NEW JERSEY LAWYER

DAILY BRIEFING      01/25/2006


News Briefs

SUPREME COURT TO REVIEW CONDEMNATION FOR OPEN SPACE
The New Jersey Supreme Court will hear a challenge seeking to overturn an appeals court decision that upheld a municipality’s condemnation of land to slow residential development. The Appellate Division had found that Mount Laurel Township did not abuse its eminent domain power when it condemned 16.3 acres. Developer Mipro Homes planned to build 23 single-family homes on the land and obtained final subdivision approval from the township planning board. After failing to acquire the site voluntarily, Mount Laurel brought a condemnation action. In Mount Laurel Township v. Mipro Homes, the developer contended that stopping residential development was not a legitimate use of eminent domain. Although a trial judge agreed and dismissed the condemnation action and awarded Mipro more than $219,000 in attorney fees, costs and expenses, the Appellate Division ruled unanimously for the township. 1-24-06

N.J. FEDERAL JUDGE NOMINATIONS COMING
President Bush is expected to close the deal this week that could fill four federal judicial vacancies in New Jersey. Peter G. Sheridan of Graham, Curtin & Sheridan in Trenton, who already has been nominated, is one beneficiary. Progress on his nomination was awaiting approval of a package worked out among the White House, Sen. Frank R. Lautenberg and then-Sen. Jon. S. Corzine. Bush is set to name U.S. Magistrate Judge Susan D. Wigenton, assistant U.S. Attorney Renee M. Bumb, and Noel L. Hillman of the U.S. Department of Justice. South Jersey had wanted one of its own to fill a Camden opening and Bumb, who works in the Camden office, would fill that bill. 1-24-06

COURT AFFIRMS $5.2 MILLION MED-MAL AWARD
A 44-year-old woman left incapacitated by a brain tumor 10 years ago will keep her $5.2 million judgment. The Appellate Division, in an unreported decision this week in Gonzalez v. Agarwal, upheld the jury’s verdict in favor of Noemi Gonzalez. She suffered from headaches and was told by her physician, Dr. Ashoke Agarwal, to reduce the stress in her life. Eventually, she was diagnosed with an inoperable brain tumor and hemorrhaging. The Middlesex County jury found that if she had had the proper diagnostic testing, she could have received treatment that would have prevented the hemorrhage. The jury had awarded $4 million for future health care costs, $2.25 million for pain and suffering, $88,400 for past lost earnings and $883,600 for future earnings, but that was reduced to $4.7 million after finding Gonzalez 35 percent responsible for her injuries. The final $5.2 million includes $1.6 in prejudgment interest. John C. Emolo of Paterson argued for the plaintiff and Hugh P. Francis of Morristown appeared for the defendant. (A full text of Gonzalez, Facts-on-Call Order No. 19140, can be ordered from NJL Online or by calling 800-670-3370.) 1-24-06

COHABITATION AND ALIMONY
When a dependent spouse starts living with someone post-judgment, alimony issues can get sticky. Parties in New Jersey can contractually agree to terminate alimony on this event, so long as the agreement was made with full knowledge of foreseeable circumstances. But if termination would result in especially acute economic distress, the court can exercise its equitable jurisdiction. Defining “cohabitation” is a trick in itself. Read up on the ins and outs of intimacy and alimony, plus three other cutting-edge family law developments, in New Jersey Lawyer’s Special Section on Emerging Issues in Family Law in the paper’s Jan. 23 issue. 1-24-06

STATES CAN BE SUED UNDER FEDERAL BANKRUPTCY LAW
States can be sued under federal bankruptcy law, according to the U.S. Supreme Court. In a 5-4 decision in Central Virginia Community College v. Katz, the nation’s highest court under Chief Justice John G. Roberts Jr. indicated it’s just as divided on matters related to federalism as the Rehnquist court. Roberts, who succeeded Chief Justice William H. Rehnquist, dissented and took a position in favor of states rights. The case involved a chain of college bookstores at Virginia state colleges and universities that filed for bankruptcy. The institutions are arms of the state, for constitutional purposes. 1-24-06



Today's Decision Summaries

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FROM THE NEW JERSEY SUPREME COURT, TUESDAY, JANUARY 24, 2006
NO OPINIONS WERE RELEASED BY THE NEW JERSEY SUPREME COURT ON TUESDAY, JANUARY 24, 2006.

THE SUPREME COURT has announced that it will release an opinion in FITZGERALD v. TOM CODDINGTON STABLES, A-119, on January 25, 2006. The issue on appeal in Fitzgerald addresses whether the employee of a horse trainer is covered by the workers’ compensation insurance policy of the trainer or by the New Jersey Horse Racing Injury Compensation Board under N.J.S.A. 34:15-135.



APPROVED FOR PUBLICATION
TRIAL BY JURY
HITCHMAN v. NAGY
Appellate Division, A-5047-03T1, approved for publication January 23, 2006. (26 pages). Facts-on-Call Order No. 92817

During jury selection, a trial judge may initiate sua sponte an inquiry pursuant to Batson v. Kentucky and State v. Gilmore to determine whether counsel’s exercise of a peremptory challenge was racially motivated, but only if there has been a prima facie showing that the exercise was racially motivated. During the examination of a witness at trial, the judge may intervene if the witness makes an inappropriate racial or ethnic reference; however, if the witness initially provides a reasonable explanation for that reference, the trial judge should not persist in questioning the witness to give the witness the appearance of a racial bias when no bias exists.

NOT APPROVED FOR PUBLICATION
VERBAL THRESHOLD
LIPTAK v. KLOPCHIN
Appellate Division, A-412-04T3, January 24, 2006, not approved for publication. (9 pages). Facts-on-Call Order No. 19134

Summary judgment for the defendant based on the N.J.S.A. 39:6A-8a verbal threshold under AICRA affirmed; before allegedly injuring her neck, shoulder, and arm in her accident with the defendant in 2000, the plaintiff was injured in an accident in 1997; the trial court concluded that the certification of the plaintiff’s doctor, which stated that there was a causal relationship between the plaintiff’s current symptoms and her 2000 accident, was not based on objective clinical evidence; the trial court found that the only support for the doctor’s opinion was the plaintiff’s claim that she had no symptoms before her 2000 accident, but it also found that her claim was not supported by the evidence, which indicated that she had complained of pain in her back, shoulder, and arm in the months before her 2000 accident and that her pre-accident and post-accident MRIs revealed abnormalities at C5-C6 and C6-C7; the trial court correctly held that the plaintiff failed to establish by objective credible evidence that she had suffered a permanent injury in her 2000 accident.

TORT CLAIMS ACT
MOODY v. CITY OF WILDWOOD
Appellate Division, A-2977-04T1, January 24, 2006, not approved for publication. (10 pages). Facts-on-Call Order No. 19135

Summary judgment for the defendant City based on the Tort Claims Act affirmed in a personal injury action arising from the plaintiff’s fall on the City’s boardwalk; the plaintiff’s evidence of a dangerous condition was insufficient to defeat summary judgment (1) because, during her deposition, she did not identify the allegedly defective board or the “void” or “depression” referenced in her expert’s report as the condition that caused her fall, (2) because her expert did not state that the plaintiff was present during his examination of the boardwalk or that she had identified to him the condition that caused her fall, and (3) because she did not provide a certification to pinpoint the location of her fall and the allegedly defective condition depicted in photographs of the boardwalk; the plaintiff also failed to establish that the City’s conduct in maintaining the boardwalk was “palpably unreasonable.”

LAND USE
CITIZENS UNITED TO PROTECT THE MAURICE RIVER AND ITS TRIBUTARIES, INC. v. TOWNSHIP OF MAURICE RIVER
Appellate Division, A-2142-04T1, January 24, 2006, not approved for publication. (9 pages). Facts-on-Call Order No. 19136

Dismissal of the plaintiff nonprofit environmental organization’s action in lieu of prerogative writs that challenged the validity of an amendment to the defendant Township’s zoning ordinance affirmed substantially for the reasons expressed by the trial court; before the amendment, the ordinance had prohibited more than one principal use per lot but had permitted cellular towers as conditional uses in certain zoning districts; the amendment also prohibited more than one principal use per lot, but it created an exception for certain “local telecommunications facilities”; the trial court determined (1) that, even though a cellular tower could not be an “accessory use” to a “primary use,” the Township could permit by ordinance a “mixed-use concept” or a “multiple principal use concept,” (2) that the provision permitting a cellular tower to be a second principal use was justified because a cellular tower was more of a “benign use” than an “intensive use,” and (3) that the organization failed to overcome the presumption of validity for the amendment.

LAW AGAINST DISCRIMINATION
FILS-AIME v. DURO BAG MANUFACTURING CO.
Appellate Division, A-1142-04T5, January 24, 2006, not approved for publication. (12 pages). Facts-on-Call Order No. 19138

Summary judgment for the defendant consulting firm and the defendant manufacturer affirmed substantially for the reasons expressed by the trial court in an action alleging adverse employment action in violation of the Law Against Discrimination; the plaintiff applicant was a black U.S. citizen of Haitian descent; after the manufacturer bought his former employer’s plant, the plaintiff’s application for employment with the manufacturer was denied; as to the consulting firm, which evaluated applicants for employment with the manufacturer, the trial court held that it was an independent contractor and was not liable under the LAD for aiding and abetting the manufacturer’s alleged unlawful employment practice; as to the manufacturer, it conceded that the plaintiff had established a prima facie case, but the trial court concluded that a reasonable fact-finder could not determine that the manufacturer’s proffered nondiscriminatory reason for not hiring the plaintiff — a need for a reduction in force and the plaintiff’s failure to qualify for employment under the consulting firm’s “comprehensive and neutral” evaluation — was pretextual.

PARENT AND CHILD
GRAYSON v. GRAYSON
Appellate Division, A-5033-04T5, January 24, 2006, not approved for publication. (6 pages). Facts-on-Call Order No. 19139

Portion of a post-divorce-judgment order that awarded the plaintiff father $100 per week in child support for the parties’ four children for as long as he was their residential custodian affirmed; the children lived primarily with the defendant mother until she was injured in a car accident; the father obtained temporary custody of the children and moved to change the parties’ financial settlement due to changed circumstances; the father argued on appeal that the trial court had improperly applied the Child Support Guidelines, even though he had urged the trial court to apply them to this non-Guidelines case, and the Appellate Division did not “welcome such radical shifts in position”; the trial court acted “well within” its discretion by fixing the amount of child support to be paid by the mother during a potentially temporary situation, by making the award retroactive to the date of the father’s motion, and by declining to reimburse the father for certain expenses for the children and for attorney’s fees.

PARENT AND CHILD
IN RE ADOPTION OF A CHILD BY J.C.
Appellate Division, A-3547-04T2, January 20, 2006, released January 24, 2006, not approved for publication. (4 pages). Facts-on-Call Order No. 19137

Amended judgment of adoption and denial of the plaintiff adoptive parents’ motion for reconsideration reversed; before the adoption was effective, the child’s paternal grandparents obtained a visitation order in July 2004 after the adoptive parents decided that visitation with the grandparents would not be in the child’s best interests; the grandparents were given notice of the adoption action but did not make an appearance; after the judgment of adoption was entered on October 1, 2004 and while an appeal from the visitation order was pending, counsel for the grandparents asked the Family Part about the terms of the judgment and whether it was aware that the grandparents had a visitation order; without any further proceedings and over the adoptive parents’ protest that the grandparents’ request for advice was a “procedural irregularity,” the Family Part entered an amended judgment of adoption on December 14, 2004 that stated that it was issued in conjunction with the visitation order; aside from any procedural deficiencies, the amended judgment had to be set aside in light of the Appellate Division’s reversal of the visitation order on February 22, 2005 in separate proceedings; when the visitation order was reversed, any basis to amend the judgment had disappeared.

INSURANCE
SELECTIVE INSURANCE CO. v. MAURO
Appellate Division, A-513-04T5 and A-574-04T5, January 23, 2006, not approved for publication. (20 pages). Facts-on-Call Order No. 19132

Summary judgment for the insurer in a coverage dispute arising from a fire that damaged the insureds’ home reversed and remanded; the insurer required both insureds to undergo an examination under oath as part of its investigation; the basis for the insurer’s summary judgment motion was its contention that the failure of the first insured to complete her examination constituted a willful or substantial breach of her duty to cooperate and an intentional concealment of material facts that also barred coverage for the second insured; however, summary judgment was inappropriate (1) because the record indicated that the second insured completed her examination, that the first insured did not know that the insurer wanted her to complete her examination, and that the first insured would have completed her examination if she had known that the insurer wanted her to do so and (2) because the insurer’s assertion that it had been prejudiced by the first insured’s incomplete examination was “unsupported.”

HUSBAND AND WIFE
LINDSLEY v. LINDSLEY
Appellate Division, A-7110-03T2, January 23, 2006, not approved for publication. (16 pages). Facts-on-Call Order No. 19133

Dual final judgment of divorce that was entered after a settlement affirmed; during their first settlement conference, the parties consented to the appointment of a parenting coordinator to address their disagreement about child custody and visitation; based in part on the parenting coordinator’s final report, the trial court granted joint legal custody with the defendant ex-wife as the primary residential custodian, even though she had sought sole legal custody; the parties’ settlement conferences also led to the resolution of issues of equitable distribution of the parties’ assets; the ex-wife could not avoid the settlement agreement that she “knowingly and voluntarily reached” because she presented no competent proof that any perceived pressure by the trial court overcame her free will or coerced her to enter into an agreement that she otherwise would not have entered into; the ex-wife’s argument that the trial court impermissibly delegated its judicial authority to the parenting coordinator also was without merit.

FROM THE ADMINISTRATIVE AGENCIES
WORKERS’ COMPENSATION
GIORDANO v. A. GIORDANO & SONS
Claim Petition No. 2002-28595, Final Agency Decision: November 29, 2005, released for publication January 9, 2006. By Ferriero, J.W.C. (4 pages).

The judge of compensation determined that two surveillance videotapes of the petitioner plumbing contractor offered by the respondent employer were inadmissible and that the plumber had sustained a 37.5 percent partial total disability, orthopedic and neurological in nature. The petitioner was injured in an accident that occurred while he was driving his employer’s van, and he claimed that he still experienced problems with his left shoulder and his low back that adversely affected his plumbing business and his ability to play golf. As to the videotapes, they were inadmissible because the employer, which had waited to introduce them into evidence until after the petitioner testified and the medical reports were entered into evidence, failed to comply with the procedures for using videotapes set forth in N.J.A.C. 12:235-3.91(a). As to the nature and extent of the petitioner’s permanent disability, the petitioner was “a most credible witness,” and the judge used the estimates of disability offered by the doctors — all of whom found objective medical evidence of permanent disability — to reach her independent conclusion on the degree of disability.


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