NEW JERSEY LAWYER

DAILY BRIEFING      11/30/2005


News Briefs

FORMER FEDERAL JUDGE NAMED TO CORPORATE ARBITRATION PANEL
Retired U.S. District Judge John W. Bissell’s hobby of refereeing hockey games may have provided him valuable skills for his new role — arbitrating and mediating corporate disputes. Bissell, former chief judge of the federal court in New Jersey, has been appointed to the American Arbitration Association’s panel of neutrals. A former Superior Court judge, Bissell was named to the federal bench in 1982 and served as chief judge since 2001. Effective Thursday, Bissell will head the alternative dispute resolution practice at Connell Foley in Roseland. William K. Slate III, AAA president, said, “Chief Judge Bissell’s 27 years of judicial experience make him supremely qualified to arbitrate and mediate our largest, most-complex cases and to perform independent fact-finding for firms requiring assistance with Sarbanes-Oxley and other corporate compliance matters.” The addition of Bissell “will allow us to even more aggressively pursue cases in this area,” added Slate. 11-29-05

BILLS TAKE AIM AT CELL PHONE SINNERS
Some New Jersey legislators are fed up with drivers using handheld cell phones even though lawmakers two years ago enacted a much-publicized law banning the use of such phones on New Jersey’s roads. Now, two bills before a Senate panel Thursday would make using a handheld phone while driving a primary offense, meaning a police officer could stop offending drivers as soon as they’re spotted. Under the current law, cell phone use is a secondary offense, so a driver must first be stopped for some other violation. In one recent six-month period, about 5,000 tickets were issued here under that law. In New York where it’s a primary offense, an average 10,000 tickets are issued monthly. One of the bills, S-2852, is sponsored by acting Gov. and Senate President Richard J. Codey, suggesting its release by the Senate Law and Public Safety and Veterans Affairs Committee is likely. An earlier, nearly identical measure, S-1874, sponsored by Sens. Joseph A. Palaia (R-Monmouth) and Martha W. Bark (R-Burlington) also will be reviewed by the panel. Under both bills, hands-free talk would be OK. 11-29-05

U.S. SUPREME COURT WILL HEAR NJ-DELAWARE DISPUTE
The nation’s highest court will step into a border war between the Garden State and its tiny neighbor to the south, Delaware. The Supreme Court has accepted New Jersey’s action against Delaware. Attorney General Peter C. Harvey hailed the decision that will resolve whether New Jersey has exclusive jurisdiction over development along its shoreline of the Delaware River. Delaware seeks to block construction of a $500 million liquefied-natural-gas terminal along the river in Logan Township, Gloucester County, proposed by BP. Delaware maintains the proposed 1,900-foot pier would extend into its waters and violate its state coastal-zone laws. New Jersey contends it has sole say over what happens on the New Jersey side of the river under a 1905 agreement with Delaware. 11-29-05

HEY, GUYS, DO YOU SMELL SMOKE?
Everyone knows the holiday tales about Frosty, the talking snowman, and Rudolph, the red-nosed flying reindeer. Some holiday stories, you just can’t make up. In what could be titled “The Night the Firefighters Set the Firehouse on Fire,” members of the Columbia Fire Co. 4 in Lambertville were hanging Christmas decorations on the large radio antenna pole atop their building and accidentally knocked it over, according to police and fire officials in the tiny New Jersey city along the Delaware River. The antenna hit overhead power lines and immediately knocked out electricity service to as many as 1,200 customers, including half of Lambertville and part of West Amwell Township. A Jersey Central Power & Light crew dispatched to the scene to restore power “discovered the roof of the fire station was engulfed in flames.” Firefighters from the burning station and neighboring communities including West Amwell, Raritan and New Hope, Pa., fought the fire, which caused moderate roof damage. There were no injuries, but the firehouse is temporarily unusable. Columbia Fire Company President Orville Tillett said there was a lesson to be learned: “We must all be very careful when putting up our holiday decorations, particularly in the area of live wires. Remember, ladders and other metal objects do conduct electricity which can cause fires and could cause severe injury or death.” 11-29-05

DUTCH RETAIL GIANT AGREES TO $1.1B SECURITIES FRAUD SETTLEMENT
Amsterdam-based Ahold has agreed to settle a huge class-action suit in Maryland for $1.1 billion. Two and a half years ago, the company disclosed fraud at its U.S. Foodservice subsidiary based in Columbia, Md. Investors began filing securities fraud suits against Ahold after it revealed that U.S. Foodservice overstated profits by hundreds of millions of dollars. The settlement, which requires the approval of U.S. District Judge Catherine C. Blake, will result in $1 to $1.30 per share distributed to shareholders. Anyone who bought shares of Ahold common stock between July 30, 1999 and Feb. 23, 2003 is eligible. Ahold will pay nearly $1 billion and its insurer $118 million. 11-29-05



Today's Decision Summaries

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FROM THE NEW JERSEY SUPREME COURT, TUESDAY, NOVEMBER 29, 2005
NO OPINIONS WERE RELEASED BY THE NEW JERSEY SUPREME COURT ON TUESDAY, NOVEMBER 29, 2005, AND NO OPINIONS ARE SCHEDULED FOR RELEASE ON WEDNESDAY, NOVEMBER 30, 2005.


APPROVED FOR PUBLICATION
ADMINISTRATIVE LAW
T.H. v. DIVISION OF DEVELOPMENTAL DISABILITIES
Appellate Division, A-6109-03T5, approved for publication November 29, 2005. (22 pages). Facts-on-Call Order No. 92744

N.J.A.C. 10:46-1.3 — which defines “developmental disability” in the same way as N.J.S.A. 30:6D-3a, except that the regulation requires qualifying functional limitations to result before the age of 22 — is not inconsistent with the statute. In this case, the record supported the decision of the Division of Developmental Disabilities that denied developmental disability services to the petitioner, who was over the age of 50 and who suffered from Asperger’s Syndrome.

NOT APPROVED FOR PUBLICATION
VERBAL THRESHOLD
MATTIA v. CAPONE
Appellate Division, A-3961-04T1, November 29, 2005, not approved for publication. (7 pages). Facts-on-Call Order No. 18882

Summary judgment for the defendant based on the N.J.S.A. 39:6A-8a verbal threshold under AICRA reversed and remanded for trial; reversal and remand were required in light of the New Jersey Supreme Court’s recent decisions in DiProspero v. Penn and Serrano v. Serrano, which held that §39:6A-8a does not include a serious-life-impact standard or a serious-injury standard; the plaintiff’s objective evidence was sufficient to raise a genuine issue of material fact as to whether his injuries to his lower back and left shoulder were permanent injuries under §39:6A-8a, and his photographs of the surgical scar on his left shoulder raised a genuine issue of material fact as to whether the scar was “significant” under §39:6A-8a.

EMPLOYMENT LAW
BOGGS v. PHILLIP S. VAN EMBDEN, P.C.
Appellate Division, A-1663-04T5, November 29, 2005, not approved for publication. (15 pages). Facts-on-Call Order No. 18883

Summary judgment for the defendant employer in an employment discrimination action alleging violations of the Family Leave Act and the Law Against Discrimination affirmed; the plaintiff legal secretary allegedly was terminated for poor work performance and for her attitude when she was confronted with issues of ethics and competence; contrary to the plaintiff’s arguments on appeal, the trial court (1) properly denied her motion to amend her complaint to state a claim for wrongful discharge in violation of a clear mandate of public policy because the source of the public policy was the FLA, which did not apply to either party, (2) properly dismissed her claim for handicap discrimination because, even if her gallbladder condition was a handicap under the LAD, there was no failure to accommodate her and no proof that her condition caused the defendant to discriminate against her, and (3) properly dismissed her claim for hostile work environment and racial harassment because, even if the Caucasian plaintiff was protected by the LAD due to her biracial son, there was insufficient proof that the defendant violated the LAD.

ESTATES AND TRUSTS
IN RE ESTATE OF FOX
Appellate Division, A-325-04T5, November 29, 2005, not approved for publication. (11 pages). Facts-on-Call Order No. 18885

Final judgment of the Probate Part that dismissed the son’s complaint seeking to probate the alleged will of the decedent mother because that will was the result of the son’s undue influence affirmed; the mother owned a hotel in Atlantic City, and in 1987 the son began to assist her with managing the hotel and her finances; even though the mother owned no property in New York, the son brought his mother to meet a New York attorney who had previously represented him, and in January 1988 she executed the draft will prepared by that attorney; the mother’s will disinherited one of her children and left no provision for the child of a daughter who predeceased the mother; the Probate Part properly determined (1) that a confidential relationship existed between the son and his mother, (2) that the circumstances surrounding the preparation of the will were suspicious, (3) that clear and convincing evidence was required to overcome the presumption of undue influence, and (4) that the son failed to make the required showing.

PARENT AND CHILD
BECK v. BECK
Appellate Division, A-3972-03T5, November 29, 2005, not approved for publication. (11 pages). Facts-on-Call Order No. 18887

Post-divorce-judgment order that set the defendant father’s child support obligation at $450 per week and that denied his cross-motion for a plenary hearing affirmed; the parties’ October 31, 1996 agreement fixed the father’s child support obligation at $1,200 per month for seven years, after which the obligation would be recalculated; after seven years had passed, the father, who was an attorney and who once had earned $229,000 per year, certified that he had been unemployed since August 7, 2003; the trial court properly concluded (1) that the father failed to present evidence sufficient to establish his claim that his clinical depression prevented him from obtaining a job comparable to the one he had left, (2) that there was no need for a plenary hearing, (3) that an annual income of $229,000 should be imputed to the father, and (4) that the father’s child support obligation could be calculated without using the shared-parenting worksheet.

ADMINISTRATIVE LAW
IN RE APPLICATION FOR RELIEF PURSUANT TO N.J.S.A. 33:1-12.18 FOR THE 2004-2005 LICENSE TERM
Appellate Division, A-4514-04T3, November 28, 2005, not approved for publication. (3 pages). Facts-on-Call Order No. 18880

Denial of the defendant company’s application for a new liquor license by the Director of the Division of Alcoholic Beverage Control due to lack of jurisdiction affirmed; the company failed to timely file an application for renewal of its liquor license with the municipal authority, and it failed to file its application for a new liquor license with the Director before the N.J.S.A. 33:1-12.18 deadline of September 28; under Cavallaro v. Division of Alcoholic Beverage Control, the Director lacks the authority to issue a liquor license when an application is filed after the September 28 deadline; the company could not rely on the doctrine of substantial compliance because that doctrine applies only when a timely application is filed.

HUSBAND AND WIFE
EDELL v. EDELL
Appellate Division, A-1695-02T5 and A-5953-03T5, November 28, 2005, not approved for publication. (80 pages). Facts-on-Call Order No. 18886

Judgment of divorce affirmed in part, reversed in part, and remanded, but appeal from the entry of a confidentiality order and confidentiality agreement relating to a settlement entered into by the plaintiff ex-husband in an action for his entitlement to a portion of a settlement in a Maryland lawsuit against the tobacco industry dismissed as moot; the Appellate Division (1) reversed the support awards and remanded for consideration of the awards based on the ex-husband’s monetary resources as a whole, (2) reversed and remanded the equitable distribution of the home equity loan, (3) affirmed in part, reversed in part, and remanded the equitable distribution of the IRA and the 1997 and 1998 tax liens, (4) reversed the 50/50 equitable distribution of repossession fees for a vehicle, (5) reversed the Family Part’s award of only $25,000 in attorney’s fees to the defendant ex-wife, and (6) affirmed the valuation by the parties’ joint expert of the ex-husband’s law firm and the expert’s formula for determining the work-in-progress valuation but reversed the calculation of the ex-wife’s share; the dispute as to the confidentiality order and agreement was moot because, under the settlement agreement that was the subject of the confidentiality order and agreement, the parties were not liable for the $250,000 liquidated damages penalty if the settlement’s terms were disclosed by a court, as the Appellate Division has done.

HUSBAND AND WIFE
WEIMER v. WEIMER
Appellate Division, A-5065-02T5, November 28, 2005, not approved for publication. (25 pages). Facts-on-Call Order No. 18884

Dual judgment of divorce affirmed in part, reversed in part, and remanded; the alimony award of $550 per week for eight years was remanded because the Family Part failed to set forth the reasons for its decision and failed to make findings of fact; there was a “similar lack of analysis” as to the child support award and the allocation of tuition costs; remand was required on the issue of equitable distribution because the Family Part failed to make specific findings of fact as to the assets available and the value of each asset; the provisions regarding marital debt also had to be reversed because some of the debt could not be characterized as marital in light of the Family Part’s findings; there was no basis for the Family Part to make the defendant ex-husband’s visitation contingent on his participation in psychotherapy; the record supported the Family Part’s award of an additional $40,000 in attorney’s fees to the plaintiff ex-wife.

PARENT AND CHILD
LLEWELLYN v. LLEWELLYN
Appellate Division, A-4063-04T1, November 28, 2005, not approved for publication. (17 pages). Facts-on-Call Order No. 18881

Provision of a 2005 post-divorce-judgment order that failed to make the award of child support to the defendant mother retroactive to the date in September 2003 on which she first moved for child support reversed and remanded; the parties’ 2000 consent order provided for their three children to reside in the custody of each party during alternate weeks; the plaintiff father moved to enforce the 2000 order after two of the children stopped going to his home in 2003, and the mother responded with her September 2003 motion; an October 2003 order dismissed the parties’ motions without prejudice pending an expert’s re-evaluation and provided that, if the motions were refiled, they would be “treated as if filed on the original filing date”; the mother moved for retroactive child support after the parties failed to amicably resolve their parenting dispute; the October 2003 order had preserved the mother’s right to seek retroactivity, and the denial of retroactivity was an abuse of discretion because there was no reason to exonerate the father from supporting the two children between September 2003 and 2005.


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