ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] To the extent the “equitable” suggestion relates to closing attorney [...]’s email, sent long after closing, it is clearly inappropriate to charge equitable estoppel, as a matter of law, on the present record.  Mr. [...] handled the real estate transaction, and when he was contacted long afterward, he responded without speaking to Defendants, while he was unclear of the true circumstances.  On a motion for summary judgment, the following testimony of Mr. [...] must be accepted as true:  22.  In their motion, [...] rely heavily upon an email I sent to [...] on July 30, 2018, over a year after [...] purchased Lot 3, to suggest he knew or should have known of the alleged discrepancies in dimensions of Lot 3 or that he should be bound by or punished for that email in some way.  23.  I did not discuss this email, the opinion in this email, or the contents of this email with [...] before it was sent; [...] was not even copied on this email.  24.  The purpose of the email was not to indicate a subdivision would be filed, but rather it was to ascertain [...]’ position on the issue; I did not want to get involved and have [...] spend thousands without first discussing the “discrepancy” with [...].  25.  My email makes it clear there was a substantial question as to whether the “deficiency” actually existed and if so, whether it was on the Zagranichny Lot or Miller Lot.  The email expressly states, “No one is really sure in reality on whose lot the deficiency exists. ”  26.  I later learned [...] was not willing to file any subdivision relating to the property, he wanted to keep his 66.3 feet, and I did not pursue the issue past my initial email.  (678a).  Further, there was no evidence any action was taken in reliance on Mr. [...]’s comment, nor that it prejudiced Plaintiffs in any way.  If the trial court’s comment and suggestion regarding his email was a “finding of fact and conclusion of law,” and was truly an independent basis for the granting of summary judgment to the Plaintiffs, then it was clear error and cannot stand.
[brief] PRELIMINARY STATEMENT .................................................................  1  PROCEDURAL HISTORY ........................................................................  2  STATEMENT OF FACTS .......................................................................  3  LEGAL ARGUMENT ...............................................................................  4  POINT 1 ..............................................................................................  4  THE TRIAL COURT ERRED BY FAILING TO ANALYZE PLAINTIFF’S UNCLEAN HANDS (Da050 – Da072, not analyzed by the trial court)  POINT 2 ..............................................................................................8  THE TRIAL COURT ERRED BY FAILING TO DISMISS THE COMPLAINT DUE TO STATUTE OF LIMITATIONS (Da072)  POINT 3 .............................................................................................17  TRIAL COURT ERRED BY FAILING TO DISMISS THE COMPLAINT DUE TO EQUITABLE ESTOPPEL, FRAUD, WAIVER, LACHES, AND FAILURE TO ADHERE TO THE STATUTE OF FRAUDS (Da050 – Da072, not analyzed by the trial court)  CONCLUSION .................................................................................... .24  | Authority Number | Brief Page | |------------------|------------| | Court Rules: | | | Rule 2:10-2 | 6 | | Rule 4:37-2 | 9 | | Rule 4:40-1 | 9 | | Statutes: | | | N.J.S.A. 2A:14-7 | 8 | | N.J.S.A. 25:1-2 | 24 | |  Case Law: | | | Benipal v. Tri-State Petro, | 9 | | 2019 N.J. Super. Unpub. LEXIS 26, *5 | | | Benipal v. Tri-State Petro, | 14 | | 2022 N.J. Super. Unpub. LEXIS 1437, *6, 2022 WL 3363909 | | | Bonnco Petrol, Inc. v. Epstein, | 19 | | 115 N.J. 599, 608, 560 A.2d 655, 659, 1989 N.J. LEXIS 88 | | | Borough of Princeton v. Bd. of Chosen Freeholders of Mercer, | 4, 5 | | 169 N.J. 135, 158, 777 A.2d 19, 32, 2001 N.J. LEXIS 809, *44 | | | Casamasino v. City of Jersey City, | 17 | | 158 N.J. 333, 354, 730 A.2d 287 (1999) | | | C.E. & B. v. Elizabeth Pub. Sch. Dist., | 7 | | 2023 N.J. Super. Unpub. LEXIS 1206, *11, 2023 WL 4571437 | | Cnty. of Morris v. Fauver, 153 N.J. 80, 105, 707 A.2d 958 (1998)
[brief] [...]’s Failure to Provide a POA Evidencing that the Consent of Surety is Binding on and Enforceable Against [...] Renders the Consent of Surety Materially Defective and Incapable of Being Cured (A 62)  [...] further argues that [...] should have accepted its after the fact explanations and supplementary documents in support of the proposition that the Consent of Surety was intended to bind the surety company.  However, the relevant time period within which to measure the validity of the Consent of Surety is by what was in the record at the time of bid submission.  [...] is prohibited by controlling authority from considering amendments or corrections to the Consent of Surety after the fact and, in this case, failure to contemporaneously submit a POA that binds the surety is tantamount to submitting no Consent of Surety at all.  The agency decision rejecting the bid was thus correct as a matter of law.
[brief] The trial court concluded that the legislative intent of the ordinance was for the land use Board to make a determination of whether the revised grading was done for the design, or purpose of allowing increased building height which is subject to review by the trial court using the “arbitrary, capricious and unreasonable” standard of review.  (Pa 15).  Accordingly, the trial Court found the Board and applicant’s professionals were credible in that the purpose of the revised lot grade was for stormwater management and sanitary sewer, rather than designed for a purpose or purposes which allows increased building heights.  (Pa 15-16).  Therefore, the trial Court found that the Board properly interpreted the Building Height ordinance, and affirmed the Board Resolution below.
[brief] Defendants argue that the Final Judgment issued to the [...]’ predecessor, [...], in 1949 does not support a claim for an implied easement.  (Db23-Db24).  According to Defendants the only three inferences to be drawn from that judgment are that (1) if oceanfront homeowners in 1949 believed they had implied easements, they would have included express language in the judgment making that clear; (2) the failure to do so means they did not think they had such access; and (3) if they did not think they had such access, the [...] do not have such access now.  (Db24).  These “inferences” are nonsensical, and are nothing more than Defendants arguing that because there is no express easement, there is no easement at all.  Instead, the proper inference to draw from the 1949 Final Judgment, which the trial court correctly did, is that the failure to mention the easement rights of oceanfront homeowners while specifically mentioning easement rights for harborside homeowners was that it was not obvious nor assumed how the harborside homeowners would access the beach.  Thus, it was necessary to spell out such access rights.  (See Da557-Da558).  The fact that the oceanfront homeowners were not mentioned in that judgment further supports the idea that their direct access was so well understood to exist that it need not be mentioned in the judgment.
[brief] ”  *Cole*, 215 NJ at 275.  See also *Barr v. Bishop Rosen & Co.*, 442 N.J. Super. 599, 605 (App. Div. \(^1\) [...] has not asserted that the arbitration clause in the contract at issue is unenforceable.  Therefore, enforceability of the arbitration provision in the Parties’ contract is not at issue.  In *Cole* the Court further observed: “Nonetheless, the factual findings underlying [a] waiver determination are entitled to deference and subject to review for clear error. ”  *Id.*  Upon engaging in the *de novo* review process and upon consideration of the legal authorities discussed below, [...] contends that the only reasonable conclusion that can be reached is that he has not waived his right to arbitration and it was clear error by the lower court to find otherwise.  **I.
[directive] If the court grants the motion for leave to appeal, it should direct the parties to file  We recognize that the Appellate Division, in its order denying defendant’s 10 application to file an emergent motion, noted that motions for leave to appeal related to pretrial detention “are already expedited. ”  32 briefs -- and transcripts, if necessary -- on an expedited basis, and render a materials.11 decision within 5 days of getting those Division’s judgment  Parties can ask this Court to review the Appellate on an emergent basis.
[brief] The Commission’s Determination That The Complaint Arose From a Union Election Dispute Was “Irrelevant” To The Jurisdictional Issue Was Arbitrary, Capricious and Unreasonable.  Permitting the jurisdiction authorized by the Commission in this case raises significant risks of interference by State agencies in union operations, which is unlawful under the New Jersey Employer-Employee Relations Act (“NJEERA”).  See N.J.S.A. 34:13A-5.3(a)(2).  Here, all undisputed facts demonstrate that the alleged State Policy violation arose out of, and involved exclusively, activity in connection with a union election campaign.  Such campaign activity is protected union activity under the NJEERA, N.J.S.A. 34:13A-1, et seq., and is regulated by union bylaws.  Under the undisputed facts in the record, [...] improperly involved itself in a dispute arising from an election campaign for the Office of President of a local union that represents [...] workers.  Once it was clear to [...] that the allegations arose from and solely involved a union election campaign, it should have ended its investigation.  The [...] determined that it was irrelevant that the allegations arose from – and entirely involved – a union election dispute because [...] was investigating an allegation of intentional discrimination by [...] against a State employee.  (Aa10).  That conclusion improperly elevates the investigation of allegations of State Policy violations, established pursuant to a [...] regulation, over the rights, protections and overall scheme established by the Legislature in the NJEERA.  Indeed, the [...] makes no attempt to harmonize this statute with the policies animating the State Policy regulations.  When a State agency’s EEO Office receives a complaint that appears on its face to involve union operations – such as a union election – and does not have any obvious connection to a “State Workplace” or “State business” – it should close its investigation without issuing any findings.
[brief] Nieder v. Royal Indem. Ins., 62 N.J. 229 (1973)  ..............................................................................48  Noren v. Heartland Payment Sys., Inc., 448 N.J. Super. 486 (App. Div. 2017)....................................................44  Packard-Bamberger & Co., Inc. v. Collier, 167 N.J. 427 (2001)  .............................................................................43  Pedersen v. Bio-Medical Applications of Minn., 992 F. Supp. 2d 934 (D. Minn. 2014), aff’d 775 F.3d 1049 (8th Cir. 2015) ....................................................................................25
[directive] A defendant can apply to and be accepted by Drug Court more than one county.  This in of policy ensures that all the defendant's pending cases are resolved one county by one judge in prior to Drug Court entry, pursuant to Rule 3:25A ("Consolidated Dispositions").  Such consolidation ensures that treatment can begin as quickly as possible.  When there a victim is involved, the judge should consider the victim's rights and an opportunity to be heard prior to consolidation.  Questions regarding this policy may be directed to [...], Statewide Drug Court Manager via email at [...] or by telephone at [...].  Attachment (Policy)
[brief] (Da79)  [...] wrote that he has seen [...] “learn to control himself whenever he gets upset, express himself more,” and that “he has grown, matured, and developed into a completely different person from the last time he stood in the court room. ”  (Da79-80)  [...] believes that the deterrent and punitive aspects of incarceration have succeeded in pushing [...] to change to make sure he lives as a law-abiding citizen and never again returns to prison.  (Da79)  [...] spoke at his resentencing, took responsibility for his conduct, and expressed remorse, stating that on September 17 he made the biggest mistake in his life—a mistake that could have been prevented and one that he wishes with all his might that he could take back.  (8T 65-23 to 66-23)  He expressed that he has tried to take advantage of every opportunity in prison to better himself and to learn from his mistakes; he is striving to earn an associate’s degree and wants to become a youth mentor when he is released to help steer kids away from making the same bad decisions that he made.  (8T 66-15 to 67-8)  LEGAL ARGUMENT POINT I RESENTENCING IS REQUIRED BECAUSE THE TRIAL COURT:
[brief] DEP regulates waterfront development pursuant to the CZM Rules, which, among other things, endeavor to protect “the coastal ecosystem, an area rich in natural features and a vital component of the State’s tourist industry. ”  Tumino v. Long Beach Tp., 319 N.J. Super. 514, 524-25 (App. Div. 1999) (citing 22 N.J.R. 1193 (April 16, 1990).  Proposed in-water dock development is governed by the Docks Rule, a general water area rule which regulates fixed and floating structures “used for recreational fishing or the mooring of boats or jet skis used for recreation and fishing. ”  N.J.A.C. 7:7-12.5.
[brief] Appellant also received opioids from [...], his primary doctor.  [Pa113-Pa116; 4T111:9-23].  Appellant testified that he only received oxycodone from [...] on one (1) occasion because [...] was not available.  [4T111:9-23].  However, Appellant filled a 15-day prescription for oxycodone from [...] on March 1, 2018, filled a 15-day prescription for oxycontin from [...] on March 2, 2018, and filled a 3-day prescription for oxycodone from [...] on March 4, 2018.  [Pa114].  Between January of 2018 through August of 2018 alone, Appellant had prescriptions filled for oxycodone, oxycontin, promethazine codeine syrup (an opioid), oxycodone-acetaminophen (contains opioids), and hydrocodone-acetaminophen (also contains opioids).
[directive] Poder Judicial de Nueva Jersey  New Jersey Judiciary Formulario suplementario para una declaración de culpabilidad en causas sujetas a la Ley Contra Puestas en Libertad Prematuras (NERA) (N.J.S.A. 2C:43-7.2)  Supplemental Plea Form for (NERA) Cases (N.J.S.A. 2C:43-7.2)
[brief] The Districts contract with an outside vendor known as [...] (“[...]”) to draft and advise on policies and regulations.  See Da57, Para. 4 and Da234, Para.4.  [...] has been providing policy and regulation consulting services to over 570 New Jersey school district since 1972.  According to their website their “clients include more than 570 school districts…”  Id.  Nearly a decade ago, [...] began recommending that boards of education adopt transgender student policies.
[brief] SETTLEMENT NEGOTIATIONS**  On December 20, the third day of the hearing, defense counsel approached the County Counsel and County Administrator relative to the possibility of a settlement.  (Id. at ¶ 25).  Settlement discussions ensued between the parties, during which Defendant was represented by two attorneys, and also had family members present and available for consultation during the course of the negotiations.  (Id. at ¶¶ 26-30).  Following negotiations, counsel went on the record to memorialize a settlement reached by the parties.  (Id. at ¶ 31; Pa31-Pa38, Transcript of Dec. 20, 2022 Memorialization of Settlement on Record).  THE DECEMBER 20, 2022 MEMORIALIZATION OF THE SETTLEMENT ON RECORD
[brief] ”  State v. Randolph, 210 N.J. 330, 333 (2012).  In State v. Jaffe, our Supreme Court held that, in imposing sentence, “the trial court should view a defendant as he or she stands before the court on the day of sentencing.  This means evidence of post-offense conduct, rehabilitative or otherwise, must be considered in assessing the applicability of, and weight to be given to, aggravating and mitigating factors. ”  220 N.J. 114, 124 (2014).  The Court’s failure to consider evidence of [...]’s positive prison record and post-rehabilitative conduct as weighing in favor of mitigating factor nine and against aggravating factors three and nine constituted a failure to sentence [...] as he stood before the Court on the day of sentence and violated Randolph and Jaffe.
[brief] 9 Statutes & Other Authorities: Cal. Ins. Code § 533 ..............................................................................................................  19, 20 N.J.S.A. 34:15-1 .................................................................................................................. 14, 17 N.J.S.A. 34:15-7 ....................................................................................................................  14 N.J.S.A. 34:15-8 ................................................................................................................ passim N.J.S.A. 34:15-72 ................................................................................................................ passim N.J.S.A. 34:15-77.8 ..............................................................................................................  29  N.J.S.A. 34:15-87 ..............................................................................................................  12, 13, 14, 15, 16, 22 N.J.S.A. 34:15-90 ................................................................................................................  24 N.J.S.A. 34:15-90.1 ..............................................................................................................  24  Rule 4:6-2(e) .......................................................................................................................  7, 8, 9, 11  PRELIMINARY STATEMENT
[brief] Further discussion was had regarding the liability issues and *Mockler* when counsel for Plaintiff/Respondent requested a charge stating that the Defendant was following too closely, the following day.  (T4 8-4 through T4 13-6).  There was further discussion and confusion about the burden in light of the court’s decision denying the request for a charge consistent with Mockler.  (T4 10-13 through T4 13-20).  The Mockler charge provides that legal mechanism and instruction.  Counsel for the Appellant requested a charge pursuant to Mockler v. Russman, 102 N.J. Super. 582 (App. Div. 1968) at the October 5, 2023 charge conference.  Specifically, the Appellant requested a charge consistent with Mockler.  The Mockler case involved a motor vehicle accident wherein Plaintiff Mockler was injured when a school bus owned by Defendant Russman and operated by [...] struck the rear of the Plaintiff’s vehicle.
[brief] Under Burt, there is a significant exception to joint and several liability imposed by N.J.S.A. 2A:15-5.3(a).  Although in most instances a defendant which is found 60% or more responsible for plaintiff’s injuries can be held responsible to satisfy 100% of the verdict, under *Burt*, a non-settling defendant cannot be held responsible for the absent defendant’s allocation, *even* if the non-settling defendant’s exceeds 60%.  *Burt*, 339 N.J. Super. at 308.  Consequently, *all parties* and the Court understood, leading into the trial, that [...] would be responsible *only* for his allocated share of negligence, *even* if that exceeded 60%.  Accordingly, plaintiffs attempted to vindicate the *Burt* defendants’ conduct.  For example, plaintiffs’ expert, [...], testified that [...] did not misread the relevant CT scan:  A  And later on there were statements made by some individuals that [...] had made a mistake and that there was a leak.  So I wanted to see it myself.  I know how to read CTs.  And I looked at it, blew up the images in question.  And I did not see a leak.  Q  Okay, so your opinion based upon your personal review of the CAT scan imaging was that [...]’s interpretation of no leak was accurate?  A  Yes.  [(7T44)].  The trial court prevented [...] from impeaching plaintiffs with evidence of prior averments regarding the culpability of [...].
[brief] ” (Pa61a-Pa62a (Complaint, ¶¶238, 240)).  The allegations to which Plaintiff refers in Counts Six and Seven are alleged in paragraphs 131 through 210 of the Complaint.  (See Pa46a to Pa55a).  Plaintiff alleges that (a) [...] complained that during the 2019-2020 school year, Plaintiff asked her to change a grade in [...]’s library media class (Pa49a, ¶146); (b) [...] alleged that Plaintiff “teamed with a Board member as part of a claimed bullying attack as an attempt to tarnish Defendant [...]’s reputation (Pa51a, ¶¶166-167); (c) [...] complained that in the Fall of 2020, Plaintiff was not present in the virtual classroom when she should have been and did not leave the in-class students with adequate activities to occupy them once they completed their work (Pa49a, ¶¶152-153); and (d) [...] “accused Plaintiff of fueling an anti-special class agenda, and targeting Defendant [...] as a result (Pa51a, ¶163).  Counts Six and Seven thus allege that defendants [...] and [...] aided and abetted the [...] in discrimination in violation of the LAD, by being part of the body that authorized an investigation of the [...] complaints as alleged in paragraphs 131 through 210 of the Complaint.
[brief] (Pa142).  This procedural deficiency, alone, would justify dismissing the complaint in its entirety.  Ibid.  Nevertheless, [...] addressed the merits of the complaint “because any litigation sounding in OPRA or the common law concerning the post-complaint denial would be meritless[.]”  Ibid.  He held that [...] had “no legal right under either OPRA or the common law” to engage in the DNA testing of the envelopes, stamps, ladder, and piece of lumber from the Lindbergh case.  (Pa140).  [...] specified that [...]’s DNA testing request on the items constituted an “extraordinary remedy” that “would permanently alter the conditions of the items. ” (Pa153).  Furthermore, due to the nature of the chemical DNA tests, [...] highlighted that [...]’s expert did not contest the fact that the testing will result in permanent alteration and possible ---  5  Despite the court’s decision on the merits of [...]’s requests, on March 2, 2023, [...] sought to challenge the December 15, 2022 denials to the [...].  (Ra19-24).  damage to the requested items.  *Ibid.*  Therefore, [...]’s request conflicted with [...]’s responsibility to protect the historical items from damage or mutilation.  *Ibid.* (citing E.O. 110).  As the court recognized, “OPRA is not the vehicle by which a citizen can march up to a museum and demand that the custodians of historical artifacts and documents surrender the State’s treasures for analysis, alteration, and destruction. ” (Pa152).  The court also determined that [...]’s request was inconsistent with the “goal of the common law right of access. ”  *Ibid.*  [...] could not point to any language in the common law right of access contemplating “testing or manipulation such that a government record may be permanently altered or damaged,” and “[a]ltering or destroying government records does not serve the common law’s overarching goal of transparency,” *ibid.*, and “depriving the public access to these items in their original state does not serve the public interest. ” (Pa153-54).  This appeal followed.