NEW JERSEY LAWYER

DAILY BRIEFING      02/22/2005


News Briefs

SCI WANTS OUT-OF-STATE SUBPOENA POWER
The State Commission of Investigation (SCI) can subpoena New Jersey witnesses, but when it comes to those outside the state, it’s strictly voluntary. But Assemblyman John S. Wisniewski (D-Middlesex) has introduced a bill that would grant the SCI the same subpoena power as a court. Through reciprocal agreements between states, witnesses can be arrested if they don’t respond to subpoenas. The bill, A-3820, would put the SCI on the list of bodies that could invoke that power. Lee Seglem, a spokesman for the SCI, said the panel has been looking for that authority for some time. In recent investigations into the E-ZPass and motor vehicle inspection contracts, witnesses from California and Massachusetts came willingly, but there’s nothing the SCI could have done had they declined. 2-18-05

DOCS’ MED-MAL DATABASE GETS 140,000 HITS
The state’s Physician and Podiatrist Profile developed by the Division of Consumer Affairs logged 140,000 hits during its first eight months of operation. There’s no way to know whether this means patients are steering clear of doctors who’ve paid malpractice settlements. At least the information, which formerly was in the secret files of the Board of Medical Examiners, is now public. While most settlements and judgments are posted within a couple months as required, some attorneys who specialize in medical malpractice cases have noticed some settlements, even from more than a year ago, have not been posted. A full story is in the Feb. 21 New Jersey Lawyer. 2-18-05

INVESTORS’ CLASS-ACTION SUIT DISMISSAL UPHELD
The 3rd U.S. Circuit Court of Appeals has upheld a district court dismissal of a stockholder class-action suit claiming retail investors were getting biased research. In Rowinski v. Salomon Smith Barney, the appeals court upheld the ruling based on a federal pre-emption statute. The stockholders originally went to a state court, but the brokerage succeeded in moving the case to U.S. District Court for Middle Pennsylvania, which dismissed it. The plaintiffs protested that it was a breach-of-contract case, not a misrepresentation case covered by the 1998 Securities Litigation Uniform Standards Act (SLUSA). Chief Circuit Judge Anthony J. Scirica didn’t accept that argument, holding SLUSA was specifically designed to keep such suits in federal courts. (A full text of Rowinski, Facts-on-Call Order No. 92316, can be ordered from NJL Online or by calling 800-670-3370.) 2-18-05

LAWYERS.COM LOOKING FOR HEAVY USER
Martindale-Hubbell is trying to find out why someone using a Union City school district computer has downloaded more than 150,000 law profiles from its lawyers.com website. The New Providence-based company has filed a federal complaint against three John Does, at least one of whom used a school computer. The three users conducted a total 710,000 searches — if they are indeed three people and not one person using three screen names — in December alone. U.S. District Judge William Bassler has allowed the parent company, Reed Elsevier of Newton, Mass., to issue subpoenas to the school district and to Comcast requiring them to provide users’ names. The company wants to determine if someone is creating a competing database or using the information to send unsolicited mailings. 2-18-05

BANKRUPTCY BILL HEADED FOR PASSAGE
Persistence may pay off for the banking industry now that it seems to have a more sympathetic Congress and president. The Senate Judiciary Committee approved a bankruptcy reform bill that would make it harder to wipe out consumer debt. Two other attempts in seven years failed, the first because President Clinton wouldn’t sign it and the second because the House, after passing one version, refused to accept the Senate’s. Credit card companies have been pushing for the legislation, claiming current law makes it too easy for people to declare bankruptcy when they could pay down more of their debt. Democrats and consumer groups oppose the change, arguing it would make it harder for middle- and low-income people to get out from under debt when they’ve fallen on hard times. The full Senate could take up the bill before the end of the month. 2-18-05



Today's Decision Summaries

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FROM THE NEW JERSEY SUPREME COURT, FRIDAY, FEBRUARY 18, 2005
NO OPINIONS WERE RELEASED BY THE NEW JERSEY SUPREME COURT ON FRIDAY, FEBRUARY 18, 2005, AND NO OPINIONS ARE SCHEDULED FOR RELEASE ON TUESDAY, FEBRUARY 22, 2005.

NEW JERSEY COURTS ARE CLOSED ON MONDAY, FEBRUARY 21, 2005, AND NO OPINIONS WILL BE RELEASED.



APPROVED FOR PUBLICATION
CONSTITUTIONAL LAW
IN RE P.L. 2001, CHAPTER 362
Appellate Division, A-3370-03T3 and A-3389-03T3, approved for publication February 18, 2005. (78 pages). Facts-on-Call Order No. 92314

Public Law 2001, Chapter 362 — which established within the Administrative Office of the Courts a Probation Officer Community Safety Unit, which permits the 200 officers in the Unit to carry a firearm in accordance with N.J.S.A. 2C:39-6c(17), and which grants the officers the authority to arrest, detain, and transport probationers and to enforce New Jersey’s criminal laws — is unconstitutional and void under the separation-of-powers clause of the New Jersey Constitution.

SENTENCING
STATE v. HENDERSON
Law Division, Camden County, Indictment No. 3383-09-03, approved for publication February 15, 2005. (10 pages). Facts-on-Call Order No. 92315

As a matter of first impression, a defendant may not be sentenced for an extended term of imprisonment under the persistent offender statute, N.J.S.A. 2C:44-3a, if his “latest in time” prior crime and his “last release from confinement” occurred more than 10 years before the crime for which he is being sentenced.

NOT APPROVED FOR PUBLICATION
ARBITRATION
MARTINEZ v. SUPER SONIC ARCADE
Appellate Division, A-2299-03T5, February 18, 2005, not approved for publication. (2 pages). Facts-on-Call Order No. 17641

Judgment confirming an arbitration award of $32,064.69 and denying the defendants’ motion to file a late demand for a trial de novo affirmed; the trial court properly concluded that the defendants had not demonstrated the “extraordinary circumstances” that are required for the late filing of a demand for a trial de novo; moreover, the alleged sciatica suffered by the defendants’ attorney was not documented by a medical certification and was not so severe that he was unable to work before the expiration of the 30-day period under Rule 4:21A-6(b)(1) for filing a demand for a trial de novo.

ARBITRATION
WYSOCKI v. YANNUZZI
Appellate Division, A-5105-03T3, February 18, 2005, not approved for publication. (6 pages). Facts-on-Call Order No. 17642

Order granting the plaintiff’s motion to confirm an arbitration award reversed and remanded for arbitration; the plaintiff sued for unpaid landscaping fees, the defendant premises owners answered and counterclaimed, and the defendants’ first counsel was relieved; when the defendants did not appear at Rule 4:21A-1(a)(3) arbitration, the award was made; the plaintiff moved to confirm the award, and the defendants, who had retained new counsel, opposed the motion because they had not received notice of the arbitration; the motion judge treated the motion as unopposed because the defendants had not filed a notice of substitution of attorney; the motion judge abused his discretion by granting the motion without considering the opposition instead of advising the defendants’ new attorney that there was no notice of substitution; a new arbitration was required because the defendants’ claim that they had not received notice of the arbitration was unrefuted.

HUSBAND AND WIFE
HALL v. NEWMAN
Appellate Division, A-5348-03T5, February 18, 2005, not approved for publication. (3 pages). Facts-on-Call Order No. 17640

Post-divorce-judgment order denying the defendant ex-husband’s application to terminate alimony affirmed; when the parties divorced in 1999, their property settlement agreement set alimony at $125 per week; at that time, the defendant had income of about $70,000 per year, and $10,000 per year in income was imputed to the plaintiff ex-wife; six years later, the defendant sought to terminate alimony because his income had remained the same while the plaintiff’s income had increased to more than $40,000 per year; the trial court found that the PSA failed to indicate whether alimony was related to the plaintiff’s needs, to the defendant’s ability to pay, or to any increase in the plaintiff’s income due to employment; even if the plaintiff’s income did increase, the PSA did not provide that this would trigger a termination or modification of alimony; the trial court’s refusal to modify alimony was not an abuse of discretion.

PARENT AND CHILD
AMANKONAH v. HARGRO
Appellate Division, A-5729-03T2, February 18, 2005, not approved for publication. (14 pages). Facts-on-Call Order No. 17643

Order on remand designating the defendant mother as the parent of primary residence of the parties’ child and order denying the plaintiff father’s motion for reconsideration affirmed substantially for the reasons expressed by the Family Part; in response to the Appellate Division’s reversal and remand, the Family Part made additional findings and designated the defendant the parent of primary residence; the Family Part’s findings and conclusions were supported by the record, and it complied with the Appellate Division’s remand instructions, made adequate findings and conclusions, and followed the criteria set forth in N.J.S.A. 9:2-4c.

ENVIRONMENTAL LAW
PORT LIBERTE PARTNERS v. EXXON CORP.
Appellate Division, A-4429-02T5, February 18, 2005, not approved for publication. (10 pages). Facts-on-Call Order No. 17644

Final judgment for the plaintiff in an action under the New Jersey Spill Compensation and Control Act for the recovery of costs incurred by the plaintiff to clean up hazardous waste found in a waste pit on its property in Jersey City affirmed; the trial court’s finding that the refinery operated by the defendant was the source of the hazardous waste found on the plaintiff’s property was supported by substantial, credible evidence; the evidence was primarily expert testimony in which the experts disagreed in their analysis of the facts, and the trial court, as the trier of fact, had the discretion to accept all or part of an expert’s testimony and to give the testimony the weight it deemed appropriate; contrary to the defendant’s assertion, the trial court’s finding of responsibility was not based on only the refinery’s proximity to the site of the waste pit.

LAND USE
SIMEONE v. ZONING BOARD OF ADJUSTMENT OF THE TOWNSHIP OF EAST HANOVER
Appellate Division, A-785-03T3, February 17, 2005, not approved for publication. (13 pages). Facts-on-Call Order No. 17638

Law Division order upholding the denial of an application for bulk and dimensional variances affirmed; the plaintiff contract purchaser sought to build a two-story, single-family house on an undersized lot; although the subdivision that created the undersized lot might have been illegal, the Law Division properly concluded that, under the circumstances, the existence of the isolated undersized lot was not a self-created hardship for the plaintiff seller or the contract purchaser that would bar relief in the form of a variance; however, the frontage and the side yards of the proposed home were “dramatically different” from the requirements in the zone, and the defendant Zoning Board’s conclusion that the contract purchaser had not met the negative criteria was not arbitrary, capricious, or unreasonable.

EMPLOYMENT LAW
FRIGON v. DBA HOLDINGS, INC.
Appellate Division, A-1563-03T3, February 17, 2005, not approved for publication. (13 pages). Facts-on-Call Order No. 17639

Award on remand of $1,049,810 and attorney’s fees of $42,072.85 to the plaintiff employees in a dispute over how much was owed to the plaintiffs under an employment termination agreement affirmed in part, reversed in part, and remanded for entry of a corrected judgment; the defendant employer asserted that the plaintiffs had received the full amount to which they were entitled, but the plaintiffs argued that they were entitled to a proportionate share of the tax benefit that was generated by their agreement to surrender their phantom stock options and sign the agreement; contrary to the defendant’s assertion, the trial court’s findings were supported by the record, and the plaintiff’s claims were not barred by accord and satisfaction; furthermore, nothing in the agreement indicated that the determination made by the auditor would be final and binding on the plaintiffs; however, the plaintiffs were not entitled to the fruits of the fee-shifting provision under Rule 4:58-2; the Appellate Division remanded for recomputation of the interest to which the plaintiffs were entitled.


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