ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] Further, even assuming *arguendo* that such were enforceable, there is still no binding settlement agreement.  In *Larson & Fish, Inc. v. Schultz*, the Appellate Division was presented with a similar predicament as one finds here.  In *Larson*, the parties formed a contract under which the plaintiff was authorized to sell defendant’s property for seventeen thousand dollars ($17,000.00) and would receive a commission of five percent (5%) of the sale price.  The Plaintiff then provided a five hundred dollar ($500) cash deposit and a writing which included the additional language:  [purchaser(s)] hereby agrees to purchase the premises as described below, at price and terms hereinafter stated, and to be bound by this offer immediately upon its acceptance by the owner.  The defendant had never made or agreed to make any change in the terms of sale in the original contract and refused to accept the deposit or the writing.  On appeal, the plaintiff argued that the tendered agreement constituted an acceptance of the defendant’s terms.  The Appellate Court disagreed.  The Larson Court found that the tendered agreement was a counteroffer, holding that a reply to an offer, although purporting to accept it, which adds qualifications or requires performance of conditions, is not an acceptance but is a counteroffer.  Larson 5 N.J. Super. 403, 405 (App. Div. 1949) (emphasis added).  Similar to the parties in Larson, the parties placed terms on record which were to be reduced to writing at a later time. \(^4\)  Thereafter, just as in Larson, Appellant sent a writing which conditioned the agreement upon Respondent’s acceptance of the agreement within twenty-one (21) days.  This tendered agreement cannot be seen as anything but the same type of reply in Larson, which purports to accept the agreement, but which adds the performance of conditions, i.e. Respondent’s acceptance of the agreement within twenty-one (21) days.  In a word, it’s a counteroffer.
[brief] THE TRIAL COURT’S AWARD OF COUNSEL FEES SHOULD BE AFFIRMED  Under OPRA, prevailing parties are entitled to reasonable counsel fees if they have secured access to public records.  N.J.S.A. 47:1A-6.  Here, [...]’s arguments regarding prevailing party counsel fees are really just a rehashing of its merits arguments.  As is clear from the record, [...] contracted with [...] to use [...] to transmit Nixle alerts.  The sign-up for [...]’s Nixle alerts was on [...]’s website.  (Da091).  The Nixle alerts were paid by [...].  [...] used the Nixle alerts when it wanted to collect data in support of its privacy survey.  (Da246).  And, most importantly, [...] denied access to records.  Plaintiffs are the prevailing party here in the traditional sense: they secured access to records via a consent order or judgment.  Mason v. City of [...], 196 N.J. 51, 76 (2008).  If the Court affirms the Trial Court’s holdings regarding access to records, this Court should also affirm the Trial Court’s holding that Plaintiffs are the prevailing party entitled to an award of reasonable counsel fees.
[brief] The Receiver at best has incomplete information as to who [...] owed monies and obligations and/or the amount and basis for any claims.  [...] alleges that he did not know of any creditors other than the [...], owed in excess of $100,000, and [...]. Ca141.  According to him, he was unaware of [...], the landlord, even though [...] was named as a creditor in support of [...]’s application seeking [...]’s appointment.  [...], who made the decision to “remove” [...] from the premises, when [...] might have interviewed him and otherwise obtained information and assistance, alleged that he was unaware of the [...].  (c)  **N.J.S.A. 14A:14-19 - Discontinuance of Receivership**
[brief] 3  I.  There is No Enforceable “Agreement” Between [...] and Plaintiff Since Plaintiff Did Not Satisfy the Unambiguous Requirements Set Forth in the Terms and Conditions of the Title Commitment (44a–48a)..................3  II.  Plaintiff’s “Collateral Contract” Argument is a New Issued Raised for the First Time Because it is a Distinct Legal Theory the Trial Court Did Not Address Since Plaintiff Did Not Raise It Below (not raised below)  ..........5  III.  Plaintiff’s New Theory of an “Implied Contract” Does Not Establish A Contract Existed Between Plaintiff and [...] (not raised below) ........8  IV.  Plaintiff Fails to Address or Properly Rebut the Basis of [...]’ Argument Under the FRFPA (34a (cross-appeal))..............................................10  V.  The Plaintiff Fails to Address [...] Argument Concerning the Inadmissibility of Plaintiff’s Expert Report as a Net Opinion and Improperly Raised the New Issue of the Common Knowledge Doctrine (this aspect of the summary judgment motion was not decided below and Plaintiff raises new issue not argued below).....................................................11  VI.  The “Semi-Learned Professional” Exemption Still Applies to Insurance Producers and Plemmons Remains Good Law that Exempts [...] from Liability  Under the Consumer Fraud Act (39a–40a (this aspect of the summary judgment motion was not decided below))  .........................13  #  TABLE OF AUTHORITIES | Case Law | Page(s) | |----------------------------------------------|--------------------------| | Hubbard v. Reed, 168 N.J. 387 (2001) | 11, 12 | | Docteroff v. Barra Corp. of Am., Inc., 282 N.J. Super. 230 (App. Div. 1995) | 5, 6 | | Nieder v. Royal Indem. Ins. Co., 62 N.J. 229 (1973) | 5, 6 | | Sommers v. McKinney, 287 N.J. Super 1 (App. Div. 1996) | 11 | | Brizak v. Needle, 239 N.J. Super. 415 (App. Div.), certif. denied, 122 N.J. 164 (1990) | 11 | | Plemmons v. Blue Chip Ins. Servs., 387 N.J. Super. 551 (App. Div. 2019) | 13, 14, 15 | | Shaw v. Shand, 460 N.J. Super 592 (App. Div. 2019) | 13, 14 |
[brief] Each error independently requires a remand for resentencing.  Taken together, the errors evince the court’s failure to fulfill the purpose of Comer: provide a meaningful opportunity for release based on demonstrated maturity and rehabilitation.  A.  The court refused to consider Defendant’s exemplary conduct while incarcerated as evidence of rehabilitation.  Comer requires resentencing courts to consider a defendant’s prison conduct as evidence of rehabilitation: “a defendant’s behavior in prison since the time of the offense would shed light” on the defendant’s maturity and rehabilitation.  249 N.J. at 403.  Courts should focus “in particular” on “evidence of any rehabilitative efforts since the time a defendant was last sentenced. ”  Ibid.  Consistent with this emphasis on prison conduct, this Court’s February 4, 2022 remand order also instructed that [...] is “of course entitled to present up-to-date proofs regarding [his] conduct in the state prison system[.]”  [...], No. [...] (Da 109) (emphasis added).  The trial court was thus required – by the explicit instruction of this Court and our Supreme Court – to consider [...]’s conduct in prison as evidence of his rehabilitation.
[brief] As an initial matter, it is well-established law that this Court may affirm a dismissal for reasons other than those found by the trial judge.  See *Isko v. Planning Bd. of Livingston*, 51 N.J. 162, 175 (1968) (“if the order of the lower tribunal is valid, the fact that it was predicated upon an incorrect basis will not stand in the way of its affirmance”); Voellinger v. Dow, 420 N.J. Super.  480, 483 (App. Div), certif. denied, 208 N.J. 599 (2011); Grow Co. v. Chokshi, 403 N.J. Super. 443, 467 n. 8 (App. Div. 2008); Khalil v. Motwani, 376 N.J. Super. 496, 499 (App. Div. 2005).
[brief] Appellant’s argument that the Court erred by not giving the requested non-standard jury charge, submitted in accordance with the holding from Mockler v. Russman, fails both procedurally and meritoriously.  I.  Appellant is Not Entitled to a Non-Standard Jury Charge; Which is Based Upon Case Law Taken Out-of-Context  First and foremost, there is no such thing as a “Mockler charge”.  Not a single case cited by Appellant, including Mockler itself, involved a jury charge consistent with that which was requested by Appellant in this matter; specifically, that a defendant who skids or slides when operating a vehicle otherwise reasonably, is not guilty of negligence.  Rather, these rear-end motor vehicle collision cases involved the denial of directed verdict(s) on the issue of negligence (as does the instant matter), the juries being instructed as to the legal definition of negligence and ultimately, returning verdicts of no negligence; the no negligence finding being later upheld upon appeal.  It is for this reason why the instant Appeal fails, as the issue of Defendant’s negligence was in fact left to the jury, to decide the matter on its merits; and whose verdict should not be disturbed, based upon the determination of negligence being supported by the factual record; just as it was in Mockler, Heibel, Calabree and Paramel {supra}.
[brief] [...]  Brief does not dispute that the trial court erred in dismissing the Complaint with prejudice—the appropriate remedy for a matter referred to arbitration pursuant to the Federal Arbitration Act is a stay rather than dismissal.  See 9 U.S.C. § 3.  Nor does [...] dispute that its Motion to Dismiss and Compel Arbitration was procedurally defective as per the Court Rules.  Rather, [...] concedes that the Motion’s procedural defects were raised by Plaintiff in the trial court and acknowledges that the trial court did not address the same.  See [...]’s Br. 7.  [...] argues that Plaintiff’s citation to Eastampton Ctr., LLC v. Planning Bd. of Tp. of Eastampton, 354 N.J. Super. 171, 187 (App. Div. 2002),¹ “is misplaced” because “the Appellate Division in Eastampton decided ¹ “Though R. 1:1-2 allows for relaxation of any court rule, “[e]very motion made to a court must ‘state the time and place when it is to be presented to the to grant the defendant an extension of time to ‘perfect’ his non-conforming motion because it would ‘secure a just determination. ’”  [...]’s Br. 6 (quoting Eastampton, 354 N.J.  Super. at 187).  However, [...] neglects that it did not seek to correct its defective Motion in the trial court.  Moreover, in reversing the trial court, the Court in Eastampton stated that their “concern is that a matter of substantial public interest should be resolved on the merits. ”  Eastampton, 354 N.J. Super. at 187.  [...] does not assert that its position and/or Motion furthers a substantial public policy interest.  After all, [...] attempts to enforce a contract which undisputedly violates the New Jersey Debt Adjustment and Credit Counseling Act (“DACCA”), N.J.S.A. 17:16G-1, et seq.  “Our courts have consistently held that public policy precludes enforcement of a contract entered into in violation of [the State's] licensing statute[s],” like DACCA.  See Accountemps Div. of Robert Half, Inc. v. Birch Tree Grp., Ltd., 115 N.J. 614, 626 (1989).  Thus, here and in the trial court, the court, the grounds upon which it is made and the nature of the relief sought and shall be accompanied by a proposed form of order. ”  Eastampton Ctr., LLC v. Planning Bd. of Tp. of Eastampton, 354 N.J. Super. 171, 187 (App. Div. 2002) (quoting R. 1:6-2(a)).  “Rule 1:1-2 provides that the rules of court shall be construed to secure a just determination.  . . .”  Id. (emphasis added). ”  Pl.’s Opening Br. 8-9.  2  “[A] municipal land use board's adoption of a new Master Plan for the municipality and a developer's attempt to gain long-term protection from zoning changes by obtaining approval of a General Development Plan. ”  Eastampton, 354 N.J. Super. at 174.  public policy interest weighs in favor of Plaintiff and [...]’s Motion being denied for its procedural defects.  Indeed, [...]’s arguments falsely conflate a decision on the merits with a “just determination. ”  See [...]’s Br. 6.  Thus, the trial court’s December 12, 2023 Order granting [...]’s Motion to Dismiss and Compel Arbitration must be reversed.
[directive] Es necesario contestar las siguientes preguntas adicionales solamente si usted está aceptando sy culpabilidad por un delito de agresión sexual con agravantes, agresión sexual o contacto sexual ilícito con agravantes o secuestro conforme a 2C:13-1c(2) o la tentativa de cometer uno de dichos N.J.S.A. delitos.  The following additional questions need to be answered only if you are pleading guilty to an offense of Aggravated Sexual Assault, Sexual Assault or Aggravated Criminal Sexual Contact or kidnapping pursuant to 2C:13-1c(2) or an N.J.S.A. attempt to commit one of these crimes.
[directive] Do you understand that if the court determines that you are drug dependent and also finds that you meet the criteria in 2C:35-14, you may be eligible to be sentenced to a N.J.S.A. mandatory period of special probation for the purpose of participating in a court-supervised drug treatment program (“Drug Court”)?  This criteria includes, but is not limited to, a finding that: (1) you are a drug or alcohol dependent person, and (2) that you were drug or alcohol dependent at the time of the commission of the present offense, and (3) that you did not possess a firearm at the time of the present offense or any pending charge, and (4) that you do not have certain prior disqualifying convictions, and (5) there is suitable treatment available for you, and (6) no danger to the community will result from your serving a “Drug Court” sentence.
[brief] The overarching purpose of the FAA is to ensure the enforcement of arbitration agreements “according to their terms”.  Id. at 1748; Volt Information Sciences, Inc. v. Board of Trustees of Leland Stanford Junior University, 489 U.S. 468, 469 (1989) (“the FAA's principal purpose is to ensure that private arbitration agreements are enforced according to their terms. ”)  In fact, Section 4 of the FAA states, in pertinent part, “A party aggrieved by the alleged failure, neglect, or refusal of another to arbitrate under a written agreement for arbitration may petition any United States district court…for an order directing that such arbitration proceed in the manner provided for in such agreement….  [T]he court shall make an order directing the parties to proceed to arbitration in accordance with terms of the agreement…. ”  (Emphasis added)  9 U.S.C.A. §4  The United States Supreme Court held that the FAA “requires courts to enforce the bargain of the parties to arbitrate. ”  Id., citing, Dean Witter Reynolds Inc. v. Byrd, 470 U.S. 213, 217 (1985).  The FAA “reflects an emphatic federal policy in favor of arbitral dispute resolution. ”  Id. (citations omitted).  State laws, even those based upon public policy considerations, that by their terms consistently interfere with a singular type of claim, e.g., insurance coverage disputes, must be struck down as conflicting with the FAA.  Id.  In the present matter, there is a valid, binding arbitration agreement between [...] and the defendant healthcare providers.
[directive] Entiendo tengo derecho abogado de que los en la los un el culpabilidad, condena y cualquier pudiera llevar a finalizar participaci6n incumplimiento que Programa Tribunal del el mi en la pagar requisitos ser por tengo representado abogado, puede reuna para Drogas.  medios para que los  Si un de los no un relacionadas Drogas, Oficio. tengo preguntas Programa Tribunal entiendo Tambien el Abogado que debo con si del de de ellas abogado.
[brief] Fuentes v. Perskie, 32 F.3d 759, 762 (3d Cir.  Employers are free to make personnel decisions objectively or subjectively, even unpopular personnel decisions, so long as unlawful conduct is no factor in those decisions.  See Maiorino v. Schering-Plough Corp., 302 N.J. Super. 323, 345-46 (App. Div. 1997).
[brief] ”  *N.J.A.C. 4A:1-1.3*.  A layoff can be permanent or temporary.  A termination on the other hand, may or may not involve fault on the part of the employee, however, a termination is a final event that ends the employment relationship.  *Black Law Dictionary* (9th Edition 2009)  There should be no real dispute as to what [...] intended to do, and what [...] understood his status was.  [Pa3,5,8,9,11,12,14,15]  This was without dispute, a separation from employment the parties anticipated was temporary and was not based on any fault of [...].  The borough chose to separate employees during COVID to save the expense of paying employees to stay home, which meets the layoff definition of “economy or efficiency.
[brief] Indeed, as the trial court explained, the ethics of managing client funds goes to the very core of our profession – it is the “way a CLE class start[s],” something that every “young attorney” learns in his “skills and methods course. ”  [1T22-10]  [...] performed Legal Services when he deposited a $100,000 settlement check on behalf of a client into the Firm’s trust account.  [Pa351a-352a]  After depositing the $100,000 settlement check, [...] continued to perform Legal Services when he wrote checks to six clients using those funds.  [...] then endorsed the checks without client authorization and cashed the checks at [...], a business in which he has a proprietary interest, and where his former paramour’s nephew was employed.
[brief] Regrettably, these incentives have led to FDCPA litigation becoming “a glorified game of ‘gotcha,’ with a cottage industry of plaintiff lawyers filing suits over fantasy harms the statute was never intended to prevent. ”  In re FDCPA Mailing Vendor Cases, 551 F. Supp. 3d 57, 61 (E.D.N.Y. 2021).  The case from which Appellant appeals is one such case.
[brief] Arbitrable PIP benefits disputes “include, but not necessarily be limited to, matters concerning” a wide array of issues including whether the treatment is eligible for compensation, whether medical practice is eligible to be compensated based on governing regulations, and whether a treatment was performed at all.  N.J.S.A. 39:6A-5.1(c)(3)-(5); see also N.J.A.C. 11:3-5.6(a)(2)-(4).  Thus, the Legislature clearly envisioned insurers like [...] having to arbitrate matters that implicated alleged fraud.  See Sabato, 337 N.J. Super. at 396.  The trial court was correct in its interpretation of the No-Fault Law.
[brief] The Authority Was Not Required to Approve Appellant’s Application.  (Aa236-45).  Appellant also argues that [...] was required to approve its application simply because its application presented a permitted use.  (See Ab21-25).  However, to require a planning board to approve an application merely because the lot conforms to bulk requirements would remove a board's discretion, turning it into a rubber stamp.  The power of the planning board exists to protect and secure what is good for the public welfare.  Kaplan v. City of Linwood, 252 N.J. Super. 538, 545 (Law Div. 1991) (citing Hamlin v. Matarazzo, 120 N.J. Super. 164, 172 (Law Div. 1972).  As noted, supra, the Authority appropriately considered how Appellant’s application will more broadly impact safety considerations related to access to and from the site, not just the proposed loading area, and the record demonstrates that the Hearing Officer noted legitimate safety concerns regarding on-site access and circulation.  In light of these concerns, [...] may not simply rubberstamp Appellant’s development application.  Rather the Authority’s decision to deny the Application is entitled to deference and should be affirmed.
[brief] (205a [18:3-9]).  [...] disbursed funds to the tax lienholder, disbursed funds to itself for closing fees, hosting the closing, notarizing document, distributing checks, and for issuing notice of settlement, tax and assessment search, tidelands search, and standard exam charge.  (206a-207a [23:23-26:16]).  [...] received a wire in the amount of $103,258 from the Plaintiff for this transaction.  (207a [29:7-15]).
[brief] Date of Submission: October 1, 2024  TABLE OF CONTENTS  I.  Plaintiff’s Failure to Comply With the Affidavit of Merit Statute Does Not Go to the Heart of the Matter and Dismissal of Plaintiff’s Complaint on That Basis Is an Unjust Result.  1  II.  Defendants’ Gamesmanship of the Affidavit of Merit Statute Is Accentuated by Their Conduct of Waiting One-Hundred and Twenty (120) Days Before Filing Their Motion to Dismiss, Rather Than Filing Said Motion after Sixty (60) Days.  3  III.  N.J.S.A. 2A:53A-28  Excused Plaintiff From Submitting an Affidavit of Merit Because a Sworn Statement Was Submitted in Lieu of the Affidavit of Merit.  6  Conclusion  10  TABLE OF CITATIONS  Alan J. Cornblatt, P.A. v. Barrow, 153 N.J. 218 (1998).................................1, 2 Burns v. Belafsky 166 N.J. 466 (2001).........................................................7  Dept. of Law Public Safety v. Bigham, 119 N.J. 646, 651 (1990)......................7  Douglass v. Obade, 359 N.J. Super. 159 (2003).............................................4  Ferreira v. Rancocas Orthopedic, 178 N.J. 144 (2003).................................passim Moschella v. Hackensack Meridian Jersey Shore Univ. Med. Ctr., No. A-7-23 (N.J. Jul. 11, 2024)....................................................................6  Sheeran v. Nationwide Mut. Ins. Co., 80 N.J. 548 (1979)...............................7  Sickles v. Cabot Corp., 379 N.J. Super. 100 (App. Div. 2005).........................3 Zaccardi v. Becker, 88 N.J. 245 (1982).........................................................3  STATUTES  N.J.S.A. 2A:53A-27..................................................................................................................1 N.J.S.A. 2A:53A-28..................................................................................................................6, 7, 10 N.J. Ct. R. 4:23-1.....................................................................................................................6 N.J. Ct. R. 4:37-2(a).................................................................................................................2  LEGAL ARGUMENT
[brief] Under the Open Public Records Act (OPRA), a requestor is obligated to identify the records he seeks with reasonable clarity.  A high degree of specificity is not needed because requestors are at an informational disadvantage—they have not seen the records that the government possesses and often know little about their contents.  Although [...]’s brief airs many grievances about being tasked with complying with OPRA, it fails to establish that Plaintiff’s request for a mere three days’ worth of emails from a single government employee’s account insufficiently identifies the records sought.
[brief] b.  The proposed amendments to the [...] redevelopment plan are relatively minor amendments, and are generally not substantive in the sense that the list of permitted uses, and the bulk requirements would remain intact.  c.  Sections 1.1 and 1.22 are not regulator sections of the redevelopment plan, and the proposed amendments to these sections would not have any impact on any future redevelopment project.  These changes are only revisions to the description of the existing conditions of the area.  d.  The changes to the list of permitted uses does not actually change the permitted uses of the plan, but only further clarifies that “parcel hub” and “fulfillment center” type warehouses and distribution centers are not what is contemplated by this plan.  This specific clause was already listed for warehouses, and this change only includes the same clause for a distribution center.  f.  The added discussion on the Master Plan consistency in Section 3.1.1 is being included as an explanation to the Committee’s reasoning for adopting this development plan.  The purpose for doing so in because a redevelopment plan is required by the Local Redevelopment and Housing Law at N.J.S.A. 40A:12A-8 to be substantially consistent with the municipal Master Plan, or designed to effectuate the Master Plan.