ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] When an appellate court remands, "the trial court is under a peremptory duty to obey the mandate of the appellate tribunal precisely as it is written."  Flanigan v. McFeely, 20 N.J. 414, 420 (1956); see also Lowenstein v. Newark Bd. of Educ., 35 N.J. 94, 116-17 (1961); State v. Kosch, 454 N.J. Super. 444 (App. Div. 2018); Henebema v. Raddi, 452 N.J. Super. 438 (App. Div. 2017), certif. denied, 233 N.J. 215 (2018).  The "terms and scope of the remand or specific instructions it has issued regarding the litigation bind[s] the court below whether it agrees or not."  Pressler & Verniero, Current N.J. Court Rules, cmt.  2 on R.2:9-1 (2019).  "[T]he very essence of the appellate function is to direct conforming judicial action.
[brief] Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986) ..............................  3  Boule v. Borough of Bradley Beach, 42 N.J. Super. 159 (App. Div. 1956)...  3 Brill v. Guardian Life Insurance Company, 142 N.J. 520 (1995), ...............  2 Brown v. Brown, 86 N.J. 565, 575 (1981) .....................................................  8  Caicedo v. Caicedo, 439 N.J. Super. 615, 623 (App. Div. 2015), ..................  6 Chatman v. Hall 128 NJ. 394 (1992), ............................................................  9  Frank Rizzo, Inc. v. Alatsas, 27 N.J. 400 (1958) ..........................................  3 Friedman v. Friendly Ice Cream Co., Metuchen, 35 N.J. 193, 195-196 (1961) .................................................................  2 Gomes v. Cnty. of Monmouth, 444 N.J. Super. 479, 487 (App. Div. 2016).  5  Judson v. Peoples Bank and Trust Co. of Westfield, 17 N.J. 67, 74 (1954)...  1 Kugler v. Tiller, 127 N.J. Super. 468, 476 (App. Div. 1974)  ..........................  1 Maslo v. City of Jersey City, 346 N.J. Super. 346, 349 (App. Div. 2002)  .....  8  PRELIMINARY STATEMENT
[brief] The trial court evaluated the equities, noting that the “law plainly favors a remedy for those seeking to correct reasonably discoverable mistakes[, and] Plaintiffs are not seeking to take advantage of the mistake – just to correct it. ”  Ja718.  See Central State Bank v. Hudik-Ross Co., 164 N.J. Super. 317, 323-24 (App. Div. 1978) (Reformation for mutual mistake is “well settled in our jurisdiction. ”); St. Pius X House of Retreats, Salvatorian Fathers v. Diocese of Camden, 88 N.J. 571, 579 (1982) (Reformation of deeds based on mutual mistake simply requires that the contract parties share actual intent and agreement that the deeds fail to accurately capture that intent.).  Indeed, the trial court suggested that it was Defendants that were “actually trying to take advantage of the mistake,” Ja718, specifically noting Defendants “evidently” had a “change of heart” after their counsel had acknowledged the error and indicated the intention to correct it, Ja720-21.
[brief] *Frivolous litigation sanctions or attorney’s fees.*  With regard to sanctions, [...] cited the correct governing law (Pa2), then applied that law to the findings made (Pa6).  [...] said, “plaintiff has failed to provide a certification and a copy of any letter sent to defense counsel which complies with the rule” (the frivolous litigation rule).  “Nor did plaintiff respond to defendant’s counsels' arguments contained in the record which asserted that no safe harbor letter or notice was ever received from plaintiff at any time during this approximate five-year litigation.  The court finds based on the record before it, which does not include a copy of the safe harbor notice sent to opposing counsel, that plaintiff did not provide the safe harbor notice to defendants' counsel as required by the rule.  Based on such, plaintiff's motion for sanctions as against defendants' counsel is denied. ”
[brief] *See id.*  Where the “essential element” of civil conspiracy is the “damage inflicted pursuant to it,” Appellants did not present a valid claim for conspiracy because all their injuries flowed directly from their own failure to make their lease payments.  [...] testified that it would have let Appellants continue developing the Property if they had only made their lease payments.  (Pa001803 – 001804).  Yet, Appellants refused to do so, and their solar agreements, including the WMPA they had purportedly acquired from [...], were terminated by the regulatory entities.  Even if the [...] conspired to mislead the Planning Board (which they did not), Appellants would still not have a valid claim because they would have no damages attributable to the statements made to the Planning Board.  11.  **Appellants Cannot Obtain a Declaratory Judgment for a Project they Abandoned When They Refused to Pay Rent.** (Pa003056 – 003058).
[directive] Updated December 2, 2013  Bail Schedule 2  STATUTES WHERE BAIL MAY BE SET BY A SUPERIOR COURT JUDGE OR A MUNICIPAL COURT JUDGE OR, IN THE MUNICIPAL COURT JUDGE’S ABSENCE, THE MUNICIPAL COURT ADMINISTRATOR OR DEPUTY COURT ADMINISTRATOR, PURSUANT TO RULE 3:26-2 requires warrants  Rule 3:3-1(c)(1) on the Bail Schedule 2 charges of robbery, criminal sexual contact, second degree aggravated assault, aggravated arson, arson, burglary, first or second degree violations of Chapter 35 (drug offenses), any crime involving the possession or use of a firearm, or conspiracies or attempts to commit such crimes.  Rule 3:3-1(c)(2-6) (indictable offenses) and Rule 7:2-2(b)(1-6) delineate factors regarding whether a warrant or summons should issue for other offenses.  Rule 3:26-1 (indictable offenses) and Rule 7:4-1 (non-indictable offenses) delineate factors to be considered when setting bail and provide for the option of R.O.R. bail where appropriate.  Bail Ranges for attempts or conspiracies should generally be the same as the actual substantive crime.  Statute Charge Description Degree Bail Range 10%  Cash Bail Option (2)  Actor drives a vehicle or vessel while in violation of N.J.S.A. 39:4-50 (DWI) or 10% permissible 3rd Degree $5,000 to $15,000  2C:12-1c(1)(2)(3)  Aggravated Assault  N.J.S.A. 39:4-50.4a (Refusal to Submit to Breath Sample); third degree if serious bodily (continued) by Auto or Vessel injury results; fourth degree if bodily injury results.  (continued)
[brief] In the accompanying Memorandum, the Judge explained that Plaintiffs failed to set forth a justifiable reason to reconsider the September 26 Order based on new facts or law that had been overlooked.  (Id.).  In responding to Plaintiffs’ mischaracterizations of her prior Order as deciding validity under Atalese, the judge also explained her prior decision:  In the September 26 Order, th[e] Court did not decide this issue because Plaintiffs did not properly raise the issue in a R. 4:2-1 motion to show cause.  As Plaintiffs are seeking a permanent injunction on the arbitration clause, and injunctive relief applications do not permit the entry of a permanent injunction, a decision on this issue would be inappropriate.  [DA260.]
[brief] The court imposed a maximum sentence for the defendant’s conspiracy conviction and a consecutive sentence for his theft-by-deception conviction.  *Id.* at 544-45.  Because the trial court relied on the fact of multiple victims to impose a maximum sentence for the conspiracy, the fact of multiple victims “should not have been relied upon as the basis for also imposing a consecutive sentence for a closely related offense. ”  *Id.* at 546.  Defendant also cites *State v. Carey*, 168 N.J. 413 (2001), to no good effect since the defendant in that case was not sentenced to maximum terms.
[brief] 4.  “whether prior application has been made to the agency” (Argued Pa371)  Here, [...] never filed a petition with the Commissioner of Education.  If it did, then under N.J.A.C. 6A:3-1.1, et seq., [...] was required to send notice and proof of service upon the Board, and the matter would have been transmitted to the Office of Administrative Law as a contested case.  Had [...] petitioned the Commissioner of Education, then the court would be required to perform the primary jurisdiction analysis.  But the fact that [...] never petitioned the Commissioner is fatal to the court attempting to assert primary jurisdiction over the Commissioner of Education.  Hence, applying the factors of primary jurisdiction necessitates dismissal of [...]’s Counterclaim for lack of jurisdiction.
[brief] The lower court’s denial of any recovery by Plaintiff of Defendant’s share of the children’s education loans is “so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice. ”  Clark v. Clark, 429 N.J. Super. 61, 70 (App. Div. 2012).  As such, this Court should reverse the trial court’s January 11, 2024 Order in its entirety and remand to the lower court to reassess the credible testimony and evidence presented by Plaintiff under the Newburgh factors.
[brief] Under New Jersey law, attorneys’ fees are recoverable “if they are expressly provided for by statute, court rule or contract. ”  *Packard-Bamberger & Co., Inc. v. Collier*, 167 N.J. 427, 440 (2001).  The decision to award attorneys’ fees rests within the sound discretion of the motion court.  *Maudsley v. State*, 357 N.J. Super. 560, 590 (App. Div. 2003).
[brief] 4  STATEMENT OF FACTS ....................................................................................  12 ARGUMENT .......................................................................................................  23  I.  STANDARD OF REVIEW ..............................................................................  23  A. Award of Damages at Trial/New Trial/Relief from Judgment ......................... 23  B. Post-Judgment Motion for Reconsideration .................................................. 23  C.  Summary Judgment ......................................................................................  25  D. Motion to Amend to Conform to Evidence ..................................................  25  II.  SUMMARY  JUDGMENT WAS PROPERLY GRANTED ON COUNT VI ...............  27  III.  SUMMARY JUDGMENT WAS PROPERLY GRANTED ON COUNTS II AND III ....  28  IV.  APPELLANT’S MOTION FOR RECONSIDERATION, RELIEF FROM JUDGMENT, OR NEW TRIAL WAS PROPERLY DENIED .................................................................  31  V.  RESPONDENTS’ MOTION TO AMEND THE COMPLAINT WAS PROPERLY GRANTED .................................................................  37  VI.  APPELLANT’S POINT III MUST BE DISMISSED .........................40  VII.  THE COURT PROPERLY ENTERED A STIPULATION OF DISMISSAL AS TO [...] .......................41  VIII.  THE COURT’S DECISION NOT TO HOLD ORAL ARGUMENT DID NOT PREDUICE APPELLANT  .......................42  IX.  REVERSAL IS NOT WARRANTED BECAUSE OF THE HYPOTHETICAL POTENTIAL FOR DOUBLE RECOVERY ..................................................................................................................43  CONCLUSION ..............................................................................................................................................44
[brief] (Pa72-73).  [...] explained that the Division was required under the Correction of Errors statute, N.J.S.A. 43:15A-54, to recalculate [...]’s retirement benefits because she did not earn salary or make any pension contributions after October 22, 2021, and that the recalculation or correction reduced her total service credit from 121 months to 118 months, which disqualified her from group life insurance as a death benefit.
[brief] POINT II  [...] WAS NOT UNREASONABLY DENIED A LEAVE OF ABSENCE BECAUSE HE FAILED TO PROVIDE MEDICAL DOCUMENTATION.  In what appears to be an effort to justify his refusal to return to work, he claims his employer unreasonably denied him a leave of absence.  (Ab20).  The record contradicts that claim.  N.J.A.C. 4A:2-6.2(c) provides that any request for an extension of leave by “[a]n employee who has not returned to duty for five or more consecutive business days following an approved leave of absence,” who would otherwise “be considered to have abandoned his or her position and” resigned “not in good standing,” “shall not be unreasonably denied. ”  Ibid.  An appointing authority has discretion to deny requests for leave, provided discretion is exercised reasonably.  Cumberland Cty. Welfare Bd. v. Jordan, 81 N.J. Super. 406, 412, 414 (App. Div. 1963).  Here, Bartos was not unreasonably denied a leave of absence because he never provided medical documentation to justify his absences from work despite having been told to do so on multiple occasions.  The Director of the [...]’s Division of Human Resources even sent Bartos a letter that unambiguously warned failure to return to work constituted job abandonment, but advised that if “there is a medical reason for your need for continued absence, medical documentation must be submitted . . . no later than Tuesday, April 14, 2020. ” (Ra13).  Likewise, even the PNDA recounted that Bartos “was directed to return to work for duty immediately, to submit medical documentation to extend [his] absences by 4/14/2020, or to alternatively resign in good standing from [his] position. ” (Aa2).  As the [...] recognized, despite being made aware the absences from April 7 onwards were not approved “unless he produced appropriate medical documentation covering those absences,” Bartos never did so.  (Aa32) (emphasis in original).
[brief] It is defendant's burden to establish plain error, and he has failed to do so.  The State also stresses that [...] discussed the court’s jury charge with counsel before the charge was completely drafted.  (16T281-7 to 16T288-22).  There was a subsequent teleconference with counsel about the jury charge.  (25T4-11 to 16).  To the extent that self-protection was the gravamen of defendant’s defense, the language now cited by the defendant as so important could have been requested.  It was not requested because defense counsel saw no prejudice from the language used by the judge in the proposed charge.  Defense counsel was satisfied with the judge’s charge because it was in conformance with the model jury charges.
[brief] 9, 14  Puder v. Buechel, 183 N.J. 428, 440-441 (2005)  20  Rova Farms Resort, Inc. v. Invs. Ins. Co. of Am., 65 N.J. 474 (1974)  8  State v. Cagno, 211 N.J. 488 (2012)  20 State v. Hubbard, 222 N.J. 249 (2015)  8 State v. Gamble, 218 N.J. 412 (2014)  8 State v. Mohammed, 226 N.J. 71 (2016)  8 State v. S.B., 230 N.J. 62, 67 (2017)  20 State v. S.S., 229 N.J. 360 (2017)  8 Trinity Church v. Lawson-[...], 394 N.J. Super. 159 (App. Div. 2007)  20  Velasquez v. Franz, 123 N.J. 498 (1991)  10, 22  Watkins v. Resorts Int'l Hotel & Casino, Inc., 124 N.J. 398 (1991)  10, 22 Publications  Craig & Pomeroy, New Jersey Auto Insurance Law § 15:5-2 (2024)  14  PRELIMINARY STATEMENT  This Appeal stems from the dismissal on summary judgment of Appellant/plaintiff [...]’s complaint for personal injury against respondent/defendant [...] because he failed to maintain the required insurance coverage for vehicles principally garaged in New Jersey as required by N.J.S.A. 39:6A-4 when he was involved in an accident in New Jersey on April 13, 2022.
[brief] While the Court in *Znoski* determined that the shopping cart that struck the plaintiff was not a dangerous instrumentality, the U-boat that struck Plaintiff in [...]’s warehouse was a heavy-duty industrial grade cart that was much larger in size and weight than a conventional shopping cart, and which had a top shelf for placing product.  In addition, unlike the conventional shopping cart in *Znoski*, where there was no indication that the cart was used in any other manner than the manner for which it was designed, the U-boat that is the subject of this litigation had the ability to be overloaded.  In fact, the U-boat was overloaded in such a way so as to obstruct the view of the individual pushing the cart, thereby becoming a dangerous instrumentality which caused Plaintiff to be struck.  In addition, to prove a breach of such a duty of care, a plaintiff must show that the defendant had actual or constructive knowledge of the dangerous condition that caused the accident.  *Brown v. Racquet Club of Bricktown*, 95 N.J. 280, 291 (1984).
[brief] THE TRIAL COURT INCORRECTLY DECIDED THE FACTS; MISAPPLIED RELEVANT CASE LAW; AND APPLIED  THE WRONG LEGAL STANDARD TO DETERMINE IF THE “EXPECTED OR INTENDED” INJURY EXCLUSION APPLIES (Raised Below: Pa519; 2T:12-13)  Plaintiff/Appellant asked the trial court to clarify what standard it applied to determine whether the “Expected or Intended” exclusion applies.  The trial court did not articulate its reasons and appears to have relied on the Defendants arguments which are insufficient to dispose claims.  [...]’s Order dated August 7, 2023, (Pa395) mentions the NJM policy exclusion entitled, “Expected or Intended Injury” and stated, “Given the written [Expected or Intended Injury] exclusion to the homeowners’ policy, the policy is not an ‘all-risks’ policy and does not include coverage for intended injuries.
[brief] ”  Griffin v. City of E. Orange, 225 N.J. 400, 413 (2016).  An evidentiary ruling should be reversed only if it “‘was so wide off the mark that a manifest denial of justice resulted. ’”  Ibid., citing Green v. N.J. Mfrs. Ins. Co., 160 N.J. 480, 492 (1999).  Here, the trial court abused its discretion in admitting evidence of the police officers’ opinions and conclusions because that evidence had been previously barred in three separate rulings prior to trial, and because that evidence was not proper impeachment material, and because the probative value of that evidence was far outweighed by its prejudicial effect on the jury, resulting in a manifest denial of justice.
[brief] With respect to the Field Directive, N.J.S.A. 58:10-23.11f(a)(1) provides that the [...] “may, in its discretion, . . . direct the discharger to clean up and remove or arrange for the cleanup and removal of, the discharge. ”  N.J.S.A. 58:10-23.11f.a.(2)(a) then provides that “[w]henever one or more dischargers or persons clean up and removes a discharge of a hazardous substance, those dischargers and persons shall have a right of contribution against all other dischargers and persons in any way responsible for a discharged hazardous substance or other persons who are liable for the cost of the cleanup and removal of a hazardous substance.  . . .  In resolving contribution claims, a court may allocate the costs of cleanup and removal among the liable parties using such equitable factors as the court determines are appropriate. ”  Thus, the [...]’s issuance of a Field Directive to an identified “discharger” does not mean that that “discharger” is solely responsible for all cleanup/remediation costs, to the exclusion of all other persons who or entities that may also be liable.
[brief] (4) is any other employee deemed an essential employee by the public authority declaring the state of emergency.  The public authority declaring the State of Emergency is [...].  On March 9, 2020, well before Petitioner fell ill in February 2021, [...] issued Executive Order 103 (Pa18-25), declaring the Covid State of Emergency and which delegated the power to protect New Jersey citizens from the effects of the Covid pandemic and to issue directives to both the public and private sectors.  (See paragraph 1 on page 5 of Executive Order 103 at Pa22).  The Order delegated the authority to the New Jersey Director of Emergency Management, who is also the Superintendent of the State Police.
[brief] (Not raised below)  Under the circumstances, no reasonable person in [...]’s position would have felt free to leave the interrogation.  Officers transported [...] by --- \(^8\)  The video and transcript of [...]’s statement on February 8, 2016 are at Da 17 and Da 18-74 respectively.  An alternative transcript is at 25T 12-21 to 88-17.  The court’s order admitting the statement into evidence is at 25T 12-3 to 6.
[brief] Defendant’s claim that if he had a fuller idea of Plaintiff’s assets he would have refused to advance the funds so Plaintiff could move out of the Chester house sooner lacks credibility.  Significantly, too, Defendant has not suffered any detriment as a result of fronting the $70,000.  He claims to believe that he could simply have refused to purchase the townhouse or enter into the agreement, and that would have been the end of it.  He has tried to avoid, throughout this case, disclosing what his full financial picture was in 2011, claiming it is not relevant.  Although [...] did not attempt to negotiate a better deal for herself than the one memorialized in the agreement, an objective analysis of the parties’ financial circumstances in 2011 makes it obvious that had [...] not entered into this Agreement but instead had gone through the litigation and trial, his obligations to [...] would have been significantly higher.  Presumably, since 2011, Defendant continued to live his indulgent lifestyle, owning multiple homes, owning racehorses, and maintaining his membership in a country club.  Certainly there was no testimony or evidence at trial to the contrary.  He suffered no detriment by entering into the Settlement Agreement.  Even giving Defendant the benefit of all doubts, he did not come close to establishing that Plaintiff knowingly misrepresented her financial situation to Defendant, and particularly not that she intended for him to detrimentally rely on such misrepresentation.  At the conclusion of trial, the judge rejected Defendant’s claim of fraud.
[directive] First, the data must be permanent.  It must be maintained for a considerable period, and the individual records may have data added, but not deleted.  This permanence is available in both a log book and in an electronic data base.  Second, the centralized filing system must be secure against damage, destruction or theft.  Here, the electronic system provides more simplicity through data backup with off-site storage.  A log book would require either secure containment, such as a fireproof safe, or frequent photocopying with off-site storage.  Third, the centralized filing system must be accessible for all authorized personnel.  Access for entering data should be limited to the designated property officer.  However, other officers must often track or locate property in the absence of the property officer, and therefore must be able to review the centralized record.  This is easier with a log book, since a 1 computerized system requires the officer to have a working knowledge of the system.
[directive] (c)  Intercept, which means to acquire the contents of any wire, electronic or oral communication through the use of any electronic, mechanical or other device, N.J.S.A. 2A:156A- 2c; and (d)  Electronic communication, which means the transfer of signs, signals, writings, images, sounds, data or intelligence of any nature transmitted in whole or in part by a wire, radio or other system, N.J.S.A. 2A:156A-2m.  All of these forms of communication are protected from intrusion and interception except under very narrowly defined exceptions.  7.9.2  One such exception is when one person in a communication decides to intercept (e.g., record) the conversation.  As long as this person is a part of the conversation, such recording is lawful.  But if the person stops being a party to the conversation (e.g., he or she walks away from the group or turns the telephone over to someone else), it is no longer lawful for him or her to intercept the conversation.  7.9. 3  Another exception exists where a person, acting at the direction of an investigative or law enforcement officer, gives prior consent to intercept a wire, electronic or oral communication and is a party to the communication.  This "consensual intercept" can only be made after the Attorney General or a County Prosecutor, or their designee, approves it.  7.9.4  Pursuant to N.J.S.A. 2A:156A-4b, a law enforcement officer may intercept and record a wire or oral communication using a body transmitter if that officer is a party to the communication or where another officer who is a party requests or requires that such interception be made.  Individual departmental or agency policy dictates procedures for such recordings.  This kind of law enforcement non-third party intercept can be used during internal affairs investigations.