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SAMPLE SUMMARY JUDGMENT BRIEF
The following is a sample summary judgment
brief to the Superior Court of New Jersey, Law Division, drafted by
On-Point Paralegal Services, LLC. Personal information has been omitted.
We have done our best to preserve the formatting of the brief when converting
it to html code for display on the Internet.
TABLE OF CONTENTS
TABLE OF AUTHORITIES …………………………………………………….………..
3
PROCEDURAL HISTORY ………………………………………………………….……
5
COUNTER-STATEMENT OF FACTS ….……………...……………………….…..……
6
LEGAL ARGUMENT
I. THE INSTANT MOTION FOR RECONSIDERATION IS
ACTUALLY A SECOND MOTION FOR SUMMARY JUDGMENT
IN THAT IT RAISES ISSUES NOT RAISED DURING THE INITIAL
SUMMARY JUDGMENT PROCEEDINGS
………………………………………………………………………..…….…….………….
27
II. RECONSIDERATION IS INAPPROPRIATE UNDER THE
CIRCUMSTANCES PRESENTED HERE
……………………………………………………………………..…….………….………
27
A. The Plea Agreement ……………………….………….………….……….………
29
B. The Claims are Dramatically Different .….…………………….……….………
34
C. The Judicial Estoppel Caselaws Cited by XXXXXX
Are Off-Point …………….. 34
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D. The Inconsistencies are Unintentional .….…………………..….……….………
35
E. XXXXXX Never Admitted What He Expected or Intended
.….…………..……… 36
F. The Application of Judicial Estoppel is Discretionary
.……….………..……… 36
III. THE QUESTION HERE IS INTENT TO INJURE,
NOT INTENT TO ASSAULT
……………………………………………..…….…..…..…..……..
37
IV. XXXXXX BEARS THE BURDEN OF PROOF
THROUGHOUT THIS ENTIRE CASE
………………………………………………………………………..…….…….….………
38
V. XXXXXX IS INCORRECT IN STATING THAT THE
COURT IS REQUIRED TO ASSUME THAT ALL FACTS PRESENTED
IN PLAINTIFF XXXXXX'S COMPLAINT ARE TRUE
……………………………………………………………………..…….……...……..……
39
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VI. ISSUES PERTAINING TO CREDABILITY AND WHETHER
STATEMENTS ARE "SELF SERVING" ARE JURY QUESTIONS
……………………………………………………………………..…….……...……..……
40
CONCLUSION …………………………………………………………………...……….
41
TABLE OF AUTHORITIES
American Motorists Ins. Co. vs. L-C-A Sales Co.,
55 N.J. 29 (1998) ………………………………………………………………………….
38
Anderson v. Liberty Lobby, Inc.,
477 U.S. 242 (1986) ……………………………………………………………………...…
40
Aviation Charters, Inc. v. Avemco Ins. Co.,
335 N.J. Super. 591 (App. Div. 2000) …………………………………………………..…
38
Bayshore Sewage Company vs. Dept. of Environmental Protection,
122 N.J. Super. 184 (Ch. Div. 1973), aff'd
131 N.J. Super. 37 (App. Div. 1974) …………………………………………….…………
29
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Beattystown Community Council vs. Dept. of Environmental
Protection,
313 N.J. Super. 236 (App. Div. 1998) ……………………………………………………...
29
Burd v. Sussex Mutual Ins. Co.,
56 N.J. 383 (1970) ……………………………………………………………..…………….
39
Cosme vs. Figueroa,
258 N.J. Super. 333 (Ch. Div. 1992) ………………………………………………………
29
C.R. v. J.G.,
306 N.J. Super. 214 (Ch. Div. 1997) ………………………………………….……………
35
Cummings vs. Bahr,
295 N.J. Super. 374 (App. Div. 1996) ………………………………………….…….……
28
D'Amato by McPherson v. D'Amato,
305 N.J. Super. 109 (App. Div. 1997) ……………………………………………..………
40
D'Atria vs. D'Atria,
242 N.J. Super. 392 (Ch. Div. 1990) ………………………………………………………
28
Grodjesk vs. Jersey City Medical Center,
135 N.J. Super. 393 (Ch. Div. 1975) …………………………….…………………………
29
Harleysville Ins. Co. vs. Garitta,
170 N.J. 223 (2001) …………………………………………..…………………………
32, 39
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Hartford Acc. & Indem. Co. vs. Aetna Life & Cas.
Ins. Co.,
98 N.J. 18 (1984) ………………………………………………………………...………….
39
In the Matter of the Application of the County of Bergen,
268 N.J. Super. 403 (App. Div. 1993) ……………………………...………………………
29
Kimball Int'l, Inc. vs. Northfield Metal Prods.,
334 N.J. Super. 596 (App. Div. 2000) …………………………….……………………
35, 37
Levin v. Robinson, Wayne & La Sala,
246 N.J. Super. 167 (Law Div. 1990) ……………………………………………………...
35
Morales vs. County of Hudson,
236 N.J. Super. 406 (App. Div. 1989) ………………………………..……………………
29
McDermott v. Botwick,
38 N.J. Super. 528 (App. Div. 1956) ………………………………………………………
41
Nobero Co. vs. Ferro Trucking, Inc.,
107 N.J. Super. 394 (App. Div. 1969) ………………………………………..……………
40
Prudential Prop. & Cas. Ins. Co. vs. Kollar,
243 N.J. Super. 150 (App. Div. 1990) …………………………………………..…………
30
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Ramer v. New Jersey Transit Bus Operations, Inc.,
335 N.J. Super. 304 (App. Div. 2000) ………………………………………………………
37
Reisman v. Great American Recreation, Inc.,
266 N.J. Super. 87 (App. Div. 1993) ………………………………………………….……
40
Reliance Ins. Co. vs. Armstrong World Indus., Inc.,
292 N.J. Super. 365 (App. Div. 1996) ………………………………………………..……
39
Rocco v. New Jersey Transit Rail Operations, Inc.,
330 N.J. Super. 320 (App. Div. 2000) ……………………………………………...………
40
Rosario ex rel. Rosario v. Haywood,
351 N.J. Super. 521 (App. Div. 2002) ……………………………………..………………
38
State, Div. of Motor Vehicles v. Caruso,
291 N.J. Super. 430 (App. Div. 1996) ………………………...……………………………
36
State, Dept. of Law and Public Safety, Div. of
Gaming Enforcement v. Gonzalez,
273 N.J. Super. 239 (App. Div. 1994) ………………………………………...……………
36
Strauss vs. Township of Holmdel,
312 N.J. Super. 610 (Law Div. 1997) ……………………………………………..………..
28
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Trantino vs. New Jersey State Parole Board,
166 N.J. 113 (2001), modified, 167 N.J. 619 ………………………………………………
28
Worthington vs. Fauver,
88 N.J. 183 (1982) …………………………………………………………..………………
29
PROCEDURAL HISTORY
Defendant XXXXXX will rely upon the Procedural History
set forth in his Legal Brief in response to XXXXXXs' motion for summary
judgment except to add the following:
On June 20, 2003 Judge XXXXXX denied XXXXXX's May 22,
2003 motion for summary judgment.
On June 30, 2003 Plaintiff XXXXXX filed a motion to Order
the XXXXXX Township Board of Education to provide her with the juvenile
school records for XXXXXX B. XXXXXX without Mr. XXXXXX' written authorization.
COUNTER-STATEMENT OF FACTS
The extensive facts of this case are set forth in the
Certification of XXXXXX J. XXXXXX provided in response to XXXXXXs' motion
for summary judgment (hereinafter referred to as "XXXXXX' Certification").
The following is a clarification of those facts in light of the depositions
that transpired since the June 20, 2003 oral argument of that motion.
All facts and arguments already set forth in the XXXXXX Certification
are incorporated herein by reference.
A. History of Wild Parties at the XXXXXX Residence.
It is relevant for the Court to bear in mind that the
incident in question transpired after a wild teenage drinking party at
the residence of Defendant Michelle XXXXXX (hereinafter referred to as
"XXXXXX"). Defendant XXXXXX's residence was a party type atmosphere
for local teenagers on a consistent, daily basis, not just on the night
in question. While XXXXXX argues that XXXXXX' testimony is "self-serving"
as to his intoxication, the Court should keep the following testimony
in mind as to exactly what a circus the XXXXXX residence was. Plaintiff
XXXXXX and Defendants XXXXXX both provided detailed and extensive testimony
about the activities that went on there.
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XXXXXX testified during his deposition that he and Defendant
John XXXXXX had visited the XXXXXX residence on a regular basis for months
before the November 1994 incident. On those occasions, they consumed alcoholic
beverages and played pool with Defendant XXXXXX XXXXXX (hereinafter referred
to as "XXXXXX"), who was XXXXXX's sixteen-year-old son. That
went on for months, several days per week. [1T-59:18 to 1T-60:11; 1T-61:16-24;
1T-64:18-23] When asked to described XXXXXX' bedroom, XXXXXX said,
Q Can you describe XXXXXX XXXXXX' bedroom for me back
in 1994?
A It was a pigsty.
Q Tell me what you mean by that.
A Cigarette butts everywhere, overflowing ashtrays,
turned over ashtrays, beer cans, fast food boxes on the floor, drawings
on the walls, it was a dump. It was a dump, sheets not on the bed or
half on the bed and half hanging off the bed, liquor bottles, joints,
pot pipes, knives on the dresser, it was a dump.
* * * *
Q You mentioned liquor bottles, what kind of liquor
bottles?
A Whiskey, Jack Daniels, that's all he drank, Jack
Daniels.
Q Full, empty?
A I don't recall.
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Q You mentioned pot pipes, what kind of pot pipes?
A Marijuana pipes.
Q What do they look like?
A Little metal pipes with the little marijuana chimney
on them.
Q How big were they?
A Less than three inches, three inches.
Q You said knives, what kind of knives?
A Folding knives.
Q How many of those?
A I recall one.
[1T-136:11 to 138:9]
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Plaintiff XXXXXX XXXXXX (hereinafter referred to as "XXXXXX")
testified likewise. When asked to describe the bedroom of Defendant XXXXXX
as to an occasion when she visited prior to the night in question, XXXXXX
said there was a huge swastika painted on the wall, it was dirty, there
were overflowing ash trays, there were no sheets on the bed, there were
beer bottles everywhere and there was a "pot pipe laying around"
and a marijuana cigarette in one of the ash trays. [3T-60:19 to 3T-61:9;
3T-166:21 to 3T-167:15; 3T-168:18 to 3T-169:2; 3T-178:9-18] The size of
the swastika on the wall was about a foot-and-a-half by two feet in dark
ink on a white wall that would have been plainly visible to anyone looking
into the room. [3T-61:15 to 3T-62:10] At that time, she was in the eighth
grade when she was so offered the alcoholic beverages. She also observed
XXXXXX and XXXXXX consuming such beverages at the XXXXXX residence. [3T-167:24
to 3T-168:14; 3T-178:19-25]
XXXXXX also testified regarding the spray painted swastika on the wall
[1T-136:19 to 137:11] and XXXXXX admitted its presence, that she knew
what a swastika stood for and that she never discussed the swastika with
her son. [4T-41:7 to 42:16]
All of these activities were known and permitted by XXXXXX
in her household. XXXXXX testified that on six to eight occasions he personally
observed XXXXXX sitting on the couch in her living room while there was
a significantly noticeable smell of marijuana emanating from XXXXXX' bedroom
area into the living room. [1T-138:25 to 139:25] XXXXXX even purchased
alcoholic beverages for XXXXXX and XXXXXX to drink on a weekly basis,
both of whom were under the legal age for consuming such beverages. She
bought XXXXXX and XXXXXX a case of beer per week. [1T-61:16 to 1T-66:24]
XXXXXX personally observed XXXXXX on at least two occasions bringing cases
of beer into the garage of the XXXXXX residence where XXXXXX and XXXXXX
usually stashed their beer to keep it cold. [1T-62:6 to 1T-63:2] XXXXXX
himself also brought alcoholic beverages on occasion to the XXXXXX residence,
as did other of XXXXXX' friends who were under the legal drinking age.
[1T-63:3 to 1T-64:5] XXXXXX consumed alcoholic beverages at the XXXXXX
residence on occasion directly in front of Michelle XXXXXX. [1T-66:17-24]
XXXXXX was never in XXXXXX' bedroom and she said that
the night in question was her first time visiting the XXXXXX residence.
[2T-59:14-15; 2T-37:3-12; 2T-47:20-23; 2T-91:19-23] She had no testimony
to offer pertaining to occasions prior to November 26, 1994.
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B. The Party at the XXXXXX Residence on the Night of the Incident.
As to the party and related alcohol consumption on the
night in question at the XXXXXX residence which began between 11:00 a.m.
and 12:00 p.m. [1T-72:3-7], the following facts from XXXXXX' transcript
are informative. The Court is kindly asked to indulge the lengthy quote.
Q Do you recall approximately when Miss XXXXXX came
to the XXXXXX residence that evening?
A I think it was about ten.
Q Approximately 10 p.m.?
A About ten, and that could have been give or take
a half hour, you know.
Q Either way?
A Yeah, either way.
Q Now, from the time that Miss XXXXXX arrived at the
XXXXXX residence up to the approximate time when Miss XXXXXX arrived
at the XXXXXX residence did you, Miss XXXXXX, Mr. XXXXXX and Mr. XXXXXX
remain predominantly in the basement area of the XXXXXX home?
A Yeah. The bathroom is upstairs, you know, you drink
and you're running up to the bathroom all the time, but predominantly
yes, we were in the basement.
Q Now, on the day of the incident but before Miss
XXXXXX came to the XXXXXX home that evening other than beer were you
drinking anything else?
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A Yes.
Q What?
A Whiskey.
Q And prior to Miss XXXXXX having arrived at the XXXXXX
residence can you give me an estimation as to how many beers you had?
A Probably more than a 12-pack, probably 15 or so.
Q And can you give me an estimation as to how many
ounces of liquor or whiskey you had that day before Miss XXXXXX came
to the home?
A That was almost gone. XXXXXX and I were drinking
the whiskey, the Jack Daniels, we were drinking that and I think there
was probably an inch, maybe an inch-and-a-half in the bottom of the
bottle of that.
Q What was the size of the bottle?
A A liter.
Q Was it a fresh bottle at the beginning of the day?
A Yeah.
Q Can you give me any estimation as to how many ounces
of whiskey you drank prior to Miss XXXXXX having arrived?
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A I don't want to mess with ounces, I don't know how
many ounces is in a liter or anything like that, so I'm not going to
guess with ounces.
Q How were you drinking the whiskey, in a glass, from
the bottle or something else?
A We had cans of beer. I don't know when the last
time you did this was, you poked a hole in the can and we were pouring
the whiskey in the top of the can and it goes in the beer and you chug
it down, like that, so it was kind of like that.
Q You're describing -- you're talking about shooting
beers, you invert the beer, open the -- use a can opener on the bottom
of the can to open it and then you open the tab at the bottom?
A Yeah, it's just poke a hole and beer squirted everywhere,
then you pulled the top off and you drink and he's pouring the whiskey
in the thing.
Q Do you have any recollection as to the number of
beers Mr. XXXXXX drank prior to Miss XXXXXX having arrived?
A He didn't really drink, maybe two throughout the
day.
Q Do you have any recollection as to how many beers
Miss XXXXXX drank that day before Miss XXXXXX arrived?
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A I didn't count, but she was drinking along with
us. She didn't drink 15 beers or anything, but she was chugging them
along.
Q Did she drink more than a six-pack?
A Sure, yeah, she probably drank about ten, and she
didn't like whiskey, she liked vodka, so she didn't like do it with
the hole in the bottom of the can like everybody else, but she was drinking
vodka out of the bottle. I think she had a pint of vodka.
Q The pint of vodka, was that a new bottle or had
that already been opened?
A I believe it was a new bottle, but I didn't hold
it and look at it.
Q Besides Miss XXXXXX was anyone else drinking vodka?
A No.
Q By the time that Miss XXXXXX had arrived at the
scene do you recall how much vodka remained in the bottle?
A She drink the bottle of vodka, the pint of vodka.
Q So at the time that Miss XXXXXX arrived at the XXXXXX
home Miss XXXXXX had already finished off the pint of vodka?
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A That's correct, the pint of vodka and I guess about
ten beers or whatever.
Q Was Mr. XXXXXX also drinking?
A The whiskey and the beer.
Q Do you recall approximately how many beers Mr. XXXXXX
had?
A You know, maybe the same as I had, maybe ten or
15. Maybe he had the 15.
Q And he was also drinking whiskey?
A Yeah.
Q Between you and Mr. XXXXXX who drank the more whiskey?
A I don't know that.
[1T-75:3 to 1T-79:10]
Defendant Jacqueline XXXXXX testified that she was "heavily intoxicated"
by nightfall on the night in question. [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] That day, she consumed
approximately 8 beers, and on average "a few" was considered
a lot for her. [2T-52:17 to 2T-53:2] At that time she was 5'1 or 5'2 and
about 120 pounds. [2T-138:18-20]
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XXXXXX had knowledge that both XXXXXX and XXXXXX were
also consuming alcohol throughout the day, but she does not know how much
they had to drink. [2T-51:3-7; 2T-53:3-11; 2T-55:1-8; 2T-56:9-24] She
does not "specifically recall" what kind of alcohol was being
consumed and she does not know where it was obtained from. [2T-51:8-12;
2T-57:4-8]
XXXXXX was so intoxicated that she vomited "several
times" later in the night and she recalls that she vomited outside
of the XXXXXX house. [2T-61:3 to 2T-63:25] She just "vomited, and
vomited and vomited". [2T-63:18-25] She vomited both before and after
she assaulted XXXXXX and she continued drinking even after she vomited.
[2T-74:17 to 2T-75:1; 2T-99:24 to 2T-100:22]
When XXXXXX arrived at the XXXXXX house on the night
in question, that was her first time being there that day. She had no
knowledge as to how much, if any, alcohol and/or illegal drugs were used
throughout the day by Defendants XXXXXX, XXXXXX, XXXXXX and XXXXXX. She
also had no knowledge as to whether XXXXXX was drunk or "high"
when she arrived at the XXXXXX residence, and she did not pay attention
to and had no knowledge regarding whether he was walking abnormally, whether
his speech was slurred or the like which would indicate that he may or
may not have been intoxicated at the time. All she knew was that XXXXXX
was drinking a beer that he was holding when she pulled up in a car. [3T-90:8-11;
3T-129:3 to 3T-130:6]
C. Events Prior to Inviting XXXXXX to the XXXXXX
Residence.
Throughout the afternoon of the "night in question",
XXXXXX had exhibited some dislike for XXXXXX. XXXXXX was the first person
to bring up XXXXXX's name that day. [1T-86:2-12] Throughout the afternoon,
and beginning between 12:30 p.m. and 3:30 p.m., on the night in question
XXXXXX referred to XXXXXX as a "bitch" and occasionally said
things such as, "[C]all that bitch over here". [1T-86:13 to
1T-87:1; 1T-90:20 to 1T-91:2; 1T-222:16 to 223:2; 1T-183:17 to 184:9]
The source of XXXXXX's discontent with XXXXXX was that XXXXXX was associating
with Dominick XXXXXX, who was a former affiliate of the XXXXXX Group,
which was a XXXXXX related group that all of the parties were affiliated
with in one way or another. XXXXXX did not find that relationship to be
appropriate. [1T-87:2-16] XXXXXX kept mentioning XXXXXX's name and calling
her a bitch on-and-off for the remainder of the afternoon and into the
evening. [1T-91:3-10] XXXXXX himself did not "care for" XXXXXX,
but he did not have ill feelings towards him. [1T-88:2-5] XXXXXX was becoming
rowdier as the time passed and she continued consuming alcoholic beverages.
[2T-123:10 to 124:2]
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D. The Decision to Goto The Wooded Area and Reasons Therefor.
Later in the night - somewhere in the vicinity of 9:00
p.m. to 10:00 p.m. - XXXXXX wanted to invite XXXXXX over the XXXXXX residence
and go across the street from the XXXXXX residence to a wooded area and
build a bonfire (as XXXXXX, XXXXXX and he sometimes did) and continue
drinking. [1T-79:11-25; 1T-80:9-11; 1T-81:2-13; 1T-85:8-18; 1T-240:7 to
241:5] XXXXXX testified that it was not unusual for them to build bonfires
on the beach or in the woods. [1T-34:2-10; 1T-81:2-13]
Q Had you ever been at the XXXXXX residence in which
at some point in time you went into the woods to have a bonfire?
A Yeah, sometimes, yeah. Not like big bonfires, just
a couple pieces of wood.
Q On how many occasions before November 26, 1994 had
you done that?
A Maybe three.
Q Were these at the same woods at which the alleged
incident took place on November 26, 1994?
A That's correct.
[1T-81:2-13]
XXXXXX was totally intoxicated at the time that the telephone call was
made by him to XXXXXX and he was feeling sick from intoxication. [1T-197:24
to 199:14]
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XXXXXX testified that she has no knowledge one-way-or-the-other
as to whether XXXXXX and XXXXXX used to hang out in or build bonfires
within the woods across the street from the XXXXXX residence or whether
XXXXXX and XXXXXX used to consume alcoholic beverages there. [2T-90:15
to 91:2] Likewise, XXXXXX also had no such knowledge one-way-or-the-other
in that she had never attended one of those parties in the woods. [3T-92:15-17]
E. Inviting XXXXXX to the XXXXXX Residence.
Two calls were made to XXXXXX that night, XXXXXX made
the first and XXXXXX made the second. [1T-80:1-8; 1T-223:3-9] XXXXXX and
XXXXXX were "close" with one another at the time and that is
why XXXXXX figured that XXXXXX wanted her to come over. [1T-223:10 to
224:14] XXXXXX asked her if she wanted to come hang-out, build a bonfire
in the woods and drink beers. [1T-80:9 to 81:1] XXXXXX agreed to come,
but XXXXXX told her that he and XXXXXX were drunk and could not drive.
[1T-80:9-22] She said that she would call a friend to see if she could
get a ride and that was the purpose of hanging-up the telephone with her
the first time. [1T-80:9-22]
Mid-conversation with her, XXXXXX told XXXXXX that XXXXXX
was going to come and that he might want to tell XXXXXX and XXXXXX to
go across the street and start collecting firewood. [1T-80:9-22] At that
time XXXXXX went down the stairs to the basement, XXXXXX and XXXXXX hung-up
with one another and XXXXXX went into XXXXXX's family room (which was
adjacent to the kitchen) to sit down because he felt sick. [1T-82:17 to
83:7] Before going into the family room to sit down, XXXXXX saw XXXXXX
enter the door that led to the staircase to the basement but he could
not overhear what, if anything, was said between XXXXXX, XXXXXX and XXXXXX
in the basement. [1T-83:8-16; 1T-241:23 to 242:5]
A few minutes later XXXXXX came into the kitchen/family
room and called XXXXXX the second time. At that same time that XXXXXX
was calling, XXXXXX got a few beers out of the refrigerator and went out
front to sit on the front porch. XXXXXX never saw XXXXXX and XXXXXX leave
the XXXXXX residence. [1T-237:21 to 238:4] They could have exited from
the basement. [1T-238:5-12]
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XXXXXX's recollection of the telephone calls is that
"they" called and asked her to come to a party at the woods
and that there were a few people that "they" wanted her to meet.
[3T-87:13 to 88:4] She declined. Then she received a second call, this
time she specifically specified that it was XXXXXX who called [3T-88:4-8]
and he told her to come and get her lipstick that she left at his house.
She "eventually just gave in" when "they" kept calling.
[3T-88:4-8] She then obtained a ride to the XXXXXX residence from a friend.
[3T-88:9 to 90:7]
F. Going to the Wooded Area/The Incident.
When XXXXXX arrived, XXXXXX was sitting on the porch
and he had a beer in his hand. [1T-148:20-23] XXXXXX saw him with the
beer in his hand. [3T-90:8-11] XXXXXX was intoxicated at the time that
he was sitting on the porch, he was vomiting and still drinking. [1T-197:24
to 199:14]
XXXXXX arrived in a car, XXXXXX saw her from the porch
where he and XXXXXX were sitting. [1T-81:19 to 1T-82:1; 1T-92:10-16] She
arrived about 15-20 minutes after XXXXXX hung up the phone with her. [1T-94:6-14]
XXXXXX never entered the XXXXXX house, her and XXXXXX met on the lawn
of the XXXXXX residence in that XXXXXX started walking towards the car
when it stopped. [1T-92:17 to 93:6] As soon as the car pulled up, XXXXXX
started walking towards XXXXXX and XXXXXX started walking towards the
woods. [1T-92:21 to 93:17; 1T-99:14-17; 1T-225:10-18] XXXXXX, who was
still feeling sick to his stomach, did not say a word to XXXXXX before
beginning to walk from the porch of the XXXXXX residence to the woods
and they did not even as much as acknowledge each others' presence. [1T-93:18
to 94:1; 1T-99:14-17] XXXXXX and XXXXXX were trailing somewhere behind
XXXXXX as he walked towards and eventually into the woods. [1T-93:13-17;
1T-99:14-17] XXXXXX had a beer in his hand when XXXXXX pulled up and he
continued drinking until even after the altercation transpired. [1T-148:20-23;
1T-175:22 to 176:24]
XXXXXX testified that as she was meeting XXXXXX when
she was exiting the vehicle, XXXXXX was already walking towards the woods
and she and XXXXXX began to follow XXXXXX - trailing twelve (12) feet
behind him. [1T-225:10-18; 3T-91:19 to 92:14; 3T-128:19 at 129:2; 3T-189:25
to 190:3] She did not observe XXXXXX walk off of the porch and he did
not say anything to her before beginning to walk towards the wooded area.
[3T-128:24 to 129:20] She was not forced to enter the woods. [3T-199:5-7]
XXXXXX testified that as XXXXXX, XXXXXX and he started
to walk across the street, there was enough lighting to see, 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 testified that it was dark in the
woods. [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] She testified that "[i]t was very dark and shadowy"
and that she could only see two feet or less in front of her when in the
woods. [2T-154:22 to 155:7] Consistent with the testimony provided by
XXXXXX and XXXXXX, even Plaintiff XXXXXX testified that it was so dark
in the woods that she could only see three to four feet in front of her.
[3T-223:14-20]
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To get to the wooded area, XXXXXX testified that one
has to cross the street in front of the XXXXXX home, go cross the backyards
of houses across the street, get through a fence in the backyard and go
down a large, steep hill. [1T-95:11 to 96:8; 1T-225:19 to 226:7] It was
just a large wooded area, there was no set pathway, identifying landmarks
or anything similar. [1T-96:9-25; 1T-98:24 to 99:7; 1T-101:10-19] XXXXXX
did not remember a pathway into the wooded area either. [2T-114:11-14]
The hill was so steep that XXXXXX frequently slipped and fell whenever
he went down it. [1T-96:12-25; 1T-96:12-25; 1T-227:11-21]
XXXXXX had no idea where XXXXXX and XXXXXX were going
to be situated in the woods; he figured he would see a fire light as he
entered the woods, but he did not. [1T-98:4-7; 1T-98:21-23] XXXXXX never
saw XXXXXX or XXXXXX leave the XXXXXX residence, he does not know how
they got out (whether they came up the stairs, left through an exit in
the basement or otherwise) and there was no discussion about where they
would be situated in the woods. [1T-84:6-12; 1T-98:8-14; 1T-237:21 to
238:4] As before mentioned, XXXXXX was not present or part of the conversation
when XXXXXX told XXXXXX and XXXXXX to go to the wooded area. [1T-83:8-16;
1T-237:21 to 238:4]
When he was entering the woods, he called to XXXXXX and
XXXXXX and to his recollection XXXXXX may have also, but there was no
reply. [1T-99:8-13] XXXXXX testified that she heard someone whistle, or
what "sounded like" a whistle, as they entered the woods. [2T-155:18
to 156:3; 2T-225:3-13]
XXXXXX and XXXXXX were still trailing somewhere behind XXXXXX at this
time and XXXXXX never turned to see where they were and he could not hear
them walking behind him. [1T-99:14-17 to 100:1] XXXXXX testified that
she entered the wooded area simultaneously with XXXXXX and she couldn't
see where XXXXXX was because it was dark, all she knew was that 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 altercation had already started. [1T-100:2-12]
XXXXXX was already thirty to forty feet into the woods when the altercation
initiated. [1T-100:13 to 101:6] He knew it began where there was a "rukus"
of a sort behind him, 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]
At that time, XXXXXX turned around and walked about
twenty feet where there was commotion in the darkness and he can not discern
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] It was so
dark in the woods that he could only see 3-5 feet in front of him. [1T-108:4-12;
1T-228:15-18] The only way he could described it was "half seeing
it and half sensing it". [1T-102:14-22; 1T-229:4-17] He could not
discern that it was XXXXXX and XXXXXX involved in the altercation until
he kept walking and was close enough to grab a hold of XXXXXX. [1T-102:23
to 103:18]
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When he got that close, XXXXXX could see XXXXXX, who
was either on the ground or halfway to the ground, and XXXXXX attacking
her with an object. [1T-103:19 to 104:9] He could not see what the object
was, he could not give an estimation of its size, he did not take a hold
of it and he does not know what happened to it after the incident. [1T-108:13
to 109:3]
XXXXXX grabbed a hold of the back of XXXXXX's jacket
and tried to retrain her, 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 XXXXXX, who was not expecting that,
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 attacking XXXXXX again and when he came
to his feet again, XXXXXX grabbed a hold of XXXXXX "pretty rough",
ripped her off of XXXXXX and that was the end of the altercation. [1T-104:20
to 106:17; 1T-230:17-25]
Q And why did you grab ahold of Miss XXXXXX?
A To make her stop. She just seemed like she was going
nuts, I grabbed the back of her jacket, you know.
* * * *
Q Once you grabbed ahold of Miss XXXXXX did Miss XXXXXX
stop?
A She just kept like -- I'm trying to think of the
word. Jostling, just like ripping away but with her whole body, like
with her right arm trying to rip away, and she did because I just had
the back of her jacket and she ripped away from me and I slipped when
she was doing that. When I grabbed her I wasn't expecting that, so you
know, I wasn't postured for that, I wasn't expecting it.
Q What did you observe after your having slipped?
A She kept waling on her again.
Q For how long did this continue?
A A couple seconds, the whole thing from start to
finish from when I turned around and looked back to when I got up the
second time -- when I got up after I fell, I got up and grabbed her
and pulled her off, the whole thing was 40 seconds or whatever.
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Q Now, other than grabbing ahold of her and your slipping
did anyone else intercede?
A No.
Q Did you grab ahold of Miss XXXXXX for a second time?
A Yes.
Q And how did you grab onto Miss XXXXXX?
A I just grabbed her jacket again, but I grabbed her
pretty rough the second time.
Q Now, during these 40 seconds did you hear anyone
talking or speaking to one another, yelling at one another?
A No.
Q Were any words being exchanged between Miss XXXXXX
and Miss XXXXXX?
A I don't believe so.
Q At the vantage point where you were able to see
Miss XXXXXX and Miss XXXXXX were you able to see where Mr. XXXXXX was?
A No.
Q Were you able to see where Mr. XXXXXX was?
A No.
Q After you grabbed ahold of Miss XXXXXX for the second
time did that end the altercation?
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A Yes.
Q What happened thereafter?
A We just left …
[1T-103:4 to 106:8]
When XXXXXX grabbed Bekeley for the second time to pull
her off of XXXXXX, he pulled her with such force while stepping on his
way out of the woods that he ripped/dragged her for 2-5 feet. [1T-107:3-14]
At the end of the altercation when XXXXXX pulled XXXXXX off of Mussian
for the second time, Bekeley, XXXXXX, XXXXXX and XXXXXX all left the woods
together. [1T-106:7-19] No one checked to see if XXXXXX was hurt before
leaving and XXXXXX made no indication that she was hurt. [1T-106:18 to
107:2] XXXXXX was sitting on the ground when they left the woods, she
did not make a sound. [1T-111:13-23]
XXXXXX interfered and restrained XXXXXX because he felt
at the time that her attacking XXXXXX was wrong. [1T-246:8-24]
XXXXXX's account of the incident was that she hit XXXXXX
along her body, but that she does not specifically recall whether she
hit XXXXXX's her head, stomach, arms or legs because it was dark. [2T-42:21-23;
2T-78:11 to 79:1; 2T-118:9-11] Given the fact of how dark it was [2T-154:22
to 155:7; 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] she could not even see XXXXXX and she "guesstimate[d]"
where XXXXXX was so that she could hit her. [2T-127:25 to 128:17; 2T-157:9-18]
She swung at the smallest of about four shadows that she saw. [2T-156:9-16;
2T-157:5-8] She was not even sure if it was XXXXXX that she was hitting.
[2T-157:13-18; 2T-158:10-13] She could see the shadows approaching, but
not from a far distance. [2T-156:21-25] She did not know where XXXXXX,
XXXXXX or XXXXXX were when the attack began. [2T-156:17-20; 2T-158:17-25]
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She does not recall whether XXXXXX fell to the ground, whether she was
in a fetal position, whether she told the police that XXXXXX was in a
fetal position or whether she told the police that she kicked XXXXXX.
[2T-79:2 to 80:9] XXXXXX's entire account of the incident was that she
hit XXXXXX maybe six or nine times with a broken stick, but never with
her hands and she does not recall whether she kicked her or jabbed her
in the crotch area with the stick. [2T-80:4 to 81:7; 2T-118:16-18; 2T-129:5-23;
2T-130:8 to 131:7]
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] She remembered
being restrained by someone when she made a statement to the police on
February 10, 1995, however, which was the day of the arrests. (See Exhibit
A attached to the XXXXXX Certification)
[Investigator William XXXXXX]: What happens next?
[Jacqueline XXXXXX]: She stumbles a couple feet or
two into some thorn bushes, and I didn't give her any chance to do anything,
I just ran over as she was stumbling I was just going towards her ,
hitting her with the stick … I felt somebody pull on the back of
my jacket …
* * * *
[Investigator William XXXXXX]: … You started to
say something about somebody tugging on you?
[Jacqueline XXXXXX]: … Felt somebody tugging on
me. Like right here on my flight jacket cause I had it zipped up, I
didn't look …
* * * *
[Investigator William XXXXXX]: If somebody didn't tug
at the back of your jacket, do you think you would have beat her to
death?
[Jacqueline XXXXXX]: I beat her …
February 10, 1995 Statement of Defendant
Jacqueline XXXXXX
to the XXXXXX Township Detective Bureau, Pages 7-10 and
26 thereof attached as Exhibit A. to the XXXXXX Certification.
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XXXXXX's account of the incident was that she took about
twenty 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
Defendant XXXXXX club her the initial time [3T-97:25 to 98:8], she saw
Defendant XXXXXX hitting her as Defendant XXXXXX continued to swing. [3T-94:20
to 95:4] She claims that she passed out when she was hit, but later changed
her story to being that "felt like" she passed out. [3T-94:24
to 95:19] Besides that, she alleges that she fell to the ground and laid
there in a fetal position with her hands over her face. [3T-94:16-19;
3T-95:15-17; 3T-94:16-19; 3T-95:15 to 96:-17] She was positive of the
fact that it was a female who was hitting her. [3T-130:7-25]
When XXXXXX was done beating her, XXXXXX and XXXXXX allegedly
grabbed the pool cue and began beating her too. She testified that she
was beaten by the two of them all over her arms, legs and back. [3T-213:13
to 216:23] In total, she was hit about twenty (20) times all over both
of her arms and legs and her head (twice). [3T-99:2 to 100:13] During
the whole beating, she claims that Defendant XXXXXX was "a couple
feet away" and that Defendant XXXXXX was "[a] few feet"
away and both of them were watching her be beaten. [3T-100:23 to 101:14]
After she was hit the twenty times she claims that Defendants
XXXXXX and XXXXXX sexually assaulted and urinated upon her and that she
was in and out of consciousness the whole time. [3T-102:11 to 104:9]
XXXXXX denies having raped or urinate upon XXXXXX and
he did not witness any other person do so. Moreover, he did not strike
XXXXXX and he did not witness anyone else strike her other than XXXXXX.
[1T-110:22 to 111:8; 1T-116:20 to 117:9; 1T-150:12-16] Moreover, XXXXXX
has no knowledge of XXXXXX being raped or physically assaulted 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] She does not recall anytime on the night in question
that XXXXXX was left alone with Plaintiff XXXXXX. [2T-94:13-15] She never
heard that XXXXXX had raped or urinated upon XXXXXX from anyone. [2T-84:8-22]
She believes that she, XXXXXX, XXXXXX and XXXXXX all left the wooded area
together. [2T-94:5-9]
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G. Leaving the Woods/Contacting the Police.
XXXXXX alleges that after the incident she crawled on
her hands and knees out of the woods to a nearby house, the occupants
of which called her family, an ambulance and the police. [3T-104:7 to
106:1] She alleges that when the police arrived she was too scared to
tell them anything about what happened to her and she only told her mother
that she was beaten by XXXXXX and XXXXXX. [3T-106:15 to 107:14; 3T-195:5-20]
She said nothing to anyone about allegedly being sexually assaulted until
1998 or 1999. [3T-108:13 to 3T-109:1] She never reported having been allegedly
sexually assaulted or urinated upon to the police. [3T-109:2-14; 3T-193:13-21]
XXXXXX testified that when XXXXXX, XXXXXX, XXXXXX and
he left the woods they entered a car and left the area and XXXXXX does
not recall who drove or where they went. [1T-109:4-21; 1T-110:1-7; 1T-245:16
to 246:7] XXXXXX' next recollection after having been in the car that
was driving away was going to the corner, making a left turn and getting
back to the XXXXXX residence latter that night along with XXXXXX, XXXXXX
and XXXXXX to sleep. [1T-109:22-25; 1T-110:8-21]
H. The Arrests.
The information pertaining to the arrests has already
been adequately set forth in the papers that XXXXXX filed in response
to XXXXXX's motion for summary judgment. Only bare basic information is
reiterated here.
On February 10, xxxx, XXXXXX, XXXXXX, XXXXXX and XXXXXX
were arrested and charged with aggravated assault with regard to the incident.
XXXXXX was charged with the actual assault, and XXXXXX, XXXXXX and XXXXXX
were charged as accessories.
On July 26, xxxx, XXXXXX, XXXXXX, XXXXXX and XXXXXX pled
guilty as charged before the Honorable XXXXXX XXXXXX, J.S.C., in the Superior
Court of New Jersey, Criminal Division, County of XXXXXX.
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LEGAL ARGUMENT
I. THE INSTANT MOTION FOR RECONSIDERATION
IS ACTUALLY A SECOND MOTION FOR SUMMARY JUDGMENT IN THAT IT RAISES ISSUES
NOT RAISED DURING THE INITIAL SUMMARY JUDGMENT PROCEEDINGS
The Court should not entertain XXXXXX's motion for reconsideration in
that it raises entirely new issues that have not been presented during
the prior summary judgment proceedings. In fact, during the case management
conference on June 7, 2003, XXXXXX explicitly asked the Court whether
the issues to be presented during the proceedings related to a proposed
motion for reconsideration were to be limited to issues already presented
to the Court. The Court answered in the affirmative, and as such all reference
to XXXXXX' deposition in the motion for reconsideration should be striken.
II. RECONSIDERATION IS INAPPROPRIATE
UNDER THE
CIRCUMSTANCES PRESENTED HERE
Reconsideration is inappropriate in cases where a litigant
is merely aggrieved with the Court's ruling, and that is all that XXXXXX's
motion amounts to. As stated in D'Atria vs. D'Atria, 242 N.J. Super. 392
(Ch. Div. 1990):
A litigant should not seek reconsideration merely because
of dissatisfaction with a decision of the Court. Rather, the preferred
course to be followed when one is disappointed with a judicial determination
is to seek relief by means of either a motion for leave to appeal or,
if the Order is final, by a notice of appeal. Reconsideration should
be utilized only for those cases which fall into that narrow corridor
in which either 1) the Court has expressed its decision based upon a
palpably incorrect or irrational basis, or 2) it is obvious that the
Court either did not consider, or failed to appreciate the significance
of probative, competent evidence. Said another way, a litigant must
initially demonstrate that the Court acted in an arbitrary, capricious,
or unreasonable manner, before the Court should engage in the actual
reconsideration process.
Id. at 401.
See also Cummings vs. Bahr, 295 N.J. Super. 374, 382 (App. Div. 1996)(citing
D'Atria with approval); Strauss vs. Township of Holmdel, 312 N.J. Super.
610, 621 (Law Div. 1997)(same).
As set forth above, in order to be entitled to reconsideration
XXXXXX must show that the trial court acted arbitrarily and capriciously
in making its determination. The term "arbitrary-and-capricious"
is defined by our courts as "willful and unreasoning action, without
consideration and in disregard of circumstances." Trantino vs. New
Jersey State Parole Board, 166 N.J. 113, 201 (2001)(Baime, J., Dissenting),
modified, 167 N.J. 619. Accord, Worthington vs. Fauver, 88 N.J. 183, 204-05
(1982); Beattystown Community Council vs. Dept. of Environmental Protection,
313 N.J. Super. 236, 248 (App. Div. 1998); In the Matter of the Application
of the County of Bergen, 268 N.J. Super. 403, 411 (App. Div. 1993); Cosme
vs. Figueroa, 258 N.J. Super. 333, 340 (Ch. Div. 1992); Morales vs. County
of Hudson, 236 N.J. Super. 406, 423 (App. Div. 1989); Grodjesk vs. Jersey
City Medical Center, 135 N.J. Super. 393, 409 (Ch. Div. 1975); Bayshore
Sewage Company vs. Dept. of Environmental Protection, 122 N.J. Super.
184, 199 (Ch. Div. 1973), aff'd, 131 N.J. Super. 37 (App. Div. 1974)(per
curiam).
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A. The Plea Agreement.
XXXXXX contends, in part, that Judicial Estoppel should
be applied because XXXXXX benefited by the plea agreement because various
charges against him were being dismissed as part of the plea agreement.
XXXXXX points out that XXXXXX testified at his deposition that if convicted
of all of those charges, and if the sentences were all run consecutive
to one another (which would never, never happen), the sentence would be
somewhere in the vicinity of thirty (30) years. [1T-166:12 to 167:10]
What XXXXXX failed to inform the court of, however, is that XXXXXX also
testified that he was NOT GUILTY of the charges that were being dismissed
and that he did not even know what the State was referring to in making
those accusations. [1T-166:22 to 167:3]
MR. XXXXXX: May I ask you a question? Were you guilty
of all those crimes?
MR. XXXXXX: Objection to the form of the question.
Q You can answer, sir.
A Was I guilty of all those crimes? No, and I don't
know what crimes they're referring to anyway.
[1T-166:22 to 167:3]
It cannot be said that XXXXXX benefited by the dismissal of charges that
he was not guilty of having committed. That is especially so considering
that he testified that he only pled guilty to begin with because he found
it to be "extremely intimidating" that the State explicitly
advised him that they it will try him on all of the before mentioned charges
that were dismissed unless he pled guilty to second degree aggravated
assault. [1T-159:16 to 160:14; 1T-165:16 to 167:11; 1T-167:10; 1T-169:21
to 170:5; 1T-173:1 to 174:4] XXXXXX was intimidated and only pled guilty
because he was indigent and could not afford a legal defense to the charges.
[1T-169:21 to 170:5]
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Our courts recognize that that some criminal defendants
plead guilty for such reasons. "A plea proceeding … represents
the decision of the defendant to forego such litigation and usually for
reasons having little or nothing to do with the nature of the issues."
Prudential Prop. & Cas. Ins. Co. vs. Kollar, 243 N.J. Super. 150,
154-55 (App. Div. 1990). It is a jury question as to why XXXXXX pled guilty,
and it is a jury question as to whether he benefited by the plea agreement.
XXXXXX testified that he hardly knew what was going to
happen in court on the day of the plea hearing except that he was going
to be asked questions about the offenses. [1T-163:8-10] XXXXXX, who was
twenty years old and had only a tenth grade education at the time, did
not understand the terms of the plea agreement before the hearing. [1T-167:10;
1T-168:20-23; 1T-169:21 to 170:5; 1T-171:20 to 172:4] He thought the prosecutor
had agreed not to speak during the hearing (whereas there was no such
agreement) and he did not even know exactly what his sentence was going
to be (he thought there was going to be no stipulation on the amount of
time that he would have to be confined). [1T-167:12 to 168:19]
XXXXXX, who was not under oath during the plea hearing
at the time that he made any of these statements [1T-169:9-20], testified
that the trial judge refused to accept his testimony regarding what happened
on the night in question. When asked by the judge to explain his participation
in the altercation, XXXXXX responded that he was only present. The judge
refused to accept that answer which intimidated XXXXXX into changing his
answer to be that he knew that XXXXXX was going to be assaulted. [1T-174:7
to 179:17] The Court should note that XXXXXX was stuttering when he told
the court that he knew that XXXXXX was going to be assaulted:
The Court: And what did you have to do with this? Anything
at all?
XXXXXX XXXXXX: I was present.
The Court: You were just there.
XXXXXX XXXXXX: I was present. I didn't break it up.
We went across the street. We were hanging out with them. I let - I
let - I let the attack occur.
The Court: You let it occur?
XXXXXX XXXXXX: Until I pulled her off. Yeah.
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The Court: I see. Was all this done at your direction?
XXXXXX XXXXXX: No.
The Court: No. So you had nothing to do with it? You
didn't know any of this was going to happen?
XXXXXX XXXXXX: Yeah, I knew it was going to happen.
Yes.
The Court: Now, why don't you tell me the true story
of what happened?
(See July 26, 1995 Plea Transcript attached
as Exhibit B to
XXXXXX's Legal Brief filed in support of its motion
for summary judgment at 21:12 to 22:7.)
It was untrue as provided by XXXXXX to the court that
he knew that XXXXXX was going to be beat up. [1T-181:3-18] In fact, XXXXXX'
attorney intervened at one point and asked the judge if he may ask XXXXXX
a few questions, to which the judge responded, "You'd Better."
[1T-182:1-12] That right there is evidence of the hostility in the courtroom
that day. "You'd better" is a term of hostility by anyone's
definition, and it cannot be said that such hostility by a sentencing
judge would not be extremely intimidating to even the most strong hearted
of persons. The judge had him "shaking" and stuttering. [1T-176:19-24;
1T-177:2-11]
Our Supreme Court has held that on motions for summary
judgment where a litigant seeks to alter or rescind statements previously
made by that litigant, the court must accept as true the litigant's altered
or rescinded version. That case is Harleysville Ins. Co. vs. Garitta, 170
N.J. 223 (2001). In Harleysville, the Court said that,
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As David walked toward the end of the hallway,
Joseph Licata handed him a knife that Licata had removed from the kitchen.
We note, however, that in one of his early statements to the authorities,
as reflected in the police reports prepared after the incident, David
indicated that "he put on his sneakers and was walking out when he
saw the fillet knife on the breakfast table." He told the police
that he "picked up the knife[,] took it out of its sheath[,] and
then walked out the door." He later clarified those comments by indicating
that he "was given the knife by [Licata]" and that Licata "told
him [what] to do with [the] knife." For purposes of this appeal,
we accept David's assertion that Licata handed him the knife.
Id. at 227.
Likewise, Defendant XXXXXX, the non-movant regarding the instant motion
for reconsideration of a summary judgment motion, is entitled to have
all reasonable inferences drawn in his favor pertaining to his statements
that clarify or amend his statements made during his plea hearing. The
court must accept those statements by Defendant XXXXXX as being true in
that, under Harleysville, a determination as to the truthfulness of his
statements is a jury question. That is even more so considering that we
have an intoxication issue present in the case at bar that was not present
in Harleysville. Therefore, in accordance with Harleysville, the Court
must accept as true that Defendant XXXXXX
(a) Did not go across the street with the intent of
assaulting XXXXXX;
(b) Did not know that XXXXXX was going to be assaulted
once she got to the wooded area;
(c) He was totally intoxicated before, during and after
the entire incident;
(d) Did not know about the assault until it already
began;
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(e) Interfered on XXXXXX's behalf as soon as the altercation
began by restraining XXXXXX; and,
(f) Went to the wooded area with the sole intent of
starting a bonfire and consuming alcoholic beverages.
With that all being taken as true, XXXXXX is not entitled to summary judgment
and the Court did not err in declining to apply Judicial Estoppel.
Finally, XXXXXX points out that XXXXXX testified that
he was satisfied with the legal representation he received during the
plea hearing. That is not what he testified to. What he testified to was
that he was satisfied at the time of the plea hearing with that representation.
In retrospect, a few things could have and should have been different,
such as it should have been put on the record that XXXXXX had defenses
to the charges, such as his intoxication, that are not being set forth
because they are irrelevant in that he is pleading guilty. [1T-171:7 to
172:1] XXXXXX has not referred the Court to any caselaws hold that Judicial
Estoppel should or should not be applied due to whether one is satisfied
with his or her attorney. The point is irrelevant.
B. The Claims are Dramatically Different.
Defendant XXXXXX adequately set forth in his brief in
response to the motion for summary judgment along with his supporting
oral argument that the claims brought by XXXXXX do not mimic the charges
he pled guilty to. (See Point I(A) and Point I(B) of Defendant XXXXXX'
Legal Brief in response to XXXXXX's motion for summary judgment, Pages
17-19 thereof.)
Specifically, it was never alleged in the criminal cases
that XXXXXX, XXXXXX and/or XXXXXX physically touched or assaulted or attempted
to touch or assault XXXXXX. It was likewise never alleged that XXXXXX,
XXXXXX, XXXXXX and/or XXXXXX had sexually assaulted or urinated upon XXXXXX
or that they otherwise had attempted to sexually assault or urinate upon
her. Those claims were raised seven (7) years later by XXXXXX for the
first time in the underlying civil action.
The Court did not err in declining to apply judicial estoppel under those
circumstances.
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C. The Judicial Estoppel Caselaws Cited by XXXXXX
are all Off-Point.
As stated in Point II(A), supra, XXXXXX alleges that
he was intimidated into making admissions during his plea hearing that
were less than truthful. Without reiterating all of the relevant facts
supporting this position, XXXXXX contends that when he was asked by the
trial court to explain his participation in the event, his answer was
simply, "I was present." The trial court explicitly refused
to accept his testimony and the court's discontent is quite clear from
the transcript.
The judicial estoppel caselaws cited by XXXXXX stand
for the proposition that a party may not take a position in one legal
proceeding that is contrary to a position taken in the other proceeding,
but all of those cases are factually distinguishable from the case at
bar. The issue of testimony under duress was not addressed in any of those
caselaws, nor was the issue of conflicting testimony. While it may be
true that XXXXXX made a statement at his plea hearing to the effect that
he knew that XXXXXX was going to be assaulted, it is also true that he
testified that his participation in the event was only that "[he]
was present". None of XXXXXX's caselaws address these issues.
XXXXXX argues its case as if the court must assume that
XXXXXX is bound by his alleged statement that he knew that the attack
was going to occur. It referred to no caselaw authorizing the court to
make such assumptions in place of the jury. Only the finder of fact may
decide which of those statements, if any, were truthful, and only the
finder of fact may determine exactly why XXXXXX made conflicting statements
in court that day.
D. The Inconsistencies are Unintentional.
Judicial estoppel should be "applied only where there are present intentional
inconsistencies". C.R. v. J.G., 306 N.J. Super. 214, 238 (Ch. Div.
1997) (Emp. Supp.). See also Levin v. Robinson, Wayne & La Sala, 246
N.J. Super. 167, 185 (Law Div. 1990), rev'd in part on other grounds, Kimball
Int'l, Inc. vs. Northfield Metal Prods., 334 N.J. Super. 596, 607, fn. 2
(App. Div. 2000). Whether or not the alleged inconsistencies are intentional
or not is a jury question and requires a finding of fact. There is also
a jury question as to whether XXXXXX made statements under duress during
the hearing. These are all questions of fact, not questions of law.
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E. XXXXXX Never Admitted What He Expected or Intended
In The Insurance Sence.
If XXXXXX admitted during the plea hearing that he intended something,
the court must pay close attention to exactly what he admitted that he
intended. He never admitted to having sexually assaulted or urinated upon
XXXXXX, he never admitted touching XXXXXX for any reason and he never
admitted to instructing another person to do one of the foregoing. Therefore,
if it is found that XXXXXX admitted that he intended to do something,
that is not a per se bar to coverage as to all aspects of the case. In
other words, if there is no coverage as to one issue that does not mean
that there is no coverage for all issues.
F. The Application of Judicial Estoppel is Discretionary.
"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. 1996) (application of judicial estoppel is
discretionary).
The court would not be abusing that discretion by holding
that judicial estoppel is inapplicable under the facts of this case. The
case laws are clear that it is an extraordinary remedy that should be
applied sparingly.
[A]s we said in [Kimball Int'l, Inc. vs. Northfield
Metal Prods., 334 N.J. Super. 596 (App. Div. 2000)], judicial estoppel
is an extraordinary remedy and should be invoked ONLY when a party's
inconsistent behavior will otherwise result in a miscarriage of justice,
id. at 608, 760 A.2d 794 (citation omitted), and ONLY in those circumstances
required to serve its stated purpose, which is to protect the integrity
of the judicial process. Id. at 608, 760 A.2d 794 (footnote omitted).
Ramer v. New Jersey Transit Bus Operations,
Inc.,
335 N.J. Super. 304, 334 (App. Div. 2000)
(inner quotation marks omitted, Emp. Supp.)
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In cannot be said that there would be a miscarriage of justice if judicial
estoppel were not applied in this case, especially considering that even
XXXXXX's allegations are dramatically different than she provided to the
police in 1995 in a statement under oath. There are simply too many jury
questions in both this case and the XXXXXX vs. XXXXXX case.
III. THE QUESTION HERE IS INTENT
TO INJURE, NOT INTENT TO ASSAULT
XXXXXX is banking its entire case on whether XXXXXX admitted
during his plea that he knew that XXXXXX was going to be assaulted in
the woods before he got there. Assuming arguendo that he knew that there
was going to be such an altercation, the inquiry does not stop there because
the question is intent to injure, not intent to assault. Surely it is
conceivable that there could be an intent for there to be a physical altercation
without a corresponding intent for there to be an injury, and whether
there was an intent to injure is a question for the finder of fact. Only
a jury can determine what XXXXXX' subjective intent was: Was it to build
a bonfire and continue consuming alcoholic beverages, or was it to assault
XXXXXX. If XXXXXX knew something was going to happen between XXXXXX and
XXXXXX, did he know whether it was going to be a physical or verbal altercation?
Although XXXXXX refers the Court to some caselaws which
hold that in certain cases an intent to injure can be presumed from an
intent to assault, there are no caselaws which hold that an intent to
injure must always be found where there is an intent to assault. If that
is so, the court must take a case-by-case approach to the issue. Also,
in the caselaws cited by XXXXXX, the insured was the actually perpetrator,
whereas in the case at bar XXXXXX was never alleged to have been the perpetrator
until seven (7) years after the altercation transpired. There has been
no jury determination as of yet in this case as to whether XXXXXX physically
or sexually assaulted XXXXXX, or whether he even as much as touched XXXXXX
for any reason.
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Rather than holding that an intent to injure must always
be presumed by an intent to assault, the better standard to apply is one
based upon a case-by-base basis - and this case is riddled with substantial
jury questions along with the overwhelming evidence of intoxication.
IV. XXXXXX BEARS THE BURDEN OF PROOF
THROUGHOUT THIS ENTIRE CASE
The burden of proof is upon the insurer anytime that
the insurer contends that a clause in a policy excludes coverage. See
American Motorists Ins. Co. vs. L-C-A Sales Co., 155 N.J. 29, 41 (1998)(We
have observed that "[i]n general, insurance policy exclusions must
be narrowly construed; the burden is on the insurer to bring the case
within the exclusion"); Aviation Charters, Inc. v. Avemco Ins. Co.,
335 N.J. Super. 591, 594 (App. Div. 2000) (Where an exclusionary clause
is involved, such clauses are narrowly construed; indeed it is the insurer's
burden to establish the exclusion) (citing American, supra); Rosario ex
rel. Rosario v. Haywood, 351 N.J. Super. 521, 530 (App. Div. 2002)([W]here
the insurance carrier claims the matter in dispute falls within exclusionary
provisions of the policy, it bears the burden of establishing that claim)(citing
Reliance Ins. Co. vs. Armstrong World Indus., Inc., 292 N.J. Super. 365
(App. Div. 1996), citing Hartford Acc. & Indem. Co. vs. Aetna Life
& Cas. Ins. Co., 98 N.J. 18, 26 (1984));
XXXXXX attempts to circumvent this principle by pointing
to Harleysville Ins. Co. vs. Garitta, 170 N.J. 223 (2001), which holds
that coverage will not be afforded for per se acts of particularly reprehensible
conduct, at least under circumstances where those acts are committed by
a sober person. Burd v. Sussex Mutual Ins. Co., 56 N.J. 383 (1970), however,
holds that intoxication changes that general principle. Burd holds that
there will be coverage if the insured can prove that he or she was intoxicated
at the time of the incident. Moreover, Burd holds that once the insured
proves he or she was intoxicated, the burden of proof shifts to the insurer
to prove that the insured knew what he or she was doing notwithstanding
the intoxication and that a policy exclusion applies.
In that XXXXXX has presented overwhelming evidence of intoxication, there
is now a rebuttable presumption that he is entitled to coverage for the
claims.
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V. XXXXXX IS INCORRECT IN STATING
THAT THE COURT
IS REQUIRED TO ASSUME THAT ALL FACTS PRESENTED IN
PLAINTIFF XXXXXX'S COMPLAINT ARE TRUE
XXXXXX argues on Page 6 of its brief that the Court was
required during the summary judgment proceeding to consider the "gravaman
of the action against the insured-defendant, assume the facts to be true,
and then apply that to the Policy to determine whether there was coverage."
There is a plethora of different facts and allegations presented in this
case and the underlying action and XXXXXX has failed to clarify precisely
what facts the court must "assume … to be true". This is
especially so considering that it is fundamental in all summary judgment
proceedings that the facts be viewed in a light most favorable to the
non-moving party, in this case the insured-defendant. XXXXXX has not cited
any law in support of its position that the court must assume things to
be true, unless they are things in XXXXXX' favor.
VI. ISSUES PERTAINING TO CREDABILITY
AND WHETHER
STATEMENTS ARE "SELF SERVING" ARE JURY QUESTIONS
On Page 7 of its brief, XXXXXX states that Defendant
XXXXXX has made "conflicting, self serving" statements in support
of his positions. That is an issue of credibility, and credibility issues
may NEVER be decided by the court on a motion for summary judgment where
a jury trial has been demanded. See Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 255 (1986)(Credibility determinations, the weighing of the evidence,
and the drawing of legitimate inferences from the facts are jury functions,
not those of a judge, whether he is ruling on a motion for summary judgment
or for a directed verdict.); Rocco v. New Jersey Transit Rail Operations,
Inc., 330 N.J. Super. 320, 334 (App. Div. 2000)([T]he issue raised by
NJT is one of credibility and, properly, a function of the trier of fact);
Reisman v. Great American Recreation, Inc., 266 N.J. Super. 87, 99 (App.
Div. 1993), quoting Nobero Co. vs. Ferro Trucking, Inc., 107 N.J. Super.
394 (App. Div. 1969)(… [c]redibility was for the jury); D'Amato by
McPherson v. D'Amato, 305 N.J. Super. 109, 115 (App. Div. 1997) (A case
may present credibility issues requiring resolution by a trier of fact
even though a party's allegations are uncontradicted … [w]here men
of reason and fairness may entertain differing views as to the truth of
testimony, whether it be uncontradicted, uncontroverted or even undisputed,
evidence of such a character is for the jury)(citations and inner quotation
marks omitted).
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Skepticism of the trial court as to the veracity of
statements appearing in affidavits opposing the application does not
alter the rule; the issue of credability must be held for jury determination.
McDermott v. Botwick,
38 N.J. Super. 528, 532-33 (App. Div. 1956).
All credibility and "self-serving" issues require
a jury determination and prohibit a finding of fact by the Court.
CONCLUSION
The Court should deny XXXXXX's motion for reconsideration
of the Court's denial of its motion for summary judgment.
_______________________________
XXXXXX. XXXXXX,
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