NEW JERSEY LAWYER

DAILY BRIEFING      05/31/2005


News Briefs

CORRUPTION FIGHTER SLATED AS MONMOUTH PROSECUTOR
Monmouth County, the scene of widespread political corruption allegations, may get a new county prosecutor with corruption-fighting experience. State Sen. Ellen Karcher (D-Monmouth) expects that sometime this week acting Gov. Richard J. Codey will formally nominate assistant U.S. Attorney Luis Valentin, head of the political corruption prosecution unit at the U.S. Attorney’s Office in Newark, to replace John Kaye, whose term as county prosecutor expires June 28. U.S. Attorney Christopher J. Christie has accused Kaye of interfering in the investigation of county and local officials charged earlier this year with accepting bribes. 5-27-05

SUPREME COURT WEIGHS PEREMPTORY CHALLENGE REDUCTION
The New Jersey Supreme Court is considering reducing the number of “I-don’t-have-to-give-a-reason” peremptory challenges in criminal jury selection. Reducing the number of such challenges, which already is raising hackles from the defense bar, is part of a package of recommendations from a soon-to-be-released report by a Supreme Court special committee. What is known so far is that the proposal calls for more intense voir dire proceedings as a tradeoff for cutting down on challenges. The idea isn’t sitting well, for example, with prominent criminal defense lawyer Joseph A. Hayden Jr. of Walder Hayden & Brogan in Roseland. He says, “Our system is not broke, so don’t fix it.” Complete details of this exclusive story are in the May 30 edition of New Jersey Lawyer. 5-27-05

JUROR INDENTITY SHIELDED IN ANIMAL-RIGHTS ACTIVISTS CASE
Court-ordered protection of jurors’ identities — an increasingly thorny issue for judges and the media — is being used in the trial of animal rights activists in federal court in Trenton. U.S. District Judge Mary L. Cooper has ruled that jurors’ names and other identifying information be kept secret because jurors may fear retaliation by Stop Huntingdon Animal Cruelty, whose members are being tried for using a website to incite violence against the animal testing laboratory, Huntingdon Life Sciences of Somerville. Cooper also is said to have indicated she wanted to be sure third parties do not approach jurors and cause a mistrial in what could be a lengthy trial. 5-27-05

AOC NEWSLETTER WINS JOURNALISM AWARD
The Administrative Office of the Courts’ Judiciary Times has won the New Jersey chapter of the Society of Professional Journalists’ “Best of 2004” award, one of only three newsletters so honored in the chapter’s annual contest. Judge Philip S. Carchman, acting administrative director of the courts, praised the publication’s staff and courthouse contributors, specifically citing the editor, Linda Brown Holt, and Winnie Comfort, AOC communications director. The newsletter, which can be viewed at the AOC website, njcourtsonline.com, tries to “put a human face on justice for judges and court staff,” Holt said. 5-27-05

ASBESTOS DAMAGES FUND COULD FACE FIGHT IN SENATE
A fund that would shield manufacturers and insurers from asbestos-related lawsuits has been released by the U.S. Senate Judiciary Committee, but its approval by the full Senate is questionable. It’s actually a battle that has been going on between Senate Democrats and Republicans there for some time. Democratic Sens. Russ Feingold of Wisconsin and Joseph Biden of Delaware plan to launch a Senate floor fight against the bill that would create a trust fund paying damages to asbestos victims and shielding from litigation companies that contribute to the fund. Committee member Jon Kyl, an Arizona Republican, noted the bill “does need substantial work.” That may be a veiled way of saying Republicans may be searching for some sort of compromise to head off a Democratic filibuster. Republicans were successful recently in enacting another long-stalled measure designed to move most class actions from the state courts to the federal bench. 5-27-05



Today's Decision Summaries

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FROM THE NEW JERSEY SUPREME COURT, FRIDAY, MAY 27, 2005
NO OPINIONS WERE RELEASED BY THE NEW JERSEY SUPREME COURT ON FRIDAY, MAY 27, 2005, AND NO OPINIONS ARE SCHEDULED FOR RELEASE ON TUESDAY, MAY 31, 2005.


APPROVED FOR PUBLICATION
 
NO OPINIONS APPROVED FOR PUBLICATION WERE RELEASED BY THE APPELLATE DIVISION ON ON FRIDAY, MAY 27, 2005.

NOT APPROVED FOR PUBLICATION
ATTORNEYS
HAVERTY v. ANDRES & BERGER, P.C.
Appellate Division, A-5166-03T2, May 27, 2005, not approved for publication. (5 pages). Facts-on-Call Order No. 18020

Summary judgment dismissing on the basis of the entire controversy doctrine both a claim by the plaintiff attorney for fees on cases that he handled as a former at-will associate of the defendant law firm and a counterclaim by the defendants for fees on another case that the plaintiff allegedly took with him reversed in part and dismissed in part; the plaintiff had prevailed in a prior appeal against the firm on his first complaint for payment of a “bonus” allegedly due from a settlement; after remand of the first complaint, the trial court dismissed the plaintiff’s second complaint for fees arising from other cases; although the plaintiff knew of the second claim before the disposition of the first complaint, it would be “unfair” and “inappropriate” to apply the entire controversy doctrine in this case (1) because the defendants had “invited” the plaintiff to file the second complaint, (2) because the plaintiff indicated that the second complaint was “the final dispute” over fees, and (3) because of the circumstances surrounding the termination of the first case before this appeal; the defendant’s cross-appeal was dismissed because the issue raised had not been briefed.

TORT CLAIMS ACT
BATTAGLIA v. SUSSEX COUNTY
Appellate Division, A-5447-01T1, May 27, 2005, not approved for publication. (8 pages). Facts-on-Call Order No. 18019

Summary judgment based on the Tort Claims Act that dismissed the plaintiff inmate’s personal injury complaint against the defendant county and the defendant correctional facility reversed and remanded; the plaintiff claimed that he broke two teeth when he bit into a “cement-hard” taco shell that was prepared by fellow inmates who worked in the facility’s kitchen; contrary to the motion court’s rulings, (1) the plaintiff’s claim was not barred by the TCA to the extent that he sought only objective damages, such as the cost of repairing or replacing the teeth, and (2) even assuming that the plaintiff’s teeth were in a “deteriorated condition” before the incident, his assertion of how the injury occurred, combined with the applicable legal principles, was sufficient to establish the necessary causal link between the claimed negligence and the resulting injury; contrary to the defendants’ assertions, to the extent that the inmates in the kitchen were recruited to provide services that the defendants must provide, the inmates “became de facto employees” of the defendants for purposes of the TCA, and N.J.S.A. 59:5-2, which renders the public entity immune for injuries that one inmate causes to another, also did not apply.

PUBLIC EMPLOYEES
CIAGLIA v. COUNTY OF HUDSON
Appellate Division, A-6757-03T5, May 27, 2005, not approved for publication. (10 pages). Facts-on-Call Order No. 18022

Summary judgment for the defendant county in an action by the plaintiff executrix of the estate of the decedent county employee to recover money for the decedent’s unused sick time that was accumulated before 1990 affirmed; beginning in 1990, the county’s policy was to limit compensation for unused sick time to $5,000; the limit was later increased to $10,000, and the county paid the decedent’s estate $10,000 for unused sick time; contrary to the plaintiff’s arguments on appeal, (1) there was no evidence that the decedent had a “right” to compensation for unused sick time that he had accumulated between 1948 and 1990, (2) the “retroactive” application of the county’s 1990 policy was not an unconstitutional impairment of contracts, and (3) nothing in the record supported the claim that the decedent had relied to his detriment on the assumption that the policy would permit compensation for unused sick time that was accumulated before 1990.

DOMESTIC VIOLENCE
NORMAN v. REAN
Appellate Division, A-4224-03T5, May 27, 2005, not approved for publication. (6 pages). Facts-on-Call Order No. 18021

Denial of the plaintiff ex-husband’s application for a final domestic violence restraining order due to his failure to establish that the defendant ex-wife had acted with a purpose to harass affirmed; the plaintiff alleged that the defendant had harassed him by leaving messages on his answering machine for the plaintiff’s current wife at about 10 p.m. on a night when the parties’ children were staying with him; the trial court found (1) that the messages were not threatening, related to parenting, and were not made at an extremely inconvenient hour and (2) that the defendant’s remarks about the parenting abilities of the plaintiff and his current wife were “commentary”; the trial court’s finding that the defendant did not act with a purpose to harass was supported by the evidence and was consistent with the controlling precedents.

NEGLIGENCE
FALCIANI v. ROWAN UNIVERSITY
Appellate Division, A-2945-03T5, May 26, 2005, not approved for publication. (34 pages). Facts-on-Call Order No. 18018

Summary judgment for the defendant university, the defendant State of New Jersey, and the defendant university employees affirmed in an action for injuries sustained by the plaintiff pedestrian when he was struck by a vehicle while attempting to cross a State road located on the university’s campus; as to the university, it was a public nonprofit college that was entitled to charitable immunity under the Charitable Immunity Act and O’Connell v. State, and the gross negligence exception under N.J.S.A. 2A:53A-7c did not apply because it applies only to trustees, directors, officers, employees, agents, servants, or volunteers of an entity and not to the entity itself; as to the State, the plaintiff failed to satisfy the elements of dangerous-condition liability under N.J.S.A. 59:4-1 and 59:4-2, and summary judgment based on plan or design immunity under N.J.S.A. 59:4-6 was proper; as to the university employees, they were entitled to immunity under N.J.S.A. 59:3-1c because the university was immune, “albeit under a different act.”

TORTS
CREATIVE MACHINING SYSTEMS, INC. v. ANTHRACITE LEASING CO., INC.
Appellate Division, A-3512-03T1, May 26, 2005, not approved for publication. (10 pages). Facts-on-Call Order No. 18015

Judgment of $32,000 plus costs and interest for the plaintiff industrial equipment owner in a conversion action affirmed; after the plaintiff delivered its surface grinder to the tenant for repair, the defendant landlord locked out the tenant for nonpayment of rent, and the tenant vacated the premises but left the grinder behind; the landlord’s exercise of dominion over the plaintiff’s property in a way that was inconsistent with the plaintiff’s property rights was “classic” conversion; the record supported the trial court’s findings (1) that the plaintiff’s attempt to take possession of the grinder was blocked by the defendant, (2) that the defendant had no right to withhold the grinder from the plaintiff, and (3) that the grinder was damaged while it was in the defendant’s possession, which made the defendant responsible for damages; the trial court’s decision, including the calculation of damages as the amount that the plaintiff had paid to the tenant for repairs, was consistent with the law and was based on credible evidence.

SETTLEMENTS
NEW CENTURY FINANCIAL SERVICES, INC. v. JACKSON
Appellate Division, A-180-03T5, May 26, 2005, not approved for publication. (4 pages). Facts-on-Call Order No. 18017

Order denying the plaintiff financial services company’s motion to enforce an oral settlement agreement in a Special Civil Part case reversed and remanded; the plaintiff alleged that the defendant debtor orally agreed to pay $320 per month until the total sum owed on a delinquent credit-card account was paid, and it filed its motion after the defendant failed to sign and return a written stipulation of settlement and failed to make her first payment; in the absence of opposition to the motion, there was no justification for the procedures mandated by the Special Civil Part order, which required the plaintiff to proceed to trial or to file a new complaint alleging breach of the oral contract; the Special Civil Part first had to determine whether the parties had entered into an oral settlement agreement.

HUSBAND AND WIFE
VAN DER GROEF v. VAN DER GROEF
Appellate Division, A-218-04T5, May 26, 2005, not approved for publication. (12 pages). Facts-on-Call Order No. 18016

Post-divorce-judgment order entered on remand that required the plaintiff ex-husband to pay $5,416.55 to the defendant ex-wife affirmed as to the treatment of $13,500 in marital debt but remanded as to the issue of alimony arrears, and the Appellate Division exercised its original jurisdiction to fix the plaintiff’s child support obligations for the parties’ son and daughter; the trial court properly explained its treatment of the debt using equitable principles, but an accurate determination of the alimony arrears could not be made without a probation audit; the trial court erred by calculating child support (1) for the son by using an “unrealistically low” figure for the plaintiff’s contributions toward food, shelter, and clothing and without crediting the plaintiff for tuition after the son withdrew from college and (2) for the daughter in a manner that was contrary to the prior remand order because it did not assess actual child support paid.


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