NEW JERSEY LAWYER

DAILY BRIEFING      01/20/2005


News Briefs

NEW TRIAL COURT ADMINISTRATOR IN MERCER
Effective Feb. 14, Sue Regan will be the new trial court administrator for Mercer County, announced Assignment Judge Linda R. Feinberg. Regan, who served 13 years as assistant trial court administrator for the Hunterdon/Somerset/Warren Vicinage, replaces Jude DelPreore, now trial court administrator in Burlington County. Judge Philip S. Carchman, administrative director of the court, said he named Regan at Feinberg’s strong recommendation. As the highest-ranking staff executive in the vicinage, Regan will be responsible for all court operations, including overseeing budget development and expenditures, supervising all judicial support personnel, managing facilities and resources, and directing program development and analysis. 1-19-05

WHO’S IN CHARGE OF CLEARING THAT DANGEROUS DEBRIS?
In the first of a series of congressional hearings on an accident that caused an oil spill in the Delaware River last November, Lt. Col. Robert Ruch of the Army Corps of Engineers testified no one is really responsible for ensuring the shipping channel is clear of potentially dangerous debris. Meanwhile, the Coast Guard announced two new objects — a bent anchor and a large concrete slab — had been found near the 12-ton pump casing believed to have ruptured the hull of the Athos I, causing an estimated 265,000 gallons of heavy crude to spill, but noted it is not clear what role, if any, the new objects played in the accident. Federal regulations require boat owners to notify the Coast Guard of ship and boat sinkings, but not the loss of other objects, according to Rear Adm. Sally Brice-O’Hara. “It’s a matter of great concern that we can’t be absolutely sure the shipping channel is totally safe,” said Rep. Frank A. LoBiondo, chairman of the House Coast Guard and Maritime Transportation Subcommittee. 1-19-05

CAR SAFETY FEATURES HAVE SAVED THOUSANDS
Some 329,000 lives have been saved since 1960 by vehicle safety features, especially seat belts, according to a report this week from the U.S. Department of Transportation. The number of lives saved annually from safety devices increased from 115 in 1960 to 25,000 in 2002, the study said. In addition to seat belts, which accounted for more than half the lives saved, the report evaluated air bags, child safety seats, energy-absorbing steering columns, improved roof and side protection and shatter-resistant windshields. Government-mandated safety features have added 125 pounds to the average passenger car since 1968. 1-19-05

JURY TRIALS ELIMINATED FOR MINOR OFFENSES
In a unanimous decision, the Arizona Supreme Court has scrapped a standard that said defendants accused of crimes of “moral turpitude” were entitled to have their guilt determined by a jury of their peers, even for relatively minor offenses. Phoenix city prosecutor Kerry Wangberg said the ruling will immediately affect crimes like leaving the scene of an accident, filing a false report and even drunken driving. But attorney Neal Bassett, who represented the defendant in the case on appeal, said the decision could actually create more jury trials, because defense lawyers, trying to take advantage of a constitutional loophole, will attempt to show similar crimes existed when Arizona became a state. The state constitution guarantees a jury trial if a person can show the crime — or a similar one — was entitled to be decided by a jury in 1912. Under the new ruling, the prime test of whether a jury trial is required will be whether the penalty is at least six months in jail, said Justice Ruth McGregor. But there will be exceptions, including the rights preserved by the constitution, she said. 1-19-05

TENNESSEE LAWYER CONFRONTS ‘JURY POOL FROM HELL’
Arguably, Tennessee attorney Leslie Ballin’s hardest job in defending his client in a case of trailer park violence was getting through jury selection. Right after the process began, one man got up and left, announcing, “I’m on morphine and I’m higher than a kite.” When the prosecutor asked if anyone had been convicted of a crime, a prospective juror said he had been arrested and taken to a mental hospital after he almost shot his nephew, provoked because the boy would not come out from under the bed. Another admitted he had had alcohol problems and had been arrested for soliciting sex from an undercover officer. And still another volunteered he probably should not be on the jury, stating, “In my neighborhood, everyone knows that if you get Mr. Ballin (as your lawyer), you’re probably guilty.” Despite that rocky beginning, Ballin’s client was found not guilty. 1-19-05



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FROM THE NEW JERSEY SUPREME COURT, WEDNESDAY, JANUARY 19, 2005
NO OPINIONS WERE RELEASED BY THE NEW JERSEY SUPREME COURT ON WEDNESDAY, JANUARY 19, 2005, AND NO OPINIONS ARE SCHEDULED FOR RELEASE ON THURSDAY, JANUARY 20, 2005.


APPROVED FOR PUBLICATION
 
NO OPINIONS APPROVED FOR PUBLICATION WERE RELEASED BY THE APPELLATE DIVISION ON WEDNESDAY, JANUARY 19, 2005.

NOT APPROVED FOR PUBLICATION
PARENT AND CHILD
GAC v. GAC
Appellate Division, A-6360-02T5, January 19, 2005, not approved for publication. (10 pages). Facts-on-Call Order No. 17526

Order requiring the defendant father to reimburse his daughter for 40 percent of her $70,000 undergraduate tuition loans plus interest affirmed but modified to require the defendant to pay $20,000 at a rate of $225 per month; the defendant had paid $225 per month to support his daughter between 1987 and 2000, but he had not communicated with her since she was 5 years old and was not consulted about her choice of college; the record reflected that the defendant would not have contributed as much to his daughter’s college education if the parties had not divorced and that the daughter should not be penalized for her estrangement from the defendant; the Appellate Division modified the order based on the Newburgh v. Arrigo standards and the totality of the record.

HUSBAND AND WIFE
BROOKS v. BROOKS
Appellate Division, A-6218-02T5, January 19, 2005, not approved for publication. (3 pages). Facts-on-Call Order No. 17525

Dual judgment of divorce affirmed; contrary to the plaintiff ex-husband’s assertions on appeal, (1) the Family Part did not err as a matter of law by amending sua sponte the plaintiff’s cause of action for divorce on the grounds of adultery and by granting the divorce based on the parties’ separation for more than 18 months with no reasonable prospect of reconciliation and (2) the Family Part did not abuse its discretion by denying him child support, by ordering him to pay a portion of the college expenses for all three children, by denying him alimony without findings of fact and conclusions of law, by awarding him only 20 percent of the defendant ex-wife’s business, and by awarding an amount, which he maintained was inadequate, that represented his equitable share of cash distributions taken by the defendant from her business interest after the divorce complaint had been filed.

CIVIL ACTIONS
REDEKER v. LUTZ
Appellate Division, A-2630-03T1, January 19, 2005, not approved for publication. (16 pages). Facts-on-Call Order No. 17524

Family Part order denying the plaintiff’s motion to transfer her action to the Law Division and dismissing her complaint alleging promissory estoppel and breach of contract reversed and remanded to the Law Division; the plaintiff, who was single, had a sexual relationship with the defendant, who was married, and she allegedly changed jobs and moved based on the defendant’s promise that he was getting a divorce; the complaint was not properly venued in the Family Part where the plaintiff’s complaint was based entirely on claims of contract and promissory estoppel and where she did not assert a claim for support; the plaintiff’s claims were “rather ordinary,” and the fact that the promises and agreements occurred in the context of an intimate relationship did not transform them into ones that were unique to that relationship; the Family Part erred by dismissing the complaint when it concluded that the facts asserted by the plaintiff were insufficient to support her claims.

CIVIL ACTIONS
MILLVILLE INDUSTRIAL DEVELOPMENT CO. v. BRODY
Appellate Division, A-3509-03T3, January 19, 2005, not approved for publication. (7 pages). Facts-on-Call Order No. 17528

Summary judgment dismissing the defendant’s counterclaims seeking damages for the nonpayment of commissions due under a settlement agreement, for breach of the confidentiality provisions of the settlement, and for intentional infliction of emotional distress and summary judgment dismissing the plaintiffs’ complaint for breach of the defendant’s fiduciary duty for failing to properly disburse rental payments affirmed in an action arising from certain real estate partnerships; the motion judge properly concluded (1) that the defendant did not satisfy the elements for intentional infliction of emotional distress, (2) that the defendant was not entitled to a commission because, in one case, the required sale never occurred and because, in a second case, there was no proof that the lease agreement would have been signed by the required date, and (3) that the plaintiffs’ claims were barred by the settlement agreement.

PUBLIC EMPLOYMENT
IRVINGTON BOARD OF EDUCATION v. IRVINGTON EDUCATION ASSOCIATION
Appellate Division, A-5244-02T3, January 19, 2005, not approved for publication. (6 pages). Facts-on-Call Order No. 17527

Public Employment Relations Commission’s decision holding that the respondent Board of Education had violated the New Jersey Employer-Employee Relations Act by declining to approve one of its teachers as a summer arts literacy curriculum writer affirmed; the petitioner union claimed that the teacher was not selected due to her activities with the petitioner and that the respondent’s actions violated the unfair practice provisions of the Act; there was no showing that PERC’s finding of an unfair practice was arbitrary or capricious, and its determination was based on substantial credible evidence in the record.

VERBAL THRESHOLD
STANZIALE v. JACCARINO
Appellate Division, A-4333-03T5, January 19, 2005, not approved for publication. (6 pages). Facts-on-Call Order No. 17522

Summary judgment for the defendant based on the N.J.S.A. 39:6A-8a verbal threshold under AICRA reversed and remanded for trial; the plaintiff pedestrian suffered a torn medial meniscus to his right knee and a medial collateral ligament injury when he was struck by the defendant’s car, and he later underwent arthroscopic surgery; summary judgment was not appropriate because the plaintiff had presented sufficient evidence of a serious, permanent injury (1) where his doctor reported that the accident had caused a permanent injury to the plaintiff’s knee and that the knee injury had a serious impact on the plaintiff’s life, (2) where the plaintiff was absent from work for five months, and (3) where the plaintiff was unable to walk or climb stairs normally, play sports with his grandchildren, take baths rather than showers, and take his wife dancing.

CRIMINAL TRIALS
STATE v. KHALIL
Appellate Division, A-3072-03T5, January 19, 2005, not approved for publication. (3 pages). Facts-on-Call Order No. 17529

Conviction of violating a municipal dumping ordinance affirmed; the defendant received a summons for dumping garbage on his neighbors’ property and was convicted by the Municipal Court and by the Law Division on de novo review; contrary to the defendant’s arguments on appeal, (1) the notice requirements contained in N.J.S.A. 59:8-8 and N.J.S.A. 2A:18-61.2 do not apply to the enforcement of the ordinance, (2) the defendant’s easement over the neighbors’ property did not preclude enforcement of the ordinance, (3) the ordinance is not unconstitutionally vague, and (4) the record did not indicate that the ordinance was selectively enforced against the defendant; the record supported the conclusion that the defendant had violated the ordinance.

DRUNK DRIVING
STATE v. GABRIEL
Appellate Division, A-1746-03T2, January 19, 2005, not approved for publication. (5 pages). Facts-on-Call Order No. 17523

Conviction of driving while intoxicated affirmed; the arresting officer responded to a call from the emergency room at Newcomb Hospital and woke the defendant, who smelled of alcohol and fell down as she tried to stand; the officer followed the defendant to her motor home, and she sat in the driver’s seat with the keys in her hand and refused the officer’s request that she leave the vehicle; the defendant claimed that she was sober when she arrived at the hospital, that she did not drink until after she had parked her motor home, and that she did not intend to drive after she left the emergency room; contrary to the defendant’s argument on appeal, the statutory element of operation existed because the evidence “amply” supported the finding that the defendant intended to operate her vehicle and because it was reasonable to conclude that only the officer’s presence and his requests for her to exit the vehicle prevented her from driving away.

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