Unpublished Opinions for the Week of February 20, 2017

01-2-2494 State v. Flarlas LLC, App. Div. (per curiam) (23 pp.) On Aug. 1, 2011, Bloomingdale’s construction official inspected defendant Flarlas LLC’s building and issued two notices to defendant asserting violations of provisions of the Uniform Construction Code Act (UCCA) and its corresponding regulations. Here, defendant appealed a Law Division order entered after a de novo trial on an appeal from municipal court. The Law Division found defendant violated N.J.A.C. 5:23-2.32(a) by maintaining an unsafe structure, and N.J.A.C. 5:23-2.14 by failing to obtain construction permits, and imposed penalties totaling $330,000. The court calculated that amount by finding defendant committed a separate offense during each of the 110 weeks following the issuance of the notices and through the completion of the municipal court trial. Defendant claimed the judge exceeded his authority under N.J.S.A. 52:27D-138(c) in doing so. The appellate panel agreed. Defendant was not charged with violating any court orders. The judge determined only that defendant violated N.J.A.C. 5:23-2.32(a) and N.J.S.A. 5:23-2.14. As a result, defendant’s violations were of the rules promulgated under the UCCA as proscribed by subsection (a)(1) of N.J.S.A. 52:27D-138. A separate offense under subsection (a)(1), however, does not occur for each week of an alleged violation of the UCCA or its regulations. Where, as here, a defendant violates the UCCA’s regulations, N.J.S.A. 52:27D-138(c) provides that a separate offense is committed only with each violation. Consistent with this provision, the summonses here did not allege defendant committed weekly separate offenses during the two years following the issuance of the notices. The judge erred by finding that commission of the violations of the regulations occurred for each week following the issuance of the notices. The panel affirmed the court’s findings that defendant violated the regulations, reversed the imposition of penalties, and remanded.

12-2-2495 In Re Metrologic Instruments, Inc., Shareholder Litig., N.J. Super. App. Div. (Nugent, J.A.D.) (41 pp.) Plaintiff shareholders of company at the time of a corporate merger appealed an order granting summary judgment to some defendants and a motion in limine to bar the introduction of evidence of the equity fund shareholder’s subsequent sale of stock for 95 percent more than he paid for it. The action alleged the company’s CEO and largest stockholder, board of directors and hedge fund and equity fund stockholders breached their fiduciary duties to unaffiliated stockholders. Plaintiffs argued that the trial court overlooked evidence in finding that hedge fund shareholder was not part of a shareholder control group including such evidence as shareholder’s purchase of stock, personal meetings with CEO and SEC’s determination that the shareholder was a controlling shareholder. The court found that genuine issues of material fact precluded summary judgment as to that shareholder. However, the court agreed with the trial court that equity fund shareholder’s conduct did not constitute “knowing participation” in any alleged breach of fiduciary duty. The court also affirmed the trial court’s motion in limine to preclude evidence of the equity shareholder’s subsequent stock sale because that court recognized significant intervening events when it determined that the evidence would be prejudicial.