NEW JERSEY LAWYER

DAILY BRIEFING      02/23/2006


News Briefs

TAX DOLLARS INTO THE RECYCLING CAN
New Jersey legislators are taking a new and possibly regretful look at the laws they’ve passed requiring state agencies to issue annual reports and other documents. Under legislation being drafted by Assemblymen Reed Gusciora (D-Mercer) and Jeff Van Drew (D-Cape May), state agencies would be required to post their voluminous reports — especially annual reports — on the internet, rather than print them. Some reports, like one recently published by former Attorney General Peter C. Harvey, have been glossy, color productions. Assemblyman Sean Kean (R-Ocean) estimated $2 million annual savings from eliminating this cascade of mostly unread paper. With a budget deficit estimated at more than $4 billion, the Corzine administration is definitely interested. “New Jersey should get in step with the computer age,” Gusciora said. Trees throughout the Northeast are applauding. 2-21-06

MIDDLESEX BAR GROUP OPPOSES JUSTICES’ ALCOTEST ORDER
A lawyers group in Middlesex County, the primary battleground for a war over the state’s use of the new breath-test machines, is asking the New Jersey Supreme Court to reverse its decision to allow DWI prosecutions based on test results when the reliability of the machine is under review. The Middlesex County Bar Association passed a resolution stating its opposition to the Supreme Court’s Jan. 10 order allowing people accused of drunken driving to be convicted based on Alcotest evidence and sentenced, although the scientific reliability of the machines is unresolved. The justices appointed retired Appellate Division Judge Michael Patrick King to serve as their special master to gather evidence and conduct hearings on defense attorneys’ challenge to Alcotest results. “We urge the Supreme Court’s reconsideration on this important matter,” said Stephen E. Klausner, president of the Middlesex Bar, in a cover letter to Chief Justice Deborah T. Poritz. 2-21-06

LEGAL SERVICES PITCHES HELPING FAMILIES
The key to avoiding the overload on New Jersey’s foster care system is to try to help poor families stay intact, according to a new report from Legal Services of New Jersey (LSNJ). “While poverty does not cause child abuse or neglect, it exacerbates family troubles and complicates their resolution,” said Mary M. McManus, LSNJ senior attorney and principal author of a 55-page report addressed to Human Services Commissioner Kevin M. Ryan. Hoping to catch the attention of a new administration in Trenton, LSNJ is calling for multi-faceted reform of the state’s child welfare system, including help for poor families to find and pay for decent housing, and a rewrite of the rule forbidding placement with any relative who’d ever committed any crime. The report points to New York City, which radically reduced its foster care load by focusing on family services. The text of the report is on Legal Services’ website, lsnj.org. 2-21-06

SCAMMERS STILL USING ‘JURY’ CALLS
The federal court system is doing the best it can, but looking on its website is probably the last thing on the minds of citizens who get nasty phone calls telling them they failed to report for jury duty. Scammers in the Washington, D.C., area and in several states have figured out how to rig caller ID to show the federal courthouse phone number. Then they call people and say they didn’t show up when they were supposed to. In some cases they ask for a Social Security number to verify they’re talking to the right person, and in others they demand immediate payment of a fine, by credit card, of course. The U.S. District Court has posted a notice urging people not to give any personal information by phone. Some state courts also have been used in this scam, and those states have posted similar notices. There are no reports of such scams in New Jersey — yet. 2-21-06

CAR MECHANICS IN BRITAIN PRICIER THAN LAWYERS
A good car mechanic in England can be more expensive than lawyers or doctors. Customers frequently pay more than 100 pounds per hour — or $174 — for labor by mechanics at franchised dealers, according to What Car? magazine. In London, BMW charges the equivalent of $244 an hour. Maybe that junior criminal lawyer is in the wrong profession — a fledging barrister charges a comparatively low rate of 30 pounds an hour — $52 to be exact. 2-21-06



Today's Decision Summaries

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FROM THE NEW JERSEY SUPREME COURT, TUESDAY, FEBRUARY 21, 2006
NO OPINIONS WERE RELEASED BY THE NEW JERSEY SUPREME COURT ON TUESDAY, FEBRUARY 21, 2006, AND NO OPINIONS ARE SCHEDULED FOR RELEASE ON WEDNESDAY, FEBRUARY 22, 2006.


APPROVED FOR PUBLICATION
 
NO OPINIONS APPROVED FOR PUBLICATION WERE RELEASED BY THE APPELLATE DIVISION ON TUESDAY, FEBRUARY 21, 2006.

NOT APPROVED FOR PUBLICATION
TORTS
SACCO v. MAZIARZ
Appellate Division, A-1847-03T1, February 21, 2006, not approved for publication. (28 pages). Facts-on-Call Order No. 19264

Judgment based on a jury verdict that found the defendant creditor 97 percent liable and the defendant attorney 3 percent liable affirmed in part, reversed in part, and remanded in an action alleging legal malpractice and negligence in connection with the plaintiff debtors’ breach of a settlement agreement that the debtors and the attorney had reached with the creditor in the underlying action for breach of contract, fraud, and civil racketeering; contrary to the creditor’s arguments on appeal, (1) there was no error arising from the jury instructions, (2) the verdict did not constitute a miscarriage of justice, and (3) the trial court did not err by allowing the jury to assess $7,732 in consequential damages against him; however, the trial court erred by awarding attorney’s fees in the judgment against the creditor because only the legal malpractice claim could support the fee award, which had to be limited to reflect the attorney’s percentage of liability; contrary to the debtors’ arguments on appeal, the trial court did not err by denying their request for an additur or in making its awards of interest and attorney’s fees; remand was necessary for correction of the judgment to reflect the reduced attorney’s fees.

CONSUMER PROTECTION
USA HOME IMPROVEMENT v. PARK
Appellate Division, A-4406-04T3, February 21, 2006, not approved for publication. (5 pages). Facts-on-Call Order No. 19261

Award of $5,000 in attorney’s fees and $1,000 in costs to the defendant homeowners affirmed; the homeowners were the prevailing parties on a counterclaim under the Consumer Fraud Act in an action arising from their home improvement contracts with the plaintiff contractor; the homeowners’ attorney sought $44,288.29 in fees and $2,638.29 in costs, but the trial court found that the fees and costs beyond the amount of its award were incurred in the pursuit of claims that were unrelated to consumer fraud; the trial court (1) did not abuse its discretion, (2) addressed the requirement that reasonable attorney’s fees and costs be awarded to the party that prevails on a consumer fraud claim, (3) properly recognized that it had to identify the fees that were attributable to the pursuit of the consumer fraud claim and had to award fees only for work attributable to that claim, and (4) gave proper weight and consideration to the factors that are relevant to analyzing a fee application under the case law and Rule of Professional Conduct 1.5(a).

HUSBAND AND WIFE
FERDINAND v. FERDINAND
Appellate Division, A-1876-04T3, February 21, 2006, not approved for publication. (9 pages). Facts-on-Call Order No. 19263

Amended final judgment of divorce that was entered on remand and denial of the defendant ex-husband’s motion for reconsideration affirmed; contrary to the plaintiff ex-wife’s arguments on appeal, the trial court (1) did not incorrectly allocate the parties’ 2000 income tax refund, (2) did not err by equitably distributing the parties’ 1993 Toyota Previa based on the value to which the parties had earlier stipulated instead of the $1,200 that the ex-wife received when she sold the vehicle, and (3) did not rescind the award of $50 per week in additional child support to her for the cost of transporting the parties’ children, and there was no reason to interfere with that award or with the trial court’s denial of a retroactive award; both parties challenged the award of attorney’s fees, but that award was within the trial court’s discretion and was based on the relevant factors; the trial court did not err by denying the ex-husband’s motion for reconsideration.

LAND USE
CALIBER BUILDERS, INC. v. ZONING BOARD OF ADJUSTMENT OF THE BOROUGH OF PARAMUS
Appellate Division, A-3357-04T2, February 21, 2006, not approved for publication. (12 pages). Facts-on-Call Order No. 19262

Law Division judgment that reversed the defendant Zoning Board’s denial of a use variance to the plaintiff builder and that determined that the Zoning Board did not violate the federal Fair Housing Amendments Act of 1988 reversed in part but affirmed in part; the builder sought to erect a housing complex for independent and semi-independent senior citizens, but about 90 percent of the lot was in a flood plain area; although the complex was an inherently beneficial use, it could be excluded if the negative factors were “weighty” and constituted a “substantial detriment to the public good”; in light of the Zoning Board’s concerns about traffic and flooding, its conclusion — that the detrimental effects of the proposed use “substantially outweighed” the positive effects and could not be mitigated — was not arbitrary or unreasonable; thus, the Zoning Board’s denial of the use variance should have been affirmed; however, the Law Division correctly rejected the builder’s claim under the Act that a municipality must “make reasonable accommodation” for a “congregate care facility” within its borders.

LAND USE
KYRIACOU v. LAVIN
Appellate Division, A-1163-04T3 and A-1164-04T3, February 17, 2006, not approved for publication. (16 pages). Facts-on-Call Order No. 19260

Summary judgment for the plaintiff neighbors reversed in an action in lieu of prerogative writs that challenged a variance that the defendant Zoning Board had granted to the defendant property owners; neither of the owners’ lots had the 100 feet of street frontage required for development without a variance; the “very narrow” issue before the trial court was whether the Zoning Board’s engineers gave unsworn testimony in response to questions from the Zoning Board’s members and, if they did, whether the Zoning Board’s decision had to be reversed under N.J.S.A. 40:55D-10d, which provides that the “testimony of all witnesses relating to an application for development shall be taken under oath”; the engineers’ participation at the Zoning Board’s hearings was not testimony, and, even if it was, the trial court erred by reversing the Zoning Board’s decision because the owners were not at fault and because any prejudice to the neighbors was de minimis “at best.”

PUBLIC EMPLOYEES
IN RE CRANE
Appellate Division, A-413-04T3, February 17, 2006, not approved for publication. (7 pages). Facts-on-Call Order No. 19258

Final decision of the Merit System Board that granted the respondent employee’s request for permanent status as a Chief Fire Alarm Operator affirmed; the employee was promoted to Chief Fire Alarm Operator on August 22, 1994, but he was unaware that the appointment was reported to the Department of Personnel as provisional pending certification of the eligible list; the eligible list later was deemed incomplete, and the appellant City opted not to make a permanent appointment; in June 2004, the City sought to return the employee to his permanent title of Fire Alarm Operator; the record supported the Board’s determinations (1) that the employee received misleading information about his employment status, (2) that the employee reasonably believed that his position was permanent because he was sworn in at a formal ceremony presided over by the Mayor and the Fire Department Director, and (3) that the misleading information precluded the employee from acting to attain permanent status as a Chief Fire Alarm Operator.

WORKERS’ COMPENSATION
GILLETTE v. UNION COUNTY DIVISION OF AGING
Appellate Division, A-2403-04T2, February 17, 2006, not approved for publication. (3 pages). Facts-on-Call Order No. 19257

Division of Workers’ Compensation decision that dismissed the petitioner worker’s claim affirmed; the petitioner presented expert testimony to support her claim that her pulmonary disability was caused by working three hours per day in the kitchen at the respondent employer’s facility, but she failed to inform her expert of her “long history of smoking”; the judge of compensation found that the respondent’s expert was more credible than the petitioner’s expert, and he concluded that the petitioner had (1) “mild obstructive lung disease” that was caused by smoking, (2) asthma that might have been aggravated by her employment but that “resolved itself” after she stopped working, and (3) smoker’s bronchitis that was caused by smoking a pack or a pack and a half per day for about 20 years; there was sufficient credible evidence to support the judge’s decision.

WORKERS’ COMPENSATION
PONAROVSKI v. NATIONAL SCHOOL BUS
Appellate Division, A-5855-04T5, February 17, 2006, not approved for publication. (2 pages). Facts-on-Call Order No. 19259

Division of Workers’ Compensation judgment that awarded the petitioner worker 27.5 percent permanent partial total disability affirmed; the award comprised 15 percent for orthopedic residuals of a herniated cervical disc, 7.5 percent neurological for post-concussion syndrome, and 5 percent for psychiatric; the judge of compensation considered the medical records and doctors’ reports and the testimony of a neurologist, an internist, and the petitioner; the pro se petitioner claimed on appeal that the respondent employer, its lawyers, and the doctors “deliberately” and “consciously” engaged in misleading conduct and “misinterpreted all medical evidence of sustained injuries,” that he was entitled to compensation, and that he was a victim of legal malpractice, medical malpractice, and corruption; there was sufficient credible evidence to support the judge’s decision, and the petitioner’s arguments to the contrary were “without merit.”


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