NEW JERSEY LAWYER

DAILY BRIEFING      05/04/2005


News Briefs

SENATE PANEL TO CONSIDER JUDGE NOMINEES FOR MORRIS/SUSSEX
The state Senate Judiciary Committee on Thursday will consider three nominees for judicial vacancies in Morris and Sussex counties. They are: Republicans Robert Brennan, a principal at Porzio, Bromberg & Newman in Morristown, and former assistant U.S. Attorney Thomas Weisenbeck, along with Democrat Robert McCarthy, a professor at Seton Hall University School of Law and former general counsel at Time in New York. Morris County has been using recall judges and one on loan from Hunterdon County to fill its three vacancies, while Sussex, which shares a vicinage with Morris, has been down one judge. Acting Gov. Richard J. Codey said an additional nomination for the remaining opening will be announced soon. 5-3-05

SEX-OFFENDER-FREE ZONES BEING PROPOSED
Officials in Hamilton Township in Mercer County are considering an ordinance that would ban registered sex offenders from living within 2,500 feet of public schools and parks, a proposal similar to one being drafted in Keansburg. Deborah Jones, executive director of the American Civil Liberties Union of New Jersey, says such measures “violate constitutional protections of due process and double jeopardy.” Hamilton Mayor Glen Gilmore said that if Hamilton’s proposal “creates a hardship on someone who has a history of attacking children, it is a consequence they are responsible for.” 5-3-05

IDENTITY-THEFT PROTECTION BILL INTRODUCED
With identity theft increasing nationwide, a bill introduced in the state Assembly would require businesses to take several big steps to safeguard customer information, such as implementing systems that automatically alert customers when their data has been stolen. A-4001, introduced by Assemblywoman Bonnie Watson Coleman (D-Mercer) and referred to the Assembly Consumer Affairs Committee, also would require businesses destroy personal information documents to protect them from dumpster-diving thieves, and let residents place security freezes on consumer credit reports to prevent unauthorized access. Identity theft cost consumers and businesses an estimated $50 billion in 2003. 5-3-05

LAWYERS BEWARE IN COLLECTING DEBT
Law firms providing debt collection services must choose their words and letters wisely when attempting to collect debts on which the statute of limitations has expired, ruled the U.S. District Court in Connecticut. In Gervais v. Riddle & Associates, the court found that although it did not threaten legal action per se, Utah-based Riddle’s use of a collection letter with its law firm letterhead and repeated phone calls that cited an “important legal matter” to a debtor were enough of an implied threat to violate the Fair Debt Collection Practices Act, which prohibits use of “false, deceptive or misleading representation” to collect debts. Plaintiff Gilbert J. Gervais said Riddle should have known the statute of limitations for collecting on debt had expired. In 1993, he stopped paying on an $8,000 balance on a credit card from MBNA American and in 2003, Riddle began collection activity on behalf of MBNA’s successor company, Capital Acquisitions and Management Co. 5-3-05

DEFENDANT CANNOT SUE FOR BOTCHED PLEA AGREEMENT
A man who received an excessive sentence on a drug charge cannot sue his defense attorneys for malpractice because he was guilty of the underlying charge, the Illinois Appellate Court has ruled. Citing state law in Paulson v. Cochran, the appellate panel said that in order to sue his former attorneys for malpractice, the plaintiff had to prove his innocence — “a requirement he cannot meet unless his conviction is overturned.” The plaintiff sued his attorneys because they negotiated a one-year jail sentence and an $88,500 fine in exchange for his guilty plea to transporting marijuana. The state later cited a miscalculation in the agreement and reduced the fine to $50,000. The court upheld the attorneys’ argument that the state law requires a showing of “actual innocence” in malpractice suits against criminal defense attorneys. Their client argued that rule doesn’t apply to an unfair penalty. 5-3-05



Today's Decision Summaries

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FROM THE NEW JERSEY SUPREME COURT, TUESDAY, MAY 3, 2005
NO OPINIONS WERE RELEASED BY THE NEW JERSEY SUPREME COURT ON TUESDAY, MAY 3, 2005, AND NO OPINIONS ARE SCHEDULED FOR RELEASE ON WEDNESDAY, MAY 4, 2005.


APPROVED FOR PUBLICATION
DISCOVERY
HALBACH v. BOYMAN
Appellate Division, A-1045-04T2, approved for publication May 3, 2005. (11 pages). Facts-on-Call Order No. 92441

The defendant attorney, who was representing himself, was entitled to invoke the work-product privilege under Rule 4:10-2(c) in response to deposition questions about his reasons for writing letters in connection with the litigation.

NOT APPROVED FOR PUBLICATION
INSURANCE
SALAMA v. LIBERTY MUTUAL FIRE INSURANCE CO.
Appellate Division, A-5104-03T1, May 3, 2005, not approved for publication. (7 pages). Facts-on-Call Order No. 17906

Summary judgment for the plaintiffs enforcing an underinsured motorist arbitration award of $80,000 affirmed; the defendant insurer’s policy provided that either party could demand the right to a trial within 60 days of the arbitration decision and that, if the demand was not made, the amount of damages agreed to by the arbitrators was binding; the defendant’s letter rejecting the arbitration award never demanded a trial either expressly or impliedly, and no reasonable interpretation could possibly consider the letter a demand for a jury trial under the policy; because the letter did not suffice as a demand for trial and because it therefore did not satisfy the defendant’s own contractual requirement, the plaintiffs were entitled to confirmation of the arbitration award.

PREMISES LIABILITY
LANUZA v. ORFE
Appellate Division, A-4197-03T1, May 3, 2005, not approved for publication. (4 pages). Facts-on-Call Order No. 17905

Order granting the defendant property owners’ motion for summary judgment and dismissing the personal injury action affirmed; the minor plaintiff burned herself when she fell against a closed oven door in the apartment of a tenant she was visiting; the plaintiffs incorrectly argued on appeal that a tenant or guest may bring a personal injury action against a landlord for breach of an implied warranty of habitability without showing actual or constructive knowledge by the landlord of the allegedly dangerous condition causing the injury; there was no such showing in this case.

CIVIL PROCEDURE
HOSPITAL & DOCTORS SERVICE BUREAU v. MITCHELL
Appellate Division, A-6452-03T5, May 3, 2005, not approved for publication. (3 pages). Facts-on-Call Order No. 17908

Summary judgment awarding damages for unpaid medical bills to the plaintiff assignee of the medical-service providers that had treated the pro se defendant reversed and remanded; the defendant filed both a certification opposing the summary judgment and a third-party complaint against the tortfeasors who had caused his injuries; both papers were marked “received but not filed,” and the motion judge was not aware of either; remand was required so that the motion judge could consider the certification and rule on the claims raised by the defendant in the first instance.

REAL PROPERTY
STATE OF NEW JERSEY BY THE COMMISSIONER OF TRANSPORTATION v. ROBBINS
Appellate Division, A-5310-03T3, May 3, 2005, not approved for publication. (7 pages). Facts-on-Call Order No. 17904

Order denying the defendant tenants’ request for allocation of the condemnation award proceeds attributable to their leasehold interest in the property owned by the defendant landlord affirmed substantially for the reasons expressed by the trial court; the tenants rented the property and operated a bagel shop; the landlord received $380,000 for his property from the plaintiff Department of Transportation; there was sufficient evidence in the record for the trial court to find that the tenants’ interest was zero because they were not “paying less than fair market rent at the time when the property [was] taken.”

EMPLOYMENT LAW
RODGERS v. ELETTO TRANSPORT
Appellate Division, A-4950-03T1, May 3, 2005, not approved for publication. (20 pages). Facts-on-Call Order No. 17907

Summary judgment for the defendant employer and the defendant immediate supervisor on the plaintiff employee’s claims for breach of contract, retaliation, and negligence affirmed, but summary judgment for the defendants on a claim for wrongful discharge in violation of the Law Against Discrimination reversed and remanded; the plaintiff was an African-American supervisor who was laid off during the employer’s downsizing and reorganization; the plaintiff could proceed with his wrongful discharge claim (1) because he established a prima facie case of discrimination and (2) because, even though the defendants established a legitimate nondiscriminatory reason for the plaintiff’s discharge, the plaintiff’s factual assertions about the immediate supervisor’s actions raised an inference of discrimination or pretext that was sufficient to withstand summary judgment; the trial court did not err by dismissing the breach of contract claim because it reasonably determined that the employee handbook issued by the employer did not create an implied contract.

DRUNK DRIVING
STATE v. WEBSTER
Appellate Division, A-580-04T2, May 3, 2005, not approved for publication. (6 pages). Facts-on-Call Order No. 17902

Conviction of driving while intoxicated affirmed; after the defendant was arrested, he was taken to the police station for Breathalyzer tests; the first test produced a reading of .15, and a second test, which was administered 10 minutes later, produced a reading of .16; contrary to the defendant’s argument that the Breathalyzer tests were improperly administered because the police failed to continuously observe him for 20 minutes before the tests, the record was “clear” that there was nothing in the defendant’s mouth between his arrest and the tests and that he took his last drink more than 50 minutes before the first test; the credible evidence supported the finding that the Breathalyzer tests were properly administered by a qualified operator and that the test results were properly admitted into evidence.

DOMESTIC VIOLENCE
STATE OF NEW JERSEY v. SMITH
Appellate Division, A-6275-03T1, April 29, 2005, not approved for publication. (10 pages). Facts-on-Call Order No. 17903

Family Part order granting the State’s motion for forfeiture of the defendant’s firearms and revocation of his gun permits affirmed but modified and remanded for determination as to whether the State has disposed of the weapons; in view of the defendant’s demonstrated history of domestic violence and “uncontrollable anger,” and pursuant to N.J.S.A. 2C:58-3c(5), the motion court correctly declined to order the return of his firearms and permits after finding that doing so would not be in the public’s interest even though a domestic-violence complaint was dismissed; however, under State law, the defendant should have had the opportunity to sell or transfer his firearms; if they are still available, the State must give the defendant the necessary papers to arrange for such a transfer.


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