As explained elsewhere on this blog site and my website, New Jersey’s Consumer Fraud Act (Act) is one of the most pro-consumer statutes in the county. Apart from the fact that it is broadly interpreted in favor of the consumer, it provides the consumer with some devastating remedies, including the ability to recover three times the consumer’s actual damage and a recoupment of litigation costs that may encompass tens of thousands of dollars of attorney fees and expert witness fees. There is another remedy that may be available to the consumer that some lawyers and most litigants are not aware of and that is the ability of a consumer to require a merchant to refund the money received from the consumer and/or have a court declare that the contract between the merchant and consumer is unenforceable.
To date, a number of cases have required a merchant, especially those involved in the home improvement industry, to disgorge money previously received because it was determined that the Act had been violated and that the violation “created the climate” for the dispute with the consumer. Thus, if a home improvement contractor failed to obtain an appropriate written contract as required by law (See my book on home improvement contractor’s legal responsibilities titled “Walk the Chalk Line or Else: A Home Improvement Contractor’s Guide to New Jersey Contractor’s Registration and Consumer Fraud Act” which can be downloaded free on my website at www.ftlucianolaw.com.),
and the consumer claims that the contractor installed a pine door when the agreement was to install an oak door, the absence of a written contract identifying the precise produce to be provided “created the climate” for the controversy. Under these circumstances, a judge can determine that a violation under the Act occurred; that the oral agreement is unenforceable; and, that all money paid to the contractor must be returned to the consumer. Although, some courts have applied this extreme sanction even when there is a mere technical violation, most will not, and that is especially so, if the consumer is capable of obtaining an unnecessary windfall.
My experiences are that most trial judges are somewhat reluctant to release the complete arsenal of weapons provided to a consumer under the Act, unless there is serious departure from the responsibilities required by the Act and its legislative and administrative counterparts.
Wednesday, January 21, 2009
Monday, January 19, 2009
New Jersey's Consumer Fraud Statute
THE ASCERTAINABLE LOSS STANDARD
Recently, the Appellate Division affirmed a trial court’s decision to dismiss a potential class action lawsuit filed by a lawyer and involving New Jersey’s Consumer Fraud Act where the lawyer was miffed because the merchant sought to exact a shipping fee for a “free bonus” product. Fortunately, for the merchant, the product was never shipped and, as a result, the shipping charge was never accessed against the lawyer’s credit card. As a result, the issue in the case was whether the lawyer sustained an “ascertainable loss” which is one of the essential elements of a consumer fraud claim in New Jersey. An ascertainable loss has been defined as an actual loss that can be measured or calculated with reasonable certainly. Notably, the consumer does not have to actually spend any money in order to sustain an ascertainable loss. It may be enough that a lien or a debt claim is made against the consumer or his/her property for an ascertainable loss to occur.
In a serious effort to plug the apparent hole in the case, the lawyer engaged an expert in statistics who asserted that although the transaction was not debited to his credit card, it was approved by the credit card company and, as a result, a loss was sustained because the lawyer’s credit line or purchasing limit was reduced by the amount of the shipping fee of $7.95.
The court rejected this contention for two reasons. The first was that the expert did not present any explanation for the conclusions he offered. Secondly, the court reasoned that even if there was a diminution in the available credit, the lawyer failed to establish that this perceived limitation on his credit line damaged him in any way.
In short, the Act requires a claimant to establish that a loss was actually sustained and while the loss need not be financially devastating, it must be susceptible to some type of reasonable measurement.
Recently, the Appellate Division affirmed a trial court’s decision to dismiss a potential class action lawsuit filed by a lawyer and involving New Jersey’s Consumer Fraud Act where the lawyer was miffed because the merchant sought to exact a shipping fee for a “free bonus” product. Fortunately, for the merchant, the product was never shipped and, as a result, the shipping charge was never accessed against the lawyer’s credit card. As a result, the issue in the case was whether the lawyer sustained an “ascertainable loss” which is one of the essential elements of a consumer fraud claim in New Jersey. An ascertainable loss has been defined as an actual loss that can be measured or calculated with reasonable certainly. Notably, the consumer does not have to actually spend any money in order to sustain an ascertainable loss. It may be enough that a lien or a debt claim is made against the consumer or his/her property for an ascertainable loss to occur.
In a serious effort to plug the apparent hole in the case, the lawyer engaged an expert in statistics who asserted that although the transaction was not debited to his credit card, it was approved by the credit card company and, as a result, a loss was sustained because the lawyer’s credit line or purchasing limit was reduced by the amount of the shipping fee of $7.95.
The court rejected this contention for two reasons. The first was that the expert did not present any explanation for the conclusions he offered. Secondly, the court reasoned that even if there was a diminution in the available credit, the lawyer failed to establish that this perceived limitation on his credit line damaged him in any way.
In short, the Act requires a claimant to establish that a loss was actually sustained and while the loss need not be financially devastating, it must be susceptible to some type of reasonable measurement.
Monday, January 12, 2009
Legal Malpractice Cases in New Jersey: The Need for an Expert Witness
A legal-malpractice case is nothing more than a lawsuit based on the negligence of an attorney. The elements of a legal malpractice case are: (1) the existence of an attorney-client relationship; (2) the breach of a duty owed to the client by the attorney;(3) damages sustained by the client; and (4) a causal relationship between the damages and the negligence of the attorney.
Ordinarily, expert testimony is required in all legal malpractice cases as well as other professional malpractice cases. Indeed, the law in New Jersey states rather clearly that within sixty (60) says from the date a professional malpractice lawsuit is filed, the claimant must file an affidavit signed by an appropriate expert confirming that the targeted professional was negligent, and failing that, the lawsuit must be dismissed.
Where, however, the issues are within the ordinary knowledge and experience of an average person, an expert witness may not be required. The “Common Knowledge Doctrine” has been used in a number of diverse situations, including where: (1) an attorney failed to record a bond and mortgage; (2) an attorney failed to file a suit before the running of the statute of limitations; (3) an attorney failed to conduct an appropriate investigation in a personal injury claim; (4) a physician left a needle in a patient’s chest; (5) a chiropodist accidentally cut a diabetic’s toe; (6) a dentist extracted the wrong tooth; (7) a radiologist failed to immediately advise a patient of a possible lung tumor detected on x-ray; (8) a physician applied a caustic liquid to a patient causing severe disfiguration.
Ordinarily, expert testimony is required in all legal malpractice cases as well as other professional malpractice cases. Indeed, the law in New Jersey states rather clearly that within sixty (60) says from the date a professional malpractice lawsuit is filed, the claimant must file an affidavit signed by an appropriate expert confirming that the targeted professional was negligent, and failing that, the lawsuit must be dismissed.
Where, however, the issues are within the ordinary knowledge and experience of an average person, an expert witness may not be required. The “Common Knowledge Doctrine” has been used in a number of diverse situations, including where: (1) an attorney failed to record a bond and mortgage; (2) an attorney failed to file a suit before the running of the statute of limitations; (3) an attorney failed to conduct an appropriate investigation in a personal injury claim; (4) a physician left a needle in a patient’s chest; (5) a chiropodist accidentally cut a diabetic’s toe; (6) a dentist extracted the wrong tooth; (7) a radiologist failed to immediately advise a patient of a possible lung tumor detected on x-ray; (8) a physician applied a caustic liquid to a patient causing severe disfiguration.
Will Contests: The Struggle After Death in New Jersey
There are a number of ways to attack the validity of a Will, including circumstances where: (A) the person who signed the Will (Testator) was mentally incapacitated; (B) the Testator was coerced or improperly influenced to sign the Will; (C) the Will was subject of a fraud; and, (D) the Will was not properly executed.
In this article, some of the most common causes of a Will contest are generally explored along with the prospects of recovering attorney fees where the integrity of a Will is questioned.
A. Undue Influence
Undue influence has been defined as any type of exertion, whether, physical, mental or moral that can prevent the Testator from following his/her free will. Haynes v. First Nat. State Bank, 87 N.J. 163, 176 (1981). Mere suggestions, persuasions or the exertion of some influence is not enough to invalidate a Will, however.
Ordinarily, the person who seeks to attack a Will, will have the burden of proving undue influence. If, however, the Will benefits one who enjoyed a special or confidential relationship with the Testator, and there are suspicious circumstances surrounding the execution of the Will, the law will presume that an undue influence existed.
A confidential relationship can be found where there is some special trust between the Testator and a beneficiary under the Will and where the nature of that special relationship creates some type of reliance or dependency. At times a special or confidential relationship has been found to exist between a Testator and a son, a nephew, a healthcare provider, a neighbor, an attorney and an accountant. Notably, while a confidential relationship naturally exists between a husband and wife, the presumption of undue influence will not generally arise even when the Testator’s children are disinherited.
Once a special relationship has been determined the confidant must rebut the presumption by establishing that there was no deception; that no undue influence was used; that the Will was fair and voluntarily signed; and that it was well understood. Ordinarily, the burden of proof for issues of this type is a preponderance of the evidence. Where the suspected relationship is between an attorney and the Testator or other similarly sensitive relationship, the responsibility to prove these facts may be increased to “clear and convincing evidence” which is a more stringent standard of proof.
As to the “suspicious circumstances” component of an undue influence Will contest, the law concludes that evidence on this issue need be no more than “slight”. Suspicious circumstances have been found where a beneficiary of the Will engaged his own attorney to prepare the Testator’s Will and where a nursing home patient was removed from the facility by the beneficiary of a Will that was signed a few days later.
B. Testimonial Capacity
In New Jersey, the test for determining whether a Testator has the mental capacity to effectively execute a Will is rather permissive. Indeed, the level of intelligence needed to execute a Will is less than that required to enter into a contract. The factor to be used to assess testamentary capacity is whether the Testator understood: (1) the nature and extend of the property subject of the Will; (2) the people who should receive ordinarily the benefit of his/her wealth; (3) the meaningful effect of the Will; (4) the relation of each of these factors to the other; and (5) the manner in which the Testator’s wealth is distributed by the Will.
Notably, the law presumes that all Testators are of sound and competent mind when a Will is executed. To overcome that presumption, the contestant must prove lack of mental capacity at the time the Will was executed, by clear and convincing evidence. In approaching issues relating to a Testator’s mental capacity, it is important to know that, it is not enough to show that the Testator was addicted to drugs or alcohol so long as the Testator was not under the influence of a substance at the time of the execution of the Will. Nor, is it sufficient to show that the Testator was old or forgetful so long as, he/she had some capacity to manage his/her business affairs.
C. Fraud
A Will can be revoked because of someone’s fraudulent conduct for a variety of reasons.
One of those reasons is where a Testator is beguiled into signing a document without knowing that it is a Will. Others involve situations where a beneficiary induces a Testator to execute a Will based on false facts (i.e. a suitor promises to marry the Testator if he/she is made a beneficiary under the Testator’s Will, where the suitor has no intention of marrying the Testator).
In the context of a Will contest, fraud will not to be presumed. Moreover, if the Testator learns of the fraudulent conduct and does nothing to change the Will over an extended period of time, it may be said that the Testator reaffirmed the contents of the Will and, as a result, the Will is voided.
D. Litigation Expenses
Generally, each litigant is required to pay for his/her litigation expense, including, attorney fees. There are certain exceptions, however. One relates to cases where a Will is subject of a contest in a probate action. Under the instructions of this rule, a trial judge may award counsel fees and other costs even if the person who filed the action is unsuccessful, provided there was a reasonable basis to attack the Will.
E. Conclusion
is a very difficult task to determine whether a Will should be attached. May times, the close personal relationship between the parties involved with the problem that creates a level of passion that overwhelms prudent decision making.
If you believe that a Will should be challenged because it is defective, for one reason or another, you should hire a seasoned attorney, who has good experiences in this area of law. Do not delay with your decision to engage an experiences attorney because the law allows only a narrow window of time during which a Will contest may be filed.
In this article, some of the most common causes of a Will contest are generally explored along with the prospects of recovering attorney fees where the integrity of a Will is questioned.
A. Undue Influence
Undue influence has been defined as any type of exertion, whether, physical, mental or moral that can prevent the Testator from following his/her free will. Haynes v. First Nat. State Bank, 87 N.J. 163, 176 (1981). Mere suggestions, persuasions or the exertion of some influence is not enough to invalidate a Will, however.
Ordinarily, the person who seeks to attack a Will, will have the burden of proving undue influence. If, however, the Will benefits one who enjoyed a special or confidential relationship with the Testator, and there are suspicious circumstances surrounding the execution of the Will, the law will presume that an undue influence existed.
A confidential relationship can be found where there is some special trust between the Testator and a beneficiary under the Will and where the nature of that special relationship creates some type of reliance or dependency. At times a special or confidential relationship has been found to exist between a Testator and a son, a nephew, a healthcare provider, a neighbor, an attorney and an accountant. Notably, while a confidential relationship naturally exists between a husband and wife, the presumption of undue influence will not generally arise even when the Testator’s children are disinherited.
Once a special relationship has been determined the confidant must rebut the presumption by establishing that there was no deception; that no undue influence was used; that the Will was fair and voluntarily signed; and that it was well understood. Ordinarily, the burden of proof for issues of this type is a preponderance of the evidence. Where the suspected relationship is between an attorney and the Testator or other similarly sensitive relationship, the responsibility to prove these facts may be increased to “clear and convincing evidence” which is a more stringent standard of proof.
As to the “suspicious circumstances” component of an undue influence Will contest, the law concludes that evidence on this issue need be no more than “slight”. Suspicious circumstances have been found where a beneficiary of the Will engaged his own attorney to prepare the Testator’s Will and where a nursing home patient was removed from the facility by the beneficiary of a Will that was signed a few days later.
B. Testimonial Capacity
In New Jersey, the test for determining whether a Testator has the mental capacity to effectively execute a Will is rather permissive. Indeed, the level of intelligence needed to execute a Will is less than that required to enter into a contract. The factor to be used to assess testamentary capacity is whether the Testator understood: (1) the nature and extend of the property subject of the Will; (2) the people who should receive ordinarily the benefit of his/her wealth; (3) the meaningful effect of the Will; (4) the relation of each of these factors to the other; and (5) the manner in which the Testator’s wealth is distributed by the Will.
Notably, the law presumes that all Testators are of sound and competent mind when a Will is executed. To overcome that presumption, the contestant must prove lack of mental capacity at the time the Will was executed, by clear and convincing evidence. In approaching issues relating to a Testator’s mental capacity, it is important to know that, it is not enough to show that the Testator was addicted to drugs or alcohol so long as the Testator was not under the influence of a substance at the time of the execution of the Will. Nor, is it sufficient to show that the Testator was old or forgetful so long as, he/she had some capacity to manage his/her business affairs.
C. Fraud
A Will can be revoked because of someone’s fraudulent conduct for a variety of reasons.
One of those reasons is where a Testator is beguiled into signing a document without knowing that it is a Will. Others involve situations where a beneficiary induces a Testator to execute a Will based on false facts (i.e. a suitor promises to marry the Testator if he/she is made a beneficiary under the Testator’s Will, where the suitor has no intention of marrying the Testator).
In the context of a Will contest, fraud will not to be presumed. Moreover, if the Testator learns of the fraudulent conduct and does nothing to change the Will over an extended period of time, it may be said that the Testator reaffirmed the contents of the Will and, as a result, the Will is voided.
D. Litigation Expenses
Generally, each litigant is required to pay for his/her litigation expense, including, attorney fees. There are certain exceptions, however. One relates to cases where a Will is subject of a contest in a probate action. Under the instructions of this rule, a trial judge may award counsel fees and other costs even if the person who filed the action is unsuccessful, provided there was a reasonable basis to attack the Will.
E. Conclusion
is a very difficult task to determine whether a Will should be attached. May times, the close personal relationship between the parties involved with the problem that creates a level of passion that overwhelms prudent decision making.
If you believe that a Will should be challenged because it is defective, for one reason or another, you should hire a seasoned attorney, who has good experiences in this area of law. Do not delay with your decision to engage an experiences attorney because the law allows only a narrow window of time during which a Will contest may be filed.
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