NEW JERSEY LAWYER

DAILY BRIEFING      03/10/2005


News Briefs

JUDICIAL REAPPOINTMENTS
The state Senate is expected to consider soon acting Gov. Richard J. Codey’s nominations of five sitting judges for reappointment. They are Superior Court Judges Maryann K. Bielamowicz, Max A. Baker and David W. Morgan and Tax Court Judges Joseph L. Foster and James E. Isman. 3-9-05

OUSTED PARTNER CAN’T SUE UNDER LAW PROTECTING EMPLOYEES
A law firm partner is an employer, not an employee, and therefore isn’t protected under a law against retaliation by employers, ruled the 7th U.S. Circuit Court of Appeals. In Solon v. Kaplan, James Solon sued his three former partners under the section of Title VII of the Civil Rights Act of 1964 stating “it shall be an unlawful employment practice for an employer to discriminate against any of his employees … because he has opposed any practice made an unlawful employment practice by this subchapter.” Solon alleged one of the partners, Robert C. Von Ohlen, had persuaded the others to fire Solon because he had spoken out against the partner’s alleged sexual harassment of two of the firm’s secretaries. “Plaintiff was one of four general partners who, by virtue of his voting rights, substantially controlled the direction of the firm, his employment and compensation, and the hiring, firing and compensation of others” and “played an active role in the operation of the firm,” said the appeals court, concluding “he was an employer as a matter of law,” so the law did not apply to him. 3-9-05

RELIABILITY OF FINGERPRINT EVIDENCE BOLSTERED
Experts analyze fingerprints significantly more effectively than non-experts, even using different brain processes, according to the electrophysiological results of research conducted by Thomas Busey, an associate professor of psychology at Indiana University in Bloomington. His findings, published in a recent Vision Research journal, could bolster the admissibility of fingerprint evidence, one of several forensic science techniques often questioned during Daubert hearings when judges determine whether scientific evidence is relevant and reliable. Some attorneys contend fingerprint examination does not require special expertise, so they should be presented to jurors without expert interpretation or opinion, but Busey’s findings would counter that. 3-9-05

STUDY RANKS STATES’ LAWSUIT ABUSE REPUTATION
Delaware’s tort liability system is the fairest and most reasonable in the country, Mississippi’s is the least so, and New Jersey ranks 30th, according to a study that explores how different states’ legal systems are perceived by U.S. businesses. The 2005 State Liability Systems Ranking Study, conducted by Harris Interactive for the U.S. Chamber of Commerce Institute for Legal Reform, polled more than 1,400 in-house general counsel or other senior litigators. Asked which five local jurisdictions have the least fair and reasonable litigation environments, respondents identified Los Angeles, Texas (various jurisdictions), the New York greater metropolitan area, Cook County/Chicago and San Francisco. Despite New York metro’s bad reputation, the state by itself at 27th place is well within the mid-range. In contrast, Texas, California and Illinois are in 44th, 45th and 46th place, respectively. An overwhelming 81 percent of those surveyed said the litigation environment in a state could affect such corporate decisions as where to locate or conduct business. In Washington, the Association of Trial Lawyers of America condemned the survey as “phony,” asserting, “Surely it is not a coincidence that the states whose legal systems these corporate lawyers rank lowest are the very states the Chamber’s special interest corporate clients have targeted to take away the legal rights of American families and enhance the legal rights of corporate wrongdoers.” 3-9-05

DOG SUBPOENAED IN SEARCH FOR MURDER WITNESS
Hoping to turn up an eyewitness to the crime, prosecutors sent subpoenas to everyone who had contact with Albert K. Smith while he was jailed awaiting trial for the murder of his ex-wife’s boyfriend. But when Smith’s brother brought in 5-year-old Murphy Smith to answer the subpoena, a deputy refused to let them into the courthouse in Bentonville, Ark. Why? Well, dogs aren’t allowed. It seems Smith had written letters to his dog from his cell, so the Shih Tzu’s name inadvertently got onto the witness list. 3-9-05



Today's Decision Summaries

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FROM THE NEW JERSEY SUPREME COURT, WEDNESDAY, MARCH 9, 2005
THE FOLLOWING OPINION WAS RELEASED BY THE NEW JERSEY SUPREME COURT ON WEDNESDAY, MARCH 9, 2005:

CRIMINAL TRIALS
STATE v. HILL
New Jersey Supreme Court, A-80, March 9, 2005. (28 pages). Facts-on-Call Order No. 92342

According to State v. Diaz, there is a “compelling need” for the use of special verdict forms under Rule 3:19-1(b) for the jury to designate which felony or felonies constitute the predicate crime for a felony murder conviction. If the jury designates more than one felony as the predicate for felony murder, the trial court at sentencing should merge into the felony murder conviction only the predicate felony that set in motion the chain of events leading to the murder.

THE SUPREME COURT has announced that it will release an opinion in PRICE v. NEW JERSEY MANUFACTURERS INSURANCE CO., A-26, on March 10, 2005. The issue on appeal in Price addresses whether, under the circumstances presented, the insurer was barred from raising the statute of limitations defense to the insured’s claim for uninsured motorist benefits because the insurer failed to provide written notice that its investigation did not toll the running of the limitations period.



APPROVED FOR PUBLICATION
INSURANCE
AMERICAN FIRE AND CASUALTY CO. v. NEW JERSEY DIVISION OF TAXATION
Appellate Division, A-2708-03T2, A-3676-03T2, and A-4455-03T2, approved for publication March 9, 2005. (42 pages). Facts-on-Call Order No. 92343

The application by the Director of the Division of Taxation of the State’s retaliatory insurance tax so as to recapture the benefits to foreign insurers that otherwise would be provided by the State’s premium tax cap is contrary to the legislative intent and is unconstitutional under the Equal Protection Clause.

NOT APPROVED FOR PUBLICATION
HUSBAND AND WIFE
CASTELLANOS v. CASTELLANOS
Appellate Division, A-2407-03T2, March 9, 2005, not approved for publication. (9 pages). Facts-on-Call Order No. 17711

Post-divorce-judgment order denying the defendant ex-husband’s cross-motion to terminate alimony, confirming his $500-per-month alimony obligation, and awarding the plaintiff ex-wife $1,000 in attorney’s fees remanded for further analysis and for an explanation of factual and legal findings; once the Family Part determined that the defendant presented changed circumstances, it should have applied the three-step analysis under Crews v. Crews and Lepis v. Lepis and should not have applied the factors set forth under N.J.S.A. 2A:34-23(b) for an initial alimony award; when considering the defendant’s ability to pay alimony, the Family Part erred by considering his pension income, which was an asset that the plaintiff had waived in equitable distribution; however, because the record did not reflect the extent to which the Family Part had considered this income, the Appellate Division was unable to assume original jurisdiction and parse out that part of the award; also, the Family Part provided no explanation for its determinations that the plaintiff needed alimony and that the defendant was able to pay $500 per month in alimony.

PARENT AND CHILD
GRIMES-DORAN v. DORAN
Appellate Division, A-2078-03T2, March 9, 2005, not approved for publication. (10 pages). Facts-on-Call Order No. 17713

Post-divorce-judgment order that modified a 1995 consent order by awarding the defendant father equal parenting time with the parties’ daughter affirmed; the 1995 order provided for the daughter to spend Sunday evening through Thursday evening with the plaintiff mother and to spend Thursday evening through Sunday evening with the defendant; an equal parenting time plan was implemented without prejudice and was continued following a plenary hearing; the trial court’s findings and conclusions were supported by the record (1) where the 1995 order did not designate a parent of primary residence and divided parenting time almost equally, (2) where the evidence at the plenary hearing indicated that the daughter was “thriving” under the equal parenting time plan, that she enjoyed her time with each party, and that she did not feel pressure under the plan, and (3) where there was no evidence of the factors that ordinarily weigh against joint physical custody.

JUDGMENTS
NEW CENTURY FINANCIAL SERVICES, INC. v. BUONOPANE
Appellate Division, A-3308-03T2, March 9, 2005, not approved for publication. (7 pages). Facts-on-Call Order No. 17709

Order entering a default judgment for the plaintiff but denying the plaintiff’s request for interest and attorney’s fees and order denying the plaintiff’s motion for reconsideration reversed and remanded; the plaintiff purchased the defendants’ defaulted credit account and sued to recover $8,302.66 in principal, $1,042.50 in interest, and $959.52 in attorney’s fees; after the defendants did not answer, default was entered; the trial court erred by ruling that the plaintiff was not entitled to attorney’s fees or that the plaintiff had not sufficiently proved its right to attorney’s fees where the plaintiff demonstrated its entitlement to attorney’s fees under the defendants’ account agreement and supplied a detailed explanation of its calculation; interest under Rule 6:6-3(a) was mandatory, and the plaintiff’s use of the Rule 4:42-11(a) interest rates was appropriate.

MENTAL HEALTH
IN RE CIVIL COMMITMENT OF E.X.C.
Appellate Division, A-6036-02T2, March 9, 2005, not approved for publication. (10 pages). Facts-on-Call Order No. 17710

Order continuing the appellant’s involuntary civil commitment as a sexually violent predator affirmed; in 1986, the appellant kidnapped a 7-year-old girl and a 9-year-old girl and sexually molested them for four days, and he later pleaded guilty to multiple counts of kidnapping and sexual assault; at the time, the appellant, who was in his early 30s, lived with a 15-year-old girl, had a sexual relationship with her, and had a sexual relationship with her 13-year-old sister and her 16-year-old sister; the trial court considered the entire record of the appellant’s commitment, found the State’s two experts to be more credible than the defendant’s expert, and concluded that the appellant suffered from paraphilia NOS with a delusional disorder; the trial court did not abuse its discretion, and the record “amply” supported its conclusion that the appellant was still a sexually violent predator who could not be released safely.

APPELLATE PROCEDURE
VALLEY NATIONAL BANK v. FRIENDS, INC.
Appellate Division, A-3530-03T2, March 9, 2005, not approved for publication. (9 pages). Facts-on-Call Order No. 17712

Appeal from a final judgment of foreclosure for the plaintiff bank dismissed as moot; the defendant property owners’ appeal dealt with an order dismissing the complaint against them without prejudice pursuant to Rule 4:37-1(a); because default was properly entered against the defendant property owners and because they never moved to vacate the default, the defendants had no standing to file their motion for summary judgment; thus, their argument that the trial court could not dismiss them from the case because their motion was pending was “entirely without merit”; because the motion was not properly before the court and because the defendants were in default, the plaintiff could dismiss them from the action without leave of court; even if leave was needed, the trial court’s decision to dismiss the defendants was “entirely appropriate”; because the defendants were properly dismissed, they did not have standing to prosecute their appeal.


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