|
|
SAMPLE BRIEF TO THE SUPERIOR COURT OF NEW JERSEY, APPELLATE DIVISION The following appellate brief directed to the Superior Court of New Jersey, Appellate Division, is provided by Appellate Practice Services, LLC, as a writing sample. This is not intended nor should it be construed or relied upon as being legal advice. PROCEDURAL HISTORY In or around April XXXX, Plaintiff XXXXXX XXXXXX (hereinafter referred to as "XXXXXX") filed a personal injury complaint in the Superior Court of New Jersey, County of Middlesex, Law Division thereof, entitled XXXXXX XXXXXX vs. XXXXXX XXXXXX, XXXXXX B. XXXXXX, XXXXXX XXXXXX, XXXXXX Lee XXXXXX, XXXXXX Doe (1-5), XXXX XXXXXX and XXXXXX Doe (6-10), having a docket number of XXXXXXXXXXXXXX, and being presided over by the Honorable XXXX XXXXXX, J.S.C. (Pa99) On or around January 2, XXXX, Plaintiff XXXXXX Insurance Company (hereinafter referred to as "XXXXXX") filed a Complaint for Declaratory Judgment against XXXXXX seeking to disclaim him of insurance benefits regarding XXXXXX's claims. (Pa86) On or around February 19, XXXX, XXXXXX filed a motion to consolidate XXXXXX vs. XXXXXX with XXXXXXs Insurance Company vs. XXXXXX. (Not Reproduced Here.) On or around March 21, XXXX the Court granted XXXXXX's motion to consolidate. (Not Reproduced Here.) On or around May 19, XXXX, XXXXXX filed his Answer and Counterclaims to the XXXXXX Complaint. (Not Reproduced Here.) On or around May 22, XXXX, only
three days after XXXXXX filed an Answer, XXXXXX filed a motion
for summary judgment. (XXXXXX' Statement of Undisputed Facts in
opposition to the motion is located at Pa137 and his Certification
is at Pa153. XXXXXX did not file a Statement of Undisputed Facts
and never responded to XXXXXX' either.) On June 18, XXXX, XXXXXX filed an Answer to Defendant XXXXXX' Counterclaims. (Not Reproduced Here.) On June 20, XXXX Judge XXXXXX
denied XXXXXX's May 22, XXXX motion for summary judgment. (Order
is at Pa1 and Transcript is at Pa36.) On July 21, XXXX, XXXXXX filed
a motion for reconsideration of the May 22, XXXX denial of its
motion for summary judgment. On August 5, XXXX, Plaintiff
XXXXXX filed a motion for leave to file a Amended Complaint. (Not
Reproduced Here.) On August 22, XXXX, Judge XXXXXX
denied XXXXXX's motion for reconsideration and granted XXXXXX's
motion for leave to file an Amended Complaint. (Reconsideration
Order is at Pa1, Amended Complaint Order not reproduced.) On October 7, XXXX, XXXXXX filed
a motion for leave to appeal with the Appellate Division. (Not
Reproduced Here.) On October 8, XXXX, XXXXXX filed
a motion for a stay of the XXXXXX matter pending determination
by the Superior Court of New Jersey, Appellate Division, of its
motion for leave to appeal. (Not Reproduced Here.) PRELIMINARY STATEMENT This action involves an assault
of Plaintiff XXXXXX XXXXXX ("XXXXXX") that occurred
on November 26, 1994 after a wild teenage drinking party hosted
by Defendant XXXX XXXXXX. In addition to Defendant XXXXXX XXXXXX
("XXXXXX"), attending that party were Defendant XXXXXX
XXXXXX ("XXXXXX"), then age 17; XXXXXX's son, Defendant
XXXXXX XXXXXX ("XXXXXX")(who has not made an appearance
and is in default), then age 16 or 1f7; and, Defendant XXXXXX
XXXXXX ("XXXXXX")(who has not made an appearance and
is in default), then age 18 or 19. The facts herein have been reduced to meet the 25 page limit. For detailed information, the court is referred to Defendant XXXXXX's
STATEMENT OF FACTS The party at XXXXXX's house began between 11:00 a.m. and 12:00 p.m. [1T-72:3-7] and endured until after 10:00 p.m. XXXXXX and XXXXXX consumed between them a liter of whiskey; XXXXXX, XXXXXX and XXXXXX consumed 2 cases of beer; and, XXXXXX consumed a pint of vodka. [1T-75:3 to 1T-79:10; 2T-52:17 to 2T-53:2; 2T-48:17-21; 2T-51:23 to 52:2; 2T-118:3-5; 2T-119:18-22; 2T-135:15-18; 2T-136:10-15; and, XXXXXX's Answers to Req. for Admiss. Nos. 63-74 and 84 (Da1 and Da5)]. As explained elsewhere, there were arrests that pertain to this case. On the day of the arrests, viz. February 10, XXXX, XXXXXX said the following under oath to the police:
Mid-conversation with her, XXXXXX
told XXXXXX that she was coming and that he could tell XXXXXX
and XXXXXX to go to the woods and start collecting firewood. [1T-80:9-22]
XXXXXX saw XXXXXX enter the door to the basement staircase but
he could not overhear what was said between XXXXXX, XXXXXX and
XXXXXX down there. [1T-82:17 to 83:16; 1T-241:23 to 242:5] A few
minutes later XXXXXX came into the kitchen/family room where XXXXXX
was and called XXXXXX the second time. At the same time, XXXXXX
got beer and went to the porch. XXXXXX never saw XXXXXX and XXXXXX
leave the residence. [1T-237:21 to 238:12] XXXXXX saw XXXXXX arrive from
XXXXXX's porch where he and XXXXXX were sitting. [1T-81:19 to
1T-82:1; 1T-92:10-16] When she pulled up, XXXXXX walked towards
XXXXXX and XXXXXX walked towards the woods. [1T-92:21 to 93:17;
1T-99:14-17; 1T-225:10-18] XXXXXX and XXXXXX, who was still feeling
sick to his stomach from alcohol consumption, did not acknowledge
each others' presence. [1T-93:18 to 94:1; 1T-99:14-17] XXXXXX
and XXXXXX were trailing behind XXXXXX as he went. [1T-93:13-17;
1T-99:14-17] XXXXXX said there was enough
lighting to see as they walked, but it got "pitch black"
as they entered the woods where they were not using any form of
flashlight, matches or other form of illumination. [1T-94:15 to
95:10; 1T-228:15-18] XXXXXX also said "[i]t was very dark
and shadowy" and that she could only see 2 feet or less in
front of her. [2T-114:14, 20-22; 2T-118:9-25; 2T-127:25 to 128:17;
2T-129:9-11; 2T-153:25 to 155:7] XXXXXX said it was so dark that
she could only see 3-4 feet in front of her. [3T-223:14-20] XXXXXX had no idea where XXXXXX
and XXXXXX were going to be; he figured he would see the fire
as he entered the woods, but he did not. [1T-84:6-12; 1T-98:4-23;
1T-237:21 to 238:4] He was not present when XXXXXX told XXXXXX
and XXXXXX to go to the woods. [1T-83:8-16; 1T-237:21 to 238:4]
When XXXXXX was entering the woods, he called to XXXXXX and XXXXXX,
but there was no reply. [1T-99:8-13] XXXXXX testified that she
heard someone whistle, or what "sounded like" a whistle,
as XXXXXX and XXXXXX entered the woods. [2T-155:18 to 156:3; 2T-225:3-13]
XXXXXX just kept walking when
he entered and he did not turn to see where XXXXXX and XXXXXX
were. [1T-99:14-17 to 100:1] XXXXXX said that she could not see
XXXXXX as she entered, but he was somewhere in front of them.
[3T-93:1-21; 3T-94:16-19; 3T-129:18-20; 3T-189:25 to 190:3] The first time that XXXXXX "came
across" XXXXXX and XXXXXX was after the assault had already
started and he was already 30-40 feet ahead of them. [1T-100:2
to 101:6] He knew something was happening when there was a "rukus"
of a sort behind him and he heard a word or couple of words said
by a female. [1T-100:13 to 101:6; 1T-102:8-13; 1T-228:9-14] He
then walked towards the commotion in the darkness and he could
not recall whether he could somewhat see the commotion, whether
it was vibes or instinct or otherwise. [1T-100:13 to 103:8; 1T-228:15-18;
1T-229:4-17] He "half s[aw] it and half sens[ed] it".
[1T-102:14-22; 1T-229:4-17] When he got that close, he could see
XXXXXX, who was on the ground or halfway to the ground, and XXXXXX
attacking her with an object. [1T-102:23 to 104:9] He could not
see what the object was, give an estimation of its size, he did
not hold it and he does not know what happened to it afterwards.
[1T-108:13 to 109:3] XXXXXX immediately tried to retrain
XXXXXX, but she "was going nuts" and "[j]ostling,
just like ripping away but with her whole body, like with her
right arm trying to rip away", which caused him to slip and
fall. [1T-103:4-18; 1T-104:10-19; 1T-228:22 to 229:3; 1T-230:8-16]
When he fell, XXXXXX continued the attack and when he grabbed
her a second time he ripped her off of XXXXXX and that was the
end of it. [1T-104:20 to 106:17; 1T-107:3-14; 1T-230:17-25]
XXXXXX also testified that she did not know where XXXXXX was when the attack began. [2T-156:17-20; 2T-158:17-25] She does not recall how it came about that she stopped assaulting XXXXXX, and she does not recall XXXXXX or anyone else pulling her off of XXXXXX that night. [2T-221:4-14; 2T-222:9-17] Although she did not recall during her deposition whether XXXXXX pulled her off, she remembered being so restrained when she made a statement to the police on the day of her arrest. (Da1)
XXXXXX's account of the incident is where there is a sharp dispute. There was never an allegation by her or the prosecutors that anyone touched or attempted to touch her other than XXXXXX until she retained a personal injury attorney seven years later. (Pa143, Para. 36-37; Pa147-Pa148, Paras. 53-57; Pa160, Para. 19; Pa163, Para. 23; Pa168, Para. 40) She made the following statement on February 8, XXXX to the XXXX Police under oath:
There were arrests in February
XXXX and convictions in October XXXX and then she filed the instant
civil action in April XXXX asserting an entirely new set of facts.
The following are her new allegations. XXXXXX testified that she took
about 20 steps into the woods and she was hit "in the back
of her skull". [3T-93:22 to 94:9; 3T-188:18 to 189:12] She
did not know where XXXXXX was when she got hit. [3T-94:16-19]
Although she did not actually see XXXXXX club her the initial
time [3T-97:25 to 98:8], but she saw her hitting her as she continued
to swing. [3T-94:20 to 95:4] She was positive it was a female
hitting her. [3T-130:7-25] When XXXXXX was done, XXXXXX and XXXXXX
allegedly grabbed the cue and beat her and then allegedly raped
and urinated upon her. [3T-213:13 to 216:23; 3T-102:11 to 104:9]
Those are totally new allegations,
and XXXXXX denies them. (Pa163, Para. 23; Pa142-Pa143, Paras.
32-33) He did not hit, rape or urinate upon her and he has no
knowledge that anyone else did so either (except for XXXXXX who
non-sexually assaulted her). (Pa163, Para. 23; Pa168, Para. 40;
Pa142-Pa143, Paras. 32-33) XXXXXX has no knowledge of XXXXXX being
raped by anyone or being hit by any person other than herself.
[2T-81:8-17; 2T-83:4-5; 2T-83:8 to 84:7] When asked if she saw
XXXXXX rape her, she responded, "No, absolutely not."
[2T-83:6-7] The evidence adduced during XXXXXX'
plea hearing was conflicting due to the fact that the trial judge
refused to accept the plea agreement unless XXXXXX admitted that
he knew that there was going to be an assault. The facts pertaining
to this are as follows. On February 10, XXXX, XXXXXX,
XXXXXX, XXXXXX and Defendant XXXXXX were arrested and charged
with aggravated assault. [1T-126:3-5] XXXXXX was charged with
the actual assault, and XXXXXX, XXXXXX and XXXXXX were charged
as accessories. [1T-126:11-12] On July 26, XXXX, XXXXXX, XXXXXX,
XXXXXX and XXXXXX pled guilty as charged before the Honorable
XXXX, J.S.C. (See XXXXXX' Cert. In Opposition to Plaintiff's Mtn.
For Summary Judgment at Pa-163, Para. 24) XXXXXX' reasons for accepting the plea were not put on the record during the plea hearing, and he was not invited to do so. The reasons included that
XXXXXX was confused during the
plea and did not understand many aspects of it. He was confused
about whether the prosecutor was going to speak and he was confused
about what his sentence was going to be. [1T-167:12 to 168:19]
(See XXXXXX' Cert. In Opposition to Plaintiff's Mtn. For Summary
Judgment at Pa-163, Para. 26-27.) At one point, Judge XXXX was
going to reject the plea based upon XXXXXX' account of what happened
until XXXXXX' attorney intervened and said, "Judge may I
ask a couple of questions …?" To this, Judge XXXX responded,
"Oh, you'd better." (See XXXXXX' Cert. In Opposition
to Plaintiff's Mtn. For Summary Judgment at Pa-163, Para. 29;
July 26, XXXX Plea Transcript, at Pa-128 to 130, 20:9 to 22:15)
The Judge's demeanor and tone of voice when he said, "Oh, you'd better", intimidated XXXXXX in that he was the judge who would be doing the sentencing. He was all the more nervous because the testimony he tried to offer which infuriated the court was the truth. (See XXXXXX' Cert. In Opposition to Plaintiff's Mtn. For Summary Judgment at Pa-163, Para. 30.) The quote in question provides that,
His answer regarding what his participation was in the incident was that he was present and he did not intervene quick enough. In order to accept the plea, Judge XXXX demanded an admission from XXXXXX that he knew that the attack was going to occur. So XXXXXX provided the statement in a sentence where he was stuttering: "I let - I let - I let the attack occur." (Plea Transcript, Pa129-Pa130, 21:12 to 22:7.) LEGAL ARGUMENT POINT I LEAVE TO APPEAL SHOULD BE DENIED BECAUSE THE TRIAL COURT PROPERLY EXERCISED ITS DISCRETION IN NOT APPLYING THE DOCTRINES OF JUDICIAL AND COLLATERAL ESTOPPEL The trial court's decision not
to apply the doctrines of judicial- or collateral estoppel to
prohibit XXXXXX from clarifying statements he made during his
plea hearing was a sound decision because the statements made
were conflicting. XXXXXX may have admitted that he knew that XXXXXX
was going to be assaulted, but he also said that his only participation
in the event was that he was present, which implies that he did
not know that XXXXXX was going to be assaulted. He was even stuttering
when the court was badgering him to admit that he knew that the
assault was going to occur before it did. The reasons that a criminal defendant
may plead guilty are not always related to guilt or innocence.
In Prudential Prop. & Cas. Ins. Co. vs. Kollar, 243 N.J. Super.
150 (App. Div. 1990), the Court said that, "The motives for
the State and a criminal defendant to make a plea agreement are
many. The State may be seeking to conserve its scarce resources
by avoiding a trial and a defendant may be attempting to secure
his freedom or at least a reduced term of incarceration."
Id. at 155. While XXXXXX argues that the
trial court erred in failing to apply judicial estoppel to pin
XXXXXX to the statement that he knew that there was going to be
an assault, it could also be said that the court erred in not
pinning XXXXXX to the statement that his only participation in
the event was that he was present when it transpired. A court
that is confronted with such conflicting statements has a duty
to seek clarification, and that is merely all the trial court
below did: Allow XXXXXX to clarify the statements. Application of the doctrine of
judicial estoppel is discretionary, and after observing the demeanor,
body language and sincerity of XXXXXX, a pro se litigant, during
a summary judgment and related reconsideration hearing, the court
decided to exercise that discretion in the form of declining to
apply judicial estoppel to the case. "Whether the integrity of
the courts may be compromised by a party taking inconsistent positions
… is a determination committed to the court's sound discretion."
State, Dept. of Law and Public Safety, Div. of Gaming Enforcement
v. Gonzalez, 273 N.J. Super. 239, 258 (App. Div. 1994). See also
State, Div. of Motor Vehicles v. Caruso, 291 N.J. Super. 430,
438 (App. Div. XXXX) (judicial estoppel is discretionary). Although XXXXXX's Brief does
not explicitly say so, it implies that XXXXXX is collaterally
estopped from clarifying the statements he made during the plea
hearing. It uses the term "judicial estoppel" rather
than "collateral estoppel" as a game of semantics because
there is a wide-body of law holding that collateral estoppel is
inappropriate under these circumstances. The doctrine of collateral estoppel should only be applied when the following elements are met:
See also State of New Jersey
Department of Law and Public Safety, Division of Gaming vs. Gonzalez,
273 N.J. Super. 239 (App. Div. 1994). "[T]he issues …
must be identical, Ettin v. Ava Truck Leasing, Inc., 53 N.J. 463,
251 A.2d 278 (1969), and the earlier proceedings must have afforded
a 'full and fair opportunity' … to litigate the contested
issue." Id. at 242. Collateral estoppel is also totally inappropriate because the criminal case was disposed of by plea agreement, not jury trial. In Prudential Prop. & Cas. Ins. Co. vs. Kollar, 243 N.J. Super. 150 (App. Div. 1990), it was held that the application of collateral estoppel is inappropriate where the defendant pled guilty, rather than being convicted after a trial. Both the subject in Kollar and XXXXXX in State vs. XXXXXX pled guilty. Neither of them were convicted after a trial. We have applied collateral estoppel
ONLY where the conviction definitively and unambiguously established
the nature of the insured's intent AND where such conviction was
the result of a trial, not a plea. A party is collaterally estopped
from relitigating an issue only where he has had a full and fair
opportunity to litigate it in a previous action. A plea proceeding
is not such a full and fair litigation of the issues. Rather,
… it represents the decision of the defendant to forego such
litigation and usuallyfor reasons having little or nothing to
do with the nature of the issues. Terrell may not, therefore,
be precluded from relitigating the issue of his intent. This has been the law for at least the past 56 years. "When in a collateral civil proceeding the issue is one of guilt or innocence, the plea is not binding for the same wrong and the defendant is not estopped to deny his guilt." Kravis vs. Hock, 136 N.J.L. 161, 165 (E & A 1947). XXXXXX' plea did not "definitively and unambiguously" establish the nature of his intent. All the plea transcript "definitively and unambiguously" establishes is that conflicting statements were made. There are plenty of other caselaws
on this topic too, such as XXXXXXs Ins. Co. v. Chartwell Manor
School, 280 N.J. Super. 457 (App. Div. XXXX). There, the court
held that a plea of guilty to child endangerment did not bar an
assertion during a subsequent civil action that the insured lacked
the subjective intent to commit the act. Id. at 465-66. The Court is also referred to
Burd v. Sussex Mutual Ins. Co., 56 N.J. 383 (1970). There, our
Supreme Court held that a criminal conviction is not conclusive
as to whether the insured subjectively acted with an intentional
state of mind. Id. at 398-99 (citations omitted). Moreover, in
Kollar, the court held that, "Terrell's arson conviction
standing alone does not establish that he intended the property
damage which resulted." Kollar, supra, at 154. XXXXXX did not have "his
day in court". The underlying issues were not fully and fairly
examined during XXXXXX' plea hearing, the claims here are not
the same as the charges there, the plea hearing did not address
whether he consumed alcoholic beverages on the night in question,
whether he was drunk, whether he ran to XXXXXX's aide, and the
like. In fact, expert reports concerning XXXXXX' intoxication
are not even due until November 7, XXXX. XXXXXX' guilty plea and the conflicting
statements made during it simply do not constitute conclusive
evidence that he acted intentionally or that his judgment was
not impaired by alcohol consumption. POINT II
THE SUMMARY JUDGMENT MOTION AS WELL AS THIS MOTION FOR LEAVE TO APPEAL ARE PREMATURE IN THAT MATERIAL DISCOVERY IS STILL BEING EXCHANGED In Burd v. Sussex Mutual Ins. Co., 56 N.J. 383 (1970), the Supreme Court held that what may otherwise be a particularly reprehensible or intentional act and not entitled to insurance coverage may be entitled to coverage if the insured proves that he or she was intoxicated at the time. Burd involved a shooting by a drunk man and the Supreme Court found that coverage was available solely due to the intoxication. XXXXXX has proven intoxication and XXXXXX has no proof to the contrary. [1T-75:3 to 1T-79:10; 2T-52:17 to 2T-53:2; 2T-48:17-21; 2T-51:23 to 52:2; 2T-118:3-5; 2T-119:18-22; 2T-135:15-18; 2T-136:10-15; and, XXXXXX's Answers to Requests for Admission Nos. 63-74 and 84 (Da1 and Da5)]. In addition, expert reports concerning the effect of the alcohol upon him are not due until November 7, XXXX. Therefore, beside the fact that the summary judgment the proceedings were resolved in XXXXXX' favor, the motions were totally premature and the Court should dismiss this motion as such. POINT II THE TRIAL COURT HELD THAT THERE WAS A DUTY TO DEFEND UNDER THE CIRCUMSTANCES, BUT NOT NECESSARILY A DUTY TO INDEMNIFY XXXXXX claims that the conduct
engaged in by XXXXXX was particularly reprehensible. In support
of that argument, however, all it does is refer to XXXXXX' plea
transcript which, as set forth in Point I, surpa, is subject to
scrutiny, and the XXXXXX's deposition which contravenes 7 years
worth of established facts and that have only been raised in the
midst of a personal injury action where she is seeking a monetary
award. Under the circumstances, the
trial court did not err in holding that there is a duty to defend
because the facts as established over the 7 years prior to the
filing of the civil action, incorporated with XXXXXX' detailed
explanation of the conflicting statements made during the plea
hearing, only establish an act of negligence, notwithstanding
the XXXXXX is alleging an intentional act. Moreover, the trial court has
not left XXXXXX without a remedy if it is proven that XXXXXX did
sexually or non-sexually assault XXXXXX. The court held that there
will be no coverage if that is the case. (Pa1) While XXXXXX contends that XXXXXX
is prohibited from obtaining coverage for herself merely by labeling
an intentional act an act of negligence, a plaintiff is also prohibited
from seeking retribution by way of labeling an act of negligence
an intentional one with the intent of obtaining a personal judgment
against the alleged tortfeasor. The arguments are one and the
same, just worded differently. It was not until XXXXXX obtained
a personal injury attorney that her story changed to include claims
of sexual assault and claims that XXXXXX and XXXXXX, in addition
to XXXXXX, attacked her. That is not a fact that may be lightly
disregarded by the court. CONCLUSION The trial court did not abuse its discretion in this case, and it held that there will be no coverage if it is found that XXXXXX personally assaulted XXXXXX in anyway. (Pa1) Leave to appeal should be denied. Respectfully Submitted,
Dated: October 13, XXXX |
 |
Home / Contact Us / Third Circuit Sample Brief / NJ State Sample Brief 1 / NJ State Sample Brief 2
NJ State
Sample Brief 3 / NJ State Sample Brief 4/
NJ State Sample Brief 5 / Site
Map / N.J. Appellate Practice