NEW JERSEY LAWYER

DAILY BRIEFING      06/08/2005


News Briefs

SEX PREDATOR MONITORING MEASURE MOVING
What has emerged as a hot-button issue in Trenton is about to be put into position for key votes in the legislature. Police monitoring of convicted sex offenders is the subject of two bills being considered Thursday by the Senate’s Law and Public Safety and Veterans Affairs Committee. S-1929 would require police to use satellite systems to constantly track the offenders; S-1889 would authorize the Department of Corrections to establish the satellite system. Acting Gov. Richard J. Codey, in his dual capacity as Senate president, sponsored S-1929. Sens. Fred H. Madden (D-Camden) and Stephen M. Sweeney (D-Cumberland) are co-sponsoring the other bill. 6-7-05

HALL OF FAME BILLS ADVANCING IN LEGISLATURE
With New Jersey of late getting all sorts of publicity about corruption and wayward officials being arrested and imprisoned, how about emphasizing the good folks in the Garden State? Well legislation aimed at doing such promotion is getting a hard look in the state capital. One measure, S-2309, which authorizes the New Jersey Sports and Exposition Authority to create and manage such a hall of fame honoring New Jerseyans prominent in the arts, business, science, education, entertainment, religion, government and philanthropy, has been approved by the Senate and is awaiting a vote in the Assembly, where an identical measure, A-3889, has been referred to the lower house Gaming and Tourism Committee. The legislation specifies that no expenses or other obligations are to be incurred by the state in operation of the hall of fame. 6-7-05

MERCK DENIES THREATENING VIOXX CRITICS
Merck & Co. is denying allegations that one of its former top executives tried to intimidate a medical researcher from speaking out about the health risks of Vioxx years before Merck was hit with lawsuits over the drug and forced to remove it from the market. “We do not and have never had the intent to intimidate nor retaliate,” Merck said in response to a report that Louis M. Sherwood, while a senior vice president, threatened the career of Lee Simon, a Harvard University professor who claims that five years ago he warned about Vioxx’s potential to cause strokes. 6-7-05

CORPORATE COUNSEL ASSOCIATION TELLS COMPANIES TO RELAX
In the wake of the U.S. Supreme Court’s overturning of the 2002 conviction of Arthur Andersen for obstructing the government’s investigation of Enron, the Association of Corporate Counsel is telling members and their employers to worry less about defending against fraud that was unintended. Susan Hackett, the organization’s senior vice president and general counsel, says, “Companies can relax. The court sent a message that companies won’t be convicted for things that can’t be proven in court.” The justices ruled the federal jury that convicted Anderson was wrongfully instructed that the accounting firm could be convicted even if it did not intend to do anything unlawful. 6-7-05

FEDERAL JUDICIARY DATA UNDERSCORES PROBATION-PRISON COST GAP
Probation may be a lot cheaper than incarceration than previously thought, according to the Administrative Office of the U.S. Courts. Supervision by probation officers during fiscal 2004 cost $3,452 per year vs. $23,205 for incarceration in federal prisons and $20,102 in community correction centers. The cost-per-day comparison is $9.46 for probation vs. $63.57 and $55.07 at prisons and community centers, respectively. The AOC compiled the stats from reports of the Federal Bureau of Prisons and the Office of Probation and Pretrial Services. 6-7-05

CORRECTION
An item in the May 16 Daily Briefing incorrectly reported the body that designated litigation concerning the drug Accutane a mass tort to be centrally managed by Atlantic County Judge Carol E. Higbee. The Supreme Court took those actions. 6-7-05



Today's Decision Summaries

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.)

FROM THE NEW JERSEY SUPREME COURT, TUESDAY, JUNE 7, 2005
THE FOLLOWING OPINION WAS RELEASED BY THE NEW JERSEY SUPREME COURT ON TUESDAY, JUNE 7, 2005:

ATTORNEYS
PUDER v. BUECHEL
New Jersey Supreme Court, A-95, June 7, 2005. (36 pages). Facts-on-Call Order No. 92496

A party’s testimony that her divorce settlement agreement was fair and acceptable was binding and demonstrated that her divorce was resolved in a manner that was satisfactory to her. Therefore, she was precluded from pursuing her legal malpractice claim against her former attorney based on the attorney’s negotiation of a prior settlement agreement that was never enforced. Justice Wallace concurred, and Justice Long dissented.

THE SUPREME COURT has announced that it will release an opinion in STATE v. KNIGHT, A-43, on June 8, 2005. The issue on appeal in Knight addresses whether the defendant’s interrogation was inherently coercive — due to factors that included the length of the interrogation, sleep deprivation, and inadequate food and clothing — and thus rendered the defendant’s confession inadmissible per se.



APPROVED FOR PUBLICATION
DISCOVERY
RIVERS v. LSC PARTNERSHIP
Appellate Division, A-3480-03T5, approved for publication June 7, 2005. (20 pages). Facts-on-Call Order No. 92497

The Best Practices “exceptional circumstances” requirement that supports an extension of discovery does not excuse a late request to secure expert reports or the absence of an expert opinion required to support a plaintiff’s liability claims where the plaintiff’s attorney fails to exercise due diligence during an extended discovery period.

NOT APPROVED FOR PUBLICATION
ATTORNEYS
HANSON v. HEYBURN
Appellate Division, A-485-04T2, June 7, 2005, not approved for publication. (12 pages). Facts-on-Call Order No. 18063

Summary judgment for the defendant attorneys and the defendant law firm in a legal malpractice action affirmed; in the underlying personal injury action, the plaintiff was awarded $1,000 by a jury after he rejected his trial attorney’s advice to accept a $25,000 settlement; the trial court did not err by granting summary judgment on the malpractice claim (1) where there was no evidence that the trial attorney’s decision to present evidence of damages through testimony was not a reasonable exercise of professional judgment or that the trial attorney had deviated from professional standards by failing to go over trial testimony with the plaintiff, (2) where there was no authority to support the proposition that Rule of Professional Conduct 1.4 requires a law firm to describe the relative success of its attorneys in obtaining disproportionately high settlements, and (3) where no reasonable juror could have found that the plaintiff would have settled the case if he had been advised about the trial attorney’s unsuccessful motions for summary judgment on the issue of liability.

INSURANCE
LIBERTY MUTUAL INSURANCE CO. v. TORRES
Appellate Division, A-6168-03T1, June 7, 2005, not approved for publication. (8 pages). Facts-on-Call Order No. 18061

Summary judgment for the defendants in the declaratory judgment action initiated by the plaintiff insurer affirmed; the defendant insurer determined that the defendant injured driver was not covered under the policy it had issued to her mother; the plaintiff insurer of the other vehicle involved in the accident applied unsuccessfully to the Law Division for a temporary stay of a PIP arbitration initiated by a medical service provider that had provided services to the injured driver; the PIP arbitrator ultimately ruled against the plaintiff; in its declaratory judgment action, the plaintiff sought to compel the defendant insurer to provide PIP coverage; the plaintiff’s failure to add the defendant insurer to the PIP arbitration was not grounds for a separate remedy in court or for the contention that the Law Division should have stayed the arbitration to allow the plaintiff to proceed in court; the second Law Division decision summarily dismissing the declaratory judgment action was “entirely correct” because the plaintiff’s failure to seek relief from the PIP award precluded it from collaterally attacking the outcome of the arbitration.

PUBLIC EMPLOYEES
McLEAN v. NORTH HUDSON REGIONAL FIRE & RESCUE SERVICE
Appellate Division, A-741-03T3, June 7, 2005, not approved for publication. (11 pages). Facts-on-Call Order No. 18060

Summary judgment for the defendant municipal entities in an action under 42 U.S.C. §1983 affirmed; several municipalities were permitted to use their existing promotional lists to fill vacancies promptly at a newly formed regional fire and rescue service; the four plaintiff firefighters, who were on the West New York promotional list, claimed that West New York’s failure to promote them to lieutenant positions violated their right of political affiliation under §1983; the trial court “fairly addressed and rejected” all of the plaintiffs’ arguments in a “well-reasoned” opinion; the plaintiffs could not establish a prima facie case of political retaliation under §1983 because they could not show that their conduct was constitutionally protected and a substantial or motivating factor for their being bypassed for promotion; at any rate, the doctrine of collateral estoppel barred their suit from going forward.

NEGLIGENCE
KRIGER v. GRIFFIN
Appellate Division, A-6836-03T1, June 7, 2005, not approved for publication. (6 pages). Facts-on-Call Order No. 18062

Judgment for the defendant driver after a jury trial in an action arising from an automobile collision reversed and remanded for a new trial; after the plaintiff driver’s car and the defendant’s car collided at an intersection, both cars suffered further damage as a result of colliding with stationary objects; the central issue of the case was the color of the traffic light at the time that the plaintiff entered the intersection; the responding officer’s testimony relating a disinterested witness’s statement that the plaintiff ran a red light was hearsay that was not covered by a recognized exception, and its admission was plain error; on retrial, the court must pay “careful attention” to the foundation for the admission of photographs of the cars involved in the accident.

NEGLIGENCE
WAIN v. LURTY
Appellate Division, A-5726-03T1, June 6, 2005, not approved for publication. (8 pages). Facts-on-Call Order No. 18055

Summary judgment for the defendant tavern in a personal injury action arising from the plaintiff patron’s fall during an altercation with another patron at the tavern affirmed; contrary to the plaintiff’s arguments on appeal, the tavern could not be held liable (1) for negligent service of alcoholic beverages to the other patron because no rational fact-finder could find that the other patron was visibly intoxicated at the time of the altercation or (2) for negligent security because special security personnel were not required where the record did not indicate prior incidents that would make physical altercations generally foreseeable and because the bartender had no duty to try to prevent an altercation that was not foreseeable; the plaintiff’s theory of landowner’s liability reiterated the negligent security theory.

ARBITRATION
INTERNATIONAL PARTNERS, INC. v. ORLIND CONSTRUCTION, INC.
Appellate Division, A-666-04T3, June 6, 2005, not approved for publication. (4 pages). Facts-on-Call Order No. 18054

Dismissal of the plaintiff factor and money lender’s complaint against the defendant construction company and the third-party defendant performance bond issuer due to the plaintiff’s failure to properly file and serve a demand for a trial de novo affirmed; the plaintiff appeared pro se at arbitration, and the arbitration award dismissed its breach of contract claims against the construction company; the plaintiff never served either the construction company or the bond issuer with the demand for a trial de novo under Rule 4:21A-6(b); it was “clear” that the plaintiff “purposely avoided” complying with Rule 1:21-1(c), which prohibits a corporation from proceeding pro se, during “crucial phases” of the litigation, and proceedings by a corporation without counsel are a legal nullity; therefore, the plaintiff failed to establish extraordinary circumstances to support the restoration of its case.

DOMESTIC VIOLENCE
CRESPO v. CRESPO
Appellate Division, A-5102-03T5, June 6, 2005, not approved for publication. (4 pages). Facts-on-Call Order No. 18056

Final domestic violence restraining order against the defendant ex-husband affirmed; there was ample credible evidence to support the trial judge’s finding that the defendant had committed an assault on the plaintiff ex-wife when he trapped her arms in his car window; contrary to the defendant’s arguments on appeal, (1) there was no evidence that the trial judge, who stated that she recognized the plaintiff from church, had any conflict of interest or bias and (2) the defendant did not receive ineffective assistance from his attorney based on the attorney’s failure to object after the trial judge stated that she recognized the plaintiff, the attorney’s failure to question the defendant more thoroughly about the parties’ prior history, or the attorney’s announcement that he was a criminal defense attorney rather than a family law attorney.

DOMESTIC VIOLENCE
SCHULTHEIS v. BENNING
Appellate Division, A-4856-03T1, June 6, 2005, not approved for publication. (4 pages). Facts-on-Call Order No. 18057

Denial of the defendant’s motion to vacate a final domestic violence restraining order that had been entered against him in September 2000 affirmed based on the Family Part’s findings; at a May 2002 hearing on a similar motion, the Family Part had found that the defendant had violated the FRO at least three times, that the defendant was not credible, and that the plaintiff feared the defendant because he had lied in his certification; at an April 2004 hearing on the current motion before a different Family Part judge, the plaintiff testified that she still feared the defendant because he “continues to lie in his motion” and because he had been “deceptive” in presenting his prior motion; the Family Part considered the Carfagno factors and found that the plaintiff still feared the defendant.

DRUNK DRIVING
STATE v. ONORATO
Appellate Division, A-548-04T2, June 6, 2005, not approved for publication. (6 pages). Facts-on-Call Order No. 18053

Conviction of driving while intoxicated affirmed; the defendant entered a conditional guilty plea; on his first appeal to the Law Division, the case was remanded to the Municipal Court to verify that the Breathalyzer was working properly when the defendant was tested; based on the testimony from a State Police “breath test coordinator/instructor” in the Municipal Court on remand, the Law Division concluded on the defendant’s second appeal that the Breathalyzer had been in proper working order and that the defendant’s test results were admissible; the Law Division’s determination that the Breathalyzer had been in proper working order was supported by sufficient credible evidence in the record, and the Breathalyzer results were admissible and were properly relied on in connection with the defendant’s plea.

EXPUNGEMENT
STATE v. GUIDO
Appellate Division, A-4948-03T1, June 6, 2005, not approved for publication. (4 pages). Facts-on-Call Order No. 18058

Denial of the defendant’s petition to expunge two 1972 convictions for indecent exposure affirmed; the offenses occurred about two months apart in different municipalities; the defendant pleaded guilty to both offenses in one proceeding and received concurrent sentences of probation; the trial court denied the petition because there could be no expungement under N.J.S.A. 2C:52-2a where there were two separate convictions; although the defendant had an “unblemished record” since the offenses, the “clear language” of the statute precluded expungement; contrary to the defendant’s argument on appeal, the offenses could not be considered a “one-night spree” under State v. Fontana because they were not connected to each other.


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.)


Click this link to unsubscribe to the Daily Briefing email



Copyright © 2005 The New Jersey Lawyer Inc. All rights reserved.