NEW JERSEY LAWYER

DAILY BRIEFING      08/09/2005


News Briefs

LAWYERS STILL SKEPTICAL ABOUT ALCOTEST
The plan to phase out the ancient Breathalyzer system and replace it with the Alcotest 7110 statewide by the end of the year is marching along. But lawyers handling drunken driving cases are continuing to demand more testing of the equipment and additional information about the technology. That’s essentially the same demand attorneys have been making for several years. Law enforcement officials, though, have praised the new unit and said it’s more accurate than the Breathalyzer, also noting Alcotest readings cannot be manipulated. The new unit is in operation so far in Middlesex and Union counties, with others to be phased in. 8-8-05

JUSTICE STEVENS CITES ‘FLAWS’ OF DEATH PENALTY
The American Bar Association has long advocated a moratorium on executions, and the nation’s largest lawyer organization at its annual gathering predictably got no complaint from U.S. Justice John Paul Stevens. Calling for an end to capital punishment, he said recent exonerations by DNA evidence “indicates that there must be serious flaws in our administration of criminal justice.” He further told the ABA that in Supreme Court review of death penalty appeals, he and other justices have found “a significant number of defendants in capital cases have not been provided with fully competent legal representation at trial.” Jury selection and statements from victims’ families during sentencing were other problem areas noted by Stevens. A family’s statement, he said, “serves no purpose other than to encourage jurors to decide in favor of death rather than life on the basis of their emotions rather than reason,” he said. 8-8-05

LAWYER CHARGED WITH STEALING CLIENTS’ MONEY
Pompton Plains attorney Gary R. Thompson faces up to five years in prison for allegedly taking $10,000 his clients won in civil settlements. He has been released on his own recognizance following his not-guilty plea before Hudson County Superior Court Judge Kevin G. Callahan and was released on his own recognizance. Thompson, 50, formerly practiced in Kearny. 8-8-05

JURY AWARDS $10 MILLION IN ASBESTOS CASE
In what may be the largest single award for an asbestos case in New Jersey, a former boiler repairman with mesothelioma has been awarded $10 million by a Middlesex County jury. William Rhodes, 68, of Hawthorne spent more than 40 years repairing boilers in Bergen County, often using asbestos-insulated parts. The jury in Rhodes v. AOC Smith found Universal Engineering in Montville liable and awarded Rhodes $7 million for pain and suffering, and his wife $3 million for loss of consortium. Observers said the $10 million may be the highest asbestos award in New Jersey, although there have been higher ones in other states. There were several other defendants when the case was filed several years ago, but Universal was the only one to stand trial. Rhodes was represented by Szaferman Lakind Blumstein Blader & Lehmann in Lawrenceville and at trial by Moshe Maimon of Levy Phillips & Konigsberg in New York. Universal was represented by Hoagland, Longo, Moran, Dunst & Doukas and at trial by H. Lane Young III of Hawkins & Parnell in Atlanta. 8-8-05

NEW PRESIDENT OF ABA
Boston lawyer Michael S. Greco assumes the American Bar Association presidency Tuesday at the ABA’s annual meeting in Chicago. A Princeton University and Boston College Law School graduate, Greco is a trial lawyer with 33 years of litigation experience in business, employment and real estate law. As president, he said, he will lead a “renaissance of idealism” aimed at inspiring the legal profession to reinvigorate its commitment to pro bono and public service. He said he also will work to educate the public on the importance of an independent judiciary. His third priority is expanding legal representation for the disadvantaged and the poor. He is a partner in Kirkpatrick & Lockhart Nicholson Graham. 8-8-05



Today's Decision Summaries

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FROM THE NEW JERSEY SUPREME COURT, MONDAY, AUGUST 8, 2005
NO OPINIONS WERE RELEASED BY THE NEW JERSEY SUPREME COURT ON MONDAY, AUGUST 8, 2005.

THE SUPREME COURT has announced that it will release an opinion in A.B. v. Y.Z., A-91, on August 9, 2005. The issue on appeal in A.B. addresses whether the trial court committed reversible error in a proof hearing to establish damages after the defendant’s default by allowing the plaintiff sexual assault victim to testify out of the defendant’s presence, even though the plaintiff was older than the limit of 16 years of age established by N.J.S.A. 2A:61B-1e(2).



APPROVED FOR PUBLICATION
CIVIL PROCEDURE
ZELMA v. KONIKOW
Appellate Division, A-4413-03T2, approved for publication August 8, 2005. (14 pages). Facts-on-Call Order No. 92619

A private cause of action under the federal Telephone Consumer Protection Act, 47 U.S.C. §227, must be filed within the four-year limitations period set forth in 28 U.S.C. §1658(a).

NOT APPROVED FOR PUBLICATION
VERBAL THRESHOLD
GIRLYA v. BERREVOETS
Appellate Division, A-1893-04T1, August 8, 2005, not approved for publication. (4 pages). Facts-on-Call Order No. 18342

Post-verdict order denying the plaintiff’s motion for a new trial based on a ruling that the verbal threshold applied to his claim for noneconomic damages in his automobile negligence action affirmed; the plaintiff asserted that his insurer, which was not a party to the lawsuit, automatically renewed his verbal threshold policy without giving him notice that the verbal threshold law had changed in 1998 with the adoption of the Automobile Insurance Cost Reduction Act; thus, the plaintiff sought reformation of the policy without the insurer being before the court; aside from the fact that the record was insufficient to determine the issues raised by the plaintiff, the “fundamental flaw” in his argument was that an indispensable party was not before the trial court; even if reformation was a viable issue, it could not be accomplished without the insurer being a party to the litigation.

REAL PROPERTY
NATIONSCREDIT FINANCIAL SERVICES CORP. v. FASS
Appellate Division, A-5259-03T5, August 8, 2005, not approved for publication. (8 pages). Facts-on-Call Order No. 18343

Orders that denied the defendant former property owners’ motion for reconsideration of the denial of their motion to set aside the sheriff’s sale of their property following the entry of a foreclosure judgment and that denied their request for a stay of their eviction from the property affirmed substantially for the reasons expressed by the trial court; the trial court (1) concluded that the defendants were not entitled to an automatic stay under the bankruptcy laws due to orders entered by the Bankruptcy Court, (2) found no evidence that there was inadequate notice of the original sale date of the property or that the Sheriff had not followed the proper procedures for a public sale or for an adjournment, and (3) rejected the defendants’ assertion that they had not received notice of their eviction.

ESTATES AND TRUSTS
IN RE STAAL
Appellate Division, A-1664-04T3, August 8, 2005, not approved for publication. (9 pages). Facts-on-Call Order No. 18341

Order approving the conveyance of the deceased wife’s one-half interest in real property that she co-owned with her husband reversed and remanded; when the decedent and her husband transferred the property to themselves as tenants in common, the decedent executed a will under which she left her residuary estate, including her interest in the property, to her trustees under a “Family Trust”; after the decedent’s death, her husband transferred the real property into his name and paid $140,000 into the Family Trust for the decedent’s interest in the property; the husband later died and left all of the real property to his nephew under a will; the sale of the decedent’s interest was not authorized by her will or approved by a court, and the transfer was voidable because the husband breached his fiduciary duty with his “self-dealing”; the trial court must void the conveyance and require reimbursement of $140,000 to the husband’s estate.

HUSBAND AND WIFE
COONERTY v. McALLISTER
Appellate Division, A-2011-03T2, August 8, 2005, not approved for publication. (16 pages). Facts-on-Call Order No. 18340

Denial of the defendant ex-husband’s motion for reconsideration of a post-divorce-judgment order affirmed in part, reversed in part, and remanded; although the plaintiff ex-wife’s earnings had increased, the trial court denied the defendant’s motion to reduce his alimony and child-support obligations and to reallocate the college tuition costs and off-campus living expenses of the parties’ daughter; the trial court’s methodology for deciding the alimony award was “flawed” because it did not analyze the parties’ marital standard of living and their expectations under their property settlement agreement; because child support and contributions to college expenses are two discrete obligations, the child-support award as to the daughter must be reversed and decided anew on remand with specific findings as to the N.J.S.A. 2A:34-23a factors; N.J.S.A. 2A:17-56.23a precluded the retroactive modification of the child-support obligation.

UNEMPLOYMENT COMPENSATION
ERHAHON v. BOARD OF REVIEW, DEPARTMENT OF LABOR
Appellate Division, A-974-04T1, August 8, 2005, not approved for publication. (4 pages). Facts-on-Call Order No. 18345

Final decision of the respondent Board of Review that affirmed the dismissal of the claimant’s appeal on timeliness grounds affirmed; notice that the claimant was disqualified from receiving unemployment benefits was mailed to her on January 7, 2004, and she stated that she received the notice later that month; the claimant did not file an appeal until June 15, 2004, which was “well beyond” the time period for filing an appeal under N.J.S.A. 43:21-6(b)(1), which requires an appeal to be filed within 10 days of the mailing of the notice of decision or within seven days of the receipt of the notice; the claimant did not provide good cause under N.J.A.C. 12:20-3.1(i) to excuse her late filing; the Board’s decision was supported by the record.

MENTAL HEALTH
IN RE CIVIL COMMITMENT OF L.O.B.
Appellate Division, A-10-03T2, August 8, 2005, not approved for publication. (12 pages). Facts-on-Call Order No. 18344

Order committing the appellant to the Special Treatment Unit pursuant to the Sexually Violent Predator Act affirmed; the absence of reliance on clinical certificates by the testifying experts distinguished this case from In re the Commitment of E.S.T.; to the extent that the appellant argued that it was error for the testifying experts to have relied on information about the offenses contained in the presentence investigation reports, the case law has consistently rejected those claims; Blakely v. Washington has no application to an SVPA commitment proceeding; the State established by clear and convincing evidence that it was highly likely that the appellant would reoffend.


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