ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] DeNike, 196 N.J. at 517.  It is of no moment whether the Special Master was paid by [...] or by the parties to the mediation.  [...] requested the Special Master to serve as mediator, giving him a financial benefit upon [...]’s selection.  Critically, the mediator request, the Special Master’s agreement, and the Special Master’s service as mediator all occurred contemporaneously with the Special Master’s service in this case.  (38995a; 38998a).  Thus, even as the Special Master was reading [...]’s brief on his firm’s fee application, the Special Master was taking a paid opportunity to serve as a mediator, at [...]’s instigation, in another matter handled by [...].  See DeNike, 196 N.J. at 517 (distinguishing negotiations for employment taking place “toward the close of the case” from ones “start[ing] a reasonable period of time after the case ended”).  Under such circumstances, it is eminently reasonable to question the Special Master’s appearance of impartiality.
[brief] The PCR Court Correctly Concluded that Defendant’s Claim as to His Trial Counsel’s Failure to Hire a Cell Phone Expert was Procedurally Barred Because It Could Have Been Raised on Direct Appeal.  The PCR court correctly ruled that defendant’s ineffectiveness claim as to his trial counsel’s failure to hire a cell phone expert was procedurally barred by Rule 3:22-4(a) because the factual predicate for this ground could have been discovered earlier through the exercise of reasonable diligence and raised on direct appeal.  (19T4-9 to 14; 19T11-23 to 12-8; 19T19-1 to 13).  "[W]hen the trial itself provides an adequately developed record upon which to evaluate defendant’s claims, appellate courts may consider the issue on direct appeal."  State v. Castagna, 187 N.J. 293, 313 (2006).  For this reason, the PCR court’s ruling should be affirmed.  Conclusion
[brief] First, this is not “perpetual or lengthy litigation” that could be ended or even needs to be.  State v. Micelli, 215 N.J. 284, 293 (2013) (quoting Allstate Ins. Co. v. Fisher, 408 N.J. Super. 289, 301 (App. Div. 2009)).  Second, the Court would be required to “weigh[] evidence anew” and “mak[e] independent factual findings” beyond the scope of the record below.  Ibid. (quoting Cannuscio v. Claridge Hotel & Casino, 319 N.J. Super. 342, 347 (App. Div. 1999)); see Santos, 210 N.J. at 142.  The Court would be left to merely speculate.  The importance of the constitutional right at stake and the nature of the disputed factual issues also turn against original jurisdiction.  Our Supreme Court has shied away from authorizing or exercising original jurisdiction when constitutional rights are implicated.  See Micelli, 215 N.J. at 294 (in Sixth Amendment case, reversing “exercise of original jurisdiction in order to engage in factfinding and consideration of the” applicable test and remanding for evidentiary hearing); State v. Henderson, 208 N.J. 208 (2011) (even though evidence as to all factors was in the record, remanding for trial judge’s assessment of testimony presented at evidentiary hearing).  Here, given the constitutional rights at stake, and the trial court’s ability to assess testimony and other evidence at an evidentiary hearing, if this argument need be addressed, it must be below.
[brief] Page  Plaintiff’s Letter Brief in Opposition to Defendants’ Motion for Summary Judgment, dated November 7, 2023¹ .................................................................Da1  E-mail from [...] to [...] and [...], dated January 16, 2024 .........................................................................................Da8 ¹  The brief is included in the appendix because it falls within the exception to the Rule 2:6-1(a)(2).  ### TABLE OF AUTHORITIES | Cases: | | --- | | **Biruk v. Wilson,** | | 50 N.J. 253 (1967) ..................................................................................................................8 | | **Branch v. Cream-O-Land Dairy,** | | 244 N.J. 567, 243 A.3d 633 (2021) ..............................................................................................4 | | **Dziedzic v. St. John’s Cleaners and Shirt Launderers, Inc.,** | | 53 N.J. 157 (1969) ....................................................................................................................5 | | **Estate of Desir v. Vertus,** | | 214 N.J. 303, 69 A.3d 1247 (2013) .............................................................................................9 | | **Friedman v. Martinez,** | | 242 N.J. 449, 231 A.3d 719 (2020) ............................................................................................5 | | **Mijon v. Acquaire,** | | 51 N.J.Super. 426 (App. Div. 1958) ...........................................................................................8 | | **Piccone v. Stiles,** | | 329 N.J. Super. 191, 747 A.2d 296 (App. Div. 2000) .................................................................9 | | **Rybkin v. Twp. of N. Bergen,** | | No. A-3773-09T4, 2012 WL 1722575 (N.J. Super. Ct. App. Div. May 17, 2012) .........................8, 9 | | **Schwartz v. Menas,** | | 251 N.J. 556, 279 A.3d 436 (2022) ............................................................................................4 | | **Tichenor v. Santillo,** | | 218 N.J. Super. 165 (App. Div. 1987) .......................................................................................8 | | **Tischler v. Steinholtz,** | | 99 N.J.L. 149 (E. & A. 1923) ......................................................................................................8 | | **Toole v. Twentieth Century Operating Co.,** | | 121 N.J.L. 244 (E. & A. 1938) .....................................................................................................8 | | Statutes & Other Authorities: | | --- | | N.J.S.A. 39:4-123 .........................................................................................................................4, 7, 10, 12 | | N.J.S.A. 39:4-124 .........................................................................................................................7, 8 | PRELIMINARY STATEMENT
[brief] B.  Buffer requirements.  (1)  Natural vegetation and topographic features shall be maintained in required buffer areas and supplemented as necessary to establish a year-round visual screen from adjacent development and public rights-of-way, subject to Board approval.  Buffer areas may be disturbed where site improvements are approved by the Board in accordance with setback requirements.  (2)  Existing vegetation and topographical features shall be maintained in required buffer areas except as may be authorized by the Township.  (3)  Buildings and impervious surfaces shall be prohibited in required side and rear yard buffers, except that paved walking paths, lighting fixtures, walls and fences shall be permitted.  Buildings and impervious surfaces shall be prohibited in required front yard buffers, excluding roads, walls, fences, lighting fixtures, utilities, stormwater detention basins, signs, paved walking paths and paved parking areas.
[brief] The trial court’s rulings were unambiguous:  Significant issues of disputed material fact concerning the parol evidence rule needed to be resolved by the jury.  Virtually all the facts [...] submitted to the Court as “undisputed” (Da69-127) were, in fact, disputed by the Plaintiffs in their Response.  (Da771-938).  [...] now takes these same disputed facts (which made summary judgment impossible) and presents them to this Court, as it did to the trial court, as undisputed.  At trial Plaintiffs flatly refuted as false those same facts [...] presents here.  After hearing all the evidence in the case, the trial judge ultimately resolved the disputed facts in Plaintiffs’ favor.  As [...] stated, “Factual disputes, credibility issues, issues of intent, questions about documents, those issues are all through the record. ” (2T32:25-33:2).  He emphasized the difficulties inherent in analyzing parol evidence issues where fraud in the inducement is alleged, and that to resolve those issues, “you have to look at the entire matter in context.
[brief] The Final Judgment of Divorce that [...] entered said the agreement being effectuated was “fair and equitable under all the circumstances,” but there was no sufficient credible evidence presented to [...] that supported this finding.  A16.  The Mid-Marriage Agreement was a part of the agreement and itself was viewed as inherently coercive and generally unenforceable under New Jersey law.  The only evidence about fairness or equity came from the brief testimony of [...] – who lied about the “independent counsel” his wife had to begin with.  There was not sufficient credible evidence before the family court to support such an important finding in a high value divorce case premised on default against the obviously less monied spouse.  [...] took no other steps to make findings of fact and conclusions of law required by New Jersey law -- to ensure that [...] was legally entitled to the relief he was requesting be entered on default judgment against his absent wife.
[brief] Nor does the State’s brief mention, let alone respond to, the ALJ’s references to the loans as having created an “unsustainable fiscal situation” in [...] [ALJ at 66], or as being a “Ponzi Scheme” [July 9, 2019, 12 T 109-2 to -5].  The State consultants’ report, on which the State’s brief relies so heavily, could be read to suggest that the $215 million in loans already extended to [...] were necessary only because of the district’s alleged gross inefficiencies and mismanagement.  But nowhere in the report or brief is there a suggestion of how much money the district could have saved, if any, by implementing the consultants’ recommended reforms.  Nor does the State’s brief respond to appellants’ argument that excessive reliance on loans to support a district’s ongoing educational program can itself constitute a T&E violation.  Thus, the State’s position, without support in the ALJ’s detailed findings or in anything else of probative weight, seems to be that: - SFRA by itself provides [...] with enough funding to provide its students with T&E;\(^2\) - The $215 million in repayable advance state aid loans, provided to [...] over the past 10 years, has only been necessitated by [...]’s refusal to raise more local taxes; and - The district is ultimately responsible for those failures and the State has no authority to require that corrective action be taken—it is only a powerless bystander whose role is to make suggestions.
[brief] “For each item or category, the response must either state that inspection ... will be permitted as requested or state an objection to the request, including the reasons. ”  Id. at 34(b)(2)(B).  Although Rule 34 does not provide that untimely objections are waived, the Fifth Circuit has found that the waiver provision applies equally to Rule 34.  See In re United States, 864 F.2d 1153, 1156 (5th Cir.1989).  III.
[brief] *State v. Johnson*, 42 N.J. 146, 162 (1964).  This is a quasi-criminal matter, and the State must prove each of the statutory elements beyond a reasonable doubt to convict [...] of these charged offenses.  *State v. Feintuch*, 150 N.J.Super. 414, 422 (App. Div. 1977).  Each charged statute requires different proofs to meet its elements.  Therefore, proof of culpability for each charge must be evaluated separately.  Based on the trial testimony, the following issues are presented:
[brief] **CONCLUSION**  The trial court imposed the extraordinary remedy of an injunction that strips [...] from exercising powers granted to it under the State Constitution.  In doing so, it disregarded multiple Supreme Court cases as well as [...]’s Constitutional rights.  It also dispensed with due process, essentially granting Plaintiff’s challenges to governmental action before [...] has even taken those actions, without briefing, legal argument or a hearing on the merits of those challenges.  For the reasons set forth herein and in [...]’s initial brief, this Court should reverse.
[brief] DEFENDANT WAS DENIED HIS RIGHTS TO CONFRONTATION AND A FAIR TRIAL BY TESTIMONY AND ARGUMENT CREATING AN INESCAPABLE INFERENCE THAT THE POLICE POSSESSED EXTRA-RECORD EVIDENCE OF DEFENDANT'S GUILT.  U.S. CONST. amends.  V, VI, and XIV; N.J. CONST. art. I, ¶¶ 1, 9, and 10.  (Not Raised Below)  **POINT II**
[brief] The doctrine of res judicata bars “relitigation of claims or issues that have already been adjudicated. ”  Velasquez v. Franz, 123 N.J. 498, 505 (1991).  Res judicata applies when there has been “(1) a final judgment on the merits in a prior suit involving (2) the same parties or their privies and (3) a subsequent suit based on the same cause of action. ”  Morgan v. Covington Twp., 648 F.3d 172, 177 (3d Cir. 2011) (citations omitted).  Res judicata “bars not only claims that were brought in a previous action, but also claims that could have been brought. ”  In re Mullarkey, 536 F.3d 215, 225 (3d Cir. 2008); see also Marte v. Deutsche Bank Nat'l Trust Co., No. 2:15-0869 (CCC), 2016 U.S. Dist. LEXIS 149173, at *2-*3 (D.N.J. Oct. 26, 2016).
[brief] See Lee v. Carter-Reed Co., L.L.C., 203 N.J. 496, 522 (2010) (“Because it is ‘remedial legislation,’ the CFA is ‘construe[d] liberally to accomplish its broad purpose of safeguarding the public. ’”) (internal citation omitted); Lettenmaier v. Lube Connection, Inc., 162 N.J. 134, 139 (1999) (“Because it is a remedial statute, its provisions are construed liberally in favor of the consumer to accomplish its deterrent and protective purposes. ”).
[brief] [...] never filed such a Tort Claims Act notice.  See Pa171 at ¶ 37. that he attaches to them in his Complaint.  [...] recognized [...]’s attempt to recast his claims to avoid the Tort Claims Act immunity bar.  Pa949.  It is not uncommon for litigants to try and avoid statutory or other bars by trying to recharacterize their claims as different causes of action.  New Jersey courts consistently reject such “word game” which attempt to circumvent legal bars that were created to advance specific policy goals and/or to protect litigants.
[brief] N.J.S.A. 2C:35-14(b)(2).  The question in Ancrum was whether defendant’s merged charge of second-degree aggravated assault disqualified him from drug court under either subsection (a)(7) or subsection (b).  449 N.J. Super. at 528.  This Court held that “the Legislature intended to exclude the crime for which a defendant is facing sentence from consideration under Section a(7). ”  Id. at 535.
[brief] Superior Court of New Jersey  APPELLATE DIVISION DOCKET NO. [...]  CRIMINAL ACTION  STATE OF NEW JERSEY, : Plaintiff-Respondent, : v. : [...], : Defendant-Appellant.  :  On Appeal from a Final Judgment of Conviction of the Superior Court of New Jersey, Law Division, Cumberland County.  Sat Below: Hon. [...], J.S.C.  BRIEF ON BEHALF OF THE STATE OF NEW JERSEY
[brief] Mogull v. CB Com. Real Est. Grp., Inc., 162 N.J. 449 (2000).......................23 Motorworld, Inc. v. Benkendorf, 228 N.J. 311 (2017).................................20 Prioleau v. Ky. Fried Chicken, Inc., 223 N.J. 245 (2015).............................22-23
[brief] SUBPOINT A THE PSA SHOULD BE REFORMED TO REFLECT THE PARTIES’ INTENT.  Even if, arguendo, the word “sale” were deemed too restrictive to encompass the eminent domain and related proceedings, the Court would look to the clear intent of the parties in executing the PSA to effectuate that intent.  It has long been settled law in New Jersey that marital settlement agreements are enforceable only to the extent they are equitable.  Capanear v. Salzano, 222 N.J. Super. 403, 407 (App. Div. 1988).  The court in Capanear noted:  Thus, a matrimonial agreement may be reformed when, through a common mistake or the mistake of one party accompanied by the fraudulent knowledge of the other, it does not express the real agreement of the parties.  Id. (emphasis added), citing Brodzinsky v. Pulek, 75 N.J. Super. 40, 48 (App. Div.1962), certif. den., 38 N.J. 304 (1962).  Indeed, “[t]he equitable authority of courts to modify property settlement agreements executed in connection with a divorce proceeding is well established. ”  Miller v. Miller, 160 N.J. 408, 419 (1999), citing Conforti v. Guliadis, 128 N.J. 318, 323 (1992); Carr v. Carr, 120 N.J. 336, 346-49 (1990); Rothman v. Rothman, 65 N.J. 219, 229 (1974).  The agreement must reflect the strong public and statutory purpose of ensuring fairness and equity in the dissolution of marriages.  Petersen v. Petersen, 85 N.J. 638, 642 (1981).  In Guglielmo v. Guglielmo, 253 N.J. Super. 531 (App. Div. 1992), the court held:
[brief] ”  *Velasquez*, 123 N.J. at 505 (citations omitted).  “In order for res judicata to apply, there must be (1) a final judgment by a court of competent jurisdiction, (2) identity of issues, (3) identity of parties, and (4) identity of the cause of action. ”  *Brookshire Equities, L.L.C. v. Montaquiza*, 346 N.J. Super. 310, 318 (App. Div.), certif. denied, 172 N.J. 179 (2002) (emphasis supplied).  To determine if two causes of action are the same, the court must consider: (1) whether the acts complained of and the demand for relief are the same (that is, whether the wrong for which redress is sought is the same in both actions); (2) whether the theory of recovery is the same; (3) whether the witnesses and documents necessary at trial are the same (that is, whether the same evidence necessary to maintain the second action would have been sufficient to support the first); and (4) whether the material facts alleged are the same.  *Culver v. Ins. Co. of N. Am.*, 115 N.J. 451, 461–62 (1989) (internal citations omitted).  Here, the Chancery judge below properly found, and this Court should too, that there exists no commonality of claims between [...]’s lawsuit and the instant case (Da828; Da178; Da194).
[brief] As noted above, DEP’s stormwater oversight addresses numerous issues including stormwater quality.  Here, DEP found [...] met stormwater quality requirements by using several BMPs, including bioretention basins, green infrastructure MTDs, a grass swale and infiltration basins.  (Aa89).  DEP’s analysis relied in part on data submitted by [...]’s engineer.  (Aa834).  The overall water quality treatment for the proposed water quality management systems is 66.1% total suspended solids (“TSS”) removal, which exceeds the Property’s required 55% TSS removal.
[brief] 3.  On or about September 13, 2022, I was contacted by [...].  [...] informed me that he would filing a motion with the Court (1) to be relieved of the responsibility for filing on behalf of the Estate a non-resident United States Tax Return, Form 706-NA (the “Estate Tax Return”), (2) to have Defendant designated as the person responsible for filing the Estate Tax Return if one was required to be filed, (3) to be discharged of any further duties as Administrator in this matter, and (4) for an award of additional fees and disbursements in connection with his duties as Administrator.
[brief] Indeed, Plaintiffs’ opposition concedes the obvious reality.  They intentionally created this ‘company liability’ in order to reduce [...]’s net equity value in the anticipated buyout, which they were prosecuting from the moment they took over management control in 2016.  That is when they suddenly placed a $3.3 million “long term liability” on [...]’s books when there was none beforehand.  (6T251:11-25)  That self-interested vote discounted [...]’s net equity, on paper, by $826,000, although fee-shifting directly was not allowed in this case.  The law does not limit a Court in rejecting this liability as unlawful and improper fee-shifting because there was not a prior successful derivative action by [...].  Fair value encompasses judicial analysis of all assets and liabilities and adjustments in whatever regard are part of that process.  This Court should exercise *de novo* review and reverse the discount to equity that was clearly fee-shifting of $826,000 of Plaintiffs’ legal fees in this action, in violation of R. 4:42-9 and N.J.S.A. 2A:23B-21(b), and see also, Rock Work Inc. v. Pulaski Const. Co., 396 N.J. Super. 344, 355 (App. Div. 2007).
[brief] [...], Plaintiff, v. [...], [...], former ABSECON CHIEF OF POLICE  [...], ABSECON MAYOR  [...], ABSECON OFFICER  [...], [...], [...], [...], [...], VICINAGE I OF THE SUPERIOR COURT, THE NEW JERSEY ADMINISTRATIVE OFFICE OF THE COURTS, JUDGES [...], A.S.J.C., AND [...], J.A.D., ACTING AOC ADMINISTRATIVE DIRECTOR, [...] AND J. DOES #1 TO #100, Fictitious Persons or Entities Whose Real Names are Unknown At This Time, jointly, severally and in the alternative, Defendants.
[brief] These advances fees began in 2010 by [...], but also came from prior servicer, [...] d/b/a [...].  These advanced fees were the result of the wrongful assignment of the [...]’ account as a foreclosure or default.  The [...] were not permitted to present evidence showing that the collection of all those fees was reflected in a [...] (d/b/a [...]) Master Servicer Advance Receivables Trust (A604).  [...] is the owner of Master Servicing rights and advances - which have priority recovery from any collection from borrowers.
[brief] (1T45:5-10; Da263-64; 1T45:5-10).  In January 2024, Plaintiff filed her Answer to Defendants’ Counterclaims.  (Da265-74; 1T45:11-12).  On January 19, 2024, Plaintiff filed a Motion to Consolidate the Chancery Action with Defendants’ Law Division Action, which was ultimately denied on March 8, 2024.  (Da275-77, Da299-300; 1T45:13).  On April 10, 2024, Plaintiff filed a Motion to Compel Arbitration in the Law Division Action (Da301-03), however, that application was eventually withdrawn, as the parties had agreed to mediate, which was memorialized in a Consent Order dated May 28, 2024.
[brief] The statute sets out the [...]’s duties:  a.  Every bridge or overpass carrying a railroad, with a clearance of less than 14 feet 6 inches from the roadway beneath, shall have the maximum clearance marked or posted thereon in accordance with the current standards prescribed by the Manual on Uniform Traffic Control Devices for Streets and Highways.  b.  Signs warning persons driving motor vehicles that they are approaching a bridge or overpass with less than 14 feet 6 inches clearance shall be posted at the last safe exit or detour preceding the bridge or overpass and the maximum clearance of the bridge or overpass shall be indicated on these signs.  c.  The signs or markings required by this section shall be posted or marked, as appropriate, by, and shall be maintained by the governmental entity, be it the State or the political subdivision, which has jurisdiction over the roadway underneath the bridge or overpass.  The provisions of this section shall not apply to the toll road authorities.