NEW JERSEY LAWYER

DAILY BRIEFING      10/13/2005


News Briefs

THOMPSON SENTENCING PENDS PSYCHIATRIC EVALUATION
Former Camden County Judge Stephen W. Thompson must complete psychiatric evaluation before a sentencing date is set for his child pornography conviction. Thompson faces up to 20 years in prison and a $250,000 fine for his conviction of traveling to Russia to have sex with a young boy and videotaping the act. A federal jury in Camden found him not guilty by reason of insanity on a separate charge of possessing child pornography. His evaluation at Federal Correctional Complex Butner, a prison hospital in North Carolina, is expected to be completed by Nov. 7, said assistant U.S. Attorney Jacqueline Mokoid Carle. 10-11-05

THE PUBLIC DEFENDER WHO DID THE INDEFENSIBLE
The former East Brunswick public defender who shook down indigent clients he was supposed to be representing for free has been sentenced to up to four years in prison. “I especially apologize to my profession,” said Hanit Dorwani, admitting he hit up clients he represented for traffic offenses. When he pleaded guilty in March, he turned in his law license. Dorwani had served four years as public defender in the Middlesex County community. 10-11-05

FEDERAL APPEALS COURT NIXES JURY SELECTION BY ZIP CODE
The 1st U.S. Circuit Court of Appeals has rejected a plan by a district judge to fill out a jury pool with names drawn from zip codes where the original response rate to a jury summons was low — which the evidence showed tends to be in areas with a larger than average black population. Writing in In re U.S. v. U.S. District Court of Massachusetts, Chief Judge Michael Boudin said Judge Nancy Gertner’s ideal ran afoul of the general plan for jury selection adopted by the district court as a whole. He said the lower court’s “supervisory power does not license it to ignore an otherwise valid existing jury plan.” 10-11-05

CORPORATIONS ARE LIKELY TO BE PLAINTIFFS, TOO
The term “corporate defendant” is well-known, but someday the phrase “corporate plaintiff” also may be. A survey by the law firm Fulbright & Jaworski has found the typical corporation initiates 11 lawsuits annually. According to the survey, nearly 90 percent of American corporations are engaged in some type of litigation. The average company has 37 lawsuits in progress at any one time, with billion-dollar firms managing more than 147 separate cases. A major concern of in-house counsel, the study said, is electronic discovery of items such as e-mail. 10-11-05

ONE THING THAT’S STILL STEADY — ENTREPRENEURSHIP
An estimated 550,000 businesses are created each month, remaining relatively constant over the past decade, with the highest number started by immigrants and Latinos. The Ewing Marion Kauffman Foundation said the number of small businesses started monthly in the United States has been the same between 1996 and 2004 despite swings in the economy. The study found Latinos have the highest rate of entrepreneurship and immigrants are more likely to start their own business than people born here. Among immigrants, 0.46 percent are in business for themselves compared to 0.35 percent for native-born Americans. 10-11-05



Today's Decision Summaries

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FROM THE NEW JERSEY SUPREME COURT, TUESDAY, OCTOBER 11, 2005
NO OPINIONS WERE RELEASED BY THE NEW JERSEY SUPREME COURT ON TUESDAY, OCTOBER 11, 2005.

THE SUPREME COURT has announced that it will release an opinion in JERISTA v. MURRAY, A-5, on October 12, 2005. The issue on appeal in Jerista addresses whether it was appropriate to grant the defendant’s motion for summary judgment in this legal malpractice case based on the plaintiffs’ failure to present an expert opinion to establish their case within a case.



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
RUIZ v. CLARENDON NATIONAL INSURANCE CO.
Appellate Division, A-6157-03T2, October 11, 2005, not approved for publication. (15 pages). Facts-on-Call Order No. 18641

Law Division order declaring that the defendant insurer’s automobile policy was in effect on the date that the plaintiff driver was involved in an accident reversed; the insurer notified the driver that it was suspending the physical damage portion of the policy because the driver had not complied with the insurer’s photo-inspection requirement, but the Law Division concluded that the insurer’s Acknowledgement of Requirement for Photo Inspection form was defective because it did not comply with N.J.A.C. 11:3-36.5; contrary to the Law Division’s conclusion, the failure to include a blank space for the date by which the vehicle had to be inspected did not invalidate the form because the body of the form stated that the inspection had to be completed within seven calendar days of the policy’s effective date; requiring the driver to calculate the date was a “minor distinction” from the sample form printed in the regulation.

DELSON v. GROWING YEARS/WAYNE PRESBYTERIAN GROWING YEARS CHILD DEVELOPMENT FAMILY LEARNING CENTER OF NEW JERSEY
Appellate Division, A-6427-03T2 and A-6428-03T2, October 11, 2005, not approved for publication. (13 pages). Facts-on-Call Order No. 18637

Dismissal of the workers’ compensation claims against the defendant nursery school reversed and remanded for entry of orders granting the claims; the nursery school operated on the premises of a church during the week, and the petitioners, who were employed by the nursery school, removed the nursery school equipment from the rooms on Fridays and returned it to the rooms on Sundays; sometimes the petitioners would go to a local hardware store to purchase parts needed for repairs; the petitioners sought workers’ compensation benefits for injuries sustained in an off-premises vehicular accident one Sunday, but the judge of compensation made no findings on the purpose of the trip; exercising its original jurisdiction, the Appellate Division found (1) that, at the time of the accident, the petitioners were going to the hardware store to buy parts needed “to complete their Sunday employment tasks,” (2) that they were not injured during a “lunch break”, and (3) that they therefore were injured during the course of performing their job duties.

CIVIL PROCEDURE
DOERR v. MUTUAL OF OMAHA COS.
Appellate Division, A-2782-04T2, October 11, 2005, not approved for publication. (7 pages). Facts-on-Call Order No. 18639

Summary judgment for the defendant employer dismissing the plaintiff employee’s employment discrimination complaint reversed and remanded for further proceedings; the plaintiff’s complaint arose from a sexual assault by her supervisor while they were on a business trip and her termination after she failed to return to work; the motion court’s failure to express findings of fact and conclusions of law in support of its summary judgment order made the Appellate Division’s “meaningful review” of the arguments on appeal “impossible”; thus, the Appellate Division expressed no view about the arguments on appeal and no view about the propriety of the relief ordered.

CIVIL PROCEDURE
PIETRONICO v. SANCHEZ
Appellate Division, A-2143-04T1, October 11, 2005, not approved for publication. (6 pages). Facts-on-Call Order No. 18638

Order vacating the default judgment against the defendant in an automobile negligence action affirmed; the proof of service on the defendant was “deficient on its face” (1) where the plaintiff did not file an affidavit stating that, despite a diligent effort, personal service could not be achieved in New Jersey, (2) where the affidavit of service — which stated that the defendant had been personally served in New York — did not state that the person who had personally served the defendant was a public official authorized to serve civil process in New York or that he was qualified to practice law in New York or New Jersey, and (3) where a supplemental submission from the plaintiff’s attorney did not cure that defect; the trial court did not err by granting the motion because the record established that the defendant did not have actual notice of the action and that, when she learned about the judgment, she and her insurer promptly challenged the judgment’s validity.

ESTATES AND TRUSTS
IN RE ESTATE OF DOLAN
Appellate Division, A-823-04T2, October 11, 2005, not approved for publication. (14 pages). Facts-on-Call Order No. 18636

Order on a Rule 4:37-2(b) motion entered during a bench trial that dismissed the “contract” claims of the decedent’s wife to an annuity policy reversed and remanded for completion of the trial, and orders denying the attorney’s fee claims of the wife and the estate reversed and remanded for a plenary hearing; the action arose from a prenuptial agreement and amendment thereto and from the alleged failure of one of the decedent’s sons to follow the decedent’s instructions to effectuate a change in the annuity policy to name the wife as a beneficiary; at a minimum, the wife presented enough evidence on the annuity to survive the Rule 4:37-2(b) motion and to compel the son to put on a defense; the trial court could not make credibility assessments on the Rule 4:37-2(b) motion, and it never resolved the issue of the scope of the estate’s obligations under the prenuptial agreement, which was critical to a determination of default under the agreement; both the wife and the estate were entitled to a plenary hearing on their attorney’s fee claims because their claims were premised on alleged defaults under the prenuptial agreement.

REAL PROPERTY
WASHINGTON MUTUAL BANK, FA v. SHLAFER
Chancery Division, Bergen County, BER-F-10376-05, September 23, 2005, released September 29, 2005, not approved for publication. By Doyne, J. (8 pages). Facts-on-Call Order No. 18635

Motion for summary judgment by the plaintiff mortgagee seeking to strike the defendants’ answer, to enter default, and to transfer the case to the Foreclosure Unit granted, and the defendants’ cross-motion to dismiss the plaintiff’s foreclosure complaint denied; the plaintiff’s motion had to be granted because there was no dispute that the defendants had defaulted on their mortgage with the plaintiff or that the plaintiff had notified the defendants in writing about the impending foreclosure as required by statute; the defendants’ assertion that the plaintiff’s notice was “stale” and that, in light of the parties’ negotiations, a second letter that advised the defendants of their rights had to be sent before the complaint could be filed put “form over substance” and had to be rejected.

MOTOR VEHICLES
STATE v. ASHJIAN
Appellate Division, A-6528-03T5, October 11, 2005, not approved for publication. (15 pages). Facts-on-Call Order No. 18640

Conviction of driving 45 mph in a 25-mph zone affirmed; on appeal, the defendant challenged (1) the admission into evidence of his speed as recorded by a “Python” radar device and (2) the validity of the posted 25-mph speed limit; as to the first argument, the Appellate Division agreed with the defendant that the State had not introduced evidence sufficient to prove that the police officer who issued the summons was qualified to operate the “Python” device; nonetheless, the Appellate Division affirmed the conviction because it also was based on the officer’s personal observations; as to the second argument, the speed limit was enforceable under N.J.S.A. 39:4-98, and the defendant’s argument that the only enforceable speed limit was 50 mph, though “creative,” was without merit.


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