NEW JERSEY LAWYER

DAILY BRIEFING      04/28/2005


News Briefs

SUPREME COURT TO HEAR DISCIPLINARY GAG-RULE CASE
The New Jersey Supreme Court Monday holds oral arguments in R.M. v. Supreme Court of New Jersey, which challenges the state courts’ so-called gag rule that keeps most discipline and related records in grievances against lawyers confidential until a formal complaint is lodged. The court in part will be considering a rule amendment, proposed last December by its Professional Responsibility Rules Committee, that would eliminate confidentiality protection after an investigation, regardless of whether a complaint is filed. In exchange, ethics grievants would lose their current immunity to civil suits. In the underlying matter, a client who complained to the District XIII Ethics Committee was barred from discussing the matter publicly because the lawyer under attack entered an “agreement in lieu of discipline” shielding him from a formal complaint. R.M. called the court rule an unconstitutional prior restraint of free speech in a suit filed in Mercer County in 2003. 4-27-05

SEX CRIMINALS NOW PAY FOR VICTIMS’ COUNSELING
Sex offenders will pay for the counseling of sex crime victims under a law signed by acting Gov. Richard J. Codey. The statute sets additional sex crime penalties ranging from fines of $500 for a fourth-degree offense to $2,000 for first-degree crimes and specifies that money be used for a program of specialized counseling to victims and their families. The state launched the counseling service earlier this month. 4-27-05

THIRD CIRCUIT JUDGE LEADS FED JUDICIARY’S PLEA FOR MORE SECURITY
Judge Jane R. Roth of the 3rd U.S. Circuit Court of Appeals led the federal judiciary’s appeal this week to Congress for funds to improve security at federal courts. The Marshal’s Service is unable to properly protect federal courts due to “significant budgetary problems.” Roth, who chairs the Administrative Office of the U.S. Courts’ Security and Facilities Committee, addressed the House of Representatives’ Judiciary Subcommittee on Crime, Terrorism and Homeland Security. Citing the February murders of family members of U.S. District Judge Joan Lefkow in Chicago, Roth asked the subcommittee to support the federal judiciary’s request for $12 million for courtroom security equipment and for stiffer federal penalties against people who threaten or harass judges. 4-27-05

SPARE THE ROD AND SPOIL THE NON-POLLUTER
The Department of Environmental Protection, notorious for penalizing polluters, would switch to positive reinforcement under a bill that would provide rewards up to $100,000 to businesses DEP deems “environmentally responsible.” A-805, the “environmental rewards” bill proposed by Assemblyman Reed Gusciora (D-Mercer), has cleared the Assembly’s Environment Committee and is awaiting action in the Appropriations Committee. The timing of the bill is somewhat odd, though, since the state has said its finances are running red. 4-27-05

THE ‘ANATOMY’ OF A CASINO’S PEEK-A-BOO OPERATION
Hidden cameras in casinos are called “eyes in the sky” and are designed to spot gambling cheats. Now the word is those cameras in Atlantic City may be zooming in and down the tops of women’s dresses and shirts. The state Division of Gaming Enforcement has filed such a formal complaint alleging workers at Caesars Casino and Hotel used the video surveillance machines to videotape “selected parts of the anatomy of several females, both patrons and employees.” The Casino Control Commission will review the allegations at upcoming hearings and could fine the casino and suspend the workers. 4-27-05



Today's Decision Summaries

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FROM THE NEW JERSEY SUPREME COURT, WEDNESDAY, APRIL 27, 2005
NO OPINIONS WERE RELEASED BY THE NEW JERSEY SUPREME COURT ON WEDNESDAY, APRIL 27, 2005, AND NO OPINIONS ARE SCHEDULED FOR RELEASE ON THURSDAY, APRIL 28, 2005.


APPROVED FOR PUBLICATION
ATTORNEYS
FROOM v. PEREL
Appellate Division, A-768-03T5, approved for publication April 27, 2005. (32 pages). Facts-on-Call Order No. 92435

In a legal malpractice action, (1) the trial court erred by ruling as a matter of law that the defendant law firm had an attorney-client relationship with the plaintiff, (2) the plaintiff failed to present sufficient evidence to show that the alleged negligence of the law firm and the defendant attorney was a proximate cause of the plaintiff’s loss, (3) expert testimony on proximate cause was required because the alleged malpractice arose in the context of a complex financial transaction, (4) the plaintiff’s expert witness, who was a retired New York State appellate judge, was not precluded from testifying as an expert witness in New Jersey courts, but the expert’s testimony was a net opinion that was not supported by the facts, and (5) the testimony from the plaintiff’s fact witness did not provide a basis for a finding by the jury that the negligence of the law firm and the attorney was a substantial factor in causing the plaintiff’s loss.

MENTAL HEALTH
IN RE GUARDIANSHIP OF MACAK
Appellate Division, A-2399-03T3, approved for publication April 27, 2005. (16 pages). Facts-on-Call Order No. 92436

An incapacitated person cannot consent to be declared incapacitated; rather, the trial court in a guardianship action must independently review the evidence and make findings by clear and convincing evidence as to whether the person is incapacitated. Even if the person is incapacitated, the trial court also must decide whether the person retains the ability to make some decisions, so that the guardianship would be limited in certain aspects. The court must independently review any proposal to make gifts from the assets of the alleged incapacitated person, and, absent unusual circumstances, the court must require the guardian to post a bond.

COMMERCIAL TRANSACTIONS
METUCHEN SAVINGS BANK v. PIERINI
Appellate Division, A-2603-03T5, approved for publication April 27, 2005. (17 pages). Facts-on-Call Order No. 92437

Where the defendant, who was the president and sole shareholder of a corporation, was responsible for the deposit of a check made payable to the corporation and a co-payee without the endorsement of the co-payee, the defendant was liable to the plaintiff bank, which paid the co-payee for the conversion under N.J.S.A. 12A:3-420, without the application of a comparative negligence analysis under N.J.S.A. 12A:3-406.

ARBITRATION
WEINSTOCK v. WEINSTOCK
Appellate Division, A-2439-03T2, approved for publication April 27, 2005. (11 pages). Facts-on-Call Order No. 92438

A direct appeal from an arbitrator’s decision must be made in the trial court under both the Alternative Procedure for Dispute Resolution Act, N.J.S.A. 2A:23A-2, et seq., and the Arbitration Act, N.J.S.A. 2A:24-1, et seq., and the parties cannot by agreement create a right of direct appeal to the Appellate Division.

NOT APPROVED FOR PUBLICATION
INSURANCE
MEDICIA CORP. v. GREAT NORTHERN INSURANCE CO.
Appellate Division, A-6825-3T1, April 27, 2005, not approved for publication. (7 pages). Facts-on-Call Order No. 17881

Summary judgment for the defendant insurer in an action to obtain payment for claims that arose from a fire at the plaintiff manufacturer’s plant affirmed; after a fire in one room, local fire officials inspected the whole plant and discovered code violations; the defendant paid claims that related to repairs of the room; the plaintiff sought reimbursement under its insurance policy for the economic consequences of that inspection and the municipality’s ensuing order to close the plant until the code violations were corrected; among other things, the plaintiff sought $235,728 to pay for a new sprinkler system for the whole plant; the plaintiff’s contentions were “without merit” where there was nothing in the insurance policy that required coverage for the cost of correcting building or fire code violations throughout the plant, which were discovered simply as the result of a fire in one area of the plant.

MEDICAL MALPRACTICE
BURNEY v. ST. BARNABAS HEALTH CARE SYSTEM/MONMOUTH MEDICAL CENTER
Appellate Division, A-219-04T5, April 27, 2005, not approved for publication. (5 pages). Facts-on-Call Order No. 17880

Summary judgment for the defendants due to the plaintiff’s failure to provide an expert report in an action alleging medical malpractice and wrongful death affirmed; the complaint was filed on September 14, 2001; the plaintiff’s expert submitted a report on December 9, 2001 that criticized the defendant gastroenterologist and the defendant thoracic surgeon but that stated that gastroenterology and thoracic surgery experts were needed; at his March 5, 2004 deposition, the plaintiff’s expert conceded that he was not qualified to testify about the standards of care for gastroenterologists or for thoracic surgeons; the trial court did not mistakenly exercise its discretion by denying the plaintiff’s request to extend the discovery period where the expert’s report stated that other experts were needed and where the plaintiff failed to provide a reasonable explanation for her failure to obtain a report from a qualified expert almost three years after filing the complaint.

LAND USE
SARTOGA v. BOROUGH OF WEST PATERSON
Appellate Division, A-6141-02T3 and A-6325-02T3, April 27, 2005, not approved for publication. (13 pages). Facts-on-Call Order No. 17882

Final judgment on remand for the defendant municipality in an action by the plaintiff municipality and two of its residents challenging the defendant’s zoning ordinance that allows the construction of a residential development with a density of 20 units per acre on property immediately adjacent to the plaintiff municipality affirmed; contrary to the plaintiffs’ arguments, (1) the trial court did not fail to adhere to the dictates of the Appellate Division’s previous decision in this case, (2) the trial court did not incorrectly impose on the plaintiffs the burden of proving that the ordinance was invalid, and (3) the trial court did not err by finding that the site was suitable for the permitted use.

REAL PROPERTY
GEWERTZ v. ESTATE OF RUTECKI
Appellate Division, A-4172-03T1, April 27, 2005, not approved for publication. (8 pages). Facts-on-Call Order No. 17883

Summary judgment for the defendants in the plaintiff’s quiet title action affirmed; in addition to the paved driveway on the plaintiff’s property that provided egress and access to Salina Road, there was a dirt driveway across the neighboring lot from Blackwood-Barnsboro Road leading to the plaintiff’s property; the plaintiff’s claims for adverse possession or a prescriptive easement in the driveway failed (1) because, assuming that each predecessor’s use was open, notorious, exclusive, and continuous, the 30-year period could not be met because the plaintiff had proved predecessor use only since 1977, and the plaintiff’s reliance on a 1959 aerial map “to bridge the time gap” was “unavailing” and (2) because no reasonable fact-finder could find the necessary use on the part of the owners of the plaintiff’s property “simply by virtue of the driveway’s existence”; also, the plaintiff’s claim for an implied quasi-easement failed because he presented no evidence of predecessor common ownership of both lots.


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