NEW JERSEY LAWYER

DAILY BRIEFING      01/06/2005


News Briefs

BAR ASSOCIATION SUES OVER $75 FEE
The New Jersey State Bar Association has followed through on its promise to sue the state over a law requiring lawyers to pay $75 annually for three years to help subsidize medical malpractice expenses for some doctors. In papers filed in Union County Superior Court, the NJSBA charges there is “no clear nexus” between the expenses incurred by doctors and insurance companies and the fee charged every lawyer with a bona fide office in New Jersey. The State Bar is asking the court to declare the fee, part of the Medical Care Access and Responsibility and Patients First Act, unconstitutional and that the state treasurer stop collecting the fee and return money already collected. Chancery Division Judge Thomas N. Lyons has scheduled a show-cause hearing Feb. 14. The complaint and brief were submitted by State Bar President Edwin J. McCreedy; the 72-page brief was prepared by Sharon A. Balsamo, James P. Condon and Charles J. Hollenbeck of the NJSBA staff. 1-5-05

FEDERAL FILING FEE RISING $100
Effective Feb. 7, the civil filing fee for U.S. District Courts in New Jersey will be $250, up from $150. The increase is part of legislation signed by President Bush in December. In announcing the increase, Clerk William T. Walsh noted the last time the fee increased was 1996, when it went from $120 to $150. 1-5-05

OKLAHOMA JUDGE, 83, FILES AGE BIAS CASE
An Oklahoma Supreme Court judge has filed a federal age discrimination suit against his eight colleagues. Marian P. Opala, 83, said he was gypped out of being named chief justice by rule changes his colleagues made just before it was his turn. In Oklahoma, the justices choose their chief, and until recently it was a matter of rotation. Opala filed his suit with the U.S. District Court in Oklahoma City, blaming the “young Turks” on the Supreme Court for the change. Its youngest member is 52. 1-5-05

DISCIPLINE MORE DOCTORS, STUDY GROUP TELLS BUSH
Even as President Bush was preparing to go to Madison County, Ill., to push for caps on lawsuits, experts hired by the White House were recommending going after the relatively few doctors who drive up the cost of malpractice insurance. Researchers from the Urban Institute and the University of Iowa, working together on a study commissioned by the administration, recommended “more aggressive policing of incompetent physicians and more effective disciplining of doctors who engage in substandard practice.” 1-5-05

PHILLY FED SAYS NJ ECONOMY IN GOOD SHAPE
The New Jersey economy is expected to grow at a modest but steady 3.4 percent over the next nine months, according to recent projections by the Federal Reserve Bank of Philadelphia. The state’s economy grew 4.2 percent in the 12 months ending in November, a much better rate than the previous year. The projections for 2005 are based on a low unemployment rate, an increase in the number of jobs and a rise in housing permits. Ted Crone, a vice president with the Federal Reserve, said the state is in good shape. 1-5-05



Today's Decision Summaries

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FROM THE NEW JERSEY SUPREME COURT, WEDNESDAY, JANUARY 5, 2005
NO OPINIONS WERE RELEASED BY THE NEW JERSEY SUPREME COURT ON WEDNESDAY, JANUARY 5, 2005, AND NO OPINIONS ARE SCHEDULED FOR RELEASE ON THURSDAY, JANUARY 6, 2005.


APPROVED FOR PUBLICATION
 
NO OPINIONS APPROVED FOR PUBLICATION WERE RELEASED BY THE APPELLATE DIVISION ON WEDNESDAY, JANUARY 5, 2005.

NOT APPROVED FOR PUBLICATION
TORTS
MORELLA v. BYSTRICK
Appellate Division, A-6533-02T5, January 5, 2005, not approved for publication. (12 pages). Facts-on-Call Order No. 17482

Summary judgment for the defendant in an action alleging, among other things, malicious prosecution, abuse of process, and intentional infliction of emotional distress arising from the defendant’s filing of a municipal court complaint against the plaintiff ex-mother-in-law and denial of the plaintiff’s motion for reconsideration affirmed; the plaintiff could not establish (1) malicious prosecution because the plaintiff failed to demonstrate that she had received a favorable termination of the complaint against her, (2) abuse of process because the plaintiff could not demonstrate any further acts on the part of the defendant other than the filing of the complaint itself, and (3) intentional infliction of emotional distress because the trial court properly barred the certification from the plaintiff’s doctor that was submitted after the discovery period had ended.

PERSONAL INJURY
WAGENHOFFER v. POLIZZI
Appellate Division, A-2722-03T1, January 5, 2005, not approved for publication. (4 pages). Facts-on-Call Order No. 17479

Summary judgment for the defendant property owners and for the defendant municipality in an action for injuries sustained by the plaintiff while riding his motorcycle when he was struck by a rock in the road while trying to avoid another rock in the road in front of the property owners’ land; the motion judge properly concluded (1) that there was no evidence that the municipality had actual or constructive notice of the road’s condition and (2) that there was no evidence that the rocks were from the property owners’ land or that rocks were missing from the rock wall on their land.

MEDICAL MALPRACTICE
HILLERY-JONES v. EPSTEIN
Appellate Division, A-1641-03T1, January 5, 2005, not approved for publication. (19 pages). Facts-on-Call Order No. 17481

Denial of the plaintiff’s motion for a new trial in a medical malpractice action affirmed; a jury issued a verdict of no cause of action for the defendant orthopedic surgeon, who had treated the plaintiff after she sustained a hip fracture in an automobile accident; five days before trial, the defendant acknowledged a mistake in his transcription of his handwritten progress notes from the plaintiff’s hospital chart, and he testified during discovery to making handwritten additions to the plaintiff’s admitting history and physical; contrary to the plaintiff’s arguments on appeal, the trial court did not abuse its discretion (1) by refusing to give the jury the alteration-of-medical-records charge because the plaintiff did not establish that the defendant had acted with the intent to deceive or (2) by excluding the testimony of the plaintiff’s handwriting expert because it was cumulative.

HUSBAND AND WIFE
COCHRAN v. COCHRAN
Appellate Division, A-3841-03T5, January 5, 2005, not approved for publication. (4 pages). Facts-on-Call Order No. 17478

Denial of the plaintiff ex-husband’s motion to reduce his alimony and child support obligations and award of attorney’s fees to the defendant ex-wife affirmed; the plaintiff was employed by Bergen County as an assistant superintendent of parks, and the County provided him and his family with free lodging; however, after the parties divorced, the County changed its policy and required that he pay monthly rent of $350 plus utilities; the Family Part properly concluded that the plaintiff had not demonstrated changed circumstances to justify modifying the obligations that the parties had negotiated; this was not a case where the plaintiff’s support obligation “significantly” impaired his ability to meet his expenses; instead, this was a case where the plaintiff believed that he should have more available funds to be used for himself and for his children when they visit; furthermore, the Family Part’s “modest” fee award was not an abuse of discretion.

LAND USE
CHRISTENSEN v. MAPLEWOOD TOWNSHIP BOARD OF ADJUSTMENT
Appellate Division, A-763-03T2, January 5, 2005, not approved for publication. (7 pages). Facts-on-Call Order No. 17477

Order vacating the defendant Board of Adjustment’s denial of the plaintiff’s application to continue operating a bed and breakfast in his residence as a nonconforming use and remanding the case to the Board for a new hearing on the issue of abandonment affirmed; the Township construction official advised the plaintiff that his operation of a bed and breakfast in his residence violated the Township’s zoning ordinance; the Board found that the plaintiff’s residence had been used as a bed and breakfast before the Township’s zoning ordinance was adopted, but it also found that the use of the residence as a bed and breakfast had been abandoned; contrary to the plaintiff’s arguments on appeal, the trial court did not err by remanding the case, and N.J.S.A. 40:55D-68 does not permit the plaintiff to withdraw his application.

LANDLORD AND TENANT
BARBRUCE REALTY CO. v. WILLIAMS
Appellate Division, A-3332-03T5, January 5, 2005, not approved for publication. (5 pages). Facts-on-Call Order No. 17480

Summary judgment awarding $7,519.36 to the plaintiff landlord in an action to recover past-due rent affirmed; the plaintiff’s summary judgment motion was unopposed, and the defendant tenant did not move to vacate the judgment; in her pro se appeal, the defendant (1) argued that the plaintiff had not made necessary repairs, that she had made timely payments of rent, that the plaintiff harassed her, that the plaintiff charged her rent that exceeded the amount specified on the plaintiff’s rent schedule, and that the plaintiff did not permit her to collect her property after she was evicted and (2) presented documents that included evidence of rent payments; the Appellate Division could not consider either the defendant’s arguments or her documentary evidence because she did not present them to the trial court.

UNEMPLOYMENT COMPENSATION
VAZQUEZ v. BOARD OF REVIEW, DEPARTMENT OF LABOR
Appellate Division, A-2743-03T1, January 5, 2005, not approved for publication. (3 pages). Facts-on-Call Order No. 17483

Denial of unemployment benefits to the claimant summarily affirmed; the claimant was employed as a financial advisor, and she left her employment to relocate to another area due to her workload and her daughter’s health problems; the Board of Review properly dismissed the claimant’s appeal as untimely because she had adequate notice and opportunity to file her appeal and because she did not establish good cause for the delay; furthermore, the record supported the Appeal Tribunal’s determination that the claimant’s reasons for leaving were personal and not attributable to her job.

PREMISES LIABILITY
GLYNN v. BERGEN MALL
Appellate Division, A-3002-03T1, January 4, 2005, not approved for publication. (2 pages). Facts-on-Call Order No. 17484

Summary judgment for the defendant shopping mall in the plaintiff customer’s personal injury action affirmed for the reasons expressed in the trial judge’s opinion; the plaintiff claimed that she slipped on a shiny substance on the floor near the mall’s indoor fountain, and one of her theories was that the substance was water from the fountain; among other things, the trial judge found that the fountain was an “ornament,” which was not “an inherent method of operation of a business” and which was not in itself a hazard, and that Nisivoccia v. Glass Gardens, Inc. did not apply.

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