NEW JERSEY LAWYER

DAILY BRIEFING      03/23/2005


News Briefs

FEDERAL JUDGE FOILS REPORTERS
Call it a backdoor way to keep the press from talking to jurors after a verdict in a high-profile corruption case. U.S. District Judge Garrett E. Brown couldn’t legally prevent jurors from answering reporters’ questions after they found Robert Parkin, a former Mercer County chief of staff, guilty, so the judge ordered court staff to escort jurors to their cars. At the same time, he ordered everyone else in his Trenton courtroom — reporters included — to stay put. The Times of Trenton reports that after praising the jury for paying attention during trial, Brown added, “It is the better and more prudent practice to decline to discuss what has occurred.” 3-22-05

NEW PROCEDURE ON JUDGES’ TRAVEL TO NATIONAL EVENTS
Superior Court assignment judges here now have authority over whether judges qualify for vacation time and expense reimbursement when attending national judicial association events in which they have leadership positions. Directive 6-05, which took effect this week, replaces Directive 6-96, which placed such decision-making with the chief justice. The new decree says assignment judges will base their decisions on the needs of their vicinage, and the chief justice would be the sole arbiter of any appeals. The directive notes the new policy is aimed at encouraging judges’ participation in national associations while also “preserving the primacy” of judicial obligations. 3-22-05

SMALLER BUSINESSES MOVING TO OUTSOURCING
Small- and medium-sized enterprises (SMEs) are poised to increasingly outsource business processes this year, reports the National Outsourcing Association, a London-based market monitor with a New York office. This could spell good news for New Jersey law firms like Newark’s Sills Cummis Epstein & Gross, and Greenbaum, Rowe, Smith, Ravin, Davis & Himmel in Woodbridge, which have outsourcing clients. Also known as off-shoring because most vendors are foreign-based, outsourcing has primarily been used by larger companies. Sanj Prabhakar, a director for the association, notes outsource vendors have re-geared their offerings to reach SMEs and that as smaller businesses expand during an economic recovery, they’ll turn to outsourcing for the same reason bigger companies have — to add resources more cheaply than hiring internally. 3-22-05

HEALTH-CARE FACILITIES MUST OFFER CONTRACEPTION TO RAPE VICTIMS
General hospitals and emergency departments now face fines if they fail to provide pregnancy tests to rape victims and if the results are positive, also provide information about emergency contraceptives and deliver such services when requested by the victim. Those are the provisions of a bill signed into law by acting Gov. Richard J. Codey, who said S-1668/A-2698 provides an “important tool” in helping victims physically and emotionally. 3-22-05

EX-POLS FIND BIG PAYDAYS IN THEM THAR REVOLVING DOORS
The doors at national law firms’ Washington offices are opening wide for big-name politicians becoming lobbyists and presumably using their past association in government for favorable treatment. It’s part of the revolving-door syndrome that’s become standard operating procedure in Washington and state capitals like Trenton. Recently announced moves include former U.S. Senate Democratic Party leader Tom Daschle, a non-lawyer who’s joining Alston Bird, and former U.S. Sen. Connie Mack and Daniel Coats, a former U.S. Ambassador to Germany, joining Shaw Pitt. Mack is leaving Pillsbury Winthrop because of client conflicts. 3-22-05



Today's Decision Summaries

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FROM THE NEW JERSEY SUPREME COURT, TUESDAY, MARCH 22, 2005
THE FOLLOWING OPINION WAS RELEASED BY THE NEW JERSEY SUPREME COURT ON TUESDAY, MARCH 22, 2005:

JUVENILES
STATE IN THE INTEREST OF S.S.
New Jersey Supreme Court, A-29/38/39, March 22, 2005. (7 pages). Facts-on-Call Order No. 92372

The New Jersey Supreme Court affirmed substantially for the reasons expressed by the Appellate Division in its opinion in State in the Interest of S.S., 367 N.J. Super. 400 (2004). On the backdrop of the legislative goals underlying the criminal contempt statute and the juvenile justice system, it was error to subject a status offender to an adjudication of delinquency based on a repetition of the runaway conduct and truancy that brought the family to the court for help in the first place.

NO OPINIONS ARE SCHEDULED TO BE RELEASED BY THE NEW JERSEY SUPREME COURT ON WEDNESDAY, MARCH 23, 2005.



APPROVED FOR PUBLICATION
PUBLIC RECORDS
DUGAN v. CAMDEN COUNTY CLERK’S OFFICE
Appellate Division, A-3567-03T3, approved for publication March 22, 2005. (12 pages). Facts-on-Call Order No. 92373

The amounts that county clerks may charge for use by the public of self-service copiers to copy documents recorded in their offices and available for self-inspection by the public are governed by the Open Public Records Act, and the clerks may not invoke N.J.S.A. 22A:2-29, which sets forth a comprehensive fee schedule for filing and recording documents in their offices, to justify higher fees.

PARENT AND CHILD
ENTRESS v. ENTRESS
Appellate Division, A-3975-03T5 and A-5046-03T5, approved for publication March 22, 2005. (12 pages). Facts-on-Call Order No. 92374

Changes in custody cannot be made without a plenary hearing unless there are exigent circumstances, and an unsworn, uncross-examined letter from a court-appointed psychologist who was “frustrated” at being unable to complete his custody evaluation was not an exigent circumstance warranting a change in custody without an evidentiary hearing.

CONSUMER PROTECTION
COLE v. LAUGHREY FUNERAL HOME
Appellate Division, A-4030-03T1, approved for publication March 22, 2005. (24 pages). Facts-on-Call Order No. 92375

To be actionable under the Consumer Fraud Act, a misrepresentation must be one that is material to the transaction and must be made to induce the buyer to make the purchase. In this case, the alleged misrepresentations occurred after the contract for funeral services was entered into and were not misrepresentations made to induce the buyer to make the purchase of funeral services from the defendant funeral home. Furthermore, the plaintiffs’ alleged emotional distress caused by the failure to have an open-casket viewing of their decedent were noneconomic losses that were not recoverable under the CFA.

JURY INSTRUCTIONS
STATE v. MURPHY
Appellate Division, A-3592-02T4, approved for publication March 22, 2005. (15 pages). Facts-on-Call Order No. 92376

Where the trial court gave an extensive curative instruction about the role of plea bargaining in the criminal justice system after the State’s principle witness blurted out that the defendant had been offered the same plea that the witness had accepted and where, during the course of the instruction, the trial court told the jury that a plea would be accepted only if the court was assured that the pleading defendant was guilty, (1) the instruction unduly enhanced the witness’s credibility where the only witness who had placed the defendant at the scene of the crime had pleaded guilty pursuant to a plea bargain and (2) the trial court erred by informing the jury that it could consider the witness’s plea to evaluate his credibility but by failing to inform the jury that it could not use the evidence of the witness’s plea as substantive evidence of the defendant’s guilt.

NOT APPROVED FOR PUBLICATION
ATTORNEYS
ZARIN v. FORTE
Appellate Division, A-4032-03T5, March 22, 2005, not approved for publication. (11 pages). Facts-on-Call Order No. 17759

Summary judgment for the defendant attorney and the defendant law firm in a legal malpractice action affirmed substantially for the reasons expressed by the motion judge; the motion judge properly concluded that the plaintiff’s claims as to liability and proximate cause presented jury questions but that the defendants’ motion for summary judgment should be granted because the damages theory presented by the plaintiff’s expert constituted “sheer speculation” and the plaintiff therefore could not prove damages by a preponderance of the evidence; the motion judge found that the plaintiff’s alleged lost chance to purchase property was not actionable because, even after affording the plaintiff every favorable inference, he could prove only that he had “an exactly equal chance of winning the bid” for the property.

CONTRACTS
SHORE MEMORIAL HOSPITAL v. POLLACK
Appellate Division, A-5525-03T2, March 22, 2005, not approved for publication. (6 pages). Facts-on-Call Order No. 17757

Summary judgment awarding $331,661.15 to the plaintiff hospital in an action to recover money advanced under two loan agreements and dismissal of the defendant doctor’s counterclaim alleging breach of an employment contract affirmed; the defendant defaulted on a loan agreement that he entered into with the plaintiff in 1995, and the parties entered into a new loan agreement to rectify the arrears in 1999; after the defendant defaulted on the 1999 agreement, the parties signed a letter of intent that provided for the defendant to become the plaintiff’s employee for three years in exchange for a salary, the assignment of the collateral and leases covered by the two loan agreements, and the forgiveness of his debt; however, the letter of intent expired without the execution of a written agreement; summary judgment for the plaintiff and dismissal of the defendant’s counterclaim was appropriate based on the undisputed evidence of the defendant’s defaults on the loan agreements and the lack of evidence that the letter of intent had become a binding contract.

CIVIL PROCEDURE
NEW CENTURY FINANCIAL SERVICES, INC. v. LENNON-HARGROVE
Appellate Division, A-3142-03T5, March 22, 2005, not approved for publication. (15 pages). Facts-on-Call Order No. 17758

Law Division order denying the defendant’s motion to vacate a default judgment reversed and remanded; the plaintiff purchased a defaulted account based on a credit card that had been issued to the defendant by a third party, which had charged off the account in May 1993; the plaintiff filed its complaint in December 1998, one attempt at personal service was unsuccessful, and service by mail was effected in January 1999; under Rule 4:50-1(a), the defendant demonstrated excusable neglect because (1) the plaintiff did not use the defendant’s correct name or her proper apartment number in the pleadings, (2) the plaintiff did not clearly identify itself or its relationship to the party that had issued the credit card, and (3) the defendant asserted that she never received the complaint or the notice of default; in addition, the defendant’s assertion that the statute of limitations had expired was a meritorious defense.

CIVIL PROCEDURE
PINE BROOK CHIROPRACTIC CENTER v. FRANK
Appellate Division, A-6036-03T5, March 22, 2005, not approved for publication. (6 pages). Facts-on-Call Order No. 17760

Law Division order denying the defendant’s motion to vacate a default judgment reversed and remanded for trial; although the history of this case was “tortured” because the parties did not follow the Rules of Court, it was an abuse of discretion for the trial judge to deny the defendant’s oral application to vacate and to proceed to judgment; the facts of this case did not support “the extreme sanction” of default where (1) although the plaintiff’s attorney was in court for trial and the defendant’s attorney was not, neither party was present, (2) where the defendant’s appearance for trial in the Small Claims Division served as her answer, and (3) where the timeliness of the defendant’s jury demand was not a proper basis for the default.

CIVIL PROCEDURE
LEE v. JOURNAL SQUARE HOTEL GROUP CORP.
Appellate Division, A-5659-03T1, March 22, 2005, not approved for publication. (12 pages). Facts-on-Call Order No. 17756

Order denying the defendant’s motion to vacate a default judgment vacated and remanded; the plaintiff’s 1995 pro se complaint alleged that the defendant and two other parties were liable for causing personal injuries and property damage; the plaintiff’s September 19, 1997 motion for default judgment against the defendant and the two other parties was supported by three affidavits of service from the Monmouth County deputy sheriff, which stated that an individual who was the managing agent for the defendant and the two other parties was served on May 15, 1997; final judgment for the plaintiff was entered on February 3, 1998, but the defendant’s principal claimed that he was not aware of the lawsuit until he was served with a November 20, 2003 motion to amend the judgment; the defendant’s principal submitted an affidavit disputing that the individual who had been served in 1997 was the defendant’s managing agent, but the plaintiff supplied three documents that suggested a relationship between the individual and the defendant; in light of the defendant’s “depthless” opposition, the facts and circumstances surrounding the service of process were not sufficiently convincing to permit the motion judge to rule on the merits of the motion.


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