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Vol. 4 No. 142 – JULY 25, 1996 STATE COURT CASES ATTORNEYS — CONFLICTS OF INTEREST Now on Counsel Connect 04-2-9694 Beth Herbert v. Garabed Haytaian, etc., et al., App. Div. (18 pp.) An attorney-client relationship was created when a prospective client asked attorney to undertake representation and preliminary conversations were held, despite the fact that the client ultimately chose not to retain the attorney and no bill was rendered by the attorney; therefore, an actual conflict existed in the attorney later seeking to represent a party with interests materially adverse to the former client in a substantially related matter, and the trial judge s disqualification of the attorney was proper. [Approved for publication July 25, 1996.] ATTORNEYS — FEES 04-2-9695 Michael Nelk, et al. v. Michael Billian, App. Div. (6 pp.) Considering the proportionate time spent on a file by each of plaintiff s successive attorneys, and the favorable results obtained, the division of fees ordered here ultimately is fair and reasonable and is affirmed. AUTOMOBILES — DRIVER S LICENSE SUSPENSION 05-2-9696 Div. of Motor Vehicles v. Joyce Jenkins, App. Div. (7 pp.) Suspension of appellant s driving privileges imposed by the DMV director is reversed, since N.J.S.A. 39:5-30.10 does not permit a suspension merely because appellant was convicted of speeding offense occurring within a year of license restoration following a suspension for nonpayment of an insurance surcharge. CONTRACTS — BROKERS — TORTIOUS INTERFERENCE 11-2-9697 Richard Robertella v. Kings Supermarket Inc., et al., App. Div. (14 pp.) Summary judgment dismissing broker s complaint for tortious interference with prospective economic advantage — alleging that supermarket impermissibly bypassed him when it entered into a contract directly with broker s client for the sale of baked goods — is reversed since the judge engaged in an impermissible weighing of evidence. CONTRACTS — SPORTS AGENTS — TORTIOUS INTERFERENCE 11-2-9698 Keith Glass v. Patrick Kennedy, et al., App. Div. (15 pp.) Judge correctly dismissed sports agent s claims alleging tortious interference with contract and prospective economic advantage since the evidence was too meager for a reasonable jury to conclude that the defendants alleged statements made to prospective client about agent s qualifications were relied on by the prospective client, and because the statements constituted truthful, honest advice within the scope of a request for advice, and were not made with malice. DEBTOR/CREDITOR — PARTNERSHIPS — CONSTRUCTIVE TRUSTS 15-2-9699 Lewis Int’l Corp. v. Rachman Bag Co. Inc., et al., App. Div. (4 pp.) Using a constructive trust theory, the trial court correctly concluded that partner was individually liable to repay sums mistakenly transferred into partnership s account, since the partnership clearly benefited by the receipt and retention of the funds, and partner had the authority, at any point, to issue a check reimbursing the funds, but instead used the funds for partnership purposes. FAMILY LAW — DOMESTIC VIOLENCE 20-2-9700 S.S. v. R.S., App. Div. (4 pp.) The appellate court defers to the Family Part judge s feel of the case and affirms restraining order based on defendant s pattern of harassment and … abusive and controlling behavior. TAXATION — FREEZE ACT Now on Counsel Connect 35-2-9701 Grandal Enter. Inc., etc. v. Borough of Keansburg, etc., App. Div. (15 pp.) In resolving plaintiff s motion for Freeze Act relief, the Tax Court was required to determine whether the “omitted/added assessments” impermissibly increased the assessment incorporated in a prior judgment, and was required to determine the scope of that judgment, and its failure to do so requires reversal of its order dismissing plaintiff s motion for relief. [Approved for publication July 25, 1996.] CRIMINAL LAW AND PROCEDURE — DOUBLE JEOPARDY Now on Counsel Connect 14-1-9702 State v. Eric Womack, Supreme Ct. (19 pp.) Where the language of an order imposing a civil fine on defendant for practicing medicine without a license indicates a punitive intent rather than a remedial one, remand is required to determine the true nature of the fine, and, if it is concluded that the fine has a punitive purpose, the state will be barred by double jeopardy principles from prosecuting defendant for the same conduct. In addition, that portion of the criminal indictment charging defendant with holding himself out as a medical doctor is dismissed because of the state s failure to present clearly exculpatory evidence to the grand jury. FEDERAL COURT CASES BANKRUPTCY — TOP HAT PENSION PLANS 42-8-9703 In re: New Valley Corp., Debtor; Senior Executive Benefit Plan Participants, et al. v. New Valley Corp., Third Cir. (20 pp.) The facts of this case, viewed in light of the special nature of “top hat” plans, distinguishes this case from prior decisions holding that a plan clause reserving the right to terminate or amend is unambiguous and controlling, and the bankruptcy court should have permitted plan participants to present extrinsic evidence in support of their allegations that the clause did not represent the parties’ original understanding. [Filed July 15, 1996.] LABOR AND EMPLOYMENT — PRELIMINARY INJUNCTIONS 25-7-9704 Josephine A. Marchitto v. Sean M. Connelly, et al., U.S. Dist. Ct. (8 pp.) The court grants the limited relief plaintiff seeks during the pendency of this sex discrimination case — the continuation of her ability to purchase group health benefits through her former employer — since plaintiff has minimally established a likelihood of success on the merits, since she will suffer irreparable harm if the relief is not granted, and since the defendant will not be prejudiced by the granting of such relief, because the plaintiff will continue to pay the premium for the benefits. [Filed Jul. 16, 1996.] A Daily Reporter of New Jersey Court Decisions

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