NEW JERSEY LAWYER

DAILY BRIEFING      01/19/2006


News Briefs

HOW’S THIS FOR RESTITUTION?
Larry S. Loigman, a frequent government critic in Monmouth County, filed a lawsuit this week seeking the return to taxpayers of any illegal money obtained by public officials there. The Middletown attorney filed a taxpayers petition in Superior Court in an effort to recover money that county and Ocean Township officials were accused of taking in bribes. Six county employees, five other public officials and two county vendors have been charged with corruption. “I am trying to make sure that the taxpayers recover from these corrupt officials,” Loigman said. “Putting them in jail is not sufficient. It punishes the individuals but does not get the money back for the taxpayers. I feel someone ought to be doing that.” His suit also charges the freeholder board and Ocean Township Council neglected to implement policies to prevent misconduct or attempt to recover the money. 1-18-06

DO NOT CALL — PHASE 2
Now that you’re smugly reassured your dinner won’t be interrupted by unsolicited sales calls, are you ready to get them on your cell phone? Yes, your cell phone. That’s about to happen at the beginning of February, unless you get in touch with the Do Not Call registry again. And to make matters worse, you can be charged for those incoming calls. Call the registry at 888-382-1222 accessed or log on to donotcall.gov. 1-18-06

FREQUENT CANADA OR MEXICO? NEW FED ID JUST FOR YOU
By the end of the year, Americans who travel frequently to Mexico or Canada will be able to apply for a new form of federal identification allowing re-entry into the United States sans passport. The new card is part of a congressionally mandated effort to tighten border security by requiring — even from American citizens — an official, tamper-resistant type of identification that proves citizenship. The new border identification requirements go into effect for U.S. citizens at the end of 2007. 1-18-06

CLIENT SERVICE IS KEY TO LONG-TERM SUCCESS
According to a recent survey of 200 attorneys from the 1,000 largest law firms and businesses in the United States and Canada, the best way to succeed is simple, actually — make a good impression on clients. In addition to the 43 percent of respondents claiming client service is critical, 21 percent ranked both becoming more specialized within a practice area and networking as most important. And, according to 9 percent of those surveyed by the staffing service Robert Half Legal, it doesn’t hurt to keep one’s eye on emerging technologies either. 1-18-06

$80 MILLION VERDICT AGAINST GM OVERTURNED
A Missouri appeals court this week overturned an $80 million verdict against General Motors in connection with a 2000 driveway accident that left the driver of an Oldsmobile in a vegetative state. The court ordered a new trial, saying the trial judge allowed improper evidence that prejudiced the jury. The family of Constance Peters said she was injured when her 1993 Oldsmobile Cutlass Supreme suddenly sped backward from her driveway, striking a tree. The family claimed the car’s cruise control was defective and not in use when it raced backward; GM argued Peters mistakenly hit the accelerator instead of the brake. 1-18-06



Today's Decision Summaries

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FROM THE NEW JERSEY SUPREME COURT, WEDNESDAY, JANUARY 18, 2006
THE FOLLOWING OPINIONS WERE RELEASED BY THE NEW JERSEY SUPREME COURT ON WEDNESDAY, JANUARY 18, 2006:

ADMINISTRATIVE
AQUA BEACH CONDOMINIUM ASSOCIATION v. DEPARTMENT OF COMMUNITY AFFAIRS, BUREAU OF HOMEOWNER PROTECTION, NEW HOME WARRANTY PROGRAM
New Jersey Supreme Court, A-111, January 18, 2006. (24 pages). Facts-on-Call Order No. 92813

The regulations of the Bureau of Homeowner Protection that require a claimant under the New Home Warranty Program to submit to the Bureau two or more bona fide estimates for the work intended to be covered as a condition precedent to certification by the Director to the State Treasurer for payment from the Home Warranty Security Fund are not arbitrary, capricious, or unreasonable as written or as applied in this case. In addition, there was no basis for an equitable estoppel claim against the Bureau in this case.

THE SUPREME COURT has announced that it will release an opinion in STATE v. BIRKENMEIER, A-85, on January 19, 2006. The issue on appeal in Birkenmeier addresses whether the police had a reasonable basis to justify the stop of the defendant’s vehicle, his subsequent arrest, and the search of his vehicle based on the tip of a confidential informant that the defendant would be transporting drugs from his home at a specified time where the informant had been the source of one prior tip that led to a narcotics arrest.


CIVIL RIGHTS
LOIGMAN v. TOWNSHIP COMMITTEE OF THE TOWNSHIP OF MIDDLETOWN
New Jersey Supreme Court, A-99, January 18, 2006. (39 pages). Facts-on-Call Order No. 92812

In this §1983 action, the litigation privilege protects the Township and its special counsel from being haled into a civil court to face a damages judgment as a result of the special counsel’s motion to sequester potential witnesses. Furthermore, the role of the special counsel for the Township did not transform him into a municipal policymaker under §1983.


APPROVED FOR PUBLICATION
 
NO OPINIONS APPROVED FOR PUBLICATION WERE RELEASED BY THE APPELLATE DIVISION ON WEDNESDAY, JANUARY 18, 2006.

NOT APPROVED FOR PUBLICATION
ATTORNEYS
DUCLOS v. POSTERNOCK
Appellate Division, A-3663-04T2, January 18, 2006, not approved for publication. (11 pages). Facts-on-Call Order No. 19110

Summary judgment for the defendant attorney and the defendant law firm because the pro se plaintiffs failed to provide an expert report on liability and damages in their legal malpractice action affirmed; the underlying matter — which involved a claim against a builder for negligent construction of the home that the plaintiffs had purchased — was “of a sufficiently complex legal nature” that it required expert testimony to establish the standard of care against which to measure the attorney’s actions, the attorney’s breach of that duty, and the fact that the plaintiffs’ damages attributable to the breach exceeded the settlement that they received in the underlying action; furthermore, the plaintiffs had “ample opportunity” to provide an expert report and failed to show “exceptional circumstances” under Best Practices that warranted an extension of discovery on the eve of trial.

VERBAL THRESHOLD
RAMIREZ v. KIBILDIS
Appellate Division, A-1579-04T3, January 18, 2006, not approved for publication. (5 pages). Facts-on-Call Order No. 19109

Summary judgment for the defendants based on the N.J.S.A. 39:6A-8a verbal threshold under AICRA reversed and remanded; the trial court’s decision rested “squarely” on the second prong of the Oswin v. Shaw test because it relied solely on the issue of whether the plaintiff’s injuries were sufficiently serious to support recovery; because this interpretation of §39:6A-8a has been abrogated by the New Jersey Supreme Court’s recent decisions in DiProspero v. Penn and Serrano v. Serrano, the Appellate Division was constrained to reverse and remand the matter.

REAL PROPERTY
SCHAFFHAUSER v. CROWS MILL TRUST
Appellate Division, A-1134-03T5, January 18, 2006, not approved for publication. (15 pages). Facts-on-Call Order No. 19113

Declaratory judgment determining that, under an easement agreement, the plaintiff had the right to pave the common driveway used by the parties affirmed; procedurally, the participation pro se of the defendant trust, which owned the property on the servient tenement, was allowed because the interests of the individual defendants and the interests of the trust were identical, and the trial court provided reasonable accommodation for the hearing impairment of one of the individual defendants; substantively, the trial court properly concluded (1) that the intent of the original grantor was unambiguous and that the agreement gave the grantee the right to construct and resurface the easement driveway in addition to the right to regravel it, (2) that the evidence demonstrated that the easement driveway was unsafe for the users on the property and for the public, and (3) that it was reasonably necessary to pave the easement driveway.

HUSBAND AND WIFE
SPEER v. SPEER
Appellate Division, A-3400-04T5, January 18, 2006, not approved for publication. (12 pages). Facts-on-Call Order No. 19114

Judgment of divorce following the entry of default against the defendant ex-husband and denial of the ex-husband’s motion for reconsideration reversed and remanded for further proceedings; the ex-husband suffered from severe mental illness, including bipolar disorder, and was declared completely disabled by the Social Security Administration; a Florida attorney was appointed to act as the ex-husband’s guardian ad litem; default was entered when the ex-husband, who had been admitted to a New Jersey hospital, and his guardian ad litem did not appear at trial; in light of the ex-husband’s incompetency when the default and default judgment were entered, the matter was reversed and remanded to address equitable distribution and the appointment of a new guardian ad litem; neither a default nor a default judgment should have been entered against the ex-husband, who had been involuntarily committed, who was unable to care for himself, and who had an “inattentive, unresponsive, and absent” guardian ad litem.

HUSBAND AND WIFE
KAISER v. BONELLI
Appellate Division, A-3847-04T5, January 18, 2006, not approved for publication. (5 pages). Facts-on-Call Order No. 19111

Order denying the defendant ex-husband’s motion for “modification” of the equitable distribution provisions of the property settlement agreement incorporated in the parties’ final judgment of divorce affirmed; the defendant’s certification in support of his motion — which alleged that the plaintiff ex-wife had “dissipated assets” without his knowledge — did not set forth a valid basis for vacating the final judgment; the Family Part properly exercised its discretion when it concluded that the ex-husband was not entitled to relief from the final judgment under Rule 4:50-1 (1) because there was no mistake, inadvertence, surprise, excusable neglect, or newly discovered evidence and (2) because there was no showing of fraud, misrepresentation, other misconduct, or exceptional circumstances; the ex-husband’s argument that his certification was adequate to raise a factual issue that required a hearing lacked merit.

TAXATION
CATHOLIC COMMUNITY SERVICES, INC. v. CITY OF NEWARK
Appellate Division, A-3478-04T2, January 18, 2006, not approved for publication. (4 pages). Facts-on-Call Order No. 19112

Tax Court judgment granting a tax exemption for property owned by the plaintiff Catholic Community Services and leased to the U.S. Postal Service affirmed substantially for the reasons expressed by the Tax Court; the defendant City argued that the lease destroyed the otherwise valid exemption for Catholic Community Services because, although the Postal Service is a federal agency that is immune from taxation, it is not one of the specific exempt entities under N.J.S.A. 54:4-3.6; the Tax Court properly concluded that Catholic Community Services did not lose its tax exemption on the building and parking lot leased to the Postal Service; contrary to the City’s argument on appeal, (1) the terms “tax exempt” and “tax immune” are interchangeable and (2) the Tax Court did not err by focusing on whether the two terms are synonymous rather than on whether the Postal Service was a “different exempt use” than that contemplated by the 2001 amendment to §54:4-3.6.


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