ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] This Court should (1) hold that trial courts must screen jurors for potential bias through targeted voir dire questions and (2) remand for the appointment of a Special Adjudicator (a) to propose appropriate instructions and guardrails governing expert testimony and (b) to draft a comprehensive jury charge regarding fingerprint evidence to be recommended to the Committee on Model Criminal Jury Charges.  Upon remand, amicus [...] will participate in developing the record for the Special Adjudicator to accomplish this mandate.  These reforms will help to safeguard a defendant’s constitutional right to a fair trial and ensure that New Jersey courts administer fair and impartial justice to all individual defendants.  Dated: August 12, 2024
[brief] *Rosario*, 443 N.J. Super. at 353–55.  In this case, there are mountains of evidence showing the defendants’ actual intent to defraud the plaintiff by transferring the Property from [...] to [...], which include the following:  a.  [...] and [...] are one and the same.  [...] owned [...] and had exclusive control over the entity.  b.  [...] had the title of the Property after the transfer.  c.  The transfer was deliberately concealed from the plaintiff.  d.  The value of the property was given to [...] in a nominal value, substantially lower than the fair market value of the Property.  e.  The transfer occurred shortly after 20-years of the erroneous deed in 1998.  In their answer, the Defendants presented an affirmative defense and counterclaim, claiming that [...] was a Bona Fide Purchaser for Value.
[brief] There is no cause to say that Plaintiffs unduly delayed the proceedings of the case by withholding an Order of Satisfaction if Plaintiff could not, for reasons stated above, do so without being paid in full.  Defendants rather than Plaintiffs were protracting the settlement of this matter by refusing to pay the amount ordered on 8/28/20 with interest.  The trial court abused its discretion in refusing to award Plaintiff with attorney’s fees associated with motions brought to enforce litigant’s rights.  Plaintiffs were also entitled to prevailing party attorney’s fees after prevailing on the enforcement motion because it was Plaintiffs' 7/18/22 motion (1a) to enforce that acted as a catalyst in the successful enforcement order.  Defendants contest this fact under the guise that they had been all along attempting to comply with this Court’s 5/18/22 affirmation of the 8/28/20 Order, though this is a mischaracterization of the proceedings.  Defendants do not contest, and in fact confirm in their counter-statement of facts (Db-1), that following the oral arguments spurred by Plaintiffs’ 7/18/22 enforcement motion, on 9/6/22, “Defendants complied with the Court’s August 29, 2022 Order by providing all responsive records in their possession with respect to the requested special education documents” (Db-7).  This causal sequence of events unopposed by Defendants affirms that Plaintiff is the prevailing party in accordance with Mason v. City of Hoboken, 196 N.J. 51 (2008), and is therefore entitled prevailing attorney’s fees.
[directive] Disorderly Persons  $500 to $2,500 10% permissible  Actor attempts to or purposely or knowingly or recklessly causes bodily injury to another; or negligently causes bodily injury to another with a deadly weapon; or attempts by physical 2C:12-1a(1)(2)(3)  Simple Assault menace to put another in fear of imminent serious bodily injury, disorderly persons offense; Petty Disorderly if fight or scuffle entered into by mutual consent, petty disorderly persons offense.
[brief] Then we have the Email dated April 17, 2020, by [...] to many of the witnesses who testified for the [...]:  (EXHIBIT 9, P. 37a)  “Hi, again all, I regret to have to inform you (emphasis added) that we received medical documentation this afternoon, which placed [...] on Temporary Workers’ Compensation effective April 15, 2020. ”  The Email goes on to say that:  …”  I am going to place everything on hold until I have had an opportunity to review the facts.  I’ll let you know how we will proceed at some point next week. ”  So, from her testimony we know that [...] knew that Covid-19 was definitely a factor in this case and she knew [...] feared Covid-19.  She knew that as of April 15, 2020, [...] could not return to work due to his work-related injury.  She knew the Commissioner of [...] gave [...] until April 16, 2020.  She had not yet made a decision to terminate [...] as of April 17, 2020.  But then [...] decides to bring the charges to terminate [...], saying he abandoned his job on April 13, 2020.  Most telling in her Email is how she begins it, “I regret to have to inform you ...”  It is clear [...] wanted to terminate [...], and that these words show her decision to deny the leave of absence was “unreasonable”.  [...] contends that these facts show his approval of a leave of absence or an extension was unreasonably denied.
[brief] The arguments at DAb15 to DAb22 and DBb39 to DBb47 do not adequately address the plain language of the MLUL notice statute, N.J.S.A.40:55D-12.  The location where the application materials can be reviewed is one of the few requirements expressly set forth in the statute.  The statute does not allow the Applicant to publish notice of where a sign is located directing people to the correct location.  See discussion in Point II of the Plaintiff-Appellant’s Merit’s Brief at Pages Pb26 through Pb30.  It is submitted that the Court below erred in its analysis of the jurisdiction issue based on the failure of the notice to properly identify the place where the plans and relevant documents regarding the application could be inspected by members of the public.
[brief] *Id.* at 638.  Rose demonstrates that the trial court’s failure to address [...]’s request to go pro se constitutes structural error requiring reversal.  Here, as in Rose, “well in advance of trial,” [...] “clear[ly] and unequivocal[ly]” indicated he was not satisfied with counsel’s representation and requested to represent himself.  Rose, 458 N.J. Super. at 621-22, 628.  (See 1T 33-13 to 18)  As in Rose, the trial court did not hold a hearing on [...]’s request to go pro se, instead inappropriately “deflect[ing]” defendant’s request by “requiring defendant to submit his request in writing.
[brief] For the reasons expressed above, the [...] Defendants ask this Court to affirm various Orders of the trial court, including the following:  1.  Order of August 28, 2020  Dismissing Plaintiffs’ Complaint against Defendants [...], Esquire and [...] (164a-185a); 2.  Order of Order of January 25, 2022  Granting Sanctions Against Plaintiffs and Awarding Counsel Fees to Defendants [...], Esq., and [...] (190a-203a); 3.  Order of June 30, 2022, Denying Plaintiffs’ Motion to Reconsider the Order of January 25, 2022, with respect to Defendants [...], Esq. and [...] (209a-232a); and 4.  Order of June 30, 2022  Granting Defendants [...], Esq. and [...]’s Motion for Attorney Fees (209a-232a)  [...]  Attorneys for Defendants/Respondents, [...], Esquire & [...]
[brief] ”  Perez v. Sky Zone LLC, 472 N.J Super. 240, 247 (App. Div. 2022).  A trial court’s order dismissing an action without prejudice or staying it in favor of compelling or referring to arbitration is subject to de novo review.  See supra, Pt. I.  In reviewing such orders, appellate courts are “mindful of the strong preference to enforce arbitration agreements, both at the state and federal level. ”  Hirsch v. Amper Fin. Servs., LLC, 215 N.J. 174, 186 (2013).  An agreement to arbitrate is valid and enforceable in the employment context when it includes a “concrete manifestation of the employee’s intent as reflected in the text of the agreement itself. ”  Skuse v. Pfizer, Inc., 244 N.J. 30, 48 (2020).  Thus, “when a party enters into a signed, written contract, that party is presumed to understand and assent to its terms, unless fraudulent conduct is suspected. ”  Stelluti v. Casapenn Enters., LLC, 203 N.J. 286, 305 (2010).  With respect to contractual waiver-of-rights provisions like arbitration clauses, the agreement must reflect that the parties “agreed clearly and unambiguously” to the terms and must “explain that the plaintiff is giving up her right to bring her claims in court or have a jury resolve the dispute. ”  Flanzman, 244 N.J. at 137.  Although “no particular form of words is necessary,” the arbitration agreement must, “at least in some general and sufficiently broad way,” explain that “arbitration is a waiver of the right to bring suit in a judicial forum. ”  Perez, 472 N.J Super. at 248.  Here, a valid agreement to arbitrate unequivocally existed.  [...] admitted that she “acknowledged”—signed—documents including the Agreement during her onboarding process.  (Pa000136-137).  The Agreement clearly, conspicuously, and unambiguously stated that [...] agreed to relinquish the right to have a judge or jury decide the employment discrimination claims she raised in her Complaint.  The trial court’s decision to grant Respondents’ motions and dismiss [...]’s lawsuit without prejudice in favor of private arbitration because of its finding that the Agreement was “valid on its face” and “clearly enforceable” was proper.
[brief] Respondent is producing same as part of Respondent’s Appendix, Dal. original mortgage loan from [...].  The evidence revealed that although [...] received the payoff funds, [...] inexplicably returned the funds to [...] because [...]’s mortgage servicer could not locate the borrower’s account number.  *Id.* at 12.  This error by the servicer, agent of [...], resulted in the payoff funds disappearing and the mortgage not being discharged.  [...] subsequently filing a foreclosure action.  *Id.* at 1-2.  Although [...] argued the UCC did not apply, the trial court disagreed.  In granting summary judgment in favor of the borrower, the trial court held that the borrower complied with the UCC when the funds were received by [...]’s servicer.  *Id.* at 6.  At that point, once the funds were received, the transaction was concluded, and [...] was required to accept the funds.  In terms of placing blame and accountability, the judge found that plaintiff's predecessor’s “imprudent business judgment . . . result[ed] in the loss of the returned funds. ”  Consequently, given the court’s findings of fact and after balancing all of equitable considerations, the trial judge concluded that "[e]quity demands discharge of the original mortgage. ”  *Id.* at 6-7.  The Appellate Division affirmed the trial court’s ruling in *Vezeriannis* that the funds transfer was completed once the funds were received by the [...]’s servicer, that [...]’s servicer made the imprudent business decision to return the funds, and that the servicer was responsible for the resulting loss of the funds.  *Id.* at 6, 15.  This Court observed that the borrower was innocent and nothing the borrower did or failed to do contributed to the loss of the payoff funds.  *Id.* at ¶ 14.  In addition, the Court noted there was no evidence suggesting the borrower had actual notice that [...]’s acceptance of the payoff funds was conditioned on the wire transfer referencing a certain account number.  *Id.* at ¶ 14.  Ultimately, this Court agreed with the trial court’s decision that equity required the discharge of [...]’s mortgage.  *Id.*  **III.
[brief] (9T4-17 to 21).  Defense counsel went over all the relevant evidence presented, and stated that, while there was no “DSM\(^5\) psychiatric diagnosis of a permanent mental illness, it’s obvious he was laboring under a mental disorder at the time. ” (9T11-18 to 20).  The State countered that, while defendant’s bizarre behavior was “part of the case.  . . . does it rise to a mental disease or defect?  Is it mental illness and I would submit to you there’s no evidence in the case to support that. ” (9T16-7 to 11).  The trial court ultimately refused to include a diminished capacity charge in the final instructions, holding (1) expert testimony and medical records were required for such a charge to be included, (2) it might confuse the jurors into thinking [...] was asserting an insanity defense, and (3) the murder charge adequately instructed the jury about the requisite mens rea.
[brief] (Pa920 [285:16-21])  She further affirmed that [...] maintained exclusive control and management of all the common areas of the shopping center, which included the parking lots, the parking spaces, the sidewalks and all other areas:  Q: Okay.  Would you agree, based on this portion of the lease, this paragraph, it makes it clear that you, as the lessor, [...], you maintained exclusive control and management of the common areas of the shopping center, which included the parking lots, the parking spaces, the sidewalks, and all other common areas?  A: Yes.  [Pa927 (292:12-19)].  As such, [...] was exclusively responsible for any snow or ice removal in the parking lot, including the spot where Plaintiff fell.
[brief] *See Cedeno*, 163 N.J. at 479 (finding allegations that the defendant caused Cedeno to have a heart attack and, then, harassed him while he on the floor was having a heart attack were insufficiently egregious to tip the balance in favor of Cedeno); *Crespo*, 366 N.J. Super. at 401-02 (dismissing on summary judgment “[b]ecause there are no “aggravated sexual harassment” or other egregious circumstances which exist here”).
[brief] A.  [...] Affirmatively Aided and Abetted [...] and was Not Merely an Innocent Bystander to the Breach by [...]  [...] also argues that it did not breach any contractual duties to Plaintiff because its duties were very narrowly confined, as per the small print above the signature block on the PSA.  (See [...] Br., at 11).  Yet, a review of the PSA as a whole reflects that [...] undertook various duties, including as an escrow agent and as the title company, and those duties ran to both Plaintiff and [...].  (Pa90-128, PSA §§ 3.2, 4.2, 4.3, 10.1, 11.1, 11.2, 17.1(a), 17.1(b), 18.14; Pa91-62, PSA § 1.1; Pa90-128, PSA §§ 6.3, 9.2, 10.2, 10.3).  [...]’s duties under the PSA must be construed based upon the whole contract, read in harmony.
[brief] Plaintiff testified clearly that the only person she ever raised issues to about anything illegal or against public policy was [...]:  Q.  So you had -- I just want to make sure I understand.  Gl[e]nda is the only person you made reports to about anything that you thought was either illegal or against public policy -- A. Yes. Q. -- or breaking the rules? Correct?  A. Correct.  Q.  There’s nobody else you made reports to at the defendant company; right?  A.  Not that I'm aware of, ma’am.  (Appx 537-38 at ¶67 (emphasis added)).  In addition, while Plaintiff alleged she raised various issues to [...] during her employment, Plaintiff testified she *does not know when that occurred*:  Q.  And when’s the first time you can tell me for sure that you raised an issue to Gl[e]nda?  A.  I don't recall.  Q.  So you can’t say for sure that you raised an issue to Gl[e]nda before your dayshift at [...] ended?  A.  Yeah, *I cannot say.  I don't recall.*  ***  Q.  But you don't remember telling her November '19?  A.  *I don’t recall when I told her.*  Q.  And the same thing with the other issues you listed that you reported to Gl[e]nda, you don't remember when you told her; right?  A.  Correct.  Q.  And so it might have been before; it might have been after the [...] dayshift; right?  A.  I don’t remember -- yes.  Correct.  ***  Q.  And when did you raise misuse of medication to Gl[e]nda?  A.  I don’t recall the date.  Q.  Was it while you were still on dayshift at [...] -- regular dayshift at [...]?  A.  I don't recall.  (Appx 537-38 at ¶68 (emphasis added)).  While Plaintiff purported to deny these facts, they are direct quotes of her testimony and Plaintiff failed to provide a citation to the portion of the motion record that established that the fact was in dispute.  Accordingly, such denial is not proper and the facts (consisting of quotes from Plaintiff’s testimony) were deemed admitted.
[brief] D.  The Limited Attorney Exemption is Unconstitutionally Overbroad (T. at 24:7-27:7).  Defendants’ first contention that the Limited Attorney Exemption is not overbroad because it “does not outright prohibit any activity by attorneys” derives from their position that the Limited Attorney Exemption does not punish or interfere with attorneys, but rather protects and insulates them from liability.  Nothing can be further from the truth.  The undisputed facts are that the Act (and its predecessor) initially allowed attorneys to perform any amount of debt adjustment services, but that the Act was later amended to allow attorneys to perform only some amount of such services.  Those attorneys performing more than some amount of such services can now be convicted of a crime and otherwise penalized.  A statute that is amended to restrict the amount of services that an attorney can perform, and to criminalize the conduct if the amount exceeds a certain threshold, is not a form of insulation or protection by any sense of the definition of these words.  And the overbreadth test does not require that an activity be barred in its entirety, only that constitutionally protected activity be prohibited in any way, shape, form or amount.  Defendants also contend that the trial court correctly disregarded all of [...]’s deposition testimony, in which its representative confirmed that the Act could apply to the attorneys who are the foremost experts at performing debt adjustment services, and to the attorneys who always satisfy their clients in assisting them with debt.  Left unanswered by Defendants is how a proscription against such attorneys from being “principally engaged” in performing such services leaves consumers in a better position, i.e., advances the purpose of the Act, than having no proscription against attorneys -- already regulated by the Supreme Court -- at all.  [...] even further admitted that it could not identify a single policy benefit through enforcement of the Act as written.  In light of such damning testimony, Defendants argue that [...]’s testimony is not binding as Plaintiffs only cited to a court rule to support this proposition.
[brief] A nuisance per se signifies “that danger inheres in the activity itself at all times, so as to require special precautions to be taken with regard to it to avoid injury.  It means more than simply danger arising from the casual or collateral negligence of persons engaged in it. ”  *Majestic Realty Assocs.*, 30 N.J. at 435.  Generally, per se nuisance activities involve “the use of instrumentalities, such as fire or high explosives, which require constant attention and skillful management in order that they may not be injurious to others ....”  *Restatement (Second) of Torts* § 427 comment a.  No facts or law exist to warrant the application of this exception.
[brief] THE ¾ MILE ENCROACHMENT INTO THE RESTRICTED AREA IS INSIGNIFICANT TO THE PROTECTION OF [...]’S LEGITIMATE BUSINESS INTERESTS.  [...]’s opposition does not comment at all on the most pressing issue before the Court.  The [...] is 19.24 miles on a straight line from [...]’s [...], where [...] spends 70% of his time and is 17.22 miles on a straight line from [...], where [...] spends one-hour per month.  (Pa6).  As part of his potential employment with [...], [...] would relinquish his privileges at [...].  The [...] is more than 20 miles from all other locations that comprise the Restricted Area.  This case boils down to a three-quarter mile encroachment.  [...] argues that its 20-mile radius, 3,721 square mile Restricted Area is reasonable and necessary to protect its business interest but does not comment upon the actual facts of this case—specifically, whether a 19.24-mile radius or a 3,720 square mile Restricted Area would also adequately protect its business interests.  The answer to that question is obviously a resounding yes, but [...] conveniently steered away from it throughout its opposition.  Squabbling over a .76-mile encroachment into a 3,721 square mile Restricted Area does not seem to be the conduct of an entity focused on seeking to protect legitimate business interests, but is instead more indicative of an entity carrying out a personal vendetta against a departing, highly skilled and credentialed physician.  The problem with that, however, is that the effects of such conduct not only unreasonably harm [...] and his ability to find alternate employment, but also unnecessarily puts his current and prospective patients in the crosshairs of [...]’s crusade against [...].  Because [...] has not advanced any arguments that they would suffer any harm by [...]’s employment in the [...], this Court should respectfully invoke its authority to “blue-pencil” the Restrictive Covenant in a manner that would permit [...]’s employment in the [...].
[brief] (4T95-12 to 16).  He watched surveillance video and then searched the area where the revolver was found for latent prints or ridge detail.  (4T95-22 to 96-10).  [...] noticed fingermarks on the top of the deck box that was in the area.  (4T96-19 to 21).  [...] did not attempt to lift any fingerprints because the area was not conducive to fingerprint recovery, but he collected swabs for possible contact DNA.  (4T97-3 to 14).  [...] then examined the fence and applied black fingerprint powder to the top of the fence.  (4T99-13 to 17).  [...] noticed a friction ridge, but it was insufficient for fingerprint comparison.  (4T100-2 to 20).  As a result, [...] only collected a swab of the area for possible contact DNA.  (4T100-21 to 25).
[brief] The defendants also cite unpublished opinions in support of their argument that they are relieved of the affirmative duty owed to an invitee when there is an allegation that the dangerous condition was either open and obvious or noticed by the plaintiff at an earlier time.  However, the unpublished opinions do not have controlling or precedential value.  *Building Materials Corp. of America v. Allstate Ins. Co.*, 424 N.J. Super. 448, 465 (App. Div. 2012), *certif. denied*, 212 N.J. 198 (2012), citing, *Guido v. Duane Morris LLP*, 202 N.J. 79, 91 n.4 (2010).  *Rule* 1:36-3 explicitly provides:  No unpublished opinion shall constitute precedent or be binding upon any court.  Except for appellate opinions not approved for publication that have been reported in an authorized administrative law reporter, and except to the extent required by res judicata, collateral estoppel, the single controversy doctrine or any other similar principle of law, no unpublished opinion shall be cited by any court.  No unpublished opinion shall be cited to any court by counsel unless the court and all other parties are served with a copy of the opinion and of all contrary unpublished opinions known to counsel.  Following this rule, the Appellate Division held that it was manifestly incorrect for a court to cite and rely upon an unpublished opinion as authoritative.  *Clarke v. Clarke*, 349 N.J. Super. 55, 61 (App. Div. 2002).  The Supreme Court has similarly noted that an unpublished opinion “cannot reliably be considered part of our common law. ”  Trinity Cemetery Ass’n, Inc. v. Township of Wall, 170 N.J. 39, 48 (2001).  Accordingly, the plaintiff respectfully submits that the unpublished opinions relied upon by the defendants do not overrule the case law and rules of law set forth in the Model Jury Charges cited by the plaintiff.  It is respectfully submitted that the Trial Court overlooked established legal precedent in finding that the defendants did not owe the plaintiff a duty when it found that the tripping hazard was an open and obvious condition as a matter of law.  It is further submitted that the determination as to whether the tripping hazard created by a raised foot of one of the many barricades defendant [...] placed along the means of ingress and egress was open and obvious is a jury question.  Accordingly, the plaintiff respectfully submits that the April 12, 2024 Order granting the defendants’ motion for summary judgment should be reversed and the matter remanded to the Law Division for trial.  CONCLUSION