NEW JERSEY LAWYER

DAILY BRIEFING      09/02/2005


News Briefs

EX-BOYFRIEND TO PAY $510,000 FOR MAILING EXPLICIT PHOTOS
Bergen County Judge Peter E. Doyne awarded $510,000 to a woman whose former boyfriend took sexually explicit photos of her and included them in Christmas cards sent to her family and friends. Doyne found Philip Grimado’s distribution of the photos to 100 people, including the woman’s parents, constituted “publicity of the most vulgar and debased kind” and that plaintiff Rhonda Del Mastro will suffer stress for an indefinite period as a result. The award in Del Mastro v. Grimado included $425,000 in punitive damages and $85,000 compensatory. Joel A. Leyner of Chasan Leyner Bariso & Lamparello in Secaucus represented Del Mastro, and Leonard Z. Kaufmann of Saddle Brook’s Cohn Lifland Pearlman Herrmann & Knopf represented Grimaldo. (A full text of Del Mastro, Facts-on-Call Order No. 18466, can be ordered from NJL Online or by calling 800-670-3370.) 9-1-05

CIVIL TRIALS IN FED COURTS DROP 80 PERCENT
U.S. Supreme Court rulings in the 1990s that made it more difficult for plaintiffs to prevail in civil actions in federal courts are being blamed for a nearly 80 percent decline in the number of cases concluding in trials since 1985. “Plaintiffs have been avoiding federal courts,” said Aaron D. Twerski, dean of the Hoftsra University School of Law in Hempstead, N.Y., in response to a government report that the number of civil cases resolved by trial dropped to about 800 in 2003 from 3,600 in 1985, and that total civil case filings dropped to 49,166 from 60,941. Supreme Court decisions resulting in this decline, said Twerski, include Daubert v. Merrell Dow Pharmaceuticals, which heightened the standard for admitting expert testimony. 9-1-05

ANONYMOUS TIP TO POLICE NOT A BREACH OF LAWYER-CLIENT PRIVILEGE
Law enforcement officers who made an arrest apparently based on a tip from the suspects’ lawyer did not violate attorney-client privilege, an appeals court in California has ruled. The court found that because sheriff’s deputies did not procure or induce breach of attorney-client privilege, the evidence is valid in an arrest in which they obtained a search warrant based on an anonymous tip the defendants claim came from an attorney who advised them prior to the arrest. In People v. Navarro, the court rejected the defendants’ motion to suppress, saying a violation of lawyer-client privilege “turns on whether the government helped instigate or orchestrate a breach.” It said a Fifth Amendment due process claim requires showing the government objectively knew a lawyer-client relationship existed involving its informant and that it deliberately intruded on the relationship. 9-1-05

SCHOOL BOARD CAN BE SUED FOR STUDENT BULLYING
A mother can sue a school board and school officials for failing to protect her son from bullying before he committed suicide, ruled a federal judge in New Haven, Conn. Judith Scruggs, who is appealing her 2003 conviction of risk of injury for failing to provide a safe home before her son hanged himself in 2001, claims the death occurred because the Meriden school board, its superintendent, a vice principal and a guidance counselor didn’t do enough to protect him from bullies. Senior U.S. District Judge Peter C. Dorsey allowed four counts to stand after the school board filed to dismiss all five in Scruggs’ suit. 9-1-05



Today's Decision Summaries

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FROM THE NEW JERSEY SUPREME COURT, THURSDAY, SEPTEMBER 1, 2005
NO OPINIONS WERE RELEASED BY THE NEW JERSEY SUPREME COURT ON THURSDAY, SEPTEMBER 1, 2005, AND NO OPINIONS ARE SCHEDULED FOR RELEASE ON FRIDAY, SEPTEMBER 2, 2005.


APPROVED FOR PUBLICATION
 
NO OPINIONS APPROVED FOR PUBLICATION WERE RELEASED BY THE APPELLATE DIVISION ON THURSDAY, SEPTEMBER 1, 2005.

NOT APPROVED FOR PUBLICATION
VERBAL THRESHOLD
PLANTE v. REED
Appellate Division, A-4975-03T5, September 1, 2005, not approved for publication. (8 pages). Facts-on-Call Order No. 18469

Summary judgment for the defendant based on the N.J.S.A. 39:6A-8a verbal threshold under AICRA reversed and remanded for trial; the objective medical evidence of persistent spasms in the plaintiff’s back more than eight months after the accident alone was sufficient proof to support a jury finding that the plaintiff had satisfied the verbal threshold requirement under AICRA; however, there was “even further proof of a qualifying injury,” including a flattened cervicodorsal curve due to the spasms and an MRI that revealed disc protrusions at C5-C6 and C6-C7 and degenerative spurring at C3-C4; thus, the plaintiff had presented objective medical evidence that was sufficient to support a jury finding in her favor.

VERBAL THRESHOLD
MINGIN v. REDDEN
Appellate Division, A-4498-03T5, September 1, 2005, not approved for publication. (2 pages). Facts-on-Call Order No. 18468

Summary judgment for the defendant based on the N.J.S.A. 39:6A-8a verbal threshold under AICRA reversed and remanded; the trial court based its decision on the plaintiff’s failure to satisfy the subjective standard that her injury resulted in a “serious life impact”; reversal and remand were required in light of the New Jersey Supreme Court’s recent decisions in DiProspero v. Penn and Serrano v. Serrano; because the trial court dealt only with the “serious life impact” issue, it must resolve on remand the issue of whether there was objective medical evidence of a permanent injury.

REAL PROPERTY
SIMON v. KIEFER
Appellate Division, A-520-04T2, August 31, 2005, not approved for publication. (17 pages). Facts-on-Call Order No. 18463

Denial of the defendant neighbor’s motion for reconsideration of a Chancery Division order affirmed; the order granted summary judgment for the plaintiff neighbor on her claim that the defendant’s use of a strip of her property for a driveway and for parking was encroachment and trespass, and it denied the defendant’s counterclaim that he had acquired title to the strip by adverse possession or by an easement by prescription; the defendant’s immediate predecessor in interest testified that she had been told by her predecessors that she did not own the right to use the strip and that she had told the defendant of that fact when she conveyed her property to him in 2004; the Chancery Division correctly determined that the act of parking on the plaintiff’s property by the defendant and his predecessors in interest was not open and notorious use because the predecessors “clearly did not intend” to convey any interest or rights in the strip.

PAROLE
WALLACE v. STATE PAROLE BOARD
Appellate Division, A-6665-03T3, August 31, 2005, not approved for publication. (8 pages). Facts-on-Call Order No. 18464

Final decision of the State Parole Board that denied parole to the appellant inmate and imposed a 27-month future eligibility term affirmed; the inmate was convicted of sexually assaulting his 12-year-old niece and endangering the welfare of a child; the Board’s decision was based on the inmate’s denial of committing the sexual assault and his lack of insight into his criminal behavior; the inmate had consistently denied committing the sexual assault and therefore argued that he could neither admit it nor demonstrate insight into it; the Board’s reasoning was supported by the evidence because the inmate admitted committing the child-endangerment offense and because the only basis for that offense was the sexual assault; the record supported the Board’s determination that the inmate would commit another crime if he was released.

SENTENCING
STATE v. COOK
Appellate Division, A-3510-02T4, August 31, 2005, not approved for publication. (6 pages). Facts-on-Call Order No. 18465

Sentence on remand of 60 years’ imprisonment and a mandatory 30-year period of parole ineligibility on a conviction of knowing and purposeful murder affirmed; the sentencing judge found two aggravating factors and no mitigating factors; the Appellate Division upheld the parole disqualifier and rejected the defendant’s Blakely arguments (1) because the New Jersey Supreme Court’s application of Blakely in State v. Natale to eliminate New Jersey’s presumptive statutory sentencing scheme did not apply to murder, for which there is no presumptive statutory term, and (2) because the Supreme Court held in State v. Abdullah that the imposition of a parole disqualifier based on factors found by a judge does not violate the Sixth Amendment; the Appellate Division also rejected the defendant’s argument that his sentence was excessive.

CIVIL PROCEDURE
ABD LIBERTY, INC. v. STATE OF NEW JERSEY
Chancery Division, Somerset, Hunterdon, and Warren Counties, SOM-L-505-05, August 30, 2005, not approved for publication. By Williams, P.J. (19 pages). Facts-on-Call Order No. 18461

Motion to dismiss granted without prejudice in the plaintiff residential builder’s action for a declaration that the retroactive portion of the New Jersey Highlands Water Protection and Planning Act is unconstitutional and a manifest injustice; the builder bought 60 acres of land in Warren County in January 2003, filed an application for major preliminary subdivision approval in April 2004, and received that approval in July 2004; the Act was signed into law in August 2004, and it applied retroactively to the date that it was introduced in the Senate in March 2004; the land was part of the preservation area created by the Act, which requires a permit to develop land in the preservation area; contrary to the argument of the defendant State and the defendant Department of Environmental Protection, there was no basis to transfer the matter to Mercer County; the builder’s claims were not ripe because it had three possible statutory remedies that were made available by the defendants and because the defendants had not made a decision about those remedies; the DEP was given 90 days to complete its review to determine what action it intended to take.

REAL PROPERTY
RACIOPPO v. HUNTERDON HOLDINGS, LLC
Chancery Division, Somerset, Hunterdon, and Warren Counties, HNT-C-14024-05, August 19, 2005, released August 29, 2005, not approved for publication. By Williams, P.J. (17 pages). Facts-on-Call Order No. 18462

In an action arising from a contract to purchase real property, motion for summary judgment by the plaintiff buyers and cross-motion for partial summary judgment by the defendant sellers denied; there were two marketability issues before closing: the contamination of the property caused by leaks from two underground fuel tanks and the septic system’s disrepair; the buyers sought to force the sellers to convey the property, to remediate the contamination, to repair the septic system, and to obtain a “No Further Action” letter from the New Jersey Department of Environmental Protection; the sellers sought a declaration that the contract was terminated and that the buyers had breached; as to the buyers’ motion, (1) the contract “clearly” demonstrated that the sellers intended to sell the property in its present condition, and the sellers thus were not required to comply with any of the buyers’ demands before closing, (2) the sellers were not required by statute to remediate the property, and (3) the buyers were not entitled to specific performance under an equitable conversion theory; as to the sellers’ motion, the contract would be null and void if the buyers did not close on the property in its present condition within 60 days.


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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.)


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