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Vol. 3 No. 207 Decisions Released Nov. 1, 1995 STATE COURT CASES ATTORNEY/CLIENT — FOREIGN LEGAL CONSULTANTS 04-2-6896 Joao Carlos Moremo v. Fernando Rodrigues, App. Div. (3 pp.) Since defendant did not qualify as a foreign legal consultant under R. 1:21-9, he was not authorized to render legal services in this jurisdiction in connection with legal proceedings abroad, or to accept payment for such services, and the trial court correctly ordered defendant to return the monies paid to him by plaintiff. CONTRACTS — IMPLIED COVENANT OF GOOD FAITH 11-2-6897 Sons of Thunder Inc. v. Borden Inc., App. Div. (104 pp. — 43 page opinion and 61 page dissent) Since an implied covenant of good faith and fair dealing does not override the parties’ contractual right to terminate a contract without cause, that portion of a judgment entered by the Law Division on a jury verdict, which awarded fisherman damages based on a such a breach, is reversed. [Approved for publication Nov. 1, 1995.] FAMILY LAW — DOMESTIC VIOLENCE 20-2-6898 R.P.B.-M. v. G.E., App. Div. (2 pp.) Domestic violence order and restraints entered against husband are reversed, since three telephone calls, made by the husband to his wife at her workplace, all concerning inquiries about their daughter, do not constitute conduct prohibited by the Prevention of Domestic Violence Act. GOVERNMENT OFFICIALS — ETHICS — CONFLICTS — LAND USE 21-3-6899 South Brunswick Assocs.v. Twp. Council of the Twp. of Monroe, Law Div. (8 pp.) A township council president cannot appear before a local zoning board of adjustment on behalf of concerned citizens in opposition to a variance, and subsequently participate in the township council’s quasi-judicial review of the zoning board’s decision;therefore the council’s decision is reversed and remanded for reconsideration without the president’s participation. [Approved for publication Oct. 30, 1995.] INSURANCE — VERBAL THRESHOLD 23-2-6900 Monique Morris-Farb, et al v. John W. Baxter Jr., App. Div. (5 pp.) Summary judgment should not have been granted to the defendant, since the trial judge (1) was unduly influenced by the fact that plaintiff did not seek medical care until a few days after the accident, missed only one week from work and still worked full time, (2) minimized the objective medical evidence, (3) totally ignored plaintiff’s continuing severe pain, and (4) improperly noted that the doctors’ medical reports and certifications differed, which differences raised fact issues for the jury to resolve. 23-2-6901 Hilda Silva v. Joseph Manno, et al., App. Div. (5 pp.) Where 68-year-old plaintiff previously suffered from degenerative arthritis in her spine, her case was properly dismissed because two of her doctors, although finding degenerative changes in her post-accident X-rays, did not express an opinion that these changes were caused or aggravated by the accident, and the third doctor, who expressed such an opinion, did not refer to the X-rays or any other objective medical proof of his conclusion. LABOR AND EMPLOYMENT — POLICE 25-2-6902 Mark S. Best v. City of Brigantine, App. Div. (6 pp.) Judge’s decision that officer should be removed from police force — for giving false or misleading testimony in a municipal court hearing and attempting to persuade a fellow officer to provide a false statement — is affirmed, and officer’s claim that the 45-day requirement for filing disciplinary charges was exceeded is without merit, since, although the misconduct took place at the municipal hearing, the chief of police did not have sufficient information to file charges until the internal investigation was completed, and only then did the 45-day period commence. 25-2-6903 Officer Elliott Smith v. Twp. of Franklin, App. Div. (3 pp.) Trial judge incorrectly reversed a five-day suspension imposed upon police officer, since a police officer performing off-duty outside work is subject to all of the same rules and regulations of the police department as if he were on duty, and the policy memorandum relied upon by the trial judge — providing for less harsh penalties for outside work infractions — is inapplicable. REAL ESTATE — BROKERS 34-2-6904 Maurice Realty Assocs. Inc. v. Charles H. Kellert, et al., App. Div. (3 pp.) When a commission agreement is in writing and signed by property owner, a broker may recover a commission where it brings together the owner with a ready, willing and able buyer, even though the owner arbitrarily withdraws from the transaction and fails or refuses to execute a sales contract, but where, as here, the commission agreement is oral and confirmed by the broker in writing as required by N.J.S.A. 25:1-9, the broker cannot recover a commission unless and until an actual sale occurs, and since this did not occur here, broker’s commission claim was properly denied. FEDERAL COURT CASES BANKRUPTCY — JUDGMENTS — AUTOMATIC STAY 42-8-6905 Constitution Bank v. Steven R.. Tubbs, et al., Third Cir. (19 pp.) (1) Since the act of entering an order of judgment against one defendant violated the automatic stay, the fact that the order itself specified that it was to be effective to a date prior to the bankruptcy filing did not save it, and the court lacks jurisdiction to hear any appeal from that judgment since it is void. (2) Although relief from the automatic stay was properly obtained with respect to another defendant so that his appeal of the same order could be heard by the court, since the order could not be entered against the first defendant, it is not a final order, and therefore not appealable by the second defendant. CIVIL PROCEDURE — DEFAULTS 07-7-6906 Tyrone Reynolds, et al. v. Gerald McCann, et al., U.S. Dist. Ct. (7 pp.) Since courts may use their discretion in denying a default judgment application where, as here, the applicant has not been diligent in prosecuting its case, and no prejudice will result to the applicant from a denial of the default application, plaintiff’s motion for entry of default and default judgment against certain defendants is denied, without prejudice. LABOR AND EMPLOYMENT — UNIONS 25-7-6907 In re Richard Diaz, et al.; U.S.A. v. Local 560 (I.B.T.), et al., U.S. Dist. Ct. (42 pp.) In light of the history of intimidation within union, the court affirms the union trustee’s determination that two union members be expelled for violation of a number of the provisions of the local’s constitution — finding that they had filed a groundless suit in retaliation against a fellow union member who had participated in disciplinary hearings against one of the expelled members. CRIMINAL LAW AND PROCEDURE 14-7-6908 U.S.A. v. Joseph C. Parlavecchio, et al., U.S. Dist. Ct. (22 pp.) Since the defendants’ alleged conduct — using the mails to promote unlawful activity — even if proved, cannot form the predicate act of “bribery” under the Travel Act, defendants’ motion to dismiss that count of the complaint is granted, but motions (a) for a bill of particulars with regard to a money-laundering count, and (b) to dismiss the obstruction of justice count, are denied. [For publication.] 14-7-6909 William J. Spagnoli v. U.S.A., U.S. Dist. Ct. (5 pp.) In a case involving a former bank vice president who pled guilty to an indictment charging him with conspiring to obtain kickbacks and evading taxes on his kickback income, the court’s sentence is affirmed, as is the court’s calculation of the amount of restitution to be paid.

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