NEW JERSEY LAWYER

DAILY BRIEFING      12/21/2005


News Briefs

REPRIEVE FROM SKYROCKETING LEGAL MAL PREMIUMS
There’s some good news awaiting many lawyers. For the first time in a long while, legal malpractice insurance premiums are stabilizing, according to an article in the Dec. 19 New Jersey Lawyer. That’s a dramatic change from the annual double-digit boosts — some in the 40 percent range —lawyers have been hit with in the past few years. The word is that the new premiums generally will rise no more than 5 percent. To read the full story at no charge, visit New Jersey Lawyer’s website, www.njlnews.com.

SCHOOL DISTRICT WINS DISCRIMINATION CASE
The North Plainfield Board of Education didn’t discriminate against a 16-year-old boy with cerebral palsy, a jury has found after a seven-week trial. Joshua Gargano, now a junior at North Plainfield High School, and his mother, Denise, contended school district personnel had violated state and federal laws prohibiting discrimination against those with disabilities. The boy was born prematurely and had several strokes during the first week of his life. He uses a motorized wheelchair. John Schmidt and Athina Cornell of Lindabury, McCormick & Estabrook in Westfield were defense counsel in Gargano v. North Plainfield Board of Education. The boy’s aunt, Francine A. Gargano of Westfield, was one of his attorneys, along with Richard Flaum of Warren’s DiFrancesco, Bateman, Coley, Yospin, Kunzman, Davis & Lehrer. 12-20-05

NJ COURTS SEND COMPUTER PRINTERS TO GULF COAST
Since Hurricane Katrina hit four months ago, Louisiana courts have been struggling without computer equipment. Now, the Garden State judiciary is pitching in by sending 120 surplus laser printers to their counterpart in the south. Judge Philip S. Carchman, administrative director of the courts, said he’s pleased the state Treasury Department agreed to a request to donate the printers, which were used in various courthouses statewide and replaced as part of routine maintenance. The printers will be distributed to court offices, judges’ chambers, district attorneys, public defenders and others in the justice system in and around New Orleans. Louisiana’s court system is paying for the shipping. Hugh Collins, judicial administrator for the Louisiana courts, said, “Many of our staff and judges have been making do — or doing without — since the hurricane, so they are grateful for this donation.” 12-20-05

SCHOOL MANAGERS WIN $2.96M REVERSE-DISCRIMINATION VERDICT
Four white men won a $2.96 million verdict on their claims of reverse racial discrimination and retaliation. The jury verdict before U.S. District Judge Harvey Bartle III of the Eastern District of Pennsylvania is believed one of the largest reverse-discrimination awards ever in the commonwealth. The four men were fired in February 2003 as purchasing managers for the Philadelphia school district. They were represented by Michael D. Homans of Flaster/Greenberg in Cherry Hill, and his colleague, Lizanne V. Hoerst. Carl Singley, Richard Meyer, Michael Hanlon and Heather Steinmiller of Blank Rome in Philadelphia represented the defendants in Johnston v. School District of Philadelphia. 12-20-05

FRIST SEEKS LEGAL IMMUNITY FOR VACCINE MAKERS
A legal shield for vaccine manufacturers has been attached to a military spending bill by U.S. Sen. Bill Frist of Tennessee in a move some consider an unfair benefit for drug companies. Under Frist’s measure, companies producing vaccines to protect against pandemic viruses or biological agents could not be sued, even if the manufacturers were reckless or negligent. The provision would give immunity to any company that made “countermeasures” — drugs, vaccines or medical devices — to protect against epidemics, pandemics or biological attacks. 12-20-05

VIRGINIA LAWMAKER WANTS TOUGHER PUNISHMENT FOR DOG ATTACKS
A Virginia state legislator wants to come down harder on dog owners whose animals kill or injure. Sen. R. Edward Houck says he’ll introduce legislation making fatal dog attacks a felony for the dog’s owner, punishable by up to 10 years in prison and a maximum $2,500 fine. In the absence of a specific law, the owner of a killer dog in Virginia now can be prosecuted only for involuntary manslaughter. Houck’s move follows a fatal attack last March on an 82-year-old woman by three roaming pit bulls. She was in her front yard with her small dog, which also was killed. 12-20-05



Today's Decision Summaries

To Order Decisions

Now you can order the full text of these decisions directly from the Daily Briefing. Just click on the Facts-on-Call Order Number and the order page will open. And of course you still can order by phone by calling 1-800-670-3370. (A PIN number is required to use the service. If you need a free PIN Number, call 800-310-8678.)

FROM THE NEW JERSEY SUPREME COURT, TUESDAY, DECEMBER 20, 2005
NO OPINIONS WERE RELEASED BY THE NEW JERSEY SUPREME COURT ON TUESDAY, DECEMBER 20, 2005, AND NO OPINIONS ARE SCHEDULED FOR RELEASE ON WEDNESDAY, DECEMBER 21, 2005.


APPROVED FOR PUBLICATION
POST-CONVICTION RELIEF
STATE v. GONZALEZ
Appellate Division, A-371-03T4 and A-5368-02T4, approved for publication December 20, 2005. (28 pages). Facts-on-Call Order No. 92772

On the defendants’ motions for post-conviction relief — which claimed that they were improperly denied “profiling” discovery to which they were entitled under State v. Ballard — the orders denying discovery were reversed and remanded for the entry of a discovery order and for reconsideration of the PCR motions, depending on the results of the discovery. Judge Stern concurred.

NOT APPROVED FOR PUBLICATION
VERBAL THRESHOLD
MOOLCHAN v. ETIENNE
Appellate Division, A-2905-04T3, December 20, 2005, not approved for publication. (14 pages). Facts-on-Call Order No. 18987

Summary judgment for the defendant based on the N.J.S.A. 39:6A-8a verbal threshold under AICRA reversed and remanded; contrary to the trial court’s conclusions, (1) the plaintiff’s objective medical evidence, which included clinical findings from a physical examination and findings from MRIs, established that he had suffered permanent injuries in the parties’ accident that satisfied the sixth statutory category, (2) it was a mistaken exercise of discretion to order the “harsh remedy” of dismissal without prejudice for failure to timely file a physician’s certification where the statute of limitations would bar the plaintiff from refiling his claim, and the trial court had to accept the plaintiff’s belatedly filed physician’s certification under Casinelli v. Manglapus, and (3) no comparative analysis pursuant to Polk v. Daconceicao was required because the plaintiff did not allege that a later accident had aggravated the injuries that he had sustained in his accident with the defendant.

MENTAL HEALTH
IN RE CIVIL COMMITMENT OF J.L.S.
Appellate Division, A-2913-04T2, December 20, 2005, not approved for publication. (8 pages). Facts-on-Call Order No. 18991

Order that continued the appellant’s civil commitment to the Special Treatment Unit under the Sexually Violent Predator Act affirmed substantially for the reasons expressed by the trial court in its “comprehensive” oral decision; the appellant was initially committed in July 2000 after serving a sentence for endangering the welfare of his son, who was present in 1988 when the appellant sexually assaulted his daughter; after reviewing the expert testimony and the appellant’s treatment records, the trial court properly concluded (1) that the appellant continued to suffer from a mental abnormality or personality disorder that caused him serious difficulty in controlling sexually harmful behavior to the extent that the appellant was highly likely to reoffend and (2) that the plan for conditional release did not reduce the risk of reoffense to a degree that would allow the appellant’s release.

MUNICIPAL COURTS
STATE v. STILL
Appellate Division, A-5432-04T2F, December 20, 2005, not approved for publication. (3 pages). Facts-on-Call Order No. 18989

Acquittal on the charge of unsafe driving following a trial de novo reversed and remanded to the Law Division for the entry of an order to vacate the guilty plea that the defendant had entered in the Municipal Court and to return the matter to the Municipal Court for the defendant to elect whether to plead guilty again or to proceed to trial; the Law Division did not err on de novo review by determining that the procedure used by the Municipal Court to accept the defendant’s plea violated Rule 7:6-2(a)(1) because the Municipal Court did not administer an oath to the defendant or address him personally and because the transcript of the plea did not establish a factual basis or that the plea was made voluntarily with an understanding of the nature of the charge and the consequences of the plea; however, the Law Division’s remedy of acquittal was “unnecessary and erroneous.”

DRUNK DRIVING
STATE v. LaGALIA
Appellate Division, A-3391-04T3, December 20, 2005, not approved for publication. (3 pages). Facts-on-Call Order No. 18988

Conviction of driving while intoxicated following a trial de novo affirmed; even if the Municipal Court had improperly used the defendant’s driving record to establish his guilt, the Law Division on de novo review had specifically stated that it would not consider the driving record, and the Municipal Court’s evidentiary error was not so egregious that it could not be purged by the Law Division; even though the defendant’s Breathalyzer test result was below 0.10, which was the legal limit at the time of his arrest, the Appellate Division’s review of the record revealed “more than adequate observational evidence” to support the conviction, including evidence that the defendant had been speeding, had crossed the solid double line three times, had slurred his speech, had smelled of alcohol, had experienced trouble finding his driving credentials, had admitted to the police that he “drank too many beers,” and had failed to adequately perform three field sobriety tests.

CRIMINAL TRIALS
STATE v. DUMANSKY
Appellate Division, A-1683-04T2, December 20, 2005, not approved for publication. (4 pages). Facts-on-Call Order No. 18990

Conviction of violating provisions of a municipal zoning ordinance that regulate the performance of office activities in residential dwellings affirmed substantially for the reasons expressed by the Law Division in its “comprehensive” oral opinion that was issued in 2004 on de novo review; even if the 2001 sentencing agreement that the defendant relied on constituted a binding recognition of a nonconforming use, the defendant’s uses of his property that led to his conviction “far exceeded” the limited storage of equipment and trailers that the agreement authorized, and the defendant would have to apply to the Board of Adjustment pursuant to N.J.S.A. 40:55D-68 to obtain a broader right to nonconforming uses of his property than the limited ones authorized by the agreement.

REAL PROPERTY
LIPPINCOTT v. ESTATE OF COLES
Appellate Division, A-3468-03T5, December 19, 2005, not approved for publication. (16 pages). Facts-on-Call Order No. 18984

Dismissal of the plaintiff executors’ claims against the defendant developers and the developers’ attorney in an action alleging that the decedent landowners did not receive all of the money to which they were contractually entitled for the subdivision and sale of their land and that the defendants should have known that the decedents’ attorney was defrauding and stealing from them affirmed; contrary to the executors’ arguments on appeal, (1) they failed to establish prima facie cases of legal malpractice and fraud or misrepresentation against the developers’ attorney, who had served as an escrow agent for one developer but not for the decedents, because there was no relationship between the developers’ attorney and the decedents, (2) the doctrines of laches, estoppel, and waiver barred the executors’ claims, which were based on transactions that occurred between 1988 and 1996 but which were not filed until April 2000 — about two years after the decedents died — and which were not supported by evidence that the decedents had objected to the manner in which funds were disbursed to them, and (3) their claim that the developers’ attorney improperly included new evidence in his reply brief lacked merit.

UNEMPLOYMENT COMPENSATION
CAO v. BOARD OF REVIEW
Appellate Division, A-2815-04T5, December 19, 2005, not approved for publication. (7 pages). Facts-on-Call Order No. 18985

Final decision of the Board of Review that denied the petitioner casino employee’s application for unemployment benefits affirmed; the petitioner worked part time for one casino until February 27, 2004, when he was told that no more work was available, and he began receiving unemployment benefits after filing his application on February 29; the petitioner also was employed part time by a second casino that terminated him on March 17 for failure to report to work on March 3, 4, and 5; the petitioner was properly disqualified under N.J.S.A. 43:21-5(a) from receiving benefits (1) because he was not unemployed when the first casino terminated him and (2) because he voluntarily left his job at the second casino but failed to establish that he left for good cause; the petitioner presented nothing to substantiate his claim that his health had been adversely affected by working the graveyard shift at the second casino.

PARENT AND CHILD
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. G.K.
Appellate Division, A-5568-04T4, December 19, 2005, not approved for publication. (9 pages). Facts-on-Call Order No. 18986

Judgment of abuse and neglect against the defendant parents for failure to provide adequate shelter for their four children reversed; the judgment was based on evidence of an unsanitary kitchen and a temporary lack of gas service at the parents’ home, and the record supported a finding that the kitchen was “filthy” and had not been cleaned for “quite some time,” that the porch was “cluttered,” and that clothes were “strewn around the house”; however, the record did not support a finding of abuse and neglect under N.J.S.A. 9:6-8.21c(4)(a) because there was no testimony or evidence that the conditions put the children at risk, that the children were malnourished, filthy, or lacked adequate clothing, that the lack of gas service exposed them to a risk of harm, or that the father had the financial means to provide adequate shelter but failed to do so.


To Order Decisions

Now you can order the full text of these decisions directly from the Daily Briefing. Just click on the Facts-on-Call Order Number and the order page will open. And of course you still can order by phone by calling 1-800-670-3370. (A PIN number is required to use the service. If you need a free PIN Number, call 800-310-8678.)


Click this link to unsubscribe to the Daily Briefing email



Copyright © 2005 The New Jersey Lawyer Inc. All rights reserved.