NEW JERSEY LAWYER

DAILY BRIEFING      06/10/2005


News Briefs

TRANCRIPTION FEES TO RISE
Law firms should brace for what’s being projected as a 16 percent increase in their cost for transcriptions of court proceedings starting July 1. That’s the effective date of a section of P.L. 2000, c.30. That amendment to the state’s transcript fees law, N.J.S.A. 2B:7-4, stipulates the per-page charge is to increase to the same extent as the Consumer Price Index rose during the previous five years. Some stenography agencies that work for courts plan to increase their base rate to $3.48 per page from $3, based on their unofficial estimate that the region’s CPI rose 16 percent since 2000. The base rate was last increased in 2000 to $3, up from the $1.50 in effect since the early 1980s. 6-9-05

AUTO ACCIDENT CASE SETTLES FOR $1.75 MILLION.
A Hiawatha woman who fractured her skull and one eye orbit when her car was struck by a U.S. Postal Service truck that ran a red light agreed to accept $1.75 million from the U.S. government shortly before trial was to begin in federal court in Newark. Madeleine Marcado, 35, a bookkeeper and Philippines immigrant, still suffers memory deficit, double vision in one eye and residual arm pain following the 2002 accident in Parsippany, according to her attorney, John G. Mennie of Schibell & Mennie in Ocean. U.S. District Judge Harold A. Ackerman approved the lump-sum settlement. Assistant U.S. Attorney Pamela R. Perron represented the government. 6-9-05

MAN CONVICTED FOR SENDING SPYWARE
In a clear message that there’ll be little tolerance for technology-based invasions of privacy, the Morris County Prosecutor’s Office is characterizing as a warning to the public the plea deal gained from a Mount Olive man who used computer spyware to track his two adult children and a former landlord. Robert DeFillippo pleaded guilty and faces up to five years on probation; sentencing is July 8 in Morris County Superior Court. He was arrested after prosecutors obtained records from an internet service provider showing he sent spyware e-mail to the victims’ computers. County Prosecutor Michael M. Rubbinaccio noted that such computer-based spying “is unnerving and creates feelings of insecurity, which affects people psychologically for a long time.” 6-9-05

FIRMS INCREASE USE OF GENERAL COUNSEL
Heightened concerns about liability are prompting large law firms to increase their use of general counsel, specialists in handling firms’ own legal concerns, and mid-sized firms will soon follow that trend, according to legal profession management consultants Altman-Weil. Its survey of the nation’s 200 largest firms found 69 percent now have designated general counsel, up from 63 percent reported in 2004. Additionally, 32 percent of those general counsel work full-time in the position, up from 26 percent in 2004. Altman-Weil principal Ward Bower attributed the increase to firms’ growing concern about liability “in our post-Enron, Sarbanes-Oxley environment,” adding “more mid-sized firms are moving in this direction as well.” Sarbanes-Oxley is the financial reporting reform law Congress enacted after the accounting scandal at the former Enron Corp. 6-9-05

TEXAS JUSTICE METED OUT AT THE POLLS
Despite his sterling record as a judge, it was a case of first impersonation that won the San Antonio’s mayoral seat for Phil Hardberger, retired chief justice of a Texas appellate court. His opponent, Julian Castro, also a lawyer, had a double-digit lead in the polls before Castro had his identical twin substitute for him at a parade and the public found out. The gaffe dropped Castro’s popularity and cost him the election. 6-9-05



Today's Decision Summaries

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FROM THE NEW JERSEY SUPREME COURT, THURSDAY, JUNE 9, 2005
NO OPINIONS WERE RELEASED BY THE NEW JERSEY SUPREME COURT ON THURSDAY, JUNE 9, 2005, AND NO OPINIONS ARE SCHEDULED FOR RELEASE ON FRIDAY, JUNE 10, 2005.


APPROVED FOR PUBLICATION
ATTORNEYS
MILO FIELDS TRUST v. BRITZ
Appellate Division, A-4744-02T1, approved for publication June 9, 2005. (25 pages). Facts-on-Call Order No. 92500

Although the attorney violated Rule of Professional Conduct 1.8(a), which prohibits business transactions between an attorney and a client in the absence of a full written disclosure by the attorney and written informed consent by the client, the attorney’s investments in the client’s businesses in exchange for free legal services were not voided (1) where the client had complete knowledge of all of the facts about the structure of the investments, (2) where the client affirmatively solicited the investments from the attorney, (3) where the attorney had no role in the formation or operation of the businesses, and (4) where the client did not object to the attorney’s status as an attorney until litigation began.

INSURANCE
PHILLIPS v. METLIFE AUTO & HOME
Appellate Division, A-1963-04T5, approved for publication June 9, 2005. (5 pages). Facts-on-Call Order No. 92501

An insured who received a copy of the New Jersey Auto Insurance Buyer’s Guide from his insurance company and selected the verbal threshold option was not entitled to a reformation of the insurance policy to delete his selection of the verbal threshold simply because the Guide did not state that he would have to prove that an injury that he suffered in an automobile accident had a serious impact on his life to recover noneconomic damages for a permanent injury.

TRIAL BY JURY
STATE v. BASIT
Appellate Division, A-2227-03T4, approved for publication June 9, 2005. (18 pages). Facts-on-Call Order No. 92502

In a prosecution for murder, (1) where the trial judge stated on the record that the parties had agreed on the responses to two questions posed by the deliberating jury and that he would enter the jury room to give those responses to the jury but (2) where the record did not contain a subsequent affirmative showing about the content of the judge’s ex parte, unrecorded communications with the jury, reversal of the defendant’s conviction was required because the presumption of prejudice was not overcome.

CONSUMER PROTECTION
DABUSH v. MERCEDES-BENZ USA, LLC
Appellate Division, A-970-03T5, approved for publication June 8, 2005. (28 pages). Facts-on-Call Order No. 92482

In an action under the Consumer Fraud Act that alleged that the defendant automobile lessor misrepresented the scope of a satellite-based navigation system’s coverage in a marketing brochure, the plaintiff lessee failed to demonstrate an ascertainable loss (1) because he did not pay extra for the navigation system, (2) because he did not show that his loss was the cost of replacing the navigation system with a system that used better map data, and (3) because he did not claim that he lost money or property as the result of his late arrival at a business meeting after he was unable to obtain directions to a specific address from the navigation system.

NOT APPROVED FOR PUBLICATION
INSURANCE
LDLJ ASSOCIATES v. FIREMAN’S FUND INSURANCE CO.
Appellate Division, A-1649-03T1, June 9, 2005, not approved for publication. (12 pages). Facts-on-Call Order No. 18074

Summary judgment for the defendant insurer of builder’s risks affirmed; when sinkholes appeared on land that the plaintiff insureds were developing, the defendant relied on language in the policy to deny coverage for the cost of filling the sinkholes; contrary to the plaintiffs’ assertions on appeal, (1) the insurance policy was not ambiguous, (2) the plaintiffs had a copy of the policy and could not argue that they never were informed that the policy did not cover the filling of sinkholes, (3) the fact that the plaintiffs’ expert could offer an alternative interpretation of the policy did not mean that the policy should be deemed ambiguous, (4) the “Property We Cover” portion of the policy was “completely separate” from the sinkhole provision, and (5) the trial court did not err in denying the plaintiffs’ claim for “bad faith damages.”

LAND USE
BIRMINGHAM v. UNION BEACH PLANNING BOARD
Appellate Division, A-944-04T1, June 9, 2005, not approved for publication. (3 pages). Facts-on-Call Order No. 18079

Decision upholding the defendant Planning Board’s denial of the plaintiff landowner’s application for a use variance affirmed substantially for the reasons expressed by the Law Division; the plaintiff sought a variance under N.J.S.A. 40:55D-70(d)(5) to convert a commercial building on his lot into a second house; the local zoning ordinance did not permit two residences on one lot; the Board denied the plaintiff’s pro se application on the grounds that the plaintiff failed to prove the requisite positive and negative criteria and that the second house would increase traffic in the area; the plaintiff failed to present sufficient evidence to carry his burden at the Board hearing, and he was not entitled to a remand “to make a better record.”

TAXATION
JOSEPH P. HAYES THEATRE v. BEACH HAVEN BOROUGH
Appellate Division, A-528-04T5, June 9, 2005, not approved for publication. (6 pages). Facts-on-Call Order No. 18076

Tax Court judgment finding that two buildings owned by the plaintiff theater were subject to property tax affirmed in an action by the theater seeking an exemption from property taxes; the theater is a nonprofit corporation; the two buildings provided temporary housing and rehearsal space for visiting artists; although the buildings were a convenience and made summer employment more attractive to actors and interns, the convenience and the attraction did not render the structures necessary to the theater’s operation; the Tax Court’s incorrect finding that the former executive producers of the theater lived in one of the buildings year round was not reversible error.

WORKERS’ COMPENSATION
SOLOMON v. WARREN HOSPITAL
Appellate Division, A-2883-03T2, June 8, 2005, not approved for publication. (3 pages). Facts-on-Call Order No. 18072

Dismissal of the petitioner nurse’s aide’s claim for workers’ compensation benefits in connection with a cerebral vascular accident affirmed; the Appellate Division affirmed substantially for the reasons expressed by the judge of compensation, who concluded that the petitioner failed to sustain her burden of proof because she failed to show that her workplace was “unduly stressful”; the Appellate Division added (1) that the petitioner had been on medication for high blood pressure, had “extremely high blood pressure” at her pre-employment physical, and was not hired until her blood pressure came down, (2) that the petitioner also was on medication for diabetes, and (3) that her diabetes and hypertension placed her at risk to suffer a stroke, regardless of any stress at work.

PUBLIC EMPLOYEES
MELTON v. MERIT SYSTEM BOARD
Appellate Division, A-6146-03T1, June 8, 2005, not approved for publication. (4 pages). Facts-on-Call Order No. 18073

Merit System Board’s decision affirming the Department of Transportation’s determination that the petitioner was ineligible for appointment to the position of Assistant Engineer, Traffic affirmed; when the Department of Personnel changed its 20-year practice and announced that individuals seeking “engineering title” positions with the DOT must have a bachelor’s of science degree, the DOP approved a “grandfather” provision that allowed any candidate who applied before July 1, 1999 to qualify by having 45 college credits in certain subject areas; the petitioner was employed by the DOT before July 1, 1999; the petitioner had a total of 28 college credits in engineering, science, and math courses, and the DOP mistakenly informed the DOT in February 2000 that the petitioner met the requirements for the Assistant Engineer, Transportation position; when the DOT asked the DOP in November 2001 to determine the petitioner’s qualifications for promotion to Assistant Engineer, Traffic, the DOP found that he was not qualified due to his lack of college credits; the February 2000 evaluation, which contained an erroneous assessment of the petitioner’s academic record, did not preclude the DOP from correctly determining his eligibility for the Assistant Engineer, Traffic position.

EMPLOYMENT LAW
FIALLO v. INDUSTRIAL SERVICES ENTERPRISES, INC.
Appellate Division, A-4543-03T2, June 9, 2005, not approved for publication. (11 pages). Facts-on-Call Order No. 18075

Summary judgment for the defendant employer in a wrongful termination action affirmed; as to the plaintiff’s Conscientious Employee Protection Act claim, there was no support for an inference that the plaintiff’s complaints to the Division on Civil Rights and the Equal Employment Opportunity Commission caused the defendant to fire the plaintiff, but there was evidence of good cause to fire the plaintiff, including his “poor attitude”; the plaintiff’s breach-of-contract claim was waived because the case law provides that instituting a CEPA claim constitutes a waiver of the rights and remedies that are otherwise available.

FROM THE ADMINISTRATIVE AGENCIES
PENSIONS AND BENEFITS
HOGAN v. BOARD OF TRUSTEES OF THE STATE POLICE RETIREMENT SYSTEM
OAL Docket No. TYP 8060-02S, Agency Docket No. SPRS #4148, Initial Decision: March 1, 2005, Final Agency Decision: May 27, 2005. By Masin, ALJ. (20 pages).

The Board of Trustees of the State Police Retirement System adopted the initial decision of the administrative law judge that granted the Board’s motion for summary decision on the petitioner State Trooper’s claim for accidental disability retirement benefits and that imposed a total forfeiture of his creditable service. The petitioner was one of two State Troopers involved in an April 23, 1998 shooting on the New Jersey Turnpike. Although the criminal charges filed against the petitioner that stemmed from the actual shooting were ultimately dismissed, the petitioner had pleaded guilty to failing to file consent search forms and to hindering apprehension or prosecution by presenting false information to the officers who were investigation the shooting. The ALJ applied the 11-factor test set forth in Uricoli v. Police and Firemen’s Retirement System to determine that a total forfeiture was appropriate (1) because the position of State Trooper requires integrity, honesty, and adherence to the law, (2) because the misconduct that led to the petitioner’s guilty pleas was inextricably related to his public duties, (3) because the misconduct was “serious,” “substantial,” and perhaps even “grave,” and (4) because the misconduct involved moral turpitude.


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