NEW JERSEY LAWYER

DAILY BRIEFING      05/19/2005


News Briefs

THIRD CIRCUIT SAYS BOOKER CANNOT BE APPLIED RETROACTIVELY
Joining the 11th and 6th U.S. circuits, the 3rd U.S. Circuit Court of Appeals has found that the Booker ruling on the unconstitutionality of judge-enhanced sentencing cannot be applied retroactively. In Lloyd v. United States, it affirmed a U.S. District Court’s dismissal of a convict’s request to vacate his prison sentence because it violated the U.S. Supreme Court’s Jan. 12 U.S. v. Booker ruling that federal sentencing guidelines violate the Sixth Amendment right to a jury trial. A jury convicted Garry D. Lloyd of bank fraud, and a U.S. District Court judge, finding facts not found by the jury, sentenced him to 50 months imprisonment followed by five years of supervised release, both provided for in federal guidelines. “It bears repeating, and the parties do not dispute, that Lloyd’s conviction became final on May 6, 2003,” (20 months before Booker), the 3rd Circuit said, adding, “We hardly break new ground.” Earlier decisions were in the 11th Circuit’s Varela v. United States and the 6th Circuit’s Humphrees v. United States. (A full text of Lloyd, Facts-on-Call No. 92465, can be ordered from NJL Online or by calling 800-670-3370.) 5-18-05

NEW SUPERIOR COURT NOMINEES GO BEFORE JUDICIARY COMMITTEE
Two new Superior Court nominees, Richard W. English of Ocean and John T. Mullaney Jr. of Eatontown, will be interviewed Monday by the Senate Judiciary Committee. The committee also will consider the following reappointments to the workers compensation bench: Leslie A. Berich, Cosmo A. Giovinazzi, Sue Pai Yang and Audry Zane. 5-18-05

JUDGE TAKES STAND AGAINST A FORMER PLAINTIFF
In a role reversal, Mercer County Judge Andrew J. Smithson took the witness stand in the trial of a man accused of committing fraud in the settlement of a lawsuit before the judge in 2003. Smithson testified that Josephus Nyema falsified the terms in attempting to increase to $18,500 his $2,500 settlement with the Department of Corrections and the City of Trenton. Smithson said he became suspicious when he saw typographical errors in the settlement papers. Defense attorney Jack L. Seelig of Seelig and Rednor in Trenton reportedly argued his client had settled for $18,500. Nyema had sued the DOC for not letting him switch from a county to a state corrections job. His fraud trial is before Mercer County Judge Thomas P. Kelly. 5-18-05

CHERTOFF TO SPEAK AT RUTGERS LAW-CAMDEN GRADUATION
One of the biggest celebrities in New Jersey law, Homeland Security Secretary Michael Chertoff, will be keynote speaker Friday at the Rutgers Law School-Camden graduation ceremonies. Chertoff is a former 3rd U.S. Circuit Court of Appeals judge and a former criminal division director for the U.S. Justice Department’s criminal division. He is scheduled to address the 277 graduates at 1 p.m. at the Tweeter Center in Camden. For further information, call Michael Sepanic, the school’s communications director, at (856) 225-6026. 5-18-05

SENATE BUDGET PANEL REVIEWS JUDICIARY’S REQUEST THURSDAY
The state Senate Budget Committee on Thursday afternoon will review the judiciary’s proposed $554 million budget. The courts are seeking $1.7 million more than a year ago. 5-18-05



Today's Decision Summaries

To Order Decisions

Now you can order the full text of these decisions directly from the Daily Briefing. Just click on the Facts-on-Call Order Number and the order page will open. And of course you still can order by phone by calling 1-800-670-3370. (A PIN number is required to use the service. If you need a free PIN Number, call 800-310-8678.)

FROM THE NEW JERSEY SUPREME COURT, WEDNESDAY, MAY 18, 2005
THE FOLLOWING OPINIONS WERE RELEASED BY THE NEW JERSEY SUPREME COURT ON WEDNESDAY, MAY 18, 2005:

CONSUMER PROTECTION
THIEDEMANN v. MERCEDES-BENZ USA, LLC
New Jersey Supreme Court, A-41, May 18, 2005. (32 pages). Facts-on-Call Order No. 92467

The entity responsible for sales, service, and marketing of Mercedes-Benz automobiles in the United States was entitled to summary judgment because the putative class representatives failed to produce evidence from which a finder of fact could infer that they suffered a quantifiable or measurable loss as the result of an alleged violation of the Consumer Fraud Act based on a fuel gauge defect where repairs for the defects were paid for by the entity.

HUSBAND AND WIFE
STENEKEN v. STENEKEN
New Jersey Supreme Court, A-100, May 18, 2005. (27 pages). Facts-on-Call Order No. 92466

When determining the income from a closely held corporation for purposes of awarding alimony, a court is not required to use the same method of calculating income that is used to determine the value of the corporation for purposes of equitable distribution. Justice Long dissented.

THE SUPREME COURT has announced that it will release opinions in MILLVILLE BOARD OF EDUCATION v. N.J. DEPARTMENT OF EDUCATION, A-4, and PASSAIC BOARD OF EDUCATION v. N.J. DEPARTMENT OF EDUCATION, A-3, on May 19, 2005. The issue on appeal in Millville Board of Education addresses whether the State can require Abbott school districts to pay for a portion of preschool education. The issues on appeal in Passaic Board of Education address whether the State can require Abbott school districts to pay for a portion of preschool education and whether the State can use per-pupil costs that include Abbott districts’ fixed costs when making adjustments to appropriations based on the actual need of an Abbott district for Preschool Expansion Aid.



APPROVED FOR PUBLICATION
BANKING
PARKS v. COMMERCE BANK, N.A.
Appellate Division, A-3866-03T1, approved for publication May 18, 2005. (14 pages). Facts-on-Call Order No. 92468

As a matter of first impression in New Jersey, a bank may not stop payment on a cashier’s check or reverse a wire transfer against a customer’s wishes when the bank discovers an insufficiency of funds in the customer’s account after it issues the certified instruments.

NOT APPROVED FOR PUBLICATION
VERBAL THRESHOLD
JARAMILLO v. STEVENS
Appellate Division, A-1252-04T3, May 18, 2005, not approved for publication. (4 pages). Facts-on-Call Order No. 17968

Summary judgment for the defendants based on the N.J.S.A. 39:6A-8a verbal threshold affirmed substantially for the reasons expressed by the trial court; applying Oswin, the trial court concluded that the 38-year-old plaintiff had presented sufficient objective credible medical evidence of a permanent injury to her cervical spine but had not demonstrated that her injuries had a serious impact on her life (1) where she testified at her deposition that the only activities that she could no longer perform were cleaning her bathrooms, roughhousing with her 3-year-old son, playing soccer, and bicycle riding for two hours, (2) where she joined a gym one year after the accident, and (3) where she had not been treated for her injuries for nearly two years and was not taking medication to treat her injuries.

VERBAL THRESHOLD
HURTADO v. JACKSON
Appellate Division, A-495-03T5, May 18, 2005, not approved for publication. (4 pages). Facts-on-Call Order No. 17969

Denial of the plaintiff’s motion for reconsideration of an order that granted summary judgment for the defendants based on the N.J.S.A. 39:6A-8a verbal threshold affirmed; the plaintiff was injured in a motor vehicle accident on March 1, 2000, and he also had been injured in a motor vehicle accident on June 15, 1998 and in a work-related fall from a ladder in October 1997; the trial court’s conclusion that the plaintiff failed to meet his burden under Polk of demonstrating that the injuries for which he sought damages were caused by the March 1, 2000 accident was supported by the record, and the plaintiff had presented no new matters that were not or could not have been presented in connection with the original motion.

INSURANCE
REID v. AMERICAN INTERNATIONAL INSURANCE CO. OF NEW JERSEY
Appellate Division, A-3357-03T3, May 18, 2005, not approved for publication. (7 pages). Facts-on-Call Order No. 17967

Law Division’s determination that the plaintiff was not entitled to underinsured motorist benefits because the step-down clause applied to her and thus limited the defendant insurer’s liability to the $15,000 minimum under N.J.S.A. 17:28-1.1 and because she was not underinsured where she had received that amount from the tortfeasor affirmed; the plaintiff was injured while driving her mother’s car, the tortfeasor paid its $15,000 policy limit to the plaintiff, and the plaintiff sought UIM benefits under her mother’s policy, which was issued by the defendant; the plaintiff lived apart from her mother and was not insured under any automobile policy as a household resident; the plaintiff’s argument that all family members of the named insured should be considered “family members” within the meaning of the policy and thus not subject to the step-down provision was not consistent with the policy language or with the principles of the construction of an insurance policy; the step-down provision was not contrary to public policy.

PUBLIC RECORDS
BAILEY v. STATE OF NEW JERSEY, DEPARTMENT OF AGRICULTURE
Appellate Division, A-4903-03T2, May 18, 2005, not approved for publication. (12 pages). Facts-on-Call Order No. 17966

Final decision of the General Records Council dismissing a complaint against the New Jersey Department of Agriculture for allegedly withholding government records relating to a plant nursery affirmed; when the complainant requested, among other things, copies of certain “dealer” documents pertaining to the nursery, the Department provided copies of the only documents it still had on file; contrary to the complainant’s assertions on appeal, (1) the GRC did not err in dismissing the complaint after finding that the Department had complied fully with the request for records because the nursery was not registered as a “dealer” and, therefore, no “dealer” records existed, (2) the GRC had no authority to decide whether the Department should have registered the nursery as a “dealer” rather than as a nursery, and (3) none of the factors warranting reconsideration by the GRC were present in this case.


To Order Decisions

Now you can order the full text of these decisions directly from the Daily Briefing. Just click on the Facts-on-Call Order Number and the order page will open. And of course you still can order by phone by calling 1-800-670-3370. (A PIN number is required to use the service. If you need a free PIN Number, call 800-310-8678.)


Click this link to unsubscribe to the Daily Briefing email



Copyright © 2005 The New Jersey Lawyer Inc. All rights reserved.