NEW JERSEY LAWYER

DAILY BRIEFING      09/07/2005


News Briefs

BAR ASSOCIATION RALLIES AID FOR KATRINA VICTIMS
Recalling how it and others helped victims in the New Jersey-New York metropolitan area after the 9-11 terrorist attacks, the New Jersey State Bar Association has stepped up to help victims of Hurricane Katrina. It has contacted bar associations in Louisiana and neighboring states to offer volunteer help and is urging members and New Jerseyans to make financial contributions. “The lawyers of Louisiana and the Gulf states now need our help, and I call upon you to once again to do what you can to assist the public and our colleagues in their greatest hour of need,” says Bar Association President Stuart A. Hoberman. Donations should be sent to Hurricane Katrina Legal Community Relief Fund, c/o Baton Rouge Bar Foundation, 544 Main St., Baton Rouge, La. 70802. Questions about the fund may be directed to the Baton Rouge Bar Association’s executive director Ann G. Scarle at (225) 344-4803 or ann@brba.org. 9-6-05

CHILD PORNOGRAPHY TRIAL OF FORMER JUDGE STARTS WEDNESDAY
Jury selection begins Wednesday in Camden’s U.S. District Court in the child pornography trial of former Camden County Judge Stephen W. Thompson. He has been free on $2 million bail since surrendering to U.S. marshals in August 2003 on charges of possessing child pornography and traveling to Russia with the alleged intent of forcing a minor to pose for pornography. Thompson’s attorney, Edwin J. Jacobs Jr. of Jacobs & Barbone in Atlantic City, said he will mount an insanity defense, noting, in part, the repercussion of Thompson having lost a leg in combat during the war in Vietnam. Thompson faces up to 25 years in prison and $500,000 in fines. 9-6-05

SERVICES WEDNESDAY FOR LEGAL AFFAIRS JOURNALIST TIMOTHY O’BRIEN
Services are Wednesday for Timothy O’Brien, 63, former editor and longtime senior writer for the New Jersey Law Journal, who died Saturday. He was considered one of the most knowledgeable reporters covering the state’s legal profession. While with the Star-Ledger of Newark in the 1970s and early 1980s, his coverage included the Karen Ann Quinlan right-to-die case, the real estate battle after the death of J. Seward Johnson and the Abscam sting operation. “He was the most tenacious reporter I ever met,” said Mary Jo Patterson, who worked with O’Brien at the Star-Ledger. Viewing is from 2 to 4 and 7 to 9 p.m. Wednesday at Paul Ippolito Summit Memorial, 7 Summit Ave., Summit. A final visitation is at 9:45 a.m. Thursday, followed by a 10:45 a.m. Mass at St. Teresa of Avila, 306 Morris Ave., Summit. 9-6-05

DEFENSE LAWYER IN UNUSUAL CONFLICT WITH DEPUTY SHERIFF HUBBY
Criminal defense attorney Robin Kay Lord of Lord & Whalen in Trenton admits to having an unusual conflict of interest at home with her husband, Steve, a deputy Monmouth County sheriff and former state prison guard. While she’s in the courtroom, he “roots me on and hopes my clients go to jail,” Lord says in a feature story in the Asbury Park Press. Lord was in the spotlight in July for defending Hopewell businessman Jonathan Nyce, who faced up to 30 years on a charge of murdering his wife, but the jury convicted on two lesser counts that carry a maximum five years in prison. 9-6-05

LEGAL RESEARCHER TAKES SPELL-CHECK TO A NEW LEVEL
If only The New York Times had this before its Jayson Blair plagiarism scandal. Legal research publisher LexisNexis has introduced a service that helps editors detect plagiarism before stories go to press. The program compares fresh copy with LexisNexis’ database of more than 6 billion documents and with several years of archived web pages to calculate the percentage of material suspected of not being original, highlight the suspect text and pinpoint its possible sources. John Barrie, head of Iparadigm, a software company that co-developed the service with LexisNexis, said it would have caught Blair’s infamous scam as well as plagiarism of works by historians Stephen Ambrose and Doris Kearns Goodwin. 9-6-05



Today's Decision Summaries

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FROM THE NEW JERSEY SUPREME COURT, TUESDAY, SEPTEMBER 6, 2005
NO OPINIONS WERE RELEASED BY THE NEW JERSEY SUPREME COURT ON TUESDAY, SEPTEMBER 6, 2005, AND NO OPINIONS ARE SCHEDULED FOR RELEASE ON WEDNESDAY, SEPTEMBER 7, 2005.


APPROVED FOR PUBLICATION
 
NO OPINIONS APPROVED FOR PUBLICATION WERE RELEASED BY THE APPELLATE DIVISION ON TUESDAY, SEPTEMBER 6, 2005.

NOT APPROVED FOR PUBLICATION
VERBAL THRESHOLD
LUCERO v. MEZA
Appellate Division, A-5807-03T5, September 6, 2005, not approved for publication. (12 pages). Facts-on-Call Order No. 18481

Summary judgment for the defendants based on the N.J.S.A. 39:6A-8a verbal threshold under AICRA affirmed; the motion judge properly concluded that the plaintiff had failed to objectively establish the existence of a permanent cervical injury that was causally related to the May 8, 2000 accident; although the plaintiff established the existence of a “mild” bulge at C5-6 with spasm, the objective evidence did not show that her neck or the portions of her body that are enervated by cervical nerves failed to heal so as to function normally within the meaning of the statute; the opinion of the plaintiff’s chiropractor that the plaintiff’s upper extremity radicular complaints were permanent was based solely on objective evidence that was inadequate and on subjective tests that were not evidential for these purposes.

VERBAL THRESHOLD
BOWLES v. INTINDOLA
Appellate Division, A-2995-03T1, September 6, 2005, not approved for publication. (14 pages). Facts-on-Call Order No. 18483

Summary judgment for the defendants based on the N.J.S.A. 39:6A-8a verbal threshold under AICRA affirmed; at the time it heard the motion for summary judgment, the trial court was required to consider the second prong of Oswin v. Shaw, but it based its decision primarily on the requirements of Polk v. Daconceicao; thus, there was no reason to remand the matter in light of the New Jersey Supreme Court’s recent decisions in DiProspero v. Penn and Serrano v. Serrano; the trial court did not misapply Polk, and the plaintiff’s reliance on Bennett v. Lugo was “misplaced.”

VERBAL THRESHOLD
MORALES v. MORANTE
Appellate Division, A-5854-03T5, September 6, 2005, not approved for publication. (4 pages). Facts-on-Call Order No. 18480

Summary judgment for the defendants based on the N.J.S.A. 39:6A-8a verbal threshold under AICRA reversed and remanded; the defendants’ attorney conceded that the plaintiff satisfied the objective prong of the verbal threshold test, but the trial court determined that she did not satisfy the second prong; in its recent decisions in Serrano v. Serrano and DiProspero v. Penn, the New Jersey Supreme Court held that an accident victim must establish only an injury defined in §39:6A-8a and need not demonstrate a serious injury to recover noneconomic damages; on remand, the trial court must determine whether the plaintiff’s proofs were sufficient to satisfy the verbal threshold in light of Serrano and DiProspero.

HUSBAND AND WIFE
HILDEBRANDT v. HARDY
Appellate Division, A-6496-03T2, September 6, 2005, not approved for publication. (5 pages). Facts-on-Call Order No. 18482

Post-divorce-judgment order that granted in part the plaintiff ex-wife’s motion for attorney’s fees and that denied the defendant’s motion for attorney’s fees affirmed; after entering a dual judgment of divorce, the trial court awarded the ex-wife 25 percent of the fees that her attorney had billed because it found that at least 25 percent of the litigation in the case was “directly attributable” to the defendant ex-husband’s “irrational position” concerning custody of the parties’ child; the trial court did not abuse its discretion because there was “ample support” in the record for the finding that the ex-husband asserted and maintained his positions about custody in bad faith and because the finding that at least 25 percent of the litigation involved the ex-husband’s pursuit of unreasonable positions was based on the trial court’s “intimate familiarity” with the case.

REAL PROPERTY
FREEHOLD JACKSON 537 ASSOCIATES v. OLSON
Appellate Division, A-124-03T1, September 2, 2005, not approved for publication. (10 pages). Facts-on-Call Order No. 18476

Order (1) granting judgment to the plaintiffs for possession of a tract of land, (2) rejecting the counterclaim for a declaration of title by reason of adverse possession, (3) ejecting the defendant from the property, and (4) providing that the plaintiffs were entitled to immediate possession, use, and occupancy of the property affirmed; the property in question was part of a larger tract on both sides of the border that separates Freehold Township in Monmouth County from Jackson Township in Ocean County; the property had been used for farming since 1916 by the defendant’s predecessors in title, who had title to the adjacent property but who did not own the property in question; the trial court did not err in its evaluation of the evidence and did not misapply its discretion when it concluded that the defendant did not meet his burden of demonstrating adverse possession by his remote predecessors in title.

REAL PROPERTY
McGUFFIN v. McGUFFIN
Chancery Division, Somerset, Hunterdon, and Warren Counties, SOM-C-12043-05, return date August 19, 2005, released August 29, 2005, not approved for publication. By Williams, P.J. (4 pages). Facts-on-Call Order No. 18478

Motion to reform a deed by the plaintiff executor of the estate of the grantor mother’s son-in-law denied; the mother acquired land in Warren Township in 1927, and she deeded a 25-foot strip of the land to the Township as a condition to the grant of her 1972 application to subdivide the land; in 1983, the mother executed a deed for the land to her daughter and her son-in-law; when the daughter died in 2003, her share of the land passed to the son-in-law; after the son-in-law died, his executor attempted to convey the land, but it was discovered that the 1983 deed described only the 25-foot strip that had been deeded to the Township; the parties agreed that there was a scrivener’s error; however, the defendant granddaughter contended that only a portion of the land that the executor claimed should have been conveyed in the 1983 deed; because it was not clear exactly what the mother had intended to convey, a “significant” question of fact existed, and discovery was required.

MEDICAL MALPRACTICE
RICKER v. HUNTERDON MEDICAL CENTER
Law Division, Hunterdon County, HNT-L-399-03, return date August 19, 2005, released August 24, 2005, not approved for publication. By Reed, J. (10 pages). Facts-on-Call Order No. 18477

Motion for summary judgment by the defendant primary care physician in a medical malpractice action granted; the plaintiff patient’s expert did not properly establish that the failure to return the telephone call of a patient who had been treated in the emergency room was a deviation from the standard of care; the expert’s deposition testimony about the physician’s deviation from the standard of care was “equivalent to a net opinion,” and the expert’s testimony about his personal practice was insufficient to establish the standard of care; contrary to the patient’s argument, expert medical testimony was required to establish the standard of care for the failure to return a patient’s telephone call or to follow up with a patient after his visit to the emergency room.

CONTRACTS
ALARMTRONICS, INC. v. COMMERCE BANK, N.A.
Law Division, Hunterdon County, HNT-L-433-04, return date August 19, 2005, released August 24, 2005, not approved for publication. By Reed, J. (8 pages). Facts-on-Call Order No. 18460

Motion for summary judgment by the defendant bank and cross-motion for summary judgment by the plaintiff security company denied in a breach of contract action; the bank contended that it had terminated its security contracts with the company in accordance with their terms; the company sought to recover amounts owed by the bank for services rendered plus late charges under an acceleration clause in the contracts that made any amounts due during the remainder of the contracts due immediately in the event of a breach; as to the bank’s motion, it was “clear” that there were genuine issues of material fact as to whether the contracts were terminated properly; although the bank indicated that it provided the company with 60 days’ written notice of its termination pursuant to the contracts, it did not supply evidence that it had complied with the other contractual conditions, including the payment of any balances due; as to the cross-motion, there were genuine issues of material fact as to whether and, if so, how the bank breached the contract and as to whether the acceleration clause applied.


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