NEW JERSEY LAWYER

DAILY BRIEFING      11/04/2005


News Briefs

HIGH COURT TO CONSIDER CEPA AND MEGAN’S LAW CASES
The New Jersey Supreme Court is scheduled to hear arguments Monday in a whistleblower case and a Megan’s Law sex-offender registry issue. The court will consider whether a plaintiff’s original complaint alleging violations of the Conscientious Employee Protection Act, barred by the one-year statute of limitations, could be revived by amending the complaint to add claims under the Law Against Discrimination. The question before the court in Notte v. Merchants Mutual Insurance Co. is whether Rule 4:9-3 allows the plaintiff to add discrimination claims that could be deemed timely filed, only if they “relate back” to the filing date of the original complaint. The justices also will hear arguments in State v. Gyori, Jr., which focuses on whether a sex offender required to register with authorities is guilty of a separate crime for failing to verify his address. 11-3-05

NEW JERSEY PULLS OUT OF NATIONAL MOCK TRIAL
After 18 consecutive years of appearances and two championships at the National High School Mock Trial competition, the New Jersey State Bar Foundation has decided to withdraw. In May, the hosts of the competition in Charlotte, N.C., adjusted the schedule so the New Jersey champion, Torah Academy of Bergen County, could compete, working around the team’s observance of the Sabbath on Saturday. Saying such changes create logistical problems and put the scoring system out of balance, the national governing board last month voted to prohibit amended schedules in the future. “We withdraw unless they make a decision to provide an accommodation,” said John J. Henschel, foundation president. The national chairman said a reversal of the board’s decision is unlikely in the near future. For the full story, see the Nov. 7 New Jersey Lawyer. 11-3-05

EMINENT DOMAIN LIMIT ON BOGOTA BALLOT
Voters in Bogota will get a chance to voice their opinion Tuesday on whether their town’s current eminent domain powers should be limited. Local officials and candidates throughout Bergen County towns have been jumping on the anti-eminent domain bandwagon since the U.S. Supreme Court’s decision in Kelo v. New London, which supported local government’s right to take private property even for a private development, such as a shopping mall or office complex. If the referendum passes, limiting eminent domain to direct public needs — such as roads, utilities or medical facilities — won’t be automatic. It would direct the mayor and council to pass an ordinance. In Paramus, the borough council already passed such an ordinance. It’s conceivable such local efforts might prod the legislature into approving similar restrictions during the upcoming lame-duck session. 11-3-05

$5.4 MILLION AWARDED FOR STROKE
A Middlesex County jury has awarded a North Brunswick man $5.48 million in a medical malpractice suit in which he claimed a doctor failed to prescribe the correct medication to prevent strokes. Mark Hoffman, now 49, claimed that after he was diagnosed with a heart condition in 1998, cardiologist Alexander Karpenos should have prescribed a blood-thinning medication. In 1999 he had a stroke caused by a clot, which left him permanently disabled and suffering from cognitive and memory impairment. The jury award was $5.4 million, reduced by 20 percent due to a pre-existing condition, and the pre-judgment interest was about $1.1 million, for a net judgment of $5.48 million. William O. Crutchlow of Eichen Levinson in Edison was Hoffman’s attorney, and Michael L. Lazarus of Lazarus & Billek in Edison represented the doctor at the trial before Judge Mathias E. Rodriguez. 11-3-05

MORE COURT SHOWS HEADED TO TV
Court television aficionados take note. With seven syndicated shows — such as “Divorce Court” and “Judge Alex” — already running, two more are in development. One is actually an English version of Telemundo’s “La Corte de Familia,” hosted by Cristina Perez. Twentieth Television, the show’s syndicator, says it will use Perez for the English version as well. Former Cleveland municipal judge and civil litigator Lynn Toler is slated for the other show. She hosted “Power of Attorney” in 2001. 11-3-05



Today's Decision Summaries

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FROM THE NEW JERSEY SUPREME COURT, THURSDAY, NOVEMBER 3, 2005
NO OPINIONS WERE RELEASED BY THE NEW JERSEY SUPREME COURT ON THURSDAY, NOVEMBER 3, 2005, AND NO OPINIONS ARE SCHEDULED FOR RELEASE ON FRIDAY, NOVEMBER 4, 2005.


APPROVED FOR PUBLICATION
REAL PROPERTY
MICHEVE, L.L.C. v. WYNDHAM PLACE AT FREEHOLD CONDOMINIUM ASSOCIATION
Appellate Division, A-1014-04T2, approved for publication November 3, 2005. (8 pages). Facts-on-Call Order No. 92716

A condominium association’s requirement that a nonrefundable capital contribution be paid whenever a transfer of title to a condominium unit occurs violates Condominium Act provisions that require that common expenses for maintenance of a condominium’s common elements be charged to all unit owners.

SEXUAL OFFENSES
STATE v. GILCHRIST
Appellate Division, A-4561-04T5, approved for publication November 3, 2005. (13 pages). Facts-on-Call Order No. 92717

In a sexual assault case, the State did not have to provide the defendant with a photograph of the adult female that he allegedly raped because denying the defendant’s request for the photograph did not violate his constitutional right to confrontation or his right to discovery under Rule 3:13-3(c).

NOT APPROVED FOR PUBLICATION
INSURANCE
LIBERTY SURPLUS INSURANCE CORP., INC. v. NOWELL AMOROSO, P.A.
Appellate Division, A-4756-03T1, November 3, 2005, not approved for publication. (16 pages). Facts-on-Call Order No. 18761

Summary judgment for the plaintiff insurer on its claim for a declaratory judgment supporting its denial of malpractice insurance coverage to the defendant law firm affirmed; after the law firm was sued by clients in a legal malpractice action for failing to file a complaint for tortious interference with prospective economic advantage before the statute of limitations expired, the insurer denied coverage under its claims-made legal malpractice insurance policy based on an exclusion for malpractice that occurred before the policy’s effective date if the law firm had a reasonable basis to believe when it applied for coverage that it had breached a professional duty or that a claim would be made against it; the law firm applied for coverage following one trial court and two Appellate Division decisions in the tortious interference action that indicated that the statute of limitations had been missed; under the “unique” circumstances of this case, the law firm could not have thought that there was no reasonable basis to believe that it had not breached a professional duty.

EMINENT DOMAIN
NEW JERSEY TURNPIKE AUTHORITY v. MICHAEL FELDMAN ASSOCIATES, L.L.C.
Appellate Division, A-6032-03T1, November 3, 2005, not approved for publication. (9 pages). Facts-on-Call Order No. 18762

Final judgment fixing just compensation for property condemned by the plaintiff New Jersey Turnpike Authority affirmed; the defendant property owners argued that their property should have been valued as a corner lot that was bordered by and had access to Route 130 and Cedar Lane; the defendants further argued that, if the property had been valued as having access to both roadways, compensation would have been greater than the $580,000 plus interest that had been awarded; the trial court properly ruled that the property had lost access to Cedar Lane as a result of a prior taking.

DRUNK DRIVING
STATE v. TUTOLO
Appellate Division, A-1825-04T1, November 3, 2005, not approved for publication. (9 pages). Facts-on-Call Order No. 18763

Law Division order that granted the defendant’s petition for post-conviction relief, that vacated her guilty plea to driving while intoxicated, and that remanded the matter to the Municipal Court for trial affirmed; the plaintiff, appearing pro se, had pleaded guilty in the Municipal Court, and the Municipal Court later denied her petition for post-conviction relief to vacate the plea due to the lack of a factual basis for the plea; the Appellate Division agreed with the Law Division’s determination on de novo review that there was an adequate factual basis for the plea, but it disagreed with the Law Division’s conclusion that the plea was not voluntary — for the Municipal Court’s failure to advise the defendant of the fundamental rights that she was waiving — because that normally is not required in the Municipal Courts; nonetheless, although it disagreed with the Law Division’s rationale, the Appellate Division concluded that the plea in this case did not satisfy constitutional requirements because the Municipal Court had not elicited a knowing waiver of the defendant’s right to counsel.

HUSBAND AND WIFE
RIEGER v. JOHANSON
Appellate Division, A-2489-04T1, November 3, 2005, not approved for publication. (4 pages). Facts-on-Call Order No. 18764

Order denying the plaintiff ex-wife’s motion to enforce certain provisions of a judgment of divorce affirmed; the judgment of divorce required the defendant ex-husband to turn over to the ex-wife a vehicle and unidentified personal property; the ex-husband gave possession of the vehicle to the ex-wife’s attorney; the ex-wife filed the motion to enforce the judgment of divorce because she was dissatisfied with the condition of the vehicle and because the ex-husband had not turned over the personal property; the Family Part properly denied her motion (1) as to the vehicle because there was no evidence that the court had ordered or that the ex-husband had agreed that the vehicle would be turned over in “pristine condition” and (2) as to the personal property because the judgment of divorce did not describe the personal property and because the ex-husband denied that the property ever was in his possession.

HUSBAND AND WIFE
EGAN v. EGAN
Appellate Division, A-2124-03T1, November 3, 2005, not approved for publication. (4 pages). Facts-on-Call Order No. 18765

Provisions of a judgment of divorce that awarded the plaintiff ex-wife permanent alimony of $190 per week and that required the defendant ex-husband to maintain a $150,000 life insurance policy to cover his alimony obligation and an order that awarded the ex-wife $34,925 in attorney’s fees affirmed; as to the alimony award, the Appellate Division rejected the ex-husband’s argument — that the Family Part had erred by awarding the ex-wife permanent alimony because the award was barred by her pendente lite and post-divorce cohabitation in a relationship that was “just like a marriage” — in the absence of any evidence that this asserted marital fault “negatively affected the economic status of the parties,” as required by Mani v. Mani; as to the attorney’s fee award, the Family Part’s findings were well supported and reflected the proper application of the standards set forth in Williams v. Williams, and its “evaluative determinations” were well within its discretion to make.

HUSBAND AND WIFE
SCHWARTZ v. SCHWARTZ
Appellate Division, A-6948-03T5, November 2, 2005, not approved for publication. (15 pages). Facts-on-Call Order No. 18760

Award of permanent alimony to the plaintiff ex-wife vacated and remanded; the trial judge abused his discretion by awarding permanent alimony because he did not explain (1) why the parties’ nine-year marriage was of sufficient length to warrant permanent alimony in light of the ex-wife’s age, education, and employment history, (2) why an award of limited duration alimony, rehabilitative alimony, or a combination of the two was inappropriate, and (3) how the ex-wife was distinguishable from other spouses who were entitled to only limited or rehabilitative alimony; the trial judge stated that he was “unable or unwilling” to “speculate or predict” the parties’ economic future, but the Appellate Division concluded that this was an insufficient reason for awarding permanent alimony to the ex-wife under the circumstances of this case; remand was required to determine the appropriate form of alimony and to modify the amount, if necessary.

FROM THE ADMINISTRATIVE AGENCIES
SPECIAL EDUCATION
P.C. v. HOPEWELL VALLEY REGIONAL BOARD OF EDUCATION
OAL Docket No. EDS 6009-05, Agency Docket No. 2006-10314, Final Agency Decision: October 3, 2005, released for publication October 14, 2005. By Stein, ALJ. (12 pages).

The administrative law judge granted the respondent Board of Education’s motion for summary decision on the petitioner parents’ due process petition for classification and for reimbursement for the unilateral placement of their son at an academy in Massachusetts. The son attended high school at a private school in New Jersey, transferred to Simon’s Rock College of Bard in Massachusetts for 11th grade, and was suspended in January 2004 for drug use. The parents placed their son at the academy for a 15-month intensive residential treatment program in March 2004. In April 2004, the parents registered their son in the Board’s district for the first time and demanded reimbursement for the academy placement. The ALJ found that the classification issue was moot because the son had graduated from high school and was attending college, and he concluded that the undisputed fact that the son had never received special education or related services from the Board was fatal to the petitioners’ reimbursement claim under 20 U.S.C. §1412(a)(10)(C)(ii) and N.J.A.C. 6A:14-2.10(b).

SPECIAL EDUCATION
L.F. v. MORRIS BOARD OF EDUCATION
OAL Docket No. EDS 11681-04, Agency Docket No. 2005 9404, Final Agency Decision: September 26, 2005, released for publication October 14, 2005. By McKeown, ALJ (temporarily assigned). (14 pages).

The administrative law judge granted the respondent Board of Education’s motion for summary decision and dismissed the petitioner mother’s due process request for reimbursement for her unilateral placement of her son at Discovery Academy, which is a residential therapeutic boarding school in Utah. On May 18, 2004, the 17-year-old son was first determined to be eligible for special education, and the parties agreed to an individualized education program. However, the mother placed her son in the Ascent Wilderness Intervention Program in June 2004 after he ran away for a week, and she notified the Board of that placement on August 10, 2004. On August 17, 2004, the mother notified the Board that, based on expert advice, she had placed her son at Discovery Academy and that she expected the Board to pay for the placement. The mother was not entitled to reimbursement (1) because the Board had not had a “meaningful opportunity” to implement the IEP, (2) because the mother had not had a “meaningful opportunity” to conclude that the Board could not provide for her son’s needs or that her son would not succeed under the IEP, and (3) because the unilateral placement therefore could not be attributed to the Board’s failure to offer the son a free appropriate public education.

WORKERS’ COMPENSATION
INGRAM v. BLOOMINGDALE BOARD OF EDUCATION
Claim Petition Nos. 1998-22367 and 2001-27271, Final Agency Decision: September 12, 2005, released for publication October 11, 2005. By Tuber, J.W.C. (18 pages).

The judge of compensation concluded that the petitioner teacher’s orthopedic disability was 20 percent of permanent partial disability and dismissed her claim for psychiatric disability because she failed to meet her burden of proof. The petitioner was physically injured when she fell while performing a demonstration for a class at the request of a gym teacher, and she also claimed that she developed a psychiatric disability due to “harassment” by her superiors. As to orthopedic disability, the judge considered the petitioner’s “credible orthopedic complaints” and the objective medical evidence, and he determined that the award consisted of approximately 10 percent for the petitioner’s left shoulder impingement syndrome and approximately 25 percent for injuries to her left hand. As to psychiatric disability, the judge found it “clear” that the respondent Board of Education’s observation of the petitioner in her classroom and the requests for her grade books were not intended to harass the petitioner but rather to improve the quality of education in its district and that this misinterpretation of the Board’s intentions undermined the opinion of the petitioner’s psychiatrist.


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