NEW JERSEY LAWYER

DAILY BRIEFING      08/17/2005


News Briefs

BISSELL TO JOIN CONNELL FOLEY
Chief U.S. District Judge John W. Bissell, scheduled to retire Sept. 1, will join Roseland’s Connell Foley as counsel and chairman of its Alternative Dispute Resolution Committee, effective Dec. 1. Bissell, who has spent 27 years as a federal and state judge, said Connell Foley “provides the perfect place for me to continue my legal career.” Richard D. Catenacci, chairman of the firm’s executive committee, praised the judge for his “integrity, fairness and deep respect for the law.” 8-16-05

FILING BANKRUPTCY CIVIL ACTIONS WILL COST MORE
The fee for filing an adversary proceeding in U.S. Bankruptcy Court in New Jersey will increase to $250 from $150 on Sept. 20. That increase is in line with a similar boost a year ago for filing federal civil actions. Bankruptcy Court Clerk James J. Waldron, in a notice to the bar, says raising the filing fee had been held in abeyance pending further review by a court committee. 8-16-05

SCHOOL DISTRICT INSTITUTING MANDATORY DRUG-TESTING
The Pequannock Board of Education has approved mandatory drug-testing of high school students and a voluntary program for middle school students, making it the first school district in New Jersey to conduct such tests at the junior high school level and the first in Morris County with any drug-testing. The move was prompted by an overdose death of a high school student last fall. The measure passed with only modest protest. One parent questioned why the board made the move after a poll of parents found just 51.5 percent favored it. 8-16-05

COMPANY CAN’T USE FOREIGN STATUS TO AVOID FRAUD SUIT
Conducting the bulk of its business outside the United States doesn’t preclude a company from litigation here, ruled chief U.S. District Judge John W. Bissell in a securities fraud case against Netherlands-based Royal Dutch/Shell. Investors claimed they lost millions as a result of the oil company giving false formation about its oil reserves to boost its stock price. The case was filed in Newark — and now can proceed — because the company has several gasoline distribution terminals in New Jersey. 8-16-05

BIG BANKS AVOIDING STATE REGULATION
In another victory for big banks seeking to remain under potentially less-restrictive federal regulation, the 9th U.S. Circuit Court of Appeals has ruled that operating units of nationally chartered banks cannot be regulated by states. The panel upheld a 2003 federal court ruling that the National Bank Act and regulations of the Office of the Comptroller of the Currency pre-empt state regulation of San Francisco-based Wells-Fargo & Co.’s mortgage lending unit. In July, Wachovia Corp. of Charlotte, N.C., won a similar ruling involving Connecticut’s banking commissioner. 8-16-05



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, AUGUST 16, 2005
NO OPINIONS WERE RELEASED BY THE NEW JERSEY SUPREME COURT ON TUESDAY, AUGUST 16, 2005, AND NO OPINIONS ARE SCHEDULED FOR RELEASE ON WEDNESDAY, AUGUST 17, 2005.


APPROVED FOR PUBLICATION
ORDINANCES
STATE OF NEW JERSEY v. CITY OF ATLANTIC CITY
Appellate Division, A-509-04T2, approved for publication August 16, 2005. (16 pages). Facts-on-Call Order No. 92627

An Atlantic City ordinance — which establishes a needle exchange program that authorizes municipal officials to distribute sterile hypodermic syringes to drug addicts for use in injecting drugs — is invalid because it conflicts with and therefore is preempted by the Code of Criminal Justice provisions that prohibit persons from either using or assisting others in using controlled dangerous substances.

NOT APPROVED FOR PUBLICATION
VERBAL THRESHOLD
SMITH v. MARNELL
Appellate Division, A-6485-03T2, August 16, 2005, not approved for publication. (3 pages). Facts-on-Call Order No. 18375

Summary judgment for the defendant based on the N.J.S.A. 39:6A-8a verbal threshold under AICRA reversed; when it granted summary judgment, the trial court assumed that the plaintiff had provided sufficient objective medical evidence of a permanent injury and that the plaintiff had provided an adequate comparison of his injuries as required by Polk v. Daconceicao, but it concluded that the plaintiff had failed to demonstrate a serious impact on his life; although it agreed that the plaintiff’s proofs did not demonstrate a serious impact, the Appellate Division acknowledged that, since the trial court’s decision, the New Jersey Supreme Court has found that this factor is irrelevant when considering whether a plaintiff has overcome the verbal threshold.

INSURANCE
CORNIER v. UNSATISFIED CLAIM AND JUDGMENT FUND
Appellate Division, A-4581-03T1, August 16, 2005, not approved for publication. (7 pages). Facts-on-Call Order No. 18377

Denial of the plaintiff’s application for attorney’s fees from the defendant Unsatisfied Claim and Judgment Fund affirmed as to the denial of fees under AICRA but remanded for a determination of her claim under the frivolous litigation statute, N.J.S.A. 2A:15-59.1; contrary to the plaintiff’s argument, the reference to “costs” in N.J.S.A. 39:6A-5.2(g), together with N.J.A.C. 11:3-5.6(d)(3), does not allow attorney’s fees to be awarded against the UCJF because the case law provides that “costs” does not refer to attorney’s fees; however, the Appellate Division remanded for consideration of the claim under the frivolous litigation statute because it had not been argued before the trial court and because the trial court did not rule on this issue.

TORT CLAIMS ACT
MYHOME, LLC v. CITY OF ENGLEWOOD
Appellate Division, A-482-04T2, August 16, 2005, not approved for publication. (5 pages). Facts-on-Call Order No. 18374

Summary judgment for the defendant municipality affirmed; the plaintiff property owner and the plaintiff residents of the property sought to recover damages that allegedly resulted to the property from a sewer backup; the municipality successfully defended on the basis of the Tort Claims Act; the plaintiffs failed to offer evidence (1) that there was a dangerous condition on public property, (2) that the municipality knew of the condition, (3) that the condition was the proximate cause of the damage, and (4) that the action or failure to take action by the municipality to protect against the condition was palpably unreasonable; contrary to the plaintiffs’ argument, nothing in the record suggested that the municipality failed to comply with their discovery demands, and they raised no genuine factual issue.

LAND USE
CARUSO v. VENTNOR CITY PLANNING BOARD
Appellate Division, A-4827-03T1, August 16, 2005, not approved for publication. (9 pages). Facts-on-Call Order No. 18376

Judgment that granted, subject to conditions, the plaintiff landowners’ application to subdivide part of an existing lot to create two buildable lots affirmed; one of the proposed buildable lots required variances for lot area, lot width, and side-yard setback; the defendant Planning Board denied the application based on “density issues”; contrary to the Planning Board’s argument on appeal, its resolution was inadequate because it addressed only density and because it contained no findings to justify the denial of the application; the record supported the landowners’ application for variances, and there was no evidence that the municipal density requirements would be adversely affected by the proposed subdivision.

REAL PROPERTY
ADAMS v. BARRERA
Appellate Division, A-254-04T5, August 16, 2005, not approved for publication. (6 pages). Facts-on-Call Order No. 18373

Order on remand directing the defendant sellers to convey a condominium to the plaintiff buyers for the contract price but leaving the damages issue unresolved affirmed substantially for the reasons set forth by the trial court; the trial court originally found that the buyers were entitled to specific performance of the contract, but the matter was remanded to the trial court for resolution of whether the sellers had been confused as to whether the buyers’ attorney also had represented them in the transaction; the trial court on remand “thoroughly answered” all of the concerns raised in the Appellate Division’s prior decision and made findings of fact sufficient to resolve those concerns; contrary to the sellers’ argument, the fact that the property increased in value since the formation of the contract was not the type of hardship that excused specific performance.

HUSBAND AND WIFE
BRANDES v. RIGNEY
Appellate Division, A-840-04T5, August 16, 2005, not approved for publication. (8 pages). Facts-on-Call Order No. 18378

Post-divorce-judgment order entered on remand affirmed in part, reversed in part, and remanded; after the Appellate Division remanded its first order, the trial court considered the defendant ex-wife’s reply papers as instructed, proceeded “point by point” to address the Appellate Division’s concerns, and properly exercised its discretion in “most instances”; however, the trial court failed to adequately address the issue of an “other dependent deduction” credit when calculating child support; the trial court declined to consider that deduction based on the ex-wife’s failure to submit information about the income of the plaintiff ex-husband’s current spouse; another remand was required on the deduction credit issue because information about the income of the ex-husband’s current spouse was available in his case information statements.


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.