NEW JERSEY LAWYER

DAILY BRIEFING      07/13/2005


News Briefs

COMMENT PERIOD EXTENDED ON PEREMPTORY CHALLENGES REPORT
The state Supreme Court has extended the comment period on the report of its Special Committee on Peremptory Challenges and Jury Voir Dire from Sept. 15 to Nov. 1. Last month, the court released the report, which recommended the number of peremptory challenges be cut in both criminal and civil cases. The committee also said that if its recommended improvements in questioning potential jurors are adopted and judges liberally grant challenges for cause, fewer peremptory challenges would be needed in the first place. Comments on the report are to be submitted to the Administrative Office of the Courts. 7-12-05

TOWNS WANT AID TO SALVE CORRUPTION DAMAGE
Money changes hands, a development is approved, and a town now has more streets to maintain and more children in its schools. Who should pick up the tab? In the fallout of the public corruption sweep in Monmouth County, legislators are looking for some way to bail out towns facing big property tax increases after their officials engaged in corruption. Monmouth Democratic Assemblymen Michael J. Panter and Robert L. Morgan have asked acting Gov. Richard J. Codey to find some way to assist Marlboro, where the mayor says new construction tainted by corruption will cost the town $10 million. They’ve also sponsored a bill, A-4368, the Public Corruption Civil Recovery Act, that would require extra costs to such towns be billed to the corrupt public officials, and developers involved pay into an open-space fund. Former Marlboro Mayor Matthew V. Scannapieco pleaded guilty to taking $245,000 from a developer. One basic problem with the notion, acknowledged by Marlboro’s current mayor, is that towns can’t afford to hire forensic accountants and other experts to determine how much development would have occurred without the corruption. 7-12-05

HANDS-FREE, NOT ACCIDENT-FREE
Australian researchers didn’t believe drivers when they said they weren’t talking on a cell phone when they were in an accident. The researchers matched cell-phone records with the crash reports of more than 700 hospitalized drivers and determined drivers using cell phones were four times more likely to get into a serious accident — and it didn’t matter whether they were holding the phone or using hands-free devices. “There is no safety advantage associated with switching to the types of hands-free devices that are commonly in use,” the researchers wrote in a study published in the British Medical Journal. “It’s the cognitive overload,” said Rae Tyson, spokesman for the National Highway Traffic Safety Administration. Some states have enacted hand-held cell-phone bans, though in New Jersey, the law has a diluted enforcement provision. 7-12-05

STATE ACCEPTS SLIMMED-DOWN SETTLEMENT ON DIET PILLS
Four companies have agreed to pay New Jersey a total $940,000 to settle a false-advertising suit. One of the firms, Nutraquest, went into bankruptcy after being bombarded with suits in 2003 when one of its weight-loss products, which contained now-banned ephedra, was associated with the death of a Major League pitcher. Nutraquest has agreed to pay the state $235,000 but most of it is an IOU. As part of the settlement, the four companies agreed to a list of restrictions on their advertising, including not making product claims when there’s no supporting evidence. The state Division of Consumer Affairs also went after five doctors who signed testimonials for the drug, collecting between $15,500 and $17,500 from each. 7-12-05

WEB ARCHIVE ENGINE SUED
The non-profit operators of Wayback Machine are being sued by a Philadelphia company that claims the search engine allowed access to files the company said it wanted removed from the virtual library. Healthcare Advocates stated it used Wayback’s online form to request to have its materials — some at issue in an intellectual property dispute — blocked, but the blocking mechanism turned out to be ineffective. The suit also claims a Valley Forge law firm — Harding, Earley, Follmer & Frailey — hacked its way into the files, but the firm, faced with nearly $3 million in possible copyright infringement fines, said its searches were routine. Scott S. Christie of McCarter & English in Newark represents Healthcare Advocates, which filed the suit in U.S. District Court in Philadelphia. Internet Archive, which runs Wayback, says it has 40 billion web pages in its archives. 7-12-05



Today's Decision Summaries

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FROM THE NEW JERSEY SUPREME COURT, TUESDAY, JULY 12, 2005
NO OPINIONS WERE RELEASED BY THE NEW JERSEY SUPREME COURT ON TUESDAY, JULY 12, 2005.

THE SUPREME COURT has announced that it will release an opinion in SHANKMAN v. STATE OF NEW JERSEY, A-76/77, on July 13, 2005. The issues on appeal in Shankman address whether the plaintiffs were entitled to a new trial on all of the issues if the jury used an impermissible method of allocating liability among the defendants and whether the evidence about the liability of one of the plaintiffs was inadmissible under a pretrial settlement agreement.



APPROVED FOR PUBLICATION
JURY SELECTION
STATE v. TINNES
Appellate Division, A-2551-03T1, approved for publication July 12, 2005. (39 pages). Facts-on-Call Order No. 92576

In this prosecution for weapons offenses and criminal mischief, the defendant was deprived of a fair trial because his attorney had to use eight of his 10 peremptory challenges before the trial judge determined whether any of the seated prospective jurors had a hardship that would have prevented their service. The bifurcated voir dire damaged the integrity of the jury selection process.

NOT APPROVED FOR PUBLICATION
CONTRACTS
ABLE INSULATING AND CONTRACTING/MECHANICAL, INC. v. BRIAN TREMATORE PLUMBING & HEATING, INC.
Appellate Division, A-1987-04T3, July 12, 2005, not approved for publication. (7 pages). Facts-on-Call Order No. 18217

Final judgment for the plaintiff subcontractor on its breach of contract claim and denial of the defendant plumbing company’s motion for reconsideration affirmed; the plaintiff sued for payment for work that it had performed for the defendant on a construction project; at trial, the defendant for the first time indicated that it intended to present evidence of a claim arising from an unrelated project on which the plaintiff allegedly breached its contract and for which the defendant sought a setoff; the trial court did not permit evidence of the alleged setoff because it was not pleaded as an affirmative defense; the trial court did not mistakenly exercise its discretion by refusing to allow evidence of the alleged setoff, and there was no error in the denial of the motion for reconsideration.

EMPLOYMENT LAW
SHABAZZ v. PASSAIC VALLEY SEWERAGE COMMISSIONERS
Appellate Division, A-1812-03T1, July 12, 2005, not approved for publication. (12 pages). Facts-on-Call Order No. 18218

Summary judgment dismissing the plaintiff’s wrongful termination claims and order denying his motion for recusal of the motion judge affirmed; the plaintiff had a history of lateness, absenteeism, and anger-management issues; the defendants fired him for insubordination, which violated the terms of his probation; the plaintiff alleged that his termination was due to racial and religious discrimination and was in retaliation for his alleged whistleblowing; there was no support in the record for the claim of the plaintiff’s attorney that the judge was prejudiced against him or his clients; there was “virtually no evidence” to support the plaintiff’s contention that he was subjected to racial slurs on the job, and no reasonable jury could have found that the termination was retaliatory.

HUSBAND AND WIFE
TROYER v. TROYER
Appellate Division, A-1780-04T2, July 12, 2005, not approved for publication. (8 pages). Facts-on-Call Order No. 18219

Post-divorce-judgment order dividing the net proceeds of the sale of the marital home equally to each of four owners affirmed; the four owners were the plaintiff ex-wife, the defendant ex-husband, and the defendant/intervenor parents of the ex-husband; the parents contributed $100,000 toward the purchase of the $200,000 home in 1996; the remaining amount was secured by a purchase money mortgage, on which the ex-wife and the ex-husband made all of the payments; the sale of the home in 2004 yielded net proceeds of $316,000 after the deduction of the closing costs and the mortgage balance; the parents sought either reimbursement of their $100,000 contribution plus half of the net proceeds or the deduction of the mortgage balance from the share of the ex-wife and the ex-husband; the trial court did not err in making its distribution order.

DRUNK DRIVING
STATE v. SASSANO
Appellate Division, A-446-04T2, July 12, 2005, not approved for publication. (12 pages). Facts-on-Call Order No. 18220

Conviction of driving under the influence of alcohol affirmed; at about 2:20 a.m., the police found the defendant inside his vehicle, which was on its side in a ditch; the defendant admitted that he had been drinking before the accident, he performed poorly on psychophysical tests, and he registered a .15 blood alcohol content on Breathalyzer tests; the record “clearly” supported the finding that the defendant had driven while under the influence of alcohol; furthermore, the defendant was not entitled to a jury trial, and he was properly sentenced as a “third offender” for his third offense.

PREMISES LIABILITY
CLAROS v. PROLOGIS TRUST
Appellate Division, A-3666-03T1, July 11, 2005, not approved for publication. (11 pages). Facts-on-Call Order No. 18212

Decision that the defendant landlord was responsible for a $30,000 settlement to the plaintiff employee of the third-party defendant tenant affirmed; the plaintiff fell on an island in the office parking lot as she returned to work; based on the lease, the trial court properly determined that the tenant was not obligated to indemnify the landlord; under the lease, the demised premises were described as the rentable square feet contained in the landlord’s building, the landlord expressly retained responsibility to maintain the parking lot and the landscaped areas, and the tenant’s obligation to indemnify the landlord was limited to injuries to third parties that were caused by the acts or omissions of the tenant, its employees, or its contractors.

NEGLIGENCE
LYNCH v. AROUND THE CLOCK
Appellate Division, A-1637-03T5, July 11, 2005, not approved for publication. (40 pages). Facts-on-Call Order No. 18214

Jury award of damages to the plaintiff patrons against the defendant convenience store in an action arising from an assault against the plaintiffs by the defendant patrons reversed and remanded for a new trial; the jury was instructed to consider only the issues of proximate cause and damages; the trial court erred (1) by removing from the jury the question of whether the plaintiffs were comparatively at fault, (2) by granting a directed verdict for the plaintiffs at the close of evidence on the issues of the store’s duty, the scope of that duty, and the store’s breach of that duty, and (3) by preventing the jury from performing a comparative analysis and apportioning liability among the store, the plaintiffs, and the defendant patrons.

LAW AGAINST DISCRIMINATION
FLIZACK v. GOOD NEWS FOR WOMEN, INC.
Appellate Division, A-1354-03T1, July 11, 2005, not approved for publication. (13 pages). Facts-on-Call Order No. 18213

Jury verdict of no cause of action in an action against the defendant employer and the defendant supervisor alleging sexual harassment and racial discrimination in violation of the Law Against Discrimination affirmed; contrary to the plaintiff ex-employee’s arguments on appeal, the trial court did not err (1) by denying her motion to prohibit testimony about the sexual abuse that she allegedly experienced from persons other than her father, (2) by denying her motion to prohibit testimony about her earlier allegations that her ex-husband abused her and raped her daughter, and (3) by prohibiting her therapist from testifying due to the therapist’s failure to submit a report; the trial court’s rulings on the evidentiary issues did not constitute an abuse of discretion.

HUSBAND AND WIFE
LLOYD v. LLOYD
Appellate Division, A-2289-04T1, July 11, 2005, not approved for publication. (13 pages). Facts-on-Call Order No. 18215

Denial of the plaintiff ex-husband’s post-divorce-judgment motion to eliminate his alimony obligation and to reduce his child support obligation affirmed; the motion court properly determined (1) that the plaintiff’s assertion that he was coerced into entering into the property settlement agreement that established his obligations was “unfounded” because the PSA resulted from mediation and because the plaintiff was an attorney and (2) that the plaintiff’s temporary unemployment or underemployment was not a basis for modifying his obligations because he had voluntarily left his employment as an attorney in New York to move to California, where he was not yet admitted to the bar.

PARENT AND CHILD
SCARPA v. SCARPA
Appellate Division, A-3056-03T2, July 11, 2005, not approved for publication. (14 pages). Facts-on-Call Order No. 18216

Decision on remand that the defendant mother was entitled to an increase in child support based on the maturation of the parties’ three children reversed and remanded; when the parties divorced in 1995, their children were 9, 5, and 2 years old, and the parties negotiated and the plaintiff father agreed to pay support above the Guidelines; “in an apparent effort to save the parties the time and expense” of further litigation, the motion court consulted the Guidelines to determine the amount of the child support increase due to maturation, but this was error; maturation may constitute changed circumstances, but the amount of child support must be calculated under N.J.S.A. 2A:34-23a when the Guidelines do not apply, as in this case; a remand to conduct an evaluation under Lepis v. Lepis using the §2A:34-23a factors was “unavoidable.”


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