NEW JERSEY LAWYER

DAILY BRIEFING      05/18/2005


News Briefs

MEET THE IN-LAWS IN DIVORCE COURT
Family lawyers looking for a new twist in their line of work should mark May 27 on the calendar. That’s when arguments are scheduled in Morris County Superior Court in a Denville woman’s divorce suit that seeks to add her husband’s parents as defendants on the hook for alimony and child support. Yes, make grandma and grandpa carry the financial load. Cynthia Idleman wants to add Lee and Sue Idleman of Madison because after son Douglas Idleman took ill and couldn’t work, they helped pay his family bills, and when Cynthia filed for divorce, they supported her and her two sons to the tune of $20,000 a month, according to reports of the case. “They stepped into the shoes of their son, taking care of the family. You can’t then just lift anchor and take off,” said Cynthia’s lawyer, Thomas J. Snyder of Einhorn Harris Ascher Barbarito Frost & Ironson in Denville. Douglas is represented by Theresa Julian of Summit. The case is before Judge Allison E. Accurso. 5-17-05

CONSTITUTIONAL CONVENTION REFERENDUM FACES FIGHT IN SENATE
The Assembly-approved measure allowing voters to decide in November if there should be a constitutional convention to consider tax reform faces an uncertain future in the Senate. Members of the upper house have voiced misgivings about the measure restricting convention delegates from considering any changes in how the state spends funds. Acting Gov. Richard J. Codey, also the Senate president, has indicated he’ll allow the bill to be heard soon by the Senate Judiciary Committee, but shares the concerns of others that not allowing delegates to limit state spending while asking them to reduce property taxes would result in increasing other taxes, potentially the sales and income levies. 5-17-05

BILL WOULD REQUIRE INTERNET PROVIDERS TO DIVULGE CUSTOMER INFO
Internet service providers would be required, upon being subpoenaed, to tell police how long a subscriber stays online and how customers pay for their service under a bill that’s passed the state Assembly and could be up for a final vote soon in the Senate. Co-sponsor Assemblyman Peter J. Barnes Jr. (D-Middlesex) said A-3786 would fight “the wealth of opportunities that the internet provides for criminal enterprise, particularly with pedophiles.” 5-17-05

ESSEX ASSISTANT COURT ADMINISTRATOR TAKES TOP JOB IN PASSAIC
Kirk L. Nixon, assistant court administrator for Essex County Superior Court since 2002, has been named new court administrator in Passaic County. “Kirk has proven himself a capable leader in our busiest vicinage. He brings Passaic a great deal of experience,” said Passaic County Assignment Judge Robert J. Passero. Nixon succeeds Richard M. Centanni, who will soon retire, according to the Administrative Office of the Courts. 5-17-05.

RUTGERS LAW TO DEDICATE WING TO PHILANTHROPIST FOOSANER
On Friday, Rutgers Law School-Newark will dedicate its first-floor west reading gallery to the late Samuel J. Foosaner, an alumnus, author of more than 500 books and articles on taxes and estate planning, and noted philanthropist. His philanthropies include the Renee Foosaner Art Gallery at the Paper Mill Playhouse in Millburn and the Cocoa, Fla.-based Foosaner Foundation, which granted $500,000 to the school’s law library in 2004. Expected attendees at the dedication include Attorney General Peter C. Harvey, Rutgers University President Richard L. McCormick and Law School Dean Stuart L. Deutsch. 5-17-05

CORRECTION
An item in the May 16 Daily Briefing inadvertently reported the home state of the governor who bounced checks to his barber. Gov. Dirk Kempthorne is from Idaho. 5-17-05



Today's Decision Summaries

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FROM THE NEW JERSEY SUPREME COURT, TUESDAY, MAY 17, 2005
NO OPINIONS WERE RELEASED BY THE NEW JERSEY SUPREME COURT ON TUESDAY, MAY 17, 2005.

THE SUPREME COURT has announced that it will release opinions in STENEKEN v. STENEKEN, A-100, and THIEDEMANN v. MERCEDES BENZ, A-41, on May 18, 2005. The issue on appeal in Steneken addresses whether, in establishing equitable distribution and alimony in a matrimonial action, it is impermissible “double counting” to use earnings beyond “reasonable compensation” for valuing the business and then to use actual compensation, including the excess earnings, for calculating alimony. The issue on appeal in Thiedemann addresses whether a fuel gauge defect in a new automobile, for which the dealer pays to repair, constitutes an “ascertainable loss” that would entitle the owner to a remedy under the Consumer Fraud Act.



APPROVED FOR PUBLICATION
ATTORNEYS
THE TAX AUTHORITY, INC. v. JACKSON HEWITT, INC.
Appellate Division, 3043-03T1, approved for publication May 17, 2005. (32 pages). Facts-on-Call Order No. 92464

A provision in a retainer agreement with an attorney in a multiple-plaintiff “mass action” lawsuit that binds each plaintiff in advance to a settlement that is agreed to by a majority of the plaintiffs violates Rule of Professional Conduct 1.8(g) and is unenforceable.

NOT APPROVED FOR PUBLICATION
LAND USE
CHIN v. JERSEY CITY ZONING BOARD OF ADJUSTMENT
Appellate Division, A-6858-03T2, May 16, 2005, not approved for publication. (13 pages). Facts-on-Call Order No. 17962

Order of judgment dismissing the plaintiff property owner’s complaint in lieu of prerogative writs, which challenged the defendant Zoning Board of Adjustment’s denial of a use-variance application for the conversion of an existing two-family home into a three-family home, affirmed; contrary to the plaintiff’s appellate argument, the Board did not act arbitrarily, capriciously, or unreasonably in denying her application where the plaintiff failed (1) to present special reasons for the variance, (2) to show why the property was “particularly suitable” for the proposed use as compared with other neighborhood properties, and (3) to present proof of an “enhanced quality” to meet the statutory negative criteria; because the requested use appeared common to the other neighborhood properties, the plaintiff should instead seek “a change in zoning for a defined area of the city.”

EDUCATION
IN RE REMOVAL OF SCHAEDER
Appellate Division, A-720-04T2, May 16, 2005, not approved for publication. (14 pages). Facts-on-Call Order No. 17965

Final decision of the State Board of Education that reprimanded the appellant member of the Board of Trustees of a charter school for violating the Code of Ethics for School Board Members set forth in N.J.S.A. 18A:12-24.1c and d affirmed; the violations were based on the appellant’s undisputed failures to inform the school’s chief academic officer before a meeting that he would seek her resignation at that meeting and to include one of the members of the Board of Trustees in the decision-making process; contrary to the appellant’s arguments on appeal, (1) §18A:12-24.1c and d applied to members of a charter school board of trustees at the time of the chief academic officer’s resignation, (2) the evidence supported the State Board’s decision, (3) a full evidentiary hearing before the Office of Administrative Law was not required, and (4) there was no reason to interfere with the State Board’s determination that the appellant violated §18A:12-24.1c and d even without considering the testimony of the excluded Board of Trustees member, who had not been subject to cross-examination.

DEFAMATION
SAQUAR v. TOWNLEY SWEEPING SERVICE, INC.
Appellate Division, A-5014-03T1, May 16, 2005, not approved for publication. (10 pages). Facts-on-Call Order No. 17961

Summary judgment dismissing the plaintiff’s defamation claim against the defendants, who were his former employers, reversed; the defendants told other employees, the police, and the Division of Unemployment Insurance that the plaintiff was fired for stealing trash bags; the motion court correctly found that the allegation of theft was defamatory, that the defendants’ communication of the alleged theft to the Division and to co-workers was protected by an unqualified privilege, and that “the theft allegation was not excessively published”; however, as argued on appeal, (1) there was sufficient evidence from which a jury could find that the defendants’ knowledge of the plaintiff’s union-organizing activities had motivated his termination and that the theft charges were retaliation for those activities, which may constitute malice, and (2) that evidence was sufficient to overcome the qualified privilege.

HUSBAND AND WIFE
WELLAND v. WELLAND
Appellate Division, A-6753-03T2, May 16, 2005, not approved for publication. (9 pages). Facts-on-Call Order No. 17963

Post-divorce-judgment order that reduced the defendant ex-husband’s alimony obligation to $7,000 per month affirmed; the parties’ property settlement agreement required the defendant to pay $10,000 per month in alimony; after he was fired, the defendant’s obligation was reduced to $8,000 on an earlier motion, and he later sought to terminate alimony based on changed circumstances; contrary to the defendant’s arguments on appeal, the PSA on its face contemplated the payment of alimony from deferred compensation as well as other assets that were subject to equitable distribution, and there was no basis for imputing earned income to the plaintiff ex-wife; the record “more than adequately” supported the trial court’s findings that the defendant had greater assets and a “significantly more lavish” lifestyle than the plaintiff and that the defendant was able to pay $7,000 per month in alimony.

FROM THE FEDERAL COURTS
CIVIL PROCEDURE:
BRENNAN v. KULICK
Third Circuit, No. 04-1866, May 13, 2005. By Cowen, C.J. Also on panel: Barry, C.J. and Ambro, C.J. Appealed from the U.S. District Court for the District of New Jersey. (8 pages). Facts-on-Call Order No. 92460

The Third Circuit reversed the District Court’s order (1) that denied the plaintiff’s renewed motion to vacate the District Court’s previous order that dismissed his complaint without prejudice and (2) that dismissed his complaint with prejudice, and the Third Circuit remanded for consideration of the plaintiff’s arguments. The District Court dismissed the plaintiff’s complaint without prejudice when the plaintiff failed to pay his sanction for refusing to obey previous discovery orders, and it set forth conditions for reinstatement of the complaint. The District Court denied the renewed motion and dismissed the complaint with prejudice because the expiration of the statute of limitations before the dismissal without prejudice precluded the plaintiff from rectifying his discovery deficiencies. The Third Circuit held that, when a complaint is filed within the limitations period but later is dismissed without prejudice in an order that contains conditions for reinstatement within a certain time period, the limitations period is tolled, as long as the plaintiff meets the conditions.

CIVIL RIGHTS:
DiBELLA v. BOROUGH OF BEACHWOOD
Third Circuit, No. 03-4892/04-1257, May 12, 2005. By Shapiro, Senior U.S.D.J. for the Eastern District of Pennsylvania, sitting by designation. Also on panel: Roth, C.J. and Chertoff, C.J. Appealed from the U.S. District Court for the District of New Jersey. (10 pages). Facts-on-Call Order No. 92459

The Third Circuit affirmed the District Court’s post-trial order that vacated a jury verdict awarding $78,237 in compensatory damages and $95,000 in punitive damages to each plaintiff because there had been no Fourth Amendment seizure as required in a malicious prosecution action under 42 U.S.C. §1983. The plaintiffs were arrested for defiant trespass while campaigning for municipal positions, and their Municipal Court convictions were overturned by the Law Division. The Municipal Court then amended the charge to creating a hazardous condition by an act which serves no legitimate purpose of the actor, and their convictions again were overturned by the Law Division. Contrary to the plaintiffs’ argument that having to attend trial on the charges constituted an unreasonable seizure, the Third Circuit concluded that attending one’s trial is not a government seizure in a §1983 malicious prosecution action for violating the Fourth Amendment.

COMMUNICATIONS:
COMCAST CABLE COMMUNICATIONS v. ADUBATO
U.S. District Court (DNJ), Civ. No. 04-4643 (DRD), April 28, 2005, released for publication May 9, 2005. By Debevoise, Senior U.S.D.J. (22 pages). Facts-on-Call Order No. 92461

In an action arising from the defendant’s purchase and use of a “bootleg” decoding device to intercept and receive the plaintiff cable company’s television programming services without paying for them, the District Court issued a default judgment that granted a final injunction to bar the defendant from further illegal use of a decoder but denied the plaintiff’s demand for damages and costs. The District Court determined that the defendant was subject to injunctive relief under 47 U.S.C. §553(c)(2) and to damages of no more than $10,000 under §553(c)(3)(A)(ii) because he had not denied that he purchased and used an illegal decoder and because a purchase slip indicated that he had done so. However, the District Court found it “unconscionable” to award relief beyond the injunction due to the conduct of the plaintiff and its attorney. The District Court found that the plaintiff and its attorney had attempted to “hornswoggle” the court (1) by seeking $100,000 in additional damages under 47 U.S.C. §605, which the Third Circuit has held does not apply to the offense with which the defendant was charged, (2) by advancing two claims for which there was “absolutely no factual basis” to obtain damages under §605, and (3) by advancing a claim for which there was “absolutely no factual basis” to obtain $50,000 in additional damages under §553(c)(3)(B).

ERISA:
ISKO v. ENGELHARD CORP.
U.S. District Court (DNJ), Civ. No. 05-333 (WHW), April 29, 2005, released for publication May 9, 2005. By Walls, U.S.D.J. (16 pages). Facts-on-Call Order No. 92463

In an action concerning the plaintiff retiree’s attempt to alter the instructions he gave to the defendant employer about his receipt of payments under the defendant’s excess benefit plan, the District Court granted the plaintiff’s motion to remand the case to the New Jersey Superior Court because the District Court lacked subject-matter jurisdiction. The plaintiff’s claims alleged breach of fiduciary duty and breach of contract and sought declaratory judgments to enable the plaintiff to alter the instructions and to specify the correct amount of his benefit payments. The defendant had removed the case to the District Court on the grounds that ERISA preempted the plaintiff’s state law claims. The District Court concluded that ERISA was not controlling based on 29 U.S.C. §1003(b) of ERISA — which states that ERISA does not apply to an unfunded “excess benefit plan” — because the defendant’s excess benefit plan was an “excess benefit plan” within the meaning of 29 U.S.C. §1002(36).


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