NEW JERSEY LAWYER

DAILY BRIEFING      06/20/2005


News Briefs

REVISIONS EXPECTED IN LAWYER/LOBBYIST PROPOSAL
The New Jersey Election Law Enforcement Commission (ELEC) meets Tuesday and is expected to revise a proposed rule that would have required many lawyers who make even infrequent appearances for clients before state agencies to be labeled lobbyists. That label carries a $425 annual registration fee. The New Jersey State Bar Association has opposed the original plan, arguing the regulation, as originally proposed, is unconstitutional because it usurps the New Jersey Supreme Court’s power to regulate attorneys. ELEC Executive Director Frederick M. Hermann said the proposed revisions cover virtually every objection lawyers have raised, including the claim the commission would be stepping on the court’s territory as the exclusive regulator of lawyers. He said ELEC likely will draft an entirely new set of proposals to be published in the New Jersey Register and be subject to new public hearings to begin Sept. 21. A complete story is in the June 20 New Jersey Lawyer. 6-17-05

THIRD CIRCUIT REINSTATES PROFILING SUIT AGAINST TROOPERS
The 3rd U.S. Circuit Court of Appeals has reinstated civil-rights claims by a motorist stopped on the New Jersey Turnpike as part of an alleged pattern of racially discriminatory law enforcement. In Gibson v. Superintendent of New Jersey Department of Law and Public Safety-Division of State Police, the court ruled State Troopers Sean Reilly and J.W. Pennypacker were not entitled to immunity under the motorist’s equal protection claim. The court also said the motorist’s civil-rights action under 42 U.S.C. Sec. 1983 was timely filed in 2002 even though he was stopped in 1992. It noted the plaintiff, Emory E. Gibson Jr., had his drug charges, which were based on a search of his car, overturned in 2002. The court said his primary claims are that he was falsely arrested and falsely imprisoned in violation of his constitutional rights. (A full text of Gibson, Facts-on-Call Order No. 92522, can be ordered from NJL Online or by calling 800-670-3370.) 6-17-05

AG CALLS HEARING ON PUBLIC RECORD LAW EXCEPTIONS
Attorney General Peter C. Harvey, hoping to clear the air about a proposed list of security-related exceptions to the state’s Open Public Records Act (OPRA), has called a public hearing July 22. The regulations, which specify which kinds of documents would be exempt from OPRA, such as public facility blueprints or others related to mass transit facilities, bridges, tunnels and emergency response plans, were widely criticized as vague and sweeping when published in October. “The comments we received,” Harvey said, “reflected a perception, which I believe to be misplaced, that the regulations are too broad.” The July hearing, Harvey said, “may provide us with greater clarity.” It’s scheduled for 9 a.m. in the Hughes Justice Complex in Trenton. 6-17-05

BILL WOULD REQUIRE DWI TESTING IN ALL FATAL CRASHES
Assemblyman Peter J. Barnes Jr. (D-Middlesex) has introduced a bill that would require police administer blood alcohol tests to drivers involved in fatal crashes. A-4203 would waive current probable cause provisions for such testing. Barnes is naming the legislation Fred’s Law in memory of Fred Goldberg of East Brunswick who was killed in a collision last December on Interstate 295 in Westampton. The other driver in the crash was not tested, officers said, because there were none of the usual indicators like the smell of alcohol or slurred speech that would allow a test under current law. The bill has been referred to the Assembly’s Law and Public Safety Committee, which Barnes chairs. 6-17-05

$1.7M PUNITIVES TOO HIGH FOR $5K AWARD, CALIFORNIA COURT SAYS
The California Supreme Court has ruled that a punitive damage award of $1.7 million in a case in which only $5,000 in damages was awarded was way out of line and significantly above a 10-1 ratio. How far out of line? About $1.65 million. In Simon v. San Paolo Holding Co., the court reduced the punitives to $50,000 and rejected the plaintiff’s argument that his loss should be measured by the $400,000 profit he would have made if his purchase of an office building had taken place. In another case, Johnson v. Ford Motor Co., the court said an appellate court erred in reducing punitive damages to $53,000 for buyers of a defective Ford Taurus. The original punitive damage award was $10 million. The justices said the appeals court failed to adequately consider that Ford’s fraud was “more reprehensible because it was part of a reputed corporate practice rather than an isolated incident.” 6-17-05



Today's Decision Summaries

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

THE SUPREME COURT has announced that it will release an opinion in STATE v. McALLISTER, A-87, on June 20, 2005. The issue on appeal in McAllister addresses whether law enforcement officers are required to obtain a search warrant based on probable cause or to provide advance notice to an individual before gaining access to the individual’s bank records.



APPROVED FOR PUBLICATION
REAL PROPERTY
WELLS FARGO HOME MORTGAGE, INC. v. STULL
Appellate Division, A-1021-04T1, approved for publication June 17, 2005. (13 pages). Facts-on-Call Order No. 92523

Following the dictum in Bankers Trust Co. of Calif., N.A. v. Delgado, the Appellate Division (1) reversed the trial court’s order that purported to imbue the sheriff with the authority to deny requests for the adjournment of a sheriff’s sale that either were consented to by the parties or were requested by the judgment creditor and (2) held that a judgment creditor is entitled to an adjournment of a sheriff’s sale upon request.

JURY INSTRUCTIONS
STATE v. WICKLIFF
Appellate Division, A-142-03T3, approved for publication June 17, 2005. (18 pages). Facts-on-Call Order No. 92524

The defendant bail collection agent’s conviction for criminal trespass was reversed (1) because the trial court failed to properly explain to the jury the effect of a mistake of law on the fourth-degree crime, which requires knowledge that entry is unauthorized, and (2) because the trial court erred by limiting the defendant’s presentation of this defense.

REAL PROPERTY
COHEN v. W.B. ASSOCIATES, INC.
Law Division, Monmouth County, MON-L-4291-01, approved for publication June 16, 2005. (9 pages). Facts-on-Call Order No. 92525

The defendant real estate developer and its agents were barred from raising the New Residential Construction Off-Site Conditions Disclosure Act, N.J.S.A. 46:3C-1, et seq., as a defense to the plaintiffs’ claim for damages for the defendants’ alleged knowing and intentional misrepresentations regarding the ownership and use of property across the street from the subdivision where the plaintiffs’ new home was to be built.

HUSBAND AND WIFE
SMITH v. SMITH
Chancery Division, Family Part, Mercer County, FM-11-286-04E, approved for publication June 16, 2005. (21 pages). Facts-on-Call Order No. 92526

On the parents’ motion to seal portions of their daughter’s divorce proceedings because they might suffer harm to their reputations as a result of the allegations made by the daughter’s husband, the record did not support good cause to seal any part of the record under Rule 5:3-2(b).

NOT APPROVED FOR PUBLICATION
CIVIL PROCEDURE
JOHNSON v. COSGROVE
Appellate Division, A-685-04T5, June 17, 2005, not approved for publication. (10 pages). Facts-on-Call Order No. 18115

Dismissal of the plaintiff estate administrator’s wrongful death and survivorship action because the action was not commenced within the applicable limitations period affirmed; in September 1983, the plaintiff’s mother was killed in a vehicle that collided with a vehicle operated by the defendant and owned by the defendant’s brother, and the criminal charges against the defendant included driving while intoxicated and death by auto; the defendant did not appear for his arraignment in January 1984, and the Prosecutor’s Office did not locate him until September 2003; after learning of the defendant’s arrest in October 2003, the plaintiff filed his action in June 2004; the limitations period was not tolled by the defendant’s status as a fugitive defendant in a criminal case because the plaintiff did not make the required diligent inquiry.

NEGLIGENCE
WILLIAMS v. BONOSKY
Appellate Division, A-1297-04T3, June 17, 2005, not approved for publication. (9 pages). Facts-on-Call Order No. 18113

Involuntary dismissal of the plaintiff’s automobile negligence complaint at the close of the plaintiff’s case affirmed; under any permutation of the evidence presented, the Appellate Division found (1) that the defendants’ vehicle was traveling in the left lane, (2) that the plaintiff moved her vehicle from the right lane to the left lane, which caused it to collide with the defendants’ vehicle, and (3) that the plaintiff either did not see the defendants’ vehicle at all before the accident or observed a white object that she did not recognize to be a vehicle; there was nothing from which a rational fact-finder could conclude that the defendant driver was negligent in causing the accident.

ATTORNEYS
LANSING v. ALGEIER & WOODRUFF, P.C.
Appellate Division, A-2059-04T5, June 17, 2005, not approved for publication. (5 pages). Facts-on-Call Order No. 18114

Dismissal with prejudice of the plaintiff’s legal malpractice complaint based on the plaintiff’s failure to provide an affidavit of merit affirmed; during arbitration of the plaintiff’s employment discrimination claim, the plaintiff’s attorney sought to take depositions, but the plaintiff refused to pay the costs associated with the depositions because he believed that he was not obligated to pay any costs; settlement discussions failed, and the attorney who represented the plaintiff left the defendant law firm; the attorney assigned at the law firm to the plaintiff’s case declined to represent him and referred him to the attorney who had left the firm; according to the plaintiff, he withdrew from the arbitration due to his lack of legal representation; the facts of this case did not fall within the common knowledge exception for either the need for expert testimony at trial or the need to file an affidavit of merit.

PARENT AND CHILD
WILLIAMSON v. ROCCA
Appellate Division, A-2842-03T5, June 17, 2005, not approved for publication. (5 pages). Facts-on-Call Order No. 18110

Orders modifying parenting time, vacating an order that required the defendant mother to pay the attorney’s fees of the plaintiff father, modifying the father’s child support obligation, and denying enforcement of an order regarding medical expenses affirmed without prejudice to the rights of either party with respect to child support; the dispute arose from the mother’s application to change the father’s visitation schedule, to change the “pick up and drop off point” from Maryland to a Delaware rest stop, and to require that the father’s visitation take place in New Jersey in alternating months; the trial court interviewed the couple’s 11-year-old daughter and ascertained that her travel between New Jersey and Virginia was making her tired and that she wanted to spend more time with her friends and extended family; contrary to the mother’s assertions, (1) any inequity to her that resulted from the trial court’s refusal to change the pick up and drop off points was “somewhat ameliorated” by requiring that more of the visits take place in New Jersey and (2) there was insufficient information in the record on the issue of whether the reduction in child support was inconsistent with the child support guidelines.

LANDLORD AND TENANT
QUALITY BAKERY, INC. v. ROXVILLE ASSOCIATES
Appellate Division, A-7041-03T1, June 17, 2005, not approved for publication. (12 pages). Facts-on-Call Order No. 18112

Dismissal of the plaintiff commercial tenant’s claims against the defendant former landlord and a mall management company and judgment on the landlord’s counterclaim for unpaid rent affirmed; the plaintiff, which owned a “My Favorite Muffin” franchise, claimed that the defendants breached a “use clause” in the lease and the implied covenant of good faith and fair dealing by renting space two stores away to Panera Bread; after a bench trial, the trial court found that the defendants did not breach the “ambiguous” clause or the implied covenant of good faith and fair dealing and that the plaintiff was not excused from paying rent because the evidence indicated that the landlord had intended to be limited to leasing only to a tenant whose “primary source of business” was the sale of yogurt, muffins, specialty coffees, or a combination of these products; the trial court’s interpretation of the use clause was “entirely sound,” and the claim of breach of the implied covenant of good faith and fair dealing was properly rejected.

DRUNK DRIVING
STATE v. GARVIN
Appellate Division, A-7149-03T1, June 17, 2005, not approved for publication. (6 pages). Facts-on-Call Order No. 18111

Denial of the defendant’s motion to suppress evidence of driving under the influence and conviction of DWI after a trial de novo affirmed; upon arriving at the scene where the defendant’s vehicle had crashed into a telephone pole, a police officer found the defendant seated in the car of his wife, who also had gone to the scene; the officer testified at the suppression hearing that there was a “strong odor” of alcohol on the defendant’s breath, that the defendant “visibly staggered” when he walked, and that he had “bloodshot and watery” eyes; the officer, who administered three roadside sobriety tests to the defendant, did not yet have specific DWI training, although he had basic training on field sobriety tests; contrary to the defendant’s argument that there was no probable cause to arrest him for DWI, the record supported the Law Division’s finding that the police officer had a “well-grounded” suspicion that the defendant had driven the vehicle while under the influence of intoxicating liquor.

DISCOVERY
EHLERMANN v. METLIFE
Appellate Division, A-6264-02T2, June 16, 2005, not approved for publication. (19 pages). Facts-on-Call Order No. 18109

Dismissal with prejudice of the plaintiff chiropractor’s action to recover disability benefits from the defendant insurer affirmed substantially for the reasons expressed in the Law Division’s oral opinions; the insurer’s administrative agent sought records of the plaintiff’s three chiropractic practices, personal and corporate income tax records, and other documents to verify the plaintiff’s claim of total disability; after “three years of trying to get plaintiff to comply,” the Law Division concluded that it had “no other choice” than to dismiss; although dismissal is a severe sanction, it was “both just and reasonable” under the circumstances of this case.


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