JOHN R. SHEARING,
Superior Court of
Kevin Collins: Case Manager
DOCKET NO. A - 006160-04T2
Brief and Appendix
Appellant John Shearing Pro Se
(732) 406 6934 email@example.com
TABLE OF CONTENTS
Page 1 PROCEDURAL HISTORY
Page 2 STATEMENT OF FACTS
Page 8 POINT 1. THE PLAINTIFF HAS UNCLEAN HANDS.
Page 8 POINT 2.
THERE WAS NO EVIDENCE SUPPORTING THE DECISION THAT I WAS IN THE
Page 10 POINT 3. FALSE SLANDERUS EVIDENCE WAS ADMITTED OVER MY OBJECTION, WHICH UNFAIRLY BIASED THE JURY.
Page 11 POINT 4. THERE IS NO BASIS FOR THE JURY'S
Page 14 POINT 5. THERE IS NO BASIS FOR THE JURY’S AWARD OF PUNITIVE DAMAGES
Page 22 POINT 6. LEGAL ARGUMENTS IN SUPPORT OF A NEW TRIAL
Page 23 CONCLUSION
Page 24 CERTIFICATION AND CERTIFICATION OF SERVICE
Page Exhibit A Original Divorce Complaint later bifurcated into Civil Complaint
Page Exhibit B My Fathers Petition To Become My Guardian Ad Litem
Page Exhibit C Answer To Divorce Complaint later bifurcated into Civil Complaint
Page Exhibit D Bifurcated Civil Complaint
Page Exhibit E Amended Counter Claim to Bifurcated Civil Complaint.
Page Exhibit F Email From Plaintiff To Sister: “I am going to hit him with charges
so damn nasty, he is going to shit his pants”
TABLE OF CITATIONS
(Court Rules 4:5-4) Unclean Hands On Page 8
(Court Rules -2) On Page 1
(Court Rules -1) On Page 1, 21
Aly v. Garcia, 333 N.J. Super 195, 204 (App. Div. 2000), certif. denied, 167 N.J. 87 (2001) On Page 9
BMW of N. Am., Inc. v.
Botta v. Brunner, 26 NJ 82, 92 (1958) On Page 14
Buckley, 111 N.J. at 369 On Page 9
Carey v. Lovett, 132 N.J. 44, 68, 70, (1993) On Page 22
Carey v. Lovett, 132 NJ 44, 66 (1993) On Page 23
Cermak v. Hertz Corp., 53 N.J.Super. 455, 465, (App.Div.1958), affd, 28 NJ 568 (1959) On Page 14
Deemer v. Silk City Textile Mach. Co., 193 N.J.Super. 643, 651 (App.Div.1984) On Page 13
Domeracki v. Humble Oil & Ref. Co., 443 F.2d
1245, 1250 (3d Cir.), cert. denied, 404
Dolson v. Anastasia, 55 N.J. 2, 6 (1969) On Page 22
Fritsche v. Westinghouse Elec. Corp., 55 N.J. 322, 330 (1970) On Page 22
Glowacki, supra, 270 N.J.Super. at 15 On Page 14
HcConkey v. AON Corp., 354 N.J. Super. 25 (App. Div. 2002) On Page 21
Herman v. Sunshine Chemical Specialties, Inc., 133 N.J. 329, 345 (1993) On Page 21
Horn v. Village Supermarkets, Inc., 260 N.J.Super. 165, 178 (App.Div.1992), certif. denied, 133 NJ 435 (1993) On Page 22
Huddell v. Levin, 537 F.2d 726, 743 (3d Cir.1976) On Page 13
Jury Charge 6.20A (based upon N.J.S.A. 2A:15-5.12(b)) On Page 20
Jury instruction 6.20A On Page 19, 21
Lane v. Oil Delivery Inc., 216 N.J.Super. 413, 420, 524 A. 2d 405 (App.Div.1987) On Page 14
Lewis v. Read, 80 N.J.Super. 148, 175, (App. Div.), certif. denied, 41 N.J. 121 (1963) On page14
Lewis, supra, 80 N.J.Super. at 174On Page 14
N.J.R.E. 401 On Page 11
N.J.R.E. 402. State v. Hutchins, 241 N.J. Super. 353, 358 (App. Div. 1990) On Page 10
N.J.R.E. 403 On Page 11
Ruff v. Weintraub, 105 NJ 233, 238, (1987) On Page 13
Taweel v. Starn's Shoprite Supermarket, 58 NJ 227, 236 (1971) On Page 22
Taweel v. Starn's Shoprite Supermarket, Inc., supra, 58 N.J. at 231 On Page 23
Tronolone v. Palmer, 224 N.J.Super. 92, 98 (App.Div.1988) On Page 23
Smith v. Whitaker, 313 N.J. Super. 165, 199 (App. Div. 1998) On Page 21
State v. Allison, 208 N.J. Super. 9, 17 (App. Div. 1985) On Page 11
Weiss v. Weiss, 95 N.J.L. 125, 127 (E. & A. 1920)) On Page 21
During a trial on matters relating to my divorce, errors were made that resulted in verdicts on the issues of liability, compensatory damages, and punitive damages that were either contrary to law, unsupportable against the weight of evidence, or otherwise manifestly unjust. For these reasons I am seeking judgment not withstanding the verdict under Rule 4:40-2 or alternatively a new trial under Rule 4:49-1
Soon after sentencing, my lawyer at the time petitioned Judge Pisansky to reevaluate the decision.
Back in 2001 after I presented the plaintiff with a divorce proposal, she took a missing persons flyer to the police and said that I told her, “The next time you see your child it will be on a poster like this”. I was arrested. When the whole thing came to court, I produced an email that the plaintiff wrote to her sister just 12 hours before setting me up with the police. In the letter the plaintiff wrote “I am going to beat him to the punch and file charges so damn nasty that he is going to shit his pants.” Please see [Exhibit F] which was marked as Exhibit P-6 during the trial. The plaintiff and her sister admitted that the email was authentic and so the matter was dropped and I was allowed to return to my home. The plaintiff was never punished for doing this.
The plaintiff filed the exact same charges against her first husband immediately prior to divorce against him. I was only given in camera inspection of the complaint so I can not include it in my appendix, but it was accepted into evidence as Exhibit D-1 during the trial. That complaint was dismissed also. If you will look at (Trial Transcript Jan 25 2005 starting pg 129 line 5 until pg 131 line 5) you can see that the plaintiff is confused about whether or not her first husband threatened to kidnap their daughter or whether or not he actually kidnapped her or whether or not he didn’t do anything at all. Exhibit D-1 can be found as Somerset County Docket Number FV-18-0468-92C Conneran v. Conneran.
Upset that her
plan didn’t work, the plaintiff abducted my child. She pulled him right out of
my arms while we were at the Rahway Court House and disappeared with him. I
called the police but they told me that they could not intervene until 24 hours
had passed. The plaintiff had told me in the past that if I tried to leave her,
she would take our son to
My brothers who were with me also perceived that my son was in danger of being taken from the country so we waited in my home pretending not to be there hoping that the plaintiff would return for something she had forgotten. She left my son in the car and entered through the front door. As she entered our home, I exited through the back door with the thought of driving off with the car my son was sitting in and taking him to safety. Unfortunately, the plaintiff heard me leave the house and was able to reach the car while I was still fumbling with the keys. A wrestling match took place where I restrained the plaintiff while I instructed my brothers to take my son to safety. I could have left the scene before the police arrived but when I realized what I had done, I just waited to be arrested. When the police arrived and approached me, I told them what had happened and assisted in the immediate return of my son. The entire incident lasted 15 minutes at most but the plaintiff sustained scratches and bruises, which resulted from my restraining her.
The plaintiff claimed in [Exhibit A] under point heading 5 item (i) that I raped her. There is no doubt that you will see this accusation so I must address it. I am telling you under oath that I never raped the plaintiff or engaged in any kind of unconsensual sex with her. I am begging you to consider:
Under point heading 5 item (f) of [Exhibit A], the plaintiff claims I called her a lesbian and a whore in a public place. I am begging you to believe me when I tell you that this did not happen. I am asking you to believe me because I have not lied during these proceedings. While I can offer no direct proof, only my word, I did write in my computer every unhappy event as our relationship was falling apart. Here is what I wrote on that day.
To Whom It May Concern
I went to a fundraising Spaghetti dinner at my daughter Kate's school with my Step Mom, Dad, Brother Geoff, and Brother Jim
I came home earlier than expected because I went to the dinner instead of Judo practice.
I found Jack alone with my step daughter Eli. A lollipop
stuck in his mouth. Eli told me that Elisa was out having a drink. I figured it
was a local bar called the Fire House because I have seen some charges on our
credit card from this place. So I went there and found Elisa having a drink
with her lesbian friend. I bought their drinks and ordered a beer for myself.
The bar tender came over and asked Elisa what she did. She said she placated
the prisoners at
So I went home relieved Eli and took care of Jack. I read three books to Jack and watched some videos with him, brushed his teeth, and then put him to bed. At this point I can only pray that she sees her own value and the value of her relationship with me and the kids.
The other stuff under point heading 5 are arguments over child care and never escalated pass arguments. For instance, the plaintiff complains that I cut the cord for the iron and threatened her. The plaintiff wasn’t even present when I cut the cord so how could I have threatened her? Still, It seems like a crazy thing to do so what was making me crazy? Well the wobbly ironing board with the heavy pointy iron was directly over my sons play area. I moved the iron and spoke to the plaintiff about this several times and finally out of exasperation cut the cord of the iron. I also cut a phone cord when the plaintiff was trying to accuse my daughter of stealing a book cover. My step daughter eventually found the cover and exonerated my daughter. Also, after months of stepping in dog crap all over the house I did take a can of spray paint and spray on a wall “shit under table” I wish I had not done this but there are worse ways to express exasperation. I can’t believe this action warrants a $200,000 penalty. I also wrote “please help Jack” when my child was not receiving medicine for a chronic rash around his lips. He was a baby and excessive saliva was causing irritation and pain. I do not do this anymore. Just last week after my son complained he was sneezing blood and that his nose was completely raw from allergies, I asked him where was the medicine prescribed at a court ordered doctor visit. He told me that he had never seen it so I called DYFS and now magically he has his medicine. The point is that I have learned to use the system to protect my child rather than painting on the walls. Under point heading 5 item (e) of [Exhibit A], the plaintiff claims I ejected her from the car. I did not eject her, she left in a rage because I would not force my son to sit in a car seat that had vomit all over it. We had nothing to clean the seat with and we had no extra cloths for my child. I simply could not have my son’s bare skin soaking in stomach acid.
I hope you understand from all this that the plaintiff liked to fight and that she used my children to provoke me because I simply would not engage her over anything else.
POINT 1. IN BREIF: THE PLAINTIFF HAS UNCLEAN HANDS.
The plaintiff had me falsely jailed for “threatening to kidnap our child” and then she abducted my son right after I was freed to return to my home. She did this to upset me. In [Exhibit F] marked P6 at trial, she says she did this to “make me shit my pants”. Well mission accomplished. I attempted to rescue my son with out the help of police. That’s how upset and scared I became. How can the plaintiff be allowed to profit from intentionally provoking me? What’s worse is she misused police, prosecutors, DV Law and even my own child to do it. The plaintiff stands to gain a $200,000 verdict if I can’t prove my innocents of intentional harm. This abuse of the law seems even worse in light of the fact that she had her first husband falsely arrested for “threatening to kidnap their child” just prior to divorce proceedings. The plaintiff can not be allowed to profit from intentional provocation or from abusing the law?
by a court when complaining about the actions of someone else.
POINT 2. IN BREIF: THERE WAS NO EVIDENCE SUPPORTING THE
DECISION THAT I WAS IN THE
In fact there was a large body of evidence demonstrating that I was extremely mentally ill and suffering from Post Traumatic Stress Disorder when I attempted to rescue my son from a perceived kidnapping. This evidence will be described in detail further on, but briefly, the evidence presented was as follows.
1. I was myself kidnapped as a child and taken from the country. My ex-wife was well aware of this and knew that abducting my son would trigger a reaction in me.
2. I was being treated for Panic Disorder and Obsessive Compulsive Disorder at the time of my son’s abduction.
3. That I was committed to six different mental hospitals directly after the incident.
4. That directly after the incident I injured myself so severely in a suicide attempt in one of the mental institutions, that a medivac helicopter was required to get me to the hospital in time to save my life.
Legal Arguments in support of Point 2: There Was No Evidence Supporting The Decision That I Was In The Proper State Of Mind To Commit An Assault.
To establish a claim for intentional infliction of emotional distress, a plaintiff must show that the defendant acted intentionally or recklessly, both in doing the act and
the emotional distress; the conduct was so outrageous in character and extreme
in degree as to go beyond all bounds of decency; the defendant's actions were
the proximate cause of the emotional distress and the distress suffered was so
severe that no reasonable person could be expected to endure it. Buckley v.
POINT 3. IN BREIF:
SLANDERUS EVIDENCE WAS ADMITTED OVER MY OBJECTION, WHICH UNFAIRLY BIASED THE JURY.
The plaintiff slandered me by
asserting that I got her pregnant by secretly removing my condom while having
Over and over again the plaintiff (my second wife) asserted that I was a nasty nasty man citing reasons such as I left my first wife because she could not bear children. If I were such a nasty man, then why has my first wife helped me by acting as visitation supervisor for me and my son Jack, who is of my second marriage with the plaintiff? Still, how could a jury hear such accusations and not be driven to passion against me.
Under the New Jersey Rules of Evidence only relevant evidence is admissible. N.J.R.E. 402. State v. Hutchins, 241 N.J. Super. 353, 358 (App. Div. 1990). "Relevant evidence" as evidence which has "a tendency in reason to prove or disprove any fact of consequence to the determination of the action." N.J.R.E. 401. In interpreting the predecessor rule to Rule 401, New Jersey courts have explained that relevancy consists of two distinct components, materiality and probative value, and that the test for relevance is "the logical connection between the proffered evidence and a fact in issue." Hutchins, 241 N.J. Super. at 358; State v. Allison, 208 N.J. Super. 9, 17 (App. Div. 1985).
Court failed to exclude such testimony as violative of N.J.R.E. 403, which states:
[R]elevant evidence may be excluded if its probative value is substantially outweighed by the risk of (a) undue prejudice, confusion of the issues, or misleading the jury or (b) undue delay, waste of time, or needless presentation of cumulative evidence.
POINT 4 IN BRIEF: THERE IS NO
BASIS FOR THE JURY'S
Plaintiff testified as to the events forming the basis for her claims. As was amply demonstrated on cross-examination, plaintiff has absolutely no credibility. Indeed, it was clear from plaintiff's testimony that she lied every time it was to her advantage to do so.
To buttress the rotted foundation of her case, plaintiff presented the testimony of
Dr. Calvin Chatlos. Dr. Chatlos admitted that his specialty is adolescent substance abuse and addictions, not forensic psychiatry. Dr. Chatlos only saw plaintiff every one to three months for the sole purpose of monitoring her medications, not to diagnose her alleged on-going condition. Nevertheless, Dr. Chatlos concluded that plaintiff suffered from post-traumatic stress disorder as a result of the April 2001 incident and he "suspect[ed]" that there will be no return to normal. He did qualify the opinion by stating that plaintiff, due to past psychological problems, was vulnerable to depression.
On cross examination, Dr. Chatlos admitted that plaintiff was self-reporting, meaning that his only information came from plaintiff herself. Dr. Chatlos did not perform any recognized tests on plaintiff for malingering, even though he recognized that plaintiff could be lying for financial gain. Despite acknowledging that psychiatrists must always be suspicious of the motives for a self-reporting person who has a pending lawsuit to lie for financial gain, Dr. Chatlos incredulously testified that even knowing plaintiff lied under oath would not change his opinion. Dr. Chatlos' testimony is simply incapable of being believed and in fact, should be totally disregarded.
Next, plaintiff presented the testimony of Susan Levine, a social worker who specialized in counseling. Ms. Levine's testimony further undercut plaintiff's claim that the event of April 2001 caused her severe emotional distress. Levine was treating plaintiff from periods well before the April incident and the evidence demonstrated that plaintiff did not present major medical sequelae after the April 2001 incident other than crying and fear. Prior to the incident, she presented greater psychological problems.
Levine also testified that plaintiff suffered from several stressors other than defendant -including her employment in a maximum security prison and continued re-living of the incidents through litigation.' Of note here is that plaintiff actually carried on relationship with a violent criminal who worked with her at the prison who went by the moniker "Caged Rebel." Still, Levine testified that plaintiff had more strength than she ever imagined and the only way that she could put this incident behind her is wholly dependent on future actions.
As is evident, this testimony hardly constitutes the necessary showing a plaintiff must present in order to succeed on a claim for intentional infliction of emotional harm. There is simply no logic whatsoever to its determination that $110,000 properly compensates plaintiff in this matter. I am not arguing that the plaintiff was not damaged by my actions or that compensation is not due to her. I am only saying that the amount of damages that the jury came up with was largely speculative, passionate, and based largely on the false accusations mentioned previously under Point 3.
Finally, you can’t look at [Exhibit B] and fail to understand that I was harmed a lot more from this incident than the plaintiff.
Legal Argument In Support Of Point 4: There Is No Basis For The Jury's Verdict On Compensatory Damages
principal goal of damages in personal-injury actions is to compensate fairly
the injured party. Deemer v. Silk City Textile Mach. Co., 193 N.J.Super. 643, 651 (App.Div.1984). Fair
compensatory damages resulting from the tortious
infliction of injury encompass no more than the amount that will make the
plaintiff whole, that is, the actual
loss. Ruff v. Weintraub, 105 NJ 233, 238, (1987)("[D]amages in
personal-injury actions should reflect, as closely as possible, the plaintiffs
actual loss."). "The purpose, then[,] of personal injury compensation
is neither to reward the plaintiff, nor to punish the defendant, but to replace
plaintiffs losses." Domeracki v. Humble Oil & Ref. Co., 443 F.2d
1245, 1250 (3d Cir.), cert. denied, 404
In this case, the jury had absolutely no basis upon which to rest its determination of damages. There was no testimony about any actual losses that plaintiff may or may not have suffered. Generally, plaintiffs have the burden of proving damages. See, e.g., Lane v. Oil Delivery Inc., 216 N.J.Super. 413, 420, 524 A. 2d 405 (App.Div.1987) ("It is ... sufficient that the plaintiff prove damages with such certainty as the nature of the case may permit, laying a foundation which will enable the trier of the facts to make a fair and reasonable estimate."); Huddell v. Levin, 537 F.2d 726, 743 (3d Cir.1976) ("The plaintiff ... bears the burden of proof and it is the responsibility of the plaintiff to provide for the jury some evidentiary and logical basis for calculating or, at least, rationally estimating a compensatory award."); Caputo v. United States, 157 F.Supp. 568, 569 (D.N.J.1957) ("The burden rests upon the plaintiff to prove ... damages ... by the preponderance of the evidence. ").
Assigning a monetary value to pain-and-suffering compensation is difficult because that kind of harm is "not gauged by any established graduated scale." Cermak v. Hertz Corp., 53 N.J.Super. 455, 465, (App.Div.1958), affd, 28 NJ 568 (1959); accord Glowacki, supra, 270 N.J.Super. at 15. Nevertheless, pain-and-suffering awards must be reviewed to determine whether they are "fair and reasonable." Botta v. Brunner, 26 NJ 82, 92 (1958); see Lewis v. Read, 80 N.J.Super. 148, 175, (App. Div.), certif. denied, 41 N.J. 121 (1963). "The law abhors damages based on mere speculation." Lewis, supra, 80 N.J.Super. at 174.
POINT 5. IN BRIEF:
THERE IS NO BASIS FOR THE JURY’S AWARD OF PUNITIVE DAMAGES
I HAVE BEEN PUNNISHED
As direct and cross-examination showed, when the plaintiff abducted my son, I truly believed that she was going to take my child out of the country. And there can be no doubt that I was extremely agitated and mentally ill at the time I attempted to rescue my son. None of this excuses my conduct, but I have spent 3 ½ months in jail for committing this act, 4 months locked down in different mental institutions, I nearly died in a suicide attempt, I lost my job and all my assets, I am now homeless, and worst of all, I can no longer see my son with out supervision. Is there really a need to punish me more?
I HAVE CHANGED MY BEHAVIOR
This incident happened in April of 2001. That was over 4 years ago. A trusted court psychologist predicted that I would reoffend and find myself back in jail, but in all this time I never have. Instead of trying to solve disputes myself I have learned to use the court system. I have beaten the odds and truly changed my behavior. The plaintiff argues that because I admitted that my conduct was outrageous and beyond all bounds of decency, I have exposed myself to punitive damages. Well maybe I have, but how am I supposed to demonstrate my willingness to change my behavior, and therefore that further punishment is not necessary, if I will not admit to all that I have done wrong.
PUTTING ASIDE COMMON SENSE DUE TO LACK OF EXPERT WITNESS
The plaintiff was able to suppress all evidence of my mental condition on account of the fact that I had no expert witness to testify on my behalf. But I had no expert because I am homeless and destitute. I was forced to prepare for the trial myself and then just a few days before the trial, a relative took pity on me and sponsored a lawyer for me. But I never had the funds to acquire an expert. Still, I was committed to an institution for a period of 6 months by a judge in Wisconsin. I was in six institutions over a period of 4 or 5 months and I was under psychiatric care prior to the incident and was hauled into court prior to the incident for doing crazy things. And to top it all off, I stuck a knife deep into my neck and pulled across with all my strength in a determined effort to end my life. Healthy people don’t do that. To ignore evidence of my obvious mental illness for lack of expert testimony is to say that only wealthy people may have access to the legal system.
LACKING ABILITY TO PAY PUNITIVE DAMAGES
A trust exists for the benefit of my 2 children and that is what’s really driving this lawsuit. The trust consists of 815 shares of Class B non-voting common stock in the Masque Sound and Recording Corporation. My Grandfather started this company in 1931. The trust provides that the shares are held for the benefit of my two children, my daughter from my first marriage and my son with the plaintiff. I have no present interest in the shares. The fact that I am homeless, destitute, and representing myself and have no expert witnesses and have indigency status assigned to me by the Honorable Howard Kestin clearly demonstrates that I cannot and will not use any of the assets in the trust for anything except as it will directly benefit my children. The trust was prepared a few months before the incident that caused this trial when my family became aware of the severity of my illness. I actually signed the trust agreement on May 18 after getting out of my first mental hospital, which was about a month after the incident. To date, nothing has come out of the trust and no debts have been accessed against it. The trust is intact and waiting to be of use to my children. But my family is interested in protecting the assets in the trust for my children’s use, not necessarily the trust itself. The trust itself is only a shell to protect the assets to ensure that they will be there when my children come of age or for their education. For this reason, there has been some talk of protecting my children’s assets from this current litigation in the following manner; We are considering applying money I borrowed from Masque for legal and medical expenses against the trust. This would bring ownership of the stock back to my father who could then gift it to my children. We are not sure if this is a legal remedy toward protecting the assets for my children, but if it is, than this will be the only reason that the trust will be disturbed. Anyway, this trust was presented to the jury over my objection as demonstration of my wealth and ability to pay. This representation was false, extremely prejudicial, and helps to explain why punitive damages were assessed.
In addition, the plaintiff presented to the jury, over my objection, that my family has paid for some of my daughter’s private schooling and has helped with some of her other living expenses. This information is irrelevant and only served to mislead the jury. The fact is that my family members have a right to do what they want with their own money and I am grateful that they have used some of it to help my daughter. But use of this as evidence of my ability to pay punitive damages is to suggest that my family members are obligated to pay punitive damages assessed against me.
It is also important to point out at this time that my first wife and mother of my daughter has had to file bankruptcy as a direct result of the fact that I have lost the ability to support her as I did prior to the incident that caused this lawsuit. And who pay’s for bankruptcy? Consumers and Taxpayers do. In other words all of us. The same people, by the way, who paid for my hospitalization, jailing, and these proceedings. So assuming that the plaintiff is successful in this suit, then we will have a net transfer of wealth from consumers and taxpayers to the plaintiff. Not a bad day’s work for a well-documented liar with proven history of abusing the legal system and who had no small part in provoking this incident. These proceedings are a perfect example of the very real losses the country sustains when one attempts to acquire wealth through litigation as opposed to providing a product or service.
The plaintiff also presented to the jury, over my objection, that my family has lent me money in the past to pay for legal expenses. And while they have lent me money to cover my legal expenses, this is entirely at their discretion and completely out of my control as evidenced by the fact that I had no expert witnesses at my trial. My family cannot be forced to pay for punitive damages assessed against me. Still, the court allowed this testimony and the jury impermissibly rested its verdict on speculation that I had the ability to pay.
For the past two years I have been living in my van while driving a taxi in the town of Rahway. Unfortunately, I have not been able to maintain my payments on the van and it was repossessed. So now I live in a tent in the woods, moving around from place to place. In fact, the only asset I have left is the stock held in trust for my children, which is again, the motivation for this lawsuit. But forcing me to turn over this asset to the plaintiff goes beyond punishing me, now we are talking about punishing my children. Surly punitive damages were not meant to be used this way.
Legal Argument In Support Of Point 5: There Is No Basis For The Jury’s Award Of Punitive Damages
A. Punitive Damages are Inapplicable to Defendant's Alleged Conduct
On the record before the Court, it is impossible for the jury to have concluded
that punitive damages are justifiable. The facts in this matter simply do not equate with
the sort of egregious, malevolent conduct necessary to sustain the award of punitive
damages. Jury instruction 6.20A explains that "[p]unitive damages are awarded as a
punishment of the defendant and as a deterrent to others from following his or her
example." The instruction further explains that
[t]o support an award of punitive damages you must find that plaintiff has proved, by clear and convincing evidence, that the harm suffered by the plaintiff was the result of defendant's actions or omissions and that either (1) the defendant's conduct was malicious or (2) the defendant acted in wanton and willful disregard of another's rights. Malicious conduct is intentional wrongdoing in the sense of an evil-minded act. Willful or wanton conduct is a deliberate act or omission with knowledge or a high degree of probability of harm to another who foreseeably might be harmed by defendant's acts or omissions and reckless indifference to the consequence of the acts or omissions.
As stated above, the direct and cross-examination amply demonstrated that I, truly believed that the plaintiff was going to remove my son from the country. It was also established that there were several incidents of irrational behavior ultimately leading to the April 20, 2001 rescue attempt.
Jury Charge 6.20A (based upon N.J.S.A. 2A:15-5.12(b)) provides that the jury should
Consider all relevant evidence, including but not limited to the following: (1) you should consider the likelihood, at the relevant time, that serious harm would arise from the defendant's conduct; (2) consider the defendant's awareness or reckless disregard of the likelihood that such serious harm would arise from the defendant's conduct; (3) consider the conduct of the defendant upon learning that its initial conduct would likely cause harm; and (4) consider the duration of the conduct or any concealment of that conduct by the defendant. (emphasis added).
On cross-examination, plaintiff's counsel repeatedly got me to admit that my actions were "crazy," "volatile" and "irrational." Given my uncontroverted state of mind during the relevant time period, it cannot be found that my actions were willful, malicious, intentional or designed to hurt plaintiff. Simply stated, I did not intentionally set out to hurt Elisa or foresee that my actions could reasonably hurt her. I was in no state of mind to form the requisite intent. While there is no doubt that my actions hurt Elisa to some unknown extent, it cannot be fairly said that I had the requisite state of mind to willfully or even recklessly hurt her. I was simply too far out of my mind in a state of panic over the perceived kidnap threat. To allow this jury's award on punitive damages to stand would be unfair and contrary to settled law.
B. The Court's Ruling Allowing Testimony of the Trust Created the Misimpression that I had the Ability to Pay Which is Contrary to the Facts
Jury Instruction 6.20A and relevant case law clearly establish that one overriding factor for the jury to consider in the amount of punitive damages is the ability of the defendant to pay. See e.g. Herman v. Sunshine Chemical Specialties, Inc., 133 N.J. 329, 345 (1993); HcConkey v. AON Corp., 354 N.J. Super. 25 (App. Div. 2002); Smith v. Whitaker, 313 N.J. Super. 165, 199 (App. Div. 1998)(for purposes of punishment and deterrence, defendant's financial ability to pay is relevant; wealthy wrongdoers should pay more than others)(citations omitted). See also BMW of N. Am., Inc. v. Gore, 517 U.S. 559 (1996). The case law also notes that it is the defendant's actual pecuniary ability to pay that is relevant (Weiss v. Weiss, 95 N.J.L. 125, 127 (E. & A. 1920)), not a speculative or illusory one.
Throughout the trial, and over my objection, plaintiff and her counsel repeatedly referred to my family's wealth, that their business was worth millions and that my daughter from my first marriage was attending a private school. Such references are simply meant to give the jury the false impression that I am wealthy, when there is no such evidence. In fact, the evidence revealed during the Rule 104 hearing just prior to the start of the punitive damage trial demonstrated that I have no assets and no ability to pay punitive damages.
A trial court may order a new trial when, "having given due regard to the opportunity of the jury to pass upon the credibility of the witnesses, it clearly and convincingly appears that there was a miscarriage of justice under the law." R. 4:49-1. Once the trial court determines that a "miscarriage of justice" has occurred, Baxter v. Fairmont Food, 74 N.J. 588, 597-98, (1977), a new trial is warranted. The scope of the new trial depends on the nature of the injustice. Where trial error affecting liability occurs, the new trial will encompass all issues. See Carey v. Lovett, 132 N.J. 44, 68, 70, (1993) (verdict required new trial on liability and damages where it resulted from trial court's obvious impermissible bias toward plaintiffs throughout trial). A trial court's obligation on a motion for a new trial involves "[a] process of evidence evaluation,-'weighing.' " Dolson v. Anastasia, 55 N.J. 2, 6 (1969) "The object is to correct clear error or mistake by the jury." Id. The court is to take into account, not only tangible factors relative to the proofs as shown by the record, but also appropriate matters of credibility, generally peculiarly within the jury's domain, and the intangible "feel of the case" which it has gained by presiding over the trial. Id. A trial court should set aside excessive verdicts only in "clear cases." Fritsche v. Westinghouse Elec. Corp., 55 N.J. 322, 330 (1970). In assessing whether the quantum of damages assessed by the jury is excessive, a trial court must consider the evidence in the light most favorable to the prevailing party in the verdict. Taweel v. Starn's Shoprite Supermarket, 58 NJ 227, 236 (1971). A trial court can interfere with a jury verdict if the verdict is clearly against the weight of the evidence. Horn v. Village Supermarkets, Inc., 260 N.J.Super. 165, 178 (App.Div.1992), certif. denied, 133 NJ 435 (1993). The verdict must shock the judicial conscience. Carey v. Lovett, 132 NJ 44, 66 (1993).
Where damages are so grossly excessive as to indicate prejudice, partiality or passion on the part of the jury suggesting that the liability verdict is tainted or that there was a compromise verdict as to liability, a new trial must be granted as to all issues. Taweel v. Starn's Shoprite Supermarket, Inc., supra, 58 N.J. at 231; Tronolone v. Palmer, 224 N.J.Super. 92, 98 (App.Div.1988).
Because the plaintiff lied under oath saying “I raped her”, because the plaintiff’s lawyer introduced at the end of the trial, the insane idea that I made the plaintiff pregnant by secretly removing my condom during sex, because the plaintiff had me falsely jailed on charges that I threatened to kidnap my child, because she wrote to her sister that she did this to provoke me (“to make me shit my pants”) and to have an advantage in these proceedings, because the plaintiff abducted my child right after I was cleared of the false charges, because the plaintiff knew that I was abducted when I was a child and that her actions would make me absolutely crazy, because the plaintiff used my children to provoke every single conflict during our years together, because I never struck the plaintiff, ever, but did restrain her on two occasions when she was absconding with my child, because I never did anything to intentionally harm the plaintiff and because I have already been punished with insanity, jail, loss of my job, loss of all my money, all my property, and worst of all, loss of time with my children, I am asking the court to disallow compensatory and punitive damages as unjust. In the alternative, I am requesting a new trial.
John R Shearing
Please let this serve as my sworn certification that
everything in this letter is true and that everything that you have received
from me to date including this correspondence and it’s attachments have also
been sent to Mr. Duff
(Attorney for the plaintiff) at 217 Main St. Woodbridge NJ 07095
and that I understand that if anything in this letter is knowingly false then I
am subject to prosecution.
John R Shearing
CC Howard Duff