NEW JERSEY LAWYER

DAILY BRIEFING      12/02/2005


News Briefs

CLIENT PROTECTION FUND ANNUAL TAKE TOPS $1M
The New Jersey Lawyers’ Fund for Client Protection, which reimburses clients for losses caused by dishonest attorneys, has set a record by recovering more than $1 million this year. Kenneth J. Bossong, the fund’s director, said the amount recovered from dishonest lawyers and other sources is the highest since the fund’s creation in 1969. The previous record was $984,000 in 2001. Bossong noted the amount is likely to increase before year-end. 12-1-05

BIRTH-CONTROL PATCH SUITS DECENTRALIZED
The New Jersey Supreme Court has determined that personal injury cases brought against the maker of a birth-control patch don’t rise to the level yet deserving centralized case management as a mass tort like Vioxx and Accutane. The high court turned down an application by Jerrold S. Parker of Parker & Waichman in Newark seeking consolidation of all pending and future cases. The firm has filed lawsuits in both state and federal court against Ortho-iiMcNeil, a subsidiary of Johnson & Johnson. The Ortho Evra patch has been associated with potentially fatal side effects including blood clots and strokes. 12-1-05

CREATIVE MARRIAGE-CITIZENSHIP SCAM DISMANTLED
Operation Newlywed Game, a federal investigation into a sophisticated southern California marriage scam that charged $60,000 in exchange for a fake bride or groom — and a shot at U.S. citizenship — has resulted in 44 indictments in California. Earlier this week, 11 people were arrested in connection with the scheme, which federal authorities said targeted Chinese and Vietnamese nationals. Virginia Kice of U.S. Immigration and Customs Enforcement, said, “Marriage fraud is not a new phenomenon but clearly this scheme was one of the most ambitious and creative we’ve ever encountered.” The alleged perpetrators provided fake wedding photographs, bogus tax returns and even love letters. Charges include conspiracy, misuse of visas and marriage fraud. 12-1-05

PHARMACISTS REBUFF ILLINOIS RULE ON MORNING-AFTER PILLS
The state of Illinois requires pharmacies that dispense contraceptives approved by the Food and Drug Administration to fill prescriptions for emergency birth control, commonly called the “morning after” pill. But four Walgreens pharmacists in the St. Louis area have refused to fill the prescriptions, saying they’re exercising their religious or moral objections. Walgreens responded by putting the four on unpaid leave. So far, six other pharmacists have sued over the rule imposed in April, contending it forces them to violate their religious beliefs. Many of the suits were filed by Americans United for Life, a public-interest law firm in Chicago. The state could revoke the license of both a pharmacy and the store’s chief pharmacist if they don’t comply with the regulation. 12-1-05

JUDGE LIMITS PRAYERS IN INDIANA LEGISLATURE
The speaker of the Indiana House of Representatives is barred from mentioning Jesus Christ or endorsing any religion in prayers at the beginning of legislative sessions. While U.S. District Judge David Hamilton didn’t ban prayers completely, he ended a 188-year tradition when he ordered that any person chosen to give the invocation must be instructed that it must not advance one faith or be used to convert listeners. The American Civil Liberties Union sued the state, contending the prayers overwhelmingly promoted Christian values to the exclusion of other beliefs. 12-1-05



Today's Decision Summaries

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FROM THE NEW JERSEY SUPREME COURT, THURSDAY, DECEMBER 1, 2005
THE FOLLOWING OPINIONS WERE RELEASED BY THE NEW JERSEY SUPREME COURT ON THURSDAY, DECEMBER 1, 2005:

LAW AGAINST DISCRIMINATION
ALLIANCE FOR DISABLED IN ACTION, INC. v. RENAISSANCE ENTERPRISES, INC.
New Jersey Supreme Court, A-79/88, December 1, 2005. (5 pages). Facts-on-Call Order No. 92749

In a one-sentence opinion, the New Jersey Supreme Court affirmed substantially for the reasons expressed by the Appellate Division in its opinion reported at 371 N.J. Super. 409 (2004). In an action arising from a residential condominium construction project, the plaintiff’s claims alleging violations of the Law Against Discrimination were not barred by the statute of limitations, the project was not exempt from the requirements of the Barrier Free Subcode, and the local construction official was entitled to summary judgment because there was no proof that he had a discriminatory intent or motive.

LAW AGAINST DISCRIMINATION
ALLIANCE FOR DISABLED IN ACTION, INC. v. CONTINENTAL PROPERTIES
New Jersey Supreme Court, A-87, December 1, 2005. (5 pages). Facts-on-Call Order No. 92750

In a one-sentence opinion, the New Jersey Supreme Court affirmed substantially for the reasons expressed by the Appellate Division in its opinion reported at 371 N.J. Super. 398 (2004). In an action arising from a residential housing construction project, the plaintiff’s claims alleging violations of the Law Against Discrimination were not barred by the statute of limitations pursuant to the continuous violation doctrine, and summary judgment was properly granted to the defendant architect and the defendant engineer.

NO OPINIONS ARE SCHEDULED TO BE RELEASED BY THE NEW JERSEY SUPREME COURT ON FRIDAY, DECEMBER 2, 2005.



APPROVED FOR PUBLICATION
 
NO OPINIONS APPROVED FOR PUBLICATION WERE RELEASED BY THE APPELLATE DIVISION ON THURSDAY, DECEMBER 1, 2005.

NOT APPROVED FOR PUBLICATION
WORKERS’ COMPENSATION
CONQUEST-BENSON v. CAMDEN BOARD OF EDUCATION
Appellate Division, A-6902-03T3, December 1, 2005, not approved for publication. (9 pages). Facts-on-Call Order No. 18898

Division of Workers’ Compensation order that denied the defendant employer’s motion to modify the amount of temporary disability benefits awarded to the petitioner employee and that granted the employee’s cross-motion for penalties, interest, and attorney’s fees affirmed; the employee was a school security officer who was injured when she fell down a flight of stairs; the employer conceded that the employee was entitled to $36,200 of the $46,440 awarded, but it refused to pay any of the award, asserting that the employee was not entitled to her full salary for the summer; however, the employee was entitled to temporary disability benefits based on her regular school-year salary pursuant to Outland v. Monmouth-Ocean Educ. Service Comm’n because she had worked during previous summers, because she had planned to work during future summers, and because, before her injury, she had been ready, willing, and able to work during the summer; in light of the employer’s unreasonable withholding of $36,200, the cross-motion was properly granted under N.J.S.A. 34:15-28.1.

ATTORNEY’S FEES
SITAR CO. v. 222 REALTY, INC.
Appellate Division, A-5010-03T1, December 1, 2005, not approved for publication. (12 pages). Facts-on-Call Order No. 18899

Award of attorney’s fees to the defendant commercial property owner in a real estate commission dispute with the plaintiff broker affirmed as modified; in a prior appeal, the Appellate Division ruled in favor of the various defendants and remanded for calculation of attorney’s fees; on remand, the owner sought $457,237 in fees, but the trial court awarded it only $275,894 based on the reasonableness standard of a “loser pays” fee-shifting provision in the parties’ commission contract and the factors of Rule of Professional Conduct 1.5; contrary to the broker’s argument on appeal, the trial court properly exercised its discretion when it declined to reduce the fee award by apportioning the legal billings among all of the defendants represented by the same defense counsel; however, the Appellate Division enhanced the fee award by an additional $56,698 for the owner’s litigation costs and attorney’s fees for prosecuting the fee application.

JURISDICTION
STEFANSKY v. LaGAMBA
Appellate Division, A-6265-03T1, December 1, 2005, not approved for publication. (12 pages). Facts-on-Call Order No. 18900

Dismissal of the plaintiff financial consultant’s breach of contract and fraud claims due to lack of personal jurisdiction over the two defendant corporations and the two defendant officers affirmed; the contract for the plaintiff’s services was made by fax and mail; the plaintiff lived in New Jersey; one corporation was based in Florida, the other was based in Nevada, neither corporation had an office in New Jersey, and neither officer lived in or owned property in New Jersey; there was no personal jurisdiction (1) because the plaintiff’s performance of the contract in New Jersey was not purposeful action by the defendants to avail themselves of the protections of New Jersey law or to affect commerce in New Jersey, (2) because the claim on one corporation’s Web site that it was licensed to ship to all 50 states was not sufficient to support jurisdiction, and (3) because the defendants’ actions during the contract negotiations did not satisfy the minimum contacts requirement.

CONTRACTS
VESCOM STRUCTURES, INC. v. ENGINEERED FRAMING SYSTEMS, INC.
Appellate Division, A-396-04T5, November 30, 2005, not approved for publication. (12 pages). Facts-on-Call Order No. 18896

Summary judgment against the defendant subcontractor in the plaintiff flooring company’s action for payment for materials it provided for a construction project affirmed; an August 2002 purchase order obligated the subcontractor to pay $769,000 for the materials, but the subcontractor paid only $192,000; the plaintiff sued and then negotiated a July 2003 agreement with the subcontractor under which the subcontractor would be released from all claims if the plaintiff settled with the defendant general contractor or the defendant insurer; this action later was consolidated with other actions arising from the project; contrary to the subcontractor’s arguments on appeal, the trial court properly determined (1) that the July 2003 agreement was not a new superseding contract, (2) that the subcontractor’s delay in paying was unreasonable as a matter of law, and (3) that its order should be certified as final because it was not improper to separate the issue of the subcontractor’s contractual duty to the plaintiff from the other issues presented in the consolidated litigation.

PARENT AND CHILD
DIMITRO v. DIMITRO
Appellate Division, A-3196-03T3, November 30, 2005, not approved for publication. (21 pages). Facts-on-Call Order No. 18897

Post-divorce-judgment orders that reduced the defendant father’s child support obligation, that established the parties’ responsibilities for the college expenses of their children, that denied the plaintiff mother’s request for reimbursement of other expenses, and that awarded attorney’s fees to the father affirmed in part, reversed in part, and remanded; as to child support, the father’s children from his remarriage constituted changed circumstances, but resolving the issue of the amount of his obligation required discovery and possibly a hearing; as to attorney’s fees, the trial court failed to relate the factors governing fee awards to the parties’ dispute; as to the remaining issues, the trial court’s failure to provide reasons for its rulings pursuant to Rule 1:7-4 sufficiently hampered appellate review to require remand.

CRIMINAL TRIALS
STATE v. WILLIAMS
Appellate Division, A-367-04T3, November 30, 2005, not approved for publication. (5 pages). Facts-on-Call Order No. 18895

Convictions on six summonses for violating a municipal ordinance that regulates the hours of operation for businesses affirmed; in the Municipal Court, a municipal employee, who was an administrative officer and the principal planner, testified that the defendant’s barber shop had operated after the hours permitted in the ordinance and that the defendant also had violated the Zoning Board’s resolution that set the hours of operation for barber shops; the Municipal Court found the employee credible, and the Law Division deferred to the Municipal Court’s credibility findings; contrary to the defendant’s argument on appeal, the evidence was sufficient to support the verdict.


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