NEW JERSEY LAWYER

DAILY BRIEFING      04/04/2005


News Briefs

JUDGE’S MEDIA ACCESS ACTION STIRS DEBATE
U.S. District Judge Garrett E. Brown Jr.’s limiting of reporters’ access to jurors following the recent fraud conviction of Harry G. Parkin, former chief of staff to the Mercer County executive, has touched off a firestorm of concern. Lawyers and one federal judge all remarked that Brown’s warning to jurors about talking with reporters post-trial is allowable, but his actions were unusual compared to how other jurists handle such matters. Brown told jurors he believed it would be inappropriate for them to talk to the press, then had court staff escort them to their cars while he ordered everyone else in his Trenton courtroom, including reporters, to stay put. Peter L. Skolnik, chairman of the New Jersey Media Lawyers Association, said Brown might have violated the U.S. Constitution. For a full story, see the April 4 New Jersey Lawyer. 4-1-05

GO A BIT WEST, YOUNG LAWYER
All things considered, a new law school graduate might want to be a lawyer in Philadelphia for McCarter & English. The Newark-based firm — New Jersey’s largest — this fall will pay new Philadelphia associates $115,000. That’s up from the firmwide starting salary of $100,000. Management in Newark told New Jersey Lawyer the firm is just trying to keep up with competition for new talent in the City of Brotherly Love, where the bidding reaches as high as $125,000 in some firms. The 365-lawyer firm has yet to decide whether to raise starting salaries in its Newark, New York, Stamford, Hartford, Wilmington and Baltimore offices. 4-1-05

POSSIBLE SECOND WAR OF THE WORLDS STARTS APRIL 4
If you happen to see a sudden convergence of ambulances or people walking around in hazardous materials safety suits this week, don’t be alarmed. The state is conducting a test of its security preparedness from April 4 to 8 as part of TOPOFF 3, a national program sponsored by the U.S. Department of Homeland Security. State and local officials will respond to mock biological and chemical attacks. Acting Gov. Richard J. Codey advised the public not to panic, noting, “We don’t want to turn this into ‘War of the Worlds,’ a 1930s radio program dramatization of a fictional attack from outer space, set in Middlesex County, which sparked a national panic. 4-1-05

JUDGE CHASTISES LAWYERS FOR FAILING TO WRITE RETAINER AGREEMENT
Attorneys were warned of the dangers of failing to execute written fee agreements by a judge who dismissed a firm’s motion for summary judgment in its $225,000 fee suit against a client, who’s also a lawyer. “The case is a textbook example of the trouble litigants can cause themselves when agreements are not written,” said New York Supreme Court Judge Louis B. York in Fensterstock & Partners v. Shapiro. The New York law firm alleges that Steven B. Shapiro, also of New York, owes $300,734 in fees and disbursements for representing him against accusations he mishandled an estate for a former client, while Shapiro says the firm orally agreed a $75,000 retainer would cover all costs. 4-1-05

TAX BREAKS LET TRIBE SELL CHEAP SMOKES
An American Indian tribe in Washington state plans to make and market its own brand of cigarettes priced about half the cost for smokes in New Jersey. A spokesman for the Squaxin tribe, located near Seattle, says the “Complete” brand will be sold cheaper because the tribe isn’t subject to the same taxes as tobacco companies. 4-1-05



Today's Decision Summaries

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FROM THE NEW JERSEY SUPREME COURT, FRIDAY, APRIL 1, 2005:
NO OPINIONS WERE RELEASED BY THE NEW JERSEY SUPREME COURT ON FRIDAY, APRIL 1, 2005.

THE SUPREME COURT has announced that it will release opinions in COMMUNITY HOSPITAL GROUP v. MORE, A-75/76, and PIERSON v. MEDICAL HEALTH CENTERS, A-10, on April 4, 2005.



APPROVED FOR PUBLICATION
INSURANCE
PANNIEL v. DIAZ
Law Division, Mercer County, MER-L-3657-02, approved for publication March 24, 2005. (33 pages). Facts-on-Call Order No. 92388

Offensive collateral estoppel did not apply to bind the insured defendants to a PIP ar-bitrator’s previous findings of causation of the plaintiff’s injury.

PUBLIC EMPLOYMENT
MacKENZIE v. REGIONAL PRINCIPALS ASSOCIATION
Chancery Division, Essex County, C-383-02, approved for publication March 24, 2005. (14 pages). Facts-on-Call Order No. 92389

Employee members of a union that represented full-time lay teachers of church-operated secondary schools had a right to inspect financial documents and information about their pension plan as a corollary of the right to collective bargaining under the New Jersey Constitution.

LAND USE
ISIHOS BROTHERS PARTNERSHIP v. TOWNSHIP OF FRANKLIN
Law Division, Gloucester County, GLO-L-1598-98, approved for publication March 24, 2005. (7 pages). Facts-on-Call Order No. 92390

Both the requirement of a variance and the determination by the Board of Adjustment that septic disposal beds must be associated with a permitted use on the same property are matter of law, not fact, and are subject to de novo review on appeal.

PARENT AND CHILD
IN RE MENG
Chancery Division, Family Part, Middlesex County, FD-12-204-05G, approved for publication March 24, 2005. (4 pages). Facts-on-Call Order No. 92391

Under both the Uniform Child Custody Jurisdiction Act and the successor Uniform Child Custody Jurisdiction and Enforcement Act, New Jersey was not the “home state” of a Pennsylvania child simply because that child’s half sister lived in New Jer-sey.

NOT APPROVED FOR PUBLICATION
 
NO OPINIONS NOT APPROVED FOR PUBLICATION WERE RELEASED BY THE APPELLATE DIVISION ON FRIDAY, APRIL 1, 2005.

THE FOLLOWING OPINIONS NOT APPROVED FOR PUBLICATION HAVE BEEN RELEASED:


ATTORNEY
GIACOBE v. BRADY
Appellate Division, A-4545-03T3, March 31, 2005, not approved for publication. (6 pages). Facts-on-Call Order No. 17790

Summary judgment for the defendant attorney in a legal malpractice action affirmed; in 1999, the plaintiff followed the defendant’s advice and signed a release to settle her claims that arose from a 1997 automobile accident for $45,000; at the time of the settlement, the plaintiff’s medical records indicated a serious elbow injury but no objective evidence of a serious back injury; after undergoing back surgery in 2001, the plaintiff sought to reopen the case; the plaintiff claimed that she would not have accepted the settlement if the defendant had explained its effects to her and that the defendant had not properly investigated all of her injuries; in light of the common knowledge about the effect of a release and the lack of medical support for a back injury at the time of the settlement, there was no basis to disturb the trial court’s conclusion that the defendant had not breached the standard of care.

NEGLIGENCE
BRUNO v. CIPRIANO
Appellate Division, A-5956-03T1, March 31, 2005, not approved for publication. (7 pages). Facts-on-Call Order No. 17794

Summary judgment for the defendant school bus driver in a personal injury action arising from an automobile accident reversed and remanded for trial; when the parties’ vehicles collided at an intersection, the defendant was making a left turn across two lanes of traffic from a northbound lane and the plaintiff was traveling in a southbound lane; the defendant testified at his deposition that he had turned after he observed a green arrow signal, and a bus passenger’s deposition corroborated that testimony; at his deposition, the plaintiff testified that he had been stopped at a red light and had driven straight through the intersection after he observed a green light; reversal was required because the trial court intruded into the province of the jury when it found that the plaintiff had driven through a red light.

LAW AGAINST DISCRIMINATION
WANG v. SETON HALL UNIVERSITY
Appellate Division, A-1703-03T5, March 31, 2005, not approved for publication. (12 pages). Facts-on-Call Order No. 17791

Summary judgment for the defendant university and denial of the plaintiff’s motion for reconsideration in an action under the Law Against Discrimination affirmed; the plaintiff, who was from China, was a seminary student at the university, he left the seminary before finishing his studies, and the university created a clerical job for the plaintiff so that he could remain in the United States; the motion judge properly concluded (1) that the plaintiff’s unlawful termination claim failed because he had abandoned his job, (2) that his “failure to promote” claim failed because it was barred by the statute of limitations and because, even if it was timely, it was undisputed that he lacked the required communication skills, and (3) that there was no basis for a constructive dis-charge claim; the Appellate Division granted the university’s motion to strike the plaintiff’s reply brief and supplemental appendix because the brief contained facts and ar-guments not raised before the motion judge and because the appendix contained a “substantial number” of documents that were not part of the record before the motion judge.

LAND USE
JENSEN v. TOWNSHIP COUNCIL OF THE TOWNSHIP OF LACEY
Appellate Division, A-3956-03T2, March 31, 2005, not approved for publication. (10 pages). Facts-on-Call Order No. 17792

Dismissal of the plaintiff’s action in lieu of prerogative writs seeking to invalidate a zoning ordinance adopted by the defendant Township Council affirmed; the Township Code required that screening strips be planted before building any non-residential structure that abuts a residential zone and a 50-foot buffer zone between residential and non-residential properties where the properties abut and where the non-residential structure exceeds 40,000 square feet; the ordinance amended these requirements by allowing landowners whose land abuts a former railroad right-of-way that runs through the Township to dedicate a part of their property along the right-of-way to the Township while continuing to use the dedicated land as part of the required buffer zone; there was no indication that the ordinance was “arbitrary, capricious, unreasonable, or contrary to fundamental principles of zoning”; the ordinance implemented the Township’s master plan by facilitating the development that was contemplated in both the master plan and the Municipal Land Use Law; the Appellate Division was not persuaded by the plaintiff’s “spot and contract” zoning claims, and his equal protection claim also failed.

PARENT AND CHILD
COLONNO v. COLONNO
Appellate Division, A-4761-03T5, March 31, 2005, not approved for publication. (7 pages). Facts-on-Call Order No. 17793

Post-divorce-judgment order emancipating the parties’ 23-year-old son retroactive to January 1, 2004, when he was no longer a full-time student, instead of to the filing date of the defendant father’s motion to emancipate the son and terminate child support, affirmed; the property settlement agreement provided for the defendant to pay child support until the son was emancipated upon completing “his formal education through four years of college” on a full-time basis; the defendant’s motion was filed in late May 2003 and stated that the son had completed four years of college on May 15; in opposition, the plaintiff mother certified that the son’s learning disability pre-vented him from earning a degree in four years, that the son’s change of majors had set him slightly behind, and that the son anticipated completing his graduation requirements by January 2004; the son completed his requirements in the fall 2003 se-mester; contrary to the defendant’s argument on appeal that the express terms of the PSA contemplated that the son would be emancipated at the end of the fourth year of college, the trial court did not abuse its discretion by extending the emancipation period for one additional semester.


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