15-2-3695 Ocwen Loan Serv., LLC v. Quinn, N.J. Super. App. Div. (Carroll, J.A.D.) (10 pp.) In 2004, defendants David and Louisa Wuebbens conveyed their home to their daughter, Marla Wuebbens Quinn, while retaining life estates in the property. In 2005, Quinn and defendants executed a $260,000 mortgage on the property in favor of plaintiff’s assignor, IndyMac Bank, F.S.B. (the 2005 mortgage). In 2007, Quinn refinanced the mortgage loan for $380,000 with IndyMac (the 2007 mortgage) and used the proceeds, in part, to satisfy the 2005 mortgage. IndyMac’s title commitment failed to disclose defendants’ recorded life estate interests in the property. As a result, defendants did not execute the 2007 mortgage. In 2009, IndyMac filed an action to foreclose the 2007 mortgage after Quinn defaulted. The issue presented is whether plaintiff’s 2007 mortgage lien takes priority over defendants’ earlier recorded life estate interests in the property. Applying principles of replacement and modification recognized in the Restatement (Third) of Property—Mortgages (1997), the court extends its holding in Sovereign Bank v. Gillis, 432 N.J. Super. 36 (App. Div. 2013), so as to grant plaintiff’s mortgage limited priority over defendants’ life estates. Consequently, the court “capped” plaintiff’s mortgage priority at $260,000, and preserved the priority of defendants’ life estates over the portion of the 2007 mortgage loan that exceeded that amount. (Approved for Publication)

25-1-3728 Maryanne Grande v. Saint Clare’s Health Sys., N.J. Sup. Ct. (Solomon, J.,) (58 pp.) On the record before the trial court, issues of material fact exist. The Court affirms and modifies the judgment of the Appellate Division and remands the matter to the trial court for further proceedings.

20-2-3698 Reibman v. Myers, N.J. Super. App. Div. (Whipple, J.A.D.) (23 pp.) In this appeal, the Appellate Division was asked to consider whether plaintiff’s property rights in the marital home under the New Jersey Joint Possession Statute N.J.S.A. 3B:28-3 were released, extinguished, or merged by virtue of a subsequent deed granting title by the entirety with defendant husband. This court holds, when plaintiff obtained a fee interest she lost protection under N.J.S.A. 3B:28-3 because her possessory interest merged into the greater fee estate. As such, plaintiff’s interest was subject to liens and an equitable mortgage, particularly, as here, where plaintiff was aware of and enjoyed the benefit of those loans and the parties intended the property to secure repayment. (Approved for Publication)

22-2-3733 Smith v. Datla, M.D., N.J. Super. App. Div. (Geiger, J.S.C.) (31 pp.) This interlocutory appeal presents novel statute of limitations issues. Plaintiff sued defendants for monetary damages and attorney’s fees for (1) invasion of privacy for harmful public disclosure of private facts, (2) violation of the AIDS Assistance Act, N.J.S.A. 26:5C-1 to -14, and (3) medical malpractice arising out the defendant-doctor’s alleged disclosure that plaintiff was HIV-positive in the presence of a third party without plaintiff’s consent. Defendants moved to dismiss plaintiff’s complaint because it was filed more than one year after the disclosure event. The trial court denied defendants’ motion, holding that a two-year statute of limitations applied to all three causes of action. The appellate panel affirmed, agreeing that each of plaintiff’s causes of action were subject to the two-year statute of limitations imposed by N.J.S.A. 2A:14-2, not the oneyear statute of limitations for defamation imposed by N.J.S.A. 2A:14-3. (Approved for Publication)

04-2-3676 Dutch Run-Mays Draft, LLC v. Wolf Block, LLP, N.J. Super. App. Div. (Lihotz, P.J.A.D.) (24 pp.)(07/05/17) Plaintiff, a Chapter 11 debtor-in-possession, appealed from the dismissal of its malpractice action against defendant, a dissolved law firm. Plaintiff, headquartered in Florida, hired a partner of defendant to provide legal representation in the purchase and development of property in West Virginia. Following closing, plaintiff discovered title defects rendering the property unsuitable for development. Plaintiff later filed for relief in the bankruptcy court. Defendant, a dissolved Pennsylvania LLP maintained two New Jersey offices. After defendant’s partners voted to dissolve the partnership, defendant ceased all activity and closed its offices, including its New Jersey offices. Defendant moved to dismiss plaintiff’s complaint for lack of personal jurisdiction. Plaintiff opposed the motion, asserting that at the time of the alleged negligent conduct many of defendant’s partners resided in New Jersey. Plaintiff also alleged specific instances of transacted business between the parties in New Jersey. Defendant responded by producing documents showing that its work on plaintiff’s matter did not occur in its New Jersey offices. The trial court concluded that plaintiff failed to establish a basis for personal jurisdiction and dismissed plaintiff’s complaint. On appeal, plaintiff argued that a corporate entity’s registration and acceptance of service of process in a state constituted consent to submit to the general jurisdiction of the state’s courts. In response, defendant argued that the U.S. Supreme Court, in its ruling in Daimler AG v. Bauman, 134 S. Ct., 746, set forth the minimum requirements for general jurisdiction to focus on an entity’s affiliation with the state, such as its state of incorporation or evidence of continuous course of business. The court ruled that defendant’s contacts asserted by plaintiff might have been sufficient to establish specific jurisdiction, but were not enough to support general jurisdiction. The court held that defendant did not have a systematic presence in New Jersey when plaintiff filed its action as it was already in the process of dissolving. (Approved for Publication)

52-1-3722 N. Jersey Media Grp., Inc. v. Twp. of Lyndhurst, N.J. Sup. Ct. (Rabner, C.J.) (49 pp.) This appeal explores the scope of the Open Public Records Act (OPRA)’s exemptions for criminal investigatory records and records of investigations in progress, as well as the common-law right of access. On September 16, 2014, a North Arlington resident called 9-1-1 to report an attempt to break into a car. The police tried to stop the suspect’s car, but the driver—later identified as Kashad Ashford—eluded them and led police on a high-speed chase. At one point, Ashford tried to ram a patrol car head-on. Ashford ultimately lost control of his vehicle and crashed it into a guardrail at an overpass. According to the Attorney General’s press release, Ashford tried to get free of the barrier by accelerating, which caused the car to “jerk[] in a rear and forward motion.” An unidentified officer said that he thought the SUV might strike and possibly kill him and another officer. Both of those officers—as well as others—fired at Ashford, who was pronounced dead hours later. Within days of the shooting, a reporter from The Record filed requests for records under OPRA and the common-law right of access. Plaintiff North Jersey Media Group, Inc. (NJMG) filed a complaint and order to show cause. NJMG sought release of the requested records, or their review in camera, along with fees and costs. The trial court directed defendants to release unredacted copies of records within three days in response to NJMG’s OPRA requests. The Appellate Division reversed. The Appellate Division remanded to the trial court to reconsider NJMG’s request under N.J.S.A. 47:1A-3(a) and the common law. NJMG was entitled to disclosure of unredacted Use of Force Reports, under OPRA, and dash-cam recordings of the incident, under the common law. Investigative reports, witness statements, and similarly detailed records were not subject to disclosure at the outset of the investigation, when they were requested.

35-2-3741 Fisher v. City of Millville, N.J. Super. App. Div.( Lihotz, P.J.A.D.) (13 pp.) The court reviewed the statutory requirements for a personal residence real estate tax exemption, granted to certain disabled veterans, honorably discharged, who served in “active service in time of war.” Construing the Legislative intent the court concluded the military conflict applicable to plaintiff’s period of service, Operation “Enduring Freedom,” occurring on or after September 11, 2001, requires the disabling injury occur during service “in a theater of operation and in direct support of that operation.” This geographic component was not satisfied by plaintiff, who was injured during stateside basic training and never sent with her unit to Afghanistan. Accordingly, plaintiff’s disabling injuries were not suffered in a theater of operation or in direct support of a theater of operation, and thus, were not the result of “active service in time of war,” as defined in N.J.S.A. 54:4-8.10(a). (Approved for Publication)

14-1-3702 State v. Mark Dunbar, N.J. Sup. Ct. (Fernandez-Vina, J.) (26 pp.) The Court adopts the federal standard barring unnecessary delays for the purpose of canine sniffs. Officers do not need reasonable suspicion of a drug offense provided that the canine sniff does not prolong the stop beyond the time required to complete the stop’s mission.

14-2-3704 State v. Konstadin Bitzas, N.J. Super. App. Div. (Fuentes, P.J.A.D.) (43 pp.) In this criminal jury trial, the judge sua sponte dismissed with prejudice three counts in the indictment as a sanction against the state’s fact witness’s obstreperous behavior. The judge overruled the State’s objection challenging her authority to take this action and denied the State’s motion to declare a mistrial. Defense counsel acquiesced to the trial judge’s decisions without comment. The jury found defendant guilty of the remaining counts in the indictment. This court holds the trial judge abused her discretion when she denied the state’s motion to declare a mistrial after it became apparent that the witness’s misconduct had irreparably tainted defendant’s right to a fair trial. The judge also erred when she sua sponte dismissed the first three counts of the indictment. A judge presiding over a criminal jury trial cannot enter a judgment of acquittal before the state has completed presenting its case and without applying the standards the Supreme Court established in State v. Reyes, 50 N.J. 454, 458–59 (1967); see also R. 3:18-1. (Approved for Publication)

09-8-3724 Susinno v. Work Out World Inc., 3rd Cir. (Hardiman, J.) (14 pp.) Plaintiff appealed the district court’s order dismissing her Telephone Consumer Protection Act claim against defendant, for lack of subject matter jurisdiction. Plaintiff alleged that she received an unsolicited call on her cellphone from defendant. When plaintiff did not answer, defendant left a prerecorded promotional offer on her voicemail. Plaintiff filed the present suit, arguing that defendant’s phone call and voicemail violated the TCPA’s prohibition on prerecorded calls to cellphones. Defendant moved to dismiss for lack of subject matter jurisdiction, and the district court granted the motion, ruling that a single solicitation was not the type of conduct Congress was attempting to protect against, and that plaintiff’s receipt of the call and voicemail caused her no concrete injury. On appeal, the court reversed the dismissal of plaintiff’s complaint, ruling that the TCPA’s grant of authority to the FCC to also extent the act’s protections to calls to cellphones not charged to the called party indicated that Congress also intended to protect a called party’s “privacy rights.” Thus, the court held that the TCPA provided plaintiff a cause of action for the conduct alleged. The court further ruled that plaintiff had alleged a sufficiently concrete injury, holding that an individualized violation of a statutory right always constituted an injury sufficient to confer standing, even if the injury was intangible. The court noted that Congress specifically identified this injury in passing the TCPA to directly address prerecorded calls to cell phones, and further noted that plaintiff’s complaint pleaded an injury historically recognized by statutory and common law, namely, intrusion upon seclusion. (Precedential) [Filed July 10, 2017]

14-8-3696 U.S. v. Jackson, 3rd Cir. (Cowen, J.) (110 pp.) The government appealed from the sentences imposed against defendants following their conviction for endangering the welfare of a child and conspiracy, offenses under New Jersey law “assimilated” pursuant to the Assimilative Crimes Act. Defendants were the adoptive parents of three children—Joshua, J, and C—and were convicted with endangering their welfare by employing cruel and neglectful discipline. The district court, declining to calculate a sentence guideline, ultimately sentenced Carolyn to 24 months’ imprisonment and sentenced John to three years’ probation and 400 hours of community service and a $15,000 fine. On appeal, the court first noted that because the ACA “filled in” gaps in federal criminal law with state law, the district court had to apply the “most analogous” offense to calculate sentencing guidelines. The court agreed with the government that the assault guideline was sufficiently analogous to defendants’ offense, and ruled that the district court erred in concluding the contrary. The court, applying the “elements-based” approach to determining a sufficiently analogous offense, held that although endangerment of a child covered a wide range of action and inaction, it nonetheless included analogues of each of the elements of the federal assault offense. The court further held that the district court erred in failing to make findings of fact by a preponderance of the evidence as to the guideline calculation and application of sentencing factors, and in focusing too heavily on state sentencing practices. Finally, the court held that no reasonable court would have imposed the sentences defendants received for the abusive and neglectful conduct they inflicted on their children. Judge McKee dissented, agreeing with the district court’s conclusion that there was no sufficiently analogous offense guideline, and argued that the district court’s sentence properly reflected the convicted offense rather than the acquitted allegations of the complaint. (Precedential) [Filed July 6, 2017]

14-8-3708 U.S. v. Binyamin Stimler, 3rd Cir. Cir. (Roth, J.) (50 pp.) Defendants appealed from their convictions for conspiracy to commit kidnapping. Defendants were Orthodox Jewish rabbis charged with various kidnapping-related offenses stemming from their participation in a scheme to assist Orthodox Jewish women to obtain divorces from their husbands. On appeal, defendants challenged various trial court rulings made before, during, and after trial. The court found defendants’ arguments without merit and affirmed their convictions. As to their challenge to the denial of their motion to suppress cell site location information from their mobile phones, the court ruled that mobile phone users did not have a reasonable expectation of privacy in their CSLI. As to the denial of defendants’ motion to dismiss their indictments pursuant to the Religious Freedom Restoration Act, the court agreed that defendants failed to establish that the government substantially burdened their religious beliefs by prosecuting them for kidnapping. The court further ruled that, even if prosecution constituted a substantial burden on defendants’ religious exercise, the government had a compelling interest in uniform application of laws prohibiting violent crime, holding that there was no basis for the RFRA to shield a person from prosecution for a violent crime. As to the exclusion of defendants’ evidence about their religious beliefs offered to negate the mens rea element or establish the victim husbands’ consent, the court agreed that religious benefit could constitute a “benefit” for the kidnapping statute. The court further agreed that defendants’ evidence was not relevant to the affirmative defense of consent because consent to conduct that would otherwise be kidnapping had to be specific and could not be prospective. In a concurring opinion, Judge Restrpo departed from the majority’s holding that defendants’ CSLI data was properly admitted, arguing that magistrates should require a warrant for aggregated collection of CSLI because persons had a reasonable expectation of privacy in the places they go that could be tracked by mobile phones. (Precedential) [Filed July 7, 2017]