Last Week’s Appellate Division Published Opinions

Preparation for an Appellate Division oral argument made it difficult to keep up with that court last week. The Appellate Division issued three published opinions during that time. (The Supreme Court did not publish any opinions). Here are summaries:

John Doe v. Estate of C.V.O., Jr., 477 N.J. Super. 42 (App. Div. 2023). This opinion by Judge Perez Friscia raised, as she stated, “issues of first impression pertaining to the civil prosecution of statutory and common law personal injury claims arising from allegations of sexual abuse committed fifty-five years ago against a child by his sister, who also was a minor when the acts occurred.” The questions in the case related to the application of the Child Victims Act, L. 2019, c. 120 (“CVA”), and its interaction with the Child Sexual Abuse Act, N.J.S.A. 2A:61B-1 (“CSAA”), on which plaintiff premised his claims here (in addition to common law claims). The CVA “supplemented and amended the statute of limitations in civil actions for sexual abuse claims and expanded the categories of potentially liable defendants.” The Law Division granted a defense motion to dismiss. The Appellate Division affirmed in part and reversed in part, agreeing with the Law Division that there was no CSAA cause of action because the alleged abuser was not an adult, and that passive abuser claims against plaintiff’s parents’ estates were derivative. But the panel reinstated plaintiff’s common law claims, which were timely and not precluded by the CSAA.

Cargill Meat Solutions Corp. v. Director, Div. of Taxation, 477 N.J. Super. 85 (App. Div. 2023). The Clean Communities Program Act, N.J.S.A. 13:1E-213 to -223 (“the Act”), “imposes a tax on the sale of litter-generating products in this state involving manufacturers, wholesalers, distributors, and retailers,” as Judge Firko wrote in her opinion for the Appellate Division. There is an exemption, however, for “sale[s] by a wholesaler or distributor to another wholesaler or distributor.” Cargill relied on this exemption in its filings for two tax years, but the Division of Taxation found Cargill ineligible for the exemption. Cargill filed suit, and the parties cross-moved for summary judgment. Cargill argued that “it was not subject to the tax for the years at issue because the Legislature did not specifically appropriate the revenue generated by the Clean Communities Program Fund (the Fund) pursuant to the Act.” The Tax Court ruled for the Division, concluding that the Legislature had validly appropriated the money through “General Provision 2,” an enactment that stated that “All dedicated funds are hereby appropriated for their dedicated purposes.” That court also found that, in any event, Cargill was not a wholesaler. Applying de novo review, the Appellate Division affirmed, based substantially on the Tax Court’s opinion.

In re Route 66, 477 N.J. Super. 22 (App. Div. 2023). This appeal centered on access to Route 66 in Neptune. The appellant, a commercial property owner, had had direct access to Route 66 through an existing driveway. But a state highway project replaced that access with one that used a shared driveway connecting to an adjacent parcel. “The configuration will enable motorists going to appellant’s property from Route 66 to turn into the shared driveway, briefly travel on an easement through the adjacent property, and then branch off to an internal driveway on appellant’s lot leading to appellant’s commercial building.” The case called on Judge Sabatino, who wrote the Appellate Division’s opinion, to address provisions of the State Highway Access
Management Code, N.J.A.C. 16:47–1.1 to –14.1, that had been extensively revised in 2018. The ultimate issue was whether the replacement access was a “revocation” or “removal” of access on one hand or, on the other hand, merely a “modification” of access. The final agency decision of the Department of Transportation was that this was a “modification.” The Appellate Division upheld that determination. Everyone could still “get [their] kicks on Route 66 pretty much as before. [Could not resist this].