NEW JERSEY LAWYER

DAILY BRIEFING      01/05/2005


News Briefs

TWO SOMERVILLE FIRMS COMBINE
Members of the Somerville law firm Schachter, Trombadore, Offen & Stanton have joined Norris McLaughlin & Marcus, also in Somerville. Norris McLaughlin chairman G. Robert Marcus announced that Richard J. Schachter, Stephen M. Offen, Michael J. Stanton, Timothy P. McKeown and Jerry S. D’Aniello have joined as members of the firm. Schachter partner John J. Trombadore, a past president of the New Jersey chapter of the American Academy of Matrimonial Lawyers, is opening his own practice. Schachter attorneys will remain in their current office at 45 E. High St. for several months. Norris McLaughlin now has 87 attorneys. 1-4-05

THE RIGHT TO FARM, BANG AND WAIL
The state Agriculture Development Committee has ruled a Colt’s Neck farmer can continue to use a specially made cannon to scare away crows. A neighbor of John Samaha’s farm complained about the noise, but the panel, supporting a county agricultural board decision, held Samaha was within his right under the 1983 Right to Farm Act. These cannons are fueled by propane and set off a bang at regular intervals. Samaha will be limited to using the cannon during daylight hours. The panel, however, said he must try alternative means to scare away the crows. He said he’s already doing that with a traditional scarecrow and an employee who plays the trumpet. If the neighbor still has problems with the noise, the next step is the Appellate Division. 1-4-05

UC-BERKELEY LAW DEAN WANTS TO ‘PRIVATIZE’ SCHOOL
Christopher Edley Jr., dean of the University of California at Berkeley’s Boalt Hall School of Law, says the school needs a lot more money to maintain and improve its status. To do that, he wants it to keep more of what it brings in through fund-raising and tuition, and shell out less to the University of California system and its Berkeley campus. The law schools of the University of Michigan and the University of Virginia operate in such a manner and are the only public law schools ranked in the top 10 by U.S. News & World Report. Boalt Hall was ranked 13th. Edley wants to continue getting state support, but soon will announce the law school is embarking on a capital campaign to raise $100 million. The school, he says, also needs money to retain and hire more professors. Recently, three candidates offered these positions declined. 1-4-05

RECORD CLERGY-ABUSE SETTLEMENT RELEASED
The Roman Catholic Diocese of Orange in California will pay $100 million to settle 90 suits involving 43 clergy and employees accused of sexual abuse. “I seek their forgiveness, I hope for reconciliation and I know that they have now begun their healing process,” said Bishop Tod D. Brown. The settlement was reached a month ago, but remained sealed while parties signed off. The agreement also calls for the release of most of the personnel files of the accused clergy and lay employees. The previous record for such a settlement was $85 million in Boston. There still are 800 clergy-abuse lawsuits pending in California, 500 in the Archdiocese of Los Angeles. 1-4-05

JUDGE AXES ARKANSAS BAN ON GAY FOSTERING
Ruling a state agency exceeded its authority, Pulaski County, Ark., Judge Timothy Fox has overturned a ban on allowing gay couples to be foster parents or even allowing a household with a gay person to be a foster home. After listening to testimony by psychologists and sociologists, Fox said the Child Welfare Agency Review Board was trying to regulate “public morality” outside the bounds of its legislative charge. “The testimony overwhelmingly showed that there was no rational relationship between the … blanket exclusion and the health, safety and welfare of the foster children.” The Arkansas chapter of the American Civil Liberties Union brought the suit, arguing the regulation violated the equal protection rights of gays. But Fox limited his decision to the board’s scope of authority. Arkansas, like New Jersey, allows adoptions by homosexuals. 1-4-05



Today's Decision Summaries

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FROM THE NEW JERSEY SUPREME COURT, TUESDAY, JANUARY 4, 2005
NO OPINIONS WERE RELEASED BY THE NEW JERSEY SUPREME COURT ON TUESDAY, JANUARY 4, 2005, AND NO OPINIONS ARE SCHEDULED FOR RELEASE ON WEDNESDAY, JANUARY 5, 2005.


APPROVED FOR PUBLICATION
COMMERCIAL TRANSACTIONS
NEW JERSEY LAWYERS’ FUND FOR CLIENT PROTECTION v. PACE
Appellate Division, A-4371-02T2 and A-6256-02T2, approved for publication January 4, 2005. (15 pages). Facts-on-Call Order No. 92242

Because the accrual of a cause of action for conversion of a negotiable instrument under the Uniform Commercial Code occurs when the bank pays on the forged endorsement, the UCC statute of limitations for conversion of a negotiable instrument runs out three years after that time under N.J.S.A. 12A:3-118(g). Based on holdings from other jurisdictions that the cause of action against a bank in a conversion action involving negotiable instruments accrues at the time of conversion, the Appellate Division concluded that the time of discovery rule does not apply under the UCC provision.

INSURANCE
VILLANUEVA v. AMICA MUTUAL INSURANCE CO.
Appellate Division, A-3214-03T5, approved for publication January 4, 2005. (12 pages). Facts-on-Call Order No. 92243

The defendant insurer was entitled to the equitable remedy of rescission of a settlement where the defendant settled the plaintiff’s automobile negligence claim for $35,000 under the mistaken belief that the policy had a coverage limit of $35,000 and where, almost immediately after the plaintiff signed a release, the defendant discovered that it actually had issued only a “limited liability” policy with a $10,000 limit.

CIVIL PROCEDURE
BERNHARDT v. ALDEN CAFE
Appellate Division, A-1645-03T3, approved for publication January 4, 2005. (16 pages). Facts-on-Call Order No. 92244

A trial court’s failure to vacate a default entered against a person engaged in active military service is error under both the federal Soldiers’ and Sailors’ Civil Relief Act of 1940 and its New Jersey counterpart, and the court is obligated to appoint an attorney or to employ other appropriate means to protect the interests and property of persons in active military service.

MEDICAID
ESTATE OF F.K. v. DIVISION OF MEDICAL ASSISTANCE AND HEALTH SERVICES
Appellate Division, A-1004-02T5, approved for publication January 4, 2005. (29 pages). Facts-on-Call Order No. 92245

N.J.A.C. 10:71-4.10(p)2i, which caps the amount of resources that a couple may use to purchase an annuity at the community spouse resource allowance level, is invalid because it is inconsistent with federal law. Furthermore, the agency decision that the annuity is an available asset because it may be sold on a secondary market is contrary to law and is unsupported by any facts in the record.

CRIMINAL TRIALS
STATE v. VASQUEZ
Appellate Division, A-1392-03T4, approved for publication January 4, 2005. (23 pages). Facts-on-Call Order No. 92246

Although an extended term sentence was required pursuant to N.J.S.A. 2C:43-6f for the defendant’s second conviction for possession of CDS with intent to distribute within 1,000 feet of a school, the Appellate Division (1) vacated the defendant’s 10-year base extended term sentence, which is the maximum extended term available for a third-degree crime, and his parole ineligibility term of four years because there was no basis for them in the record and (2) exercised original jurisdiction to impose the presumptive extended term sentence of seven years with a three-year parole ineligibility term because nothing in the record could support a longer base term or a longer parole ineligibility term.

NOT APPROVED FOR PUBLICATION
INSURANCE
BURNS v. DiBLASIO
Appellate Division, A-6794-02T5, January 4, 2005, not approved for publication. (7 pages). Facts-on-Call Order No. 17476

Summary judgment for the defendants based on the N.J.S.A. 39:6A-8a verbal threshold under AICRA and on N.J.S.A. 39:6A-12 affirmed; the trial court (1) properly dismissed the plaintiff’s claim for noneconomic damages based on its determination that the 23-year-old plaintiff failed to demonstrate that her injuries had a serious impact on her life where she continued to work at a “physically strenuous job” and to exercise at the gym and (2) properly dismissed the plaintiff’s claim for unreimbursed medical expenses pursuant to Roig v. Kelsey and §39:6A-12.

PREMISES LIABILITY
BLAHUTA v. KNIGHTS OF COLUMBUS IN KENILWORTH
Appellate Division, A-4708-03T2, January 4, 2005, not approved for publication. (10 pages). Facts-on-Call Order No. 17474

Summary judgment for the defendant premises owners in a personal injury action affirmed; the 67-year-old plaintiff was injured when she fell while she was dancing during a party on the defendants’ premises; although there was some evidence that the floor was slippery, summary judgment was appropriate because the plaintiff did not establish the reason why the floor was slippery or that the defendants had caused the floor to be slippery through their actions or inactions; the plaintiff’s argument that the facts supported an inference that her fall was caused by spilled food and drink was “without merit,” and there was no evidence that the defendants either caused or had notice of any food or drink spills.

REAL PROPERTY
MacBAIN v. BOROUGH OF ALPINE
Appellate Division, A-2304-03T3, January 4, 2005, not approved for publication. (5 pages). Facts-on-Call Order No. 17475

Chancery Division judgment requiring that the defendant Borough either replace or restore a bridge at the Borough’s expense or remove a barrier on a public highway and denying the plaintiff landowner’s claim to a prescriptive easement affirmed; the plaintiff claimed that his property was landlocked, and the trial judge correctly found that the plaintiff had a right of “reasonable access” to public highways; the defendant Borough chose to repair the bridge but sought to avoid bearing the entire cost; a municipality has discretion to decide whether to undertake a project as a general improvement for which the whole municipality pays or as a local improvement for which only the benefited property owners pay, but deciding to undertake the bridge repair as a local improvement and charging the plaintiff with the expense would constitute a “palpable” abuse of discretion.

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