NEW JERSEY LAWYER

DAILY BRIEFING      12/16/2005


News Briefs

SOMERSET JUDGE CHARGED WITH DWI
Superior Court Judge Rosemary Ruggiero Williams was charged with drunken driving after she was stopped by Hillsborough police Tuesday night. Police said Williams was stopped after another driver called to report a car being driven erratically. A breath test showed a blood-alcohol content of 0.16, police said. Williams is general equity presiding judge in the vicinage covering Somerset, Hunterdon and Warren counties. In 2001, the Supreme Court suspended her from the bench for three months without pay for initiating repeated public confrontations one night the previous year with her former lover. A Jan. 10 hearing on the traffic charge is scheduled in Hillsborough Municipal Court. If convicted, Williams could face further disciplinary action, as five state judges have been sanctioned by the court in the past for drunken driving. 12-15-05

ETHICS COMMITTEE CAUTIONS ON RELEASE OF AIDS DATA
In response to a question from a not-for-profit group that receives public and private funding to provide legal assistance to people with disabilities, the Advisory Committee on Professional Ethics has urged a cautious approach regarding disclosure of AIDS-related information to a governmental funding source. The committee noted the legal-aid group requires potential clients sign certain consent forms before getting a lawyer. The forms permit disclosure to a county HIV consortium of a number assigned to them that conceivably could be used for identification purposes. The consortium also requires answers to personal questions. The ethics committee — in its Opinion 700 — noted that in the absence of a valid legal statute or formal rule, an attorney or lawyer organization may not disclose protected information. It also said the receipt of legal help can’t be conditioned on whether the potential client signs the form. 12-15-05

AOC ISSUES ANNUAL DOMESTIC VIOLENCE REPORT
The just-released annual report by the Administrative Office of the Courts on how domestic violence is being handled in New Jersey shows that in 2004 such complaints decreased nearly 4 percent, from 44,316 in 2003 to 42,611. There were 9,440 domestic violence contempt filings last year compared to 9,663 in 2003 — slightly more than a 2 percent drop. The full report, including statistics from the 21 counties, is on the judiciary’s website, njcourtsonline.com. 12-15-05

WANAQUE TEEN-AGERS HAD BETTER MIND THE CLOCK
In Wanaque Borough in Passaic County, some parents could end up shoulder to shoulder with their offspring picking up trash in a park. Under a new curfew, anyone under age 18 must be home by 10 p.m. The borough council just passed an ordinance creating the curfew, threatening fines from $100 to $1,000 and community service, possibly for both teen-agers and their parents. Wanaque Police Chief Jack Reno has pledged to clear the streets and parks of youth who have no work or school reasons for being out after 10 p.m. The council, at the chief’s urging, took advantage of a statute signed into law in January, allowing municipalities to impose such curfews. It’s anticipated many communities may go that route. “It gives us a tool to deal with those hanging out in our parks and in front of our stores to no discernible purpose,” Reno said. Playing hooky is a no-no too: The curfew also has a daytime provision prohibiting anyone under 18 who’s supposed to be in school to be in any public place during school hours. 12-15-05

‘PARENTAL ALIENATION,’ BAD NEWS FOR KIDS IN THE MIDDLE
In some high-conflict divorces, parents use the children to take out their anger on each other. One variation of this is called parental alienation in which one parent virtually brainwashes the children into hating the other. For family lawyers and judges, it’s one stomach-turning aspect of dealing with bitter marital breakups, and they try to head it off when they can. Critics of the term say it’s just a ploy in custody disputes, but lawyers and judges say that while it’s rare, it does happen. The question is what to do about it. For the full story, see the Dec. 19 New Jersey Lawyer. 12-15-05



Today's Decision Summaries

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FROM THE NEW JERSEY SUPREME COURT, THURSDAY, DECEMBER 15, 2005
NO OPINIONS WERE RELEASED BY THE NEW JERSEY SUPREME COURT ON THURSDAY, DECEMBER 15, 2005, AND NO OPINIONS ARE SCHEDULED FOR RELEASE ON FRIDAY, DECEMBER 16, 2005.


APPROVED FOR PUBLICATION
ARBITRATION
NASCIMENTO v. KING
Appellate Division, A-2472-04T1, approved for publication December 15, 2005. (12 pages). Facts-on-Call Order No. 92765

There was substantial compliance with the 30-day time limit under Rule 4:21A-6(b)(1) for serving a post-arbitration demand for a trial de novo where, well within the 30-day time limit, the defense attorney’s secretary mistakenly mailed a deposition notice instead of the de novo demand and where, five days after the 30-day time limit elapsed, the plaintiff’s attorney called the court, was told that the demand had been timely filed, obtained a copy of the demand and the certification of service from the court, but nonetheless moved to confirm the arbitration award due to lack of service.

TORTS
ORTIZ v. JOHN D. PITTENGER BUILDER, INC.
Law Division, Monmouth County, MON-L-196-03 and MON-L-199-03, approved for publication December 12, 2005. (13 pages). Facts-on-Call Order No. 92766

As a matter of first impression, the defendant landlord’s alleged negligent maintenance of the plaintiffs’ residence — which caused a fire that burned their 5-year-old relative to death — created a viable emotional distress claim where the plaintiffs had been aware that the relative was in the fire, even though they had not undergone psychological counseling or had not actually seen the relative burning.

PARENT AND CHILD
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. L.V.
Chancery Division, Family Part, Passaic County, FN-16-96-05, approved for publication December 12, 2005. (10 pages). Facts-on-Call Order No. 92767

A new mother who tested positive for HIV during her pregnancy did not commit an act of abuse or neglect by refusing to take medications that were prescribed during her pregnancy and that could have reduced the risk of transmitting the virus to her baby at or after birth. The mother’s right to make her decision was protected by the constitutional right to privacy.

NOT APPROVED FOR PUBLICATION
VERBAL THRESHOLD
HUDSON v. ELLIOTT
Appellate Division, A-1469-04T1, December 15, 2005, not approved for publication. (9 pages). Facts-on-Call Order No. 18965

Summary judgment for the defendants based on the N.J.S.A. 39:6A-8a verbal threshold reversed and remanded; the parties’ accident occurred before AICRA took effect and when the plaintiff was 15 years old; under Oswin v. Shaw, (1) the plaintiff’s medical evidence satisfied the objective prong by demonstrating that she had sustained a “significant limitation of use” of her knee as a result of the accident where, despite two knee surgeries, she continued to experience pain and her knee “often” popped “out of place” and (2) the plaintiff’s affidavit satisfied the second prong by demonstrating that her injuries had a serious impact on her life where she could not walk, bend, or sit for extended periods, could not wear high heels, could not attend class without being distracted or without missing time, and could not play softball.

CIVIL PROCEDURE
POTTER v. STATE FARM INDEMNITY CO.
Appellate Division, A-93-04T1, December 15, 2005, not approved for publication. (11 pages). Facts-on-Call Order No. 18967

Summary judgment for the defendant insurer in a breach of contract action based on res judicata and the six-year statute of limitations reversed and remanded; pursuant to the December 1, 1997 settlement of a property damage claim between the insurer and the claimants, the insurer agreed to indemnify the claimants for “any and all” cross-claims in the matter; on December 17, 1998, the plaintiff expert obtained a judgment against one of the claimants for appraisal services that he provided on the insurance claim, and the insurer denied that claimant’s demand for indemnification on February 8, 1999; the claimants later assigned their rights under the settlement to the expert, who filed this action on December 2, 2003 for breach of the indemnity provision in the settlement; res judicata did not apply because the issues regarding the alleged breach of contract were distinct from the issues faced by the court when it entered judgment against one of the claimants; this action also was not barred by the entire controversy doctrine or by collateral estoppel, and the statute of limitations should have been calculated from December 17, 1998 or February 8, 1999 rather than December 1, 1997.

DRUNK DRIVING
STATE v. WARD
Appellate Division, A-3967-04T3, December 15, 2005, not approved for publication. (6 pages). Facts-on-Call Order No. 18966

Conviction of driving while intoxicated affirmed; two State Troopers found the defendant asleep at the wheel of his car with the engine running while it was parked on the side of the Garden State Parkway at 11:30 p.m.; the defendant’s speech was slurred, his answers to questions were “unintelligible,” his breath smelled of alcohol, his appearance was “flushed,” his nose was runny, and his eyes were watery and red; after exiting the car, the defendant leaned on it while walking, swayed when he stood, and performed poorly on three field sobriety tests; the defendant’s argument that the results of his Breathalyzer tests were unreliable did not have to be addressed because the observations of the testifying Trooper alone were sufficient to sustain the conviction, even though the Trooper was not able to recall “minute details with particularity.”

PARENT AND CHILD
ESPOSITO v. ESPOSITO
Appellate Division, A-3298-04T1, December 15, 2005, not approved for publication. (3 pages). Facts-on-Call Order No. 18968

Post-divorce-judgment order that denied the defendant father’s requests to transfer residential custody of the parties’ two sons to him and to enroll the sons in the Highland Park school district affirmed substantially for the reasons expressed by the Family Part in its “thoughtful and thorough” decision; the sons attended public school in Highland Park until the plaintiff mother remarried, moved to Maplewood in 2001, and enrolled the sons in the Maplewood-South Orange school district; the father made his requests after one son experienced behavioral problems in his new school; the trial court conducted a plenary hearing, heard testimony from the parties and a court-appointed psychologist, and concluded that the father had not demonstrated a substantial change in circumstances to warrant modifying the existing custody order.

COMMERCIAL TRANSACTIONS
JERSEY MARINE INDUSTRIES, INC. v. CANYON CLASSICS OFFSHORE YACHTS, INC.
Appellate Division, A-3004-03T3, December 14, 2005, not approved for publication. (14 pages). Facts-on-Call Order No. 18963

Judgment for the fourth-party plaintiff lender in an action alleging the failure to pay a $60,000 promissory note, conversion, fraud, deceptive business practices, and unjust enrichment affirmed in part, reversed in part, and remanded; as to the fourth-party defendant yacht builder and two of its officers, the claims for nonpayment of the note and for unjust enrichment failed because the note was usurious under Connecticut law, which controlled the note; as to the yacht builder, the claims for fraud and deceptive business practices failed because there was no evidence of misrepresentation to the lender or reliance, and the claim for conversion failed because the lender never owned the yacht that was constructed and later sold; as to the fourth-party defendant president of the yacht builder, the compensatory damages award against him for fraudulent conduct had to stand because he did not perfect his appeal, but the lender could not recover punitive damages; as to the fourth-party defendant purchaser of the yacht and his financial backers, the conversion claims against them were properly dismissed.

CRIMINAL TRIALS
STATE v. STANCIL
Appellate Division, A-1388-04T4, December 14, 2005, not approved for publication. (9 pages). Facts-on-Call Order No. 18964

Conviction of second-degree robbery affirmed but the matter remanded for resentencing; as to the conviction, the trial court did not err by dismissing one of the 14 empaneled jurors who, after the opening statements, was overheard admitting that she had been convicted of a crime, contrary to her assertion during voir dire; the trial court “simply reduced the number of available alternate jurors,” and the defendant’s right to a fair trial before an impartial jury was not impugned; as to the sentence, the trial court properly decided to sentence the defendant to an extended term as a persistent offender, but the imposition of an 18-year term, which exceeded the 15-year presumptive sentence within the extended-term range, required resentencing pursuant to State v. Natale and State v. Abdullah.


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