from the orders denying his motions in both the Middlesex and Union matters. In the Middlesex matter, defendant contended the items seized from the trunk and his statement to the police were inadmissible "as fruit of the illegal police conduct." As for the Union matter, defendant argued his statements to the Linden and Rahway detectives were similarly inadmissible "as fruit of the unconstitutional . . . search conducted by the Woodbridge police." He did not assert the seizure of the items from the trunk constituted improper police conduct warranting suppression. In a consolidated opinion, we noted that, in the Middlesex matter, the issue whether it was lawful for the police to open the trunk when defendant was initially pulled over was not before us. State v. Cooper, Nos. A-1048-10, A-1049-10 (App. Div. Dec. 5, 2012) (slip op. at 12). Notwithstanding, we did comment that we accepted the trial court's legal conclusion the police's initial entry into the trunk was improper. Id. at 16. However, we disagreed with the trial court's legal conclusion the sister's subsequent consent to search the trunk removed the taint from that improper search. Id. at 19. Accordingly, we 6 A-0882-15T2 reversed that portion of the order denying defendant's motion to suppress the evidence seized from the trunk. Id. at 20. We affirmed the denial of defendant's motion to suppress his statement to the Woodbridge police. Id. at 23. We determined defendant's confession was not the "fruit" of improper police conduct because there were "sufficient intervening circumstances that purged the taint of any prior illegality." Id. at 21-22. In addition, we concurred with the trial court's legal conclusion defendant's statement to the police was rendered knowingly and voluntarily after he was apprised of his Miranda rights. Id. at 23. We observed the plea bargain permitted defendant to vacate his plea in the Middlesex matter if he prevailed on appeal, but we further noted the parties did not provide for what was to occur in the event he only partially succeeded. Ibid. Accordingly, we determined fairness dictated all of defendant's pleas be vacated and the matter remanded for further proceedings. Id. at 24. On remand, defendant pled guilty to the same offenses to which he had previously pled, but was sentenced to only fifteen years in prison, subject to an eighty- five percent period of parole ineligibility. In the Union matter, we affirmed the trial court's order denying defendant's motion to suppress his statement for 7 A-0882-15T2 essentially the same reasons we affirmed the trial court in the Middlesex matter on this issue. Specifically, defendant's statements were not tainted by the illegal search of the trunk and they were knowingly and voluntarily conveyed to the Linden and Rahway detectives. Id. at 26-27. The Supreme Court denied defendant's petition for certification, 214 N.J. 176 (2013). Two months later, defendant filed a petition for post-conviction relief in connection with the Union matter, and in 2015 filed a separate petition with respect to the Middlesex matter. We address each petition separately. II A In the Union matter, the principal contention defendant asserted before the PCR court relevant to the issues on appeal was as follows. Defendant maintained appellate counsel was ineffective for failing to assert that the inappropriate search of the trunk was not validated by the sister's consent, rendering the evidence discovered in the trunk inadmissible in the Union matter. Defendant conjectured that, had we reviewed the constitutionality of the initial search and found the sister's consent failed to validate that search, ultimately we 8 A-0882-15T2 would have suppressed the evidence found in the trunk and vacated defendant's guilty pleas in the Union matter. Following an evidentiary hearing, the PCR court denied defendant's petition for post-conviction relief. Among other things, the court credited appellate counsel's assertion none of the evidence in the trunk linked defendant to the robberies with which he had been charged in Union County. Therefore, the PCR court reasoned, it was unnecessary for counsel to advance any argument on appeal in support of suppressing the evidence in the trunk. The PCR court also noted that, given his confessions, it was improbable defendant would have rejected the plea offer and have proceeded to trial even if the evidence in the trunk had been suppressed. Defendant's prior convictions subjected him to the Three Strikes Law, N.J.S.A. 2C:43-7.1. Defendant faced a maximum of 230 years in prison even if he were not subject to an extended term. As the PCR court found, "it is unreasonable, unfathomable, . . . to believe that defendant would have turned down a plea offer which called for an aggregate of 30 years . . . on 11 first degree robberies and 1 second degree robbery. All of which was concurrent to the Middlesex County sentence." On appeal, defendant reprises essentially the same arguments. We briefly review the applicable law. The standard 9 A-0882-15T2 for determining whether counsel's performance was ineffective for purposes of the Sixth Amendment was formulated in Strickland v. Washington, 466 U.S. 668 (1984), and adopted by our Supreme Court in State v. Fritz, 105 N.J. 42 (l987). In order to prevail on a claim of ineffective assistance of counsel, defendant must meet a two-prong test. The first prong is counsel's performance was deficient and he or she made errors so egregious counsel was not functioning effectively as guaranteed by the Sixth Amendment to the United States Constitution. Strickland, 466 U.S. at 687, 694. The second prong is the defect in performance prejudiced defendant's rights to a fair trial and there exists a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Ibid. If a defendant has pled guilty, the second prong a defendant must satisfy is "'there is a reasonable probability that, but for counsel's errors, [the defendant] would not have pled guilty and would have insisted on going to trial.'" State v. Nunez-Valdez, 200 N.J. 129, 139 (2009) (quoting State v. DiFrisco, 137 N.J. 434, 457 (1994)). Here, having reviewed the record, we conclude defendant's arguments are without sufficient merit to warrant discussion in another opinion. R. 2:11-3(e)(2). We affirm the denial of the 10 A-0882-15T2 PCR petition arising out of the Union matter for the reasons stated in the comprehensive and well-reasoned opinion rendered by the PCR court. In short, there is no competent evidence defendant met either prong of the Strickland standard. B The arguments defendant advanced before the PCR court in the Middlesex matter relevant to the issues on appeal are that plea counsel failed to (1) share all discovery with him before he pled guilty2, and (2) file a motion to dismiss the indictment. The PCR court did not hold an evidentiary hearing. In a written opinion, the court rejected both -- as well as other -- arguments and denied defendant's petition. The PCR court found defendant did not identify what discovery his counsel failed to provide and, thus, it was unable to determine if counsel had been ineffective under the Strickland prongs. As for the indictment, defendant argued the prosecutor presented all indictments to the same grand jury rather than present each offense to separate grand juries. Defendant argued such practice could have suggested to the grand jury defendant 2 Defendant does not specify whether counsel failed to provide him with all discovery before his initial plea or his plea following his appeal and remand, but we assume it was the latter. 11 A-0882-15T2 was likely culpable if he had so many charges brought against him, not to mention the certain persons not to have weapons charge revealed he had a prior conviction. The PCR court rejected defendant's argument on the ground he failed to provide the transcript of the grand jury proceeding. On appeal, defendant claims the court's ruling on discovery was erroneous, but does not address the fact he did not identify for the PCR court (or on appeal) the discovery counsel failed to provide and how such discovery would have made a difference to his decision to plead guilty. Defendant's contention plea counsel failed to provide him the discovery necessary to have enabled him to make an informed decision on whether to plead guilty does not merit further discussion. R. 2:11-3(e)(2). As for the indictment, defendant contends it was not necessary for the PCR court to review the transcripts of the grand jury proceeding. He argues once the PCR court was made aware all charges were presented to one grand jury panel, the court knew defendant was prejudiced in the manner he alleges. This argument is barred by Rule 3:22-4(a). Defendant had ample opportunity to challenge the indictment in his direct appeal and did not do so, preventing review of the validity of the indictment in the appropriate proceeding. We discern no fundamental injustice to defendant in barring that claim now. 12 A-0882-15T2 Finally, defendant argues PCR counsel was ineffective for failing to provide the transcript of the grand jury proceeding to the PCR court. In light of our disposition, we need not reach this claim. Accordingly, we affirm the denial of the PCR petition arising out of the Middlesex matter. Affirmed. 13 A-0882-15T2
B.H. v. BOARD OF TRUSTEES, PUBLIC EMPLOYEES' RETIREMENT SYSTEM
Date: February 1, 2018
Docket Number: a0987-16
Date: February 1, 2018
Docket Number: a0987-16
MARGARETCHUDZIAK v. BERGEN COUNTY CONSTRUCTION BOARD OF APPEALS
Date: February 1, 2018
Docket Number: a1260-16
Date: February 1, 2018
Docket Number: a1260-16
BASF CORPORATION v. THE ESTATE OF DONALD W JONES, SR.
Date: February 1, 2018
Docket Number: a2592-15
Date: February 1, 2018
Docket Number: a2592-15
DEPARTMENT OF COMMUNITY AFFAIRS, SANDY RECOVERY DIVISION v. ERIK CARNEY
Date: February 1, 2018
Docket Number: a4228-15
Date: February 1, 2018
Docket Number: a4228-15
STATE OF NEW JERSEY DEPARTMENT OF TRANSPORTATION v. JANE LYONS
Date: February 1, 2018
Docket Number: a5655-13
Date: February 1, 2018
Docket Number: a5655-13
ROBERT J. TRIFFIN v. ZURICH AMERICAN INSURANCE COMPANY
Date: January 31, 2018
Docket Number: a0297-16
Date: January 31, 2018
Docket Number: a0297-16
MAINSTREET SUPER SERVICE INC v. DEPARTMENT OF THE TREASURY
Date: January 31, 2018
Docket Number: a1013-16
Date: January 31, 2018
Docket Number: a1013-16
STATEOF NEW JERSEY v. RORY T. WOOD
Date: January 31, 2018
Docket Number: a1028-14 PER CURIAM These back-to-back appeals have been consolidated for purposes of this opinion. In one appeal (A-1028-14), defendant Rory T. Wood challenges his convictions and sentence. In the other (A-2838-14), defendant appeals from an order denying his motion to reduce his sentence. We remand for reconsideration of the sentences imposed for financial facilitation of criminal activity, N.J.S.A. 2C:21-25(b)(2); we affirm in all other respects. Before trial, co-defendant Nancy Cartagena pled guilty to third-degree forgery, N.J.S.A. 2C:21-1. Defendant did not plead guilty and, in December 2013, was convicted by a jury of two counts of second-degree theft by deception, N.J.S.A. 2C:20-4(a); three counts of second-degree financial facilitation of criminal activity, N.J.S.A. 2C:21-25(b)(2); two counts of second-degree conspiracy to commit theft, N.J.S.A. 2C:5-2(a); third-degree uttering a forged instrument, N.J.S.A. 2C:21-1(a)(3); and fourth-degree forgery, N.J.S.A. 2C:21-1(a)(2). Defendant's motion for a new trial was denied. In February 2014, defendant was sentenced in the aggregate to fifteen years of imprisonment. In addition to imposing various penalties and assessments, defendant was ordered to pay restitution in the amount of $391,660. 2 A-1028-14T3 I Numerous witnesses testified during this fifteen-day trial. We summarize only the key evidence that puts the issues on appeal in context. The evidence that pertains to defendant's challenges to pretrial rulings is recounted where we address such rulings below. In 2007, defendant was a plant manager for one of Rich Products' plants in New Jersey. This company, headquartered in Buffalo, makes frozen food. On average, the plant in which defendant worked employed 175 full-time and approximately seventy-five temporary employees. The temporary employees were obtained from local temporary employment agencies (agencies or agency). One of defendant's responsibilities was to obtain the temporary employees necessary to meet the plant's production schedule each week. After such employees appeared for work at the plant, various supervisors or like personnel, which for simplicity we refer to as supervisors, were tasked with creating and maintaining time sheets, on which the daily hours of each employee from each agency were recorded. The supervisors had the option of either filling out a time sheet by hand or typing the information onto a time sheet in the supervisor's computer. They also had the choice of signing a time sheet by hand or 3 A-1028-14T3 electronically; almost all filled out and signed their time sheets by hand. At the end of the week, the time sheets were sent to each agency that had supplied temporary workers. From such time sheets the agency prepared and forwarded an invoice to defendant. Staff at the plant reconciled each invoice with the corresponding timesheet and, if the invoices appeared to be in order, they were given to defendant for his review and final approval. Defendant testified he rarely reviewed and merely signed each invoice, indicating his approval of its contents. He then sent the invoices to headquarters, where the staff prepared and sent a check to the appropriate agency in satisfaction of each invoice. At that point, the agency prepared the paychecks, which were delivered to defendant for distribution to the temporary employees. One of the conditions of co-defendant Cartagena's plea agreement was that she testify truthfully at defendant's trial. She testified as follows. She worked in one of the temporary agencies used by the plant. She and defendant frequently interacted and, over time, became good friends. They often discussed their respective financial and other problems and got together outside of work. 4 A-1028-14T3 After Cartagena lost her job in one of the agencies, defendant helped her secure a position in Express Personnel (Express), another temporary employment agency used by the plant. In the summer of 2007, she and defendant devised and implemented a scheme in which defendant created time sheets containing the names of fictitious workers, which he forwarded to Express. Consistent with the practice between the plant and the various employment agencies, Express in turn prepared an invoice from the timesheets, which was forwarded to defendant and ultimately sent to headquarters for payment. After Express received payment on an invoice, it prepared paychecks to forward to defendant for distribution to the employees listed on the subject timesheets. However, before those paychecks were forwarded to defendant, Cartagena intercepted and kept some of the checks made out to the fictitious employees. The checks Cartagena did not intercept were forwarded to defendant or he picked up the remaining paychecks at the agency. Defendant retained the checks made payable to the fictitious employees, and arranged for the distribution of the checks made payable to the actual temporary employees. Defendant either cashed or deposited the checks he retained into a bank account he maintained. 5 A-1028-14T3 In early 2008, Cartagena was terminated from Express, but defendant continued the scheme of receiving paychecks from Express for fictitious workers. Defendant offered to help Cartagena get a job at Ameritemps, another local agency, but she declined, telling him she was reluctant to continue their illegal activities. Months later, Cartagena expressed to defendant her fear their scheme would be discovered. He said he would never implicate her, recommended she move to Puerto Rico, and mentioned he had obtained the documents necessary for his family to move to the Dominican Republic. Instead, Cartagena contacted an attorney, and subsequently reported their illegal conduct to the Burlington County Prosecutor's Office. Eric Eynon, a certified public accountant and fraud examiner employed by Rich Products, testified about an audit he conducted from Buffalo after the Prosecutor's Office contacted the company to advise it of Cartagena's revelations. That audit included a meeting with defendant just days later, during which defendant confessed to his participation in the scheme. Among other things, in his review of the plant's records, Eynon noted the plant spent an inordinately high amount of money on temporary workers. He also noticed the plant was using Express, which had not been approved by "Agile One" (Agile), which he 6 A-1028-14T3 characterized as a "red flag." Agile is a third-party agency that vets local temporary employment agencies to determine if they meet Rich Products' standards. In addition, workers from agencies approved by Agile are required to punch in and punch out at the beginning and end of each shift at the plant, using a personal identifying number when doing so. Eynon noted that, although such system did not provide complete protection against the kind of fraudulent practice that occurred in this matter, it provided some. Just days after he commenced his audit, Eynon went to the plant and interviewed various supervisors, managers, and other personnel. When defendant was not present, Eynon gained access to his office and laptop. He discovered defendant had been issuing time sheets from his computer that appeared as though they had been electronically signed by various supervisors in the plant. Eynon interviewed several supervisors. One had saved a hard copy of all of the time sheets he had created and signed within the previous fourteen months. All of his time sheets were signed by hand. Eynon compared those time sheets with the ones generated from defendant's computer that ostensibly had been electronically signed by such supervisor; the latter time sheets contained the names of fictitious employees. 7 A-1028-14T3 Eynon showed such time sheets to the supervisor, who disclaimed either creating or signing the sheets. Eynon spoke to other supervisors about time sheets found in defendant's computer that appeared to be electronically signed by them. Each disavowed either creating or signing such time sheets. Defendant was instructed to attend a meeting with Eynon, William Stone, who was defendant's immediate supervisor, and Ruth Setzer, a human resources representative. The purpose of the meeting was to provide defendant an opportunity to explain the suspicious time sheets, following which Stone and Setzer were to determine whether to terminate defendant. Although defendant had never exhibited violence, consistent with the practice at Rich Products, the company arranged for a police officer to be at the plant during the meeting, in the event defendant were terminated and became agitated. During the meeting, Eynon asked defendant about the time sheets, as well as other evidence indicating he had not only billed Express for the services of phantom employees, but also Ameritemps, another employment agency. Like Express, Ameritemps was not approved by Agile. Initially, defendant denied any wrongdoing. However, toward the end of the meeting, the police officer poked his head in the door and asked to speak to a supervisor. Eynon briefly left the room and, when he returned, 8 A-1028-14T3 defendant asked to speak privately to Stone and Setzer. Eynon again left the room. When Eynon returned, defendant admitted he created all of the time sheets that included the phantom employees, and affixed the supervisors' electronic signatures to such sheets. In addition, he admitted either he or Cartagena cashed and retained the proceeds of the paychecks Express or Ameritemps prepared for the fictitious employees. After the meeting, defendant was terminated and escorted by Stone to his vehicle. Eynon calculated the cost to Rich Products for the fraudulent billings was in excess of $391,000. Defendant testified. Among other things, he asserted Cartagena's testimony about how she and defendant defrauded the company was false. He claimed he had never affixed any electronic signatures on time sheets, and that he only confessed to Eynon, Stone, and Setzer to the alleged wrongdoing in a desperate attempt to avoid arrest. Specifically, defendant testified that after Eynon re- entered the room after speaking with the police officer, Eynon commented that once he turned the matter over to the authorities, there was nothing further he could do for him. Defendant assumed Eynon was referring to turning defendant over to the police officer. Therefore, defendant determined to tell 9 A-1028-14T3 those in the meeting "whatever they needed to hear so I could get out of there, not get locked up[,] and go home to my family." He believed he faced nothing more serious than termination for "blindly signing some of the invoices" without having reviewed them, and "if I told them what they wanted to hear that I would just be fired and . . . that would be the end of it." II On appeal, defendant asserts the following contentions for our consideration. POINT I – THE TRIAL COURT COMMITTED ERROR BY DENYING THE DEFENDANT'S MOTION TO SUPPRESS HIS STATEMENTS TO HIS SUPERVISORS DURING HIS MEETING WITH THEM. POINT II – THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY DENYING THE DEFENDANT'S MOTION TO DISMISS THE INDICTMENT ON DOUBLE JEOPARDY GROUNDS. POINT III – THE TRIAL COURT COMMITTED ERROR WHEN IT DENIED DEFENDANT'S REQUEST TO CROSS EXAMINE ERIC EYNON ON THE SUBJECT MATTER OF OTHER ALLEGED FINANCIAL LOSSES BY [THE PLANT] BECAUSE THE RESTRICTION ON CROSS EXAMINATION VIOLATED THE DEFENDANT'S SIXTH AMENDMENT RIGHTS. POINT IV – THE TRIAL COURT COMMITTED ERROR BY PERMITTING THE STATE'S WITNESS, TERESA GRUSCHKE, TO TESTIFY ON AN ISSUE THAT WAS SOLELY WITHIN THE PROVINCE OF THE JURY OVER THE OBJECTION OF THE DEFENSE COUNSEL. POINT V – THE JURY'S VERDICT FINDING THE DEFENDANT GUILTY OF THE COUNTS IN THE 10 A-1028-14T3 INDICTMENT REGARDING AMERITEMPS WAS AGAINST THE WEIGHT OF THE EVIDENCE. POINT VI – THE DEFENDANT'S SENTENCE WAS EXCESSIVE. POINT VII – THE COURT COMMITTED ERROR BY IMPOSING RESTITUTION WITHOUT AFFORDING THE DEFENDANT A HEARING, AND ALTERNATIVELY, THE RESTITUTION ORDERED WAS EXCESSIVE IN LIGHT OF THE DEFENDANT'S INABILITY TO PAY. POINT VII – THE TRIAL COURT COMMITTED ERROR WHEN IT DENIED THE DEFEDANT'S PRO SE MOTION TO CHANGE HIS SENTENCE UNDER R. 3:21- 10(b)(2). We address these points seriatim. A In his first argument point, defendant contends the trial court erred when, following a suppression hearing, it denied his motion to suppress the confession made to Eynon, Stone, and Setzer. As he testified during the trial, defendant argues he only confessed after he became aware there was a police officer in the building. At the suppression hearing, defendant claimed the presence of the police officer constituted a form of psychological coercion that induced him to render an involuntarily confession. During the suppression hearing, defendant conceded the meeting was "professional and matter of fact" and that Eynon, the only one who asked him questions, never raised his voice or "got in [his] face." At all times, defendant was free to leave 11 A-1028-14T3 the room. However, when the police officer opened the door to the conference room, stuck his head in, and asked to speak to a supervisor, defendant assumed the officer was there to arrest him. Defendant did not see the officer before or after he poked his head in the room. Defendant asked Eynon to confirm his suspicion. Eynon replied that if defendant helped Eynon, then Eynon could help him. Although no one stated defendant was going to be arrested, defendant concluded from Eynon's comment that if he did not help Eynon "get to the bottom of this matter," then the police were going to arrest him. Therefore, defendant fabricated and provided a confession believing that, if he did so, he would not be arrested, but none of his admissions was truthful. The trial court found defendant's claim he was compelled to fabricate an inculpatory statement because he feared the prospect of immediate arrest, and . . . believed that by confessing he would be able to leave the plant without being arrested . . . preposterous. Equally unbelievable [is] defendant's assertion . . . his statements made after the policeman's knock on the door were false. . . The momentary presence of the police officer may have heightened his awareness of the seriousness of the matter, but it hardly served to coerce him. If mere presence of a police officer constitutes coercion, then any statement obtained by the police must be deemed involuntary. The court is satisfied beyond a reasonable doubt that defendant's statements were made 12 A-1028-14T3 voluntarily and are admissible in evidence. Our review of a trial court's factual findings in support of granting or denying a motion to suppress is deferential; specifically, our review is limited to determining whether such "findings are supported by sufficient credible evidence in the record." State v. Gamble, 218 N.J. 412, 424 (2014). We may not reverse a court's findings of fact unless they are clearly erroneous or mistaken. State v. S.S., 229 N.J. 360, 380-81 (2017). However, we review issues of law de novo. Gamble, 218 N.J. at 425. "[A]ny statements made by the accused, whether to the police or to a private person, are admissible [only if they are] made 'freely, voluntarily, and without compulsion or inducement of any sort.'" State v. Kelly, 61 N.J. 283, 293-94 (1972) (citation omitted). "Confessions obtained through undue compulsion or coercion are considered involuntary and, therefore, unreliable." State v. Cook, 179 N.J. 533, 560 (2004). "At the root of the inquiry is whether a suspect's will has been overborne . . . ." State v. Presha, 163 N.J. 304, 313 (1998). The court must "assess the totality of circumstances surrounding" the statement, including the suspect's "age, education and intelligence," the "length of detention, whether 13 A-1028-14T3 the questioning was repeated and prolonged in nature and whether physical punishment or mental exhaustion was involved." Ibid. (quoting State v. Miller, 76 N.J. 392, 402 (1978)). Psychological ploys such as "playing on the suspect's sympathies" are not inherently coercive. State v. Galloway, 133 N.J. 631, 654-56 (1993) (citing Miller v. Fenton, 796 F.2d 598, 605 (3d Cir. 1986)). The test is whether the investigator's questions and comments "were so manipulative or coercive that they deprived [the defendant] of his ability to make an unconstrained, autonomous decision to confess." State v. DiFrisco, 118 N.J. 253, 257 (1990) (citation omitted). The case law has "typically required a showing of very substantial psychological pressure" and "the fact that [the suspect] was distressed and emotional is not by itself sufficient to render his confession involuntary." Galloway, 133 N.J. at 656-57. We defer, as we must, to the trial court's factual finding that defendant's assertion his will was overborne by the presence of the police, causing him to capitulate and confess, was unworthy of belief. The court's finding is supported by sufficient credible evidence and, therefore, we are without authority to reverse its findings of fact. We fail to detect any evidence "substantial psychological pressure" was applied or that any of Eynon's questions were so manipulative they deprived 14 A-1028-14T3 defendant of his ability to make an "unconstrained, autonomous decision to confess." DiFrisco, 118 N.J. at 257. Because there is no evidence defendant's confession was involuntary, we find no reason to disturb the trial court's conclusion the confession was admissible. B Defendant next contends the court erred when it denied his motion to dismiss the indictment on double jeopardy grounds. Briefly, after a jury was impaneled and sworn but before opening statements were delivered, defendant moved to suppress defendant's confession. Given the factual questions involved, an evidentiary hearing was necessary. However, because the unavailability of a witness was going to elongate completing the hearing, compounded by the fact defense counsel intended to take two, week-long vacations in the upcoming weeks, the court suggested it declare a mistrial and select a new jury at a later date. The record is clear defendant agreed to the court's suggestion and the court then declared a mistrial. The double jeopardy clauses of the United States and New Jersey Constitutions protect a defendant from repeated prosecutions for the same offense. State v. Torres, 328 N.J. Super. 77, 85 (App. Div. 2000). In the case of a trial by jury, "jeopardy attaches after the jury is impaneled and sworn." 15 A-1028-14T3 State v. Veney, 409 N.J. Super. 368, 380 (App. Div. 2009) (quoting State v. Allah, 170 N.J. 269, 279 (2002)). Notwithstanding, "a trial judge may declare a mistrial and discharge a jury without foreclosing the defendant's reprosecution on the same charges if the mistrial was declared at the request of or with the acquiescence of the defendant." State v. Dunns, 266 N.J. Super. 349, 362-63 (App. Div. 1993)(emphasis added). Here, there is no question but that defendant acquiesced in the court's suggestion – necessitated by defendant's last- minute request for a suppression hearing and his counsel's vacation schedule – to order a mistrial. We discern no basis to reverse the trial court's decision to declare a mistrial under these factual circumstances. C Defendant contends the court erred when it barred defendant from cross-examining Eynon about an audit he conducted to determine if yet a third temporary employment agency, Integrity Staffing (Integrity), was used to defraud Rich Products. Defendant was not charged with any offense pertaining to Integrity, but he asserted he should have been permitted to cross-examine Eynon on the audit, claiming such examination would have yielded evidence pertaining to Eynon's credibility. 16 A-1028-14T3 During the lengthy colloquy between the trial court and counsel on this issue, defendant did not identify the specific connection between Integrity and another scheme to defraud the company. However, defendant indicated that, despite the fact the temporary workers from Integrity had to punch in at the beginning and punch out at the end of a shift, time sheets containing the names of fictitious workers were sent to Integrity. Although not well articulated, we discern from defendant's argument that Eynon's audit indicated someone other than defendant may have been creating and forwarding false time sheets to certain agencies. The court permitted defendant to cross-examine Eynon on the fact there were: two separate systems in place, one for Ameritemps and Express Personnel[,] and another one for Integrity. Under Express Personnel and Ameritemps, time records were kept on written documents kept by supervisors at Rich Products. With respect to Integrity's temporary employees, they punched in on a clock. And despite the fact that there were two systems, frauds were committed in – under both systems. The defense argues that the State is suggesting to the jury that only [defendant] could have committed the frauds because he signed the time records. Yet, the defense argues that that could not be so because clearly there were frauds committed under two systems, one of which – under one of which he had no control. The court believes the jury has the right to know that. 17 A-1028-14T3 What the court did not permit was cross-examination on the fact a separate audit with respect to Integrity was prepared and the details about such audit, finding such evidence too collateral and confusing, and that the probative value of such examination would be outweighed by the risk of undue prejudice. We agree. We apply a deferential standard of review to a trial court's decision to limit the scope of cross-examination. "[T]he precise parameters of cross-examination are . . . left to the trial court's discretion . . . ." State v. Simon Family Enters., 367 N.J. Super. 242, 257 (App. Div. 2004). "We will not interfere with the trial judge's authority to control the scope of cross-examination 'unless clear error and prejudice are shown.'" State v. Messino, 378 N.J. Super. 559, 583 (App. Div. 2005) (citation omitted). We are not persuaded the trial court abused its discretion when it precluded defendant from questioning Eynon about the audit pertaining to Integrity. Defendant was not charged with any crime that in any way pertained to this agency, and there was no indication - or even any proffer by defendant – that evidence concerning the audit itself would have provided information material to Eynon's credibility. See State v. Engel, 249 N.J. Super. 336, 375 (App. Div. 1991) (stating "a 18 A-1028-14T3 cross-examiner does not have a license to roam at will under the guise of impeaching credibility."). D Defendant complains the court permitted defendant's assistant, who reviewed and reconciled the invoices from the agencies with the timesheets, to express the opinion during her testimony that, on one occasion, she was "skeptical" whether all of the temporary employees on the worksheets were real. Defendant argues whether there were fictitious employees listed on the invoices was a question of fact to be determined solely by the jury. We decline to dwell on the merits of this contention. Given the surfeit of evidence against defendant, even if the admission of this testimony were error, it was clearly harmless. See R. 2:10-2. Defendant also maintains the court erred when it denied his motion for a new trial, arguing there was insufficient evidence he committed any of the offenses pertaining to Ameritemps. We disagree. Defendant confessed to including fictitious employees on the time sheets submitted to Ameritemps. E Defendant contends his sentence was excessive. After reviewing the record and the applicable legal principles, with 19 A-1028-14T3 the exception of one issue, we conclude his arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). The one issue that merits attention is the sentence imposed on counts three and four, each of which was for financial facilitation of criminal activity, N.J.S.A. 2C:21—25(b)(2). Specifically, the court ordered defendant to serve the sentence on these two counts consecutively. In its findings, the trial court stated N.J.S.A. 2C:21-27(c) requires that, if there is more than one conviction for this particular offense, each conviction must be served consecutively to the other. In our view, the statute does not mandate that result. N.J.S.A. 2C:21-27(c) provides in pertinent part: [T]he sentence imposed upon a conviction of any offense defined in section 3 of P.L. 1994, c. 121 (C. 2C:21-25) shall be ordered to be served consecutively to that imposed for a conviction of any offense constituting the criminal activity involved or from which the property was derived. Nothing in P.L. 1994, c. 121 (C. 2C:21-23 et seq.) shall be construed in any way to preclude or limit a prosecution or conviction for any other offense defined in this Title or any other criminal law of this State. Clearly N.J.S.A. 2C:21-27(c) does not require two or more convictions for financial facilitation of criminal activity to be served consecutively. To be sure, a sentence imposed for the conviction of this offense must be served consecutively to that 20 A-1028-14T3 imposed for the conviction of any offense constituting the criminal activity involved or from which the property was derived. Ibid. However, the statute does not also mandate multiple convictions for financial facilitation of criminal activity be served consecutively, as well. Because in its findings the court stated N.J.S.A. 2C:21- 27(c) compelled it to impose consecutive sentences when there were two or more convictions for financial facilitation of criminal activity, we must remand this matter for the trial court to reconsider the sentences on counts three and four. By ordering this remand, we do not mean to suggest we approve or disapprove of any particular outcome. F Defendant next argues the court erred when it compelled him to pay restitution without holding an ability to pay hearing. The court ordered defendant to pay restitution in the total amount of $391,660, and to pay this sum at the rate $100 per month, commencing sixty days from his release from prison. In his brief, defendant claims the court ordered him to pay $100 per week, but the amount he is to pay is $100 per month. A court shall "sentence a defendant to pay restitution . . . if (1) [t]he victim . . . suffered a loss; and (2) [t]he defendant is able to pay or, given a fair opportunity, will be 21 A-1028-14T3 able to pay restitution." N.J.S.A. 2C:44-2(b)(1), -(2). When establishing the restitution amount and repayment schedule, "the court shall take into account all financial resources of the defendant, including the defendant's likely future earnings, and shall set the amount of restitution so as to provide the victim with the fullest compensation for loss that is consistent with the defendant's ability to pay." N.J.S.A. 2C:44-2(c)(2). An order of restitution is discretionary and entitled to our deference. State v. Harris, 70 N.J. 586, 595 (1976). Further, the law recognizes that any "evaluation is necessarily imprecise because it contemplates an examination of the future ability to pay if the defendant currently does not have financial resources." State v. Newman, 132 N.J. 159, 169 (1993). If "there is a good faith dispute over the amount of the loss or defendant's ability to pay, the trial court[,] as a matter of defendant's due process entitlement, must hold a hearing on the issue, the character of which should be appropriate to the nature of the question presented." State v. Jamiolkoski, 272 N.J. Super. 326, 329 (App. Div. 1994). However, if there is no dispute over either issue, a separate hearing on restitution is unnecessary. State v. Orji, 277 N.J. Super. 582, 589-90 (App. Div. 1994). 22 A-1028-14T3 Here, there is no disagreement over the restitution amount. There is also no dispute defendant's ability to pay will be compromised. The court specifically found defendant has no assets, and his ability to earn income will be limited when he emerges from prison because of his present convictions, deteriorating health1, age2, and family obligations. Because the limitations upon defendant's ability to pay are not in question, nothing meaningful would have been achieved by holding an ability to pay hearing. Mindful defendant wrongfully took a substantial sum from defendant, but recognizing defendant's ability to pay will be limited in the future, the court ordered defendant to pay the very modest sum of $100 per month, or $23.07 per week, after his release from prison. The nominal sum ordered likely will be manageable even under the tightest of budgets. Accordingly, given there were no material facts in dispute and the court did in fact assume defendant will have very limited financial resources, we cannot say the trial court mistakenly exercised its discretion when it failed to conduct an ability to pay hearing and instead ordered defendant to pay a very limited sum toward restitution. 1 There was evidence defendant suffers from scleroderma. 2 Defendant was forty-three years of age when sentenced. 23 A-1028-14T3 G Defendant's last point pertains to his separate appeal (A- 2838-14), in which he asserts the court erred when it denied his motion to reduce his sentence. In that motion, filed approximately eight months after he was sentenced, defendant claimed the condition from which he suffers, scleroderma, had reduced the ability of his lungs to absorb oxygen. He stated he found a medical facility that had successfully performed lung transplants in patients with his particular condition and that he wanted his sentence reduced so he could go forward with this procedure. The court denied his motion on the ground defendant had failed to provide any proof he was a candidate for a lung transplant. Having considered the record, we are satisfied none of defendant's arguments merits discussion in a written opinion. R. 2:11-3(e)(2). We further note that by operation of Rule 3:21-10(b), the order denying defendant's motion was without prejudice. See R. 3:21-10(b). Pursuant to this rule, a defendant may file a motion and an order may be entered at any time "(1) changing a custodial sentence to permit entry of the defendant into a custodial or non-custodial treatment or rehabilitation program for drug or alcohol abuse, or (2) amending a custodial sentence to permit the release of a 24 A-1028-14T3 defendant because of illness or infirmity of the defendant[.]" Should defendant's medical circumstances change, he can file a motion seeking relief pursuant to this rule. Finally, the first page of the judgment of conviction states in one portion that the "Total Custodial Term" is "005 years." On remand, the court shall correct the judgment to accurately reflect the term imposed. In summary, in appeal A-1028-14, we affirm the convictions, and vacate the sentences imposed for counts three and four and remand for the resentencing of these counts in accordance with this opinion. Further, we direct the judgment of conviction be amended to correctly reflect defendant's total custodial term. As for appeal A-2838-14, we affirm. We do not retain jurisdiction. 25 A-1028-14T3
Date: January 31, 2018
Docket Number: a1028-14 PER CURIAM These back-to-back appeals have been consolidated for purposes of this opinion. In one appeal (A-1028-14), defendant Rory T. Wood challenges his convictions and sentence. In the other (A-2838-14), defendant appeals from an order denying his motion to reduce his sentence. We remand for reconsideration of the sentences imposed for financial facilitation of criminal activity, N.J.S.A. 2C:21-25(b)(2); we affirm in all other respects. Before trial, co-defendant Nancy Cartagena pled guilty to third-degree forgery, N.J.S.A. 2C:21-1. Defendant did not plead guilty and, in December 2013, was convicted by a jury of two counts of second-degree theft by deception, N.J.S.A. 2C:20-4(a); three counts of second-degree financial facilitation of criminal activity, N.J.S.A. 2C:21-25(b)(2); two counts of second-degree conspiracy to commit theft, N.J.S.A. 2C:5-2(a); third-degree uttering a forged instrument, N.J.S.A. 2C:21-1(a)(3); and fourth-degree forgery, N.J.S.A. 2C:21-1(a)(2). Defendant's motion for a new trial was denied. In February 2014, defendant was sentenced in the aggregate to fifteen years of imprisonment. In addition to imposing various penalties and assessments, defendant was ordered to pay restitution in the amount of $391,660. 2 A-1028-14T3 I Numerous witnesses testified during this fifteen-day trial. We summarize only the key evidence that puts the issues on appeal in context. The evidence that pertains to defendant's challenges to pretrial rulings is recounted where we address such rulings below. In 2007, defendant was a plant manager for one of Rich Products' plants in New Jersey. This company, headquartered in Buffalo, makes frozen food. On average, the plant in which defendant worked employed 175 full-time and approximately seventy-five temporary employees. The temporary employees were obtained from local temporary employment agencies (agencies or agency). One of defendant's responsibilities was to obtain the temporary employees necessary to meet the plant's production schedule each week. After such employees appeared for work at the plant, various supervisors or like personnel, which for simplicity we refer to as supervisors, were tasked with creating and maintaining time sheets, on which the daily hours of each employee from each agency were recorded. The supervisors had the option of either filling out a time sheet by hand or typing the information onto a time sheet in the supervisor's computer. They also had the choice of signing a time sheet by hand or 3 A-1028-14T3 electronically; almost all filled out and signed their time sheets by hand. At the end of the week, the time sheets were sent to each agency that had supplied temporary workers. From such time sheets the agency prepared and forwarded an invoice to defendant. Staff at the plant reconciled each invoice with the corresponding timesheet and, if the invoices appeared to be in order, they were given to defendant for his review and final approval. Defendant testified he rarely reviewed and merely signed each invoice, indicating his approval of its contents. He then sent the invoices to headquarters, where the staff prepared and sent a check to the appropriate agency in satisfaction of each invoice. At that point, the agency prepared the paychecks, which were delivered to defendant for distribution to the temporary employees. One of the conditions of co-defendant Cartagena's plea agreement was that she testify truthfully at defendant's trial. She testified as follows. She worked in one of the temporary agencies used by the plant. She and defendant frequently interacted and, over time, became good friends. They often discussed their respective financial and other problems and got together outside of work. 4 A-1028-14T3 After Cartagena lost her job in one of the agencies, defendant helped her secure a position in Express Personnel (Express), another temporary employment agency used by the plant. In the summer of 2007, she and defendant devised and implemented a scheme in which defendant created time sheets containing the names of fictitious workers, which he forwarded to Express. Consistent with the practice between the plant and the various employment agencies, Express in turn prepared an invoice from the timesheets, which was forwarded to defendant and ultimately sent to headquarters for payment. After Express received payment on an invoice, it prepared paychecks to forward to defendant for distribution to the employees listed on the subject timesheets. However, before those paychecks were forwarded to defendant, Cartagena intercepted and kept some of the checks made out to the fictitious employees. The checks Cartagena did not intercept were forwarded to defendant or he picked up the remaining paychecks at the agency. Defendant retained the checks made payable to the fictitious employees, and arranged for the distribution of the checks made payable to the actual temporary employees. Defendant either cashed or deposited the checks he retained into a bank account he maintained. 5 A-1028-14T3 In early 2008, Cartagena was terminated from Express, but defendant continued the scheme of receiving paychecks from Express for fictitious workers. Defendant offered to help Cartagena get a job at Ameritemps, another local agency, but she declined, telling him she was reluctant to continue their illegal activities. Months later, Cartagena expressed to defendant her fear their scheme would be discovered. He said he would never implicate her, recommended she move to Puerto Rico, and mentioned he had obtained the documents necessary for his family to move to the Dominican Republic. Instead, Cartagena contacted an attorney, and subsequently reported their illegal conduct to the Burlington County Prosecutor's Office. Eric Eynon, a certified public accountant and fraud examiner employed by Rich Products, testified about an audit he conducted from Buffalo after the Prosecutor's Office contacted the company to advise it of Cartagena's revelations. That audit included a meeting with defendant just days later, during which defendant confessed to his participation in the scheme. Among other things, in his review of the plant's records, Eynon noted the plant spent an inordinately high amount of money on temporary workers. He also noticed the plant was using Express, which had not been approved by "Agile One" (Agile), which he 6 A-1028-14T3 characterized as a "red flag." Agile is a third-party agency that vets local temporary employment agencies to determine if they meet Rich Products' standards. In addition, workers from agencies approved by Agile are required to punch in and punch out at the beginning and end of each shift at the plant, using a personal identifying number when doing so. Eynon noted that, although such system did not provide complete protection against the kind of fraudulent practice that occurred in this matter, it provided some. Just days after he commenced his audit, Eynon went to the plant and interviewed various supervisors, managers, and other personnel. When defendant was not present, Eynon gained access to his office and laptop. He discovered defendant had been issuing time sheets from his computer that appeared as though they had been electronically signed by various supervisors in the plant. Eynon interviewed several supervisors. One had saved a hard copy of all of the time sheets he had created and signed within the previous fourteen months. All of his time sheets were signed by hand. Eynon compared those time sheets with the ones generated from defendant's computer that ostensibly had been electronically signed by such supervisor; the latter time sheets contained the names of fictitious employees. 7 A-1028-14T3 Eynon showed such time sheets to the supervisor, who disclaimed either creating or signing the sheets. Eynon spoke to other supervisors about time sheets found in defendant's computer that appeared to be electronically signed by them. Each disavowed either creating or signing such time sheets. Defendant was instructed to attend a meeting with Eynon, William Stone, who was defendant's immediate supervisor, and Ruth Setzer, a human resources representative. The purpose of the meeting was to provide defendant an opportunity to explain the suspicious time sheets, following which Stone and Setzer were to determine whether to terminate defendant. Although defendant had never exhibited violence, consistent with the practice at Rich Products, the company arranged for a police officer to be at the plant during the meeting, in the event defendant were terminated and became agitated. During the meeting, Eynon asked defendant about the time sheets, as well as other evidence indicating he had not only billed Express for the services of phantom employees, but also Ameritemps, another employment agency. Like Express, Ameritemps was not approved by Agile. Initially, defendant denied any wrongdoing. However, toward the end of the meeting, the police officer poked his head in the door and asked to speak to a supervisor. Eynon briefly left the room and, when he returned, 8 A-1028-14T3 defendant asked to speak privately to Stone and Setzer. Eynon again left the room. When Eynon returned, defendant admitted he created all of the time sheets that included the phantom employees, and affixed the supervisors' electronic signatures to such sheets. In addition, he admitted either he or Cartagena cashed and retained the proceeds of the paychecks Express or Ameritemps prepared for the fictitious employees. After the meeting, defendant was terminated and escorted by Stone to his vehicle. Eynon calculated the cost to Rich Products for the fraudulent billings was in excess of $391,000. Defendant testified. Among other things, he asserted Cartagena's testimony about how she and defendant defrauded the company was false. He claimed he had never affixed any electronic signatures on time sheets, and that he only confessed to Eynon, Stone, and Setzer to the alleged wrongdoing in a desperate attempt to avoid arrest. Specifically, defendant testified that after Eynon re- entered the room after speaking with the police officer, Eynon commented that once he turned the matter over to the authorities, there was nothing further he could do for him. Defendant assumed Eynon was referring to turning defendant over to the police officer. Therefore, defendant determined to tell 9 A-1028-14T3 those in the meeting "whatever they needed to hear so I could get out of there, not get locked up[,] and go home to my family." He believed he faced nothing more serious than termination for "blindly signing some of the invoices" without having reviewed them, and "if I told them what they wanted to hear that I would just be fired and . . . that would be the end of it." II On appeal, defendant asserts the following contentions for our consideration. POINT I – THE TRIAL COURT COMMITTED ERROR BY DENYING THE DEFENDANT'S MOTION TO SUPPRESS HIS STATEMENTS TO HIS SUPERVISORS DURING HIS MEETING WITH THEM. POINT II – THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY DENYING THE DEFENDANT'S MOTION TO DISMISS THE INDICTMENT ON DOUBLE JEOPARDY GROUNDS. POINT III – THE TRIAL COURT COMMITTED ERROR WHEN IT DENIED DEFENDANT'S REQUEST TO CROSS EXAMINE ERIC EYNON ON THE SUBJECT MATTER OF OTHER ALLEGED FINANCIAL LOSSES BY [THE PLANT] BECAUSE THE RESTRICTION ON CROSS EXAMINATION VIOLATED THE DEFENDANT'S SIXTH AMENDMENT RIGHTS. POINT IV – THE TRIAL COURT COMMITTED ERROR BY PERMITTING THE STATE'S WITNESS, TERESA GRUSCHKE, TO TESTIFY ON AN ISSUE THAT WAS SOLELY WITHIN THE PROVINCE OF THE JURY OVER THE OBJECTION OF THE DEFENSE COUNSEL. POINT V – THE JURY'S VERDICT FINDING THE DEFENDANT GUILTY OF THE COUNTS IN THE 10 A-1028-14T3 INDICTMENT REGARDING AMERITEMPS WAS AGAINST THE WEIGHT OF THE EVIDENCE. POINT VI – THE DEFENDANT'S SENTENCE WAS EXCESSIVE. POINT VII – THE COURT COMMITTED ERROR BY IMPOSING RESTITUTION WITHOUT AFFORDING THE DEFENDANT A HEARING, AND ALTERNATIVELY, THE RESTITUTION ORDERED WAS EXCESSIVE IN LIGHT OF THE DEFENDANT'S INABILITY TO PAY. POINT VII – THE TRIAL COURT COMMITTED ERROR WHEN IT DENIED THE DEFEDANT'S PRO SE MOTION TO CHANGE HIS SENTENCE UNDER R. 3:21- 10(b)(2). We address these points seriatim. A In his first argument point, defendant contends the trial court erred when, following a suppression hearing, it denied his motion to suppress the confession made to Eynon, Stone, and Setzer. As he testified during the trial, defendant argues he only confessed after he became aware there was a police officer in the building. At the suppression hearing, defendant claimed the presence of the police officer constituted a form of psychological coercion that induced him to render an involuntarily confession. During the suppression hearing, defendant conceded the meeting was "professional and matter of fact" and that Eynon, the only one who asked him questions, never raised his voice or "got in [his] face." At all times, defendant was free to leave 11 A-1028-14T3 the room. However, when the police officer opened the door to the conference room, stuck his head in, and asked to speak to a supervisor, defendant assumed the officer was there to arrest him. Defendant did not see the officer before or after he poked his head in the room. Defendant asked Eynon to confirm his suspicion. Eynon replied that if defendant helped Eynon, then Eynon could help him. Although no one stated defendant was going to be arrested, defendant concluded from Eynon's comment that if he did not help Eynon "get to the bottom of this matter," then the police were going to arrest him. Therefore, defendant fabricated and provided a confession believing that, if he did so, he would not be arrested, but none of his admissions was truthful. The trial court found defendant's claim he was compelled to fabricate an inculpatory statement because he feared the prospect of immediate arrest, and . . . believed that by confessing he would be able to leave the plant without being arrested . . . preposterous. Equally unbelievable [is] defendant's assertion . . . his statements made after the policeman's knock on the door were false. . . The momentary presence of the police officer may have heightened his awareness of the seriousness of the matter, but it hardly served to coerce him. If mere presence of a police officer constitutes coercion, then any statement obtained by the police must be deemed involuntary. The court is satisfied beyond a reasonable doubt that defendant's statements were made 12 A-1028-14T3 voluntarily and are admissible in evidence. Our review of a trial court's factual findings in support of granting or denying a motion to suppress is deferential; specifically, our review is limited to determining whether such "findings are supported by sufficient credible evidence in the record." State v. Gamble, 218 N.J. 412, 424 (2014). We may not reverse a court's findings of fact unless they are clearly erroneous or mistaken. State v. S.S., 229 N.J. 360, 380-81 (2017). However, we review issues of law de novo. Gamble, 218 N.J. at 425. "[A]ny statements made by the accused, whether to the police or to a private person, are admissible [only if they are] made 'freely, voluntarily, and without compulsion or inducement of any sort.'" State v. Kelly, 61 N.J. 283, 293-94 (1972) (citation omitted). "Confessions obtained through undue compulsion or coercion are considered involuntary and, therefore, unreliable." State v. Cook, 179 N.J. 533, 560 (2004). "At the root of the inquiry is whether a suspect's will has been overborne . . . ." State v. Presha, 163 N.J. 304, 313 (1998). The court must "assess the totality of circumstances surrounding" the statement, including the suspect's "age, education and intelligence," the "length of detention, whether 13 A-1028-14T3 the questioning was repeated and prolonged in nature and whether physical punishment or mental exhaustion was involved." Ibid. (quoting State v. Miller, 76 N.J. 392, 402 (1978)). Psychological ploys such as "playing on the suspect's sympathies" are not inherently coercive. State v. Galloway, 133 N.J. 631, 654-56 (1993) (citing Miller v. Fenton, 796 F.2d 598, 605 (3d Cir. 1986)). The test is whether the investigator's questions and comments "were so manipulative or coercive that they deprived [the defendant] of his ability to make an unconstrained, autonomous decision to confess." State v. DiFrisco, 118 N.J. 253, 257 (1990) (citation omitted). The case law has "typically required a showing of very substantial psychological pressure" and "the fact that [the suspect] was distressed and emotional is not by itself sufficient to render his confession involuntary." Galloway, 133 N.J. at 656-57. We defer, as we must, to the trial court's factual finding that defendant's assertion his will was overborne by the presence of the police, causing him to capitulate and confess, was unworthy of belief. The court's finding is supported by sufficient credible evidence and, therefore, we are without authority to reverse its findings of fact. We fail to detect any evidence "substantial psychological pressure" was applied or that any of Eynon's questions were so manipulative they deprived 14 A-1028-14T3 defendant of his ability to make an "unconstrained, autonomous decision to confess." DiFrisco, 118 N.J. at 257. Because there is no evidence defendant's confession was involuntary, we find no reason to disturb the trial court's conclusion the confession was admissible. B Defendant next contends the court erred when it denied his motion to dismiss the indictment on double jeopardy grounds. Briefly, after a jury was impaneled and sworn but before opening statements were delivered, defendant moved to suppress defendant's confession. Given the factual questions involved, an evidentiary hearing was necessary. However, because the unavailability of a witness was going to elongate completing the hearing, compounded by the fact defense counsel intended to take two, week-long vacations in the upcoming weeks, the court suggested it declare a mistrial and select a new jury at a later date. The record is clear defendant agreed to the court's suggestion and the court then declared a mistrial. The double jeopardy clauses of the United States and New Jersey Constitutions protect a defendant from repeated prosecutions for the same offense. State v. Torres, 328 N.J. Super. 77, 85 (App. Div. 2000). In the case of a trial by jury, "jeopardy attaches after the jury is impaneled and sworn." 15 A-1028-14T3 State v. Veney, 409 N.J. Super. 368, 380 (App. Div. 2009) (quoting State v. Allah, 170 N.J. 269, 279 (2002)). Notwithstanding, "a trial judge may declare a mistrial and discharge a jury without foreclosing the defendant's reprosecution on the same charges if the mistrial was declared at the request of or with the acquiescence of the defendant." State v. Dunns, 266 N.J. Super. 349, 362-63 (App. Div. 1993)(emphasis added). Here, there is no question but that defendant acquiesced in the court's suggestion – necessitated by defendant's last- minute request for a suppression hearing and his counsel's vacation schedule – to order a mistrial. We discern no basis to reverse the trial court's decision to declare a mistrial under these factual circumstances. C Defendant contends the court erred when it barred defendant from cross-examining Eynon about an audit he conducted to determine if yet a third temporary employment agency, Integrity Staffing (Integrity), was used to defraud Rich Products. Defendant was not charged with any offense pertaining to Integrity, but he asserted he should have been permitted to cross-examine Eynon on the audit, claiming such examination would have yielded evidence pertaining to Eynon's credibility. 16 A-1028-14T3 During the lengthy colloquy between the trial court and counsel on this issue, defendant did not identify the specific connection between Integrity and another scheme to defraud the company. However, defendant indicated that, despite the fact the temporary workers from Integrity had to punch in at the beginning and punch out at the end of a shift, time sheets containing the names of fictitious workers were sent to Integrity. Although not well articulated, we discern from defendant's argument that Eynon's audit indicated someone other than defendant may have been creating and forwarding false time sheets to certain agencies. The court permitted defendant to cross-examine Eynon on the fact there were: two separate systems in place, one for Ameritemps and Express Personnel[,] and another one for Integrity. Under Express Personnel and Ameritemps, time records were kept on written documents kept by supervisors at Rich Products. With respect to Integrity's temporary employees, they punched in on a clock. And despite the fact that there were two systems, frauds were committed in – under both systems. The defense argues that the State is suggesting to the jury that only [defendant] could have committed the frauds because he signed the time records. Yet, the defense argues that that could not be so because clearly there were frauds committed under two systems, one of which – under one of which he had no control. The court believes the jury has the right to know that. 17 A-1028-14T3 What the court did not permit was cross-examination on the fact a separate audit with respect to Integrity was prepared and the details about such audit, finding such evidence too collateral and confusing, and that the probative value of such examination would be outweighed by the risk of undue prejudice. We agree. We apply a deferential standard of review to a trial court's decision to limit the scope of cross-examination. "[T]he precise parameters of cross-examination are . . . left to the trial court's discretion . . . ." State v. Simon Family Enters., 367 N.J. Super. 242, 257 (App. Div. 2004). "We will not interfere with the trial judge's authority to control the scope of cross-examination 'unless clear error and prejudice are shown.'" State v. Messino, 378 N.J. Super. 559, 583 (App. Div. 2005) (citation omitted). We are not persuaded the trial court abused its discretion when it precluded defendant from questioning Eynon about the audit pertaining to Integrity. Defendant was not charged with any crime that in any way pertained to this agency, and there was no indication - or even any proffer by defendant – that evidence concerning the audit itself would have provided information material to Eynon's credibility. See State v. Engel, 249 N.J. Super. 336, 375 (App. Div. 1991) (stating "a 18 A-1028-14T3 cross-examiner does not have a license to roam at will under the guise of impeaching credibility."). D Defendant complains the court permitted defendant's assistant, who reviewed and reconciled the invoices from the agencies with the timesheets, to express the opinion during her testimony that, on one occasion, she was "skeptical" whether all of the temporary employees on the worksheets were real. Defendant argues whether there were fictitious employees listed on the invoices was a question of fact to be determined solely by the jury. We decline to dwell on the merits of this contention. Given the surfeit of evidence against defendant, even if the admission of this testimony were error, it was clearly harmless. See R. 2:10-2. Defendant also maintains the court erred when it denied his motion for a new trial, arguing there was insufficient evidence he committed any of the offenses pertaining to Ameritemps. We disagree. Defendant confessed to including fictitious employees on the time sheets submitted to Ameritemps. E Defendant contends his sentence was excessive. After reviewing the record and the applicable legal principles, with 19 A-1028-14T3 the exception of one issue, we conclude his arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). The one issue that merits attention is the sentence imposed on counts three and four, each of which was for financial facilitation of criminal activity, N.J.S.A. 2C:21—25(b)(2). Specifically, the court ordered defendant to serve the sentence on these two counts consecutively. In its findings, the trial court stated N.J.S.A. 2C:21-27(c) requires that, if there is more than one conviction for this particular offense, each conviction must be served consecutively to the other. In our view, the statute does not mandate that result. N.J.S.A. 2C:21-27(c) provides in pertinent part: [T]he sentence imposed upon a conviction of any offense defined in section 3 of P.L. 1994, c. 121 (C. 2C:21-25) shall be ordered to be served consecutively to that imposed for a conviction of any offense constituting the criminal activity involved or from which the property was derived. Nothing in P.L. 1994, c. 121 (C. 2C:21-23 et seq.) shall be construed in any way to preclude or limit a prosecution or conviction for any other offense defined in this Title or any other criminal law of this State. Clearly N.J.S.A. 2C:21-27(c) does not require two or more convictions for financial facilitation of criminal activity to be served consecutively. To be sure, a sentence imposed for the conviction of this offense must be served consecutively to that 20 A-1028-14T3 imposed for the conviction of any offense constituting the criminal activity involved or from which the property was derived. Ibid. However, the statute does not also mandate multiple convictions for financial facilitation of criminal activity be served consecutively, as well. Because in its findings the court stated N.J.S.A. 2C:21- 27(c) compelled it to impose consecutive sentences when there were two or more convictions for financial facilitation of criminal activity, we must remand this matter for the trial court to reconsider the sentences on counts three and four. By ordering this remand, we do not mean to suggest we approve or disapprove of any particular outcome. F Defendant next argues the court erred when it compelled him to pay restitution without holding an ability to pay hearing. The court ordered defendant to pay restitution in the total amount of $391,660, and to pay this sum at the rate $100 per month, commencing sixty days from his release from prison. In his brief, defendant claims the court ordered him to pay $100 per week, but the amount he is to pay is $100 per month. A court shall "sentence a defendant to pay restitution . . . if (1) [t]he victim . . . suffered a loss; and (2) [t]he defendant is able to pay or, given a fair opportunity, will be 21 A-1028-14T3 able to pay restitution." N.J.S.A. 2C:44-2(b)(1), -(2). When establishing the restitution amount and repayment schedule, "the court shall take into account all financial resources of the defendant, including the defendant's likely future earnings, and shall set the amount of restitution so as to provide the victim with the fullest compensation for loss that is consistent with the defendant's ability to pay." N.J.S.A. 2C:44-2(c)(2). An order of restitution is discretionary and entitled to our deference. State v. Harris, 70 N.J. 586, 595 (1976). Further, the law recognizes that any "evaluation is necessarily imprecise because it contemplates an examination of the future ability to pay if the defendant currently does not have financial resources." State v. Newman, 132 N.J. 159, 169 (1993). If "there is a good faith dispute over the amount of the loss or defendant's ability to pay, the trial court[,] as a matter of defendant's due process entitlement, must hold a hearing on the issue, the character of which should be appropriate to the nature of the question presented." State v. Jamiolkoski, 272 N.J. Super. 326, 329 (App. Div. 1994). However, if there is no dispute over either issue, a separate hearing on restitution is unnecessary. State v. Orji, 277 N.J. Super. 582, 589-90 (App. Div. 1994). 22 A-1028-14T3 Here, there is no disagreement over the restitution amount. There is also no dispute defendant's ability to pay will be compromised. The court specifically found defendant has no assets, and his ability to earn income will be limited when he emerges from prison because of his present convictions, deteriorating health1, age2, and family obligations. Because the limitations upon defendant's ability to pay are not in question, nothing meaningful would have been achieved by holding an ability to pay hearing. Mindful defendant wrongfully took a substantial sum from defendant, but recognizing defendant's ability to pay will be limited in the future, the court ordered defendant to pay the very modest sum of $100 per month, or $23.07 per week, after his release from prison. The nominal sum ordered likely will be manageable even under the tightest of budgets. Accordingly, given there were no material facts in dispute and the court did in fact assume defendant will have very limited financial resources, we cannot say the trial court mistakenly exercised its discretion when it failed to conduct an ability to pay hearing and instead ordered defendant to pay a very limited sum toward restitution. 1 There was evidence defendant suffers from scleroderma. 2 Defendant was forty-three years of age when sentenced. 23 A-1028-14T3 G Defendant's last point pertains to his separate appeal (A- 2838-14), in which he asserts the court erred when it denied his motion to reduce his sentence. In that motion, filed approximately eight months after he was sentenced, defendant claimed the condition from which he suffers, scleroderma, had reduced the ability of his lungs to absorb oxygen. He stated he found a medical facility that had successfully performed lung transplants in patients with his particular condition and that he wanted his sentence reduced so he could go forward with this procedure. The court denied his motion on the ground defendant had failed to provide any proof he was a candidate for a lung transplant. Having considered the record, we are satisfied none of defendant's arguments merits discussion in a written opinion. R. 2:11-3(e)(2). We further note that by operation of Rule 3:21-10(b), the order denying defendant's motion was without prejudice. See R. 3:21-10(b). Pursuant to this rule, a defendant may file a motion and an order may be entered at any time "(1) changing a custodial sentence to permit entry of the defendant into a custodial or non-custodial treatment or rehabilitation program for drug or alcohol abuse, or (2) amending a custodial sentence to permit the release of a 24 A-1028-14T3 defendant because of illness or infirmity of the defendant[.]" Should defendant's medical circumstances change, he can file a motion seeking relief pursuant to this rule. Finally, the first page of the judgment of conviction states in one portion that the "Total Custodial Term" is "005 years." On remand, the court shall correct the judgment to accurately reflect the term imposed. In summary, in appeal A-1028-14, we affirm the convictions, and vacate the sentences imposed for counts three and four and remand for the resentencing of these counts in accordance with this opinion. Further, we direct the judgment of conviction be amended to correctly reflect defendant's total custodial term. As for appeal A-2838-14, we affirm. We do not retain jurisdiction. 25 A-1028-14T3
STATE OF NEW JERSEY v. JOSHUA M. GAUDETTE
Date: January 31, 2018
Docket Number: a2629-15 PER CURIAM Defendants Joshua M. Gaudette and Mario Vega2 appeal from the January 8, 2016 Law Division orders denying their post-conviction motions for retesting of forensic DNA evidence. Gaudette also appeals from the denial of his motion to correct an illegal sentence. We affirm. I. Tried jointly by a jury, on January 27, 2006, defendants were found guilty of second-degree conspiracy to commit armed robbery, N.J.S.A. 2C:5-2; first-degree armed robbery, N.J.S.A. 2C:15-1; second-degree armed robbery, N.J.S.A. 2C:18-2; third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b); second- degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a); third-degree criminal restraint, N.J.S.A. 2C:13-2(a); 2 We shall sometimes collectively refer to Gaudette and Vega as defendants. 2 A-2629-15T2 and certain persons not to have weapons, N.J.S.A. 2C:39-7(b). Defendants filed motions for a new trial. The trial judge denied the motions, finding the evidence against defendants was overwhelming. The judge sentenced both defendants to an aggregate thirty-year term of imprisonment subject to the No Early Release Act, N.J.S.A. 2C:43-7.2. Defendants appealed their convictions and sentences. We affirmed the convictions, but remanded for resentencing. State v. Gaudette, No. A-6535-05 (App. Div. Feb. 23, 2009) (slip op. at 55). Our Supreme Court denied certification. State v. Vega, 200 N.J. 369 (2009); State v. Gaudette, 199 N.J. 519 (2009). On remand, the trial judge imposed the same sentences, and defendants appealed. We affirmed, and the Court denied certification. State v. Vega, No. A-5008-08 (App. Div. July 27, 2010); State v. Gaudette, No. A-5009-08 (App. Div. May 14, 2010), certif. denied, 203 N.J. 607 (2010). We also affirmed the denial of defendants' motions for post-conviction relief, and the Court denied certification. State v. Vega, No. A-5553-11 (App. Div. Dec. 30, 2013), certif. denied, 218 N.J. 276 (2014); State v. Gaudette, No. A-2790-12 (App. Div. June 23, 2015), certif. denied, 223 N.J. 404 (2015). 3 A-2629-15T2 II. The facts underlying the home invasion that was the basis for defendants' convictions are set forth in our February 23, 2009 opinion and need not be repeated here. This appeal concerns DNA testing of a bloodstain found on Vega's right boot that matched the DNA profile of the victim, R.P.3 Defendants presented an identification defense at trial. The State's expert in DNA explained the DNA process. He first extracts the DNA from cotton swabs submitted for testing, quantifies exactly how much DNA is in a solution in order to determine a target amount, puts the target amount into an amplification, looks at the copies of DNA that were amplified, and then looks for thirteen loci of the DNA to determine the contributor. The expert tested cotton swabs from R.P. and his daughter, J.P., and obtained full DNA profiles for both of them. He then tested the swab of a bloodstain on Vega's boot, compared it to R.P.'s and J.P.'s DNA profiles, and found a mixture of more than one profile, meaning there was more than one contributor to the mixture. The expert excluded J.P. as a contributor to the mixture, 3 We use initials to identify those involved in this matter in order to protect their privacy. 4 A-2629-15T2 and concluded R.P. was the major DNA profile on the bloodstain, explaining: So when you get the analysis, our anneals are read out as peak heights, there's just . . . blips so when you see the mixture, you can see that some [p]eak heights are much higher than others. So you might have some down here and some up here. And you're able to determine that those start out as a higher ratio than these when the sample was brought in. And from that, you can say that these are associated and this is unassociated so as a major profile, I was able to match [thirteen] out of [thirteen] [loci] with [R.P.] [(Emphasis added).] The expert opined within a reasonable degree of scientific certainty that the bloodstain on Vega's boot came from R.P. and "[R.P.] is identified as the source of that stain." The expert also found the mixture contained a minor DNA profile, which was "faint" and "weaker" than the other peaks he found for the major DNA profile and did not meet the recording threshold. The expert confirmed that R.P. was the source of the major DNA profile and bloodstain on Vega's boot, and an unknown contributor was the source of the minor DNA profile and bloodstain. The expert emphasized that the major DNA profile from the bloodstain matched thirteen out of thirteen loci for R.P., for a match of one in many quadrillion, and opined within a reasonable 5 A-2629-15T2 degree of scientific certainty that R.P. was the source of the major DNA profile. II. Defendants filed post-conviction motions to compel retesting of the DNA evidence. Gaudette argued there was no DNA evidence linking him to the crime, only circumstantial evidence linking him to Vega, and the perpetrators were wearing masks and no identifications were made. Both defendants argued that, although the bloodstain tested positive for the presence of blood matching R.P.'s DNA profile, the relevant DNA sample had a "faint, weak signal" and the comparison of the bloodstain with R.P.'s DNA profile was made on only "one loci to the strand[.]" Defendants posited that advancements in DNA testing since the time of the trial could lead to a more accurate and reliable result that could alter the outcome of the trial. In a written opinion, citing N.J.S.A. 2A:84A-32a, the motion judge emphasized the court should not grant a motion for DNA testing unless "the requested DNA testing result would raise a reasonable probability that if the results were favorable to the defendant, a motion for a new trial based upon newly discovered evidence would be granted." The judge found the substance on Vega's boot showed DNA that matched R.P.'s DNA profile. The judge also found that because the trial judge found "the evidence of 6 A-2629-15T2 defendants' guilt [was] 'overwhelming[,]'" defendants could not meet their burden of demonstrating a new trial should be granted. This appeal followed. ["N.J.S.A.] 2A:84A-32a(a) states that '[a]ny eligible person may make a motion before the trial court that entered the judgment of conviction for the performance of forensic DNA testing.'" State v. Armour, 446 N.J. Super. 295, 310 (App. Div.) (second alteration in original), certif. denied, 228 N.J. 239 (2016). "Both the DNA retesting statute and the regulations specifically contemplate the retesting of DNA recorded and retained pursuant to the DNA [Database and Databank Act of 1994, N.J.S.A. 53:1-20.17 to - 20.38]." Ibid. (citations omitted). "The [DNA retesting] statute applies broadly to any individual who was convicted of a crime and is currently serving a sentence." Ibid. (alteration in original) (quoting State v. Reldan, 373 N.J. Super. 396, 402 (App. Div. 2004)). The motion must be supported by an affidavit explaining the importance of the identification issue to the case, and also explaining, "in light of all the evidence," why favorable results from such testing would cause the court to grant a motion for a new trial based on newly discovered evidence. N.J.S.A. 2A:84A- 32a(a)(1)(a)-(b). 7 A-2629-15T2 The court may not grant the motion for DNA testing unless, following a hearing, the defendant establishes the following elements: (1) the evidence to be tested is available and in a condition that would permit the DNA testing that is requested in the motion; (2) the evidence to be tested has been subject to a chain of custody sufficient to establish it has not been substituted, tampered with, replaced or altered in any material aspect; (3) the identity of the defendant was a significant issue in the case; (4) the eligible person has made a prima facie showing that the evidence sought to be tested is material to the issue of the eligible person's identity as the offender; (5) the requested DNA testing result would raise a reasonable probability that if the results were favorable to the defendant, a motion for a new trial based upon newly discovered evidence would be granted. The court in its discretion may consider any evidence whether or not it was introduced at trial; (6) the evidence sought to be tested meets either of the following conditions: (a) it was not tested previously; (b) it was tested previously, but the requested DNA test would provide results that are reasonably more discriminating and probative of the identity of the offender or have a reasonable probability of contradicting prior test results; 8 A-2629-15T2 (7) the testing requested employs a method generally accepted within the relevant scientific community; and (8) the motion is not made solely for the purpose of delay. [Armour, 446 N.J. Super. at 310-11 (quoting N.J.S.A. 2A:84-32a(d)).] "It is defendant's burden to establish that all of the elements necessary for DNA testing have been fulfilled." Id. at 311. Identity is a significant issue whenever it is contested, regardless of the strength of the State's evidence. State v. Peterson, 364 N.J. Super. 387, 395-96 (App. Div. 2003). If DNA testing were to show that the samples did not come from the defendant, "the evidence of [the] defendant's guilt could appear a lot less overwhelming than it did at the time of trial[,]" and would not be "merely cumulative or impeaching or contradictory[.]" Id. at 396-98 (quoting State v. Carter, 85 N.J. 300, 314 (1981)). "[T]he movant must 'explain why the identity of the defendant was a significant issue in the case' and 'how if the results of the requested DNA testing are favorable to the defendant, a motion for a new trial based upon newly discovered evidence would be granted[.]'" State v. DeMarco, 387 N.J. Super. 506, 514 (App. Div. 2006) (citation omitted). "[N.J.S.A.] 2A:84A-32a(d)(5) . . . does not require a defendant to 'prove the DNA results will be favorable, rather it 9 A-2629-15T2 must only be established that there is a reasonable probability that a new trial would be granted if the DNA results are favorable to the defendant.'" Armour, 446 N.J. Super. at 311 (quoting Reldan, 373 N.J. Super. at 402). "Thus, the 'reasonable probability' requirement set forth in subsection (d)(5) 'applies only to the grant of a new trial in the event the results of DNA testing are favorable.'" Id. at 312 (quoting DeMarco, 387 N.J. Super. at 517). As for whether favorable DNA test results would likely result in the grant of a motion for a new trial, the same standards apply as for any newly discovered evidence. Peterson, 364 N.J. Super. at 398. As we have held: [W]here a new trial is sought premised on the discovery of "new" evidence, the evidence must be: (1) material to the issue and not merely cumulative, impeaching or contradictory; (2) discovered after the trial and not reasonably discoverable prior thereto; and (3) of a nature as to probably have affected the jury's verdict. [Armour, 446 N.J. Super. at 312 (citation omitted).] Here, the dispute only concerns element (4) (that defendants made a prima facie showing that the evidence sought to be tested is material to the issue of their identity as the offender), and element (5) (that the retesting result would raise a reasonable probability that if the results were favorable to defendants, a 10 A-2629-15T2 motion for a new trial based upon newly discovered evidence would be granted). On appeal, as to element (4), Gaudette reiterates there was no DNA evidence linking him to the crime, only circumstantial evidence linking him to Vega, and the perpetrators were wearing masks and no identifications were made. Vega argues that "if the evidence tested contained DNA of someone other than [his DNA], it would strongly support [his] position that he was not the perpetrator." As to element (5), defendants reiterate that although the bloodstain tested positive for the presence of blood matching R.P.'s DNA profile, the DNA had a "faint, weak signal" and the comparison of the bloodstain with R.P.'s DNA profile was made on only "one loci to the strand[.]" Defendants again posit that advancements in DNA testing since the time of the trial could lead to a more accurate and reliable result that could alter the outcome of the trial. These arguments are easily rejected. As to element (4), Gaudette was not convicted based on the DNA evidence. He was convicted because the victims identified him and his clothing; the clothes were later found in his car; he knew R.P. and that R.P. kept his company's payroll in his home; he had no alibi; and the statement he made at the time of his arrest indicated he was aware there was a robbery and another person was involved. Vega was 11 A-2629-15T2 convicted based on DNA evidence confirming it was the victim's blood on his boot. A retesting result would not exclude Vega as a contributor to either of the DNA profiles found on the bloodstain and exonerate him and inculpate someone else. Thus, even if someone else's DNA was found on the bloodstain, it would not have changed the outcome for either of the defendants. As to element (5), defendants are incorrect that the relevant DNA sample was a "faint, weak signal" and the comparison of the bloodstain with R.P.'s DNA profile was made on only "one loci to the strand[.]" The unrefuted expert evidence confirmed that, unlike the minor DNA profile obtained from the bloodstain, the major profile from that bloodstain matched thirteen out of thirteen loci with R.P., for a match of one in many quadrillion. There was no dispute that the bloodstain on Vega's boot came from R.P. Thus, there was no reasonable probability that new DNA results would be favorable to defendants. Because defendants failed to establish elements (4) and (5), they were not entitled to DNA retesting. III. Prior to the imposition of Gaudette's original sentence, the State filed a motion seeking a discretionary extended-term sentence. The sentencing judge granted the motion, but made clear that the twenty-year sentence he imposed for the first-degree armed robbery conviction was the maximum ordinary term for a first- 12 A-2629-15T2 degree crime, rather than the minimum twenty-year extended term. On re-sentence, the judge imposed the same, non-extended term sentence. Gaudette filed a motion to correct an illegal sentence, arguing, as he does on appeal, that the State failed to file a motion for an extended term sentence within fourteen days prior to resentencing. The motion judge denied the motion, finding defendant was re-sentenced in the ordinary range and there was no authority requiring the State to file another motion for an extended term on remand for resentencing. Rule 3:21-4(e), which governs motions for extended term sentences, does not require the refiling of a motion on remand for resentencing. The Rule only requires one motion to be filed fourteen days prior to sentencing, which the State did here. Even if the State was required to re-file the motion, defendant suffered no prejudice. Defendant did not receive an extended-term sentence. Affirmed. 13 A-2629-15T2
Date: January 31, 2018
Docket Number: a2629-15 PER CURIAM Defendants Joshua M. Gaudette and Mario Vega2 appeal from the January 8, 2016 Law Division orders denying their post-conviction motions for retesting of forensic DNA evidence. Gaudette also appeals from the denial of his motion to correct an illegal sentence. We affirm. I. Tried jointly by a jury, on January 27, 2006, defendants were found guilty of second-degree conspiracy to commit armed robbery, N.J.S.A. 2C:5-2; first-degree armed robbery, N.J.S.A. 2C:15-1; second-degree armed robbery, N.J.S.A. 2C:18-2; third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b); second- degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a); third-degree criminal restraint, N.J.S.A. 2C:13-2(a); 2 We shall sometimes collectively refer to Gaudette and Vega as defendants. 2 A-2629-15T2 and certain persons not to have weapons, N.J.S.A. 2C:39-7(b). Defendants filed motions for a new trial. The trial judge denied the motions, finding the evidence against defendants was overwhelming. The judge sentenced both defendants to an aggregate thirty-year term of imprisonment subject to the No Early Release Act, N.J.S.A. 2C:43-7.2. Defendants appealed their convictions and sentences. We affirmed the convictions, but remanded for resentencing. State v. Gaudette, No. A-6535-05 (App. Div. Feb. 23, 2009) (slip op. at 55). Our Supreme Court denied certification. State v. Vega, 200 N.J. 369 (2009); State v. Gaudette, 199 N.J. 519 (2009). On remand, the trial judge imposed the same sentences, and defendants appealed. We affirmed, and the Court denied certification. State v. Vega, No. A-5008-08 (App. Div. July 27, 2010); State v. Gaudette, No. A-5009-08 (App. Div. May 14, 2010), certif. denied, 203 N.J. 607 (2010). We also affirmed the denial of defendants' motions for post-conviction relief, and the Court denied certification. State v. Vega, No. A-5553-11 (App. Div. Dec. 30, 2013), certif. denied, 218 N.J. 276 (2014); State v. Gaudette, No. A-2790-12 (App. Div. June 23, 2015), certif. denied, 223 N.J. 404 (2015). 3 A-2629-15T2 II. The facts underlying the home invasion that was the basis for defendants' convictions are set forth in our February 23, 2009 opinion and need not be repeated here. This appeal concerns DNA testing of a bloodstain found on Vega's right boot that matched the DNA profile of the victim, R.P.3 Defendants presented an identification defense at trial. The State's expert in DNA explained the DNA process. He first extracts the DNA from cotton swabs submitted for testing, quantifies exactly how much DNA is in a solution in order to determine a target amount, puts the target amount into an amplification, looks at the copies of DNA that were amplified, and then looks for thirteen loci of the DNA to determine the contributor. The expert tested cotton swabs from R.P. and his daughter, J.P., and obtained full DNA profiles for both of them. He then tested the swab of a bloodstain on Vega's boot, compared it to R.P.'s and J.P.'s DNA profiles, and found a mixture of more than one profile, meaning there was more than one contributor to the mixture. The expert excluded J.P. as a contributor to the mixture, 3 We use initials to identify those involved in this matter in order to protect their privacy. 4 A-2629-15T2 and concluded R.P. was the major DNA profile on the bloodstain, explaining: So when you get the analysis, our anneals are read out as peak heights, there's just . . . blips so when you see the mixture, you can see that some [p]eak heights are much higher than others. So you might have some down here and some up here. And you're able to determine that those start out as a higher ratio than these when the sample was brought in. And from that, you can say that these are associated and this is unassociated so as a major profile, I was able to match [thirteen] out of [thirteen] [loci] with [R.P.] [(Emphasis added).] The expert opined within a reasonable degree of scientific certainty that the bloodstain on Vega's boot came from R.P. and "[R.P.] is identified as the source of that stain." The expert also found the mixture contained a minor DNA profile, which was "faint" and "weaker" than the other peaks he found for the major DNA profile and did not meet the recording threshold. The expert confirmed that R.P. was the source of the major DNA profile and bloodstain on Vega's boot, and an unknown contributor was the source of the minor DNA profile and bloodstain. The expert emphasized that the major DNA profile from the bloodstain matched thirteen out of thirteen loci for R.P., for a match of one in many quadrillion, and opined within a reasonable 5 A-2629-15T2 degree of scientific certainty that R.P. was the source of the major DNA profile. II. Defendants filed post-conviction motions to compel retesting of the DNA evidence. Gaudette argued there was no DNA evidence linking him to the crime, only circumstantial evidence linking him to Vega, and the perpetrators were wearing masks and no identifications were made. Both defendants argued that, although the bloodstain tested positive for the presence of blood matching R.P.'s DNA profile, the relevant DNA sample had a "faint, weak signal" and the comparison of the bloodstain with R.P.'s DNA profile was made on only "one loci to the strand[.]" Defendants posited that advancements in DNA testing since the time of the trial could lead to a more accurate and reliable result that could alter the outcome of the trial. In a written opinion, citing N.J.S.A. 2A:84A-32a, the motion judge emphasized the court should not grant a motion for DNA testing unless "the requested DNA testing result would raise a reasonable probability that if the results were favorable to the defendant, a motion for a new trial based upon newly discovered evidence would be granted." The judge found the substance on Vega's boot showed DNA that matched R.P.'s DNA profile. The judge also found that because the trial judge found "the evidence of 6 A-2629-15T2 defendants' guilt [was] 'overwhelming[,]'" defendants could not meet their burden of demonstrating a new trial should be granted. This appeal followed. ["N.J.S.A.] 2A:84A-32a(a) states that '[a]ny eligible person may make a motion before the trial court that entered the judgment of conviction for the performance of forensic DNA testing.'" State v. Armour, 446 N.J. Super. 295, 310 (App. Div.) (second alteration in original), certif. denied, 228 N.J. 239 (2016). "Both the DNA retesting statute and the regulations specifically contemplate the retesting of DNA recorded and retained pursuant to the DNA [Database and Databank Act of 1994, N.J.S.A. 53:1-20.17 to - 20.38]." Ibid. (citations omitted). "The [DNA retesting] statute applies broadly to any individual who was convicted of a crime and is currently serving a sentence." Ibid. (alteration in original) (quoting State v. Reldan, 373 N.J. Super. 396, 402 (App. Div. 2004)). The motion must be supported by an affidavit explaining the importance of the identification issue to the case, and also explaining, "in light of all the evidence," why favorable results from such testing would cause the court to grant a motion for a new trial based on newly discovered evidence. N.J.S.A. 2A:84A- 32a(a)(1)(a)-(b). 7 A-2629-15T2 The court may not grant the motion for DNA testing unless, following a hearing, the defendant establishes the following elements: (1) the evidence to be tested is available and in a condition that would permit the DNA testing that is requested in the motion; (2) the evidence to be tested has been subject to a chain of custody sufficient to establish it has not been substituted, tampered with, replaced or altered in any material aspect; (3) the identity of the defendant was a significant issue in the case; (4) the eligible person has made a prima facie showing that the evidence sought to be tested is material to the issue of the eligible person's identity as the offender; (5) the requested DNA testing result would raise a reasonable probability that if the results were favorable to the defendant, a motion for a new trial based upon newly discovered evidence would be granted. The court in its discretion may consider any evidence whether or not it was introduced at trial; (6) the evidence sought to be tested meets either of the following conditions: (a) it was not tested previously; (b) it was tested previously, but the requested DNA test would provide results that are reasonably more discriminating and probative of the identity of the offender or have a reasonable probability of contradicting prior test results; 8 A-2629-15T2 (7) the testing requested employs a method generally accepted within the relevant scientific community; and (8) the motion is not made solely for the purpose of delay. [Armour, 446 N.J. Super. at 310-11 (quoting N.J.S.A. 2A:84-32a(d)).] "It is defendant's burden to establish that all of the elements necessary for DNA testing have been fulfilled." Id. at 311. Identity is a significant issue whenever it is contested, regardless of the strength of the State's evidence. State v. Peterson, 364 N.J. Super. 387, 395-96 (App. Div. 2003). If DNA testing were to show that the samples did not come from the defendant, "the evidence of [the] defendant's guilt could appear a lot less overwhelming than it did at the time of trial[,]" and would not be "merely cumulative or impeaching or contradictory[.]" Id. at 396-98 (quoting State v. Carter, 85 N.J. 300, 314 (1981)). "[T]he movant must 'explain why the identity of the defendant was a significant issue in the case' and 'how if the results of the requested DNA testing are favorable to the defendant, a motion for a new trial based upon newly discovered evidence would be granted[.]'" State v. DeMarco, 387 N.J. Super. 506, 514 (App. Div. 2006) (citation omitted). "[N.J.S.A.] 2A:84A-32a(d)(5) . . . does not require a defendant to 'prove the DNA results will be favorable, rather it 9 A-2629-15T2 must only be established that there is a reasonable probability that a new trial would be granted if the DNA results are favorable to the defendant.'" Armour, 446 N.J. Super. at 311 (quoting Reldan, 373 N.J. Super. at 402). "Thus, the 'reasonable probability' requirement set forth in subsection (d)(5) 'applies only to the grant of a new trial in the event the results of DNA testing are favorable.'" Id. at 312 (quoting DeMarco, 387 N.J. Super. at 517). As for whether favorable DNA test results would likely result in the grant of a motion for a new trial, the same standards apply as for any newly discovered evidence. Peterson, 364 N.J. Super. at 398. As we have held: [W]here a new trial is sought premised on the discovery of "new" evidence, the evidence must be: (1) material to the issue and not merely cumulative, impeaching or contradictory; (2) discovered after the trial and not reasonably discoverable prior thereto; and (3) of a nature as to probably have affected the jury's verdict. [Armour, 446 N.J. Super. at 312 (citation omitted).] Here, the dispute only concerns element (4) (that defendants made a prima facie showing that the evidence sought to be tested is material to the issue of their identity as the offender), and element (5) (that the retesting result would raise a reasonable probability that if the results were favorable to defendants, a 10 A-2629-15T2 motion for a new trial based upon newly discovered evidence would be granted). On appeal, as to element (4), Gaudette reiterates there was no DNA evidence linking him to the crime, only circumstantial evidence linking him to Vega, and the perpetrators were wearing masks and no identifications were made. Vega argues that "if the evidence tested contained DNA of someone other than [his DNA], it would strongly support [his] position that he was not the perpetrator." As to element (5), defendants reiterate that although the bloodstain tested positive for the presence of blood matching R.P.'s DNA profile, the DNA had a "faint, weak signal" and the comparison of the bloodstain with R.P.'s DNA profile was made on only "one loci to the strand[.]" Defendants again posit that advancements in DNA testing since the time of the trial could lead to a more accurate and reliable result that could alter the outcome of the trial. These arguments are easily rejected. As to element (4), Gaudette was not convicted based on the DNA evidence. He was convicted because the victims identified him and his clothing; the clothes were later found in his car; he knew R.P. and that R.P. kept his company's payroll in his home; he had no alibi; and the statement he made at the time of his arrest indicated he was aware there was a robbery and another person was involved. Vega was 11 A-2629-15T2 convicted based on DNA evidence confirming it was the victim's blood on his boot. A retesting result would not exclude Vega as a contributor to either of the DNA profiles found on the bloodstain and exonerate him and inculpate someone else. Thus, even if someone else's DNA was found on the bloodstain, it would not have changed the outcome for either of the defendants. As to element (5), defendants are incorrect that the relevant DNA sample was a "faint, weak signal" and the comparison of the bloodstain with R.P.'s DNA profile was made on only "one loci to the strand[.]" The unrefuted expert evidence confirmed that, unlike the minor DNA profile obtained from the bloodstain, the major profile from that bloodstain matched thirteen out of thirteen loci with R.P., for a match of one in many quadrillion. There was no dispute that the bloodstain on Vega's boot came from R.P. Thus, there was no reasonable probability that new DNA results would be favorable to defendants. Because defendants failed to establish elements (4) and (5), they were not entitled to DNA retesting. III. Prior to the imposition of Gaudette's original sentence, the State filed a motion seeking a discretionary extended-term sentence. The sentencing judge granted the motion, but made clear that the twenty-year sentence he imposed for the first-degree armed robbery conviction was the maximum ordinary term for a first- 12 A-2629-15T2 degree crime, rather than the minimum twenty-year extended term. On re-sentence, the judge imposed the same, non-extended term sentence. Gaudette filed a motion to correct an illegal sentence, arguing, as he does on appeal, that the State failed to file a motion for an extended term sentence within fourteen days prior to resentencing. The motion judge denied the motion, finding defendant was re-sentenced in the ordinary range and there was no authority requiring the State to file another motion for an extended term on remand for resentencing. Rule 3:21-4(e), which governs motions for extended term sentences, does not require the refiling of a motion on remand for resentencing. The Rule only requires one motion to be filed fourteen days prior to sentencing, which the State did here. Even if the State was required to re-file the motion, defendant suffered no prejudice. Defendant did not receive an extended-term sentence. Affirmed. 13 A-2629-15T2
CLAUDIO TUNDO v. BOARD OF REVIEW, DEPARTMENT OF LABOR
Date: January 30, 2018
Docket Number: a0525-16
Date: January 30, 2018
Docket Number: a0525-16
KRISTY BRECKE v. HOFFMAN-LA ROCHE INC.
Date: January 30, 2018
Docket Number: a1359-14 PER CURIAM In these consolidated appeals, four plaintiffs – Kristy Brecke, Gregory Luongo, James Albert Boerma, Jr., and Brian Zimpfer – who claim injuries from their use of Accutane, which is manufactured and sold by defendants, argue that the trial judge erred in finding their claims to be time barred. Because our standard of review compels deference to the judge's findings of fact, Cole v. Jersey City Med. Ctr., 215 N.J. 265, 275 (2013), and because the judge correctly applied the principles of Lopez v. Swyer, 62 N.J. 267 (1973), in applying the two-year statute of limitations, N.J.S.A. 2A:14-2, we affirm the dismissal of all four complaints. To explain, we provide a few brief comments about Accutane, followed by a discussion of the applicable legal principles and our standard of review, and then a separate analysis of each of these four cases. 3 A-1359-14T4 I In 1982, the Food and Drug Administration (FDA) approved defendants' new drug application to market Accutane, "known generically as isotretinoin, for the treatment of recalcitrant nodular acne." McCarrell v. Hoffman-La Roche, Inc. (McCarrell II), 227 N.J. 569, 577 (2017). The drug is a retinoid, derived from vitamin A, and is highly effective in treating severe acne. Kendall v. Hoffman-La Roche, Inc. (Kendall I), 209 N.J. 173, 180 (2012). It is undisputed that Accutane "has a number of known side effects, including[:] dry lips, skin and eyes; conjunctivitis; decreased night vision; muscle and joint aches; elevated triglycerides; and a high risk of birth defects if a woman ingests the drug while pregnant." Ibid. There is also evidence that Accutane has an effect on the gastrointestinal tract. McCarrell v. Hoffman-La Roche, Inc. (McCarrell I), No. A-3280-07 (App. Div. Mar. 12, 2009) (slip op. at 6, 23-26). These Accutane cases, and others currently pending in this multicounty litigation, concern the alleged propensity of the drug to cause inflammatory bowel disease (IBD), a chronic disease that primarily manifests as one of two diseases: Crohn's disease or ulcerative colitis. Kendall I, 209 N.J. at 181. Ulcerative colitis (plaintiffs' diagnosed condition), primarily involves inflammation 4 A-1359-14T4 of the lining of the colon (large intestine), while Crohn's disease can occur in any part of the digestive tract, although it primarily manifests in the small intestine (the ileum) and the colon. The peak onset of IBD occurs during adolescence – the same period during which individuals are likely to take Accutane. Ibid. Both forms of IBD share the same core symptoms including abdominal pain, frequent and often bloody bowel movements, and rectal bleeding. Ibid. These symptoms, however, are also associated with other less serious and curable diseases. Although the cause of IBD remains largely unknown, several triggers are associated with a statistically increased rate of IBD, including family history, infections, antibiotics, smoking, and possibly the use of oral contraceptives and nonsteroidal anti-inflammatory drugs. Ibid. The FDA did not require a warning about IBD on the 1982 Accutane launch label. But, shortly after obtaining FDA approval, defendants received reports of IBD in patients taking Accutane. In March 1984, defendants amended the "Warnings" section of the Accutane package insert (or label) made available to physicians but not patients, that remained in effect until 2000, to provide: Inflammatory Bowel Disease: Accutane has been temporally associated with inflammatory bowel disease (including regional ileitis) in patients without a prior history of intestinal disorders. Patients experiencing abdominal 5 A-1359-14T4 pain, rectal bleeding or severe diarrhea should discontinue Accutane immediately. The 1994 Accutane patient brochure that was provided to three of the four plaintiffs – Luongo, Boerma, and Zimpfer – did not specifically refer to IBD, but warned users that during treatment: YOU SHOULD BE AWARE THAT ACCUTANE MAY CAUSE SOME LESS COMMON, BUT MORE SERIOUS SIDE EFFECTS. BE ALERT FOR ANY OF THE FOLLOWING: · HEADACHES, NAUSEA, VOMITING, BLURRED VISION · CHANGES IN MOOD · SEVERE STOMACH PAIN, DIARRHEA, RECTAL BLEEDING · PERSISTENT FEELING OF DRYNESS OF THE EYES · YELLOWING OF THE SKIN OR EYES AND/OR DARK URINE IF YOU EXPERIENCE ANY OF THESE SYMPTOMS OR ANY OTHER UNUSUAL OR SEVERE PROBLEMS, DISCONTINUE TAKING ACCUATNE AND CHECK WITH YOUR DOCTOR IMMEDIATELY. THEY MAY BE THE EARLY SIGNS OF MORE SERIOUS SIDE EFFECTS WHICH, IF LEFT UNTREATED, COULD POSSIBLY RESULT IN PERMANENT EFFECTS. The same warnings were reprinted on the blister packaging, which contained the individual Accutane pills. At that time, the "patient information/consent" form was limited to warning about the risks of birth defects if a woman became pregnant while taking the drug. In May 2000, the FDA approved an amendment to the "WARNINGS" 6 A-1359-14T4 section of the package insert or label, provided to physicians, but not patients, strengthening the warnings by removing the word "temporally," and warning that: Inflammatory Bowel Disease: Accutane has been associated with inflammatory bowel disease (including regional iletis) in patients without a prior history of intestinal disorders. In some instances, symptoms have been reported to persist after Accutane treatment has been stopped. Patients experiencing abdominal pain, rectal bleeding or severe diarrhea should discontinue Accutane immediately (see ADVERSE REACTIONS: Gastrointestinal). [(Emphasis added).] The "ADVERSE REACTIONS" section of the label provided: ADVERSE REACTIONS: Clinical Trials and Postmarketing Surveillance: The adverse reactions listed below reflect the experience from investigating studies of Accutane, and the postmarketing experience. The relation- ship of some of these events to Accutane therapy is unknown. Many of the side effects and adverse reactions seen in patients receiving Accutane are similar to those described in patients taking very high doses of vitamin A (dryness of the skin and mucous membranes, e.g. of the lips, nasal passage, and eyes). Gastrointestinal inflammatory bowel disease (see WARNINGS: inflammatory bowel disease) . . . bleeding and inflammation of the gums, colitis, ileitis, nausea, and other nonspecific gastrointestinal symptoms. Beginning in January 2001, pharmacists provided Accutane 7 A-1359-14T4 patients with a "Medication Guide," which described some of the symptoms of IBD, but did not specifically refer to the disease, warning instead that "Accutane has possible serious side effects," including: Abdomen (stomach area) problems. Certain symptoms may mean that your internal organs are being damaged. These organs include the liver, pancreas, and bowel (intestines). If your organs are damaged, they may not get better even after you stop taking Accutane. Stop taking Accutane and call your provider if you get severe stomach or bowel pain, diarrhea, rectal bleeding, yellowing of your skin or eyes, or dark urine. Serious permanent problems do not happen often. However, because the symptoms listed above may be signs of serious problems, if you get these symptoms, stop taking Accutane and call your provider. If not treated, they could lead to serious health problems. Even if these problems are treated, they may not clear up even after you stop taking Accutane. Commencing in January 2002, physicians were also required to provide patients with a patient brochure presented as a bright pink colored metal ring binder entitled "Be Smart/Be Safe/Be Sure Accutane Pregnancy Prevention and Risk Management Program for Women." See Kendall I, 209 N.J. at 183. The "binder materials primarily focused on the dangers of becoming pregnant while taking Accutane." Ibid. The binder's first section, entitled "Patient Product Information: Important information concerning your 8 A-1359-14T4 treatment with Accutane (isotretinoin)," warned, without specifically referring to IBD, that: You should be aware that certain SERIOUS SIDE EFFECTS have been reported in patients taking Accutane. Serious problems do not happen in most patients. If you experience any of the following side effects or any other unusual or severe problems, stop taking Accutane right away and call your prescriber because they may result in permanent effects. Abdomen (stomach area) problems. Certain symptoms may mean that your internal organs are being damaged. These organs include the liver, pancreas, bowel (intestines), and esophagus (connection between mouth and stomach). If your organs are damaged, they may not get better even after you stop taking Accutane. Stop taking Accutane and call your prescriber if you get severe stomach, chest, or bowel pain; have trouble swallowing or painful swallowing; get new or worsening heartburn, diarrhea, rectal bleeding, yellowing of your skin or eyes, or dark urine. [(Emphasis added.)] The ninth edition of the "Be Smart, Be Safe, Be Sure" binder included consent forms to be removed and signed by patients, requiring them to acknowledge that they understood the risks of serious birth defects and would stop taking Accutane if they experienced any symptoms of depression; it did not specifically refer to IBD. Patients were also required to acknowledge they had read and understood "the Patient Product Information, Important 9 A-1359-14T4 Information Concerning your treatment with Accutane© (isotretinoin) and other materials my prescriber gave me containing important safety information about Accutane." Similar warnings to patients were included on the blister packaging, which again primarily warned about birth defects and depression, but also warned, without specifically referring to IBD, that: Other serious side effects to watch for[.] Stop taking Accutane and call your prescriber if you develop any of the problems on this list or any other unusual or severe problems. If not treated they could lead to serious health problems. Serious permanent problems do not happen often. Severe stomach pain, diarrhea, rectal bleeding, or trouble swallowing . . . . These were, in general, the relevant communications provided to physicians and patients at or about the time these four plaintiffs were taking Accutane or were experiencing difficulties following their course of Accutane. II The timeliness of plaintiffs' complaints – as well as the complaints filed by seven other plaintiffs1 – were the subject of 1 The judge also dismissed two of these other seven; five were found timely filed. The other two plaintiffs whose complaints were dismissed have not appealed. 10 A-1359-14T4 Lopez hearings that occurred in 2014. All four of these plaintiffs were diagnosed with their ailments more than two years prior to the filing of their complaints. Because a product liability action "generally accrues on the date of injury," Cornett v. Johnson & Johnson, 211 N.J. 362, 377 (2012), abrogated on other grounds by McCarrell II, 227 N.J. at 591 n.9, and the Legislature requires that such actions be commenced within "two years . . . after the cause of any such action shall have accrued," N.J.S.A. 2A:14-2,2 plaintiffs' complaints could only survive through a proper application of equitable tolling principles embodied within the discovery rule, Lopez, 62 N.J. at 272. This discovery rule is a rule of equity; it tolls the statute of limitations "until the injured party discovers, or by an exercise of reasonable diligence and intelligence should have discovered . . . a basis for an actionable claim." Lopez, 62 N.J. at 272; see also McCarrell II, 227 N.J. at 578. This equitable principle "avoid[s] the harsh results that otherwise would flow from mechanical application of a statute of limitations," Vispisiano v. Ashland Chem. Co., 107 N.J. 416, 426 (1987), and 2 The parties do not dispute that New Jersey's statute of limitations jurisprudence applies to the claims of these out-of- state plaintiffs. See McCarrell II, 227 N.J. at 575. 11 A-1359-14T4 "balances the need to protect injured persons unaware that they have a cause of action against the injustice of compelling a defendant to defend against a stale claim," Kendall I, 209 N.J. at 193. The party claiming the discovery rule's indulgence is saddled with the burden of persuasion. Lopez, 62 N.J. at 276. Although a judge's application of legal principles is subject to de novo review, Manalapan Realty L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995), a judge's factual findings and assessment of witness credibility are entitled to deference on appeal unless lacking support in the record, Cole, 215 N.J. at 275; Rova Farms Resort, Inc. v. Inv'rs Ins. Co. of Am., 65 N.J. 474, 483-84 (1974). The question posed in these four cases is "whether the facts presented would alert a reasonable person exercising ordinary diligence" that the alleged injury was "due to the fault of another." Hardwicke v. Am. Boychoir Sch., 188 N.J. 69, 110 (2006) (quoting Martinez v. Cooper Hosp.-Univ. Med. Ctr., 163 N.J. 45, 52 (2000)); see also Kendall I, 209 N.J. at 191. The standard is objective: whether the plaintiff "knew or should have known" of facts sufficient to equitably justify the commencement of the statute of limitations. Martinez, 163 N.J. at 52. The determination is "highly fact-sensitive," Catena v. Raytheon Co., 447 N.J. Super. 43, 54 (App. Div. 2016), appeal dismissed, __ N.J. __ (2017), 12 A-1359-14T4 varying "from case to case, and . . . from type of case to type of case," Vispisiano, 107 N.J. at 434. Factors to be considered include: the nature of the injury; the availability of witnesses and written evidence; the elapsed time since the alleged wrongdoing; whether the delay was deliberate or intentional; and whether the delay peculiarly or unusually prejudiced the defendant. Lopez, 62 N.J. at 276. When "fault is not self-evident at the time of injury, a plaintiff need only have 'reasonable medical information' that connects an injury with fault to be considered to have the requisite knowledge for the claim to accrue." Kendall I, 209 N.J. at 193 (quoting Vispisiano, 107 N.J. at 435). The Court in Kendall I held that in pharmaceutical cases a judge must also consider the rebuttable presumption of adequacy of an FDA-approved warning under N.J.S.A. 2A:58C-4 "where the question is what a reasonable person knew or should have known about the risks of a product for discovery rule purposes." 209 N.J. at 179-80. In the discovery rule setting, unlike when liability is the issue, the Court adopted a "middle-of-the-road approach," and held that the presumption should be treated as a standard presumption "capable of being overcome by evidence which 'tends to disprove the presumed fact, thereby raising a debatable question regarding the existence of the presumed fact.'" Id. at 13 A-1359-14T4 197 (quoting Shim v. Rutgers, 191 N.J. 374, 386 (2007)). The plaintiff may overcome the presumption of adequacy with evidence to show that despite the product's warnings "a reasonable person in her circumstances would not have been aware, within the prescribed statutory period, that she had been injured by defendants' product." Id. at 197-98. In applying that analysis, the Court held that Kendall's suit could proceed because the evidence not only overcame the presumption but also established she was reasonably unaware defendants caused her injury until less than two years before she filed suit. Id. at 198. The Court reached that conclusion because: (1) Kendall was twelve years old when she began taking Accutane; (2) her treating physicians had never warned her or her parent of the risk of IBD because they were unaware of its relationship to Accutane; (3) she suffered no gastrointestinal symptoms during her first four courses of Accutane; (4) her dermatologist, in consult with her gastroenterologist, agreed to prescribe a fifth course of Accutane in 2000 despite the diagnosis of ulcerative colitis in 1999; and (5) during her sixth course of Accutane, from 2003 to 2004, she received a stronger warning and experienced some increased diarrhea, but no other gastrointestinal symptoms. Id. at 198-99. The Court found: 14 A-1359-14T4 Although we can conceive of circumstances in which the 2003 warning might have been sufficient to alert a plaintiff of the connection between Accutane and her disease, it was certainly not sufficient, in these circumstances, to cause Kendall to doubt her physicians or to disregard the advice and information that had been imparted to her by them for the prior six years. That is particularly so in light of the lack of a discernable link between Kendall's symptoms and the ingestion of the drug. [Id. at 199.] We are also mindful of McCarrell II, where plaintiff's claim was found timely filed, evidence having revealed he began taking Accutane in 1995, when he was twenty-four years old, during which he did not experience any gastrointestinal symptoms. 227 N.J. at 576. He received a copy of the 1994 Accutane patient brochure. Id. at 577. His physicians never warned him that Accutane can cause IBD. Ibid. He experienced symptoms of IBD in August 1996, ten months after he stopped taking Accutane, and was diagnosed with IBD in November 1996. Id. at 576. McCarrell testified during a Lopez hearing that he made the connection between the drug and IBD in May 2003, when his grandmother showed him an advertisement for a law firm. McCarrell I, slip op. at 106-07. With this guidance from our Supreme Court, we separately examine the disposition of the four complaints in question in these consolidated appeals. 15 A-1359-14T4 III A. Gregory Luongo On December 17, 1996, Luongo – then two months shy of his eighteenth birthday – was prescribed Accutane by a Massachusetts dermatologist. Prior to taking Accutane, Luongo received three courses of antibiotics; all were ineffective in treating his acne. Luongo received, along with his mother, the dermatologist's advice regarding Accutane's potential common side effects. The dermatologist testified it was her practice to discuss potential gastrointestinal effects, including abdominal pain, nausea, vomiting, diarrhea, and rectal bleeding, but she did not specifically warn about IBD because it was not known to be a common side effect. Luongo, who participated in medical decisions in collaboration with his mother, could not recall the details of this discussion, but he maintained the dermatologist did not inform him that Accutane could cause ulcerative colitis because the first time he heard the term was in 2003, when he was diagnosed with the disease. Luongo's mother, then employed as a staff physical therapist, confirmed she too first became aware of the term when her son was diagnosed with the disease. When prescribing Accutane, the dermatologist provided Luongo and his mother with a copy of the 1994 Accutane patient brochure, 16 A-1359-14T4 which as observed earlier, did not specifically warn about IBD but warned that, "[d]uring your treatment," "ACCUTANE MAY CAUSE SOME LESS COMMON, BUT MORE SERIOUS SIDE EFFECTS" and advised patients to be "ALERT" for "SEVERE STOMACH PAIN, DIARRHEA, [and] RECTAL BLEEDING." Luongo testified he "likely" read the materials "thoroughly." Those warnings were also included on the Accutane blister packaging. During his Accutane treatment between December 1996 and June 1997, Luongo experienced no gastrointestinal side effects. In 1999, two years later, Luongo experienced "[s]ome diarrhea and cramping," which he then attributed to a virus or "stomach bug" but now relates to his ingestion of Accutane. He did not then seek medical treatment because the symptoms did not persist. His symptoms "infrequently" reoccurred, but he did not report those symptoms to his primary physician during an annual physical in May 2002. In February 2003, six years after he completed Accutane treatment, Luongo's symptoms progressed and he thought it might be something more serious. For several months, Luongo experienced persistent and worsening diarrhea, rectal bleeding, and abdominal pain and cramping – symptoms he admittedly was warned in 1996 were side effects of taking Accutane. Luongo's family physician referred him to a 17 A-1359-14T4 gastroenterologist, who, in March 2003, diagnosed Luongo as suffering from ulcerative colitis. None of Luongo's treating physicians told him that Accutane was a cause of his IBD. Although Luongo had not heard of ulcerative colitis before his diagnosis, he testified that as of March 2003 he understood "ulcerative colitis . . . meant symptoms of abdominal pain, diarrhea [and] rectal bleeding." He admitted his dermatologist had told him Accutane's side effects included abdominal pain, diarrhea and rectal bleeding – the symptoms he had been experiencing. And he admitted that if shown the patient brochure in March 2003 he would have suspected Accutane as a nexus: Q. So if in March 2003 after you had been diagnosed you had gone home and you . . . found that brochure lying around . . . and you had read that, that would have been notice to you that, whoa, maybe Accutane had something to do with my ulcerative colitis. Right? A. It's possible if I had seen that at that time, yes. Q. Essentially what you're saying today is that in March 2003, you simply forgot what you had been told by [the dermatologist] and what you had read in the brochure back in 1996 and 1997? A. That's correct. Luongo asserted, however, that his understanding of the warning was that the gastrointestinal symptoms would arise while taking Accutane, not six years later, and that if he had developed those 18 A-1359-14T4 symptoms while taking the drug and had been treated, the symptoms would have ceased and not have led to chronic, irreversible IBD. Luongo testified at the Lopez hearing that he first drew a connection between Accutane and IBD in early 2011 when he saw a television commercial which advised compensation was available for those who had taken Accutane and developed IBD. He acknowledged, however, he learned nothing new from the lawyer's advertisement, only that it was the first time a connection between his diagnosis and Accutane had been expressed to him. Luongo's complaint was filed on June 9, 2011, more than eight years after the March 2003 diagnosis of ulcerative colitis. During discovery, defendants obtained medical records from all Luongo's physicians except a pediatrician he saw prior to 1993. In accordance with his office policy, that pediatrician had destroyed Luongo's medical records, which would have revealed whether Luongo took antibiotics as a child. At his deposition, Luongo admitted this pediatrician may have prescribed antibiotics for him as a child for ailments such as ear infections, strep throat, and sinus infections. To summarize the essential facts, it is undisputed Luongo experienced IBD symptoms in 1999, was diagnosed with ulcerative colitis in 2003, and did not file his complaint until June 9, 2011, more than eight years after the diagnosis. In considering 19 A-1359-14T4 the timeliness of the complaint, the critical question is whether Luongo knew, or a person in his circumstances should reasonably have known, before June 9, 2009, enough information to believe he had developed ulcerative colitis because he took Accutane. The trial judge found Luongo to be "generally credible" and concluded Luongo had reason to know "very early on that something was wrong and that the something may well have been his ingestion of Accutane." The judge explained that Luongo "had symptoms that would have prompted action by a reasonable person," and Luongo's "failure to act within two years of his diagnosis of [ulcerative colitis] in March 2003, is fatal to his claim." The judge found that: Luongo admits that if he had read the warnings of the brochure in March 2003, he would have believed Accutane may have caused his [ulcerative colitis]. Luongo also concedes that in March 2003, he forgot what [the dermatologist] had told him and what he had read in the Accutane brochure. Plaintiff conceded that the warnings in the literature he received described the symptoms he had been experiencing for years. Luongo claims that it wasn't until eight years after his diagnosis that he first made the connection between Accutane and [ulcerative colitis] when he saw a [television] commercial in early 2011. Interestingly, on cross[-]examination, Mr. Luongo conceded that he didn't learn any new information from the lawyer solicitation on television that he hadn't previously learned from the warning literature. The judge additionally found that the delay in filing suit 20 A-1359-14T4 prejudiced defendants: Most striking about Luongo's case is the long period of time between being diagnosed with [ulcerative colitis] and filing his claim. . . . This is especially troubling because multiple records from his medical/health history no longer exist. The need for complete medical records in these types of claims is imperative. The lack of those records unfairly prejudices [d]efendant's ability to investigate other potential causes of Mr. Luongo's [ulcerative colitis]. Considering those factors deemed relevant in Kendall I, we note, as the judge recognized, that Luongo was seventeen when he began taking Accutane and suffered no gastrointestinal symptoms during his treatment. But, Luongo developed some non-persistent gastrointestinal symptoms two years after he stopped treatment, and was diagnosed with ulcerative colitis more than eight years before he commenced suit. Regardless of the fact that Luongo did not receive the stronger 2003 warnings quoted earlier, his testimony permitted the judge's finding that the 2011 legal ad – the event that allegedly triggered Luongo's connection between Accutane and his ailments – did not inform Luongo of anything he did not already know. To be sure, although Luongo forcefully argues that the factual circumstances should have led to a different determination – particularly asserting that it is not reasonable to conclude that someone in Luongo's position would likely go back and re-read the 21 A-1359-14T4 warnings in search of a link between Accutane and the diagnosis received years later – the judge was entitled to make findings based on his own appreciation of the evidence. In addition, the judge's findings and ultimate determination to dismiss the complaint finds further support in the evidence of prejudice to defendants. Although defendants were able to marshal considerable evidence of Luongo's medical history and Accutane usage, the passage of time deprived defendants of a pediatrician's treatment of Luongo up until 1993, three years before Luongo began taking Accutane. Consequently, in deferring to the judge's findings, which are well-supported by the evidence, we affirm the dismissal of Luongo's complaint. B. James Boerma On February 17, 1998, Boerma, then thirteen years old, was prescribed Accutane by a Florida dermatologist. Prior to taking Accutane, Boerma had undergone a three-month course of antibiotics, which was not effective in treating his acne. Before prescribing Accutane, the dermatologist advised Boerma and his mother of the "possible risks and benefits of Accutane therapy" and said he typically discussed with patients the risk of developing "pseudotumor cerebri, headaches, mood 22 A-1359-14T4 swings, depression, hair loss, visual disturbance, . . . arthraigias, photosensitivity, flare of acne resulting in scarring, and hypertriglyceridemia." The dermatologist did not discuss IBD or diarrhea, and Boerma did not remember receiving written or verbal warnings about those things from the dermatologist. Boerma's recollection, however, was not very reliable since he also could not remember where the dermatologist's office was, what the dermatologist looked like, or even when he had taken Accutane. Boerma's mother, who made medical decisions on her son's behalf at that time, recalled that the dermatologist warned of the risk of getting pregnant while taking the drug and of developing dry lips. The dermatologist provided Boerma and his mother with a copy of the 1994 Accutane patient brochure, which, as we have noted, warned of serious side effects during Accutane use, and alerted patients to the potential for severe stomach pain, diarrhea, and rectal bleeding. Boerma's mother testified at her deposition that it was her practice to read written information about medications, but she only recalled seeing the warnings in the brochure about pregnancy and the drawings depicting common birth defects associated with Accutane use during pregnancy. Boerma similarly only recalled having seen the drawing of the pregnant woman on the individual pill packaging. 23 A-1359-14T4 During his treatment, between February and April 1998, Boerma experienced dry skin and chapped lips but no gastrointestinal symptoms. Four years later, in the summer of 2002, Boerma – then seventeen years old and living in Louisiana with his father – experienced diarrhea, abdominal pain, and rectal bleeding. In July 2002, a gastroenterologist determined Boerma was suffering from ulcerative colitis. None of Boerma's physicians told him or his mother that Accutane was a cause of his IBD. In fact, the gastroenterologist testified that if a patient asked how he had developed IBD, he would reply, "[b]ad luck, being related to the wrong people if somebody else had the disease in their family; that it just happens, rarely, occasionally." Boerma's mother testified she had "probably" researched the disease at that time by using a dictionary or an encyclopedia. Boerma testified at the Lopez hearing that he first made a connection between Accutane and IBD "[t]owards the end of the year 2006," when his mother telephoned him from Pensacola, Florida to inform him she had learned there may be a relationship. In his fact sheet, Boerma asserted he first contemplated retaining an attorney "in December 2006," but, when questioned at the Lopez hearing, Boerma said "it was September time" when he "started working" at Times Bar & Grill and toward "the end of [his] culinary school training." In his fact sheet, Boerma asserted he began 24 A-1359-14T4 working at the Times Bar & Grill in March 2006. Consequently, Boerma later admitted at the Lopez hearing that these discussions about a link between his illness and Accutane occurred during "the beginning of 2006." Boerma also admitted he had confused other dates on his fact sheet and employment applications. Nonetheless, Boerma persisted in fixing the date of the phone call from his mother with the fact that he was living in an apartment in Louisiana with a roommate in the fall of 2006. He also recalled that when his mother came to Louisiana for Thanksgiving in 2006, they discussed the connection between Accutane and ulcerative colitis and the fact that a Pensacola law firm was pursuing such cases: Q. And did she tell you then that she learned of this connection from any kind of advertisement in the Pensacola paper? A. No, sir. Q. What was your impression then in Thanksgiving as to how she learned this? A. That she had done research or read -- just done research on it. I didn't know where she got it from. Boerma's mother, who was employed as a paralegal in a bankruptcy law firm, testified during her deposition that she first learned of a possible connection between Accutane and ulcerative colitis when she read an advertisement in the Pensacola 25 A-1359-14T4 News Journal. She said she talked to her son about the advertisement and "probably" suggested he call the attorney listed, but she could not recall when she saw the advertisement or when she talked to her son. During discovery, Boerma produced copies of Pensacola News Journal attorney advertisements but these advertisements ran only during the month of August 2003, not in 2006.3 Boerma's mother testified that sometime "much later" – after she read the advertisement – she conducted internet research on ulcerative colitis; she could not recall if she read anything about a connection between Accutane and IBD or in what year she conducted the research. Boerma stated he never saw the advertisement, nor did his mother tell him about it – she only told him she "learned there was a connection" without explaining "where she got this connection." Boerma learned he had developed IBD in July 2002 but did not file his complaint until March 19, 2008. The critical question is whether Boerma knew, or a person in his circumstances should reasonably have known, before March 19, 2006, of enough information 3 The advertisement for two local attorneys, read in part, "ACCUTANE USERS YOU MAY HAVE A CLAIM. If you are taking or have taken the acne drug Accutane and have suffered from side effects such as . . . inflammatory bowel disease including [C]rohn's disease and ulcerative colitis . . . contact . . . [us]." 26 A-1359-14T4 to believe he had developed IBD because he took Accutane. The trial judge found that "the details surrounding . . . Boerma's awareness that Accutane may have caused his [ulcerative colitis] are unclear and, at times, not sufficiently credible." For example, "Boerma claimed that his mother called him in September 2006 and made him aware of the connection between Accutane and [ulcerative colitis]." To substantiate that claim, he "correlated the telephone call with his mother to his recent employment at Times Bar and Grill." But, in his fact sheet, Boerma set forth that he had been working at the Times Bar and Grill since March 2006, and thus "acknowledged" that his testimony during the Lopez hearing "was inaccurate." Boerma also testified his mother made the connection between Accutane and IBD "by doing independent research." But Boerma's mother testified at her deposition "that she did not know if her son's recollection of her research was accurate," and that "she first did non-computerized research on her son's [ulcerative colitis] around the time of his diagnosis, and any computer based research would have been conducted in the recent past." She also "could not remember coming across anything in her research regarding the connection between Accutane and [ulcerative colitis]." Instead, Boerma's mother said she first made the connection 27 A-1359-14T4 between Accutane and her son's ulcerative colitis when she read a lawyer's advertisement in the Pensacola News Journal. She could not recall when she saw the advertisement and claimed, in contrast to her son's testimony, she discussed it with him. Prior to the Lopez hearing, the trial court ordered "that all lawyer advertisements placed by firms representing and referring plaintiffs on or after January 1, 2004 be produced. The attorneys who entered an appearance were also required to advise if any referring attorneys refused to produce any such ads." No such advertisements were produced, nor was there any suggestion of non- compliance. Thus, the trial judge found "there is no evidence of any post-January 1, 2004 Accutane lawyer's advertisements in the Journal" and that "lack of evidence . . . supplement[ed] [Boerma's mother's] poor recollection as to when she first saw the advertisement." The trial judge also found Boerma was "not credible" for a number of reasons: He often confused the dates of his employment and education. Furthermore, at his deposition, Mr. Boerma testified that his mother never told him to contact an attorney and she did not help him find an attorney. However, Mr. Boerma changed his testimony at the Lopez hearing and stated that his mother did recommend Hook & Bolton. [His mother]'s deposition confirms that she had a friend who worked at Hook & Bolton, and was actively involved in helping him find an attorney. 28 A-1359-14T4 The judge concluded: Credibility matters, especially when the [c]ourt is asked to apply the equitable discovery rule to delay running the [statute of limitations] for a plaintiff's claim. Here, Mr. Boerma has the burden to establish that a reasonable person in his circumstances would not have been aware by March 18, 2006 of the connection between Accutane and his [ulcerative colitis] diagnosis. The lack of evidence regarding post January 1, 2004 lawyer advertisements in the Journal is telling. It is the conclusion of the [c]ourt that . . . Boerma, has failed to meet his burden of proof with the quality of the testimony he presented and is not entitled to equitable relief. . . . These credibility determinations and findings of fact are well- supported by the record and are, therefore, entitled to our deference. Consequently, we reject Boerma's arguments and affirm the dismissal of his complaint. C. Brian Zimpfer On December 7, 1999, Zimpfer, then seventeen years old, was prescribed Accutane by a dermatologist in Colorado. Beforehand, Zimpfer took several courses of antibiotics, which were ineffective in treating his acne. Although he had input from his parents, Zimpfer testified it was his decision to begin treatment with Accutane. The dermatologist advised Zimpfer of several possible side 29 A-1359-14T4 effects, including diarrhea, nausea and vomiting, but he did not discuss IBD. Zimpfer recalled discussions with the dermatologist about "pregnant women stuff" and that he would have "to get blood drawn." The dermatologist provided Zimpfer with a copy of the 1994 Accutane patient brochure quoted earlier. Zimpfer recalled receiving written literature, which he said he would have read, but he did not specifically recall receiving the patient brochure. He recalled there were warnings on the blister packaging but testified the language in the patient brochure and on the blister packaging would not have warned him that he could develop ulcerative colitis years after taking Accutane. Zimpfer's Accutane treatment, which started in December 1999, continued until May 2000. He suffered no gastrointestinal side effects during treatment. During each monthly follow-up visit, the dermatologist repeated and discussed the risks and side effects of Accutane. On January 22, 2004, approximately three-and-a-half years after he stopped taking Accutane, Zimpfer went to the emergency room at Poudre Valley Hospital in Fort Collins, Colorado, complaining of an acute onset of severe rectal bleeding and stomach cramps he initially thought related to a recent snowboarding fall. He was diagnosed as suffering from hemorrhoids and was not admitted. Zimpfer returned to the emergency room two weeks later, 30 A-1359-14T4 but was not admitted; he complained at the time of the same symptoms and was instructed to follow up with a gastroenterologist. On February 10, 2004, Zimpfer saw a gastroenterologist who performed a colonoscopy and diagnosed ulcerative colitis. Ten months later, in December 2004, Zimpfer returned to the dermatologist for acne treatment. The dermatologist initially treated him with antibiotics, which were discontinued after Zimpfer experienced a flare-up of ulcerative colitis. In seeking approval from Zimpfer's insurance carrier for an alternative acne treatment, the dermatologist wrote that Zimpfer "has tried Accutane in the past with a severe flare" and has "been diagnosed with [u]lcerative colitis which could worsen with [A]ccutane." The dermatologist did not send Zimpfer a copy of the letter but Zimpfer was aware of this possible alternative treatment and mentioned it to his primary care physician. Zimpfer testified that neither the dermatologist nor any treating physician told him of a connection between Accutane and IBD. Zimpfer, who had majored in computer science in college, testified at the Lopez hearing that he first made the connection between the disease and Accutane in October 2005, approximately eighteen months after his diagnosis, when he was admitted to Poudre Valley Hospital for severely worsening ulcerative colitis symptoms. He testified that during his two-week stay in the 31 A-1359-14T4 hospital from October 23 to November 12, 2005, his mother, who Zimpfer said was essentially computer "illiterate," told him that while conducting an internet search she found "some information about a lawsuit with Accutane . . . causing ulcerative colitis." During his deposition, Zimpfer testified he could not recall when his mother discussed her research with him other than to acknowledge it occurred when he was "at Poudre Valley"; he was unable to remember "which stay it was." In his fact sheet, Zimpfer stated he first contemplated hiring an attorney in July 2005 — months before he alleged he learned of the connection between Accutane and IBD. He admitted he knew when he filled out the fact sheet that his suit would be barred if he knew or had reason to know of the connection before June 7, 2005. Nevertheless, he explained he and his mother, who helped him complete the fact sheet, listed the date his mother first learned about the connection between the drug and the disease — a date four months before she allegedly told her son. In explanation, Zimpfer claimed his mother "does that a lot. She'll make up her mind about something and then not tell anyone." Zimpfer's mother testified, however, that she thought she had searched for information about ulcerative colitis closer in time to February 2004 when her son was "diagnosed with ulcerative colitis," because she had never heard of the disease and knew 32 A-1359-14T4 nothing about it. She could not recall exactly when she conducted the internet search, what websites she visited, or whether she discussed her research with her son. She also did not recall finding any research revealing or suggesting an association between Accutane and IBD. As observed above, Zimpfer was diagnosed with IBD on February 10, 2004, but he did not file his complaint until June 7, 2007. The question for the trial judge, and now us, concerns whether Zimpfer knew, or a person in his circumstances should reasonably have known, before June 7, 2005, of information sufficient to believe he had developed IBD because of Accutane. The judge responded to that question with thorough findings. He found that Zimpfer testified his mother told him of the connection while he was at Poudre Valley Hospital. His mother testified that she made the connection around the time of her son's initial gastrointestinal problems and [ulcerative colitis] diagnosis in February 2004. Coincidently, Mr. Zimpfer went to Pourde Valley Hospital on January 22nd and February 4, 2004. Likewise, Mr. Zimpfer's vague testimony at his deposition discredits his assertion at the Lopez hearing that he was told of the connection in October-November 2005 [during his] stay at Poudre Valley Hospital. Although Mr. Zimpfer claims his mother is computer illiterate, she made the causal connection between Accutane and [ulcerative colitis] for him. Mr. Zimpfer cannot repeatedly testify regarding his lack of memory and ask this 33 A-1359-14T4 [c]ourt to doubt his mother's reasonable assertion that she researched her son's disease around the time of the diagnosis. This is especially true considering that the dates of her research match two distinct dates when Mr. Zimpfer was at Poudre Valley Hospital, where he claimed she told him of the connection. Furthermore, it is not believable that Mr. Zimpfer would wait more than a year and a half to inform her son of the connection. . . . Zimpfer [failed] to meet his burden of proof with the quality of the testimony he presented and is not entitled to equitable relief. Accordingly, the filing of his [c]omplaint on March 19, 2008[,] was untimely and must be dismissed with prejudice. The judge's findings, largely the product of his credibility determination, require our deference. Zimpfer, like Luongo, presented conflicting testimony as to when his mother told him about the connection between Accutane and IBD, and the judge was entitled to conclude this connection was drawn at an earlier point than argued – a point more than two years prior to the filing of the complaint. Consequently, we affirm the dismissal of Zimpfer's complaint. D. Kristy Brecke On September 9, 2003, Brecke, then twenty-three years old, was prescribed Accutane by a dermatologist in Minnesota. Brecke, who the judge found to be a candid and credible witness, testified she was warned of the risks of birth defects, suicide, and dry 34 A-1359-14T4 eyes, lips, and skin, but she was not warned of IBD or gastrointestinal symptoms. When Brecke was prescribed Accutane, she was also provided with a copy of the binder entitled "Be Smart/Be Safe/Be Sure Accutane Pregnancy Prevention and Risk Management Program for Women" (9th ed. 2002), which primarily focused on the dangers of becoming pregnant. The binder, however, contained a warning about "Abdomen (stomach area) problems," and cautioned that "[c]ertain symptoms may mean that your internal organs are being damaged" and "may not get better even after you stop taking Accutane." This binder instructed users to cease taking Accutane and call their prescriber if they experienced severe stomach or bowel pain and new or worsening diarrhea or rectal bleeding. Brecke signed the consent form acknowledging she read and understood this written material. At the Lopez hearing, Brecke testified that she recalled receiving the binder and admitted she probably read it "thoroughly." She testified, however, that none of the written material, including the binder, medication guide, and blister packaging, warned that Accutane could cause ulcerative colitis or IBD. On December 4, 2003, while still taking Accutane, Brecke experienced some rectal bleeding and mucus in her stool, but no 35 A-1359-14T4 other gastrointestinal side effects. She described what she characterized as a "very mild symptom." A nurse from the dermatologist's office advised her to stop taking Accutane and see a physician; she complied. On December 8, 2003, Brecke saw her primary care physician and reported she had been taking Accutane and was suspicious it may have caused her rectal bleeding. The physician diagnosed a superficial rectal fissure and prescribed a topical cream. Brecke understood that a fissure was "a crack in the skin in [her] anus"; she did not know that anal fissures are a symptom of IBD. She testified the physician told her he did not think she had developed the fissure from taking Accutane. No other physician told her there was a connection. From this, Brecke felt it was safe to continue taking Accutane. She returned to the dermatologist's office on January 26, 2004, and reported on her treatment with the physician. The dermatologist was satisfied the fissure had resolved and was unrelated to Accutane use, and the Accutane prescription was renewed. Brecke testified she did not think the dermatologist would have continued to prescribe Accutane if she thought the rectal bleeding was an Accutane-related side effect. Brecke continued taking Accutane until March 8, 2004, at which time she continued to experience rectal bleeding but no other gastrointestinal symptoms. After ending her treatment, 36 A-1359-14T4 Brecke continued to experience rectal bleeding, which she reported to her physicians. Beginning in late September 2004, six months after she stopped taking Accutane, Brecke, who held a doctorate in marriage and family therapy, worked for eighteen months as a therapist in a wilderness program for teenagers in Oregon. She experienced some rectal bleeding during this time, which, while "embarrassing," did not restrict her strenuous activity, including hiking mountains carrying a sixty-pound backpack. Prior to starting work with the program, Brecke reported the rectal bleeding during a physical examination with her primary care physician; she was not then suffering from any other gastrointestinal symptoms. Brecke was again diagnosed with an anal fissure and given a prescription for a topical medication. The physician suggested she return for a follow-up examination if her symptoms did not resolve in three months. She did not do so, however, due to a lack of health insurance. During a physical exam on August 3, 2005, Brecke reported she was experiencing rectal bleeding almost every day; she was again diagnosed with "anal fissures with bleeding." During a wilderness trek in December 2005, she experienced "some urgency and looser stools." In January 2006, Brecke took a two-month backpacking trip in 37 A-1359-14T4 Southeast Asia during which she experienced a bout of constipation and bloating that resolved. In March 2006, a few days after she returned from the trip, Brecke experienced for the first time "some pretty severe symptoms," including cramping, urgency and extreme nausea. On April 3, 2006, Brecke returned to her primary care physician complaining of bloody diarrhea. The physician gave her samples of an antibiotic, which did not resolve her symptoms. Three weeks later, on April 26, 2006, she returned complaining of bloody diarrhea, constipation, and urgency; she received another prescription, which did not resolve her symptoms. On May 9, 2006, Brecke went to an emergency room suffering from abdominal pain, nausea, vomiting, diarrhea, and incontinence. There, on May 10, 2006, Brecke was diagnosed as suffering from ulcerative colitis, which she had never heard of until this diagnosis. She testified that none of her treating physicians ever told her what caused her to develop the disease. And she did not relate her symptoms to her use of Accutane approximately two years earlier because her symptoms were so "drastically different" than the anal fissure symptoms she had experienced while taking the drug. Despite all these physical concerns and complaints, Brecke testified she did not make the connection between Accutane and IBD 38 A-1359-14T4 until October 11, 2009, when, at a nurse's suggestion, she read the Mayo Clinic's webpage on IBD for information about her disease. The "Risk Factors" section of the website described Accutane as: a powerful medication sometimes used to treat scarring cystic acne or acne that doesn't respond to other treatments. Although cause and effect hasn't been proved, studies have reported the development of inflammatory bowel disease with isotretinoin use. Brecke then realized she had exhibited ulcerative colitis symptoms during her use of Accutane. Brecke, who was "shocked" and "overwhelmed with emotions," emailed her mother on October 11, 2009, to report that discovery. To summarize, Brecke learned she had developed IBD on May 10, 2006, but did not file her complaint until nearly four years later, on April 5, 2010. The critical question, therefore, is whether Brecke knew, or a person in her circumstances should reasonably have known, before April 5, 2008, of enough information to claim she developed IBD because of Accutane. The trial judge was impressed with Brecke's "candor" during the Lopez hearing and "found her testimony generally credible." But he questioned: what type of person with persistent rectal bleeding makes a two-month backpacking trip throughout Southeast Asia without first consulting with her physician on how to safeguard against a worsening condition while in a foreign country? Someone who is oblivious 39 A-1359-14T4 to her health. Rectal bleeding was one of the very risks Plaintiff was advised of, and it began early, and Accutane was suspected early, yet Ms. Brecke never took it seriously or explored the potential of a claim against [d]efendant. So, when the circumstances of [p]laintiff's medical history are considered in light of the burden of proof required at a Lopez hearing, viz., where the relationship between plaintiff's injury and defendant's fault is not self-evident, plaintiff must prove that a reasonable person in her circumstances would not have been aware of such fault in order to receive the benefit of the discovery rule, Kristy Brecke's claim is found wanting. A reasonable person in her circumstances would have concluded very early on that something was wrong and that the something may have been her ingestion of Accutane. Plaintiff had persistent symptoms that clearly would have prompted action by a reasonable person. Her failure to bring a legal claim within two years of her diagnosis of IBD on May 12, 2006, is fatal to her lawsuit. . . . The judge was entitled to view the evidence as demonstrating that Brecke had reason to know her IBD may have been caused by Accutane earlier than April 5, 2008. She was a well-educated, twenty-three year old when she began taking Accutane and suffered gastrointestinal symptoms during her treatment – a circumstance suggesting a discernable link between the drug and her disease. Although her dermatologist did not specifically warn of the risk of IBD, Brecke (unlike the other plaintiffs here) received a copy of the stronger warnings contained in the 2002 patient binder— 40 A-1359-14T4 warnings the Court in Kendall I found "might have been sufficient to alert a plaintiff of the connection between Accutane and her disease." 209 N.J. at 199. Moreover, as early as December 2003 Brecke in fact suspected Accutane may have caused her rectal bleeding. Although her primary care physician diagnosed her at that time with a rectal fissure, and her dermatologist continued her prescription for Accutane, Brecke suffered from rectal bleeding while taking Accutane and continued to suffer from worsening rectal bleeding for approximately three years. In light of these circumstances, the judge's finding that Brecke had failed to sustain her burden of persuasion is entitled to our deference. IV The orders dismissing the complaints in these four matters are affirmed. 41 A-1359-14T4
Date: January 30, 2018
Docket Number: a1359-14 PER CURIAM In these consolidated appeals, four plaintiffs – Kristy Brecke, Gregory Luongo, James Albert Boerma, Jr., and Brian Zimpfer – who claim injuries from their use of Accutane, which is manufactured and sold by defendants, argue that the trial judge erred in finding their claims to be time barred. Because our standard of review compels deference to the judge's findings of fact, Cole v. Jersey City Med. Ctr., 215 N.J. 265, 275 (2013), and because the judge correctly applied the principles of Lopez v. Swyer, 62 N.J. 267 (1973), in applying the two-year statute of limitations, N.J.S.A. 2A:14-2, we affirm the dismissal of all four complaints. To explain, we provide a few brief comments about Accutane, followed by a discussion of the applicable legal principles and our standard of review, and then a separate analysis of each of these four cases. 3 A-1359-14T4 I In 1982, the Food and Drug Administration (FDA) approved defendants' new drug application to market Accutane, "known generically as isotretinoin, for the treatment of recalcitrant nodular acne." McCarrell v. Hoffman-La Roche, Inc. (McCarrell II), 227 N.J. 569, 577 (2017). The drug is a retinoid, derived from vitamin A, and is highly effective in treating severe acne. Kendall v. Hoffman-La Roche, Inc. (Kendall I), 209 N.J. 173, 180 (2012). It is undisputed that Accutane "has a number of known side effects, including[:] dry lips, skin and eyes; conjunctivitis; decreased night vision; muscle and joint aches; elevated triglycerides; and a high risk of birth defects if a woman ingests the drug while pregnant." Ibid. There is also evidence that Accutane has an effect on the gastrointestinal tract. McCarrell v. Hoffman-La Roche, Inc. (McCarrell I), No. A-3280-07 (App. Div. Mar. 12, 2009) (slip op. at 6, 23-26). These Accutane cases, and others currently pending in this multicounty litigation, concern the alleged propensity of the drug to cause inflammatory bowel disease (IBD), a chronic disease that primarily manifests as one of two diseases: Crohn's disease or ulcerative colitis. Kendall I, 209 N.J. at 181. Ulcerative colitis (plaintiffs' diagnosed condition), primarily involves inflammation 4 A-1359-14T4 of the lining of the colon (large intestine), while Crohn's disease can occur in any part of the digestive tract, although it primarily manifests in the small intestine (the ileum) and the colon. The peak onset of IBD occurs during adolescence – the same period during which individuals are likely to take Accutane. Ibid. Both forms of IBD share the same core symptoms including abdominal pain, frequent and often bloody bowel movements, and rectal bleeding. Ibid. These symptoms, however, are also associated with other less serious and curable diseases. Although the cause of IBD remains largely unknown, several triggers are associated with a statistically increased rate of IBD, including family history, infections, antibiotics, smoking, and possibly the use of oral contraceptives and nonsteroidal anti-inflammatory drugs. Ibid. The FDA did not require a warning about IBD on the 1982 Accutane launch label. But, shortly after obtaining FDA approval, defendants received reports of IBD in patients taking Accutane. In March 1984, defendants amended the "Warnings" section of the Accutane package insert (or label) made available to physicians but not patients, that remained in effect until 2000, to provide: Inflammatory Bowel Disease: Accutane has been temporally associated with inflammatory bowel disease (including regional ileitis) in patients without a prior history of intestinal disorders. Patients experiencing abdominal 5 A-1359-14T4 pain, rectal bleeding or severe diarrhea should discontinue Accutane immediately. The 1994 Accutane patient brochure that was provided to three of the four plaintiffs – Luongo, Boerma, and Zimpfer – did not specifically refer to IBD, but warned users that during treatment: YOU SHOULD BE AWARE THAT ACCUTANE MAY CAUSE SOME LESS COMMON, BUT MORE SERIOUS SIDE EFFECTS. BE ALERT FOR ANY OF THE FOLLOWING: · HEADACHES, NAUSEA, VOMITING, BLURRED VISION · CHANGES IN MOOD · SEVERE STOMACH PAIN, DIARRHEA, RECTAL BLEEDING · PERSISTENT FEELING OF DRYNESS OF THE EYES · YELLOWING OF THE SKIN OR EYES AND/OR DARK URINE IF YOU EXPERIENCE ANY OF THESE SYMPTOMS OR ANY OTHER UNUSUAL OR SEVERE PROBLEMS, DISCONTINUE TAKING ACCUATNE AND CHECK WITH YOUR DOCTOR IMMEDIATELY. THEY MAY BE THE EARLY SIGNS OF MORE SERIOUS SIDE EFFECTS WHICH, IF LEFT UNTREATED, COULD POSSIBLY RESULT IN PERMANENT EFFECTS. The same warnings were reprinted on the blister packaging, which contained the individual Accutane pills. At that time, the "patient information/consent" form was limited to warning about the risks of birth defects if a woman became pregnant while taking the drug. In May 2000, the FDA approved an amendment to the "WARNINGS" 6 A-1359-14T4 section of the package insert or label, provided to physicians, but not patients, strengthening the warnings by removing the word "temporally," and warning that: Inflammatory Bowel Disease: Accutane has been associated with inflammatory bowel disease (including regional iletis) in patients without a prior history of intestinal disorders. In some instances, symptoms have been reported to persist after Accutane treatment has been stopped. Patients experiencing abdominal pain, rectal bleeding or severe diarrhea should discontinue Accutane immediately (see ADVERSE REACTIONS: Gastrointestinal). [(Emphasis added).] The "ADVERSE REACTIONS" section of the label provided: ADVERSE REACTIONS: Clinical Trials and Postmarketing Surveillance: The adverse reactions listed below reflect the experience from investigating studies of Accutane, and the postmarketing experience. The relation- ship of some of these events to Accutane therapy is unknown. Many of the side effects and adverse reactions seen in patients receiving Accutane are similar to those described in patients taking very high doses of vitamin A (dryness of the skin and mucous membranes, e.g. of the lips, nasal passage, and eyes). Gastrointestinal inflammatory bowel disease (see WARNINGS: inflammatory bowel disease) . . . bleeding and inflammation of the gums, colitis, ileitis, nausea, and other nonspecific gastrointestinal symptoms. Beginning in January 2001, pharmacists provided Accutane 7 A-1359-14T4 patients with a "Medication Guide," which described some of the symptoms of IBD, but did not specifically refer to the disease, warning instead that "Accutane has possible serious side effects," including: Abdomen (stomach area) problems. Certain symptoms may mean that your internal organs are being damaged. These organs include the liver, pancreas, and bowel (intestines). If your organs are damaged, they may not get better even after you stop taking Accutane. Stop taking Accutane and call your provider if you get severe stomach or bowel pain, diarrhea, rectal bleeding, yellowing of your skin or eyes, or dark urine. Serious permanent problems do not happen often. However, because the symptoms listed above may be signs of serious problems, if you get these symptoms, stop taking Accutane and call your provider. If not treated, they could lead to serious health problems. Even if these problems are treated, they may not clear up even after you stop taking Accutane. Commencing in January 2002, physicians were also required to provide patients with a patient brochure presented as a bright pink colored metal ring binder entitled "Be Smart/Be Safe/Be Sure Accutane Pregnancy Prevention and Risk Management Program for Women." See Kendall I, 209 N.J. at 183. The "binder materials primarily focused on the dangers of becoming pregnant while taking Accutane." Ibid. The binder's first section, entitled "Patient Product Information: Important information concerning your 8 A-1359-14T4 treatment with Accutane (isotretinoin)," warned, without specifically referring to IBD, that: You should be aware that certain SERIOUS SIDE EFFECTS have been reported in patients taking Accutane. Serious problems do not happen in most patients. If you experience any of the following side effects or any other unusual or severe problems, stop taking Accutane right away and call your prescriber because they may result in permanent effects. Abdomen (stomach area) problems. Certain symptoms may mean that your internal organs are being damaged. These organs include the liver, pancreas, bowel (intestines), and esophagus (connection between mouth and stomach). If your organs are damaged, they may not get better even after you stop taking Accutane. Stop taking Accutane and call your prescriber if you get severe stomach, chest, or bowel pain; have trouble swallowing or painful swallowing; get new or worsening heartburn, diarrhea, rectal bleeding, yellowing of your skin or eyes, or dark urine. [(Emphasis added.)] The ninth edition of the "Be Smart, Be Safe, Be Sure" binder included consent forms to be removed and signed by patients, requiring them to acknowledge that they understood the risks of serious birth defects and would stop taking Accutane if they experienced any symptoms of depression; it did not specifically refer to IBD. Patients were also required to acknowledge they had read and understood "the Patient Product Information, Important 9 A-1359-14T4 Information Concerning your treatment with Accutane© (isotretinoin) and other materials my prescriber gave me containing important safety information about Accutane." Similar warnings to patients were included on the blister packaging, which again primarily warned about birth defects and depression, but also warned, without specifically referring to IBD, that: Other serious side effects to watch for[.] Stop taking Accutane and call your prescriber if you develop any of the problems on this list or any other unusual or severe problems. If not treated they could lead to serious health problems. Serious permanent problems do not happen often. Severe stomach pain, diarrhea, rectal bleeding, or trouble swallowing . . . . These were, in general, the relevant communications provided to physicians and patients at or about the time these four plaintiffs were taking Accutane or were experiencing difficulties following their course of Accutane. II The timeliness of plaintiffs' complaints – as well as the complaints filed by seven other plaintiffs1 – were the subject of 1 The judge also dismissed two of these other seven; five were found timely filed. The other two plaintiffs whose complaints were dismissed have not appealed. 10 A-1359-14T4 Lopez hearings that occurred in 2014. All four of these plaintiffs were diagnosed with their ailments more than two years prior to the filing of their complaints. Because a product liability action "generally accrues on the date of injury," Cornett v. Johnson & Johnson, 211 N.J. 362, 377 (2012), abrogated on other grounds by McCarrell II, 227 N.J. at 591 n.9, and the Legislature requires that such actions be commenced within "two years . . . after the cause of any such action shall have accrued," N.J.S.A. 2A:14-2,2 plaintiffs' complaints could only survive through a proper application of equitable tolling principles embodied within the discovery rule, Lopez, 62 N.J. at 272. This discovery rule is a rule of equity; it tolls the statute of limitations "until the injured party discovers, or by an exercise of reasonable diligence and intelligence should have discovered . . . a basis for an actionable claim." Lopez, 62 N.J. at 272; see also McCarrell II, 227 N.J. at 578. This equitable principle "avoid[s] the harsh results that otherwise would flow from mechanical application of a statute of limitations," Vispisiano v. Ashland Chem. Co., 107 N.J. 416, 426 (1987), and 2 The parties do not dispute that New Jersey's statute of limitations jurisprudence applies to the claims of these out-of- state plaintiffs. See McCarrell II, 227 N.J. at 575. 11 A-1359-14T4 "balances the need to protect injured persons unaware that they have a cause of action against the injustice of compelling a defendant to defend against a stale claim," Kendall I, 209 N.J. at 193. The party claiming the discovery rule's indulgence is saddled with the burden of persuasion. Lopez, 62 N.J. at 276. Although a judge's application of legal principles is subject to de novo review, Manalapan Realty L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995), a judge's factual findings and assessment of witness credibility are entitled to deference on appeal unless lacking support in the record, Cole, 215 N.J. at 275; Rova Farms Resort, Inc. v. Inv'rs Ins. Co. of Am., 65 N.J. 474, 483-84 (1974). The question posed in these four cases is "whether the facts presented would alert a reasonable person exercising ordinary diligence" that the alleged injury was "due to the fault of another." Hardwicke v. Am. Boychoir Sch., 188 N.J. 69, 110 (2006) (quoting Martinez v. Cooper Hosp.-Univ. Med. Ctr., 163 N.J. 45, 52 (2000)); see also Kendall I, 209 N.J. at 191. The standard is objective: whether the plaintiff "knew or should have known" of facts sufficient to equitably justify the commencement of the statute of limitations. Martinez, 163 N.J. at 52. The determination is "highly fact-sensitive," Catena v. Raytheon Co., 447 N.J. Super. 43, 54 (App. Div. 2016), appeal dismissed, __ N.J. __ (2017), 12 A-1359-14T4 varying "from case to case, and . . . from type of case to type of case," Vispisiano, 107 N.J. at 434. Factors to be considered include: the nature of the injury; the availability of witnesses and written evidence; the elapsed time since the alleged wrongdoing; whether the delay was deliberate or intentional; and whether the delay peculiarly or unusually prejudiced the defendant. Lopez, 62 N.J. at 276. When "fault is not self-evident at the time of injury, a plaintiff need only have 'reasonable medical information' that connects an injury with fault to be considered to have the requisite knowledge for the claim to accrue." Kendall I, 209 N.J. at 193 (quoting Vispisiano, 107 N.J. at 435). The Court in Kendall I held that in pharmaceutical cases a judge must also consider the rebuttable presumption of adequacy of an FDA-approved warning under N.J.S.A. 2A:58C-4 "where the question is what a reasonable person knew or should have known about the risks of a product for discovery rule purposes." 209 N.J. at 179-80. In the discovery rule setting, unlike when liability is the issue, the Court adopted a "middle-of-the-road approach," and held that the presumption should be treated as a standard presumption "capable of being overcome by evidence which 'tends to disprove the presumed fact, thereby raising a debatable question regarding the existence of the presumed fact.'" Id. at 13 A-1359-14T4 197 (quoting Shim v. Rutgers, 191 N.J. 374, 386 (2007)). The plaintiff may overcome the presumption of adequacy with evidence to show that despite the product's warnings "a reasonable person in her circumstances would not have been aware, within the prescribed statutory period, that she had been injured by defendants' product." Id. at 197-98. In applying that analysis, the Court held that Kendall's suit could proceed because the evidence not only overcame the presumption but also established she was reasonably unaware defendants caused her injury until less than two years before she filed suit. Id. at 198. The Court reached that conclusion because: (1) Kendall was twelve years old when she began taking Accutane; (2) her treating physicians had never warned her or her parent of the risk of IBD because they were unaware of its relationship to Accutane; (3) she suffered no gastrointestinal symptoms during her first four courses of Accutane; (4) her dermatologist, in consult with her gastroenterologist, agreed to prescribe a fifth course of Accutane in 2000 despite the diagnosis of ulcerative colitis in 1999; and (5) during her sixth course of Accutane, from 2003 to 2004, she received a stronger warning and experienced some increased diarrhea, but no other gastrointestinal symptoms. Id. at 198-99. The Court found: 14 A-1359-14T4 Although we can conceive of circumstances in which the 2003 warning might have been sufficient to alert a plaintiff of the connection between Accutane and her disease, it was certainly not sufficient, in these circumstances, to cause Kendall to doubt her physicians or to disregard the advice and information that had been imparted to her by them for the prior six years. That is particularly so in light of the lack of a discernable link between Kendall's symptoms and the ingestion of the drug. [Id. at 199.] We are also mindful of McCarrell II, where plaintiff's claim was found timely filed, evidence having revealed he began taking Accutane in 1995, when he was twenty-four years old, during which he did not experience any gastrointestinal symptoms. 227 N.J. at 576. He received a copy of the 1994 Accutane patient brochure. Id. at 577. His physicians never warned him that Accutane can cause IBD. Ibid. He experienced symptoms of IBD in August 1996, ten months after he stopped taking Accutane, and was diagnosed with IBD in November 1996. Id. at 576. McCarrell testified during a Lopez hearing that he made the connection between the drug and IBD in May 2003, when his grandmother showed him an advertisement for a law firm. McCarrell I, slip op. at 106-07. With this guidance from our Supreme Court, we separately examine the disposition of the four complaints in question in these consolidated appeals. 15 A-1359-14T4 III A. Gregory Luongo On December 17, 1996, Luongo – then two months shy of his eighteenth birthday – was prescribed Accutane by a Massachusetts dermatologist. Prior to taking Accutane, Luongo received three courses of antibiotics; all were ineffective in treating his acne. Luongo received, along with his mother, the dermatologist's advice regarding Accutane's potential common side effects. The dermatologist testified it was her practice to discuss potential gastrointestinal effects, including abdominal pain, nausea, vomiting, diarrhea, and rectal bleeding, but she did not specifically warn about IBD because it was not known to be a common side effect. Luongo, who participated in medical decisions in collaboration with his mother, could not recall the details of this discussion, but he maintained the dermatologist did not inform him that Accutane could cause ulcerative colitis because the first time he heard the term was in 2003, when he was diagnosed with the disease. Luongo's mother, then employed as a staff physical therapist, confirmed she too first became aware of the term when her son was diagnosed with the disease. When prescribing Accutane, the dermatologist provided Luongo and his mother with a copy of the 1994 Accutane patient brochure, 16 A-1359-14T4 which as observed earlier, did not specifically warn about IBD but warned that, "[d]uring your treatment," "ACCUTANE MAY CAUSE SOME LESS COMMON, BUT MORE SERIOUS SIDE EFFECTS" and advised patients to be "ALERT" for "SEVERE STOMACH PAIN, DIARRHEA, [and] RECTAL BLEEDING." Luongo testified he "likely" read the materials "thoroughly." Those warnings were also included on the Accutane blister packaging. During his Accutane treatment between December 1996 and June 1997, Luongo experienced no gastrointestinal side effects. In 1999, two years later, Luongo experienced "[s]ome diarrhea and cramping," which he then attributed to a virus or "stomach bug" but now relates to his ingestion of Accutane. He did not then seek medical treatment because the symptoms did not persist. His symptoms "infrequently" reoccurred, but he did not report those symptoms to his primary physician during an annual physical in May 2002. In February 2003, six years after he completed Accutane treatment, Luongo's symptoms progressed and he thought it might be something more serious. For several months, Luongo experienced persistent and worsening diarrhea, rectal bleeding, and abdominal pain and cramping – symptoms he admittedly was warned in 1996 were side effects of taking Accutane. Luongo's family physician referred him to a 17 A-1359-14T4 gastroenterologist, who, in March 2003, diagnosed Luongo as suffering from ulcerative colitis. None of Luongo's treating physicians told him that Accutane was a cause of his IBD. Although Luongo had not heard of ulcerative colitis before his diagnosis, he testified that as of March 2003 he understood "ulcerative colitis . . . meant symptoms of abdominal pain, diarrhea [and] rectal bleeding." He admitted his dermatologist had told him Accutane's side effects included abdominal pain, diarrhea and rectal bleeding – the symptoms he had been experiencing. And he admitted that if shown the patient brochure in March 2003 he would have suspected Accutane as a nexus: Q. So if in March 2003 after you had been diagnosed you had gone home and you . . . found that brochure lying around . . . and you had read that, that would have been notice to you that, whoa, maybe Accutane had something to do with my ulcerative colitis. Right? A. It's possible if I had seen that at that time, yes. Q. Essentially what you're saying today is that in March 2003, you simply forgot what you had been told by [the dermatologist] and what you had read in the brochure back in 1996 and 1997? A. That's correct. Luongo asserted, however, that his understanding of the warning was that the gastrointestinal symptoms would arise while taking Accutane, not six years later, and that if he had developed those 18 A-1359-14T4 symptoms while taking the drug and had been treated, the symptoms would have ceased and not have led to chronic, irreversible IBD. Luongo testified at the Lopez hearing that he first drew a connection between Accutane and IBD in early 2011 when he saw a television commercial which advised compensation was available for those who had taken Accutane and developed IBD. He acknowledged, however, he learned nothing new from the lawyer's advertisement, only that it was the first time a connection between his diagnosis and Accutane had been expressed to him. Luongo's complaint was filed on June 9, 2011, more than eight years after the March 2003 diagnosis of ulcerative colitis. During discovery, defendants obtained medical records from all Luongo's physicians except a pediatrician he saw prior to 1993. In accordance with his office policy, that pediatrician had destroyed Luongo's medical records, which would have revealed whether Luongo took antibiotics as a child. At his deposition, Luongo admitted this pediatrician may have prescribed antibiotics for him as a child for ailments such as ear infections, strep throat, and sinus infections. To summarize the essential facts, it is undisputed Luongo experienced IBD symptoms in 1999, was diagnosed with ulcerative colitis in 2003, and did not file his complaint until June 9, 2011, more than eight years after the diagnosis. In considering 19 A-1359-14T4 the timeliness of the complaint, the critical question is whether Luongo knew, or a person in his circumstances should reasonably have known, before June 9, 2009, enough information to believe he had developed ulcerative colitis because he took Accutane. The trial judge found Luongo to be "generally credible" and concluded Luongo had reason to know "very early on that something was wrong and that the something may well have been his ingestion of Accutane." The judge explained that Luongo "had symptoms that would have prompted action by a reasonable person," and Luongo's "failure to act within two years of his diagnosis of [ulcerative colitis] in March 2003, is fatal to his claim." The judge found that: Luongo admits that if he had read the warnings of the brochure in March 2003, he would have believed Accutane may have caused his [ulcerative colitis]. Luongo also concedes that in March 2003, he forgot what [the dermatologist] had told him and what he had read in the Accutane brochure. Plaintiff conceded that the warnings in the literature he received described the symptoms he had been experiencing for years. Luongo claims that it wasn't until eight years after his diagnosis that he first made the connection between Accutane and [ulcerative colitis] when he saw a [television] commercial in early 2011. Interestingly, on cross[-]examination, Mr. Luongo conceded that he didn't learn any new information from the lawyer solicitation on television that he hadn't previously learned from the warning literature. The judge additionally found that the delay in filing suit 20 A-1359-14T4 prejudiced defendants: Most striking about Luongo's case is the long period of time between being diagnosed with [ulcerative colitis] and filing his claim. . . . This is especially troubling because multiple records from his medical/health history no longer exist. The need for complete medical records in these types of claims is imperative. The lack of those records unfairly prejudices [d]efendant's ability to investigate other potential causes of Mr. Luongo's [ulcerative colitis]. Considering those factors deemed relevant in Kendall I, we note, as the judge recognized, that Luongo was seventeen when he began taking Accutane and suffered no gastrointestinal symptoms during his treatment. But, Luongo developed some non-persistent gastrointestinal symptoms two years after he stopped treatment, and was diagnosed with ulcerative colitis more than eight years before he commenced suit. Regardless of the fact that Luongo did not receive the stronger 2003 warnings quoted earlier, his testimony permitted the judge's finding that the 2011 legal ad – the event that allegedly triggered Luongo's connection between Accutane and his ailments – did not inform Luongo of anything he did not already know. To be sure, although Luongo forcefully argues that the factual circumstances should have led to a different determination – particularly asserting that it is not reasonable to conclude that someone in Luongo's position would likely go back and re-read the 21 A-1359-14T4 warnings in search of a link between Accutane and the diagnosis received years later – the judge was entitled to make findings based on his own appreciation of the evidence. In addition, the judge's findings and ultimate determination to dismiss the complaint finds further support in the evidence of prejudice to defendants. Although defendants were able to marshal considerable evidence of Luongo's medical history and Accutane usage, the passage of time deprived defendants of a pediatrician's treatment of Luongo up until 1993, three years before Luongo began taking Accutane. Consequently, in deferring to the judge's findings, which are well-supported by the evidence, we affirm the dismissal of Luongo's complaint. B. James Boerma On February 17, 1998, Boerma, then thirteen years old, was prescribed Accutane by a Florida dermatologist. Prior to taking Accutane, Boerma had undergone a three-month course of antibiotics, which was not effective in treating his acne. Before prescribing Accutane, the dermatologist advised Boerma and his mother of the "possible risks and benefits of Accutane therapy" and said he typically discussed with patients the risk of developing "pseudotumor cerebri, headaches, mood 22 A-1359-14T4 swings, depression, hair loss, visual disturbance, . . . arthraigias, photosensitivity, flare of acne resulting in scarring, and hypertriglyceridemia." The dermatologist did not discuss IBD or diarrhea, and Boerma did not remember receiving written or verbal warnings about those things from the dermatologist. Boerma's recollection, however, was not very reliable since he also could not remember where the dermatologist's office was, what the dermatologist looked like, or even when he had taken Accutane. Boerma's mother, who made medical decisions on her son's behalf at that time, recalled that the dermatologist warned of the risk of getting pregnant while taking the drug and of developing dry lips. The dermatologist provided Boerma and his mother with a copy of the 1994 Accutane patient brochure, which, as we have noted, warned of serious side effects during Accutane use, and alerted patients to the potential for severe stomach pain, diarrhea, and rectal bleeding. Boerma's mother testified at her deposition that it was her practice to read written information about medications, but she only recalled seeing the warnings in the brochure about pregnancy and the drawings depicting common birth defects associated with Accutane use during pregnancy. Boerma similarly only recalled having seen the drawing of the pregnant woman on the individual pill packaging. 23 A-1359-14T4 During his treatment, between February and April 1998, Boerma experienced dry skin and chapped lips but no gastrointestinal symptoms. Four years later, in the summer of 2002, Boerma – then seventeen years old and living in Louisiana with his father – experienced diarrhea, abdominal pain, and rectal bleeding. In July 2002, a gastroenterologist determined Boerma was suffering from ulcerative colitis. None of Boerma's physicians told him or his mother that Accutane was a cause of his IBD. In fact, the gastroenterologist testified that if a patient asked how he had developed IBD, he would reply, "[b]ad luck, being related to the wrong people if somebody else had the disease in their family; that it just happens, rarely, occasionally." Boerma's mother testified she had "probably" researched the disease at that time by using a dictionary or an encyclopedia. Boerma testified at the Lopez hearing that he first made a connection between Accutane and IBD "[t]owards the end of the year 2006," when his mother telephoned him from Pensacola, Florida to inform him she had learned there may be a relationship. In his fact sheet, Boerma asserted he first contemplated retaining an attorney "in December 2006," but, when questioned at the Lopez hearing, Boerma said "it was September time" when he "started working" at Times Bar & Grill and toward "the end of [his] culinary school training." In his fact sheet, Boerma asserted he began 24 A-1359-14T4 working at the Times Bar & Grill in March 2006. Consequently, Boerma later admitted at the Lopez hearing that these discussions about a link between his illness and Accutane occurred during "the beginning of 2006." Boerma also admitted he had confused other dates on his fact sheet and employment applications. Nonetheless, Boerma persisted in fixing the date of the phone call from his mother with the fact that he was living in an apartment in Louisiana with a roommate in the fall of 2006. He also recalled that when his mother came to Louisiana for Thanksgiving in 2006, they discussed the connection between Accutane and ulcerative colitis and the fact that a Pensacola law firm was pursuing such cases: Q. And did she tell you then that she learned of this connection from any kind of advertisement in the Pensacola paper? A. No, sir. Q. What was your impression then in Thanksgiving as to how she learned this? A. That she had done research or read -- just done research on it. I didn't know where she got it from. Boerma's mother, who was employed as a paralegal in a bankruptcy law firm, testified during her deposition that she first learned of a possible connection between Accutane and ulcerative colitis when she read an advertisement in the Pensacola 25 A-1359-14T4 News Journal. She said she talked to her son about the advertisement and "probably" suggested he call the attorney listed, but she could not recall when she saw the advertisement or when she talked to her son. During discovery, Boerma produced copies of Pensacola News Journal attorney advertisements but these advertisements ran only during the month of August 2003, not in 2006.3 Boerma's mother testified that sometime "much later" – after she read the advertisement – she conducted internet research on ulcerative colitis; she could not recall if she read anything about a connection between Accutane and IBD or in what year she conducted the research. Boerma stated he never saw the advertisement, nor did his mother tell him about it – she only told him she "learned there was a connection" without explaining "where she got this connection." Boerma learned he had developed IBD in July 2002 but did not file his complaint until March 19, 2008. The critical question is whether Boerma knew, or a person in his circumstances should reasonably have known, before March 19, 2006, of enough information 3 The advertisement for two local attorneys, read in part, "ACCUTANE USERS YOU MAY HAVE A CLAIM. If you are taking or have taken the acne drug Accutane and have suffered from side effects such as . . . inflammatory bowel disease including [C]rohn's disease and ulcerative colitis . . . contact . . . [us]." 26 A-1359-14T4 to believe he had developed IBD because he took Accutane. The trial judge found that "the details surrounding . . . Boerma's awareness that Accutane may have caused his [ulcerative colitis] are unclear and, at times, not sufficiently credible." For example, "Boerma claimed that his mother called him in September 2006 and made him aware of the connection between Accutane and [ulcerative colitis]." To substantiate that claim, he "correlated the telephone call with his mother to his recent employment at Times Bar and Grill." But, in his fact sheet, Boerma set forth that he had been working at the Times Bar and Grill since March 2006, and thus "acknowledged" that his testimony during the Lopez hearing "was inaccurate." Boerma also testified his mother made the connection between Accutane and IBD "by doing independent research." But Boerma's mother testified at her deposition "that she did not know if her son's recollection of her research was accurate," and that "she first did non-computerized research on her son's [ulcerative colitis] around the time of his diagnosis, and any computer based research would have been conducted in the recent past." She also "could not remember coming across anything in her research regarding the connection between Accutane and [ulcerative colitis]." Instead, Boerma's mother said she first made the connection 27 A-1359-14T4 between Accutane and her son's ulcerative colitis when she read a lawyer's advertisement in the Pensacola News Journal. She could not recall when she saw the advertisement and claimed, in contrast to her son's testimony, she discussed it with him. Prior to the Lopez hearing, the trial court ordered "that all lawyer advertisements placed by firms representing and referring plaintiffs on or after January 1, 2004 be produced. The attorneys who entered an appearance were also required to advise if any referring attorneys refused to produce any such ads." No such advertisements were produced, nor was there any suggestion of non- compliance. Thus, the trial judge found "there is no evidence of any post-January 1, 2004 Accutane lawyer's advertisements in the Journal" and that "lack of evidence . . . supplement[ed] [Boerma's mother's] poor recollection as to when she first saw the advertisement." The trial judge also found Boerma was "not credible" for a number of reasons: He often confused the dates of his employment and education. Furthermore, at his deposition, Mr. Boerma testified that his mother never told him to contact an attorney and she did not help him find an attorney. However, Mr. Boerma changed his testimony at the Lopez hearing and stated that his mother did recommend Hook & Bolton. [His mother]'s deposition confirms that she had a friend who worked at Hook & Bolton, and was actively involved in helping him find an attorney. 28 A-1359-14T4 The judge concluded: Credibility matters, especially when the [c]ourt is asked to apply the equitable discovery rule to delay running the [statute of limitations] for a plaintiff's claim. Here, Mr. Boerma has the burden to establish that a reasonable person in his circumstances would not have been aware by March 18, 2006 of the connection between Accutane and his [ulcerative colitis] diagnosis. The lack of evidence regarding post January 1, 2004 lawyer advertisements in the Journal is telling. It is the conclusion of the [c]ourt that . . . Boerma, has failed to meet his burden of proof with the quality of the testimony he presented and is not entitled to equitable relief. . . . These credibility determinations and findings of fact are well- supported by the record and are, therefore, entitled to our deference. Consequently, we reject Boerma's arguments and affirm the dismissal of his complaint. C. Brian Zimpfer On December 7, 1999, Zimpfer, then seventeen years old, was prescribed Accutane by a dermatologist in Colorado. Beforehand, Zimpfer took several courses of antibiotics, which were ineffective in treating his acne. Although he had input from his parents, Zimpfer testified it was his decision to begin treatment with Accutane. The dermatologist advised Zimpfer of several possible side 29 A-1359-14T4 effects, including diarrhea, nausea and vomiting, but he did not discuss IBD. Zimpfer recalled discussions with the dermatologist about "pregnant women stuff" and that he would have "to get blood drawn." The dermatologist provided Zimpfer with a copy of the 1994 Accutane patient brochure quoted earlier. Zimpfer recalled receiving written literature, which he said he would have read, but he did not specifically recall receiving the patient brochure. He recalled there were warnings on the blister packaging but testified the language in the patient brochure and on the blister packaging would not have warned him that he could develop ulcerative colitis years after taking Accutane. Zimpfer's Accutane treatment, which started in December 1999, continued until May 2000. He suffered no gastrointestinal side effects during treatment. During each monthly follow-up visit, the dermatologist repeated and discussed the risks and side effects of Accutane. On January 22, 2004, approximately three-and-a-half years after he stopped taking Accutane, Zimpfer went to the emergency room at Poudre Valley Hospital in Fort Collins, Colorado, complaining of an acute onset of severe rectal bleeding and stomach cramps he initially thought related to a recent snowboarding fall. He was diagnosed as suffering from hemorrhoids and was not admitted. Zimpfer returned to the emergency room two weeks later, 30 A-1359-14T4 but was not admitted; he complained at the time of the same symptoms and was instructed to follow up with a gastroenterologist. On February 10, 2004, Zimpfer saw a gastroenterologist who performed a colonoscopy and diagnosed ulcerative colitis. Ten months later, in December 2004, Zimpfer returned to the dermatologist for acne treatment. The dermatologist initially treated him with antibiotics, which were discontinued after Zimpfer experienced a flare-up of ulcerative colitis. In seeking approval from Zimpfer's insurance carrier for an alternative acne treatment, the dermatologist wrote that Zimpfer "has tried Accutane in the past with a severe flare" and has "been diagnosed with [u]lcerative colitis which could worsen with [A]ccutane." The dermatologist did not send Zimpfer a copy of the letter but Zimpfer was aware of this possible alternative treatment and mentioned it to his primary care physician. Zimpfer testified that neither the dermatologist nor any treating physician told him of a connection between Accutane and IBD. Zimpfer, who had majored in computer science in college, testified at the Lopez hearing that he first made the connection between the disease and Accutane in October 2005, approximately eighteen months after his diagnosis, when he was admitted to Poudre Valley Hospital for severely worsening ulcerative colitis symptoms. He testified that during his two-week stay in the 31 A-1359-14T4 hospital from October 23 to November 12, 2005, his mother, who Zimpfer said was essentially computer "illiterate," told him that while conducting an internet search she found "some information about a lawsuit with Accutane . . . causing ulcerative colitis." During his deposition, Zimpfer testified he could not recall when his mother discussed her research with him other than to acknowledge it occurred when he was "at Poudre Valley"; he was unable to remember "which stay it was." In his fact sheet, Zimpfer stated he first contemplated hiring an attorney in July 2005 — months before he alleged he learned of the connection between Accutane and IBD. He admitted he knew when he filled out the fact sheet that his suit would be barred if he knew or had reason to know of the connection before June 7, 2005. Nevertheless, he explained he and his mother, who helped him complete the fact sheet, listed the date his mother first learned about the connection between the drug and the disease — a date four months before she allegedly told her son. In explanation, Zimpfer claimed his mother "does that a lot. She'll make up her mind about something and then not tell anyone." Zimpfer's mother testified, however, that she thought she had searched for information about ulcerative colitis closer in time to February 2004 when her son was "diagnosed with ulcerative colitis," because she had never heard of the disease and knew 32 A-1359-14T4 nothing about it. She could not recall exactly when she conducted the internet search, what websites she visited, or whether she discussed her research with her son. She also did not recall finding any research revealing or suggesting an association between Accutane and IBD. As observed above, Zimpfer was diagnosed with IBD on February 10, 2004, but he did not file his complaint until June 7, 2007. The question for the trial judge, and now us, concerns whether Zimpfer knew, or a person in his circumstances should reasonably have known, before June 7, 2005, of information sufficient to believe he had developed IBD because of Accutane. The judge responded to that question with thorough findings. He found that Zimpfer testified his mother told him of the connection while he was at Poudre Valley Hospital. His mother testified that she made the connection around the time of her son's initial gastrointestinal problems and [ulcerative colitis] diagnosis in February 2004. Coincidently, Mr. Zimpfer went to Pourde Valley Hospital on January 22nd and February 4, 2004. Likewise, Mr. Zimpfer's vague testimony at his deposition discredits his assertion at the Lopez hearing that he was told of the connection in October-November 2005 [during his] stay at Poudre Valley Hospital. Although Mr. Zimpfer claims his mother is computer illiterate, she made the causal connection between Accutane and [ulcerative colitis] for him. Mr. Zimpfer cannot repeatedly testify regarding his lack of memory and ask this 33 A-1359-14T4 [c]ourt to doubt his mother's reasonable assertion that she researched her son's disease around the time of the diagnosis. This is especially true considering that the dates of her research match two distinct dates when Mr. Zimpfer was at Poudre Valley Hospital, where he claimed she told him of the connection. Furthermore, it is not believable that Mr. Zimpfer would wait more than a year and a half to inform her son of the connection. . . . Zimpfer [failed] to meet his burden of proof with the quality of the testimony he presented and is not entitled to equitable relief. Accordingly, the filing of his [c]omplaint on March 19, 2008[,] was untimely and must be dismissed with prejudice. The judge's findings, largely the product of his credibility determination, require our deference. Zimpfer, like Luongo, presented conflicting testimony as to when his mother told him about the connection between Accutane and IBD, and the judge was entitled to conclude this connection was drawn at an earlier point than argued – a point more than two years prior to the filing of the complaint. Consequently, we affirm the dismissal of Zimpfer's complaint. D. Kristy Brecke On September 9, 2003, Brecke, then twenty-three years old, was prescribed Accutane by a dermatologist in Minnesota. Brecke, who the judge found to be a candid and credible witness, testified she was warned of the risks of birth defects, suicide, and dry 34 A-1359-14T4 eyes, lips, and skin, but she was not warned of IBD or gastrointestinal symptoms. When Brecke was prescribed Accutane, she was also provided with a copy of the binder entitled "Be Smart/Be Safe/Be Sure Accutane Pregnancy Prevention and Risk Management Program for Women" (9th ed. 2002), which primarily focused on the dangers of becoming pregnant. The binder, however, contained a warning about "Abdomen (stomach area) problems," and cautioned that "[c]ertain symptoms may mean that your internal organs are being damaged" and "may not get better even after you stop taking Accutane." This binder instructed users to cease taking Accutane and call their prescriber if they experienced severe stomach or bowel pain and new or worsening diarrhea or rectal bleeding. Brecke signed the consent form acknowledging she read and understood this written material. At the Lopez hearing, Brecke testified that she recalled receiving the binder and admitted she probably read it "thoroughly." She testified, however, that none of the written material, including the binder, medication guide, and blister packaging, warned that Accutane could cause ulcerative colitis or IBD. On December 4, 2003, while still taking Accutane, Brecke experienced some rectal bleeding and mucus in her stool, but no 35 A-1359-14T4 other gastrointestinal side effects. She described what she characterized as a "very mild symptom." A nurse from the dermatologist's office advised her to stop taking Accutane and see a physician; she complied. On December 8, 2003, Brecke saw her primary care physician and reported she had been taking Accutane and was suspicious it may have caused her rectal bleeding. The physician diagnosed a superficial rectal fissure and prescribed a topical cream. Brecke understood that a fissure was "a crack in the skin in [her] anus"; she did not know that anal fissures are a symptom of IBD. She testified the physician told her he did not think she had developed the fissure from taking Accutane. No other physician told her there was a connection. From this, Brecke felt it was safe to continue taking Accutane. She returned to the dermatologist's office on January 26, 2004, and reported on her treatment with the physician. The dermatologist was satisfied the fissure had resolved and was unrelated to Accutane use, and the Accutane prescription was renewed. Brecke testified she did not think the dermatologist would have continued to prescribe Accutane if she thought the rectal bleeding was an Accutane-related side effect. Brecke continued taking Accutane until March 8, 2004, at which time she continued to experience rectal bleeding but no other gastrointestinal symptoms. After ending her treatment, 36 A-1359-14T4 Brecke continued to experience rectal bleeding, which she reported to her physicians. Beginning in late September 2004, six months after she stopped taking Accutane, Brecke, who held a doctorate in marriage and family therapy, worked for eighteen months as a therapist in a wilderness program for teenagers in Oregon. She experienced some rectal bleeding during this time, which, while "embarrassing," did not restrict her strenuous activity, including hiking mountains carrying a sixty-pound backpack. Prior to starting work with the program, Brecke reported the rectal bleeding during a physical examination with her primary care physician; she was not then suffering from any other gastrointestinal symptoms. Brecke was again diagnosed with an anal fissure and given a prescription for a topical medication. The physician suggested she return for a follow-up examination if her symptoms did not resolve in three months. She did not do so, however, due to a lack of health insurance. During a physical exam on August 3, 2005, Brecke reported she was experiencing rectal bleeding almost every day; she was again diagnosed with "anal fissures with bleeding." During a wilderness trek in December 2005, she experienced "some urgency and looser stools." In January 2006, Brecke took a two-month backpacking trip in 37 A-1359-14T4 Southeast Asia during which she experienced a bout of constipation and bloating that resolved. In March 2006, a few days after she returned from the trip, Brecke experienced for the first time "some pretty severe symptoms," including cramping, urgency and extreme nausea. On April 3, 2006, Brecke returned to her primary care physician complaining of bloody diarrhea. The physician gave her samples of an antibiotic, which did not resolve her symptoms. Three weeks later, on April 26, 2006, she returned complaining of bloody diarrhea, constipation, and urgency; she received another prescription, which did not resolve her symptoms. On May 9, 2006, Brecke went to an emergency room suffering from abdominal pain, nausea, vomiting, diarrhea, and incontinence. There, on May 10, 2006, Brecke was diagnosed as suffering from ulcerative colitis, which she had never heard of until this diagnosis. She testified that none of her treating physicians ever told her what caused her to develop the disease. And she did not relate her symptoms to her use of Accutane approximately two years earlier because her symptoms were so "drastically different" than the anal fissure symptoms she had experienced while taking the drug. Despite all these physical concerns and complaints, Brecke testified she did not make the connection between Accutane and IBD 38 A-1359-14T4 until October 11, 2009, when, at a nurse's suggestion, she read the Mayo Clinic's webpage on IBD for information about her disease. The "Risk Factors" section of the website described Accutane as: a powerful medication sometimes used to treat scarring cystic acne or acne that doesn't respond to other treatments. Although cause and effect hasn't been proved, studies have reported the development of inflammatory bowel disease with isotretinoin use. Brecke then realized she had exhibited ulcerative colitis symptoms during her use of Accutane. Brecke, who was "shocked" and "overwhelmed with emotions," emailed her mother on October 11, 2009, to report that discovery. To summarize, Brecke learned she had developed IBD on May 10, 2006, but did not file her complaint until nearly four years later, on April 5, 2010. The critical question, therefore, is whether Brecke knew, or a person in her circumstances should reasonably have known, before April 5, 2008, of enough information to claim she developed IBD because of Accutane. The trial judge was impressed with Brecke's "candor" during the Lopez hearing and "found her testimony generally credible." But he questioned: what type of person with persistent rectal bleeding makes a two-month backpacking trip throughout Southeast Asia without first consulting with her physician on how to safeguard against a worsening condition while in a foreign country? Someone who is oblivious 39 A-1359-14T4 to her health. Rectal bleeding was one of the very risks Plaintiff was advised of, and it began early, and Accutane was suspected early, yet Ms. Brecke never took it seriously or explored the potential of a claim against [d]efendant. So, when the circumstances of [p]laintiff's medical history are considered in light of the burden of proof required at a Lopez hearing, viz., where the relationship between plaintiff's injury and defendant's fault is not self-evident, plaintiff must prove that a reasonable person in her circumstances would not have been aware of such fault in order to receive the benefit of the discovery rule, Kristy Brecke's claim is found wanting. A reasonable person in her circumstances would have concluded very early on that something was wrong and that the something may have been her ingestion of Accutane. Plaintiff had persistent symptoms that clearly would have prompted action by a reasonable person. Her failure to bring a legal claim within two years of her diagnosis of IBD on May 12, 2006, is fatal to her lawsuit. . . . The judge was entitled to view the evidence as demonstrating that Brecke had reason to know her IBD may have been caused by Accutane earlier than April 5, 2008. She was a well-educated, twenty-three year old when she began taking Accutane and suffered gastrointestinal symptoms during her treatment – a circumstance suggesting a discernable link between the drug and her disease. Although her dermatologist did not specifically warn of the risk of IBD, Brecke (unlike the other plaintiffs here) received a copy of the stronger warnings contained in the 2002 patient binder— 40 A-1359-14T4 warnings the Court in Kendall I found "might have been sufficient to alert a plaintiff of the connection between Accutane and her disease." 209 N.J. at 199. Moreover, as early as December 2003 Brecke in fact suspected Accutane may have caused her rectal bleeding. Although her primary care physician diagnosed her at that time with a rectal fissure, and her dermatologist continued her prescription for Accutane, Brecke suffered from rectal bleeding while taking Accutane and continued to suffer from worsening rectal bleeding for approximately three years. In light of these circumstances, the judge's finding that Brecke had failed to sustain her burden of persuasion is entitled to our deference. IV The orders dismissing the complaints in these four matters are affirmed. 41 A-1359-14T4
INDIAN FIELD AT HARDYSTON HOMEOWNERS ASSOCIATION, INC v. MARK TRUDNOS
Date: January 29, 2018
Docket Number: a0797-14
Date: January 29, 2018
Docket Number: a0797-14
KEVIN HARVARD v. STATE OF NEW JERSEY JUDICIARY, ATLANTIC CAPE MAY VICINAGE
Date: January 29, 2018
Docket Number: a5091-15
Date: January 29, 2018
Docket Number: a5091-15
FRANKLIN MUTUAL INSURANCE COMPANY v. K.N.
Date: January 26, 2018
Docket Number: a4025-15 PER CURIAM Plaintiffs Franklin Mutual Insurance Company (Franklin Mutual) and Greater New York Mutual Insurance Company (New York Mutual) appeal from the February 22, 2016 Law Division order granting summary judgment dismissal of their negligence claims against defendant B.D. (defendant), and denying their cross- motions for summary judgment and Franklin Mutual's motion for attorneys' fees. For the following reasons, we affirm. I Defendant is the mother of two daughters: Katrina, born in 1970, and Gertrude, born in 1966.1 Defendant has resided in Florida since approximately 2003. 1 We refer to defendant's daughters by pseudonyms to protect their privacy. 3 A-4025-15T1 In October 2008, defendant's daughters lived in Levittown, Pennsylvania. At that time, Gertrude became concerned with Katrina's behavior, and completed an application for her to receive an "involuntary emergency [mental health] examination." On the application, Gertrude described Katrina's behavior, writing: My sister called me [tonight] because she needed to cash a check. She stated that the neighbors were following her. I bring her food and she feels there is something wrong with it. She has written on the walls[: "]Drugs are bad. [Vietnam] is not my fault.["] [Katrina] feels that people poison her water and [there] is morphine in the water. She runs a hose across her lawn and lets it run for . . . hours to empty the lines. She has hammered holes in the walls and all of the kitchen cabinets because the morphine made her do it. She has written on the outside of the house vulg[a]r statements. She calls the police numerous times. She broke glass all in the street. She has lost some weight. She has taken apart lighting units because things are dripping from the lights . . . . She has burns on the carpet from lighting off flare guns in the house. Before receiving the treatment Gertrude sought, Katrina borrowed her neighbor's car allegedly to run some "errands." Instead, she drove the car to Clifton, where she stayed at a hotel and covered the windows with bedsheets. When police found her on October 5, 2008, Katrina "did not appear to understand her 4 A-4025-15T1 circumstances, but was cooperative to leave the hotel." The police brought Katrina to Hunterdon Medical Center, where her medical records indicate that she had been admitted to a psychiatric hospital five years earlier; this was because Katrina was "anxious that [her] ex-husband's girlfriend" and another individual "were stalking [her]." Later that same day, the Hagedorn Psychiatric Hospital admitted Katrina and diagnosed her with "[b]ipolar disorder, manic, with psychotic-like symptoms." On July 6, 2009, the hospital discharged Katrina and listed her sister and mother as contacts on her discharge and aftercare plan. The plan also lists Katrina's discharge site as The Lamb Foundation (the Foundation), in North Wales, Pennsylvania. Upon entering the Foundation, Katrina signed a "program agreement," which stated: [The Foundation] is not a nursing home and does not provide any nursing services. The primary responsibility for your health care remains with you, and [the Foundation] is not responsible [for] providing physical or mental health care services. [The Foundation] is not connected with any physicians, hospital or other medical facility . . . . At your request, [the Foundation] may provide assistance with medication prescribed for you for self- administration. You agree to take all medications prescribed for you by your physicians. As an inducement to enable us to assist you, you hereby agree to release and forever discharge and indemnify [the Foundation] and its employees from all claims of any nature arising from or in connection 5 A-4025-15T1 with [the Foundation's] assistance with your medications. Katrina remained at the Foundation until approximately April 2010; upon leaving, Katrina lived in a car and motels. In June 2010, defendant bought a condominium in a thirty- building development that contained 612 dwelling units. The same month, defendant helped Katrina move into the condominium and furnished the unit for her. Defendant testified she "bought the condo[minium]" because she "didn't want [Katrina] living in her car." Katrina "indirectly" paid defendant rent; instead of defendant giving Katrina an annual gift pursuant to defendant's estate plan, Katrina resided in the condominium without making rental payments. Defendant did not memorialize this agreement in a lease. The police were called to Katrina's residence on several occasions between July and December 2010. On one occasion, during a "welfare check," a police officer reported that Katrina "immediately stated to [him] that she was doing fine and 'Charlie made me do it!' When asked who Charlie was, [Katrina] stated she did not know, but he made her do it." Katrina then asked the officer about a scar on his head, and stated "demons are attempting to get inside of [your] head, that [is] why the scar is there." 6 A-4025-15T1 The officer indicated that "the [condominium] was very untidy and the water was running with no one in the kitchen. . . . [and t]he refrigerator was open . . . ." He further noted there were "[s]everal large holes in the sheetrock . . . and [Katrina] stated she did not know who did [it] or when it happened." The officer transported Katrina to Robert Wood Johnson University Hospital for a psychological evaluation. On December 28, 2010, Katrina's neighbor drove home from work and saw Katrina standing outside of her condominium. The neighbor reported that Katrina "calmly" told her that her condominium was on fire, and when they opened the condominium door, they saw its interior engulfed in flames. They both went to the parking lot, where the neighbor called 9-1-1, and Katrina "calmly" told the neighbor, "Everything is going to be okay." When a police officer arrived, Katrina stated that prior to the fire, "she had a drink of [vodka][, and] then lit a cigarette." At that point, "she believe[d] she fell asleep[,] and when she awoke the [condominium] was on fire." The police officer reported that upon further questioning, Katrina "had [no] idea who [he] was [and] could [not] give a legitimate answer to any question [he] asked." A fire investigator conducted several interviews with Katrina. During one interview, Katrina stated: 7 A-4025-15T1 She was going to cook cookies and had put a cookie sheet in the oven. She said she had been having a problem with a proper heating temperature being maintained in the oven and had discussed this with her mother. She said there was a Chinese food take out bag holding garbage sitting on top of the counter to the left of the stove. She had emptied some cigarette butts into the bag earlier but only after putting some water in the food container/bag. She then stated she had lit a cigarette off of the stove burner and then went to lie down in the bedroom. She recalls hearing the smoke detector go off and getting up and seeing a fire in the kitchen from the area of the stove. She then left the [condominium]. The Plainsboro Township Fire Marshal concluded, "It appears [that] either the cigarettes were not completely extinguished thereby igniting the food bag, or the burner was left on[,] and by way of radiated heat[,] the bag ignited." The fire then spread to the other units. Ultimately, eight units "suffered heavy fire, smoke, [and/or] water damage," and four units "suffered moderate smoke [and/or] water damage." Plaintiffs insured two of those damaged units. On January 3, 2011, defendant told a Princeton HealthCare System social worker she thought Katrina requires long-term hospital care because she "cannot manage on her own." Thereafter, Trenton Psychiatric Hospital admitted Katrina and diagnosed her with "[s]chizoaffective [d]isorder, [b]ipolar [t]ype." 8 A-4025-15T1 Plaintiffs' subrogation claims followed, with each plaintiff filing a complaint seeking damages from defendant, asserting defendant negligently enabled her daughter to set fire to her condominium. The trial court consolidated the cases; after discovery, defendant moved for summary judgment. Plaintiffs' cross-moved for summary judgment on liability, and Franklin Mutual moved to assess defendant with attorneys' fees it incurred due to defendant's allegedly false testimony. After hearing oral argument, the trial court entered an order granting defendant's motion, and denying plaintiffs' cross-motions. II "[W]e review the trial court's grant of summary judgment de novo under the same standard as the trial court." Templo Fuente De Vida Corp. v. Nat'l Union Fire Ins. Co. of Pittsburgh, 224 N.J. 189, 199 (2016) (citation omitted). Summary judgment must be granted "if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law." Ibid. (quoting R. 4:46-2(c)). If there is no genuine issue of material fact, we must then "decide whether the trial court correctly interpreted the law." DepoLink Court Reporting & Litig. Support Servs. v. Rochman, 430 9 A-4025-15T1 N.J. Super. 325, 333 (App. Div. 2013) (citation omitted). We review issues of law de novo and accord no deference to the trial judge's legal conclusions. Nicholas v. Mynster, 213 N.J. 463, 478 (2013). "To sustain a cause of action for negligence, a plaintiff must establish four elements: '(1) a duty of care, (2) a breach of that duty, (3) proximate cause, and (4) actual damages.'" Townsend v. Pierre, 221 N.J. 36, 51 (2015) (quoting Polzo v. Cty. of Essex, 196 N.J. 569, 584 (2008)). Whether a duty exists is a matter of law, Kernan v. One Washington Park Urban Renewal Assocs., 154 N.J. 437, 445 (1998), that poses "a question of fairness" involving "a weighing of the relationship of the parties, the nature of the risk, and the public interest in the proposed solution." Kelly v. Gwinnell, 96 N.J. 538, 544 (1984) (quoting Goldberg v. Hous. Auth. of Newark, 38 N.J. 578, 583 (1962)). The duty analysis is "rather complex . . . ." J.S. v. R.T.H., 155 N.J. 330, 337 (1998). "[I]n its determination whether to impose a duty, [a court] must also consider the scope or boundaries of that duty." Id. at 339. Moreover, the court must recognize "the more fundamental question [of] whether the plaintiff's interests are entitled to protection against the defendant's conduct." Id. at 338 (citation omitted). That assessment must include the relationship between the parties, "the defendant's 10 A-4025-15T1 'responsibility for conditions creating the risk of harm,'" and "whether the defendant had sufficient control, opportunity, and ability to have avoided the risk of harm." Id. at 338-39 (citation omitted). With respect to the nature of the risk, the court must consider both the "foreseeability and severity" of the "underlying risk of harm" and "the opportunity and ability to exercise care to prevent the harm." Id. at 337. To that end, "[t]he ability to foresee injury to a potential plaintiff is crucial in determining whether a duty should be imposed." Id. at 338 (citation omitted). The defendant must have actual knowledge or awareness of the risk of injury or constructive knowledge or awareness, which may be imputed when the defendant is "in a position to discover the risk of harm." Ibid. (citation omitted). Here, plaintiffs primarily argue that because defendant rented her unit to her mentally ill daughter, defendant owed Katrina's neighbors a duty to protect them from Katrina's potentially destructive conduct. Plaintiffs further argue it was foreseeable that Katrina could cause property damage to adjoining condominium units. We acknowledge that, in limited circumstances, our courts have imposed a duty to take reasonable action to guard against the acts of a third party. In J.S., for example, our Supreme Court 11 A-4025-15T1 found a duty existed on the part of a wife to take reasonable actions to prevent her husband's sexual abuse of her neighbor's children. J.S., 155 N.J. at 334, 353-54. The Court found that the close relationship between the defendant and her neighbors, her knowledge of the considerable amount of time the girls spent with her husband, and her actual or constructive knowledge of her husband's "proclivities/propensities" made it "particularly foreseeable" that her husband was abusing the girls. Id. at 353. Here, however, plaintiffs fail to demonstrate defendant had sufficient knowledge to impose such a duty. Although Katrina was clearly suffering from mental illness, several psychiatric hospitals released her without finding she posed a danger to herself, others, or property. As the motion judge emphasized, no qualified professional told defendant "or anyone else . . . that [Katrina] could not live alone, that she was a danger to herself or others[,] and that to do so would be devastatingly terrible . . . ." Further, we are not persuaded defendant could reasonably foresee that her adult daughter would cause damage to her neighbor's property. Plaintiffs' references to Katrina repeatedly damaging her own property fail to convince us it was foreseeable she would damage adjoining units. The record contains no indication Katrina ever damaged another's property or set fire to 12 A-4025-15T1 her condominium prior to the December 28, 2010 incident. Accordingly, we find no basis to impose a duty of care on defendant. III Alternatively, New York Mutual argues defendant is legally responsible for damages pursuant to the Maintenance of Hotel and Multiple Dwellings Act, N.J.S.A. 55:13A-1 to -28 (the Act),2 citing our decision in Calco Hotel Management Group v. Gike, 420 N.J. Super. 495 (App. Div. 2011). In opposition, defendant argues New York Mutual failed to plead a statutory or regulatory basis for relief in its complaint, and first raised the claim when it filed its cross-motion for summary judgment. Defendant further argues the Act provides no basis for imposing liability upon her, under the facts of this case. In Gike, we considered whether the Act's regulations, N.J.A.C. 5:10-1.1 to -28.1, imposed liability on the defendant for the acts of a third party, where the defendant rented a hotel room because her handyman needed to stay near a hospital while he recovered from a seizure. Gike, 420 N.J. Super. at 498-99. The 2 New York Mutual also argues defendant "is liable for permitting an ultra[-]hazardous activity to occur on the rented premises." New York Mutual's argument lacks merit; it provides no authority holding that lighting stove burners and smoking cigarettes in a condominium constitute ultra-hazardous activities. 13 A-4025-15T1 handyman, while intoxicated, brought a can of gasoline into the room, lit a cigarette, and started a fire that significantly damaged the hotel. Id. at 499-500. We approved the grant of summary judgment to the owners of the hotel solely as to the finding that the renter of a hotel room was an "occupant" under N.J.A.C. 5:10-2.2 and -5.1. Id. at 503. However, we emphasized we were "not convinced the finding that Gike is an 'occupant' under the regulatory scheme in itself mandates" that the defendant "is liable as a matter of law for compensatory damages" for her handyman's actions at the hotel. Id. at 507. We therefore remanded the case for the trial court to address the issue of the defendant's liability for compensatory damages under the Act. As we noted, N.J.A.C. 5:10-5.5, entitled "Willful damage," provides that "[e]very occupant shall be liable for willfully or maliciously causing damage to any part of the premises which results in a violation of this chapter." Here, the record reflects Katrina accidentally started the fire when she "used a range burner to light a cigarette. . . . [and] apparently did not turn off the burner" or left a Chinese food takeout bag "at or in close proximity to the [range] burner . . . ." We are not persuaded these actions demonstrate Katrina acted intentionally or with "an indifference to the consequences." Banks v. Korman Assocs., 218 N.J. Super. 14 A-4025-15T1 370, 373 (App. Div. 1987); see also Steinberg v. Sahara Sam's Oasis, LLC, 226 N.J. 344, 363 (2016) (defining gross negligence as "fall[ing] on a continuum between ordinary negligence and recklessness, a continuum that extends onward to intentional conduct."). Accordingly, the motion judge did not err in rejecting New York Mutual's claim under the Act. IV Lastly, Franklin Mutual also argues defendant lied during her deposition testimony, entitling it to attorneys' fees. Although Franklin Mutual submits documents that raise questions as to the veracity of certain aspects of defendant's testimony, we are not persuaded the Law Division abused its discretion in declining to award attorneys' fees. See Litton Indus. v. IMO Indus., 200 N.J. 372, 386 (2009) (citation omitted) ("[A] reviewing court will disturb a trial court's award of counsel fees only on the rarest of occasions, and then only because of a clear abuse of discretion."). Accordingly, we discern no basis to disturb the order under review. Affirmed. 15 A-4025-15T1
Date: January 26, 2018
Docket Number: a4025-15 PER CURIAM Plaintiffs Franklin Mutual Insurance Company (Franklin Mutual) and Greater New York Mutual Insurance Company (New York Mutual) appeal from the February 22, 2016 Law Division order granting summary judgment dismissal of their negligence claims against defendant B.D. (defendant), and denying their cross- motions for summary judgment and Franklin Mutual's motion for attorneys' fees. For the following reasons, we affirm. I Defendant is the mother of two daughters: Katrina, born in 1970, and Gertrude, born in 1966.1 Defendant has resided in Florida since approximately 2003. 1 We refer to defendant's daughters by pseudonyms to protect their privacy. 3 A-4025-15T1 In October 2008, defendant's daughters lived in Levittown, Pennsylvania. At that time, Gertrude became concerned with Katrina's behavior, and completed an application for her to receive an "involuntary emergency [mental health] examination." On the application, Gertrude described Katrina's behavior, writing: My sister called me [tonight] because she needed to cash a check. She stated that the neighbors were following her. I bring her food and she feels there is something wrong with it. She has written on the walls[: "]Drugs are bad. [Vietnam] is not my fault.["] [Katrina] feels that people poison her water and [there] is morphine in the water. She runs a hose across her lawn and lets it run for . . . hours to empty the lines. She has hammered holes in the walls and all of the kitchen cabinets because the morphine made her do it. She has written on the outside of the house vulg[a]r statements. She calls the police numerous times. She broke glass all in the street. She has lost some weight. She has taken apart lighting units because things are dripping from the lights . . . . She has burns on the carpet from lighting off flare guns in the house. Before receiving the treatment Gertrude sought, Katrina borrowed her neighbor's car allegedly to run some "errands." Instead, she drove the car to Clifton, where she stayed at a hotel and covered the windows with bedsheets. When police found her on October 5, 2008, Katrina "did not appear to understand her 4 A-4025-15T1 circumstances, but was cooperative to leave the hotel." The police brought Katrina to Hunterdon Medical Center, where her medical records indicate that she had been admitted to a psychiatric hospital five years earlier; this was because Katrina was "anxious that [her] ex-husband's girlfriend" and another individual "were stalking [her]." Later that same day, the Hagedorn Psychiatric Hospital admitted Katrina and diagnosed her with "[b]ipolar disorder, manic, with psychotic-like symptoms." On July 6, 2009, the hospital discharged Katrina and listed her sister and mother as contacts on her discharge and aftercare plan. The plan also lists Katrina's discharge site as The Lamb Foundation (the Foundation), in North Wales, Pennsylvania. Upon entering the Foundation, Katrina signed a "program agreement," which stated: [The Foundation] is not a nursing home and does not provide any nursing services. The primary responsibility for your health care remains with you, and [the Foundation] is not responsible [for] providing physical or mental health care services. [The Foundation] is not connected with any physicians, hospital or other medical facility . . . . At your request, [the Foundation] may provide assistance with medication prescribed for you for self- administration. You agree to take all medications prescribed for you by your physicians. As an inducement to enable us to assist you, you hereby agree to release and forever discharge and indemnify [the Foundation] and its employees from all claims of any nature arising from or in connection 5 A-4025-15T1 with [the Foundation's] assistance with your medications. Katrina remained at the Foundation until approximately April 2010; upon leaving, Katrina lived in a car and motels. In June 2010, defendant bought a condominium in a thirty- building development that contained 612 dwelling units. The same month, defendant helped Katrina move into the condominium and furnished the unit for her. Defendant testified she "bought the condo[minium]" because she "didn't want [Katrina] living in her car." Katrina "indirectly" paid defendant rent; instead of defendant giving Katrina an annual gift pursuant to defendant's estate plan, Katrina resided in the condominium without making rental payments. Defendant did not memorialize this agreement in a lease. The police were called to Katrina's residence on several occasions between July and December 2010. On one occasion, during a "welfare check," a police officer reported that Katrina "immediately stated to [him] that she was doing fine and 'Charlie made me do it!' When asked who Charlie was, [Katrina] stated she did not know, but he made her do it." Katrina then asked the officer about a scar on his head, and stated "demons are attempting to get inside of [your] head, that [is] why the scar is there." 6 A-4025-15T1 The officer indicated that "the [condominium] was very untidy and the water was running with no one in the kitchen. . . . [and t]he refrigerator was open . . . ." He further noted there were "[s]everal large holes in the sheetrock . . . and [Katrina] stated she did not know who did [it] or when it happened." The officer transported Katrina to Robert Wood Johnson University Hospital for a psychological evaluation. On December 28, 2010, Katrina's neighbor drove home from work and saw Katrina standing outside of her condominium. The neighbor reported that Katrina "calmly" told her that her condominium was on fire, and when they opened the condominium door, they saw its interior engulfed in flames. They both went to the parking lot, where the neighbor called 9-1-1, and Katrina "calmly" told the neighbor, "Everything is going to be okay." When a police officer arrived, Katrina stated that prior to the fire, "she had a drink of [vodka][, and] then lit a cigarette." At that point, "she believe[d] she fell asleep[,] and when she awoke the [condominium] was on fire." The police officer reported that upon further questioning, Katrina "had [no] idea who [he] was [and] could [not] give a legitimate answer to any question [he] asked." A fire investigator conducted several interviews with Katrina. During one interview, Katrina stated: 7 A-4025-15T1 She was going to cook cookies and had put a cookie sheet in the oven. She said she had been having a problem with a proper heating temperature being maintained in the oven and had discussed this with her mother. She said there was a Chinese food take out bag holding garbage sitting on top of the counter to the left of the stove. She had emptied some cigarette butts into the bag earlier but only after putting some water in the food container/bag. She then stated she had lit a cigarette off of the stove burner and then went to lie down in the bedroom. She recalls hearing the smoke detector go off and getting up and seeing a fire in the kitchen from the area of the stove. She then left the [condominium]. The Plainsboro Township Fire Marshal concluded, "It appears [that] either the cigarettes were not completely extinguished thereby igniting the food bag, or the burner was left on[,] and by way of radiated heat[,] the bag ignited." The fire then spread to the other units. Ultimately, eight units "suffered heavy fire, smoke, [and/or] water damage," and four units "suffered moderate smoke [and/or] water damage." Plaintiffs insured two of those damaged units. On January 3, 2011, defendant told a Princeton HealthCare System social worker she thought Katrina requires long-term hospital care because she "cannot manage on her own." Thereafter, Trenton Psychiatric Hospital admitted Katrina and diagnosed her with "[s]chizoaffective [d]isorder, [b]ipolar [t]ype." 8 A-4025-15T1 Plaintiffs' subrogation claims followed, with each plaintiff filing a complaint seeking damages from defendant, asserting defendant negligently enabled her daughter to set fire to her condominium. The trial court consolidated the cases; after discovery, defendant moved for summary judgment. Plaintiffs' cross-moved for summary judgment on liability, and Franklin Mutual moved to assess defendant with attorneys' fees it incurred due to defendant's allegedly false testimony. After hearing oral argument, the trial court entered an order granting defendant's motion, and denying plaintiffs' cross-motions. II "[W]e review the trial court's grant of summary judgment de novo under the same standard as the trial court." Templo Fuente De Vida Corp. v. Nat'l Union Fire Ins. Co. of Pittsburgh, 224 N.J. 189, 199 (2016) (citation omitted). Summary judgment must be granted "if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law." Ibid. (quoting R. 4:46-2(c)). If there is no genuine issue of material fact, we must then "decide whether the trial court correctly interpreted the law." DepoLink Court Reporting & Litig. Support Servs. v. Rochman, 430 9 A-4025-15T1 N.J. Super. 325, 333 (App. Div. 2013) (citation omitted). We review issues of law de novo and accord no deference to the trial judge's legal conclusions. Nicholas v. Mynster, 213 N.J. 463, 478 (2013). "To sustain a cause of action for negligence, a plaintiff must establish four elements: '(1) a duty of care, (2) a breach of that duty, (3) proximate cause, and (4) actual damages.'" Townsend v. Pierre, 221 N.J. 36, 51 (2015) (quoting Polzo v. Cty. of Essex, 196 N.J. 569, 584 (2008)). Whether a duty exists is a matter of law, Kernan v. One Washington Park Urban Renewal Assocs., 154 N.J. 437, 445 (1998), that poses "a question of fairness" involving "a weighing of the relationship of the parties, the nature of the risk, and the public interest in the proposed solution." Kelly v. Gwinnell, 96 N.J. 538, 544 (1984) (quoting Goldberg v. Hous. Auth. of Newark, 38 N.J. 578, 583 (1962)). The duty analysis is "rather complex . . . ." J.S. v. R.T.H., 155 N.J. 330, 337 (1998). "[I]n its determination whether to impose a duty, [a court] must also consider the scope or boundaries of that duty." Id. at 339. Moreover, the court must recognize "the more fundamental question [of] whether the plaintiff's interests are entitled to protection against the defendant's conduct." Id. at 338 (citation omitted). That assessment must include the relationship between the parties, "the defendant's 10 A-4025-15T1 'responsibility for conditions creating the risk of harm,'" and "whether the defendant had sufficient control, opportunity, and ability to have avoided the risk of harm." Id. at 338-39 (citation omitted). With respect to the nature of the risk, the court must consider both the "foreseeability and severity" of the "underlying risk of harm" and "the opportunity and ability to exercise care to prevent the harm." Id. at 337. To that end, "[t]he ability to foresee injury to a potential plaintiff is crucial in determining whether a duty should be imposed." Id. at 338 (citation omitted). The defendant must have actual knowledge or awareness of the risk of injury or constructive knowledge or awareness, which may be imputed when the defendant is "in a position to discover the risk of harm." Ibid. (citation omitted). Here, plaintiffs primarily argue that because defendant rented her unit to her mentally ill daughter, defendant owed Katrina's neighbors a duty to protect them from Katrina's potentially destructive conduct. Plaintiffs further argue it was foreseeable that Katrina could cause property damage to adjoining condominium units. We acknowledge that, in limited circumstances, our courts have imposed a duty to take reasonable action to guard against the acts of a third party. In J.S., for example, our Supreme Court 11 A-4025-15T1 found a duty existed on the part of a wife to take reasonable actions to prevent her husband's sexual abuse of her neighbor's children. J.S., 155 N.J. at 334, 353-54. The Court found that the close relationship between the defendant and her neighbors, her knowledge of the considerable amount of time the girls spent with her husband, and her actual or constructive knowledge of her husband's "proclivities/propensities" made it "particularly foreseeable" that her husband was abusing the girls. Id. at 353. Here, however, plaintiffs fail to demonstrate defendant had sufficient knowledge to impose such a duty. Although Katrina was clearly suffering from mental illness, several psychiatric hospitals released her without finding she posed a danger to herself, others, or property. As the motion judge emphasized, no qualified professional told defendant "or anyone else . . . that [Katrina] could not live alone, that she was a danger to herself or others[,] and that to do so would be devastatingly terrible . . . ." Further, we are not persuaded defendant could reasonably foresee that her adult daughter would cause damage to her neighbor's property. Plaintiffs' references to Katrina repeatedly damaging her own property fail to convince us it was foreseeable she would damage adjoining units. The record contains no indication Katrina ever damaged another's property or set fire to 12 A-4025-15T1 her condominium prior to the December 28, 2010 incident. Accordingly, we find no basis to impose a duty of care on defendant. III Alternatively, New York Mutual argues defendant is legally responsible for damages pursuant to the Maintenance of Hotel and Multiple Dwellings Act, N.J.S.A. 55:13A-1 to -28 (the Act),2 citing our decision in Calco Hotel Management Group v. Gike, 420 N.J. Super. 495 (App. Div. 2011). In opposition, defendant argues New York Mutual failed to plead a statutory or regulatory basis for relief in its complaint, and first raised the claim when it filed its cross-motion for summary judgment. Defendant further argues the Act provides no basis for imposing liability upon her, under the facts of this case. In Gike, we considered whether the Act's regulations, N.J.A.C. 5:10-1.1 to -28.1, imposed liability on the defendant for the acts of a third party, where the defendant rented a hotel room because her handyman needed to stay near a hospital while he recovered from a seizure. Gike, 420 N.J. Super. at 498-99. The 2 New York Mutual also argues defendant "is liable for permitting an ultra[-]hazardous activity to occur on the rented premises." New York Mutual's argument lacks merit; it provides no authority holding that lighting stove burners and smoking cigarettes in a condominium constitute ultra-hazardous activities. 13 A-4025-15T1 handyman, while intoxicated, brought a can of gasoline into the room, lit a cigarette, and started a fire that significantly damaged the hotel. Id. at 499-500. We approved the grant of summary judgment to the owners of the hotel solely as to the finding that the renter of a hotel room was an "occupant" under N.J.A.C. 5:10-2.2 and -5.1. Id. at 503. However, we emphasized we were "not convinced the finding that Gike is an 'occupant' under the regulatory scheme in itself mandates" that the defendant "is liable as a matter of law for compensatory damages" for her handyman's actions at the hotel. Id. at 507. We therefore remanded the case for the trial court to address the issue of the defendant's liability for compensatory damages under the Act. As we noted, N.J.A.C. 5:10-5.5, entitled "Willful damage," provides that "[e]very occupant shall be liable for willfully or maliciously causing damage to any part of the premises which results in a violation of this chapter." Here, the record reflects Katrina accidentally started the fire when she "used a range burner to light a cigarette. . . . [and] apparently did not turn off the burner" or left a Chinese food takeout bag "at or in close proximity to the [range] burner . . . ." We are not persuaded these actions demonstrate Katrina acted intentionally or with "an indifference to the consequences." Banks v. Korman Assocs., 218 N.J. Super. 14 A-4025-15T1 370, 373 (App. Div. 1987); see also Steinberg v. Sahara Sam's Oasis, LLC, 226 N.J. 344, 363 (2016) (defining gross negligence as "fall[ing] on a continuum between ordinary negligence and recklessness, a continuum that extends onward to intentional conduct."). Accordingly, the motion judge did not err in rejecting New York Mutual's claim under the Act. IV Lastly, Franklin Mutual also argues defendant lied during her deposition testimony, entitling it to attorneys' fees. Although Franklin Mutual submits documents that raise questions as to the veracity of certain aspects of defendant's testimony, we are not persuaded the Law Division abused its discretion in declining to award attorneys' fees. See Litton Indus. v. IMO Indus., 200 N.J. 372, 386 (2009) (citation omitted) ("[A] reviewing court will disturb a trial court's award of counsel fees only on the rarest of occasions, and then only because of a clear abuse of discretion."). Accordingly, we discern no basis to disturb the order under review. Affirmed. 15 A-4025-15T1
CHRISTINE FARRINGTON v. STATE OF NEW JERSEY DEPARTMENT OF THE TREASURY DIVISION OF PENSIONS AND BENEFITS
Date: January 26, 2018
Docket Number: a4099-15
Date: January 26, 2018
Docket Number: a4099-15
RAFAELAA. GUICHARDO v. NEW JERSEY PROPERTY-LIABILITY INSURANCE GUARANTY ASSOCIATION NJPLIGA
Date: January 26, 2018
Docket Number: a4410-15
Date: January 26, 2018
Docket Number: a4410-15
DEMETRIU SMINOR v. NEW JERSEY DEPARTMENT OF CORRECTIONS
Date: January 26, 2018
Docket Number: a4910-15
Date: January 26, 2018
Docket Number: a4910-15
MATTHEW T. MASCARI v. BORDENTOWN REGIONAL HIGH SCHOOL
Date: January 25, 2018
Docket Number: a0315-16
Date: January 25, 2018
Docket Number: a0315-16
JOHN FAUCHER v. ZONING BOARD OF ADJUSTMENT OF THE CITY OF HOBOKEN
Date: January 25, 2018
Docket Number: a3906-15
Date: January 25, 2018
Docket Number: a3906-15
MARY MELVIN v. DIVISION OF CHILD PROTECTION AND PERMANENCY
Date: January 24, 2018
Docket Number: a0222-16
Date: January 24, 2018
Docket Number: a0222-16
STATE TROOPERS FRATERNAL ASSOCIATION v. STATE OF NEW JERSEY
Date: January 24, 2018
Docket Number: a0532-15
Date: January 24, 2018
Docket Number: a0532-15
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