NEW JERSEY LAWYER

DAILY BRIEFING      10/11/2005


News Briefs

KENNEY & KEARNEY MERGING INTO BALLARD SPAHR
Cherry Hill’s Kenney & Kearney will merge into Ballard Spahr Andrews & Ingersoll in Voorhees effective Oct. 15. Joseph H. Kenney and John B. Kearney, who will become partners in Ballard Spahr, are bringing along two of their three fellow partners: William DeSantis, as a partner, and Joel B. Korin, of counsel. Three associates from Kenney & Kearney also are making the move. The deal increases Philadelphia-based Ballard’s total number of New Jersey lawyers to 50. It has more than 400 lawyers in locations that include Washington, Wilmington, Del., Baltimore and Salt Lake City. 10-7-05

SUPREME COURT TO REVIEW SEARCH OF UTILITY RECORDS
The New Jersey Supreme Court has accepted a case regarding whether police need a warrant before obtaining someone’s electrical usage records from a utility company. In State v. Domicz, the Appellate Division said police need a warrant since there’s a “legitimate expectation” those records’ privacy will be maintained. In the underlying matter, utility records were obtained as part of an investigation into growing marijuana indoors, which requires intense lighting. After a trial judge denied a motion to suppress evidence, Keith R. Domicz pleaded guilty to operating a marijuana production facility and was sentenced to 10 years in prison. 10-7-05

LEGAL SERVICES FILES AMICUS IN INDIGENT PARENTS CASE
Legal Services of New Jersey has filed an amicus brief in the Pasqua v. Council case before the New Jersey Supreme Court in support of the plaintiffs’ contention that indigent parents have a constitutional right to counsel in child support enforcement proceedings against them. However, Legal Services maintains, such work should not be made mandatory pro bono. The Appellate Division had reversed a trial court ruling that such parents have a right to representation. The New Jersey State Bar Association in its amicus filing argued against mandatory pro bono, but did not weigh in on the constitutionality issue. 10-7-05

ALCOTEST CASE CONSOLIDATION TO BE HEARD IN MIDDLESEX COURT
Lingering questions over the reliability of the state’s new breath-testing machine for drunken driving arrests may get some crucial answers Friday when preliminary hearings begin over a consolidation of six Middlesex County municipal court DWI cases. While strictly a Middlesex County issue for now, the outcome of a consolidation in the county’s Superior Court could affect DWI matters statewide. The Alcotest 7110 machine is in use in five counties, and the state intends it to be in all 21 counties by next October. Defense attorneys are challenging whether a Camden County court finding that machine’s results are scientifically reliable can be applied in Middlesex. For a full story, see the Oct. 10 New Jersey Lawyer. 10-7-05

STATE BAR DISTRIBUTES BOOKLETS FOR KATRINA EVACUEES
The New Jersey State Bar Association is distributing booklets for Hurricane Katrina victims who have relocated here. The 98-page Handbook for Evacuees of Hurricane Katrina Moving to New Jersey, which was prepared by Newark’s McCarter & English, covers an array of issues including credit cards and banking, changing postal addresses, identity theft protection, and school enrollment. Bar Association President Stuart A. Hoberman praised the firm’s efforts and noted the distribution is part of the Bar Association’s ongoing efforts to help Katrina victims. The American Red Cross, United Way and New Jersey’s Volunteer Organizations Assisting in Disasters are delivering the booklets to evacuees. It’s available on the State Bar’s website, njsba.com, and additional copies can be obtained by calling the organization’s disaster hotline, (888) 541-1900. The association also has links on its site for donations to Katrina support programs and has been helping lawyers displaced by the hurricane locate new office space. 10-7-05



Today's Decision Summaries

To Order Decisions

Now you can order the full text of these decisions directly from the Daily Briefing. Just click on the Facts-on-Call Order Number and the order page will open. And of course you still can order by phone by calling 1-800-670-3370. (A PIN number is required to use the service. If you need a free PIN Number, call 800-310-8678.)

FROM THE NEW JERSEY SUPREME COURT, FRIDAY, OCTOBER 7, 2005
NO OPINIONS WERE RELEASED BY THE NEW JERSEY SUPREME COURT ON FRIDAY, OCTOBER 7, 2005, AND NO OPINIONS ARE SCHEDULED FOR RELEASE ON TUESDAY, OCTOBER 11, 2005.

NEW JERSEY COURTS ARE CLOSED ON MONDAY, OCTOBER 10, 2005, AND NO OPINIONS WILL BE RELEASED.



APPROVED FOR PUBLICATION
LABOR LAW
VISITING HOMEMAKER SERVICE OF HUDSON COUNTY v. BOARD OF CHOSEN FREEHOLDERS OF THE COUNTY OF HUDSON
Appellate Division, A-3180-03T5, approved for publication October 7, 2005. (24 pages). Facts-on-Call Order No. 92686

In the plaintiff county contractor’s action to prevent the defendant county from imposing an ordinance that would require the contractor to provide its employees with certain health benefits and pay them a wage equal to 150 percent of the federal minimum wage, (1) the recent amendment to N.J.S.A. 34:11-56a4 rendered the contractor’s preemption argument moot and (2) the ordinance did not violate equal protection guarantees, was not arbitrary, and was not discriminatory.

NOT APPROVED FOR PUBLICATION
INSURANCE
CULVER v. FIRST JERSEY INSURANCE AGENCY
Appellate Division, A-750-04T5, October 7, 2005, not approved for publication. (15 pages). Facts-on-Call Order No. 18630

Summary judgment for the defendant insurer and the defendant insurance agency in an action by the plaintiff beneficiary to recover under his deceased wife’s life insurance policy affirmed; the insurer denied the claim after ascertaining that many material representations in the insurance application were false; the plaintiff alleged that an independent broker knew of the wife’s ailments but filled out the application in a false manner; the trial court concluded that the broker was neither an agent nor an employee of the defendants; contrary to the plaintiff’s arguments, (1) he had sufficient opportunity to address in his motion papers the broker’s relationship with the defendants, even if the insurer’s motion did not expressly raise that issue, and (2) the trial court correctly concluded that the broker’s knowledge of the falsity of the information in the application could not be imputed to the insurance agency and, by extension, to the insurer.

HUSBAND AND WIFE
STEIN v. STEIN
Appellate Division, A-2825-04T5, October 7, 2005, not approved for publication. (3 pages). Facts-on-Call Order No. 18632

Appeal from a portion of the parties’ amended final judgment of divorce dismissed; the amended judgment incorporated a written agreement that was signed by the parties and by their attorneys; nonetheless, the defendant ex-husband appealed, challenging the portion of the agreement that pertained to attorney’s fees; without filing an amended notice of appeal, the ex-husband also objected in his brief to the arbitrator’s decision regarding child support; the attorney’s fees issue later was settled, and the ex-husband proceeded on the child support issue; overlooking the procedural deficiency in the ex-husband’s briefing of the child support issue, the Appellate Division dismissed the appeal (1) because the parties had agreed not to follow the arbitrator’s decision and had substituted their own agreement on the issue and (2) because, under the doctrine of judicial estoppel, the ex-husband could not appeal from a settlement to which he had agreed and which had been incorporated in an amended judgment to which he had consented.

HUSBAND AND WIFE
ALMASRI v. KHAIRALLAH
Appellate Division, A-2344-04T1, October 7, 2005, not approved for publication. (10 pages). Facts-on-Call Order No. 18633

Appeal from a final judgment of divorce and from an order awarding attorney’s fees to the plaintiff ex-wife’s attorney dismissed; because the final judgment was a default judgment, the Appellate Division dismissed the appeal without prejudice to the defendant ex-husband seeking relief from the judgment under Rule 4:50-1, but it took no position as to whether the motion should be granted; under Haber v. Haber, a direct appeal will not lie from a default judgment.

CIVIL PROCEDURE
DORN v. NEW LINDEN PRICE RITE
Appellate Division, A-1544-04T1, October 7, 2005, not approved for publication. (12 pages). Facts-on-Call Order No. 18631

Order that granted the defendant supermarket’s motion for a new trial in a slip-and-fall action reversed and denial of the defendant’s motion for a mistrial affirmed; the plaintiff customer hurt herself when she allegedly slipped and fell in a puddle of clear liquid on the floor of the premises; the defendant served notice of its motion for a new trial 22 days after the jury returned a verdict in favor of the plaintiff and her husband; the trial court erred as a matter of law by rejecting the plaintiff’s argument that the motion was time-barred under Rule 4:49-1(b), and there was no “substantial compliance” with the Rule in this case because the only explanation offered by the defendant’s attorney for the delayed motion was “the consuming practice of law and the holiday season”; the trial court did not abuse its discretion by declining to grant a mistrial based on the allegedly inappropriate remarks of the plaintiff’s attorney in opening and closing arguments and by providing sufficient, curative instructions as an alternative.

MUNICIPAL COURTS
STATE v. BROWN
Appellate Division, A-1500-04T5, October 7, 2005, not approved for publication. (6 pages). Facts-on-Call Order No. 18634

Conviction of the disorderly persons offense of criminal mischief affirmed; contrary to the defendant’s argument, (1) she was not prejudiced by the lack of a first appearance or formal arraignment, (2) she was “well aware” of the charges against her, and (3) she was “fully prepared” to meet those charges on the day of the trial where she not only testified but brought documentary evidence and was prepared with a reason why her mother was not present to testify; the defendant did not have a constitutional right to have counsel assigned to her because she was not facing imprisonment or “other consequence of magnitude”; where the defendant waived the opportunity to have the matter adjourned so that she could obtain an attorney, there was no basis in the record to conclude that the defendant would have obtained an attorney for her trial in the Municipal Court if she had been given more or different instructions from the Municipal Court about her right to counsel.

JURISDICTION
FOURNEY v. SANTOS
Appellate Division, A-714-04T2, October 6, 2005, not approved for publication. (10 pages). Facts-on-Call Order No. 18628

Dismissal with prejudice of the plaintiff’s small claims complaint for lack of personal jurisdiction reversed and remanded; both parties sold the same type of goods through eBay auctions, and the plaintiff alleged that the defendant converted the title and text from his eBay auctions without his permission; the defendant lived in California, had advertised items for sale through eBay auctions “hundreds of times,” and had entered into sales contracts with a number of New Jersey residents; the trial court erred by not using the “sliding scale standard” to analyze the permissible scope of New Jersey’s long-arm jurisdiction based on Internet activity by a non-resident.

TAXATION
KANTER v. KUMBARTSKY
Appellate Division, A-2085-04T1, October 6, 2005, not approved for publication. (2 pages). Facts-on-Call Order No. 18629

Chancery Division determination that the defendant was entitled to redeem a tax sale certificate under N.J.S.A. 54:5-54 affirmed substantially for the reasons expressed by the Chancery Division; the Chancery Division properly held that the defendant was an owner of the property in accordance with a previous judicial declaration that gave her a 20 percent interest in her father’s estate; contrary to the plaintiff’s argument, the defendant’s interest in the estate transformed her into an owner of the property and thus entitled her to redeem the tax sale certificate.

ADMINISTRATIVE LAW
IN RE PROSECUTOR’S AGENTS, GLOUCESTER COUNTY PROSECUTOR’S OFFICE
Appellate Division, A-5-04T2, October 6, 2005, not approved for publication. (4 pages). Facts-on-Call Order No. 18626

Appeal from a Merit System Board order dismissed as premature; the order was entered after a union challenged the increase in unclassified staff in the Gloucester County Prosecutor’s Office from eight Prosecutor’s Agents to 12; the union relied on a 1989 decision by the Board that allegedly limited the number of Prosecutor’s Agents to six; the order was titled “Final Administrative Action” but “merely” permitted the additional appointees to the position of Prosecutor’s Agent to continue in “conditional” status “pending a review of their duties” by the Division of Human Resource Management; the order was not a final order from which an appeal was allowed as a matter of right; despite the order’s title, there would be no final administrative decision until the review was completed and the Board acted on it.

DAMAGES
IN RE ARCHER
Law Division, Gloucester County, GLO-L-386-05, return date August 1, 2005, released October 3, 2005, not approved for publication. By McDonnell, J. (6 pages). Facts-on-Call Order No. 18616

Net settlement proceeds from a wrongful death action allocated 60 percent to the petitioner mother and 40 percent to the respondent father after the payment of the administrator’s commission and the reimbursement of funeral expenses; the decedent son died in 2000 without a will; the parties had divorced in 1987 when the son was 5 years old, and the mother was the custodial parent; under N.J.S.A. 3B:5-4, the parties were entitled as surviving parents to share equally in the net settlement proceeds, but the mother sought to establish her entitlement to a greater share because she had depended on her son for advice, companionship, and possible future economic support; both parties depended on their son for companionship, there was no evidence that either party enjoyed a better financial position than the other, and both parties had health-related issues and limitations; however, under the case law, the mother was entitled to a greater share because only she was partially dependent on the son for advice and services in her home.


To Order Decisions

Now you can order the full text of these decisions directly from the Daily Briefing. Just click on the Facts-on-Call Order Number and the order page will open. And of course you still can order by phone by calling 1-800-670-3370. (A PIN number is required to use the service. If you need a free PIN Number, call 800-310-8678.)


Click this link to unsubscribe to the Daily Briefing email



Copyright © 2005 The New Jersey Lawyer Inc. All rights reserved.