ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] Plaintiff next suggests that Defendant’s argument that Plaintiff was not entitled to any attorney’s fees is grounds to vacate the trial court’s order.  Not only is it baseless to argue that a trial court’s decision should be overturned based upon a party’s argument (to which Plaintiff had a sufficient opportunity to address in his reply filed with the trial court), Plaintiff certainly confuses the argument raised by Defendant in the trial court.  Indeed, Defendant did not argue that Plaintiff was barred from making a motion for attorney’s fees but instead argued that after consideration by the court of the issue of reasonableness, the court should award Plaintiff nothing in fees as no fees were reasonable.  See Defendant’s Opposition, P163a.  Plaintiff’s inflammatory argument that the trial court improperly considered “Defendant’s improper and frivolous request to deny fees,” coupled with the accusation that Defendant made a “misrepresentation to the court” is likewise unavailing.  The settlement agreement was annexed to Plaintiff’s counsel’s declaration filed with the trial court and the court was certainly free to make its own interpretations of the relevant provision.  Nevertheless, the terms of the agreement concerning attorney’s fees only precluded Defendant from arguing that Plaintiff had no “right” to file the motion to recover attorney’s fees, which Defendant did not do.  Instead, Defendant properly argued, within the scope of the agreement, that when considering the “reasonableness” of the attorney’s fees awarded, under the relevant statute (MMWA), the court could exercise its discretion and find little to no fees were reasonable.  Plaintiff is therefore confusing the issue of whether he could petition the court for an award of attorney’s fees versus what the court could ultimately award.  Even if the trial court interpreted Defendant’s argument to be that Plaintiff had no right in the first instance to file the motion and seek attorney’s fees, it wholly rejected this argument by both considering the motion and awarding fees to Plaintiff.  Accordingly, Plaintiff fails to show that the trial court’s order should be vacated on these grounds.
[brief] [...] renewed its summary judgment motion on March 3, 2023.  [...] then filed a cross-motion for partial summary judgment on March 21, 2023.  A summary judgment motion hearing took place in the Law Division before the Honorable [...], J.S.C., on June 5, 2023.  At the summary judgment hearing, the Court inquired of [...]’s counsel “Did anyone send a subpoena to [...] for their records?” (1T15:2-3)  [...]’s counsel replied, “No, Your Honor. ”  (1T15-9)  This glaringly inexplicable omission puzzled the Court, which inquired “why [...] was not subpoenaed to either produce documents, to testify as to the relationship and what was purchased and what wasn’t purchased on these alleged contracts?”  (1T25:20-23)  The Law Division, in its summary judgment decision, addressing the issue of the sufficiency of the evidence in support of [...]’s alleged damages, stated that it had been “hopeful, very hopeful that the deposition transcripts would flesh out the . . . issues.
[brief] Plaintiff has not meaningfully challenged the trial court’s decision to reopen, so this Court can affirm it.  See Shapiro & Croland v. Bairan, No. A-3704-05T5, 2007 WL 1574407 at *1 (N.J. Super. App. Div. June 1, 2007) (“deem[ing] waived” an issue subsumed within a notice of appeal but omitted from briefing).
[brief] THE TRIAL COURT CORRECTLY DENIED PLAINTIFF’S CONTENTION THAT MAINTENANCE OF THE ROADWAY WAS A MINISTERIAL ACT NOT COVERED UNDER THE TORT CLAIMS ACT  The trial court correctly determined that road maintenance is not a “ministerial” task.  As the trial court noted, if Plaintiff’s theory that road maintenance was ministerial and the TCA did not provide immunity, there would not be cases such as Polzo v. County of Essex, 196 N.J. 569, 585 (2008), Atalese v. Long Beach Township, 365 N.J. Super. 1 (App. Div. 2003), Polyard, supra., and Stewart v. New Jersey Turnpike Authority, 249 N.J. 642 (2022), and a host of other cases that discuss the condition of roadways and roadway maintenance in the context of the TCA. (Pa2146).  Plaintiff’s theory regarding roadway maintenance and the condition at issue in this matter does not comport with what is clearly stated in the N.J.S.A. 59:4-2 and the Court’s application of the statute in similar cases.  The Authority has a limited amount of resources for its capital improvements budget.  That amount must be allocated to all types of capital improvement projects necessitated by the operational needs of a busy transportation system.  Contracts are made for the roadway repair or improvements.  These contracts involve high level decisions including what is to be repaired or improved and what area of roadway the contract covers.  Conversely, the decisions on how to actually complete the contract work and the timeframe said work will be completed is left to the contractors or subcontractors.  This would include inspection and repair of roadway conditions, as necessary.  Pursuant to N.J.S.A. 59:2-3(d), a public entity is not liable for the exercise of discretion when, in the face of competing demands, it determines whether and how to utilize or apply existing resources, including those allocated for equipment, facilities and personnel unless a court concludes that the determination of the public entity was palpably unreasonable.
[brief] See State v. LaResca, 267 N.J. Super. 411, 417 (App. Div. 1993); State v. Humphrey, 183 N.J. Super. 580, 586-590 (Law Div. 1982) aff’d, 209 N.J. Super. 152 (App. Div. 1986).  This also defeats the state’s current approach of rehabilitation over incarceration and leads more backlogged courts and much higher costs in housing incarcerated individuals.  There are also varied reasons why people plead guilty other than guilt, such as avoiding a harsh sentence or avoiding agony and expense to the defendant and his family.  See State v. Boone, 66 N.J. 38, 49 (1974)(citing Brady v. United States, 397 U.S. 742, 90 S. Ct. 1463, 25 L. Ed. 2d 747 (1970); North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970)).
[brief] Plaintiffs’ bad faith conduct and misrepresentations ultimately led to the trial court granting [...]’s motion for sanctions.  Unfortunately, the trial court, in calculating [...]’s fee award, failed to take into consideration all necessary factors under Rule of Professional Conduct 1.5(a), resulting in an award only one-third of that requested by [...] in spite of detailed invoices depicting the work performed by counsel on this matter.  Plaintiffs may try to argue that [...]’s counsel performed excessive work on this matter.  However, it was Plaintiffs’ own misconduct that led to this situation.  After being served a safe harbor letter early in the litigation, Plaintiffs declined to dismiss [...] from the case, resulting in [...] remaining in the case \textit{for over a year}, during which time Plaintiffs sought \textit{no discovery} from [...] in furtherance of any claims they may have had against it.
[brief] N.J.S.A.56:12-2.  …  Our courts have upheld arbitration clauses phrased in various ways when those clauses have explained that arbitration is a waiver of the right to bring suit in a judicial forum.  *Id.* at 443.  The *Atalese* Court concluded by explaining that “… the wording of the Service Agreement did not clearly and unambiguously signal to plaintiff that she was surrendering her right to pursue her statutory claims in court.  That deficiency renders the Arbitration Agreement unenforceable.
[brief] They got to the barbershop and immediately went to the back room, where [...] entered first.  (10T:17-1 to 20-6; 151-7 to 14; 159-1 to 175-25).  They had since donned masks, and defendant entered behind [...] while drawing his gun.  [...] grabbed the money he saw on the pool table, while defendant said, “you know what time it is. ”  [...] took money from one of the gamblers’ pockets, as well.  Defendant shot [...] in the face.  [...] and defendant immediately ran from the room, and out of the barbershop.
[brief] That resolution did not specifically name this Complaint, it appointed [...] a one year professional services appointment as “special legal counsel to handle matters involving personnel issues and related issues which have arisen and which must be addressed[.]”  (Ra01)  On April 30, 2021, the Fire District’s counsel informed [...] that the appointment of outside counsel to pursue his private claims against the Government Records Counsel would not be funded by the District and had not been approved by its insurer.  He was also informed that the production of the government records did not require representation by an attorney.  He was also, again, informed that the messages would be reviewed prior to release.  (Da126).  On May 14, 2021 [...] contacted the [...] and explicitly stated that his interests diverged from those of the district.  At that time, he requested a stay of the May 18, 2021 hearing in order for his private interests in the withholding of public documents could be advanced to the [...].
[brief] **B.  The DACCA regulates debt adjustment services, not the practice of law.**  DACCA does not encroach upon judicial prerogatives and interests because it regulates debt adjustment services, not the practice of law as is evident by the DACCA’s language and structure.  More specifically, the --- 2 The Respondents’ brief submitted on April 11, 2024 is referred to as “Rb. ”  DACCA regulates intermediaries between a debtor and a creditor who settle, compound, or otherwise alter the terms of debts of the debtor.  N.J.S.A. 17:16G-1(c)(1) (defining “debt adjuster”).  The full statute contemplates that debt adjustment services would be provided primarily by non-attorneys, and expressly does not include any limits or controls over the nature or conduct of litigation before any court.  N.J.S.A. 17:16G-1 to -9 (permitting anyone to provide debt adjuster services under the auspices of a nonprofit company and making no mention of matters in litigation).  To the extent that an attorney provides incidental debt adjustment services, the Attorney Safe Harbor places this representation outside the DACCA.  Under the DACCA, debt adjustment services can only be provided under the auspices of a licensed nonprofit social service agency or a nonprofit consumer credit counseling agency, and not in an individual capacity.  N.J.S.A. 17:16G-2(a), -3.
[brief] The Appellate Division affirmed, but remanded for reconsideration of the punitive damages award, directing the trial court to: (1) take into account the various factors discussed in Baker v. National State Bank, 161 N.J. 220 (1999), and BMW of North America, Inc. v. Gore, 517 U.S. 559 (1996); and (2) “ensure that the measure of punishment is both reasonable and proportionate to the amount of harm to the plaintiff and to the general damages recovered,”  Id. at 2-3.  The Appellate Division’s decision was appealed to the New Jersey Supreme Court.  The New Jersey Supreme Court agreed with the Appellate Division’s discussion of the factors to be considered in awarding punitive damage awards by the jury, which are: “‘the degree of reprehensibility of the [wrongful conduct,] the disparity between the harm or potential harm [suffered by the plaintiff] and the plaintiff’s punitive damages award[,] and the difference between this remedy and the civil penalties authorized or imposed in comparable cases or whether the award reflects prejudice, passion, or mistake warranting a new trial on the amount of punitive damages.
[brief] [FEDa118].  Like Count 17 of the proposed Second Amended Complaint against [...] herein, Count 1 of the First Amended Complaint asserted a breach of contract claim against the [...] for alleged violation of the NDA in utilizing information it acquired, including information relating to the Lease, for its own gain.  In dismissing this claim against the [...], the trial court found:  Therefore, the loss of the Property was the direct and proximate result of [Appellants’] failure to cure the default under the Lease with [...]….  [Appellants] cannot seek damages against a blameless third party simply because [...] signed an NDA.  [Appellants] do not establish the requisite causal link between a breach of the NDA and [Appellants’] default under the Lease and subsequent loss of their Solar Rights (emphasis added) [FEDa188-19].
[brief] In fact, when directly questioned about [...]’ conduct on the date of the accident, [...], who therein had the perfect opportunity to lay blame upon [...], testified as follows:  Q: Did you tell [...] that Mr. [...] admitted to you that he went through an illegal cut-through?  A: No.  Q: Did you tell him that he disobeyed your instruction and didn’t go through the legitimate cut-through and went through an illegal one?  A: No.  Q: Why not?  A: It was an accident.  I just told him it was an accident.  [Da251-252, 192:20-193:7 (emphasis added). ]  Moreover, there is nothing in the record before this Court to establish that the legal positions of [...] and [...] are directly adverse to one another.
[brief] *7  The Rule 30(b)(6) deposition on the above topics shall take place no later than August 6, 2021.  The deposition shall not exceed 4 hours exclusive of breaks and shall be limited to nonprivileged matters encompassed in the five topics set forth above.  The Court anticipates that the parties, working together cooperatively and in good faith, will be able to resolve the issue of scheduling the Rule 30(b)(6) deposition as well as any other conditions of that deposition (e.g., in-person or via videoconference), without the need for Court intervention.
[brief] See Berman v. Gurwicz, 189 N.J. Super. 89, 103 (Ch. Div. 1981) (citing John Hancock Mut. Life Ins. v. Cronin, 137 N.J.Eq. 586, 589 (E. & A. 1946)).  In such instances, parties represented by counsel incur an obligation to exercise reasonable diligence, as explained thusly:  Plaintiffs who were represented by counsel either made or should have made an independent investigation of the facts through their attorneys.  That was the purpose of employing counsel.  The exercise of reasonable diligence by these attorneys required them to make appropriate inquiries which would have disclosed all of the [] details.  Had these been known to plaintiffs, they could not now claim reliance.  Under the reasonable diligence rule they must be treated as though the details were known.  Consequently, they have not proved reliance.  discovery may establish the requisite claim”).
[brief] (P655a-P674a).  The final remaining claims against the [...]—i.e., those not previously disposed of by the August 6, 2021 Summary Judgment Order being appealed here—were resolved between the parties dismissed with prejudice through --- \(^9\)  See [...] et al. v. [...], et al., [...], [...] (2022).  \(^10\)  In denying Plaintiffs’ Motion, this Court wrote that “the interests of justice would not be served by permitting appellate review” because “it does not appear from the record that the trial judge certified the monetary sanction award” and thus “[...] would therefore be unable to invoke any of the processes to enforce judgments and to secure payment. ” (P649a-P650a).  stipulation on January 15, 2024.  (P675a).  This Appeal follows as to the Summary Judgment Order, the Sanctions Order, and the Reconsideration Order.
[brief] (emphasizing that parents’ demand to be “informed of” a child’s gender identity is constitutionally distinct from cases in which a school coerces a student not to speak with their parents).  Nor do they restrict any parents from communicating with or counseling their children about gender identity and expression.  Because all this injunction does is prevent the school from discriminating via its blanket-notification policy against transgender, gender non-conforming, and non-binary students—and indeed, restores an approach Appellants had taken for years—the order infringes no fundamental rights.  See Regino v. Staley, No. 23-32, 2023 WL 4464845, at *3 (E.D. Cal. July 11, 2023) (Ra62-68) (rejecting claim that schools have “an affirmative duty to inform parents of their child’s transgender identity” and finding this claim reflects “an expansion of” “parental substantive due process rights that is not supported by precedent”); John & Jane Parents 1, 622 F. Supp. 3d at 130 (rejecting parents’ claim that they maintain “a fundamental right to be promptly informed of” their child’s gender identity).  Because interference with the parent-child relationship and the court’s narrow injunction are leagues apart, the decision below withstands scrutiny.
[brief] Second, [...] ignores, as did the court below and as it would have this Court ignore, the simple and unchallenged fact that an agreement (“the 1892 Agreement”), (DA-61a et seq.), exists between [...] and [...] (by virtue of [...] being the successor to [...]) that provides that the utility “shall be subject to such prudential rules and regulations as the said Township Committee may from time to time prescribe by ordinance or otherwise . . .” (DA-65a) and which subjects the placement of poles to the supervision of the governing body such that it could regulate how and where lines are installed.  In *In re Pub. Serv. Elec & Gas Co.*, supra, there was no independent and ongoing contract right to prescribe rules and regulations pertaining to the location and dimensions of poles.  3.
[brief] The compelling government interest cited in those decisions is the public’s trust in those institutions.  See, e.g., In re DiLeo, 216 N.J. 449, 471 (2014) (“Consideration of the public’s perception of the judiciary is not new to the judicial discipline process.  It lies at the core of the Code of Judicial Conduct. ”).  The penalty of censure is regularly applied in those cases.  See, e.g., In re Perskie, 207 N.J. 275 (2011).  Respondent waived any First Amendment affirmative defense by failing to raise it in either her Answer or Amended Answer.  Even if Respondent had taken the time to make out a coherent First Amendment argument – by applying the appropriate level of scrutiny or referencing any relevant cases – that argument would have failed.  As a result, Respondent’s ill-defined and improperly raised reference to the First Amendment must be disregarded at this juncture.  Lastly, the Appellate Division’s decision in this matter will have widespread consequences in school districts across the State of New Jersey.  If the Commission is allowed to simply ignore well over a decade of its own well-established caselaw, there will no longer be any mechanism for holding school board members accountable for their actions which compromise the school boards on which they sit.  The record below was bursting with direct evidence that Respondent actually compromised the Board.  Appellants ask only that You believe what You can see with Your own eyes.  In light of all the foregoing, Appellants request that the Commission’s August 22, 2023 Final Decision be reversed as being arbitrary, capricious, unreasonable, and not supported by the evidence in the record.
[brief] Appellants’ arguments begin with the assertion that they have not waived their right to arbitration.  To support this contention, they cite basic law which is all premised on binding arbitration provisions included in contracts or agreements.  But that is not the case here, as set forth in the Certification of [...] dated November 28, 2023 (Appellants’ Pa048).  The language here is permissive with the option of proceeding with arbitration, which Respondents do not want to do under the circumstances.  Moreover, this precedent makes clear that parties can only be required to arbitrate if they know they are making that choice as this language does not indicate that there is no option but to proceed by arbitration.  See Atalese v. U.S. Legal Servs. Grp., LP, 219 N.J. 430 (N.J. 2014).  See also County of Passaic v. Horizon Healthcare Services, Inc., 474 N.J. Super. 498 (App. Div. 2023), citing Atalese favorably.  The Trial Court below correctly identified the narrow issue regarding whether Arbitration is mandatory as argued by Appellants or permissive as argued by Respondents.  [...] noted in his decision that while arbitration is generally favored in the law, to be required the language must be unambiguous that a “consumer” is choosing to arbitrate its disputes rather than having them resolved in a court of law (See transcript of the Trial Court Decision, Page 10, Lines 16-19).  Holding that where there is an ambiguity in this regard, whether arbitration was agreed to as required or not, Appellants surrender the right to avoid pursuit of claims in court, language regarding arbitration being unenforceable (See Atalese, supra, and the Trial Court Decision, Page 10, Lines 21-25).  The Court correctly concluded that here, where one party wants arbitration and another doesn’t, and the language is ambiguous regarding whether this is a requirement, it is permissive and not mandatory (See transcript of the Trial Court Decision, Page 12, Lines 5 - 11).  CONCLUSION
[brief] July 2017  Bank Statements a. [...] x0561 “Wire” Account, [...] July 31, 2017 …..Pa145 b. [...] x1401 “Operating” Account, [...] July 31, 2017…………………………………………………………Pa147 c. [...] x0569 “Payroll” Account, [...] July 31, 2017….Pa151 d. [...] x2521 Account, [...] July 31, 2017Pa154 P-34.
[brief] 18  # TABLE OF AUTHORITIES | CASES | PAGES | |----------------------------------------------------------------------|-------| | Anderson et al v. Liberty Lobby, Inc. et al, | 11 | | 477 U.S. 242 (1986) | | | Brill v. Guardian Life Insurance Co. of America, | 11 | | 142 N.J. 520 (1995) | | | Judson v. Peoples Bank & Trust Co., | 12 | | 17 N.J. 67 (1954) | | | Plaza v. Flak, 7 N.J. 21 (Decided 5/28/51) | 4 | ## STATUTES | N.J.S.A. 2A:14-30 | 4,9,17 | ## COURT RULES | R. 4:46-2(c) | 4,10,11 | | R. 1:7-4 | 11 | ## BOOKS | Moore’s Federal Practice, par. 56-15 | 11,12 | | Rules Governing the Courts of the State Of New Jersey (2022) | 12 |
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[brief] [...] asserts that he was unaware of the pending lawsuit until several months later, when he contacted [...] (Da136-137, August 3, 2022 Emails).  [...] then advised [...] it had obtained a default judgment.  Ibid.  Only days later, [...] filed a pro-se motion seeking to vacate [...]’s judgment and reopen the case (Da117, [...] Pro-Se Cert.).
[brief] ”  “In the context of the race notice statute, constructive notice arises from the obligation of a claimant of a property interest to make reasonable and diligent inquiry as to existing claims or rights in and to real estate. ”  *Friendship Manor, Inc. v. Greiman*, 244 N.J. Super. 104, 108 (App. Div. 1990) (citing *Scult v. Bergen Valley Builders, Inc.*, 76 N.J. Super. 124, 135 (Ch. Div. 1962), aff’d 82 N.J. Super. 378 (App. Div. 1964)).