NEW JERSEY LAWYER

DAILY BRIEFING      09/22/2005


News Briefs

AOC SETS JAN. 1 START FOR LEMON LAW CDR PILOT
A pilot complementary dispute resolution program for Lemon Law cases will start Jan. 1, announced the Administrative Office of the Courts. Under the pilot, the AOC will notify counsel and pro se filers in Lemon Law cases on the use of either mediation or binding or non-binding arbitration; failure to select one within 90 days will result in the case being assigned to mediation. The pilot would make CDR the “primary venue” for Lemon Law cases, according to Michelle V. Perone, the AOC’s civil practice leader. The judiciary considered the concept in response to a New Jersey State Bar Association recommendation two years ago. 9-21-05

FED JUDICIARY COMMITTEE ENDORSES UNPUBLISHED OPINION CITATIONS
Lawyers will be able to cite unpublished opinions from federal appeals courts nationwide starting Jan. 1, 2007 under a court rule endorsed by the U.S. Supreme Court’s top advisory body. The Judicial Conference approved a rule permitting briefs to include citations of opinions, orders or other judicial dispositions that have been designated “not for publication” or “non-precedential.” The 3rd U.S. Circuit Court of Appeals already permits citation of unpublished opinions, while the 2nd, 7th, 9th and federal circuit ban it, and six other circuits discourage the practice. The proposal faces review by the Supreme Court and Congress. 9-21-05

STATE BAR ASSOCIATION STUDYING PROFESSION’S FUTURE
In a far-reaching effort to assess its membership as well as the concerns and future trends facing the state’s lawyers, the New Jersey State Bar Association will be surveying members, past members and lawyers who never joined the organization. The State Bar launched its research project last weekend with a retreat where bar leaders shared thoughts on lawyer issues such as the use of technology, generation gaps in the workplace, effectiveness of bar programs and interaction among the state’s various bar groups. Said State Bar President Stuart A. Hoberman, “The aim of the retreat was to initiate a strategic planning process by sharing our ideas, experiences and resources in order to improve services and other offerings to our members and the wider legal community.” Antonio Alvarado, a former executive director of the State Bar of Texas who moderated sessions at the retreat, is preparing a report that will be a blueprint for the strategic plan. 9-21-05

NEW JERSEY ADDED TO SEX OFFENDER TRACKING WEBSITE
New Jersey is the latest state added to a website that maps the locations of registered sex offenders. The HYPERLINK "http://www.mapsexoffenders.com" mapsexoffenders.com site, which culls information from sex offender registries, covers 35 other states and the District of Columbia. Its operator, Orbizon of Orem, Utah, plans to cover the entire country. Site visitors enter their address and a map is displayed of their home area with red bubbles denoting where sex offenders live. By clicking on a bubble, the offender’s internet registry appears. Peter Aseltine, a spokesman for the Attorney General’s Office, said there are no restrictions on republishing information from the state’s offender registry, but said there would be a concern about making the information as current as possible. 9-21-05

WHOOPS! IRS DEEP-SIXES PAYMENT CHECKS
The Internal Revenue Service has some bad news for about 30,000 taxpayers whose checks to the tax collector took a ride to the bottom of San Francisco Bay. The IRS has acknowledged that the Sept. 15 estimated tax payments got blown around and fell into the bay when the truck transporting them was in a crash on the San Mateo Bridge Sept. 11. The IRS will waive penalties and interest for anyone whose payment was lost. New Jersey is not among the 13 states whose taxpayers are affected. 9-21-05



Today's Decision Summaries

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FROM THE NEW JERSEY SUPREME COURT, WEDNESDAY, SEPTEMBER 21, 2005
NO OPINIONS WERE RELEASED BY THE NEW JERSEY SUPREME COURT ON WEDNESDAY, SEPTEMBER 21, 2005, AND NO OPINIONS ARE SCHEDULED FOR RELEASE ON THURSDAY, SEPTEMBER 22, 2005.


APPROVED FOR PUBLICATION
INSURANCE
SMITH v. FIREWORKS BY GIRONE, INC.
Appellate Division, A-3312-01T2 and A-3929-01T2, approved for publication September 21, 2005. (44 pages). Facts-on-Call Order No. 92672

After a policy issued by a fireworks exhibitor’s liability insurer was provided to a municipality to satisfy the exhibitor’s surety obligation under N.J.S.A. 21:3-5, the insurer breached its duty to the municipality by settling an injured party’s claim against the exhibitor and the insurer without protecting the municipality. Although the settlement was enforceable, the insurer was obligated, in light of the breach, to pay a judgment in favor of the injured party and against the municipality, even if the settlement exhausted the policy limits. Judge Stern concurred.

NOT APPROVED FOR PUBLICATION
VERBAL THRESHOLD
MERCEDES v. CHRYSLER FINANCIAL CO.
Appellate Division, A-2114-04T2, September 21, 2005, not approved for publication. (5 pages). Facts-on-Call Order No. 18545

Summary judgment for the defendants based on the verbal threshold provisions under N.J.S.A. 39:6A-8.1 reversed and remanded; the plaintiff and his wife lived with his mother-in-law in her home; the plaintiff did not own a vehicle or have his own automobile insurance; the defendants argued that the plaintiff was bound by the mother-in-law’s election of the verbal threshold option in her policy; the trial court erred by concluding that the plaintiff’s relationship with the mother-in-law was sufficient to require compliance with the verbal threshold because, under §39:6A-8.1a, the election applies only to the named insured, her spouse, and their children; there was no issue of co-ownership of a vehicle or agency or any other circumstance that warranted a deviation from the statute’s plain language.

CIVIL PROCEDURE
YOUNG v. BLOOMINGDALE’S
Appellate Division, A-2-04T5, September 21, 2005, not approved for publication. (6 pages). Facts-on-Call Order No. 18547

Denial of the defendant warranty company’s motion to vacate a default judgment in favor of the plaintiff purchaser affirmed in part, reversed in part, and remanded in an action alleging breach of warranty, breach of contract, and violation of the Consumer Fraud Act; after the plaintiff bought a sofa and a five-year warranty from the defendant store, the sofa was damaged by spilled red wine; the plaintiff settled with the store, but the warranty company never filed an answer; relief under Rule 4:50-1(a) was properly denied because the warranty company did not demonstrate excusable neglect; under Rule 4:50-1(f), the judgment (1) was affirmed as to the warranty company’s liability for breach of warranty, (2) was vacated as to the warranty company’s liability for consumer fraud, (3) was vacated as to the award of money damages and attorney’s fees, and (4) was remanded for a proof hearing on damages for the breach of warranty and to allow the plaintiff to support his consumer fraud claim.

LAND USE
GOVERNING BODY OF THE CITY OF PERTH AMBOY v. ZONING BOARD OF ADJUSTMENT OF THE CITY OF PERTH AMBOY
Appellate Division, A-2136-04T2, September 21, 2005, not approved for publication. (4 pages). Facts-on-Call Order No. 18546

Dismissal of the plaintiff Governing Body’s complaint in lieu of prerogative writs due to lack of standing affirmed; the complaint was filed to challenge the defendant Zoning Board’s grant of the defendant applicants’ request for subdivision approval and a variance; the applicants sought to subdivide a lot of 50 feet by 100 feet into two lots of 25 feet by 100 feet and to build a house on one lot; although the minimum lot size under the ordinance was 50 feet by 100 feet, there were “quite a few” houses in the area on lots of 25 feet by 100 feet; the trial court was obliged to dismiss the complaint due to lack of standing because a governing body may challenge a variance grant through an action in lieu of prerogative writs only if the variance would have a “substantial effect” on the municipal zoning plan and because the variation from the municipal zoning plan in this case was “obviously minimal” and “clearly” would not have a substantial effect on the plan.

PARENT AND CHILD
FINE v. FINE
Appellate Division, A-1411-04T3, September 21, 2005, not approved for publication. (5 pages). Facts-on-Call Order No. 18548

Appeal from a post-divorce-judgment order that required the defendant ex-wife to provide on a timely basis supporting documents for the child-related items for which she sought reimbursement and that required the plaintiff ex-husband to pay his 60 percent share on a timely basis dismissed; the Appellate Division was required to dismiss the appeal because the order was an interim ruling and was not a decision on the merits; however, to avoid similar disputes in the future and to provide guidance to the parties, the Appellate Division held that the Family Part’s decision to require the ex-husband to reimburse the ex-wife for his share of their son’s summer camp expenses was “fair and reasonable in light of all of the relevant circumstances”; the parties were given “ample opportunity to set forth their positions,” and there was no showing that an evidentiary hearing was requested or that holding one would have changed the final outcome.

PARENT AND CHILD
GOLDFIELD v. GOLDFIELD
Appellate Division, A-2672-04T5, September 21, 2005, not approved for publication. (4 pages). Facts-on-Call Order No. 18549

Post-divorce-judgment order that established $53,200 in support arrears, that denied the defendant ex-husband’s request to modify the amount of his support obligation, that denied his request for the emancipation of his older child, that directed wage garnishment, and that provided that an arrest warrant could issue to enforce his support obligations remanded; the Appellate Division could not address the ex-husband’s appeal because the Family Part violated Rule 1:7-4(a) by failing to provide findings of fact and conclusions of law; although the Family Part’s order stated that oral argument had been held, the ex-husband asserted that there was no oral argument, and the record did not contain a transcript of the argument or a reason why the Family Part would have rejected oral argument; in light of the plaintiff ex-wife’s “unusual, conciliatory position” that the reason for her initial suit was to persuade the ex-husband to spend more time with his children, the Appellate Division suggested that mediation or other settlement efforts might be appropriate on remand.

INSURANCE
BILLIG v. DEEP RUN PLAZA
Appellate Division, A-676-04T5, September 20, 2005, not approved for publication. (12 pages). Facts-on-Call Order No. 18544

Order awarding attorney’s fees and costs to the defendant commercial tenant and denying the defendant landlord’s motion to hold the tenant responsible for part of a settlement with the plaintiff reversed and remanded to allocate insurance coverage based on the tenant’s obligation under the lease; the plaintiff fell on ice on the sidewalk directly outside the tenant’s store as he sought to enter it, and the tenant’s employee knew about the ice and the need to remove it; the trial court erred by concluding that the lease required the landlord to indemnify the tenant because the fall occurred on part of the premises retained by the landlord, which was responsible for removing ice and snow; the tenant had an obligation under the lease to cover the landlord as an additional insured on its general liability policy, and there was a sufficient nexus between the plaintiff’s injuries and his use of the part of the premises that was demised to the tenant.

HUSBAND AND WIFE
GHANEM v. GHANEM
Appellate Division, A-1330-04T1, September 20, 2005, not approved for publication. (6 pages). Facts-on-Call Order No. 18543

Post-divorce-judgment orders entered in 2004 (1) that denied the defendant ex-husband’s motion for reconsideration of prior orders establishing his child support and alimony arrears and (2) that declined to modify the amount of the arrears and increased the ex-husband’s weekly payment against the arrears from $25 to $50 affirmed in part, reversed in part, and remanded; in 2003, a Family Part hearing officer had found that the ex-husband owed $41,250 in arrears and had ordered him to pay $25 per week to satisfy the arrears, and the Family Part entered an order for arrears; the ex-husband later received a credit for $7,700 that he had already paid; the portion of one order that increased the weekly payment was vacated because the Family Part did not render findings to support its conclusion that the payment should be increased; the ex-husband’s other arguments on appeal were “without merit.”


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