ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] Moreover, while there are theoretically circumstances in which a defendant’s conduct could demonstrate “an intentional relinquishment of a known right,” that is not the case here.  *Id.* at 636.  As the court explained in *Rose*, “mere acquiescence through silence in representation by counsel is not proof enough. ”  *Ibid.*  The right to represent oneself is a fundamental constitutional right, and courts “must ‘indulge every reasonable presumption against waiver’ of fundamental constitutional rights and . . . ‘do not presume acquiescence in the loss of fundamental rights. ’”  *Ibid.* (alterations in *Rose*).  Illustrating these principles, the *Rose* court found persuasive the Ninth Circuit’s rejection of the government’s argument that a defendant waived his motion for substitute counsel “because he did not reassert it after the court inadvertently failed to rule on it. ”  *Id.* at 637 (citing *Schell v. Witek*, 218 F.3d 1017 (9th Cir. 2000) (en banc)).  The “the defendant ‘did not voluntarily, knowingly and intelligently waive [his] motion that he reasonably believed was denied. ’”  *Ibid.*  Similarly, as explained by the court in *Rose*, the same is true “where a defendant does not reassert a request to proceed pro se after the trial court inadvertently failed to rule, especially if the defendant understood that the request was denied.
[brief] Third, as quoted above, the trial court specifically cited Appellant’s basis for the FDCPA claim – that the subject Obligation is void because [...] did not have a license under the NJCFLA.  The claim is premised on [...]’s collection of a purportedly void debt, not simply that [...] lacked a license.  Appellant’s contention, however, is not correct as a matter of law.  Even if the NJCFLA purports to void debt because it is purchased or collected by an unlicensed entity, the statute could not do so lawfully.  The government cannot enact a statute voiding debt.  The Takings Clause of the Fifth Amendment to the United States Constitution precludes such action as follows:  “Nor shall private property be taken for public use, without just compensation. ”  Accordingly, a judgment obtained by an unlicensed debt buyer is not void.  See Cain v. Midland Funding, LLC, 475 Md. 4, 22-23, 30 (2021) (citing LVNV Funding LLC v. Finch, 463 Md. 586, 611 (2019)).  In sum, Appellant seeks to assert a claim under federal law, based on the violation of a New Jersey statute, where the State of New Jersey said there is no claim.  This Court should affirm the trial court’s decision to dismiss the FDCPA claim because it seeks to create a claim where none exists.
[brief] DEFENDANT’S SIXTH AMENDMENT RIGHT TO PROCEED PRO SE WAS NOT VIOLATED BY THE LACK OF A FARETTA HEARING.  When defendant—for the single time during the nearly five years of trial proceedings—expressed frustration about his attorney in open court after he lost on a motion to dismiss the indictment, the court was not required to hold a hearing under *Faretta v. California*, 422 U.S. 806 (1975), to determine whether to allow defendant to proceed pro se.  Here, the court did not abuse its discretion permitting defendant to submit an application if he chose to proceed pro se.  Regardless, given that defense counsel went out of his way thereafter to indulge defendant’s desired arguments, and defendant never again revived the issue, defendant waived any purported invocation of his right to appear pro se.
[directive] SUBJECT: Guidance Regarding Municipal Prosecutors’ Discretion in Prosecuting COVID-19 Related Offenses1  The world is currently facing a coronavirus (COVID-19) pandemic.  As of today’s date, more people in the United States have tested positive for, and have died from, COVID-19 than in any other country in the world.  Moreover, as of today’s date, New Jersey has the second largest number of people in the United States who have tested positive for, and who have unfortunately died from, COVID-19.  In an effort to protect the health, safety, and welfare of New Jersey residents and reduce the spread of COVID-19, Governor [...] issued a number of Executive Orders (collectively, the Orders) establishing statewide social distancing strategies to combat the rate of community spread of COVID-19.  These emergent measures included, but were not limited to, closing enumerated facilities and businesses to the public, limiting the number of people who can gather in any one location, and limiting the reasons for which a person can travel outside their residence.  The vast majority of New Jerseyans have abided by the Governor’s Orders and helped New Jersey slow the spread of COVID-19 over the last several months.  Some have not.  Accordingly, at the outset of the pandemic in New Jersey, to ensure accurate interpretation and  On August 29, 2018, I issued a Memorandum of Guidance (“Memorandum #1”) addressing the scope and 1 appropriate use of prosecutorial discretion by municipal prosecutors handling complaints in municipal courts.  Memorandum #1 also focused on how municipal prosecutors may permissibly exercise their discretion in cases involving marijuana-related offenses.  This Memorandum incorporates, by reference, the guidance issued in Memorandum #1.
[brief] The facts were clear insofar as [...] was dissatisfied with [...]’s service after an April 2018 storm, not the snow storm for the date of loss.  (1T 55:20-56:11).  Thus, Defendants argued that [...]’s termination had nothing to do with [...]’s work from the date of loss, but stemmed from a later snow event.  [...]’s work and/or quality of their work from this later snow event in April 2018 was irrelevant to the reasonableness of their efforts on the date of loss and not probative as to the adequacy of their services on the date of loss.  (1T 56:17-57:6).  The court ultimately granted this singular portion of Defendants’ motion in limine and barred any evidence regarding the termination of [...] after the 2018 season and reasoned that Plaintiff could ask questions about the Defendants’ performance on the date of loss without getting into [...]’s later termination.
[brief] Returning to § 317, all of the requirements for liability in that section are present here.  The servant was “using the chattel of the master” and the master both “knows or has reason to know that he has the ability to control his servant” and “knows or should know of the necessity and opportunity for exercising such control. ”  Under these circumstances, a risk of harm to others was “reasonably within the [master’s] range of apprehension. ”  Id. at 142.  The facts of this case are distinguishable from Doe because there was no evidence of prior conduct by [...] that was both dangerous to third parties and outside the scope of his employment.
[brief] The Board filed opposition to [...]’s motion for summary judgment on June 16, 2022.  [...] filed opposition to the motion on June 20, 2022 but without previously filing an answer.  See Pa 14-15.  On July 22, 2022, [...], granting summary judgment in [...]’s favor, held that he is now the “third judge” to rule that [...] was “arbitrary and capricious. ”  13T:15-18.  Preliminarily, [...] held that he could not consider any argument from [...]’s counsel, because [...] had not filed an answer.  13T:34.  [...] permitted only [...]’s counsel to argue against [...]’s summary judgment motion.  [...] ruled that [...] was arbitrary and capricious in the three ways advanced by [...].  First, the Court ruled that [...] improperly excluded the increased fee paid by [...] for garbage collection which has been assessed due to a change in [...]’s ordinance and not because of any conversion of the Property to a condominium.  13T:64:20-65:8.  That ruling is not under appeal.
[brief] $50,000 transferred from [...]’s MR line of credit account on September 8, 2015 to the [...]’ bank account #0319.  (26T37:5-7).  •  [...] was shown extracts of the [...] MR line of credit account from the company’s QuickBooks software and was able to tie the transfer of $50,000 from that account to a September 2015 bank statement for the company, which showed the funds were transferred to an account ending in 0319, which Plaintiffs established belonged to the [...].  (13T15:21 to 22:15; Da844; Da1495).  Misappropriation #6: $90,000 transferred from [...]’s MR line of credit account on October 7, 2015 to the [...]’ bank account #0319.
[brief] -  The Court relied unfairly on Probation’s “accounting” without permitting Appellant to defend and rebut against the errors in the so-called “accounting” with proofs and cross-examination of Probation before the Court.  6.  After 23 years of improperly “stonewalling” Appellant’s claims of account error, submission of an incomplete “accounting”, and material misrepresentation to the Court of the facts of the case,  It is clear that Probation’s representations to the Court, its account records, and its “accounting” of 3/17/2022 cannot be trusted, and Probation is incapable of self-correcting its account record.
[brief] Courts "construe the words of a statute 'in context with related provisions so as to give sense to the legislation as a whole.'"  Spade v. Select Comfort Corp., 232 N.J. 504, 515, 181 A.3d 969 (2018), quoting N. Jersey Media Grp., Inc. v. Tp. of Lyndhurst, 229 N.J. 541, 570, 163 A.3d 887 (2017).  If the plain language leads to a clear and unambiguous result, the court's job is complete, Matter of Commitment of W.W., 245 N.J. 438, 449 (2021), and the court applies "the law as written."
[brief] PUBLIC INTEREST DOES NOT OUTWEIGH IMPOSITION OF A NON-DELEGABLE CONTRACTUAL OBLIGATION (1T, 2T, Pa1-34)  As discussed herein above and in Appellant's initial brief, the lease sets forth the duty of maintenance by the tenant for the lease premises.  Public interest does not outweigh the imposition of a non-delegable contractual obligation of Respondent [...].  (Pa206-225)  Although a [...] representative may have testified that they are responsible for the maintenance of the parking lot, that does not negate the fact that it is contradictory to what is in the lease.  To then find that [...] is required to maintain some of the lease premises is completely contradictory to the purpose and function of this lease contract.  The fact that [...] and Respondent [...] negotiated the lease, specified parking spaces, specified certain maintenance and now [...] says they are responsible should not be allowed to control this case.  There is a non-delegable duty set forth by the lease contract.  The parties to a contract should know what their lease says and be required to abide by that contract.  [...] may voluntarily have taken on the same duty of maintenance as Respondent [...] by agreeing to maintain their lease common area, but the TCA does not protect private businesses and volunteering such maintenance by [...] does not absolve Respondent [...] from its duty owed to Appellant as set forth in the lease nor would it be in the public interest to allow same to occur as it would go against the whole reason for contracts and leases.  Public interest should not outweigh a contractual obligation and a non-delegable duty in this case.  The trial Court's determination should be reversed.
[brief] (8T 21-21 to 22-21)  The Court expressed doubt that the brain science should be mitigating at all beyond the legislatively mandated mitigating factor fourteen in light of the fact that people older than twenty-six commonly commit crimes.  (8T 31-2 to 18, 34-9 to 21)  Similarly, the Court stated, We’re talking . . . the ability to pull the trigger on a handgun, point it at somebody.
[brief] N.J.S.A. 2A:23B-21b.  However, the Arbitrator’s fee award was only based on [...]’s “breach of fiduciary duty to the Company” and he awarded part of what he found the Plaintiffs spent to “oust” [...], i.e. what they claimed to have spent directly litigating with [...].  (Da2215)  New Jersey law and public policy forbid the disregard of the American Rule for a breach of fiduciary duty in a direct action, which this is.  Legal fees can only be awarded if a tortfeasor’s breach of fiduciary duty compelled a victim to institute litigation with a third party, because those fees are only then the consequential damages of the separate action.  See, In re Estate of Lash, 169 N.J. 20, 30-32 (2001):  "A plaintiff has the right to recover attorney's fees incurred in other litigation with a third person, if he became involved in that litigation as a result of a breach of contract or tortious act by the present defendant."  22 Am.Jur.2d Damages § 618 (1988); accord Restatement (Second) of Torts § 914(2).”  Id. at 31.  [I]f the commission of a tort proximately causes litigation with parties other than the tortfeasor, the plaintiff is entitled to recover damages measured by the expense of that litigation with third parties.") (citations omitted); accord Restatement (Second) of Torts § 914(2) (1979) ("One who through the tort of another has been required to act in the protection of his interests by bringing or defending an action against a third person is entitled to recover reasonable compensation for loss of time, attorney fees and other expenditures thereby suffered or incurred in the earlier action.").  [In re Niles Trust, 176 N.J. 282, 295, 823 A.2d 1, 8, (2003)(emph. added)].  In Lash, the Supreme Court made clear that there is no right to fee shifting in a direct action for breach of fiduciary duty, and even confirmed that the exception to the American Rule created by Packard- Bamberger v. Collier, 167 N.J. 427 (1999) for an attorney’s breach of fiduciary duty to his client was only created because of the attorney-client relationship.
[brief] [...]  [...] [...]  [...]  PLAINTIFF/APPELLANT PRO SE  [...] pro se appellant  On the Brief TABLE OF CONTENTS  TABLE OF AUTHORITIES p. 2  TABLE OF JUDGEMENTS, ORDERS, RULINGS p. 3  TRANSCRIPT TABLE p. 3  PRELIMINARY STATEMENT p. 4  PROCEDURAL HISTORY p. 7  STATEMENT OF FACTS p. 10  LEGAL ARGUMENT p. 14
[brief] The record demonstrates that, for nearly a year, [...] ("Appellant"), an employee of Respondent [...] ("[...]"), was sexually harassed by [...], an employee of Respondent [...] ("[...]").  In response to internal complaints by Appellant and co-plaintiff, [...] employee [...], [...] immediately interrogated Appellant (the victim) about, inter alia, her alleged promiscuous "attire."  Then, to avoid disruption to its state-contract with [...], [...] punished Appellant for coming forward: on the same day [...] met with Appellant to purportedly address the sexual harassment, she was permanently transferred to another office against her will.  Putting aside the evidence of sexual harassment and retaliation, [...] remained in the same shared [...]-[...] office with his conduct unchecked.  Moreover, despite additional complaints of retaliation by Appellant, [...] did not even bother to investigate, let alone take remedial action, ultimately resulting in Appellant’s constructive termination.
[brief] [...] DID NOT ERR BY DETERMINING THAT THE PLAINTIFF’S CEPA CLAIMS WERE BARRED BY THE STATUTE OF LIMITATIONS.  Plaintiff next argues that [...] erred by granting summary judgment on statute of limitations grounds.  Plaintiff first asserts that the law-of-the-case doctrine applies and that [...] should have determined that, in the previous summary judgment motion, [...] “had already determined that these Defendants created a hostile work environment. ” (Pb33).  Plaintiff then argues that the law under Green v. Jersey City Board of Education, 177 N.J. 434 (2003), holds that a hostile work environment constitutes a continuing tort and that the application of the statute of limitations in such a case is different than it would be with regard to a claim based on a discrete act.
[brief] A side yard setback variance was required as shown on the zoning chart in [...]’s last site plan submission to the Board.  Exhibit 46, a revised site plan, was submitted at the last hearing on the application to the Board and notably, the Board’s professionals were not afforded an opportunity to review the details and comment on the plan prior to that hearing.  Pa265.  The zoning chart on Exhibit 46 shows the proposed combined side yard setback as 37.93% where 35% is the maximum permitted combined side yard setback.  The Board was correct to assume that the number provided in the zoning chart was correct and to take the number at face value as deficient from the ordinance standard.  This was especially true since the side yard number did not include any notation regarding the overhang, and the number provided for building coverage did.  The number for building coverage included a note explaining that the “eve of roof is not included within the calculations” but no note is provided regarding the overhang, just the percentage.  Pa 265.  Therefore, the Board was correct in determining that a variance was needed for 37.93% combined side yard setback as stated in the last plan presented by [...].  Point  IV  THE BULK VARIANCES REQUIRED FOR A MULTI-LEVEL SENIOR MIXED-USE FACILITY IN A SINGLE-FAMILY RESIDENTIAL ZONE ARE NOT “SUBSUMED”.
[brief] [...] and [...] are asked to opine on a legal question at the Board hearing even though they are an engineer and planner, respectively.  Each gave an incomplete answer on the part of the definition they could comment on i.e. what is mounding, terracing or “other devices. ”  None of these professionals could have legally concluded the legal interpretation of the plain language of the statute.  In fact, [...] went so far as to state as it relates to the RR Zone)….  “I don’t think it matters whether it’s existing grade or future grade.  We know we met the building height. ”  (Pa154; 63:13-15)  [...]’s statement is a clear misinterpretation of the ordinance as, of course existing or future grade matters, it is part of the Building Height definition and which grade you use in this case yields different outcomes.  As it relates to the Rumson ordinance, the Building Height definition of Mounding or a mound is made of earth, soil, or other buildable material (all referred to as “Earth”) on which a building can be constructed; terracing or a terrace is made of Earth (each of which, a mound or terrace, can be supported by one or more retaining walls).
[brief] The determination of such zoning nonconforming use issues has been assigned by the MLUL to the Zoning Board --- and not to the Courts, the Police Department, the Governing Body or some other functionary.  The Board Attorney’s repeated opinion and the Trial Court determination is clearly in error.  The Board --- primarily the Board Chairman --- had the good sense and responsible judgment to recognize the proper framework of the relevant law, that the Board was the proper forum and had jurisdiction, and that the chaotic and unsafe nonconforming current use required the Zoning Board to decide the issue (1T49-3 to 51-10).  The Police, the Township or even the Court cannot enforce any Ordinance or Code until there is an adjudication that the off-site parking use on Lot 5 is not a “legal pre-existing” nonconforming use.  After the Zoning Board determination on October 15, 2018, the Township did issue a Notice of Violation against the [...] and its illegal parking use.
[brief] ” (1T10:9-17).  This was not the intent of the Appellate Division’s ruling in Burt.  That court emphasized that the rationale for the ruling was that a defendant was not to be penalized by preclusion of contribution claims due to the plaintiff’s conduct.  *Burt*, 399 N.J. Super. at 308.  But here, Appellant was not in any way precluded from pursuing contribution claims by anything that Plaintiff/Respondent did or did not do.  Despite the inapplicability of *Burt*, this matter proceeded to trial under that ruling, exactly as Appellant had requested of the Trial Court.  Even though it is submitted that this was not a *Burt* case and the Trial Court’s ruling in 2017 so finding was erroneous, it would not matter even if the ruling was correct.  Appellant got exactly the trial for which he asked.  The essential problem, and the entire reason for this appeal, is that Appellant did not like the result.  **C.
[brief] I.  The Impermissibility of the Contract for Sale of the Property Does Not Render the Contract Between Plaintiff and Defendants Unenforceable  The case law is clear that the contract between Plaintiff and Defendants is not reflexively rendered unenforceable by mere virtue of its association with another impermissible agreement.  Defendants’ responsive briefs spend countless unnecessary pages discussing the impermissibility of the contract between Plaintiff and the property seller, despite the fact this conclusion is not at issue in this appeal.  The issue herein appealed by the Plaintiff is the Trial Court’s erroneous decision that the contract between Plaintiff and the seller automatically rendered the contract between Plaintiff and Defendants unenforceable and absolved Defendants of all liability.  The law does not permit Defendants to escape their contractual and fiduciary duties to the Plaintiff; their contract was perfectly legal and merely collateral to an impermissible agreement.  Defendants’ conclusion that its contract with Plaintiff was in furtherance of an unlawful purpose rather than a typical and legitimate Commitment for Title Insurance is conjecture which must be tested by a jury.  Defendants’ conclusion is particularly unstable because they not only accepted and retained payment for its services, but actively and extensively engaged in the closing and title processes.  Defendants’ ask this Court to approbate a windfall which would allow them to receive payment for their services, render those services negligently, and then evade the consequences of that negligence based on a collaterally impermissible agreement.  Such impunity is wholly inconsistent with New Jersey caselaw.  II.
[brief] [...]  [...]  A Professional Corporation  [...], Esq./037351989  [...] [...]  [...]  Attorneys for Plaintiff-Respondent  [...] Of Counsel [...]  On the Brief  [...] [...] TABLE OF CONTENTS TABLE OF AUTHORITIES ........................................................................................................ ii TABLE OF PLAINTIFF-RESPONDENT’S APPENDIX ......................................................... vi PRELIMINARY STATEMENT .................................................................................................1 COMBINED PROCEDURAL HISTORY AND STATEMENT OF FACTS ......4 A. Summary of Proceedings .................................................................................................4 B. Plaintiff’s Exhaustive Execution Efforts Result in the Collection of $21.5 Million Despite Defendants’ Repeated Frauds on the Courts Engaged in to Thwart Execution .......................................................................................9 i. Appointment of Special Fiscal Agent, Turnover Motions and Sales of Real Property ..................................................................................................................9 ii. Operation and Sale of [...] to Pay for the Judgment .............................................12 iii. Commitment Motions For the Return of $18 Million Defendants Fraudulently Claim They Do Not Possess ......................................................................................17 iv. Asset Investigations and Other Execution Efforts ..................................................19 C. Fee Application and Decision .........................................................................................21 ARGUMENT ..................................................................................................................................27 POINT I [...]’S UNCLEAN HANDS SHOULD PRECLUDE ANY RELIEF TO HIM IN THIS COURT .........................................................................................................................27  POINT II  THE TRIAL COURT DID NOT ABUSE ITS BROAD DISCRETION IN AWARDING  PLAINTIFF  ATTORNEYS’ FEES RESULTING FROM DEFENDANTS’ FRAUD ON THE COURT  .........................................................................................................................29  CONCLUSION ............................................................................................................................48