NEW JERSEY LAWYER

DAILY BRIEFING      01/13/2006


News Briefs

ANNUAL FEE ON NEW JERSEY LAWYERS REMAINS THE SAME
The annual assessment on attorneys will be $182 this year, the same as 2005. That announcement comes several months after the New Jersey Supreme Court committee that oversees the lawyer disciplinary system recommended to the justices that $126 be assessed for that function. The total fee also includes $50 to support the New Jersey Lawyers’ Fund for Client Protection and $6 for the Lawyers Assistance Program, which helps those with alcohol, drug, gambling and other problems. The $182 fee is assessed most attorneys. Exceptions are first-year lawyers who pay $28, those admitted in 2003 and 2004 who pay $157, and lawyers in their 50th or more year of admission, for whom registration is free. The disciplinary oversight committee said it could seek an increase for 2007, depending on the reserves at year’s end. 1-12-06

ALCOTEST EVIDENCE MAY BE USED AS JUSTICES REVIEW DEVICE
The New Jersey Supreme Court is allowing readings from the controversial Alcotest 7110 breath-testing device to be used in DWI prosecutions while the justices review the unit’s reliability in State v. Chun. The court has appointed a special master to conduct a hearing on the device’s reliability to help the court in its review. In an order, the justices said sentences of first offenders are to be stayed until Chun is decided. It also said defendants may enter a conditional guilty plea in case the court finds the apparatus unreliable. The procedure set down by the court is being criticized by some defense lawyers who contend DWI prosecutions should be halted until the state determines Alcotest’s accuracy.1-12-06

MAKE SURE YOU CALL THEM ‘COURT REPORTERS’
Gov. Richard J. Codey has signed a bill that, among other things, updates the statutes that refer to “shorthand reporters” — remember shorthand? — so they’re referred to as “court reporters.” A-3168 also covers temporary employment of someone not holding a reporter certificate. Temporary employment is permitted until a certified court reporter is available. An uncertified reporter may not engage in court reporting without registering with the State Board of Court Reporting and disclosing to the participants at a proceeding — and obtaining written acknowledgment from them — that the reporter does not hold a certificate and is registered to work on a temporary basis. 1-12-06

WARDS OF GUARDIANS GAIN GREATER PROTECTION
The most vulnerable of New Jersey citizens — mentally incapacitated people, especially the elderly, who are wards of guardians — now have greater protection of their legal rights and finances. Gov. Richard J. Codey this week signed the first sweeping overhaul of the state’s guardianship laws in more than 30 years. The law provides greater autonomy for the mentally incapacitated to retain their decision-making powers and requires judges focus on whether, and how much, autonomy a person can handle. In addition, the reporting requirements and tight controls on guardians now would make it more difficult for lawyers to bilk clients, as sometimes has occurred. The legislation was drafted by the New Jersey State Bar Association. 1-12-06

MORE RIGHTS FOR DOMESTIC PARTNERS
Domestic partners would be able to make funeral arrangements and collect inheritance under the latest statute applying to gay couples, a measure poised to go into law. It only applies, though, to instances in which the deceased didn’t leave a will. Currently, domestic partners don’t have the same rights as married couples to make such arrangements or inherit. And another new law will allow public entities to offer health benefits to employees’ domestic partners. The New Jersey State Bar Association is among groups supporting both measures. 1-12-06

NO BRIEFING MONDAY
Because New Jersey Lawyer will be closed for Martin Luther King Jr. Day, the Daily Briefing will return Tuesday, Jan. 17.



Today's Decision Summaries

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FROM THE NEW JERSEY SUPREME COURT, THURSDAY, JANUARY 12, 2006
THE FOLLOWING OPINIONS WERE RELEASED BY THE NEW JERSEY SUPREME COURT ON THURSDAY, JANUARY 12, 2006:

CIVIL PROCEDURE
NOTTE v. MERCHANTS MUTUAL INSURANCE CO.
New Jersey Supreme Court, A-19, January 12, 2006. (18 pages). Facts-on-Call Order No. 92805

The plaintiff employee’s amended complaint — which sought to replead his time-barred claims under the Conscientious Employee Protection Act as claims for common-law wrongful discharge and for violations of the Law Against Discrimination — was not time-barred because the new claims did “relate back” to his original complaint, and the defendant employer and the defendant supervisor were not prejudiced by the amended complaint. However, remand was required to determine whether amending the plaintiff’s claims would be futile under CEPA’s waiver provisions.

EVIDENCE
STATE v. NESBITT
New Jersey Supreme Court, A-114, January 12, 2006. (29 pages). Facts-on-Call Order No. 92806

In a prosecution for possession of CDS with intent to distribute within 1,000 feet of school property, there was no error in allowing the State’s expert to testify about the methods used by confederates in street-level drug sales. The expert’s answer in response to a hypothetical question improperly relied on terminology from the criminal statute, but it did not constitute plain error. Justice Albin dissented.

NO OPINIONS ARE SCHEDULED TO BE RELEASED BY THE NEW JERSEY SUPREME COURT ON FRIDAY, JANUARY 13, 2006.



APPROVED FOR PUBLICATION
PARENT AND CHILD
DIVISION OF YOUTH AND FAMILY SERVICES v. M.M.
Appellate Division, A-5528-04T4 and A-5529-04T4, approved for publication January 12, 2006. (29 pages). Facts-on-Call Order No. 92807

One parent cannot be held responsible for the shortcomings of the other at the cost of forfeiting his parental rights, and the nonculpable parent is obliged only to make reasonably successful efforts to protect the child from the harm inflicted by the deficient parent. A best-interests determination based on the bonding between the child and the foster parents could not be a valid surrogate for clear and convincing proofs of the statutory standards for termination of parental rights in the absence of substantial and particularized evidence that the child would suffer serious psychological or emotional harm if he was separated from the foster parents.

EDUCATION
75 SPRUCE STREET, L.L.C. v. NEW JERSEY STATE BOARD OF EDUCATION
Law Division, Passaic County, PAS-L-5389-04 and PAS-L-417-05, approved for publication December 28, 2005. (21 pages). Facts-on-Call Order No. 92808

N.J.S.A. 18A:36A-3(a), under which the board of trustees of a charter school is a public agent authorized by the State Board of Education to supervise and control the charter school, does not empower the board of trustees to act as an agent for the State Board. Therefore, the State Board was not liable for the debts incurred by the charter school in this case.

PARENT AND CHILD
IN RE PARENTAGE OF THE CHILD OF ROBINSON
Chancery Division, Family Part, Essex County, FD-07-6312-05-A, approved for publication December 28, 2005. (13 pages). Facts-on-Call Order No. 92809

In an action arising from the artificial insemination of one partner in a same-sex female couple that had married in Canada, the Chancery Division was not barred from considering the claim by the second partner under the New Jersey artificial insemination statute, N.J.S.A. 9:17-44, and the second partner was entitled to the presumption of parentage under §9:17-44 that would attach upon the birth of the child.

NOT APPROVED FOR PUBLICATION
VERBAL THRESHOLD
DUNCOMBE v. JOHNS
Appellate Division, A-2435-04T1, January 12, 2006, not approved for publication. (2 pages). Facts-on-Call Order No. 19091

Summary judgment for the defendants based on the N.J.S.A. 39:6A-8a verbal threshold under AICRA reversed and remanded for trial; at the motion hearing, the defendants conceded that the plaintiff had satisfied the objective prong of the Oswin v. Shaw test because she had suffered a permanent injury; however, the motion judge held that the plaintiff’s injuries were not sufficiently serious to satisfy the subjective prong, which required that her injuries had a serious impact on her life; reversal and remand were required in light of the New Jersey Supreme Court’s recent decisions in DiProspero v. Penn and Serrano v. Serrano, which held that, to satisfy the verbal threshold, a plaintiff must prove only that she sustained a permanent injury under §39:6A-8a and need not prove that her injuries had a serious impact on her life.

REAL PROPERTY
WEATHERVANE FARMS, L.L.C. v. KILPATRICK
Appellate Division, A-719-04T5, January 12, 2006, not approved for publication. (5 pages). Facts-on-Call Order No. 19093

Judgment following a bench trial of $14,599 for the defendant homeowner on his counterclaim alleging that the plaintiff builder had negligently and improperly graded his property affirmed; the judgment awarded the homeowner $10,799 in exchange for his execution of a deed of easement to allow municipal personnel to maintain the drainage facility on his property and $3,800 to remediate water problems; the builder argued on appeal that the homeowner had waived his right to seek damages because he took title to the property without complaining about drainage problems, but that argument was without merit and was waived because it was not raised below; although the builder also did not raise below the issue of the homeowner’s failure to present expert testimony, expert testimony was not required in light of the reports that were admitted into evidence under the parties’ stipulation.

PARENT AND CHILD
RODRIGUEZ v. CRANE
Appellate Division, A-3828-04T5, January 12, 2006, not approved for publication. (7 pages). Facts-on-Call Order No. 19092

Post-divorce-judgment order that was entered on the defendant father’s motion for sole legal custody of the parties’ son reversed and remanded; the Appellate Division could not and did not address the merits of the order because the trial court violated Rule 1:7-4(a) by not making findings of fact and conclusions of law and by not stating the reasons for its decision; the trial court also violated Rule 5:5-4(a) when it denied the father’s request for oral argument without stating the reasons for that decision; the Appellate Division was unable to exercise its original jurisdiction to make the necessary findings of fact in light of the “sharply divergent certifications” that were submitted to the trial court.

EDUCATION
SAHNI v. BOARD OF EDUCATION OF THE CITY OF TRENTON
Appellate Division, A-1867-04T3, January 11, 2006, not approved for publication. (6 pages). Facts-on-Call Order No. 19089

Final decision of the State Board of Education that affirmed the decisions of the Commissioner of Education and the administrative law judge — which confirmed that the petitioner teacher’s contract had not been renewed for the 2002-2003 school year — affirmed; the teacher was not tenured by the end of the 2001-2002 school year due to her lack of U.S. citizenship; the teacher claimed that she had not received timely notice of her contract’s nonrenewal, that she had properly accepted a constructive offer of employment under N.J.S.A. 18A:27-11 and -12, and that she had attained tenure because she was a U.S. citizen before September 2002; however, the ALJ did not err by applying the rebuttable presumption of receipt to the nonrenewal notice, and the Appellate Division was bound by the ALJ’s determinations that the testimony of the secretary who prepared the nonrenewal notice was “extremely credible” and that the teacher’s testimony was “unconvincing.”

REAL PROPERTY
GSS&P, INC. v. RUSSELL
Appellate Division, A-1747-03T3, January 11, 2006, not approved for publication. (7 pages). Facts-on-Call Order No. 19090

Judgment of $52,933.56 for the plaintiff seller following a bench trial affirmed in an action alleging that the defendant law partners breached an installment sale land contract to purchase an office condominium unit; when the defendants vacated the unit, they had not made monthly payments under the contract for 34 months, and there were unpaid condominium fees and taxes; contrary to the defendants’ arguments on appeal, the trial court did not err (1) by allowing the plaintiff to voluntarily dismiss its original complaint without prejudice and to file a new complaint that raised similar claims, (2) by dismissing the defendants’ counterclaim for attorney’s fees in light of the notice requirements of Rule 1:20A-6, and (3) by deciding that, if the defendants’ attorney testified, she would have to testify in a question-and-answer format rather than a narrative format; in addition, the claimed error in the dismissal of the counterclaim was moot because the judgment included an offset for the defendants’ fees for the legal work that they had performed for the plaintiff.


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