A Trio of Published Opinions From the Appellate Division Today

Last week, the Appellate Division issued four published opinions on a single day, as discussed here. Today, the court released three published decisions. Here are summaries of those opinions:

New Jersey Div. of Child Protection & Permanency v. B.H., 460 N.J. Super. 212 (App. Div. 2019). This was an abuse and neglect appeal under Title 9. B.H. was the boyfriend of H.S. He was accused of abusing or neglecting H.S.’s daughter, M.S. Title 9 defines “abused or neglected child” as one who is impaired, or in danger of impairment, due to the failure of his or her “parent or guardian,” as defined in Title 9.

“Pursuant to N.J.S.A. 9:6-8.21(a),” Judge Mayer noted, “a parent or guardian includes: ‘any natural parent, adoptive parent, resource family parent, stepparent, paramour of a parent, or any person, who has assumed responsibility for the care, custody, or control of a child or upon whom there is a legal duty for such care.’ According to N.J.S.A .9:6-2, a parent or guardian is a ‘person having the care, custody and control of any child,’ ‘any person who has assumed the care of a child, or any person with whom a child is living at the time the offense is committed. . . .'”

The Family Part found abuse and neglect. B.H. appealed. He was not M.H.’s parent, and he contended that his limited contact and relationship with her did not make him her “guardian” either, so that the Family Part had no jurisdiction to find abuse or neglect.

Judge Mayer’s opinion for the panel focused painstakingly on the facts, as it should have, given the issue. Since B.H. had babysat M.H. once and had agreed to drive her a short distance at her mother’s request, and that was essentially the sum total of his relationship with her, the panel concluded that he was not M.H.’s “guardian.” Though Family Part factfindings received deference on appeal, the scope of review here expanded, since “‘alleged error in the trial judge’s evaluation of the underlying facts and the implications to be drawn therefrom” was at issue. Accordingly, the finding of the Family Part of abuse and neglect was reversed.

Catalina Marketing Corp. v. Hudyman, 459 N.J. Super. 613 (App. Div. 2019). This opinion by Judge Messano dealt with issues that are rarely the subject of reported opinions, which arose out of challenges to subpoenas. A number of Court Rules, including Rules 4:4-4, 4:11-4, 4:11-5, 4:11-7, and 4:14-7, were implicated in the opinion, as was the Uniform Interstate Depositions and Discovery Act (“UIDDA”). Judge Messano observed that New Jersey had not “formally adopted” the UIDDA, but stated that Rule 4:11-5 had “effectively adopt[ed]” that enactment, citing the authoritative comments to the New Jersey Court Rules. Ultimately, the panel affirmed, as modified, the Chancery Division’s ruling on the subpoenas, and remanded the matter for further proceedings.

Capparelli v. Lopatin, 459 N.J. Super. 584 (App. Div. 2019). The same panel that decided Catalina issued this opinion, which was written by Judge Gooden Brown. The issue involved the validity of an arbitration agreement in a dispute between former business partners. To oversimplify the procedural history that Judge Gooden Brown ably described, the parties resolved litigation between them by entering into an agreement in 2013 to settle litigation through a mediation/arbitration process. When that process proved unwieldy, the parties entered into another settlement agreement in 2015 under which the former long-time corporate counsel for their companies would resolve all disputes between the parties regarding collection of debts owed to those companies. In 2017, the parties were advised that the decisionmaker would no longer serve under the 2015 agreement.

The parties could not agree on a replacement. Plaintiff then sued, seeking appointment of a new decisionmaker. Defendant resisted, arguing that the doctrines of frustration of purpose and impossibility of performance required that the court void the 2015 agreement and remit the parties to their 2013 arbitration agreement.

The Chancery Division agreed with defendant and voided the 2015 agreement. Today, the Appellate Division affirmed, applying de novo review. The participation of the former counsel “was a critical part” of the 2015 agreement, given his “unique knowledge and experience with the parties and their disputes.” Because there was no provision in the 2015 agreement to replace him, the finding that impossibility of performance and frustration of purpose called for the nullification of the 2015 agreement was upheld.