Collateral Estoppel, Law of the Case, and Some Evidence Issues

L.T. v. F.M., 438 N.J. Super. 76 (App. Div. 2014).  This case began with plaintiff obtaining a final restraining order (“FRO”) against defendant in the Family Part because defendant had assaulted plaintiff on multiple occasions.  The FRO resulted from a three-day trial at which defendant, an attorney, was not represented by counsel and as to which no discovery was exchanged.  The judge who issued the FRO based that ruling on a February 27, 2008 assault.  The judge also found that two other alleged assaults, in April and August 2007, had occurred but could not determine whether a third alleged assault, in November 2007, had taken place.  Plaintiff stated that she also wished to sue defendant for damages arising out of the assaults, but the Family Part judge was not sure that that issue was ripe and reserved decision on plaintiff’s request to pursue a damage claim.  Defendant did not seek to appeal the interlocutory decision issuing the FRO against him.

Thereafter, plaintiff decided to sue defendant for damages in the Law Division, based on the April 2007, August 2007, and February 2008 assaults.  She sought partial summary judgment based on the collateral estoppel effect of the FRO, but the Law Division (the same judge who had handled the FRO proceedings in the Family Part) denied that motion.  The judge concluded that it would be unfair to apply the FRO against defendant given that there had been no discovery in the Family Part and that the case there was a “summary proceeding, held in an ’emergency situation.'”  After the Law Division case was reassigned to another judge, plaintiff renewed her collateral estoppel-based motion for partial summary judgment.  The second judge granted that motion as to the February 2008 assault, without mentioning the ruling of the first judge on the very same issue.  The second judge cited defendant’s failure to appeal the FRO as a basis for granting partial summary judgment.

Trial then proceeded, with defendant precluded from contesting the February 2008 assault but permitted to contest the April and August 2007 incidents.  Plaintiff also tried to bring in the November 2007 incident.  At first, the trial judge precluded that, since the November 2007 conduct was not included in the complaint.  Later, however, evidence of the November 2007 event was allowed as “habit” evidence.  The jury found that defendant had assaulted plaintiff in April 2007 and, since it was already deemed established by the partial summary judgment, in February 2008, but did not find for plaintiff on the August 2007 incident.  The jury awarded $149,500 in compensatory damages.  Plaintiff then announced that she wished to pursue punitive damages.  After some confusion about how such a claim might proceed, the parties settled the punitive damages issue.

Defendant appealed, and the Appellate Division reversed the judgment in an opinion by Judge Haas.  It was error to apply collateral estoppel, largely for the reasons that the first judge had given.  Collateral estoppel is not to be applied if doing so would be unfair.  Here, it was unfair, since there had been no discovery, no medical proofs, and no expert testimony as to plaintiff’s injuries.  The Family Part proceeding too summary for it to be fairly given collateral estoppel effect.

There is an analogy here to Cafferata v. Peyser, 251 N.J. Super. 256 (App. Div. 1991).  There, the Appellate Division declined to apply the entire controversy doctrine where the prior proceeding, which one party sought to use to preclude a second suit, was in landlord-tenant court.  Writing for the court, Judge Pressler concluded that “the problems inherent in an inequality of forum” prevented application of the entire controversy doctrine which, like collateral estoppel, is predicated on “judicial fairness and will be invoked in that spirit.”

Returning to the case at hand, in a point not made by the first Law Division judge, Judge Haas observed that “the ultimate burdens of proof in each action were different” since plaintiff was seeking punitive damages in the Law Division case.  Punitive damage claims must be demonstrated by clear and convincing evidence, while the standard of proof for the FRO was merely “preponderance of the evidence.”

Additionally, the “reasoned decision” of the Family Part judge (the first judge in the Law Division) to deny collateral estoppel effect should have bound the second judge.  Judge Haas discussed the “law of the case” doctrine, which states that “when there is an unreversed decision on a question of law or fact made during the course of litigation,” and there is no intervening change of law or fact, “that decision should be the end of that issue.”  The second judge did not explain his decision to deviate from the ruling of the first judge, and the decision of the second judge was an abuse of discretion.  In particular, the reliance of the second judge on the fact that defendant had not sought to appeal the FRO was misplaced for two reasons.  First, the FRO was interlocutory, so that defendant had no obligation, and no absolute right, to appeal it immediately.  Second, the fact that no appeal had been pursued was known to the first judge when that judge denied plaintiff’s identical motion.  The second judge offered no basis for rejecting that prior ruling.

Judge Haas then went on to address two evidence issues, under the abuse of discretion standard of review.  It was error to permit evidence of the alleged November 2007 incident as “habit” evidence under Evidence Rule 406.  The evidence was “insufficient to establish habit,” since “more than a mere tendency is required, and that is all the most that was shown.  Plaintiff tried to shift ground to argue that Rule 404(b) allowed the evidence, but the panel rejected that argument too.  And, even if the evidence had been admitted under one of those evidence rules, a limiting instruction to the jury as to the use of that evidence was required but was not given.  It was also plain error to admit the FRO into evidence at the trial, given its “inherent prejudicial effect.”

Finally, Judge Haas rejected plaintiff’s argument that the Law Division erred in refusing to allow her to amend to add the November 2007 incident.  Plaintiff had not filed a cross-appeal, and therefore the Appellate Division had no jurisdiction to rule on that issue.

 

 

One Response to “Collateral Estoppel, Law of the Case, and Some Evidence Issues”

  1. Drew Hurley says:

    Back “in the day” attorneys for the defendant in the FRO case where it was dismissed by the Family Part, usually by consent, would take the dismissal order to the municipal court where a DP charge arising from the same incident was pending, tell the muni judge that the dismissal was binding on him/her, and often get away with it. That was changed, as it should have been, by the Appellate Division some years ago.

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