NEW JERSEY LAWYER

DAILY BRIEFING      09/13/2005


News Briefs

ASSIGNMENT JUDGE CALLED TO WARREN COURTHOUSE MATTER
Judiciary negotiation, not orders, will be needed to resolve complaints about overcrowding and unsafe conditions at the Warren County Courthouse. Finding that the separation of powers doctrine prohibits trial courts from ordering freeholders to fund the improvements, Mercer County Judge Linda R. Feinberg dismissed the Warren County Bar Association’s suit that sought to order freeholders to improve the more than 100-year-old courthouse. Feinberg said that Warren County Assignment Judge Graham T. Ross should meet with the freeholders to resolve issues raised by the suit. The association complained that crowded conditions at the courthouse violate the Administrative Office of the Courts’ security regulations. The freeholders said the suit is unnecessary because a county committee is already studying courthouse improvements. 9-12-05

$328K IN OFFICERS’ OVERTIME PAY STIRS MORRIS DEBATE
The Morris County Administrator’s Office and the county’s sheriff’s and correction officers are working to resolve differences over payment to the officers for massive amounts of overtime, which could put the county on the hook for almost $328,000. County Administrator John Bonanni says the officers should get compensatory time off, not hourly pay, for overtime. But Sheriff Edward Rochford says federal law entitles them to the pay. Some officers have racked up more than 400 hours in overtime and have been opting for payment when they quit, retire or change jobs. One high-ranking officer cashed in his overtime comp hours for $29,176 and still has 246 more hours pending, while another nine officers each have more than $10,000 in overtime accrued. 9-12-05

COMMITTTEE TO REVIEW GAS PRICE HIKES AS TRENTON RETURNS TO WORK
Back from summer break, the legislature returns to action Thursday on a matter near and dear to all New Jerseyans — gas prices. The Assembly Transportation Committee will conduct a hearing on the recent rise in gas prices, which will feature testimony from representatives of the petroleum products industry. 9-12-05

ROOM AT INN MAY RUN OUT TOO SOON FOR KATRINA-DISPLACED LAWYERS
It may take several months before the thousands of lawyers displaced by Hurricane Katrina can return to their old practices, and their temporary offices in nearby states may not last that long. The Georgia Bar Association has said that lawyers from Louisiana, Mississippi and Alabama can set up offices in Atlanta to temporarily serve their clients, but long-term work would require they get a Georgia license. The state’s next bar exam in February will not have posted results until late May. Previously, the Texas Supreme Court ruled that lawyers from the three states can practice in Texas for 30 days without reprisal from state regulators. About 7,500 lawyers, including more than 5,000 in Louisiana alone, are displaced by the hurricane. 9-12-05

INMATE’S HIRSUTE SUIT CLIPPED BY FEDERAL APPEALS COURT
Ohio inmate Cornelius Hoevenaar, of Cherokee ancestry, began to practice an American Indian religion that prohibits him from cutting his hair. A prison regulation prohibits hair that extends over the shirt collar. Hoevenaar sued under the Religious Land Use and Institutionalized Persons Act of 2000, and a District Court ruled he could maintain a “kouplock” — a two-inch square section at the base of the skull that is grown longer than the remaining hair. However, in Hoevenaar v. Lazaroff, the 6th U.S. Circuit Court of Appeals reversed, saying the lower court failed to give proper deference to prison officials’ security concerns. It noted testimony that a kouplock could be used to hide contraband. 9-12-05



Today's Decision Summaries

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

THE SUPREME COURT has announced that it will release an opinion in MAISONAVE v. NEWARK BEARS PROFESSIONAL BASEBALL CLUB, INC., A-59/60, on September 13, 2005. The issue on appeal in Maisonave addresses whether the operator of a commercial sports facility and the owner of a concession stand breached a duty of care to a spectator who was injured by a foul ball while at the concession stand.



APPROVED FOR PUBLICATION
 
NO OPINIONS APPROVED FOR PUBLICATION WERE RELEASED BY THE APPELLATE DIVISION ON MONDAY, SEPTEMBER 12, 2005.

NOT APPROVED FOR PUBLICATION
ESTATES AND TRUSTS
IN RE CLEMONS
Appellate Division, A-7117-03T3, September 12, 2005, not approved for publication. (13 pages). Facts-on-Call Order No. 18510

Order providing that the cash funds available for distribution from the decedent’s estate were to be delivered to the New Jersey Unclaimed Property Administrator for the benefit of the decedent’s husband or his heirs and that no distribution was to be made to the estate of the decedent’s father because the funds totaled less than $50,000 affirmed; the decedent died intestate in 1988, her father died intestate in 1995, and her husband died in 2002; legislative enactments involving unclaimed property in 1995 and 2001 occurred while the decedent’s estate was being administered; the trial court applied New Jersey law as it existed in 1995, which allowed the State to retain the funds until they are claimed by the husband’s missing heirs; contrary to the argument of the father’s second wife, the trial court did not err by not applying the law as it existed in 2001, which would have resulted in the funds passing to her if the missing heirs did not come forward within two years.

UNEMPLOYMENT COMPENSATION
MIGLIORE v. BOARD OF REVIEW, DEPARTMENT OF LABOR
Appellate Division, A-7108-03T3, September 12, 2005, not approved for publication. (4 pages). Facts-on-Call Order No. 18511

Final decision of the Board of Review that denied unemployment compensation benefits to the petitioner because he was discharged for misconduct connected with the work affirmed; the Appeal Tribunal found that the employer’s testimony was credible, that the petitioner’s testimony was inconsistent, and that the petitioner was discharged because he had touched the wrist of his co-worker after being warned not to, which constituted misconduct connected with the work; the co-worker testified that the petitioner “definitely went after” her wrists and “held them very tightly”; the Board’s decision was “fully supported” by the record.

VERBAL THRESHOLD
KRAUSS-CONNER v. MINERVA
Appellate Division, A-615-04T1, September 9, 2005, not approved for publication. (10 pages). Facts-on-Call Order No. 18507

Summary judgment for the defendant based on the N.J.S.A. 39:6A-8a verbal threshold under AICRA reversed and remanded; the plaintiff was involved in an accident with the defendant in August 2000, and she was involved in another accident in November 2000; contrary to the trial court’s determination, the plaintiff’s medical report satisfied the Polk v. Daconceicao comparative analysis requirement; the trial court must reconsider its determination that the plaintiff did not present sufficient evidence of a permanent injury in light of the New Jersey Supreme Court’s recent decision in Serrano v. Serrano, which held that the §39:6A-8a verbal threshold does not include a “serious injury” standard and that a plaintiff must prove only that she suffered an injury described in §39:6A-8a.

NEGLIGENCE
MYERS v. BRYAN
Appellate Division, A-5486-03T1, September 9, 2005, not approved for publication. (6 pages). Facts-on-Call Order No. 18508

Orders (1) that dismissed the plaintiff passenger’s complaint following the jury’s no-cause verdict and (2) that denied the passenger’s motion for a new trial affirmed in an action arising from a boating accident; the defendant was the passenger’s father and the operator of the boat, which was an 18-foot pleasure craft owned by the passenger’s brother; the plaintiff sought a jury instruction stating that the standard of care had to be defined by an expert, but the trial court instead instructed the jury that the operator had to exercise reasonable care for the safety of all passengers; the jury found that the operator was not negligent; the trial court correctly recognized that the operator’s duty to the plaintiff was established in Cerciello v. MacConchie and that expert testimony that was inconsistent with Cerciello was impermissible, and it correctly instructed the jury as to the appropriate standard of care.

CONSUMER PROTECTION
FILSAIMA v. HILLSIDE AUTO MALL, INC.
Appellate Division, A-776-04T3, September 9, 2005, not approved for publication. (7 pages). Facts-on-Call Order No. 18506

Judgment of $14,513.40 for the plaintiff in an action arising from her purchase of a defective car from the defendant dealer affirmed; the car was covered by a manufacturer’s warranty, and the plaintiff also had purchased a service contract from the dealer; the plaintiff sought a refund of the purchase price because the dealer could not repair the car due to the manufacturer’s bankruptcy and its resulting failure to supply the dealer with replacement parts; the trial court (1) properly determined that the dealer violated its warranty obligations under the Magnuson-Moss Warranty Act and the Uniform Commercial Code and (2) properly awarded treble damages after finding that the dealer violated the Consumer Fraud Act by charging the plaintiff twice for a registration fee and by overstating the car’s price in the financing contract; contrary to the dealer’s arguments on appeal, it had a warranty obligation to the plaintiff, despite a disclaimer in the sales contract, and it was not insulated from liability by the Franchise Practices Act.

REAL PROPERTY
HOMESIDE LENDING, INC. v. GREENE
Appellate Division, A-2284-04T5, September 9, 2005, not approved for publication. (8 pages). Facts-on-Call Order No. 18505

Order that denied the motion of the defendant mortgagors and the defendant relative to vacate the sale of real property following a sheriff’s sale and that granted the motion of the intervenor purchasers to declare the mortgagors’ conveyance of an interest in the property to their relative void and to confirm the validity of the sheriff’s conveyance to them affirmed; contrary to the defendants’ arguments on appeal, (1) the mortgagors were served with the notice of the sheriff’s sale required by Rule 4:65-2, (2) the mortgagors waived their right to seek compliance with the requirement that the notice be posted on the property, and (3) the sheriff’s sale did not violate the automatic stay under 11 U.S.C. §362(a) that resulted from the relative’s bankruptcy filing because the relative did not have a valid interest in the property; the record supported the trial court’s finding that the mortgagor’s conveyance to their relative was fraudulent and was designed to “hinder, delay, or defraud” creditors in violation of N.J.S.A. 25:2-25.

HUSBAND AND WIFE
MOORE v. MOORE
Appellate Division, A-718-04T5, September 9, 2005, not approved for publication. (7 pages). Facts-on-Call Order No. 18504

Post-divorce-judgment order that denied the plaintiff ex-husband’s motion to reduce or eliminate his alimony obligation reversed and remanded for an evidentiary hearing on the issue of changed circumstances; the judgment was entered when the ex-husband was 63 years old, and it “made clear” that the parties anticipated litigation on the issue of changed circumstances if the plaintiff retired at age 65; the ex-husband was out of work before he reached age 65; the ex-husband’s first motion to terminate alimony, which was filed seven months after the judgment, was denied, and he filed the motion at issue in this decision after his 65th birthday; the ex-husband established a prima facie case of changed circumstances based on evidence of a diminution of his income and assets and an increase in the ex-wife’s income and assets; the parties’ certifications and CIS forms raised material issues of fact about their finances and about the plaintiff’s claim that he had retired because he could not find work.


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