ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] ”  C64-18 at 4.  I/M/O [...], Commission Docket No. [...], at pp. 7-8 (2021) (Ca242-243) (citing Melnyk v. Fiel, Commission Docket No. C64-18 (2019) (Ca269)), reaffirmed, e.g., Commission’s Advisory Opinion A02-22 (February 25, 2022) (Ca233).  Since the advent of social media, the Commission has received numerous complaints about whether a Board member’s speech, including posts on social media, violates the Act because the Board member either failed to disclaim, or insufficiently disclaimed, their speech.  In a recent decision, which is informative here, the Commission stated:  …  Now, more than a decade later, when the use of social media and online publications has become commonplace, prolific, pervasive, and often times divisive, and given that there has been a significant influx in the number of complaints filed with the Commission regarding use (or nonuse) of disclaimers in electronic publications (not just social media), it is now more crucial than ever to underscore and emphasize that when Board members want to speak as private citizens, they must include an appropriate disclaimer that makes the capacity in which they are speaking clear and unambiguous.  In addition, even if an appropriate disclaimer is used, a school official must never negate the import of the disclaimer by proceeding, under the purported protection of the disclaimer, to discuss or comment on Board business or matters in a way that leads a member of the public to believe that the individual is speaking on behalf of, and as a representative of, the Board.  Advisory Opinion A02-22 (2022) (Ca233) (citing I/M/O Treston, [...], Commission Docket No. [...], at 12 (2021)) (emphasis added)).  Despite campaigning for the Board from her public Facebook account, announcing she won her seat, sharing endorsements, and sharing multiple campaign banners containing her name alongside the words “[...],” Respondent’s account contained no disclaimer.  She then made every public post that was the subject of the Commission’s August 22, 2023 Decision shortly thereafter, and from the very same public account.  Pursuant to the Commission’s decisional law for well over a decade, and based on the clear and direct evidence presented, Respondent held herself out as a Board member from this same Facebook account.  The Commission’s finding in its Final Decision that “there is no factual evidence” tying Respondent’s Facebook account to her Board membership was made in error, was contrary to the factual findings of [...], and was contrary to all evidence in the record.  As a result, the Commission’s August 22, 2023 must be reversed as being arbitrary, capricious, unreasonable, and unsupported by the evidence in the record.
[brief] While Plaintiffs acknowledge that Plaintiffs sent [...] a deposition notice for a deposition scheduled for September 28, 2022, and that [...] likely had some legitimate preparation time, that deposition was cancelled on September 27, 2022.  Yet, there are entries for deposition preparation the day after the deposition was cancelled.  The Appellate Division should also note that the entries comprising the 74.6 hours of time does not include review of deposition transcripts in preparing the defense's second motion for summary judgment; yet those entries were included in the calculation of the 82.4 hours billed for the second motion for summary judgment.
[brief] Rule 2:2-3 (a) allows appeals to be taken of right from "final judgments of the Superior Court trial division."  See N.J. Ct. R. 2:2-3(a) (emphasis added).  "[I]t is well settled that appeals are taken from orders and judgments and not from opinions, oral decisions, informal written decisions, or reasons for the ultimate conclusion.  See Do-Wop Corp. v. City of Rahway, 168 N.J. 191, 199 (2001); see also e.g. Heffner v. Jacobson, 100 N.J. 550, 553 (1985) (stating, "[a]n appeal lies not from a written or oral decision of a court, but only from a judgment or order").  Moreover, "[i]t is a commonplace of appellate review that if the order of the lower tribunal is valid, the fact that it was predicated upon an incorrect basis will not stand in the way of its affirmance."  See Isko v. Planning Bd., 51 N.J. 162, 175 (1968), abrogated on other grounds, Commercial Realty & Resources Corp. v. First Atl. Properties Co., 122 N.J. 546 (1991).  Because appeals are taken from judgments and not written decisions, the Objectors' criticisms of the Statement of Reasons cannot form the basis for an appeal.  As such, the Appellate Division should affirm the Trial Court's Judgment.  VI.
[brief] THE 2024 ORDER IS NOT A FINAL ORDER.  (Ra1-3)  Generally only “an order that finally adjudicates all issues as to all parties is a final order[.]”  Grow Co., Inc. v. Chokshi, 403 N.J. Super. 443, 457-458 (App. Div. 2008).  “[T]o create appellate jurisdiction”, an order must completely dispose of all pleaded claims between the parties and that disposition itself must be final.  Id. at 460.  A dismissal without prejudice cannot accomplish this because it “adjudicates nothing. ”  Rubin v. Tress, 464 N.J. Super. 49, 56 fn. 3 (App. Div. 2020).  See also Vitanza v. James, 397 N.J. Super. 516, 517-519 (App. Div. 2008) (dismissing appeal, in the absence of a motion by respondent, because the order was not final).  The plaintiff can institute a new action, with new facts and/or causes of action.  Malhame v. Borough of Demarest, 174 N.J. Super. 28, 30-31 (App. Div. 1980).  See also Johnson v. City of Hoboken, 476 N.J. Super. 361, 370 (App. Div. 2023) (same).  The same is true of an order dismissing an action based on mootness, which is also not an adjudication on the merits.  Transamerica Ins. Co. v. Nat’l Roofing, Inc., 108 N.J. 59, 64 (1987).  In this case, the Chancery Court’s 2024 Order did not adjudicate all of the issues as to all of the parties with finality.
[brief] See, e.g., Laidlow, 170 N.J. at 606 (employer removed a safety device from machinery); Mull v. Zeta Consumer Products, 176 N.J. 385, 388-389 (2003) (employer altered the design safety features of a machine).  Here, a jury could reasonably determine that failing to include the very pedestrian safety features that [...] knew were needed to protect its management in the area where its nurses were required to park was an intentional decision to withhold safety devices that was substantially certain to result in injury or death.
[brief] Furthermore, although the Trial Court did not address whether [...] satisfied the remaining five elements of the NJFPA, to be sure, as set forth above and below, the voluminous facts submitted to the Trial Court should have precluded summary judgment on [...]’s NJFPA claim against [...].  First, regarding a “license,” for purposes of the NJFPA, a “license” is granted by “the use of another’s trade name in such a manner as to create a reasonable belief on the part of the consuming public that there is a connection between the trade name licensor and licensee by which the licensor vouches, as it were, for the activity of the licensee in respect of the subject of the trade name.
[brief] THE TRIAL COURT MADE NUMEROUS ERRORS OF FACT IN ITS STATEMENT OF REASONS, IMPERMISSIBLY AND INAPPROPRIATELY ACTING AS A REBUTTAL EXPERT TO DR. POWELL AND CONTESTING THE FACTS ESTABLISHED BY BERSHTEIN (1282a-1296a)  The Trial Court made numerous clear errors of fact that require reversal of its decision predicated on those errors of fact.  The Trial Court repeatedly acted as though it were the rebuttal expert to [...] and contested facts established by the deposition testimony of [...], without any expert opinion in the record rebutting [...] or any facts in the record that contested the testimony of [...].
[brief] Prosecutor’s Office.  (11T121-6 to 137-9; Sa1; Da42 to Da63).  While awaiting booking, defendant told a detective that he broke up the fight, took [...] and [...] into the house, admonished them, and sent [...] away before [...] ran after [...] with the knife.  (11T121-14 to 122-20; Sa1 at 10:48:52 to 10:44:29; Da43 to Da44).  As [...] and [...] entered the booking room, defendant asked why he was at the station, and then stated, “I’ve got a lawyer coming.  I didn’t do nothing bro,” to which [...] responded, “[t]hat’s fine.  Alright.  That’s fine. ”  (11T123-4 to 15; Sa1 at 10:44:50 to 10:45:03; Da45).  Defendant added, “I didn’t do anything wrong.  You know me, bro. ”  (11T123-16 to 18; Sa1 at 10:45:03 to 10:45:07; Da45).  After saying defendant’s story contradicted other evidence, [...] asked defendant if he wanted to give a statement.
[brief] Moreover, court Rule 4:46-2(c) succinctly states: summary judgment should be only granted when there is “no genuine issue as to any material fact challenged and that a moving party is entitled to a judgment or order as a matter of law. ”  R. 4:46-2(c).  In this regard, the motion court must decide “whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the disputed issue in favor of the non-moving party. ”  Davis v. Brickman Landscaping, Ltd., 219 N.J. 395, 406 (2014) (quoting Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).  If a genuine issue of material fact exists, this court expressly stated: the inquiry then turns to “whether the trial court correctly interpreted the law. ”  DepoLink Ct. Reporting & Litig. Support Servs. V. Rochman, 430 N.J. Super. 325 333 (App. Div. 2013).  [...]’S LEGAL ARGUMENTS:
[brief] One would certainly expect more --- 1 "Pb" and "Pa" respectively refer to Brief in Support of Appellants/Interested Parties' Appeal of Interlocutory Order and the accompanying appellants' appendix.  "Rb" refers to Respondents' brief in opposition to the appeal, styled as "Petitioners' Opposition Brief to Appellants/Respondents' Appeal.  "Ra" refers to Respondents' Appendix, styled as "Petitioners’ Appendix in Opposition to Appellants/Respondents’ Appeal." detail from both the movant and the attorney.  However, in this case, not a single email following those phone calls contains any significantly harmful information.  One would think that if such things as testamentary intent, litigation strategy (on a case not yet filed) and settlement postures were discussed, the ensuing emails would at least tangentially mention them.  They do not.  Petitioners' discussion of *City of Atlantic City v. Trupos*, 201 N.J. 447 (2010), Rb17-18 is inapposite.  *Trupos* indeed holds that the burden can shift to the attorney.  However, *Trupos* was not addressing the burden of whether the attorney was aware of significantly harmful information.  Rather, the Court was referring to the issue of whether the matters were "substantially related."  For that element, "the burden shifts to the attorney(s) sought to be disqualified to demonstrate that the matter or matters in which he or they represented the former client are not the same or substantially related…").  *Id.* at 463.  This is not an issue here.  And the burden does **not** shift to the attorney to disprove receipt or knowledge of "significantly harmful" information.  That burden stays with the movant, *i.e.*, petitioners.
[brief] The letter also reiterated that in the event [...] does exercise its right to terminate the lease, it would forfeit $25,000 of the security deposit, and all work product related to the application for approvals would be turned over to the Landlord and become landlord’s property.  The letter confirms that the guarantors of [...] have been identified and [...] has enclosed a guaranty for execution, and that he is still looking for all of the company documents he requested.  Finally, [...] requested that the additional $50,000 due under the Lease be tendered before keys to the Property would be given to [...].  The letter was countersigned by [...] and [...].  No other changes were requested by [...] other than identified in the July 1, 2016 letter.
[brief] In addition, the police threat about “‘trouble’ had the clear capacity to overbear [...]’s will because before it was made she had steadfastly refused to cooperate, and she complied only after the police threatened her.  See Carty, 170 N.J. at 645 (“‘Consent’ that is the product of official intimidation or harassment is not consent at all.  Citizens do not forfeit their constitutional rights when they are coerced to comply with a request that they would prefer to refuse. ” (citation omitted)); State v. Miller, 342 N.J. Super. 474, 480-83 (App. Div. 2001) (affirming on other grounds but accepting trial court’s finding that consent was involuntary where the police threatened the consenting party with arrest).  The motion court also improperly dismissed the defense’s argument that [...]’s visible inattentiveness during the waiver advisory undermined the voluntariness of her consent.  Cf. State v. Chapman, 332 N.J. Super. 452, 467 (App. Div. 2000) (consent voluntary where video showed that during the waiver advisory defendant was “looking at the consent to search document while it was being read by [the officer], and that, at one time, he even corrected the officer regarding the year of the vehicle”).  Much of the court’s reasoning on that point -- including that [...]’s daughter had some college education and that [...] told the police where the gun was located -- had nothing to do with whether [...] was paying attention and sufficiently understood her legal right to refuse consent.  See Hagans, 233 N.J. at 39 (the State must prove that the consenting person knew they had the right to refuse).  And the court entirely ignored the larger implication that [...] may have been intoxicated when she consented, which was further indicated by the BWC showing that [...] admitted that she drank beer that night and that either [...] or her daughter quickly forgot that they signed the consent form.
[brief] The State argues that the Mandatory Notification Policies violate the LAD’s proscription of discrimination based on gender identity by mandating parental notification when a student asks to be called by a different name or pronouns, to use a different restroom, to play on a different sports team, or otherwise requests accommodations for gender-nonconformity.  [...] Pb14–22; [...] Pb14–22; [...] Pb14–22.
[directive] of of Records provided to the court concerning any the factors listed paragraph (d) in this Guideline are confidential and may not be disclosed except as provided Guideline in B(a).  If or Information from Prosecutor.  the petitioner a family household is .(ID or member, the county prosecutor designee shall produce for the court's consideration or any readily available information evidence pertaining to the factors listed in paragraph a of  If (d) this Guideline. the petitioner law enforcement officer, then the county is or or prosecutor designee shall produce for the court's consideration any statements of reports pertaining to the factors listed paragraph (d) this Guideline upon which the in officer relies in the petition.  Risk Guidelines for Extreme Protective Orders
[brief] Cases  Atlantic Ambulance Corp. v. Cullum, 451 N.J. Super. 247 (App. Div. 2017).  - 8 -, - 9 - Bosland v. Warnock Dodge, Inc., 197 N.J. 543 (2009)  ...........................................- 12 - Cowger v. Cherry Hill Mitsubishi, Inc., 2011 N.J. Super. Unpub. LEXIS 620 (App. Div. Mar. 14, 2011).  ................................................................. - 13 -, - 14 - Cox v. Sears Roebuck & Co., 138 N.J. 2 (1994).................................................. - 8 -, - 9 -, - 10 - D’Agostino v. Maldonado, 216 N.J. 168 (2013)  ..................................................... - 11 -, - 12 - Diversified Equities, LLC v. Russell, 31 N.Y.S.3d 920 (N.Y. App. Term. 2016)- 4 - Frank v. Sandy Rothschild & Associates, 4 S.W.3d 602 (Mo. App. 1999)- 3 -, - 7 - Freeman v. United Dominion Realty Tr., Inc., E042905, 2008 WL 1838373 (Cal. Ct. App. Apr. 25, 2008), as modified (May 6, 2008) ...................................................... - 5 - Friedman v. Krupp Corp. 668 N.E.2d 142, 147 (Ill App1996)...............................- 4 - Harbor Island Holdings v. Kim, 132 Cal. Rptr. 2d 406, (Cal. Ct. App. 2003) - 5 -, - 7 - Joy Systems, Inc. v. FIN Associates, 2018 WL 2922988 (App. Div.), cert. denied, 236 N.J. 33 (2018) ......................................................................................... - 8 -, - 9 -, - 10 - Leaman v. Wolfe, 629 Fed. Appx. 280 (3d Cir. 2015) .............................................. - 5 - Lee v. Carter-Reed Co., L.L.C., 203 N.J. 496 (2010)
[brief] In Brody, the plaintiff slipped and fell on water on an exterior terrazzo floor in a shop vestibule.  From a verdict for the plaintiff, the defendant argued that this was a case the jury could have understood and decided without expert testimony.  However, the court held that expert opinion on the effect of water on that particular type of exterior flooring and its ensuing slipperiness, was relevant and admissible because the court "[disagreed] with the defendant's assumption that the matter of the inherent slippery characteristics of terrazzo or the effect of moisture thereon, is a matter of common knowledge. ”  17 N.J. at 392.
[brief] “The Offer of Judgment Rules, and particularly Rule 4:58-2, cast as it is in unqualified mandatory terms, were adopted deliberately by the Supreme Court.  They were designed particularly as a mechanism to encourage, promote and stimulate early out-of-court settlement of negligence and unliquidated damage claims that in justice and reason ought to be settled without trial.  It is a matter of common knowledge that the vast majority of such cases are ultimately settled.  Unfortunately, the disposition too often takes place on the “courthouse steps” or just before or after a jury is drawn, rather than in the many months that intervene between the institution of the suit and the ultimate trial date.  The failure to make earlier adjustments is a major cause of the clogging of the trial lists and the tremendous backlog of automobile negligence cases that burden our judicial system.
[brief] Energy Rec. v. Dept of Env. Prot., 320 N.J. Super. 59, 64 (App. Div. 1999).  It is an established principle of law in New Jersey that the Court may consider documents referenced in or upon which the allegations of a complaint are based when deciding a motion to dismiss under Rule 4:6-2(e):  In its review, a court may consider documents specifically referenced in the complaint “without converting the motion into one for summary judgment. ”  E. Dickerson & Son, Inc. v. Ernst & Young, LLP, 361 N.J. Super. 362, 365 n.1, 825 A.2d 585 (App. Div. 2003), aff’d, 179 N.J. 500, 846 A.2d 1237 (2004).
[brief] Matthews v. Nelson, 57 N.J. Super. 515 (App. Div. 1959), certif. denied, 31 N.J. 296 (1960); Colucci v. Oppenheim, 326 N.J. Super. 166 (App. Div. 1999).  “Counsel is to be given ‘broad latitude’ in summation. ”  Diakamopoulos v. Monmouth Med. Ctr., 312 N.J. Super. 20, 32 (App. Div. 1998).  However, such latitude is not without limits.
[brief] Pursuant to N.J. Const. art. VI, § 5, para. 4, the New Jersey Supreme Court has adopted R. 2:2-3(a)(2), which contemplates that every proceeding to review the action or inaction of a state administrative agency would be by appeal to the New Jersey Appellate Division.  Thus, the rule mandates the exclusive allocation to the Appellate Division of review of both final decisions or actions of any state administrative agency or officer, and the validity of any rule promulgated by such agency or officer.  R. 2:2-3(a)(2).  Vas v. Roberts, 418 N.J. Super. 509 (App. Div. 2011).  Under New Jersey Court Rules, appeals may be taken to the Appellate Division "to review final decisions or actions of any state administrative agency or officer[]"  R. 2:2-3(a)(2).  Appellate Courts do not render advisory opinions or function in the abstract.  N.J. Civil Serv. Ass'n v. State, 88 N.J. 605, 612 (1982).  The Appellate Court need not defer to the agency’s determination on purely legal issues.  "[A]lthough the determination of an administrative agency is entitled to deference, our appellate obligation requires more than a perfunctory review."  Blackwell v. Dep't of Corr., 348 N.J. Super. 117, 123 (App. Div. 2002).  The Court’s function is "to engage in 'a careful and principled consideration of the agency record and findings,'" and not merely rubberstamp the agency’s decision.  Williams v. Department of Corrections, 330 N.J. Super. 197, 204 (App. Div. 2000) (quoting *Mayflower Sec. Co. v. Bureau of Sec.*, 64 N.J. 85, 93 (1973)).  Final agency actions can be reversed if those actions are 'arbitrary, capricious or unreasonable or [if the action] is not supported by substantial credible evidence in the record as a whole.'"  *N.J. Soc'y for the Prevention of Cruelty to Animals v. N.J. Dep't of Agric.*, 196 N.J. 366, 384-85 (2008) (quoting *Henry v. Rahway State Prison*, 81 N.J. 571, 579-80 (1980)) (alteration in original).  The Supreme Court has observed that the Appellate Court can overturn an administrative agency's determinations or findings if there is a clear showing that (1) the agency did not follow the law; (2) the decision was arbitrary, capricious, or unreasonable; or (3) the decision was not supported by substantial evidence.  *Bartley Healthcare Nursing & Rehab. v. New Jersey Dep't of Health & Senior Servs.*, 2011 N.J. Super. Unpub. LEXIS 329, 27-28 (App. Div. Feb. 15, 2011) citing *In re Virtua-West Jersey Hosp. Voorhees*, 194 N.J. 413, 422 (2008).
[brief] Expert testimony was not required for the introduction of this evidence.  Finally, defense counsel’s summation was well within the bounds of the law and did not result in a miscarriage of justice or undue prejudice to the plaintiff.  Regardless, any claimed undue prejudice was ameliorated by the trial court’s curative instructions to the jury.  For all these reasons, the plaintiff’s appeal should be denied in its entirety and the jury’s verdict upheld.
[brief] In light of this particular and \(^{18}\) Notably, the trial court’s discovery protocol was imposed equally on all parties.  Thus, even if the protocol were unduly invasive and burdensome, [...] has not been targeted unfairly.  Those concerns would affect [...] in equal measure.  unusual record, the court selected an approach that was both reasonable and pragmatic and has been utilized in other jurisdictions.  [...] may not like the court’s explanation, and it may subjectively weigh the costs and benefits differently.  That more than one discovery option may have been available does not render the one chosen by the trial court unreasonable, much less “so wide [of] the mark that a manifest denial of justice resulted. ”  DiFiore, 254 N.J. at 228 (alteration in original).  The trial court provided a straightforward, reasonable rationale for its decision, which falls easily within the bounds of its broad discretion.  Accordingly, this Court should defer to the trial court’s decision and affirm.