NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2422-12T1

L.T.,

Plaintiff-Respondent,

v.

F.M.,

Defendant-Appellant.

________________________________

Argued: October 28, 2014 – Decided:

Before Judges Reisner, Haas and Higbee.

On appeal from Superior Court of New Jersey, 

Law Division, Sussex County, Docket No. L284-08.

Alan L. Zegas argued the cause for appellant 

(Law Offices of Alan L. Zegas, attorneys; 

Mr. Zegas and Stephanie G. Forbes, on the 

briefs).

Brian C. Lundquist argued the cause for 

respondent (Morris, Downing & Sherred, LLP, 

attorneys; Douglas C. Gray and Mr. 

Lundquist, on the brief).

The opinion of the court was delivered by

HAAS, J.A.D.

Plaintiff obtained a final restraining order (FRO) against 

defendant in the Family Part and subsequently brought an action 

APPROVED FOR PUBLICATION

November 14, 2014

APPELLATE DIVISION

November 14, 2014
2 A-2422-12T1

in the Law Division seeking to recover damages for injuries 

allegedly inflicted upon her by defendant in the assaults that 

were the subject of the Family Part proceedings. In this 

appeal, we address the issue of whether defendant was 

collaterally estopped from arguing in the Law Division action 

that he did not assault plaintiff. We also consider whether 

evidence of a prior alleged assault that was not raised in 

plaintiff's complaint was admissible as habit evidence, and 

whether plaintiff should have been permitted to introduce the 

FRO into evidence. Based upon our review of the record and 

applicable law, we hold that the doctrine of collateral estoppel 

did not bar defendant from challenging plaintiff's claims in the 

Law Division action. We also hold that evidence of the prior 

alleged assault and the FRO should not have been admitted into 

evidence. Therefore, we reverse and remand for a new trial. 

I.

We summarize the procedural history and facts that are 

relevant to the issues raised on appeal. Between 2000 and 

February 27, 2008, plaintiff and defendant were in a dating 

relationship. In 2005, they entered into a written agreement 

concerning the purchase of a house. Under the terms of the 

agreement, plaintiff had eighteen months to buy out defendant's 

interest in the house. During this period, plaintiff would live 
3 A-2422-12T1

in the house and the parties would equally share the monthly 

mortgage payments. After eighteen months, defendant could put 

the house up for sale. If defendant elected to sell the house, 

the agreement provided that plaintiff could delay the sale for 

an additional year. The eighteen-month term ended in March 

2007, and the one-year "grace period" was due to expire in March 

2008.

On February 27, 2008, plaintiff obtained a temporary 

restraining order (TRO) against defendant pursuant to the 

Prevention of Domestic Violence Act of l99l (Act), N.J.S.A.

2C:25-17 to -35. As the predicate act in her complaint, 

plaintiff alleged that, on the morning of February 27, 2008, the 

parties had an argument after defendant returned from the gym. 

She stated that defendant spat in her face, pushed her against 

the bathroom wall, grabbed her neck, and hit her head repeatedly 

into the wall. According to plaintiff, defendant then took a 

shower. As he did so, plaintiff left the house, drove to a 

coffee shop parking lot, and then called the police. Later in 

the day, plaintiff went to the hospital and was prescribed 

medication for her injuries.

Plaintiff alleged there had been three other incidents of 

domestic violence. Plaintiff asserted defendant grabbed her 

neck and banged her head against a wall on an unspecified date 
4 A-2422-12T1

in April 2007. She stated defendant broke her toe in August 

2007, by "stomping" on it while the couple was on a boat. 

Finally, plaintiff claimed that defendant pushed her down "a 

small flight of stairs" sometime in November 2007.

Approximately thirty days after the TRO was filed, a Family 

Part judge conducted a three-day trial at which plaintiff was 

represented by counsel. Defendant, who is an attorney, was not 

represented. The parties did not exchange any discovery. 

Defendant denied all of plaintiff's allegations. At the 

conclusion of the trial, the judge granted plaintiff's request 

for a FRO, finding that plaintiff had proven, by a preponderance 

of the evidence, that defendant assaulted her on February 27, 

2008. The judge also found that the April 2007 and August 2007 

assaults "occur[red.]" The judge found he did "not have 

sufficient information or detail to make a finding as to whether 

[the November 2007] incident occurred or not."

Plaintiff advised the judge she wished to seek compensation 

for the injuries she sustained in the three assaults. The judge 

stated that the "issue of compensatory damages" was not yet 

"ripe" for consideration, and he reserved decision on the 

request in order to enable the parties to marshal the proofs 

needed to address the matter. Defendant did not file a motion 

for leave to appeal from this interlocutory decision.
5 A-2422-12T1

Rather than pursuing her claim for compensatory damages in 

the domestic violence case, plaintiff filed a three-count 

complaint against defendant in the Law Division. Plaintiff 

alleged defendant assaulted her in April and August 2007, and 

again on February 27, 2008. Plaintiff sought compensatory 

damages, punitive damages, and counsel fees. Defendant filed an 

answer denying plaintiff's allegations.1

The Family Part judge initially handled the matter in the 

Law Division. In July 2010, plaintiff filed a motion for 

partial summary judgment, arguing that the judge's findings in 

the prior FRO trial "establish[ed defendant's] liability, as a 

matter of law, in the present intentional tort action, by 

operation of the doctrine of collateral estoppel." Following 

oral argument, the judge denied plaintiff's motion in a thorough 

oral opinion. The judge also issued a written opinion setting 

forth his findings of fact and conclusions of law.

The judge stated there were significant procedural 

differences between the summary proceeding he conducted in the 

FRO matter and an action in the Law Division seeking to recover 

 

1 Defendant also filed a separate action against plaintiff in the 

Chancery Division, seeking to enforce the terms of the 2005 

agreement concerning the house. The two actions were 

consolidated in the Law Division, with the contract dispute to 

be tried separately by the judge, rather than by a jury. On 

October 3, 2012, however, the parties settled the contract issue 

and it is not involved in this appeal.
6 A-2422-12T1

compensatory and punitive damages for an alleged assault. The 

judge explained,

a domestic violence hearing is clearly a 

summary proceeding, held in an "emergency 

situation." The procedural limitations 

imposed by the Legislature in achieving the

worthy goal of "assur[ing] the victims of 

domestic violence the maximum protection 

from abuse the law can provide" are not 

consistent with a civil action, filed in the 

Law Division, in which the parties are 

permitted extensive pre-trial discovery, 

which New Jersey Courts consistently 

construe liberally.

Under these circumstances, the judge determined it would be 

unfair to apply the doctrine of collateral estoppel against 

defendant in the Law Division action. 

By May 2011, responsibility for the matter had been 

transferred to a different judge. At that point, plaintiff 

renewed her motion for partial summary judgment and again sought 

to bar defendant from offering any evidence in defense of 

plaintiff's claims that he assaulted her on three occasions. 

Without conducting oral argument, and following an off-therecord meeting with counsel in chambers, the second judge issued 

an order on May 5, 2011, stating "[d]efendant is collaterally 

estopped from offering evidence and testimony at the trial in 

this matter with respect to the Family Court's determination 

that he assaulted plaintiff on February 27, 2008[.]"
7 A-2422-12T1

In a very brief letter to the parties concerning the order, 

the judge did not address or even acknowledge the Family Part 

judge's prior, contrary ruling.2 The only explanation provided 

for the change in course was the judge's statement that "[t]he 

fact that no timely appeal [of the FRO] was filed is a 

significant factor in this determination."

At trial, the second judge barred defendant from presenting 

any evidence contesting plaintiff's claim that he assaulted her 

on February 27, 2008. Defendant was permitted to contest 

plaintiff's allegations concerning the April and August 2007 

incidents.

In his opening statement, plaintiff's attorney referred to 

the November 2007 incident, where defendant allegedly threw 

plaintiff down a flight of stairs. Defendant's attorney 

objected, pointing out that this incident was not raised in 

plaintiff's complaint. The judge sustained the objection and 

stated, "If it's not an affirmative claim, it's not in the 

case." 

On the second day of trial, however, plaintiff's counsel 

asked plaintiff's son about the November 2007 incident and 

 

2 The judge did not explain why the doctrine of collateral 

estoppel was applied to the February 27, 2008 incident, but not 

to the April, August, and November 2007 incidents that were the 

subject of the FRO trial.
8 A-2422-12T1

defendant's attorney objected. Plaintiff's attorney replied 

that he was "submitting [evidence concerning the November 2007 

incident] . . . for pattern behavior, habit, custom behavior." 

The judge then overruled defendant's objection and permitted 

plaintiff to refer to the November 2007 incident while 

questioning plaintiff's son. The judge also allowed plaintiff 

to refer to the incident throughout the rest of the trial.

When plaintiff's attorney again raised the November 2007 

incident during his closing argument, and defendant objected, 

the judge ruled that the incident was not "part of the 

allegations with regard to a claim for damages, but it is part 

of the history between the parties. It is admissible as such, 

and it can be commented upon." The judge did not provide the 

jury with any instructions regarding how it should consider the 

testimony presented about the November 2007 incident.

Plaintiff also introduced the TRO and FRO as exhibits. 

Defendant did not object to the admission of either document in 

evidence. In response to a question by one of the jurors during 

defendant's testimony as to whether defendant "was . . . 

convicted of assault against" plaintiff, the judge advised the 

jury as follows:

[T]here was a domestic violence restraining 

order obtained . . . by [plaintiff], which 

resulted in an order in [this] County in 

which there was a finding by a preponderance 
9 A-2422-12T1

of the evidence, the same legal standard 

that applies here in this court, that 

[defendant] did commit an act of domestic 

violence, that being assault. It's spelled 

out in the order, the order is in evidence, 

and you'll have that with you in the jury 

room to review.

The significance of that is, and it has 

to do with . . . the February 27[], 2008 

event. And as a result a Judge heard the 

testimony, made a determination that 

[defendant] had in fact committed an act of 

domestic violence, and having found that 

that predicate act was proven by a 

preponderance of the evidence, the Judge 

then ordered certain things to be done by 

the parties. Chiefly, for them to stay away 

from each other, not to have any contact, 

and other things that are set forth in the 

order that you'll have with you.

The judge did not provide the jury with any instructions during 

his final charge concerning the permissible use of these orders 

in its deliberations.

At the conclusion of the trial, the jury found, by a vote 

of five to one, that defendant assaulted plaintiff in April 

2007, but not in August 2007. As noted above, the February 27, 

2008 assault was deemed "established." The jury also found, by 

the same voting margin, that the April 2007 and February 27, 

2008 assaults were a proximate cause of plaintiff's injuries, 

and awarded her $149,500 in damages.

The judge then dismissed the jury but, when plaintiff 

stated she still wished to seek punitive damages, the judge 
10 A-2422-12T1

ordered the jurors to return to the courtroom. The parties and 

the judge then discussed how to handle the issue of punitive 

damages since those damages had to be proven by clear and 

convincing evidence, and the February 27, 2008 incident, which 

the judge deemed "established" by the FRO, had only been proven 

by a preponderance of the evidence at the FRO trial. Defendant 

objected to plaintiff's request for punitive damages because the 

judge had already told the jury that it had to accept that the 

February 27, 2008 incident occurred and, therefore, it would be 

impossible for him to defend against plaintiff's punitive 

damages claim even under a clear and convincing standard of 

proof. The parties broke for lunch without resolving the issue 

but, over the break, they negotiated a settlement of plaintiff's 

punitive damages claim.

Plaintiff submitted a form of order, seeking pre-judgment 

interest. Defendant submitted a written objection to the order, 

arguing that plaintiff's interest calculation was incorrect. 

Without conducting a hearing, entertaining oral argument, or 

making findings of fact supporting his decision, the judge 

accepted plaintiff's calculation of the interest amount and 

entered a final judgment in plaintiff's favor. This appeal 

followed. 
11 A-2422-12T1

II.

On appeal, defendant first argues the judge erred in 

applying the doctrine of collateral estoppel to the Family 

Part's findings in the FRO matter. We agree.

"Collateral estoppel is that branch of the broader law of 

res judicata which bars relitigation of any issue which was 

actually determined in a prior action, generally between the 

same parties, involving a different claim or cause of action." 

State v. Gonzalez, 75 N.J. 181, 186 (1977). The party asserting 

the bar must show:

(1) the issue to be precluded is identical 

to the issue decided in the prior 

proceeding; (2) the issue was actually 

litigated in the prior proceeding; (3) the 

court in the prior proceeding issued a final 

judgment on the merits; (4) the 

determination of the issue was essential to 

the prior judgment; and (5) the party 

against whom the doctrine is asserted was a 

party to or in privity with a party to the 

earlier proceeding.

[Olivieri v. Y.M.F. Carpet, Inc., 186 N.J.

511, 521 (2006) (quoting In re Estate of 

Dawson, 136 N.J. 1, 20-21 (1994)).]

However, "'even where these requirements are met, the 

doctrine, which has its roots in equity, will not be applied 

when it is unfair to do so.'" Id. at 521-22 (quoting Pace v. 

Kuchinsky, 347 N.J. Super. 202, 215 (App. Div. 2002)); see also

State v. Silva, 394 N.J. Super. 270, 275 (App. Div. 2007) 
12 A-2422-12T1

(analogously holding that findings from a FRO trial were not 

binding at a subsequent criminal trial regarding the same 

conduct). The relevant focus "must center on whether the 

conditions precedent to the application of the collateral 

estoppel doctrine have been satisfied and, if so, whether the 

application of the doctrine is equitable under the 

circumstances." N.J. Div. of Youth & Family Servs. v. R.D., 207 

N.J. 88, 116 (2011).

In this case, the Family Part judge who presided at the FRO 

trial applied these standards and, in persuasive oral and 

written opinions, ruled that defendant could not be collaterally 

estopped from contesting plaintiff's claims in the Law Division 

action. Knowing first-hand everything that occurred during the 

FRO matter, the judge concluded that "the quality [and] 

extensiveness of the procedures" followed in the FRO case and to 

be followed in the Law Division were markedly different. 

The judge noted that the FRO trial was handled as a summary 

matter, which deprived the parties of the opportunity to obtain 

discovery. As a result, the judge stated that, at a FRO trial, 

"[t]estimony comes in and there is not much of an opportunity, 

if any sometimes, to beat or rebut that testimony because of a 
13 A-2422-12T1

lack of opportunity for pre-trial discovery."3 The case was 

tried approximately thirty days after plaintiff obtained the TRO 

and, although defendant was a lawyer, he was not represented by 

counsel at the FRO trial. Medical proofs were not provided by 

plaintiff and there was no expert testimony concerning the 

injuries she allegedly suffered. The judge concluded that 

"unless there has been a fair and full adjudication with all the 

benefits and opportunities for a full and fair discovery as 

well[,] which we didn't have in the context of a domestic 

violence case," the doctrine of collateral estoppel could not be 

applied against defendant in the Law Division action.

Although not mentioned by the Family Part judge, we also 

observe that, in the FRO matter, plaintiff had to prove by a 

preponderance of the evidence that defendant committed an act of 

domestic violence, namely assault. Silver v. Silver, 387 N.J. 

Super. 112, 125 (App. Div. 2006). Because she was seeking 

punitive damages in the Law Division, however, if plaintiff 

 

3 For example, at the FRO hearing, plaintiff asserted defendant 

assaulted her on an unspecified date in April 2007. During 

discovery in the Law Division action, however, defendant learned 

that plaintiff went to see a chiropractor on April 17, 2007, and 

complained of pain caused by typing on a computer, rather than 

from an alleged assault. While plaintiff asserted she misled 

the chiropractor in order to conceal the fact she was a victim 

of domestic abuse, the chiropractor's report, if available at 

the FRO hearing, would have provided defendant with crossexamination material to test plaintiff's credibility.
14 A-2422-12T1

proved that the alleged assaults were the proximate cause of her 

injuries, plaintiff would then be required to prove "'by clear 

and convincing evidence, that the harm suffered was the result 

of the defendant's acts or omissions, and such acts or omissions 

were actuated by actual malice or accompanied by a wanton and 

willful disregard of persons who foreseeably might be harmed by 

those acts or omissions.'" Long v. Pleasure Prods, Inc., 215 

N.J. 48, 58 (2013) (quoting N.J.S.A. 2A:15-5.12). Thus, the 

ultimate burdens of proof in each action were different.

The Family Part judge's reasoned decision denying 

plaintiff's motion to bar defendant from contesting plaintiff's 

allegations concerning the February 27, 2008 incident 

constituted the "law of the case" and, as such, should have 

bound the second judge when the case was reassigned for trial. 

The "law of the case" doctrine embodies "the principle that 

where there is an unreversed decision of a question of law or 

fact made during the course of litigation, such decision settles 

that decision for all subsequent stages of the suit." Slowinski 

v. Valley Nat'l Bank, 264 N.J. Super. 172, 179 (App. Div. 1993) 

(citations and internal quotation marks omitted). The rule is 

based on the policy that, when an issue is litigated and decided 

in a case, that decision should be the end of that issue. Ibid. 
15 A-2422-12T1

The law of the case "doctrine is not an absolute rule as 

'the court is never irrevocably bound by its prior interlocutory 

ruling[.]'" Jacoby v. Jacoby, 427 N.J. Super. 109, 117 (App. 

Div. 2012) (citations and internal quotation marks omitted). 

Thus, when "there is substantially different evidence" from that 

available at the time of the prior decision, "new controlling 

authority, or the prior decision was clearly erroneous[,]" the 

doctrine does not apply. Sisler v. Gannett Co., 222 N.J. Super.

153, 159 (App. Div. 1987), certif. denied, 110 N.J. 304 (1988). 

In any event, when a judge decides not to follow the law of the 

case doctrine, it is incumbent on the judge to explain the 

reasons for that departure.

Here, the second judge mistakenly exercised his discretion 

by failing to follow the law of the case doctrine. The judge 

did not acknowledge that the Family Part judge had previously 

determined, based upon his first-hand knowledge of the FRO 

proceedings, that it would be unfair to bar defendant from fully 

defending against plaintiff's allegations concerning the 

February 27, 2008 incident in the Law Division matter. The 

second judge also did not make adequate findings of fact or 

legal conclusions supporting his decision, as required by Rule

1:6-2(f). The judge merely stated that "[t]he fact that no 

timely appeal was filed [by defendant from the FRO] is a 
16 A-2422-12T1

significant factor in this determination." However, this "fact" 

was obviously known to the Family Part judge at the time he 

denied plaintiff's collateral estoppel motion and, therefore, 

provided no basis for disturbing the "law of the case." Sisler, 

supra, 222 N.J. Super. at 159.4

Under these circumstances, we conclude that defendant 

should have been permitted to defend against plaintiff's 

allegations concerning the February 27, 2008 incident in the Law 

Division action. Because he was incorrectly barred from doing 

so, we are constrained to reverse and remand for a new trial.

III.

Defendant next argues that the Law Division judge erred in 

admitting testimony concerning the November 2007 incident as 

"habit" evidence. Again, we agree.

We review a trial judge's evidentiary rulings under "an 

abuse of discretion standard." State v. Burns, 192 N.J. 312, 

332 (2007). Our review of a trial judge's purely legal 

conclusions, however, is plenary. Manalapan Realty, L.P. v. 

Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

Under N.J.R.E. 406:

 

4 Moreover, at the time it was issued, the Family Part order was 

interlocutory because plaintiff was also seeking damages in that 

action. Hence, an appeal of that order would have been 

interlocutory.
17 A-2422-12T1

(a) Evidence, whether corroborated or 

not, of habit or routine practice is 

admissible to prove that on a specific 

occasion a person or organization acted in 

conformity with the habit or routine 

practice.

(b) Evidence of specific instances of 

conduct is admissible to prove habit or 

routine practice if evidence of a sufficient 

number of such instances is offered to 

support a finding of such habit or routine 

practice.

Habit evidence must, with "specificity or proof of 

regularity," demonstrate a "routine practice probative of . . . 

conduct" at the event in question. Riley v. Keenan, 406 N.J. 

Super. 281, 299-300 (App. Div.), certif. denied, 200 N.J. 207 

(2009). The conduct in question must be "more than a mere 

'tendency' to act in a given manner, but rather, conduct that is 

'semi-automatic' in nature." Verni ex rel. Burstein v. Harry M. 

Stevens, Inc., 387 N.J. Super. 160, 190 (App. Div. 2006), 

certif. denied, 189 N.J. 429 (2007) (quoting Sharpe v. Bestop, 

158 N.J. 329, 332 (1999)). 

Here, the evidence was insufficient to establish habit. 

Indeed, in overruling one of defendant's objections to 

plaintiff's testimony concerning the November 2007 incident, the 

judge stated, "[w]ell, she was responding to the question. 

There were multiple acts of domestic violence here, and she's 

describing a tendency of his to act in a certain way. It's 
18 A-2422-12T1

habit or behavior, and I'll permit it." (Emphasis added). 

However, as noted above, "a mere tendency to act in a given 

manner" does not constitute admissible habit evidence. Ibid.

The judge later explained that he permitted evidence of the 

November 7, 2007 incident because it was "part of the history 

between the parties . . . ." However, this was also not an 

appropriate basis for admitting the evidence. Prior to the 

adoption of the Rules of Evidence, the doctrine of res gestae 

allowed the admission of evidence of other acts if the other act 

"'constitute[d] part[] of the transaction . . . without the 

knowledge of which the main facts might not properly be 

understood.'" State v. Rose, 206 N.J. 141, 172 (2011) (quoting 

Riley v. Weigand, 18 N.J. Super. 66, 73 (App. Div. 1952)). 

However, in Rose, the Court specifically held "that the doctrine 

of res gestae no longer has vitality in light of the [adoption 

of the] formal Rules of Evidence." Id. at 146. 

Plaintiff now argues5 that the testimony she elicited 

throughout the trial concerning the November 2007 incident was 

admissible under N.J.R.E. 404(b), which states:

 

5 Plaintiff also contends that the Law Division judge erred in 

denying her request to amend her complaint to include a claim 

for damages arising from the November 2007 incident. However, 

plaintiff did not file a cross-appeal from any of the judge's 

rulings. "It is a fundamental [principle] of appellate practice 

that we only have jurisdiction to review orders that have been 

(continued)
19 A-2422-12T1

evidence of other crimes, wrongs, or acts is 

not admissible to prove the disposition of a 

person in order to show that such person 

acted in conformity therewith. Such 

evidence may be admitted for other purposes, 

such as proof of motive, opportunity, 

intent, preparation, plan, knowledge, 

identity or absence of mistake or accident 

when such matters are relevant to a material 

issue in dispute.

When evidence is proffered pursuant to this Rule, the trial 

court should apply the applicable "criteria of State v. Cofield

. . . to determine whether some or all of the challenged 

evidence [can] be admitted." State v. Lige, 429 N.J. Super.

490, 501 (App. Div. 2013), aff'd o.b., ___ N.J. ___ (2014). The 

Cofield test6 requires that:

[1] The evidence of the other crime 

must be admissible as relevant to a material 

issue;

[2] It must be similar in kind and 

reasonably close in time to the offense 

charged;

[3] The evidence of the other crime 

must be clear and convincing; and 

 

(continued)

appealed to us." State v. Rambo, 401 N.J. Super. 506, 520 (App. 

Div.), certif. denied, 197 N.J. 258 (2008), cert. denied, 556 

U.S. 1225, 129 S. Ct. 2165, 173 L. Ed. 2d 1162 (2009). 

Therefore, we are unable to consider plaintiff's contention on 

this point.

6 While the Cofield test was first announced in a criminal case, 

it has been applied in civil proceedings. See, e.g., N.J. Div. 

of Youth & Family Servs. v. I.H.C., 415 N.J. Super. 551, 572-73 

(App. Div. 2010); Hill v. Dep't of Corr. Comm'r, 342 N.J. Super.

273, 304 (App. Div. 2001), certif. denied, 171 N.J. 338 (2002).
20 A-2422-12T1

[4] The probative value of the 

evidence must not be outweighed by its 

apparent prejudice.

[State v. Williams, 190 N.J. 114, 122 (2007) 

(citing State v. Cofield, 127 N.J. 328, 338

(1992)).]

In this case, the Law Division judge did not conduct the 

required Cofield analysis. Instead, the judge stated he 

admitted the evidence of the November 2007 incident because it 

was probative of defendant's "tendency" to act in an assaultive 

manner toward plaintiff. Because N.J.R.E. 404(b) specifically 

prohibits the use of other bad acts evidence for this purpose, 

which was the only purpose identified by plaintiff for its 

admission at trial, the testimony concerning the November 2007 

incident should not have been admitted. 

Moreover, even if evidence concerning this incident were 

admissible under N.J.R.E. 404(b) or N.J.R.E. 406, the judge 

failed to provide the jury with any instructions on the 

appropriate use of this evidence. See Rose, supra, 206 N.J. at 

161 ("[L]imiting instructions must be provided to inform the 

jury of the purposes for which it may, and for which it may not, 

consider the [Rule 404(b)] evidence . . . both when the evidence 

is first presented and again as part of the final jury charge"); 

State v. Radziwil, 235 N.J. Super. 557, 567-68 (App. Div. 1989), 

aff'd o.b., 121 N.J. 527 (1990) (It is "appropriate – if not 
21 A-2422-12T1

incumbent - upon the trial judge to instruct the jury regarding 

the use" of habit testimony).

Under these circumstances, we conclude that the judge 

mistakenly exercised his discretion in allowing plaintiff to 

submit evidence of the November 2007 incident. We thus reverse 

the judgment and remand for a new trial.

IV.

Finally, defendant contends the admission of the FRO was 

plain error. We find merit in defendant's contention, but 

discuss it only briefly because defendant will receive a new 

trial.7

Defendant did not object to the admission of the FRO in 

evidence. However, our Supreme Court has consistently held that 

FROs should generally not be introduced as exhibits at trial 

because of their inherent prejudicial effect. See State v. 

Vallejo, 198 N.J. 122, 133 (2009) ("domestic-violencerestraining-order testimony . . . not only fostered the 

suggestion that [the] defendant was guilty of that which was 

charged, but told the jury that a judicial officer believed the 

victim, thus bolstering her credibility."); State v. Chenique-

 

7 Because there will be a new trial, there is likewise no need to 

address defendant's contention that the judge erred in 

determining the amount of pre-judgment interest due to 

plaintiff. 
22 A-2422-12T1

Puey, 145 N.J. 334, 343 (1996) (observing that "a jury could 

interpret the order as a judicial imprimatur on the victim's 

testimony. The order creates the inference that if a court 

found defendant guilty of domestic violence in a prior 

proceeding, that defendant is more likely guilty of the present 

[domestic violence] charges."). Thus, neither the TRO or FRO 

should be admitted in evidence at the new trial.

Reversed and remanded.