ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] POINT II.  THE APPLICABLE STANDARD OF REVIEW IS ABUSE OF DISCRETION  Rule 4:5-1(b)(2), “Requirements for First Pleadings - Notice of Other Actions or Potentially Liable Persons” requires each party to disclose in the certification the names of any other party who should be joined in the action.  Parties have a continuing obligation to amend the certification.  When a party neglects their obligation under Rule 4:5-1(b)(2), a trial court may impose sanctions for failure to comply.  A trial court's imposition of sanctions for failure to comply with Rule 4:5-1(b)(2) is reviewed under an abuse of discretion standard.  Karpovich v. Barbarula, 150 N.J. 473, 483 (1997).  An abuse of discretion occurs if the court “failed to consider controlling legal principles…”  Ricci v. Ricci, 448 N.J. Super. 546, 565 (App. Div. 2017) (internal quotation marks and citation omitted).  It is a well-recognized legal principle that the Entire Controversy Doctrine is an equitable principle and its application is left to judicial discretion based on the factual circumstances of the case.
[brief] **STATEMENT OF FACTS**  This matter arises out of the Complainant’s mischaracterization of Appellant’s actions as potential ethics violations for political advantage, even though the School Board election was already over and there was no political advantage to be gained at that point.  Appellant was elected to the [...] (“School Board”) in 2013 and re-elected in 2016.  Sg164-183.  During the relevant time period, Appellant served as School Board President.  In 2019, Appellant lost his re-election bid for the School Board, which meant his current term expired on January 1, 2020.  Sg164-183.  Complainant was elected to the School Board in 2014 and re-elected in 2014 and 2017.  Sg164-183.  Complainant stepped down from the Board in 2021.  [...], Esq. served as the Board Attorney during the relevant time.  The crux of Complainant’s ethics  Complaint against Appellant turns on the exercise of his authority to request legal services from the Board Attorney, [...], Esq., based on Appellant’s reasonable concerns that Complainant committed ethics violations during the election process.  As demonstrated in the record below, Appellant informed and discussed with other Board Members his reasonable concerns that Complainant committed ethics violations during the election process.  Sg192-201.  Appellant did not make his request to the Board Attorney without the knowledge of the other Board Members.  Sg164-183.  Appellant’s request to the Board Attorney was limited to Complainant’s public conduct as an elected Board Member who chose to participate in the political campaigning process during the election.  Sg192-201.  The fruits of Appellant’s reasonable concerns culminated in the filing of an Ethics Complaint filed by Appellant and the other Board Members against Complainant on December 23, 2019.  Sg192-201.  **Complainant’s Ethics Violations**
[brief] In *[...]*, the second lowest-bidder, [...]\(^3\) (“[...]”) challenged the [...]’s award to the low bidder, [...] (“[...]”).  The challenge was on the grounds that [...]’s consent of surety was defective.  Within [...]’s consent of surety, the surety stated:  >  To execute the final bond as required by the specifications or to become co-sureties with others in the full amount of the contract price for the faithful performance of the contract.  *Id.*  \(^3\)  Notably, in [...], the second-lowest bidder initiated the challenge *not* the public agency.  This is the typical manner in which challenges to bids and project awards are handled, which is fundamentally different than the instant case where the second lowest-bidder, [...], has not challenged [...]’s Bid.  This further highlights how odd and out-of-turn [...]’s unprompted disqualification is.
[brief] Defendants’ certifications identify no harm or potential for harm to disclosure.  If we give Defendants the benefit of the doubt, at most the Defendants have identified the potential for inconvenience.  But, even that inconvenience to the public can be remedied by (1) withdrawing an email address from the list; (2) using a free email account (such as Gmail) for the specific purpose of receiving these types of notices; and (3) using filters to block out unwanted emails.
[brief] ”  *Alston*, 204 N.J. at 623.  [...] asked a critical question concerning his ability to assert his rights, and [...]’s statement, “I’m only reading,” operated to tell [...] that she could not answer his question about how he would actually go about obtaining an attorney.  She cemented this impression when she further responded to [...]’s question by saying she could not give him any type of legal advice.  Although [...]’s question clearly asked about the process for obtaining an attorney rather than legal advice, [...]’s response to his question—that she could not give him legal advice—had the effect of telling him she could not answer his question.  Furthermore, even [...] would eventually read the final Miranda warning that an attorney would be provided for him if he could not afford an attorney  [...] never said this in response to [...]’s question.  In responding to his question she just repeated, “if you want to have an attorney present that is your right. ”  (Pa30)  When a suspect asks a detective if the detective will provide the suspect with an attorney, and the detective responds only by saying, “this is very simple if you want to have an attorney present that is your right,” any reasonable person would interpret that answer to mean, “No, if you have an attorney on your own you have the right to have that attorney present. ”  Especially to a person who had not set foot in the United States for nineteen years prior to his extradition to the United States that very day—who clearly did not know any lawyers in the United States—[...]’s response would have reasonably been interpreted by [...] to suggest that while he had a right to have a lawyer present, he had to obtain the presence of the lawyer on his own without any assistance.
[brief] [...], [...] and [...], represented by sophisticated counsel and financial professionals, exhaustively negotiated the terms of the Redevelopment Agreement and Operating Agreement.  There are no allegations in the record of any “mutual mistake” of the parties as to either of the agreements at issue.  The agreements reflect “terms upon which the minds of the parties have met. ”  Berkowitz, 106 N.J. Eq. at 241.  [...] has failed to demonstrate any instance of fraud or unconscionable conduct by the Authority, and that is in fact what the trial court found.
[brief] In Skuse, the Atalese doctrine was applied to an employment contract.  The employment contract contained an arbitration clause which provided that all claims, including breach of contract, tort claims and statutory employment claims, “will be resolved by arbitration and NOT by a court or jury.  THE PARTIES HEREBY FOREVER WAIVE AND GIVE UP THE RIGHT TO HAVE A JUDGE OR JURY DECIDE ANY COVERED CLAIMS. ”  244 N.J. at 38.  The Court held that this language satisfied the Atalese standard.  244 N.J. at 51 – 52.  Finally, in Flanzman v. [...], 244 N.J. 119 (2020), the New Jersey Supreme Court again held that the language required by Atalese must explain “that a party who goes to arbitration waives the right to sue in court and makes clear that arbitration and civil litigation are distinct proceedings. ”  244 N.J. at 137.  It held that an arbitration clause in an employment contract stating there shall be “final and binding arbitration“ “in lieu of a jury or other civil trial” was sufficient because it distinguishes between arbitration and civil litigation and explains that arbitration is in place of litigation.
[brief] In *Carrero*, there was testimony concerning the prior arguments involving the defendant and the victim.  Here, at most, there was testimony that [...] did not like the victim.  There is no testimony concerning any ill will between the defendant and --- \(^1\)  Further, though not advanced by the defendant here, any disagreement between the defendant and [...] was further removed in time from the shooting and the defendant would have had a sufficient opportunity to cool down and there was no physical altercation between the defendant and [...].  [...], nor was there testimony that the defendant even knew who [...] and [...] were.  Also present in Carrero is the testimony that the victim pulled a handgun on the defendant.  Here, the testimony is exactly the opposite.  The uncontroverted trial testimony was that [...] did not pull the gun or point it at the defendant (5T12419 to 21).  See Funderberg at 82 (declining to charge passion/provocation where there was insufficient evidence that the victim wielded the knife).  In Carrero the defendant elicited testimony at trial supporting passion/provocation and requested the instruction from the trial court.  Here, there was no testimony that the defendant acted under passion or provocation and the defendant did not intend to seek a passion/provocation charge until the judge indicated she was charging other lesser includeds.
[brief] The Trial Court Participated In Improper Colloquies And Substantive Ex Parte Communication During Trial (Not Raised Below – Plain Error).  1.  The Trial Court Engaged In Improper Ex Parte Communications  The Trial Court wrongfully participated in substantive ex parte communication by excluding Plaintiff from conversations with [...] and [...] in chambers.  When an issue is raised for the first time on appeal, a plain error standard applies.  As such, it must be established that (1) there was error; and (2) that error was clearly capable of producing an unjust result.  Dunbrack 245 N.J. at 544.  Here, the Trial Court’s wrongful participation in ex parte communication was clear error and resulted in Plaintiff’s claims being dismissed.  Judges should never participate in substantive ex parte communications.  Although a judge has great authority, “[t]he exercise of this authority is circumscribed by the [J]udge’s responsibility to act reasonably and within constitutional bounds. ”  State v. Bitzas, 451 N.J. Super. 51, 76 (App. Div. 2017).  If a judge engages in *ex parte* conversations with the parties or outside experts, the adversarial process cannot function properly, and there is greater risk of an incorrect result.  In re Kensington Intern. Ltd., 368 F.3d, 289, 309 (3d Cir. 2004); see also In re Sch. Asbestos Litig., 977 F.2d 764, 789 (3d Cir. 1992)(stating that *ex parte* contacts are “tolerated of necessity where related to non-merits issues [and] for administrative matters…”).  See also New Jersey Code of Judicial Conduct 3.8 (“Except as authorized by law or court rule, a judge shall not initiate or consider *ex parte* or other communication concerning a pending or impending proceeding. ”)  Further, a judge may “make reasonable accommodations to ensure *pro se* litigants the opportunity to have their matters fairly heard.  Comment to New Jersey Code of Judicial Conduct 3.7 (emphasis added).  Here, the Trial Court excluded Plaintiff from substantive *ex parte* conversations on the second day of the bench trial.  Specifically, at the beginning of the second day of trial, the Trial Judge took the bench and immediately requested to see both counsel, [...] and [...]\(^3\), in chambers, while Plaintiff stayed in the courtroom organizing hard copies of her exhibits.  2T7:13-16.  --- \(^3\) [...] was counsel for Plaintiff’s LLC, not Plaintiff personally, and the Court voiced this several times.
[brief] PLEADINGS  [R. 2:6-1(a)(1)(A)]  Class Action Complaint filed May 25, 2022 ...........................................  Pa1  Exhibit A ........................................................................................................  Pa9  JUDGMENT APPEALED FROM [R. 2:6-1(a)(1)(C)]  Order being Appealed filed July 13, 2023 ..............................................Pa11  NOTICE OF APPEAL [R. 2:6-1(a)(1)(F)]  Notice of Appeal filed August 24, 2023 .....................................................Pa12  TRANSCRIPT  DELIVERY CERTIFICATION [R. 2:6-1(a)(1)(G)]  None.  Transcript of June 15, 2023  Motion Hearing filed with the Notice of Appeal on August 24, 2023  UNPUBLISHED DECISIONS CITED BELOW [R. 2:6-1(a)(1)(H)]  Decisions cited below by Plaintiff: Ali v. Credit Corp. Sols., Inc., 2022 U.S. Dist. LEXIS 59126, 2022 WL 986166 (N.D. Ill. Mar. 30, 2022)
[brief] On September 13, 2023, [...] moved for sanctions against Plaintiffs, citing Plaintiffs’ counsel’s violation of Rule 1:4-8(a).  (Pa000428).  As [...] previously noted to Plaintiffs in its safe harbor letter, “by signing the Complaint, [Plaintiffs’ counsel] certified the allegations contained in the Complaint, including the allegations that [...] was negligent and/or trespassed on Plaintiffs’ [P]roperty. ” (Pa000122).  However, the 2021 email exchange between Plaintiffs’ counsel and counsel for [...] clearly showed that Plaintiffs were aware of the redevelopment project and had communications with the developer and contractors working on the project.  Plaintiffs’ appeal brief at page 7 also states that “[t]here is no dispute that [...] was responsible for the environmental remediation in connection with the Project. ”  Moreover, Plaintiffs (through counsel) objected to [...]’s preliminary site plan and were aware that the plan was revised in response to their objections.  Plaintiffs and their counsel were also warned of any possible detriments to the Property that could arise should they decide to exclude the Property from the redevelopment project.  (Pa000121).  Nevertheless, Plaintiffs and their counsel sued [...] without any basis in law or fact – ignored the requirements of the Affidavit of Merit statute and the safe harbor letter citing the frivolous lawsuit statute and rule.
[brief] Furthermore, Appellants were divested of the opportunity in any event.  The trial court initially denied Respondents’ request to submit the certification ex parte.  However, Respondents violated the Court’s Order and, without a motion for reconsideration, the Court permitted the supplemental certification for the first time at the hearing disqualifying [...], divesting Appellants of the opportunity to brief the issue during the hearings below.  (T23:17-24:22; 25:20-24).  Indeed, the Court had already decided the issue; [...] had no reason to believe it needed to file further motions addressing it.  Fundamental justice dictates that Appellants be afforded the opportunity to address the matter.
[brief] At the resentencing hearing, [...] testified that unlike adults, adolescents are more likely to be motivated by rewards than by the potential risks or long-term consequences of their actions – affecting their ability to participate in plea negotiations.  (3T:62-23 to 64-15)  The resentencing court was required to consider the ways in which [...]’s immaturity and inexperience impaired his ability to deal with police and prosecutors and prevented him from assisting his attorney in his defense.
[brief] An award of $150,000 was entered.  Respondent had previously filed, on November 8, 2022, an Offer of Judgment for the [...] bodily injury coverage policy limit of $100,000.  On April 5, 2023, Appellant filed their appeal of the Arbitration Award, which exceeded the applicable policy limits.  Nevertheless, [...] never even made a single offer to settle this claim, advising Plaintiff’s counsel, the Hon. [...], J.S.C. and the Hon. [...], J.S.C. retired on recall, on multiple occasions, that [...] considered this matter to be a ‘No Pay’ case.
[brief] The Gaza matter was defended by the [...] until that office closed in approximately 2021.  The succeeding attorney at the [...], [...], later became associated with the firm of [...] before trial.  given the holding in Mejia, there is no logical reason not to apply the Supreme Court’s reasoning to this case.  There can be no doubt that defense counsel at the [...] was well-aware of the Mejia ruling and its effects – a case decided two years before this matter went to trial.
[directive] S/he is also empowered to make decisions with the team regarding reallocation of critical care resources that have previously been allocated to patients, again using the principles and processes in this document.  In making these decisions, the triage officer and team should not use principles or beliefs that are not included in this document.  So that the burden is fairly distributed, triage officers and team members will be nominated by the chairs/directors of the clinical departments that provide care to critically ill patients.  The Chief Medical Officer and the individual responsible for emergency management should approve all nominees.  A roster of approved triage officers and team members should be maintained that is large enough to ensure that they will be available on short notice at all times, and that they will have sufficient rest periods between shifts.
[brief] In response, [...] reiterated what he alleged in his papers that the defendant [...]’s allocation of resources defense and continued to argue, “believe me, we have empathy for him.  But there is just, you know, the liability here that they're seeking, just it can't be found on this record.  And no additional discovery is going to change this. ” (1T 16:3-6).  On January 19, 2024, the Court entered an Order granting defendant [...]’s Motion for Summary Judgment in accordance with the following reasoning
[brief] VIOLATION OF RULE 2:5-4.(a) | 1 | | II.  CORRECTION OF MISSTATED FACTS | 2 | | A.  Misstatement of The Statute Of Limitations | 2 | | B.  Misstatement of Appellant’s Legal Powers | 3 | | C. Proof of the Disingenuousness | 3 | | D.  Misstatement That The Appeal is Moot | 4 | | E. Overlook Of The *Continuing Violation Doctrine* | 5 | | ARGUMENT | 6 | | I.
[brief] WARRANTING AN ENLARGEMENT OF THE 45-DAY APPEAL PERIOD PURSUANT TO R. 4:69-6(c) (Pa55-Pa58)  .........................  3  II.  THE TRIAL COURT ERRED IN ITS DETERMINATION THAT THE NOTICE PUBLISHED BY THE TOWNSHIP FOLLOWING THE INTRODUCTION OF ORDINANCE NO. 13-2022  COMPLIED WITH N.J.S.A. 40:49-2 (Pa58-Pa61).
[brief] Brief in support of appeal in the matters pled via docket #: [...]  [...]  Plaintiff vs. [...]  Defendant Superior Court of New Jersey Appellate Division  Docket No: [...]  On Appeal from: Superior Court of New Jersey Law Division, Bergen County  Sat below: Hon. [...]  Docket #: [...]  RECEIVED APPELLATE DIVISION JUN 13 2024  SUPERIOR COURT OF NEW JERSEY  BRIEF IN SUPPORT OF APPEAL
[brief] ” (Da116 at § 2.)  On September 1, 2005, [...] recorded a subdivision map in the Office of the [...], Map No. 9418 (the “2005 Map”), which subdivided the Original Tract into five lots: Block 1201, Lots 2.01, 3.01, 4.01, 5.01, and 5.02, with the Roads interspersed between them.  (Da171.)  With the exception of a slight alteration of lot and road dimensions by way of a subsequent 2010 subdivision map recorded on July 12, 2012, Map No. 9548 (the “2010 Map”) (Da173), those lots and Roads have remained the same on the maps ever since.6 (Da59 at ¶ 7.)
[brief] [...]’ action for attorneys’ fees was brought in the form of a Counterclaim.  After the full exchange of discovery, on February 16, 2021, defendant/counterclaimant filed its Motion to Strike the opinions of plaintiff’s expert, [...].  (Da152).  On April 5, 2021, the Honorable [...], J.S.C. entered an Order and Opinion.  (Da154-Da166).  That Order and Opinion struck the opinions of plaintiff’s expert, [...].  The Court ruled that Ouda could not testify that [...], P.C.’s invoices were unreasonable, unnecessary, or excessive because Mr. Ouda failed to satisfy the expert reporting standards, rendering his opinion a net opinion.\(^7\) (Da154-Da166).  In the Court’s Rider and Statement of Reasons of November 18, 2022 (Da169), the Court noted that the first Motion \textit{in limine} sought to bar the introduction of testimony and the report of [...]’s expert, [...], at trial.
[brief] Defendant argues he received an excessive sentence due to the court’s improper finding of aggravating factors one and six as well as the court’s refusal to find mitigating factor eleven.  (See Db44 to 50).  A sentence is reviewed for abuse of discretion.  (State v. Trinidad, 241 N.J. 425, 453 (2020)).  Appellate courts afford deference to the trial court’s sentence and do not substitute their judgment for that of the sentencing court’s.  (See State v. Fuentes, 217 N.J. 57, 70 (2014); State v. Case, 220 N.J. 49, 65 (2014)).  The trial court’s sentence will be affirmed unless: (1) the trial court violated the sentencing guidelines; (2) the trial court did not base its findings of aggravating and mitigating factors on competent and credible evidence in the record, or; (3) “the application of the guidelines to the facts of [the] case makes the sentence clearly unreasonable so as to shock the judicial conscience.
[brief] N.J.S.A. 2C:11-3(a) explains criminal homicide constitutes murder when (1) “[t]he actor purposely causes death or serious bodily injury [(SBI)] resulting in death;” (2) “[t]he actor knowingly causes death or serious bodily injury resulting in death;” or (3) a killing is committed in the course of one of several enumerated crimes, and thus constitutes felony murder.  Serious bodily injury is defined as “bodily injury which creates a substantial risk of death or which causes serious, permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ[.]”  N.J.S.A. 2C:11-1(b).
[brief] However, since the 2016 Approval, the facts have changed, as documented before the SHO below.  The New Jersey Supreme Court has held the Municipal Land Use Law (MLUL) “explicitly codifies the right of a party to request a change in the conditions of approval in N.J.S.A. 40:55D-12(a), ‘for modification or elimination of a significant condition or conditions in a memorializing resolution[ ],’ ”  Toll Bros., Inc. v. Bd. of Chosen Freeholders of Burlington, 194 N.J. 223, 246–47 (2008) (quoting N.J.S.A. 40:55D-12(a)).  While applications to remove conditions of approval are typically made to the local planning authority or its successor, which granted the initial approval, *Ibid.*; *Allied Realty, Ltd. v. Borough of Upper Saddle River*, 221 N.J. Super. 407, 414 (App. Div. 1987), *certif. denied*, 110 N.J. 304 (1988), in this case the [...] was tasked by the Court with sitting in lieu of the Zoning Board and deciding whether or not the condition may be removed.  Further, a reviewing court (or, as in this case, a [...]) may excise conditions which it rules are unreasonable or unlawful under the circumstances.  See e.g. *Tirpak v. Board of Adjustment*, 457 N.J. Super. 441, 445 (App. Div. 2019) (striking a condition of approval which limited the rental of a two-family home to only one unit); *Darst v. Blairstown Twp. Zoning Board of Adjustment*, 410 N.J. Super. 314, 339 (App. Div. 2009) (where a planning board attaches a condition that is not authorized by a valid municipal ordinance, a reviewing court need not defer to its discretion); *Orloski v. Plan. Bd. of Borough of Ship Bottom*, 226 N.J. Super. 666, 672 (1988) (conditions may not be unnecessarily burdensome to the applicant); *DeFelice v. Zoning Bd. of Adj.*, 216 N.J. Super. 377, 383 (App. Div. 1987) (condition can be excised without setting aside the underlying variance); see also Cox, Koenig, Drill & John-Basta, *New Jersey Zoning & Land Use Administration*, § 19-6.2 at 431 (2021).
[directive] It should be noted, finally, that prosecutors under the revised Brimage Guidelines are no longer required to advise the Director of the Division of Criminal Justice in writing of the specific bases for a prosecutor’s decision to consent to the pretrial intervention application of any defendant charged with a violation of N.J.S.A. 2C: 35-7 or any second-degree crime under Chapter 35 of Title 2C.  Instead, prosecutors are now only required to provide aggregate statistical notification on a quarterly basis to the Division of Criminal Justice, specifying the aggregate number of cases in the reporting period where defendants charged with these offenses have been admitted to the PTI program with the prosecutor’s consent.  3.13