NEW JERSEY LAWYER

DAILY BRIEFING      10/05/2005


News Briefs

FORMER BERGEN PROSECUTOR MCCLURE DISBARRED
The New Jersey Supreme Court has disbarred former Bergen County Prosecutor Larry J. McClure for misappropriating client trust funds, theft from clients and a variety of other ethics violations. McClure, who began practicing in 1971 and served as Bergen’s top law enforcement officer from 1983 to 1989, has a long history of unethical behavior. Dating back to 1999, he was admonished once for misconduct and given two separate six-month suspensions and a one-year suspension in unrelated violations. 10-4-05

NJ GETS BIGGEST SHARE OF $26 MILLION PIE FOR CRIMINAL RECORDS
New Jersey is getting the biggest piece of a $26 million pie the Department of Justice is awarding states to improve their criminal record systems and their entry of information into national databases. A major reason the state is getting $1.75 million, compared to a $518,000 average for all states, is to improve the Administrative Office of the Courts’ filing of domestic violence case information with the National Crime Information Center, according to Gerard E. Ramker, administrator of the award program. The state’s funding, to be administered by the Attorney General’s office, will be split among several agencies including the AOC, the AG and the Department of Corrections. 10-4-05

SMALL BIZ OWNERS LIKE THEIR LAWYERS
Despite their frequent battles with lawyers, 67 percent of small business owners trust and have great confidence in the legal profession, according to the National Federation of Independent Business. The group’s survey of the owners of businesses with five to 250 employees further found that 87 percent of those who have ongoing relationships with law firms have not switched firms in the past three years. Despite the warm and fuzzy reports, William J. Dennis, a federation researcher, notes small business owners remain wary of being hit with frivolous suits. 10-4-05

MOTHER TO PAY EX’S TRAVEL TO SETTLE U.S.-CANADA CUSTODY DISPUTE
A woman seeking to have her son move with her from New York to Toronto must pay travel and hotel expenses of her ex-husband to satisfy their joint custody agreement. New York State Judge John Bivona directed Jodi Ann Fischtein to establish a $60,000 fund that her New York-based ex, John Andrade, can tap to cover his travel to and stay in Canada for monthly visitations with their 11-year-old son. She complained that the financial strain is “like sending your child to law school.” 10-4-05

MICROSOFT TO BEGIN PAYING $72 MILLION TO FORMER TEMPS
Now that it’s been decided the lawyers will get $27 million of a class action settlement, Microsoft late next week will begin paying $72 million to more than 8,000 former contract workers, who claimed the software giant denied them benefits. Seattle-based U.S. District Judge John C. Coughenour approved the payments for the settlement of Vizcaino v. Microsoft, after reviewing the cases of plaintiffs who felt they were being short-changed by their lawyers’ fees. The former workers claimed that Microsoft denied them stock options, pensions and health coverage during their temporary assignments helping the software giant enhance its Microsoft Word software in 1989 and 1990. 10-4-05



Today's Decision Summaries

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


APPROVED FOR PUBLICATION
VERBAL THRESHOLD
AFRAM v. HELLER
Appellate Division, A-4840-03T3, approved for publication October 4, 2005. (10 pages). Facts-on-Call Order No. 92681

The Appellate Division substantially adopted the rationales set forth by the Law Division in Pensabene v. Straus and Olarte v. Crocker and held that chiropractors are qualified under N.J.S.A. 39:6A-8a to render opinions on causation and permanency with respect to the types of injuries that they treat.

REAL PROPERTY
DAVIS v. STRAZZA
Appellate Division, A-3529-03T2, approved for publication October 4, 2005. (15 pages). Facts-on-Call Order No. 92682

Where a contract to purchase real estate includes a mortgage contingency clause and the lender issues a conditional mortgage commitment that requires the purchasers to sell their properties to obtain additional funds to close title, the purchasers may cancel the contract before closing and recover their deposit if the mortgage commitment is rescinded because they failed to sell their properties, as long as the purchasers made good faith efforts to sell.

NOT APPROVED FOR PUBLICATION
INSURANCE
TWEER v. JOHN HILL AGENCY
Appellate Division, A-1521-04T1, October 4, 2005, not approved for publication. (4 pages). Facts-on-Call Order No. 18610

Order denying attorney’s fees to the plaintiff business partners in an action that alleged negligent procurement of insurance by the defendants affirmed; the plaintiffs sued to recover unreimbursed property damage after a fire; the claimed damages exceeded the limits of the insurance policy that the defendants had procured, and the plaintiffs alleged that the defendants had negligently told them that the coverage was adequate to protect them from loss; after a jury trial, a $50,844 judgment was entered for the plaintiffs; in their application for attorney’s fees, the plaintiffs equated their case to a legal malpractice action involving the breach of a fiduciary duty; the trial court properly found no authority for distinguishing this case from “a normal professional malpractice action” that does not recognize an award of attorney’s fees to a successful party; under the case law, the fact that a person owes another a fiduciary duty does not of itself justify an award of fees unless the wrongful conduct arose out of an attorney-client relationship.

CONSUMER PROTECTION
ZUCKER v. ONE SOURCE MORTGAGE CORP.
Appellate Division, A-1955-03T2, October 4, 2005, not approved for publication. (8 pages). Facts-on-Call Order No. 18607

Denial of motions for a directed verdict, for judgment n.o.v., or for a new trial by the plaintiff contract purchasers of a residence following a no-cause jury verdict affirmed; the plaintiffs cancelled the contract of sale after the defendant mortgage company denied their mortgage application; the plaintiffs asserted breach of contract, misrepresentation, and violation of the Consumer Fraud Act stemming from, among other things, the issuance of a prequalification letter that allegedly misled them into believing that they had a mortgage commitment; the trial court properly found that the prequalification letter was not deceptive as a matter of law, and the jury had a reasonable basis to conclude that the language of the letter did not violate the CFA; on its face, the prequalification letter was not a mortgage commitment, and there was no evidence of fraudulent statements or promises by the defendant to the plaintiffs about their loan application.

APPELLATE PROCEDURE
MOISE v. MOISE
Appellate Division, A-1908-04T5, October 4, 2005, not approved for publication. (5 pages). Facts-on-Call Order No. 18608

Appeal from the denial of the defendant ex-husband’s motion to amend findings of fact and conclusions of law in a divorce action summarily dismissed; the ex-husband asked the Appellate Division to exercise original jurisdiction to make new findings of fact and to invalidate three of the trial court’s findings; the ex-husband made his motion even though he did not contest the joint legal custody and physical custody awarded to him; because the ex-husband was not an aggrieved party and was not appealing from an adverse provision of an order or judgment, the Appellate Division summarily dismissed the appeal.

SENTENCING
STATE v. NIEVES
Appellate Division, A-4274-03T4, October 4, 2005, not approved for publication. (4 pages). Facts-on-Call Order No. 18609

Conviction for the lesser-included offense of first-degree aggravated manslaughter and for second-degree endangering the welfare of a child affirmed, but the sentence of 25 years in prison, subject to an 85 percent parole ineligibility period under the No Early Release Act, on the manslaughter conviction and a concurrent term of eight years in prison on the endangering conviction remanded for reconsideration; the Appellate Division remanded the defendant’s sentence in light of the New Jersey Supreme Court’s recent decisions in State v. Natale and State v. Abdullah (1) because it exceeded the presumptive terms for first-degree aggravated manslaughter and second-degree endangering and (2) because it was based, at least in part, on aggravating factors other than the defendant’s criminal history.

CRIMINAL TRIALS
STATE v. WILLIAMS
Appellate Division, A-2869-03T4, October 4, 2005, not approved for publication. (14 pages). Facts-on-Call Order No. 18611

Convictions of two third-degree CDS offenses and one second-degree CDS offense after a trial in absentia affirmed, but the sentence remanded for reconsideration; there was no merit to the defendant’s assertions that there was error in the use of photographs at trial, that the prosecutor exceeded the bounds of propriety during summation, and that the trial court erred by trying him in absentia and by refusing to grant him a new trial after he was convicted; however, the defendant was entitled to reconsideration of his sentence in light of the New Jersey Supreme Court’s recent decision in State v. Natale because his sentence included (1) an extended base term on one third-degree offense that exceeded the applicable presumptive extended term and (2) an ordinary term on the second-degree offense that exceeded the presumptive term.

NEGLIGENCE
MUNOZ v. LANGER TRANSPORT CORP.
Appellate Division, A-5192-03T2, October 3, 2005, not approved for publication. (27 pages). Facts-on-Call Order No. 18606

Denial of the parties’ post-verdict motions for judgment notwithstanding the verdict, a new trial, and modification of the amount of the awards in an automobile negligence action affirmed; the jury awarded the plaintiff $60,000 for pain and suffering, $10,000 for the plaintiff wife’s per quod claim, $17,680 for past medical expenses, $1,100 for property damage, and $211,210 for future medical expenses; as to the defendants’ appeal, (1) the record did not support their contentions that the plaintiffs did not present either a claim for future medical expenses or evidence to support it and that the claim was first raised during the charge conference and (2) the award for future medical expenses was not subject to remittitur because it was not sufficiently disproportionate to shock the judicial conscience; as to the plaintiffs’ assertion on appeal that the awards for pain and suffering and the per quod claim were inadequate, there was no miscarriage of justice, and the jurors made a rational decision based on the evidence.


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