ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] \(^1\)  Finally, the trial court’s decision to impose a bidding procedure actually did show great deference to [...]’s thoughts on the case.  At the January 10, 2022 hearing, [...] observed that “the bidding process” suggested by Plaintiff’s counsel “seems to be the most efficient way to resolve the dispute with respect to the [Boonton] property. ” (1T9:22-25).  Moments later, she again recommended either listing the Boonton Property or conducting a sealed bidding process.  1T11:23 to 12:2.  If [...] had not objected, 1T13:23-25, it is likely that [...] would have ordered a sealed bidding procedure along the very same lines as the one ordered by the trial court.  **B.
[brief] In order to set aside the factual findings made by the trial court, this Court must be:  [T]horoughly satisfied that the finding is clearly a mistaken one and so plainly unwarranted that the interests of justice demand intervention and correction, ... then, and only then, [the appellate court] should appraise the record as if it were deciding the matter at inception and make its own findings and conclusions.  While this feeling of “wrongness” is difficult to define, because it involves the reaction of trained judges in the light of their judicial and human experience, it can well be said that that which must exist in the reviewing mind is a definite conviction that the judge went so wide of the mark, a mistake must have been made.  This sense of “wrongness” can arise in numerous ways—from manifest lack of inherently credible evidence to support the finding, obvious overlooking or undervaluation of crucial evidence, a clearly unjust result, and many others.  State v. Locurto, 157 N.J. 463, 471 (1999).
[brief] A trial court’s interpretation of an insurance policy’s terms is “a legal determination, not a factual inquiry, and is accordingly reviewed de novo. ”  AC Ocean Walk, LLC v. Am. Guarantee & Liab. Ins. Co., 256 N.J. 294, 312 (2024).  “An insurance policy will be enforced as written when its terms are clear in order that the expectations of the parties will be fulfilled, with undefined terms construed in accordance with their plain and ordinary meaning. ”  Id. (internal quotations omitted).  “‘If the language is clear, that is the end of the inquiry,’ and courts will not engage in ‘a strained construction to support the imposition of liability’ or write a better policy for the insured than the one purchased. ”  Id. (quoting Chubb Custom Ins. Co. v. Prudential Ins. Co. of Am., 195 N.J. 231, 238 (2008)).  V.  LEGAL ARGUMENT  A.  Excess Liability Coverage is Barred by the Injury to an Insured Exclusion
[brief] First, to establish a “pattern of racketeering activity” a plaintiff may point to conduct as far back as ten years prior to the statute of limitations.  ....  This encompasses evidence of wrongful acts starting in October of 1994.  I recognize that it may not have been necessary to include the entirety of this time period simply to establish a pattern, especially given the quantity of violations both in and out of the statute of limitations period.  However, the pre-October 2004 violations also help establish the important element of mens rea.
[directive] In determining the aggregate amounts of drugs involved for purposes of these Guidelines, the prosecutor shall consider the quantity involved in all individual acts of manufacturing, distribution, dispensing, or possessing with intent to distribute, whether distribution or dispensing is to the same person or several persons, provided that each individual act of manufacturing, distribution, dispensing, or possessing with intent to distribute was committed within the applicable statute of limitations.  It is not necessary for the prosecutor to establish that the separate acts or transactions were part of a common plan or scheme.  See N.J.S.A. 2C:35-5c.  Furthermore, any adulterants or dilutants shall be included in determining the weight of the drug.  See State v. Williams, 310 N.J. Super. 92 (App. Div. 1998), certif. den. 156 N.J. 426 (1998); State v. Gosa, 263 N.J. Super. 527, 536 (App. Div. 1993), certif. den. 134 N.J. 477 (1993).  7.3
[brief] See Tuohy v. Director, Division of Taxation, 32 N.J. Tax 561, 573 (2022) (“Collateral estoppel does not preclude a party from litigating an issue for the first time.  However, it does preclude a party from relitigating an issue in light of a different legal principle or argument—particularly when, as here, the facts and law are the same and the party had a ‘full opportunity’ in the earlier determination to present the issue litigated in light of that principle or argument. ” (quoting Blair v. Taxation Div. Director, 9 N.J. Tax 345, 355 (1987))).  By determining the issue is different because defendant is raising a different argument, the court is simply providing counsel an incentive for game-playing.  For these reasons, the court erred when it found the issues are not identical.
[brief] (Db 24).  The record makes clear that [...] was displeased with the municipal prosecutor’s handling of the case and the lack of clarity as to why it moved forward as an observation case on the record.  [...] also was displeased with the lack of inquiry from the municipal judge.  Thus, his ire was not aimed at defendant, nor was it for the purpose to find out additional evidence to use against defendant.  His motives in asking about the Alcotest were clearly articulated on the record.  As a result, a new trial de novo with “an impartial judge” is not required.
[brief] Only where the culvert cannot be installed two feet below the invert, which has not been shown, do the low-flow treatments in section 12.7(h)(2) apply.  The [...] also failed to make any factual findings about the specific drainage area served by this stream and the associated functionality of the size and placement of the proposed pipe culvert.  \(^6\)  NJ [...], Technical Manual, Flood Hazard Area Control Act Rules N.J.A.C. 7:13, page 229, https://dep.nj.gov/wlm/lrp/flood-hazard-areas (emphasis added).  \(^7\) Technical Manual at 1. that are necessary to accomplish the basic purpose of the development, N.J.A.C. 7:13-11.1, because it did not properly consider whether a bridge spanning the channel was feasible, and thus, whether it would lessen disturbances.
[brief] First, defendant's claims that the informant's testimony was unreliable because he was an admitted "twelve time convicted felon" and had acknowledged that he was an informant for the police to "work off" his pending charges.  Second, [...] received a great bail deal the same day of his arrest to inform on an innocent man.  Defendant argues that the police lacked evidence or justification to target him for the crime because he was "unknown to the police as a Murder suspect or otherwise."  Just a person walking with [...] before turning on Governor Street to go home.  After having a drink with defendant at [...] on 12th Avenue.  Rather, defendant claims he was chosen on an "ad hoc" basis, i.e., he was in the area on the night the victim were present and the Black car and other individuals.  Defendant further contends that him as the suspect was completely created by both the police and the informant.
[brief] *Komlodi v. Picciano*, 217 N.J. 387, 418 (2014); *Scafidi v. Seiler*, 119 N.J. 93, 101 (1990).  Proximate cause is only removed from jury consideration in the most “highly extraordinary case[s]. ”  *Fleuhr v. City of Cape May*, 159 N.J. 532, 543 (1999).
[brief] **Cases**  *Action  All. of Senior Citizens v. Sullivan,* 930 F.2d 77 (D.C. Cir. 1991) .................................................................  16  *Allen ex rel. Martin v. LaSalle Bank, N.A.,* 629 F.3d 364 (3d Cir. 2011) .................................................................. 22 *Bartlett v. Heibl,* 128 F.3d 497 (7th Cir. 1997) .................................................................. 30 *Baskin v. P.C. Richard & Son, LLC,* 246 N.J. 157 (2021) .............................................................................. 7 *Bentley v. Great Lakes Collection Bureau,* 6 F.3d 60 (2d Cir. 1993) ....................................................................... 22 *Brown v. Card Serv. Ctr.,* 464 F.3d 450 (3d Cir. 2006) .................................................................. 31 *Camacho v. Bridgeport Fin., Inc.,* 523 F.3d 973 (9th Cir. 2008) .................................................................. 30 *Christianson v. Colt Indus. Operating Corp.,* 870 F.2d 1292 (7th Cir. 1989) ................................................................. 15 *Comm’r v. Brown,* 380 U.S. 563 (1965) .............................................................................. 10 *Crescent Park Tenants Ass’n v. Realty Equities Corp. of New York,* 58 N.J. 98 (1971) .................................................................................. 37 *Cty. of L.A. v. Davis,* 440 U.S. 625 (1979) (Powell, J., dissenting)
[brief] \footnote{Other of plaintiff’s claims against [...] and [...] that may have been part of plaintiff’s pleadings below, but that were not argued in plaintiff’s Brief to this Court, are waived.  See, e.g., State v. Huang, 461 N.J. Super. 119, 125 (App. Div. 2018), aff’d, 240 N.J. 56 (2019); 539 Absecon Boulevard, L.L.C. v. Shan Enterprises Ltd. Partnership, 406 N.J. Super. 242, 272 n.10 (App. Div.), certif. denied, 199 N.J. 541 (2009) (“Although their notice of cross-appeal set forth additional portions of the final judgment from which plaintiffs were seeking review, those claims have not been briefed and are therefore deemed abandoned. ”)}  IV.
[brief] (Dta224.)  That policy covered [...] for various liability risks unrelated to the project, as well as for [...]’s off-site risks related to the project, as provided for in the contract documents and CCIP manual.  The [...] policy included an endorsement, entitled “Exclusion – All Projects Subject To A Wrap-Up Insurance Program With Limited Exceptions For Certain Ongoing Operations. ”  It provided that:  “This insurance does not apply to . . . ‘[b]odily injury’ . . . arising out of any project that is or was subject to a ‘wrap-up insurance program’. ”  The policy defined a “wrap-up insurance program” to mean a “contractor-controlled . . . insurance program . . . under which . . .  You [[...]] are or were enrolled or allowed to enroll. ”  (Dta283(emphasis supplied). )  (The [...] policy contained a similar exclusion.)  E.  [...] Improperly Denies [...]’s Request For Coverage For The Underlying Action Based Upon Its Wrongful Termination Of Coverage
[brief] The State incorrectly responds if the Legislature only violates a statute for enactment, the court cannot void the Act.  (Sb10. ¹)  N.J.S.A. 1:7-3 states:  “After a full hearing the court may, if satisfied that the constitutional and statutory provisions relating to the enactment and approval of laws . . . have not been complied with, adjudge the law . . . or any part thereof to be void. ”  This Court should reject the State’s construction that nullifies this statutory language.  See Marino v. Marino, 200 N.J. 315, 329 (2009)(explaining “the words chosen by the Legislature [are read] in accordance with their ordinary meaning”); see N.J.S.A. 1:1-1 (same); see also Pizzullo v. N.J. Mfrs. Ins. Co., 196 N.J. 251, 264 (2008)(explaining courts seek “further guidance only to the extent that the Legislature's intent cannot be derived from the words that it has chosen”).
[brief] Even if the Statute of Frauds applied to the lease modification through some mental gymnastics, which it does not, part performance takes the modification out of the Statute of Frauds.  Deutsch vs. Budget Rent-A-Car, 213 N.J. Super. 385 (App. Div. 1986).  In this case clearly there was part performance.  The parties agreed that in lieu of terminating the Lease, the landlord would agree to a $3,000.00 discount for the months of May, June, July, and August.  [...] thereafter invoiced [...] for $9,250.00 with a discount of $3,000.00 and a net rent due of $6,250.00 for the months of May, June, July, August, (and September, see fn3), [...] paid the amount of $6,250.00 for the months of May, June, July, and August and September.  As indicated in Pa77, no rental defaults occurred until October of 2016.  Thus, the modification was made on May 5, 2016 and both parties performed their respective obligations under that modification for the months of May, June, July, and August. (and September) of 2016.  Therefore, there can be no question, through part performance on the part of [...] (and full performance by Plaintiff) that the parties had agreed to the modification.  As set forth above, the part performance would take it out of the Statute of Frauds, if the Statute of Frauds applied.
[brief] SUMMARY JUDGMENT WAS PROPERLY GRANTED ON COUNT VI.  On June 10, 2020, the Court below granted Respondents’ motion for summary judgment as to Count VI of the Amended Complaint.  (Da310)  The Count sought rescission of the April 15, 2015 agreement between [...] and [...] (the “Repurchase Agreement”).  In response to the motion, [...] submitted to the Court a Certification stating that she had previously rescinded and rendered void her alleged repurchase rights under the Repurchase Agreement.  (Da593).  To avoid any uncertainty, she confirmed once again that she was voiding the agreement and did not oppose the summary judgment sought as to Count VI. (Da593).  The Court below properly held that only the parties to an agreement or the intended third-party beneficiaries of such agreement have standing to bring an action to declare the validity or enforceability thereof.  See Reider Cmtys. v. N. Brunswick, 227 N.J. Super. 214, 221-222 (App. Div. 1988).  As such, only [...] and [...], the signatories, have standing to enforce or waive the benefits pursuant to the Repurchase Agreement.  A court of equity may, through the imposition of flexible remedies, adjust parties’ rights and use “a broad range of discretion to fashion the appropriate remedy in order to vindicate a wrong consistent with principles of fairness, justice, and the law. ”  Granziano v. Grant, 326 N.J. Super. 328, 342 (App. Div. 1999).  Because the Repurchase Agreement was entered into by [...] and [...], when both [...] and [...] asked the Court to rescind and void the agreement, the undisputed facts supported summary judgment rescinding the Repurchase Agreement as a matter of law.  Accordingly, the decision below should be affirmed.
[brief] Furthermore, a prosecutor “is accorded considerable latitude in summing up the State’s case forcefully and graphically and to pursue the prosecutorial duty with earnestness and vigor. ”  *State v. Tilghman*, 345 N.J. Super. 571, 575 (App. Div. 2001).  Prosecutors, however, “also have the overriding obligation to see that prejudice is fairly done. ”  Id.  See also, *State v. Daniels*, 364 N.J. Super. 357, 373 (App. Div. 2003).  In reviewing prosecutorial misconduct claims, the Appellate Division has noted that the following factors should be considered: (1) whether defense counsel timely and properly objected to the remarks; (2) whether the remark was withdrawn promptly; (3) whether the court gave curative instructions.  *State v. Allen*, 337 N.J. Super. 259, 267 (App. Div. 2001), certif. denied, 171 N.J. 43 (2003) (quoting *State v. Frost*, 158 N.J. 76, 83 (1999)); see also, *State v. Setzer*, 268 N.J. Super. 553, 566 (App. Div. 1993).
[brief] Appellants maintain, as they argued below, that they paid approximately $1 million for two “bundles” of assets below from defendant [...]: (1)  Appellants acquired, in perpetuity, the absolute ownership/assignment of solar-developmental rights via the architectural and zoning plans, engineering study, an interconnection agreement with a regional power authority, and a power supply/purchase agreement with a local utility (namely [...]), at a one-time cost of approximately $700,000 reflected by an Assignment Agreement (hereinafter, “Solar Rights”); and (2) a 20 year lease agreement whereby Appellants were to pay an annual rent in September commencing 2016 (the “Leasehold Rights”), with a security deposit to cover any default of non-payment.  Pa2532 to Pa2847.  Three years after selling the first category of rights, the so-called “Solar Rights,” defendant Fiberville engaged in a fraudulent, unethical, and, indeed, unlawful act of purporting to re-sell those very same Solar Rights to Appellants’ direct competitor and potential joint-venturer covered by a non-disclosure agreement.  The basis of this shocking shell game whereby the Solar Rights purchased by Appellants in perpetuity were later sold again to another purchaser was that defendant [...] asserted that, because it owned the land where Appellants or Appellants’ successors and/or assigns would have built a solar farm on defendant Fiberville Estate’s land, somehow [...] should be deemed to have the innate right to “re-sell” the Solar Rights that had been sold in perpetuity to Appellants.
[brief] *[...] v. Board of Trustees, Public Employees Retirement System*, 425 N.J. Super. 277 (App. Div. 2012), cited by Petitioner, is not on point.  [...] was a school custodian whose duties included moving furniture and equipment around the school.  On the day of the incident, [...] observed a group of teenage boys attempting to carry a large unwieldly weight bench weighing approximately 300 pounds into the school.  425 N.J. at 279.  [...] had not previously seen this piece of equipment, which had been donated to the school, nor had he ever moved any other weight bench.  [...] directed the boys to put down the bench, and then told two of them to help him tip the bench on its end and lift it onto a flatbed truck so it could be brought into the gym.  The boys dropped their side of the bench and [...] heard his shoulder “snap” as the bench fell to the floor.  The Appellate Division held that the accident constituted a traumatic event that was undesigned and unexpected.  [...] was confronted with the “unusual situation” of a group of students attempting to carry a 300-pound weight bench into the school, and then, after [...] took charge of this activity, the boys suddenly dropped one side of the bench, placing its entire weight on [...].  Id., at 284.  Petitioner’s situation is completely unlike the situation in [...].
[brief] 3.  Lack of Malice  While the trial court did not base its decision on this, Plaintiffs’ proposed malicious prosecution claim was also futile because of their inability to establish that [...] acted with malice, which is the “intentional doing of a wrongful act, without just cause or excuse. ”  See Izzo v. Viscount, 74 N.J.L. 65, 67 (1906).  As explained in the preceding section, [...] did not lie in his written complaint, but instead recounted the history of the parties’ property dispute, what he was told by others, and what he believed to be the case – that Plaintiffs broke the fence and crossed [...]’s property.  Because [...] had reason to believe, based upon the facts and circumstances and history of the dispute between the parties, that the information in the complaint was correct, he did not intentionally commit a wrongful act without just cause.  Therefore, because Plaintiffs failed to meet their burden of establishing this element of their proposed claim against him (including presenting nothing to the trial court to support their attorney’s assertion that anyone concocted a false report to secure a litigation advantage), their claim was futile for this reason as well.  B.
[brief] **A.  Plaintiff Must Prove Defect and Causation Through Qualified and Reliable Expert Testimony. **  Plaintiff does not grapple with the extensive New Jersey law cited by [...] requiring expert testimony to establish a defect in a complex product—like a prescription drug and its delivery system—that is beyond the understanding of an average juror.  (OB 24-29)  Instead, she relies on cases involving simple products and defects that are a matter of common sense (like a steering wheel that locks) to argue experts are not required. \(^5\)  (Opp 20)  As explained in *McMillan v.* --- \(^3\)  The undisputed record demonstrates the Guidance for Industry on DHCP letters (Opp 27) does **not** apply here because the three conditions for a DHCP letter are not met.  (Da0258, ¶¶ 63-75)  In particular, the Head of FDA’s Division of Transplant and Ophthalmology Products expressly found the silicone particulate issue should be addressed “for the sake of product quality, however, we do not consider it to be a safety concern. ”  (Da0252)  [...] thus accurately stated in its Opening Brief that the recall was for product quality, not safety, concerns.  \(^4\)  Even if the law allowed Plaintiff to proceed to trial on an unpled post-sale failure-to-warn claim (it does not), the Court should still reverse on this claim because (as discussed below) Plaintiff lacks admissible evidence that the Ozurdex® she received had a defect that caused her harm.
[brief] **Since the MOU is Unenforceable, the Order Granting Counsel Fees Should be Reversed (Da14, 125)**  The trial court’s decision to award fees against the [...] was based on its view that the [...] had not abided by the requirements of the September 15, 2023 Order.  2T65-8.  If this Court reverses the September 15, 2023 Order, then it goes without saying that the fee award also should be overturned.  However, it also is important to emphasize that the [...] did, in fact, comply with the September 15, 2023 Order.  That Order simply held that the MOU was enforceable and directed the [...] to perform their obligations under the MOU.  (Da7 - 8).  On October 17, 2023, the [...]’ transactional counsel emailed Plaintiff’s counsel a draft Assignment and Assumption of Membership Interests and Agreement (the “Assignment”), in an attempt to “negotiate in good faith” a purchase and sale agreement, as required by the MOU.  (Da108, 112 - 119).  Consistent with the [...]’ prior position, and in recognition of opposing counsel’s acknowledgment, discussed above, that the indemnification issue would have to be dealt with, this draft included provisions relating to: (1) indemnification, and (2) Plaintiff’s obligation to pursue in good faith the zoning approvals referenced in the MOU.  (Da108, 112 - 119).  On October 18, 2023, Plaintiff’s counsel informed the [...]’ transactional counsel, that, contrary to Plaintiff’s prior assurances to the Court, its counsel’s acknowledgement that the indemnification issue was a “fair concern,” and the MOU’s express language, it had no intention of negotiating in good faith the issues the [...] raised:  “The bottom line is that our client is not going to renegotiate the MOU.  Any attempt to add an indemnification obligation or cover your clients’ personal guarantees is a non-starter. ”  (Da121).  Thus, the trial court’s determination that the [...] did not comply with the September 15, 2023 Order was erroneous and should be reversed.  CONCLUSION
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