NEW JERSEY LAWYER

DAILY BRIEFING      06/30/2005


News Briefs

APPEAL BEING WEIGHED IN RARE DEATH SENTENCE RULING
The Burlington County Prosecutor’s Office is considering appealing a rare trial court overturning of a death sentence in the post-conviction relief petition of death-row inmate Robert Morton. County Prosecutor Robert D. Bernardi has said his office will consult the family of Morton’s murder victim before deciding whether to appeal Burlington County Judge Cornelius P. Sullivan Sr.’s ruling that Morton was not adequately represented in the penalty phase of his 1996 trial, also in Burlington County. The Public Defender’s Office, which provided Morton’s counsel at trial, sentencing and the capital phase, says this is the first time a state trial court has vacated a capital sentence in a PCR case. Public Defender pool attorneys David A. Ruhnke and his wife Jean deSales Barrett, of Ruhnke & Barrett in Montclair, represented Morton against deputy first assistant county Prosecutor James A. Ronca and assistant Prosecutor Carol L. Tang. (A full text of the order in State v. Morton, Order No. 18161, is available from the NJL Facts-on-Call Service, 800-670-3370.) 6-29-05

TOWN PAYS $780,000 TO SETTLE RETALIATION CLAIM
As if knowing that the guy who fired him was subsequently suspended without pay wasn’t satisfaction enough, James Tizzano, a former code officer for Old Bridge, also is getting $780,000. That’s the amount the township council has agreed to pay to settle Tizzano’s claim he was fired in 2003 for telling state investigators about alleged improprieties in the municipal construction and code enforcement department. The township’s defense would have been inhibited by the fact the man who fired Tizzano, former township engineer John Vincenti, has been indicted in a state corruption probe and is suspended without pay. Tizzano’s attorney, Patricia Ann Barasch of Schall & Barasch in Moorestown, said the matter settled amicably. 6-29-05

PUBLIC DEFENDER’S ELEVATION TO BENCH PROMPTS OTHER PD MOVES
With long-time public defender Verna G. Leath now a judge in Essex County’s Civil Part, the Public Defender’s Office has moved Denise Cobham, who had headed the PD’s post-conviction relief unit in Newark, to Leath’s former post as deputy public defender in the Jersey City office, and promoted Ingrid L. Yurchenco to head the PCR unit. Yurchenco, a former attorney in the PCR unit, also has worked in the PD’s juvenile, adult and drug court units. 6-29-05

IF YOU THINK GAS PRICES ARE RISING FAST …
Home prices in New Jersey were nearly 16 percent higher in the first quarter of 2005 than the same period a year ago, the ninth-largest increase in the country, according to the Federal Deposit Insurance Corp. Atlantic City, Ocean City, Trenton and Wayne are among the 55 top housing markets nationwide. 6-29-05

STATE SUPREME COURT TV CAMPAIGN SPENDING UP SHARPLY IN NATION
Thirty-eight states — not including New Jersey — elect members of their highest courts. And in 2004, spending on campaign television ads in those states hit an estimated $24.4 million, up considerably from $10.6 million in 2000, according to the Brennan Center for Justice at New York University School of Law and the Institute for Money in State Politics. Of the 22 states that use head-to-head elections, nine states broke fund-raising records. The report says state Supreme Court elections attracted record sums from business interests, with spending from such groups topping the legal community’s. The report also says these elections are becoming part of the so-called “culture wars” as well, with groups demanding judicial candidates take positions on hot-button social issues. 6-29-05



Today's Decision Summaries

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FROM THE NEW JERSEY SUPREME COURT, WEDNESDAY, JUNE 29, 2005
THE FOLLOWING OPINIONS WERE RELEASED BY THE NEW JERSEY SUPREME COURT ON WEDNESDAY, JUNE 29, 2005:

ESTATES AND TRUSTS
IN RE ESTATE OF VAYDA
New Jersey Supreme Court, A-48, June 29, 2005. (16 pages). Facts-on-Call Order No. 92552

In this will contest, the circumstances did not present sufficient cause to depart from New Jersey’s adherence to the “American Rule,” which requires each party to pay his or her own attorney’s fees. However, the attorney’s fees of the successful party in this case should be reimbursed by the estate.

ADMINISTRATIVE LAW
NEW JERSEY ASSOCIATION OF NURSE ANESTHETISTS, INC. v. NEW JERSEY STATE BOARD OF MEDICAL EXAMINERS
New Jersey Supreme Court, A-92, June 29, 2005. (12 pages). Facts-on-Call Order No. 92553

The Supreme Court affirmed substantially for the reasons expressed by the Appellate Division. The rules promulgated by the State Board of Medical Examiners to set forth standards for the administration of anesthesia during surgery performed in a physician’s office were within the Board’s delegated authority and were enacted in accordance with the law.

THE SUPREME COURT has announced that it will release opinions in FRENCH v. HERNANDEZ, A-58, and SHAH v. SHAH, A-93, on June 30, 2005. The issue on appeal in French addresses whether the initial-permission doctrine applies to provide insurance coverage for an employee’s use of his employer’s vehicle where the use occurred after working hours and without the employer’s express authorization. The issue on appeal in Shah addresses whether New Jersey courts have personal jurisdiction over the defendant in an application for a temporary domestic violence restraining order where the acts constituting the alleged domestic violence occurred in another state — in which the parties lived and in which the defendant still lives — and where the plaintiff only recently relocated to New Jersey to seek refuge with family friends.



APPROVED FOR PUBLICATION
PUBLIC RECORDS
COURIER NEWS v. HUNTERDON COUNTY PROSECUTOR’S OFFICE
Appellate Division, A-3517-03T1, approved for publication June 28, 2005. (14 pages). Facts-on-Call Order No. 92548

As the custodian of the tape recording of a 911 call that was the subject of the plaintiff newspaper’s successful request for disclosure under the Open Public Records Act, the Hunterdon County Prosecutor’s Office, rather than the State, was responsible under OPRA to pay the attorney’s fees incurred by the plaintiff.

STATUTORY CONSTRUCTION
STATE v. LOPEZ
Appellate Division, A-2284-03T4, approved for publication June 28, 2005. (23 pages). Facts-on-Call Order No. 92549

The defendant’s conviction for robbery was reversed and remanded for the entry of a conviction of third-degree theft from the person and for sentencing on that charge because N.J.S.A. 2C:15-1a does not include the concept of “afterthought” robbery.

NOT APPROVED FOR PUBLICATION
ATTORNEYS
STUEBBEN v. CLARK
Appellate Division, A-4243-03T2, June 29, 2005, not approved for publication. (23 pages). Facts-on-Call Order No. 18166

Summary judgment for the defendant attorney and the defendant law firm in a malpractice action affirmed; the defendants represented the plaintiffs in a fraud action against attorneys who had represented the buyers of the plaintiffs’ newspaper delivery service business; although the underlying litigation was summarily dismissed, the Appellate Division reversed; on remand, with representation by new counsel, the plaintiffs agreed to a settlement; in this subsequent action, the trial court dismissed the malpractice action after finding that the report of the plaintiffs’ expert was a net opinion; contrary to the plaintiffs’ appellate arguments, their expert’s report was a net opinion that consisted of “little more than a string of politely-phrased generalities”; moreover, the undisputed facts of the case would not support a malpractice claim against the defendants; Petrillo v. Bachenberg was not on point because the facts of the underlying case did not support a third-party claim against the buyers’ attorney for malpractice.

PROFESSIONAL MALPRACTICE
ALVES v. CME ASSOCIATES
Appellate Division, A-6293-03T2, June 29, 2005, not approved for publication. (6 pages). Facts-on-Call Order No. 18165

Summary judgment for the defendant engineering firm and the defendant chief construction engineer in a professional malpractice action affirmed; the plaintiff was injured while he worked as a pipe fitter on a municipal sewer improvement project; the municipality’s contract with the engineering firm relieved the firm of on-site safety responsibility and delegated the responsibility to the contractor; the trial court dismissed the complaint on the basis of N.J.S.A. 2A:29B-1 and the Tort Claims Act; the conditions described by the plaintiff as causing imminent danger related to safety procedures, not site conditions; therefore, the engineering firm was immune from liability under §2A:29B-1; on this record, it was not gross negligence or willful misconduct for the firm to have agreed to the delegation of on-site safety responsibility to the contractor or for the firm’s representative to be absent when the accident occurred; there was no need to reach the question of immunity under the Tort Claims Act.

EMPLOYMENT LAW
KANE v. EXXON MOBIL CORP.
Appellate Division, A-1245-04T2, June 29, 2005, not approved for publication. (4 pages). Facts-on-Call Order No. 18164

Summary judgment for the defendant employer in a wrongful discharge action affirmed; the plaintiff employee was terminated four months after he filed a workers’ compensation claim, and he alleged that the filing of that claim was the reason for his termination; the defendant asserted that the termination was due to the plaintiff’s failure to return to work or to provide medical documentation excusing his absence; the parties agreed that there was no direct evidence that the termination was due to the workers’ compensation claim; the trial court properly concluded that there was insufficient circumstantial evidence of termination for a pretextual reason because there was no competent proof that the plaintiff had supplied the required medical documentation.

DRUNK DRIVING
STATE v. LANE
Appellate Division, A-2425-04T1, June 29, 2005, not approved for publication. (5 pages). Facts-on-Call Order No. 18167

Denial of the defendant’s petition for post-conviction relief from a sentence imposed after she was convicted of refusal to submit to a Breathalyzer test in violation of N.J.S.A. 39:4-50.4a affirmed; after pleading guilty, the defendant was sentenced to, among other things, a 10-year suspension of her driving privileges as a third-time offender because she had twice before been convicted under N.J.S.A. 39:4-50 for driving while intoxicated; contrary to the defendant’s argument on appeal, she should not have been sentenced as a first-time offender because a prior conviction of driving while intoxicated is considered a prior violation of the refusal statute for sentencing purposes; the defendant’s reliance on State v. DiSomma and State v. Reiner was “misplaced.”

REAL PROPERTY
BOYER v. MILLER
Appellate Division, A-902-04T3, June 28, 2005, not approved for publication. (7 pages). Facts-on-Call Order No. 18163

Determination that the plaintiff landowners held an implied easement over the defendant neighbor’s land for a water line affirmed; the plaintiffs sought to replace a water line that ran under the defendant’s land to their home; there was no basis to disturb the trial court’s findings of fact and conclusions of law (1) where it was undisputed that the parties’ land was commonly owned until 1942, (2) where the evidence supported the conclusion that the land that became the defendant’s benefited the property that became the plaintiffs’ when the ownership was severed and that the benefit continued, (3) where evidence that installing a new line would require extensive work established necessity, and (4) where the use was apparent based on the location of the water meters.

PARENT AND CHILD
BOWNE v. ANDERSON
Appellate Division, A-5143-03T5, June 28, 2005, not approved for publication. (6 pages). Facts-on-Call Order No. 18162

Portion of a post-divorce-judgment order that directed the defendant mother to pay 18.23 percent of the college expenses of the parties’ child and that directed the plaintiff father to pay 81.77 percent reversed and remanded for reconsideration; the trial court based the allocation on the parties’ average income for the years 2000, 2001, and 2002; during that time, the plaintiff’s average net income was $340,678, and the defendant’s was $82,000, which consisted primarily of alimony; the trial court erred by failing to consider the disparate impact of the allocation formula on the defendant; an analysis that “simply compares” the parties’ incomes was “insufficient” because the Newburgh v. Arrigo factor of “the ability of the parent to pay” higher education costs contemplates that both the parent’s income and the parent’s normal expenses should be considered, especially where the parent’s income consists primarily of alimony.


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.)


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