IN THE MATTER OF THE PROBATE OF THE LOST WILL OF VICTOR ISIGKEIT

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5970-03T35970-03T3

ALEXANDER LEVCHUK,

Executor of the Estate

of Victor Isigkeit,

Plaintiff-Appellant,

v.

VLADIMIR JOVICH a.k.a.

WALTER JOVICH and

DALMA, II, INC.,

a New Jersey Corporation,

Defendants/Third-Party

Plaintiffs-Respondents,

v.

GEORGE GLADIR,

Executor of the Estate of

Anastasia Gladir and

Alexander Levchuk,

Executor of the Estate

of Victor Isigkeit,

Third-Party Defendants.

______________________________

IN THE MATTER OF THE PROBATE

OF THE LOST WILL OF

VICTOR ISIGKEIT

_________________________________

 

Argued September 13, 2005 - Decided

Before Judges Coburn, Lisa and S.L. Reisner.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County,

C-321-00.

Thomas F. McGuane argued the cause for appellant (McElroy, Deutsch, Mulvaney & Carpenter, attorneys; Robert C. Wines, on the brief.)

Helen Davis Chaitman argued the cause for respondents (Phillips Nizer and Vincent E. Halleran, Jr. attorneys; Ms. Chaitman, on the brief).

PER CURIAM

Plaintiff Alexander Levchuk, the executor of the estate of decedent Victor Isigkeit, filed suit against defendant Walter Jovich for the return of approximately $441,000 that Isigkeit gave to Jovich. Following a trial, the jury returned a verdict of no cause for action, finding Jovich proved that the funds were inter vivos gifts and that he had not exercised undue influence over Isigkeit. We affirm.

I

We discuss the facts and procedural background in some depth, because they illuminate our legal conclusions.

Valdimir "Walter" Jovich, a Yugoslavian immigrant, settled in the Russian-speaking community in Howell Township around 1970, and learned to speak Russian from his neighbors. While he lived in Howell, he became friendly with an elderly Russian-speaking couple, Victor Isigkeit and his live-in companion Anastasia Gladir.

Their friendship became more significant after Isigkeit and Gladir moved to Lakewood. In 1993, Jovich met the couple at a diner in Lakewood. During their conversation, Isigkeit told Jovich that he had not been feeling well and that he wanted to sell eight acres of property that he owned in Howell. After Jovich, who was in the real estate and construction business, expressed interest, Isigkeit invited him to his apartment in Lakewood. During that visit, Jovich smelled a strong odor of urine and learned that, although Isigkeit was physically active and mentally competent, he was incontinent as a result of prostate surgery and did not know how to properly care for his condition. Jovich bought adult diapers for Isigkeit and showed him how to use them. He also began to befriend the couple and help them on a daily basis.

Because Isigkeit had lost his driver's license, Jovich drove the couple to the supermarket and took them to local cafeterias and restaurants. He also visited them at least twice a day to be sure Isigkeit had clean diapers, and he helped Gladir to obtain her prescription medicines.

According to Jovich, the manager of their apartment complex made the couple feel unwelcome because they each had physical problems that caused unpleasant odors. Neither of them wanted to move to a nursing home or assisted living facility, and Jovich helped them move to a housing development in Freehold. He continued his daily visits, bringing the couple meals, caring for Isigkeit's incontinent condition, driving them to restaurants and generally befriending them. They developed a close, almost familial relationship which continued from 1994 through 1998, when Isigkeit died at the age of ninety-five.

During the period 1993 to 1998, there were a series of transactions which were the focus of the trial. Jovich signed a contract in 1993 to buy Isigkeit's property in Howell for $85,000, contingent on his being able to subdivide the property. He testified that as a result of environmental problems on the property, he was unable to get the necessary approvals. Eventually, he purchased the property in 1997 for a much lower price. Isigkeit was represented at the 1997 closing by his attorney, Alexander Levchuk. Levchuk felt that the purchase price was so low that Jovich should provide some additional consideration. Therefore, he inserted in the closing document a provision that Jovich would care for Isigkeit to the best of his ability for the rest of his life. Levchuk conceded that Isigkeit was competent at the time of closing, but he testified that he wanted Jovich to continue caring for Isigkeit as he had been doing.

In 1995, Levchuk prepared a will for Isigkeit. The will left his house and furniture to Anastasia Gladir, with the remainder of his estate in equal shares to six nieces who lived in Russia. This will named Levchuk as executor.

In 1997 and 1998, Jovich was experiencing difficulties in his real estate business and was facing foreclosure on several properties. He testified that, in consideration of their friendship and Jovich's ongoing daily care for the elderly couple, Isigkeit offered to assist him financially.

Between June 23, 1997 and April 16, 1998, Isigkeit transferred a total of $441,431.73 to Jovich. On June 23, 1997, Isigkeit went to PNC Bank and made out a check to himself in the amount of $45,709.33, which he endorsed for Jovich. On the same day, Isigkeit went to Investors Savings Bank and had another check made out to himself in the amount of $17,369.91, which he also endorsed for Jovich. Jovich testified that in consideration of his taking care of the elderly couple, Isigkeit gave him this money as a gift so that Jovich would not lose any of his investment properties. Jovich gave this money to his attorney, Vincent Halleran, so that he could pay-off the money Jovich owed on his properties.

On November 3, 1997, Isigkeit again went to Investors Savings Bank and had a check made out to himself in the amount of $51,074.77, which he endorsed to one of Jovich's companies, Dalma II, Inc. At the time, Jovich had two or three foreclosures against his properties, but he could not recall whether he asked Isigkeit for the money or not. On November 24, 1997, Isigkeit drew a check in his name from CoreStates Bank in the amount of $82,397.72 which he gave to Jovich around Thanksgiving Day. On December 16, 1997, Isigkeit drew a check from Sovereign Bank in the amount of $22,000 and made it out to Dalma II, Inc. Jovich could not recall whether he asked Isgkeit for this check. On January 15, 1998, Isigkeit drew a check from Sovereign Bank in the amount of $96,000 and a check from PNC Bank in the amount of $14,480, both of which were made out to Monmouth County and given to Jovich, who left the checks with the Sheriff's Office in Freehold that day. Jovich testified that he did not ask for these checks but, rather, Isigkeit offered him the money when he learned that more of his properties were about to be foreclosed.

On April 16, 1998, Isigkeit drew a check in his own name from PNC Bank in the amount of $112,400 and endorsed it for Jovich, who gave the money to Halleran. To obtain these funds, Isigkeit was forced to prematurely cash a certificate of deposit and incur a monetary penalty. Jovich testified that Isigkeit gave him this money because he wanted Jovich to keep his property "in the worst way."

Jovich testified that he loved Isigkeit like a father, and several witnesses testified that he and Isigkeit had a close, almost familial, relationship. Cynthia Schomaker, who did volunteer work for the elderly including Isigkeit and Anastasia, testified that Jovich treated them "like they were his parents . . . those two people were parents that Walter never had here. And it was almost like he needed them in a way, emotional, as much as they needed him." Jovich visited Isigkeit and Anastasia several times a day, changed Isigkeit's diapers, washed his clothing and sheets daily, brought them meals, and took them out to restaurants. He testified without contradiction that he essentially put his own life on hold for several years in order to care for the elderly couple. At a deposition, read at the trial after her death, Anastasia Gladir testified that Jovich had been helpful to them and testified that Isigkeit wanted to give him money.

Rosemary Potkulski, branch manager of PNC Bank's Howell location in 1997 and 1998, testified that she personally dealt with Isigkeit, that he handled his own transactions and that she found him competent to handle his own affairs.

Beginning in 1998, Isigkeit's health began to deteriorate and he was hospitalized three times. During his last hospitalization, in October 1998, Isigkeit insisted on leaving the hospital, but Anastasia, Jovich, and Levchuk were all unable to sign him out because they were not his relatives. Isigkeit's doctor felt he was too weak to be released and wanted to send him to a nursing home, a prospect Isigkeit found repugnant and frightening. Finally Jovich convinced the doctor to send Isigkeit home.

Upon his return home, Isigkeit was very upset at the idea that he could have been sent to a nursing home. Thus, Isigkeit repeatedly asked Jovich to "draw a piece of paper that can be notarized that in case they pick him up to go to the hospital [Jovich would] have a right to take him out." Jovich prepared a draft power of attorney, which, on November 23, 1998, was typed and notarized by Gloria Abodiotakis, who had known both Isigkeit and Jovich for years. Jovich read the power of attorney to Isigkeit line by line in both English and Russian before the three copies of the power of attorney were signed and notarized. Cynthia Schomaker was also present to witness the signing of the power of attorney. In the power of attorney, Isigkeit left all of his "worldly possessions" to Jovich for the purpose of taking care of Anastasia Gladir.

Schomaker and Abodiatakis testified that Isigkeit was competent when he signed the power of attorney, and that his overriding concerns were to avoid being sent to a nursing home, and to ensure that Jovich would take care of Anastasia Gladir should anything happen to him.

Isigkeit died on December 26, 1998, and Jovich arranged for his funeral. After Isigkeit's death, Jovich continued caring for Anastasia Gladir for more two years, with the consent of her brother George Gladir.

In October 2000, following a guardianship action in which Jovich attempted to intervene to prevent her removal from her home, George obtained guardianship over his sister and moved her to California. She died in a California nursing home on November 6, 2000.

On February 17, 1999, Levchuk, in his capacity as executor of Isigkeit's estate under the 1995 will, filed a complaint to probate a copy of the 1995 will. Jovich filed an answer and counterclaim alleging the 1998 power of attorney document was Isigkeit's last will and testament and that a clause in that document made him the trustee of Isigkeit's estate and the residuary beneficiary of the trust. The counterclaim also sought defamation damages from Levchuk.

On October 20, 2000, sixteen days prior to Anastasia Gladir's death and while the probate action was still pending, Levchuk filed a second complaint, on behalf of George Gladir as the guardian of the estate of Anastasia Gladir. This complaint alleged that the money Isigkeit gave Jovich was obtained by undue influence, while Isigkeit was incapacitated, and requested the court to impress an equitable lien upon and foreclose on Jovich's various parcels of real property. Jovich filed a counterclaim alleging that the funds constituted "financial help" provided to Jovich from Isigkeit in exchange for Jovich's services. In the alternative, Jovich set forth a quantum meruit theory, claiming that it would be unjust for the plaintiffs to benefit financially from the services he rendered to Isigkeit and Anastasia Gladir.

On March 27, 2001, Judge Clarkson S. Fisher, Jr. conducted a hearing in the probate matter and determined that Jovich was engaged in a confidential relationship with Isigkeit at the time the 1998 power of attorney document was drawn. As further discussed below, Judge Fisher declined to admit the 1998 document to probate since Jovich was unable to prove that the will was not the product of undue influence. Judge Fisher dismissed the probate count of Jovich's counterclaim, admitted a copy of the 1995 will to probate, and transferred Jovich's defamation claim to the Law Division.

Levchuk's complaint for return of the funds was heard before Judge Cavanagh, presiding over a jury trial in the Law Division. In response to pre-trial applications, Judge Cavanagh ruled that Judge Fisher's undue influence ruling against Jovich in the probate proceeding would not be placed before the jury, because it was irrelevant and prejudicial. Following a lengthy trial, the jury determined that Jovich and Isigkeit had a confidential relationship, but that Jovich had not dominated Isigkeit in the relationship, and that Jovich proved by clear and convincing evidence that the checks were gifts and were not obtained through undue influence.

II

We begin our legal analysis with a discussion of Judge Fisher's opinion in the probate case. His opinion was limited to whether the alleged will should be admitted to probate, or whether it should not be admitted because it was the product of undue influence. He did not address the validity of the power of attorney. He determined that Jovich had the burden of disproving undue influence in the making of the will, by clear and convincing evidence, and that he had not satisfied that burden. We quote at length from Judge Fisher's opinion because it illustrates the limited nature of his findings, as they relate to the case before us:

The circumstances which are demonstrated by the factual record created in this case, demonstrate first of all, beyond dispute, that Victor [Isigkeit] was 95 years old when this document was executed. He had had a number of physical ailments. He had been in and out of the hospital. He didn't want to be in the hospital the last time he was in the hospital. And he certainly was an individual who was now, because of his advanced age and health problems, vulnerable to undue influence because of his dependency for health care, and also for documents that he felt he needed created at that time. So, Victor's status at that point was of a person who was very vulnerable to undue influence.

Secondly, the very nature of the document itself that the Court is being asked to probate, is inherently confusing. To a layman, to any non lawyer looking at the document, it would appear to be a power of attorney because that's what it's labeled as. And Victor being a layman, and certainly an elderly gentleman as well, who was not, English was not his first language, let's put it that way, certainly there had to be great confusion inherent in what was going on with this particular document.

It certainly, in many respects, does appear to be a power of attorney. It has all the typical language one would expect to see in a power of attorney. And many of the paragraphs, until the ones I quoted at the outset of this opinion, are utterly consistent with it being a power of attorney, let alone the label that was placed upon the document itself. It is only the language at the end of the document which suggests its possibility of being a will.

The question is not whether we, as lawyers, would recognize that language as a will, but whether Victor did. And considering his age, his health, English not being his first language, the appearance of the document itself, all those things create such confusion as to what might have been going through Victor's mind, that has not been explained away in any way, shape or form on this record, that I cannot conclude from all this evidence, that Victor actually knew or thought he was executing a will.

It will be recalled that he was concerned about having a power of attorney because he had been in the hospital, didn't want to be in the hospital previously, and felt he needed someone to act as his attorney in fact, to get him out of the hospital if he would ever be taken there in the future. So, it was very much on his mind to have a power of attorney. And again, since the document looks like a power of attorney and is labeled as a power of attorney, . . . Victor may very well have been thinking that he was only signing a power of attorney. It is only the language at the end which suggests otherwise.

But putting oneself in Victor's shoes at that point, it's hard to imagine on this record, that he actually thought he was executing a will. I'm certainly satisfied that Mr. Jovich has not sustained his burden of demonstrating to me otherwise. The language barrier is also an issue that arises, which again raises doubts about whether or not Victor understood what he was doing was actually executing a will.

While Victor and Mr. Jovich may have understood each other while speaking in Russian, . . . what makes this matter further, what presents further confusion about what had happened, is that every conversation that they had in Russian was something that could not be witnessed by the witnesses who were there, because they only spoke English. So that there is part of the process of executing the documents in question, which really was not witnessed by the witnesses. They witnessed two people speaking Russian, but they did not know what it was that was being said.

And under those peculiar circumstances, the Court is not satisfied, or is left to rely solely upon Mr. Jovich's version of what occurred in those Russian conversations, to reach the conclusion he would have me reach, that Victor understood what he was doing. Because of that peculiar setting in which this Court is required to make the decision, I cannot say that Mr. Jovich has sustained his burden of proof. The Court is left to rely upon solely his credibility, and not the witnesses who were there to witness and to explain at a later date what happened.

And in that regard, the Court is satisfied that since Mr. Jovich certainly has a motive for arguing the lack of undue influence, he has not sustained his burden by offering to the Court, in essence, only his own testimony to support the claim that there was no undue influence. . . .

Another factor that existed at the time of the execution of the power of attorney, and raises questions as to whether it was unduly influenced, is the fact that Mr. Isigkeit had no independent legal advice from anyone other than Mr. Jovich's own view of what it was he was signing. It was explained to him, apparently in Russian. So, again, the absence of an attorney to help Mr. Isigkeit through understanding the document he was signing, which may not even be clear to attorneys, is another factor which raises a lot of questions about whether Victor was exercising his own free will in executing this document, or not. It has not been explained away in this record.

Another factor which I don't know what to make of, except that it's there and it raises further questions, is the fact that each of . . . the various copies of this power of attorney, have signatures that appear to be quite different. . . .it is yet another question that has not been explained away to my satisfaction.

III

Plaintiff's primary contention on this appeal is that under principles of res judicata or collateral estoppel, Judge Fisher's decision concerning undue influence in the preparation of the 1998 will should have been placed before the jury.

We briefly review the doctrines of res judicata and collateral estoppel. "The term 'res judicata' refers broadly to the commonlaw doctrine barring relitigation of claims or issues that have already been adjudicated." Velasquez v. Franz, 123 N.J. 498, 505 (1991). "In essence, the doctrine of res judicata provides that a cause of action between parties that has been finally determined on the merits by a tribunal having jurisdiction cannot be relitigated by those parties or their privies in a new proceeding." Ibid. "For a judicial decision to be accorded res judicata effect, it must be a valid and final adjudication on the merits of the claim." Id. at 506. "When an issue of fact or law is actually litigated and determined by a valid and final judgment, and the determination is essential to the judgment, the determination is conclusive in a subsequent action between the parties, whether on the same or a different claim." Id. at 506 (citing Restatement (Second) of Judgments 27 (1982)).

The related doctrine of collateral estoppel applies under the following circumstances:

For the doctrine of collateral estoppel to apply to foreclose the relitigation of an issue, the party asserting the bar must show that: (1) the issue to be precluded is identical to the issue decided in the prior proceeding; (2) the issue was actually litigated in the prior proceeding; (3) the court in the prior proceeding issued a final judgment on the merits; (4) the determination of the issue was essential to the prior judgment; and (5) the party against whom the doctrine is asserted was a party to or in privity with a party to the earlier proceeding.

[In re Estate of Dawson, 136 N.J. 1, 20-21 (1994) (emphasis added, internal citations omitted).]

We next turn to the law concerning inter vivos gifts as it relates to the issues in this case. When the beneficiary claims that a person now deceased gave him or her an inter vivos gift, the burden is on the beneficiary to prove all of the requisite elements of a gift by clear and convincing evidence. Czoch v. Freeman, 317 N.J. Super. 273, 283 (App. Div. 1999). "In general, a valid gift has three elements." Pascale v. Pascale, 113 N.J. 20, 29 (1988). "First, the donor must perform some act constituting the actual or symbolic delivery of the subject matter of the gift. Second, the donor must possess the intent to give. Third, the donee must accept the gift." Ibid. (citing R. Brown, Personal Property 7.1, at 77-78 (2d ed. 1975)). "Our cases also recognize an additional element, the relinquishment by the donor 'of ownership and dominion over the subject matter of the gift.'" Ibid. (quoting In re Dodge, 50 N.J. 192, 216 (1967)). In this case, while there was some question as to whether the checks were intended as loans rather than as gifts, the primary issue was not whether they were gifts, per se, but whether they were given to Jovich as the result of undue influence over the decedent.

"An adult donor is generally presumed to be competent to make a gift." Ibid. However, "a presumption of undue influence arises when the contestant proves that the donee dominated the will of the donor . . . or when a confidential relationship exists between donor and donee." Id. at 30 (emphasis added; internal citations omitted). "'Undue influence' has been defined as that sort of influence that prevents the person over whom it is exerted 'from following the dictates of his own mind and will and accepting instead the domination and influence of another.'" Ibid. (quoting Haynes v. First Nat'l State Bank, 87 N.J. 163, 176 (1981)). "When the presumption of undue influence arises from an inter vivos gift, the donee has the burden of showing by clear and convincing evidence not only that 'no deception was practiced therein, no undue influence used, and that all was fair, open and voluntary, but that it was well understood.'" Id. at 31 (quoting In re Dodge, supra, 50 N.J. at 227). In this case, plaintiff sought to shift the burden of proof to Jovich by demonstrating that he had a confidential relationship with the decedent, and that he engaged in a course of overreaching conduct toward decedent. Part of that course of conduct, according to plaintiff, was the preparation of the power of attorney and the included, purported will. It was in the context of this effort that plaintiff asked Judge Cavanagh to instruct the jury that Judge Fisher had already determined that the 1998 "will" was the product of undue influence.

We conclude that Judge Cavanagh correctly rejected plaintiff's application. Judge Fisher's ruling in the probate case does not have res judicata or collateral estoppel effect in this case, for two reasons. The issues in the two cases were different, and the burdens of proof were different. In the will contest, the issue was whether to admit the 1998 will to probate. In that case--due to the confidential relationship between the decedent and Jovich, the fact that Jovich was both drafter and beneficiary, and other suspicious circumstances--the burden fell upon Jovich to prove, by clear and convincing evidence, that the will was not the product of undue influence. He failed to carry that burden, and the will was not admitted to probate.

In the Law Division case, the issue was not the validity of the will or of the power of attorney (POA), but whether the checks to Jovich were the product of undue influence. Judge Fisher's decision did not address at all the issue of whether those checks were the product of undue influence. Further, Jovich was not claiming that the POA retroactively confirmed or otherwise legally validated the earlier gifts. As Judge Cavanagh correctly observed, had Jovich made such a claim, plaintiff would have had a stronger case for the application of estoppel because the validity of the testamentary provision of the POA would have been in issue.

In addition to presenting different issues, the two cases involved different allocations of proof burdens on the issue as to which plaintiff sought to apply estoppel. As his counsel conceded during the charge conference, it was plaintiff's initial burden to establish, by a preponderance, evidence that would give rise to an inference that the gifts were the product of undue influence. See Pascale, supra, 113 N.J. at 30. In the case before us, the POA was part of plaintiff's affirmative case on the issue of undue influence. Levchuk sought to use the POA as part of a chain of circumstantial evidence that he claimed would show undue influence in the giving of the gifts. Jovich, however, was not obligated to prove that the will was not the product of undue influence, because that was not the issue in the case and he was not seeking to rely on the will. Hence, Jovich was not estopped by Judge Fisher's decision merely because, in an earlier case involving a different legal issue, he could not disprove undue influence in the creation of the will. See Zoneraich v. Overlook Hospital, 212 N.J. Super. 83, 94 (App. Div.), certif. denied, 107 N.J. 32 (1986).

We also agree with Judge Cavanagh that admission of Judge Fisher's decision would have been unfairly prejudicial, and it is highly likely that a legally accurate explanation of the decision's significance would have confused the jury. N.J.R.E. 403.

Further, nothing in Judge Cavanaugh's rulings precluded Levchuk from placing before the jury the same evidence that was introduced at the probate trial, in support of Levchuk's claim that the 1998 will was part of Jovich's ongoing scheme to bilk decedent of his wealth. Judge Cavanaugh, in essence, simply declined to relieve Levchuk of the burden of proving that portion of his case by presenting evidence instead of by relying on Judge Fisher's opinion.

We find no merit in plaintiff's claim that defendant's counsel made improper reference to the will during her opening statement. In fact, only plaintiff's counsel specifically mentioned the will during his opening statement. He also discussed more generally the terms of the power of attorney, telling the jury that "there was a provision in that power of attorney that said that Mr. Jovich was to [receive] the remainder of Mr. Isigkeit's estate. Whatever Mr. Isigkeit had when he died Mr. Jovich would receive." When defense counsel referred to the same provision in her opening statement, she did so in response to her adversary's comment on the same subject, explaining that "Walter was going to get whatever Victor had to take care of Ana [Gladir] to make sure that she was going to be okay."

Defendant's counsel did not make unfair use of the POA during any other portion of the trial. Defendant did not claim that the POA justified Jovich in taking the $441,000 from decedent. It was plaintiff who introduced the POA into the case as part of what he characterized as the "nine pillars" of his claim of undue influence, thereby forcing defendant to respond with evidence rebutting the claim that the POA was part of a course of overreaching by defendant. Further, Judge Cavanaugh warned plaintiff's counsel that the document was a two-edged sword and that counsel would have to make a tactical litigation decision as to whether he wished to put the POA before the jury. Finally, Judge Cavanagh properly cautioned the jury that they could not consider the POA as justifying the issuance of the checks to Jovich and that the 1995 will governed the disposition of decedent's estate.

We now turn to plaintiff's challenge to the jury charge. We find no merit in plaintiff's contention. In a supplemental charge to the jury on April 2, 2004, Judge Cavanagh explicitly instructed the jury that Jovich had the burden by clear and convincing evidence to prove that the checks were gifts. He explained that this included an obligation to prove that the checks were not loans, as plaintiff claimed they were. He also correctly explained to the jury that plaintiff had the burden by a preponderance of the evidence to present some proof of undue influence, either by showing a confidential relationship between Jovich and decedent or by showing that Jovich dominated decedent, and that if plaintiff made either showing Jovich would be required to prove the absence of undue influence by clear and convincing evidence. Neither counsel objected to the charge. Further, as a result of the way the jury questions were structured, the jury, having found that there was a confidential relationship between Jovich and decedent, was next required to determine whether Jovich proved the absence of undue influence by clear and convincing evidence. They answered that question in Jovich's favor by a vote of eight to zero. We find no basis to disturb the verdict.

 
Affirmed.

The couple had no relatives in New Jersey. Isigkeit's only living relatives were in Russia. Gladir had one brother, who lived in California.

Judge Cavanagh also dismissed Levchuk's claim that Isigkeit was incapacitated, and Jovich's defamation claim. Neither side appealed those rulings.

Both parties presented evidence concerning the circumstances surrounding the execution of the power of attorney. Further, during the testimony of Cindy Schomaker, one of the witnesses to the POA, the jury asked her whether anyone present at the signing of the POA, other than Jovich and the decedent, spoke Russian. The clear implication was that the jury perceived the same issue that Judge Fisher did, i.e., that there was no independent corroboration that Jovich was giving decedent an accurate translation of the document.

Plaintiff's remaining arguments concerning the admissibility of Judge Fisher's decision, and plaintiff's arguments concerning Jovich's alleged unlicensed practice of law, are without sufficient merit to warrant discussion in a written opinion, R. 2:11-3(e)(1)(E).

(continued)

(continued)

23

A-5970-03T3

September 29, 2005