Under the aegis of the Supreme Court’s Historical Advisory Board, which Chief Justice Rabner formed last year, the judiciary has launched a virtual museum dedicated to the history of the Supreme Court.  The virtual museum can be accessed here. read more

Thabo v. Z Transportation, ___ N.J. Super. ___ (App. Div. 2017).  Under Rule 4:23-5, failure to make discovery can, in certain circumstances, result in dismissal of a complaint with prejudice.  But Rule 4:23-5 contains “strict notice requirements”  that embody “due process protections,” as Judge Fuentes said in his opinion today in this appeal.  In this breach of contract case, where the Law Division granted dismissal with prejudice, the panel criticized counsel and the judge for failing “to follow the procedural safeguards codified in Rule 4:23-5.” read more

Greenbriar Oceanaire Community Ass’n, Inc. v. U.S. Home Corp., ___ N.J. Super. ___ (App. Div. 2017).  [Disclosure:  I represent U.S. Home, though not in this case].  In today’s decision in this appeal, which involved a dispute over which claims asserted by a homeowners association against the developer of the properties, Judge Fisher, writing for the panel, remanded the case with a direction to the parties and the Law Division that was literally Solomonic.  “[W]e remand for the filing of an amended complaint that separates claims the association asserted on its own behalf and those it asserted on behalf of the homeowners [who comprised the Association].” read more

Yesterday and today, the Supreme Court did what it does not often do: affirm a decision of the Appellate Division substantially for the reasons expressed by the Appellate Division, rather than writing its own fully-expressed opinion. read more

Sparroween, LLC v. Township of West Caldwell, ___ N.J. Super. ___ (App. Div. 2017).  Plaintiffs operated the Cigar Emporium in West Caldwell.  In that business, they sell tobacco products, but they also make tobacco products available to be smoked on the premises.  After plaintiffs had obtained development approvals from the municipal Planning Board, the Township’s Board of Health, acting under its power to preserve public health, adopted an ordinance that governed smoking within retail businesses that sell tobacco.  The ordinance restricted on-premises smoking to no more than two minutes of “pre-purchase sampling.” read more

The Supreme Court announced that it has granted review in two new cases.  The first is In re William R. Hendrickson, Jr.  The question presented there, as phrased by the Supreme Court Clerk’s Office, is “What is the appropriate standard of appellate review of a final agency decision when the initial decision of the administrative law judge is ‘deemed adopted’ as the final agency decision pursuant to N.J.S.A. 52:14B-10(c) when the agency lacked a quorum to act?” read more

On this date in 1956, the Supreme Court decided Friedman v. Tappan Development Corp., 22 N.J. 523 (1956).  Like Newark Publishers’ Ass’n v. Newark Typographical Union, 26 N.J. 419 (1956), decided just one week earlier, Friedman was an opinion by Justice Heher that stated fundamental principles of contract law that continue to be cited today.  But while Newark Publishers was a unanimous opinion, Friedman resulted in a 3-2 split.  Justices Wachenfeld and Burling joined in the majority opinion, while Chief Justice Vanderbilt and Justice Jacobs dissented, without issuing their own opinion. read more

Hamer v. Neighborhood Housing Services of Chicago, ___ U.S. ___ (2017).  In Bowles v. Russell, 551 U.S. 205 (2007), the Supreme Court of the United States explained that an appeal filing deadline mandated by statute is jurisdictional, meaning that a late filing requires dismissal of the appeal.  But a time limit contained in a rule of a court is not jurisdictional, and can be forfeited (most of us would say “waived,” but the Court explained the difference between waiver and forfeiture, as discussed below) if not raised by the appellee.  This distinction arises from the fact that “[o]nly Congress may determine a lower federal court’s subject-matter jurisdiction.” read more