Opposition Brief — Braen v. Laganella

TA Sc pee ey Oe en oe SL ee Nigh:

. 4 F: , . > = re PAN)

—* Sidy o an ,

" Pe FILED

ee

=

va

oT 15

. 4

CASE NO.: JOSEPH F. SPANIOL, dR

IN THE AB

SUPREME COURT OF THE UNITED STATES

October Term, 1989

SAMUEL BRAEN, JR.

Petitioner

Vv.

P-T.&L CONSTRUCTION CO., INC.

Respondents

BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

,

. NICHOLAS LAGANELLA AND

|

:

i

!

BEST AVAILABLE COPY

TABLE OF CONTENTS

ee i a rithccaccehscencscssonenrannesteseesecegaccasatces i

DR Fete IID caniccscccscscsssisssecccoscsosessesssadioccsan ii

DE CUR MEE GI BOUIN MTU cicsnscccccsscsescesnercscorscnscscencccese |

BE IEE heehee bndehctdnncsdatnsnasistscasaccenebastdeveuncces ]

Ie I oii cs iasisndsncdodiiabndtinonansnsensnete ]

Cy Stats Count Proceedings ..........crcccsscccccscceesseescesees 7

D. Federal Court Proceedings ..............:.sssssessseeeees 12

ARGUMENT AMPLIFYING REASONS FOR DENIAL OF

Pi WORE Se) Get ED indcerssipenigsiinssidncattssiesncscssccsone 15

I. SINCE THERE IS NO CONFLICT AMONG THE

DECISIONS OF THE CIRCUIT COURTS OF

APPEAL ON THE ISSUE OF THE BURDEN OF

PROOF REQUIRED BY FEDERAL LAW TO

SUBSTANTIATE A CLAIM OF

NONDISCHARGEABILITY UNDER 11 U.S.C.

523(a)(6) THE REQUEST FOR CERTIORARI

SEPP SUE TTD castsccchinhscsnscesoasenasovsecnentenncs 15

Il. THE COURT OF APPEALS CORRECTLY

REFUSED TO ALLOW THE PETITIONER A

HEARING ON THE ISSUE OF WHETHER THE

ALLEGED MALPRACTICE OFHIS ATTORNEYS

DEPRIVED HIM OF A FULL AND FAIR

OPPORTUNITY TO LITIGATE RESPONDENTS’

MALICIOUS PROSECUTION CLAIMS IN THE

STATE COURT PROCEEDING’ SINCE

MALPRACTICE WHICH DOES NOT RESULT IN

A DENIAL OF FUNDAMENTAL RIGHTS IS NOT

SUFFICIENT TO BAR THE APPLICATION OF

III. THE COURT OF APPEALS’ DETERMINATION

THAT COLLATERAL ESTOPPEL IS APPLICABLE

TO THE STATE COURT JURY’S FINDING THE

DEBTOR ACTED WITHIN THE PARAMETERS

OF SECTION 523(a)(6) ENTIRELY COMPORTS

WITH SETTLEDLEGAL PRINCIPLES AND DOES

NOT GENERATE ANY BASIS FOR A GRANT OF

COREE UPMIIEE sinsncinituacadidicatebanetacibinbaienninibaccsdescsens 24

CONC RFU inks cnkscisissscnctiainlaiaciibenecetal ain telet a eee ete ai 27

TABLE OF AUTHORITIES

CASES

Ackerman v. Ackerman, 676 F.2d 898 (2nd Cir. 1982) .....23

Augusta Fiberglass Coatings, Inc. v.Fodor Contracting Corp.,

SES Fe BS COs Ce, a accsisetcssicsintennidtesnthibietstinictictoeinee 22

Bass v. Spitz, 522 F. Supp. 1343, (E.D. Mich. 1981)........... 9

Blonder-Tongue Lab., Inc. v. University of Illinois Foundation,

QED US. SED CITA) ccaseiiscvitistiteriiittinanalbia iliac eres 21,22

Boughner v. Secretary of HEW, 572 F.2d 976 (3rd Cir. 1978)

evessoenensnenneennespapinienne sunsjeasiansaniinasnethieiiiiiensiinniaelisnaineiilalnnilianiaicaias 22

Cerbone v. County of Westchester, 508 F. Supp. 780(S.D.N.Y

FOB EL ) <orereseseccnesnesiusionissinaibondaeieljsiiesiaiiaiiaiimaneiaiam ti mites o7 23

Chrysler Credit Corp. v. Rebhan, 842 F.2d 1257 (11th Cir.

nina sacbacinbbabebibsabelspibiciecicianctionts 15,16

Clark v. Department of Correctional Services, 564F. Supp. 787

I I ins ck icebh as sbsncbbnsasonsidabdeskesucasrinsdsataabssscniess 23

Combs v. Richardson, 838 F.2d 112 (4th Cir. 1988) ......... 16

Cupp v. Naughton, 414 U.S. 141 (1973) ......ccccsesseeeeeeenee 25

Drakos v. Jones, 189 Okl. 593, 118 P.2d 388 (Sup. Ct. 1941)

(aia eae a ak a Il hc wiles caevasiainsesbsecscbasihuseesbens 9

EB, Pes BA Peds BED (IGS) cckecssescccascnccresoncasscossicnses 27

Gustafson v. Payless Drug Stores, Inc., 269 Or. 354,

Be I Ne BF PD ssencsnicnrsnncrescccsncsncesccssesssonsooerce 9

In re Braen, 900 F.2d 621 (3 Cir. 1990)

dana baiksaieaiiotnaanabilckabpltadburaitebsditins 15, 16, 17, 18, 20, 22, 25, 26

In re Garner, 881 F.2d, 579, (1989) cert. granted sub. nom.

Grogan v. Garner,__U.S.__, 110 S. Ct. 1945, 109 L.Ed.2d

PE a He Lk, bach caninshsadakccevbvesipiandcodeckdipabetevcboincesteee 16

Jackson v. Hanover Insurance Companies, No. 88-1379,

I BE ID vstinntinnissieconecebuvdsnaviastbnndsckrcasinesensseseses 9

Kremer v. Chemical Const. Co., 456 U.S. 461 (1982)..20,21

Lalone v. United States, 164 U.S. 255 (1896)...............000 18

Lind v. Schmid, 67 N.J., 255, 337 A.2d 365 (1965)............. 9

Montana v. United States, 440 U.S. 147 (1979) ................ 20

Rasmussen Buick-GMC Inc. v. Roach, 314 N.W.2d 374 (Iowa

Bente 5%, I satiesisvevsichevitselieaicnsnnbiinelpaliabiaticanstbenileitechigaheanehsaid 9

Rose v. Whitbeck, 277 Or. 791, 562 P.2d 188 (Sup. Ct. 1977)

State v. Laganella, 144 N.J. Super. 268, 365 A.2d 224 (App.

Div. 1976) app. dism. 74 N.J. 256, 377 A.2d 652 (1976)...7

Triplett v. Lowell, 297 U.S. 638 (1936) ......csccsssssscssseeccees 21

United States v. Clark, 765 F.2d 297 (2d Cir. 1985) ......... 25

United States v. Piccolo, 835 F.2d 517 (3d Cir. 1987) ...... 25

Wheeler v. Laudini, 783 F.2d 610 (6th Cir. 1986)............. 27

Williams v. Page, 160N.J. Super. 354, 389 A.2d 1012 (App. Div.

IP FE) sicacccossncecnssnsinsntesssenibbedsdamcbiisielaiohilesttnieadasgieanaeus 9

White v. Chicago Burlington and Quincy Railroad, 417 F.2d941

(OR CIR, PID sachocccheincteaiiacapbiedetiahetekattalietenss 9

Whittaker v. Duke, 473 F. Supp. 908 (S.D.N.Y. 1979)........ 9

Zalewski v. Gallagher, 150 N.J. Super. 360,375 A.2d 1195 (App.

BUY. BITTY nisccasnseccchienhsivanbsoptebieiacasiliaaaaeaaanadanadbaibn 9

iv

STATUTES

FS re ENED cscsesscscansscadecdcenscsnscssossnensdnin 15, 16, 18, 19

FE EID oi casdick ssascesssssconcssstnssosecce 1,13,14,15,24,27

A Re TE nein shiceianinsnrecssnioessasaiansasasinnighlaeinielasuubesds 13

OTHER AUTHORITIES

Prosser, Law of Torts (4th ed. 1971) .....c.cccccccssscsecssscessseeeees 9

Restatement (Second) of Torts, Section 653, Comment g....9

Ҥ

~

A

~

STATEMENT OF THE CASE

A. Introduction.

On March 30, 1990, the United States Court of Appeals for

the Third Circuit held that petitioner Samuel Braen, Jr. (“Braen”’)

was collaterally estopped from relitigating, in a bankruptcy ad-

versary proceeding, the merits of a state court judgment against

him for damages for malicious prosecution. (A 21).' Accordingly,

the Court of Appeals reversed an Order of the District Court of

New Jersey and reinstated an Order of the Bankruptcy Court,

granting summary judgment in favor of respondents Nicholas A.

Laganella (“Laganella”) and P.T.& L. Construction Co., Inc.

(“P.T.& L.””) on their claim that the state court judgment constituted

a non-dischargeable debt for “willful and malicous injury by the

debtor” within the scope of 11 U.S.C. Section 523 (a)(6) (A58).

B. Factual Background.

In November of 1972, petitioner was indicted for

“shortweighting” trucks delivering asphalt for the repaving of the

Palisades Interstate Parkway (“PIP”) (T2:177-13 to 18; (JA 392);

T2:179-22 to T2:180-1; T4:587-4 to 9 (JA 409); T4:596-10 to 12

T5:718-8; T5:728-11 to 12 (JA 436)).2 In plea discussions, the

'A-tefers to the Appendix to the Petition for Writ of Certiorari filed by Braen.

?T-tefers to the five (5) bound volumes of trial transcript filed by the Braen and his

co-defendants in the Superior Court of New Jersey, Appellate Division, followed by

a prefix number designating the particular transcript volume, and page and line

references. Transcript references without a volume prefix are to the trial testimony

of Nicholas Laganella taken on November 9, 1983 in the Superior Court of New

Jersey, Law Division, Bergen County. The Bankruptcy Court had the entire trial record

before it in making its determination to grant summary judgement.

JA-tefers to the Joint Appendix filed with the Court of Appeals.

1

New Jersey Division of Criminal Justice (the “Division’’) stead-

fastly refused to agree to a non-custodial term for Braen (T4:677-

10 to T4-678-2; T2:731-4). As a result of the PIP indictment,

the New Jersey Department of Transportation (“DOT”) suspended

the rights of all Braen companies to bid on, or perform, State

construction contracts (T2:181-17; T5:729-11 (JA 437)). State

work was the principal source of business for the Braen companies,

which were involved in highway construction and the supply of

road-building materials to other contractors (T4:673-11).

Braen’s criminal activities had not been limited to just those

cited in the PIP indictment. Over the years, Braen had bribed

public officials to obtain a building permit for a Braen concrete

plant, to reduce the tax assessment on a Braen company property

and to induce neglect of duty by road inspectors and police officers.

He had colluded with other contractors for the purpose of dividing

and allocating public works contracts among them. He had also

defrauded the public treasury through the use of “shortweighting”’

schemes in which the Braen companies charged the government —

for more materials than were actually delivered (T4:592-11 to

T4:594-18;T4:597-17 toT4:599-9; T4:602-15; T 4:63 1-6to T4:63 1-

15).

Braen and hiscompanies retained Raymond Bergan, Jr., Esquire,

of the Washington law firm of Williams, Connelly & Califano,

to represent them (T4:589-2 to 6 (JA 411); T4:683-9). On the

eve of the trial of the PIP indictment, Bergan arranged a plea bargain

2

with the Deputy Attorney General Michael Bozza (““Bozza’’), the

prosecutor in charge of the case for the Division. Braen decided

to barter information in exchange for his freedom and the resto-

ration of the Braen companies’ rights to do business with the State

(T2:184-14; T4:667-12 to 24).

Pursuant to the plea agreement, the State committed not to

prosecute Braen, his father (Samuel Braen, Sr.), the Braen companies

and their officers and employees for any of their criminal activities.

The Division also promised to intercede with the DOT to have

the Braen companies reinstated as eligible bidders on highway

construction contracts.’ Finally, the Division agreed to dismiss

the PIP indictment as to Braen. In return, Braen agreed to cooperate

with the State and provide information, enabling the Division to

prosecute those responsible for political corruption and the

commission of other criminal offenses in the construction industry

(T2:173-1 to 9; T2:188-17 to T2:189-4; T2:198-11 to 25; T4:666-

5; T4:672-19 (JA 423); T4:682-15 to T4:684-13; T5:729-25 to

T5:730-7 (JA 437, 438); T5:744-11 to T5:745-5 (JA 449, 450)).

Braen and Bergan met with Deputy Attorney General Bozza

and other Division employees on January 7, 1974. The interview

Representatives of the Divisior testified on behalf of Braen, Sr. and the Braen

companies at administrative proceedings held before the DOT in 1975 on their

restoration application. (T2:198-16; T4:690-16 to T4:691-16; T5:742-25 to T5:743-

2;T5:744-11 toTS:745-5). Braen had resigned as an officer of various Braencompanies

at some point after his indictment (T4:638-16; T4:523-18). His decision was prompted

by his “father’s lawyers” who wanted Braen to resign in order to facilitate the

reinstatement of the Braen companies. (T4:523-7 to 13).

3

was tape recorded in its entirety (JA 453 to 503). Braen told Bozza

that Sam Braen Construction Company (“SBCC”), the Braen

company engaged in public construction work, had unlawfully

conspired with respondents, Nicholas Laganella (““Laganella”) and

P.T.& L. Construction Co., Inc., (“P.T.& L.”) to “rig” the bidding

on a contract for the improvement of a section of State Highway

Route 23. The purpose of the purported criminal arrangement

was to have SBCC submit a “complimentary” or higher bid so

that the contract would be awarded to P.T.& L. In return, the

Braens were to receive a payment of $185,000 (T2:175-18 to

T2:176-5 (JA 390,391); T4:590-10 to 17 (JA 412); T4:591-3 JA

413); T4:669-10 to T4:670-8 (JA 420,421); T4:671-11 (JA 422);

T5:731-22 to T5:732-2 (JA 439, 440) (JA 479-483). Prior to the

meeting with Braen, the Division had no information linking

Laganella or P.T.& L. to any criminal violations with respect to

the bidding on the Route 23 contract (T2:170-5 to 16).

In fact, P.T.& L. and Laganella were completely innocent of

the charges made by Braen. P.T.& L. and SBCC had entered

into a legitimate business agreement regarding the Route 23

contract. Braen twisted and distorted that agreement in order to

avoid imprisonment and forestall the financial collapse of the Braen

empire.

In truth, Samuel Braen, Sr. had agreed to have SBCC provide

P.T.& L. with “bridge prices” to be incorporated into P.T.& L.'s

bid for the Route 23 contract (T7-23 to 8-9). In return, Laganella

promised that, if P.T.& L. were the low bidder, P.T.& L. would

subcontract the bridge work to SBCC and purchase the asphalt

| required for the job from a Braen company (T8-9; T33-7; T1;140-

4;T11:154-3). P.T.& L. prevailed as the lowest responsible bidder

and was awarded the contract (T28-24; T1:62-3; Certificate of

Award, Exhibit P-6, in Evidence, T1:91-19, November 10, 1983).

Following the bidding, P.T.& L. received an unsolicited proposal

for the Route 23 project from Tri-County Construction (“Tri-

County”). Tri-County offered to do the bridge work and to supply

the asphalt for approximately $350,000 less than the Braen quote

on these contract items (T29:-3 to 5; T42-6 to 17; T1:46-3; T151-

| 23 to T1:153-1; Exhibit P-5S, in Evidence, T1:89-11, November

| 10, 1983).

| Laganella then approached Harry Evans (“Evans”), SBCC’s

Vice President and General Manager, and Braen to negotiate for

a relcase from his commitment to the elder Braen. The parties

ultimately agreed that P.T.& L. would pay $185,000 therefor (T31-

1 to 10; T33-22; T1:140-4 to 6; T1:154-9 to 13; T1:156-1). P.T.&

L. executed a series of promissory notes to evidence its obligation

to the Braens (T33-25 to T34-2). Braen was aware that the P.T.&

“Bridge construction was a major part of the Route 23 contract. P.T.A&L. typically

did excavation, grading and paving on its highway contracts (T1:72-13), with structure

work, such as bridges, being done by a specialty subcontractor (14:10 to 17; T1:143-

6). In preparing P.T.&L.'s bid, Laganella had been unable to obtain any subcontractor

quotations for the Route 23 bridge work (T6-3).

bcs :

L. notes constituted the consideration for the release. Braen also

knew that the amount of the payment had been calculated so as

to compensate the Braen companies for the loss of profit on their

subcontracts (T4:625-21 to T4:626-21 (JA 414, 415); T4:643-20

to T4:644-2).

As a result of Braen’s false accusation, a State Grand Jury

was empaneled to hear the “evidence” concerning Braen’s charges

(T2:192-5 to 11 (JA 395); T5:735-12; T5:736-2 to 20 (JA 441)).

The State introduced Braen as its first witness on January 17, 1974.

In response to questions posed by Deputy Attorney General Bozza,

Braen gave perjured testimony, incriminating P.T.& L. andLaganella

in a purported “bid-rigging” conspiracy (T2:172-3; T4:591-7 to

13). On November 18, 1974, the State Grand Jury returned an

indictment (No. SGJ-18-74-15) against Laganella and P.T.& L.,

charging that they had conspired with Braen, Sr., Braen, Evans

and SBCC (all unindicted co-conspirators) to obstruct the due and

proper administration of New Jersey’s competitive bidding laws

in connection with the Route 23 contract (T1:75-3 to 17; T2:192-

13 (JA 395); Exhibit P-1A, in Evidence , T1:81-15, November

7, 1983). Laganella and P.T.& L. entered pleas of not guilty. On

December 27, 1974, however, the Commissioner of the DOT,

acting solely on the basis of the conspiracy indictment, suspended

P.T.& L. and Laganella from bidding on the State highway

construction contracts. (T1:91-23 to 25; T1:93-1 to 13; T1:78-21

to T1:79-14; Exhibit P-7 in Evidence, T1:92-10, November 10,

6

1983).

Plaintiffs were tried twice on the conspiracy charge. The first

trial (April 1975) terminated when the trial judge dismissed the

indictment on grounds of prosecutorial misconduct by Deputy

Attorney General Kathy Flicker (T1:81-2 to 8; T1:96-12). On

appeal by the State, the Appellate Division reversed and remanded

the matter for a new trial. See State v. Laganella, 144 N.J. Super.

268, 365 A.2d 224 (App. Div. 1976) app. dism. 74 N.J. 256, 377

A.2d 652 (1976). The second trial, in December 1978, ended with

jury verdicts of “not guilty”. Judgments of acquittal in favor of

Laganella and P.T.& L. were entered on December 28, 1978

(T1:80-18 to 25; Exhibits P-1B and P-1C, in Evidence, November

7, 1983).

C. State Court Proceedings

Respondents instituted an action against petitioner and others?

by Complaint filed February 25, 1980 in the Superior Court of

New Jersey, Law Division, Bergen County (JA 133). Respondents

sought money damages on a claim for, inter alia, malicious

prosecution.

Prior to trial, petitioner moved for summary judgment dis-

missing the Complaint (JA 173)°. Braen’s attomeys, Amster &

ne eee eee Aen May Grane and Boon Indeowies

‘Copies of Braen, Jr.'s Notice of Motion, Affidavit and Brief, filed in connection

with the summary judgement motion, were submitted as exhibits to respondents’ Reply

Brief in the Bankruptcy Court.

7

Rosensweig, contended that respondents’ malicious prosecution

claim was without merit. They argued Braen could not be held

liable since Braen had only communicated what he “...sincerely

and honestly believed to be plaintiff's involvement in a crime...”

(JA 178-17); his disclosure of respondents’ “wrongdoing” to the

State was “compelled” by the terms of the plea agreement ne-

gotiated with the Division (JA 179-49); his participation in the

development of the case against respondents was limited to his

debriefing by the Division in January of 1974 (JA 180-30, and

his appearance before the State Grand Jury (JA 180-42)’; he did

“nothing else to actively encourage or assist in the prosecution

of plaintiffs” (JA 181-19); and, finally, respondents’ debarment

from bidding on public contracts “...was the result of usual state

administrative procedures and determinations over which neither

[Braen] nor anyone else involved in this litigation had any control

(JA 181-50)*. Thus, the very arguments which Braen asserts are

“directly applicable to the facts of this case” and were not made

by his attorneys in state court (Petition, at page 9) were actually

"Braen's attorneys attached the grand jury testimony of Braen and Evans as Exhibits

B and C w the Brief filed in support of the summary judgement motion. This fact

undermines the contention raised here that petitioner's atlorneys “made no effort to

obtain the State's file in this matter”, including the State’s copies of the grand jury

proceedings (Petition, at pp. 8-9).

*Braen's Brief in support of the motion also substantiates his counsel's awareness

of the determination made by Hearing Examiner Leon Gerofsky denying respondents’

request for reinstatement to the list of eligible bidders (Brief, “Statement of Facts”,

at page 4; “Legal Argument”, at page 15). Moreover, Braen’s counsel urged that

Gerofsky’s decision established the presence of “probable cause” and a complete

defense to respondents’ claims: (Footnote continued on next page)

ee re re i

presented on the summary judgment motion’. In any event,

petitioner’s motion was denied by Order dated November 14, 1983

(JA 196).

The case was tried before a jury over a two week period in

November of 1983. The jury recognized Braen’s perfidy, awarding

“Whatever the reason for plaintiffs’ eventual acquittal on criminal

charges, those parties cannot dispute that cause was found to bar

them as bidders on public contracts following hearing in which

the plaintiffs were complete participants. That fact, coupled with

the earlier return of an indictment, the conclusion that

probable cause existed for the criminal charge lodged against the

plaintiffs”. (Brief, at page 15).

It should be noted in this regard that, under New Jersey law, even the return of an

indictment does not conclusively establish the existence of probable cause in a

malicious prosecution action where the plaintiff, as here, has contraverted the facts

underlying the criminal charge by means of competent evidence. See, e.g., Lind v.

Schmid, 67 N.J., 255, 266, 737 A.2d 365, 370 (1965); Zalewski v. Gallagher, 150

N.J. Super. 360, 368, 375 A.2d 1195, 1199 (App. Div. 1977); accord, Williams v.

Page, 160 N.J. Super. 354, 389 A.2d 1012 (App. Div. 1978).

*Petitioner’s position that the applicable legal principles are stated in the unreported

opinion in Jackson v. Hanover Insurance Companies, Civil Action No. 88-1379, slip.

op. at page 2 (D.N.J. May 16, 1988) (A 62 et seq) and in Whittaker v. Duke, 473

F. Supp. 908, 910 (S.D.N.Y. 1979) is mistaken. A person is liable for the tort of

malicious prosecution on grounds of having initiated or instituted a criminal

when: (1) he knowingly makes false statements or willfully conceals material facts

in reporting to law enforcement officials the grounds upon which he believes a crime

has been committed; and (2) a prosecutor commences a criminal proceeding on the

basis of the faise or incomplete information the informant has provided. The informant

is not divested of liability simply because the prosecuting attorney has made an

investigation into the allegations or a determination to bring the proceeding, since

the false or incomplete information disables the prosecutor from effectively exercising

his discretion. While v. Chicago, Burlington and Quincy Railroad, 417 F.2d 941, 943-

945 (eth Cir. 1969); Bass v. Spitz, 522 F. Supp. 1343, 1348-1349 (E.D. Mich. 1981);

Rasmussen Buick-GMC Inc. v. Roach, 314 N.W. 2d 374, 376-377 (lowa Sup. Ct.

1982); Rose v. Whitbeck, 277 Or. 791, 562 P.2d 188, 191-192 (Sup. Ct. 1977);

Gustafson v. Payless Drug Stores, Inc., 269 Or. 354,525 P.2d 118, 122-123 (Sup.

Ct. 1974); Drakos v. Jones, 189 Oki. 593, 118 P.2d 388, 390 (Sup. Ct. 1941);

Restatement (Second) of Torts, Section 653, Comment g.; Prosser, Law of Torts 836-

837 (4th ed. 1971). Comment g. to Section 653 of the Restatement, in particular,

summarizes the accepted principles for assessing liability against informants like Braen

who have provided false or incomplete information to government prosecutors. Under

Comment g., the subjective “impressions” of the State prosecutors that Braen was

not “...out to “get” anyone...” (Affidavit of Michael Bozza, April 7, 1988, Paragraph

9, Pg.3(A75)or that Braen“...did not, in any way, push for indictmentof Laganella...”

(Affidavit of Kathy Flicker, March 30, 1988, Paragraph 7, pg. 3 (A 67) are not relevant,

even if their testimony was competent in the first instance.

9

respondents compensatory damages of $10,175,000 on a special

interrogatory verdict (JA 246 to 252) and $150,000 in punitive

damages. An Order of Judgment incorporating the verdicts was

entered on November 30, 1983 (the “Judgment”) (JA 253).

Braen attended each session of the two week trial. He testified

at length in his own defense. No application was made for a

postponement or continuance of the trial proceedings on account

of Braen’s medical condition or his alleged poor health’®. Braen’s

credibility was impeached on the basis of his own prior inconsistent

Statements in sworn testimony, and not as a result of the effects

of his illness.

Petitioner’s complaints as to counsel’s handling of the trial

do not amount to a deprivation of fundamental rights, rendering

the state court proceedings unfair or violative of due process.

Petitioner mounted a serious defense, contending that he had told

the truth about the alleged bid-rigging conspiracy and that there

was probable cause for his allegations. His counsel cross-examined

"°W ithout disparaging Braen's illness, several critical observations are pertinent here.

At the outset, the letters from Dr. Robert S. Rigolosi (apparently Braen's treating

physician), which were annexed to Braen’s Affidavit filed in the Bankruptcy Court

(JA 122-128), make no mention at all of the “side effects” of which Braen complains

(i.e., low concentration levels, memory loss, communication deficits). Thus, there

was no expert medical foundation for the petitioner's conclusion that he was disabled

from aiding in the preparation of his defense and from a contributing as a witness

at trial. Second, Dr. Rigolosi’s letters (all addressed to Braen's counsel) cover only

the period from January 23, 1973 (when the Debtor was seeking to avoid prosecution

and imprisonment to the PIP indictment) to May 7, 1975 (when the Braenreinstatement

hearings took place). Despite the clear relevance of these dates to proceedings in which

Braen was to participate, Dr. Rigolosi does not say the condition will impair Braen's

ability to stand trial or be a witness. In any event, the state court proceedings here

occurred between 1981 and 1983, as to which no medical “evidence” was proffered.

10

all of respondents’ witnesses. Braen called witnesses to testify

on his behalf and introduced documentary evidence. His counsel

moved for directed verdicts at the conclusion of respondents’ case

and at the end of the trial. Deputy Attorney General Bozza testified

twice at trial, once for plaintiffs and once for defendants. During

Bozza’s testimony (T2:167 to 201; T5:725 to 746), Bozzasmade

all the points which Braen now says he wanted him to make. Bozza

mentioned that Braen was in poor health; that Braen provided only

“leads” for the further investigation by the Division; that evidence

corroborating Braen’s allegations against respondents was fur-

nished by other witnesses, principally, Harry Evans; and that Bozza

made the decision to press for an indictment against respondents'’.

On the issue of damages (Petition, at page 11), Braen’s

counsel subjected respondents’ expert, William Gerber, C.P.A.,

to a searching and intensive cross-examination. Counsel probed

into the financial facts and accounting foundation for Gerber’s

conclusions without being able to discredit Gerber. Certainly,

counsel’s attack on respondents’ damage theory provided Braen

with his “day in court” on the question and far exceeded minimum

:

:

"As for Deputy Attomey General Kathy B. Flicker, a careful review of her affidavit

{ (A 64; JA 359) indicates that her personal knowledge is confined to the events

surrounding the preparation for trial and trial of the conspiracy case in April of 1975

(Flicker Affidavit, Paragraphs 10 to 14 (A 35, 36). Accordingly, her testimony would

have been both irrelevant and immaterial. She was not involved in the actual initiation

of the criminal proceeding in January of 1974, the operative event here. Thus, any

testimony she could have given at trial would have been of no significance, or at

best, cumulative of Bozza’s testimony.

11

iat eatl

due process requirements.'?

Following the trial, petitioner exercised all remedies available

under New Jersey law to challenge the Judgment. Braen, rep-

resented by new counsel, made application for a judgment not-

withstanding the verdict or for a new trial (JA 261). The trial

judge denied the motions in a Letter Opinion dated February 24,

1984 (JA 271 to 295). Braen sought review of the Judgment in

the Superior Court of New Jersey, Appellate Division (JA 299).

On October9, 1985, the Appellate Division rejected all of petitioner’s

arguments and affirmed the Judgment (JA 319 to 353). Braen

then petitioned the Supreme Court of New Jersey for certification

to the Appellate Division. On September 8, 1986, the Supreme

Court of New Jersey denied the petition. 105 N.J. 533, 523 A.2d

174.

D. Federal Court Proceedings

One month after the exhaustion of his State remedies, petitioner

filed a petition for reorganization under Chapter 11 of the Bank-

ruptcy Code in the Bankruptcy Court of the District of New Jersey.

On December 4, 1986, respondents commenced the instant

"Braen suggests that the introduction and use of the report of the DOT’s Hearing

Examiner, Leon Gerofsky, would have “...limited Laganella and P.T.&L. to any

damages incurred prior to November 10, 1975, a small fraction of the amount actually

awarded” (Petition at page 11). In pointof fact, Braen’s counsel argued in his summation

that Gerofsky”s findings barred respondents from any recovery at all inasmuch as

his determination established the existence of probable cause (T5:826-13). Moreover,

petitioner’s resort to a complex and attenuated intervening cause analysis overlooks

by Braen, respondents would never have been investigated, indicted and debarred

from public construction work.

12

i

;

4

5

adversary proceeding. Respondents requested the Judgment be

held to be a non-dischargeable debt pursuant to 11 U.S.C.

523(a)(6)(53 JA). Respondents subsequently moved for summary

judgment. In support of their motion, respondents relied on the

record in the State Court proceedings and the doctrine of collateral

estoppel. The Bankruptcy Court, after a review of the entire state

court record, granted summary judgment on June 21, 1988, holding

the Judgment to be non-dischargeable (A63; JA 50). 87 B.R. 841.

Petitioner appealed to the District Court. On November 18,

1988, the District Court reversed the determination of the Bank-

ruptcy Court and remanded the matter for further proceedings

(A62; JA 14). 94 B.R. 35. On January 17, 1989, the District

Court amended its Order of November 18, 1988 to certify three

appeal questions pursuant to 28 U.S.C. 1292(b)(A 60; JA 16).!?

On March 1, 1990, the Court of Appeals granted leave to appeal

pursuant to 28 U.S.C. 1292(b) and Rule 5 of the FRAP. (A 59;

JA 1).

In its opinion issued on March 30, 1990 (A 1 to 22), the Court

of Appeals reversed the District Court’s Order of November 18,

1988 and remanded the case with instructions to reinstate the

Bankruptcy Court’s Order. The Court of Appeals concluded that

a ee eee Ce ae a ants

: "The questions certified were: (1) the standard of proof in a dischargeability case

| under Section 523 (a) (6) of the Bankruptcy Code; (2) whether the tort of malicious

; prosecution, as defined under New Jersey law, qualifies as a willful and malicious

i injury under Section 523(a) (6); and (3) whether the Bankruptcy Court erred by not

j considering the underlying fairness of the state court proceedings before applying

| collateral estoppel effect to the Judgement.

13

|

issue preclusion barred Braen from relitigating whether the Judg-

ment was a debt incurred “for willful and malicious injury by the

debtor” in accordance with 11 U.S.C. 523(a)(6). Specifically, the

Court held, first, that the state court Judgment, established by a

preponderance of the evidence, satisfied the federal evidentiary

burden applicable to a claim of nondischargeability under 11

U.S.C. 523(a)(6). Second, the Court ruled that the instructions

given to the state court jury, viewed in their totality, enabled to

jury to conclude that Braen’s conduct fell within the scope of

Section 523(a)(6). Finally, the Court determined that Braen was

not entitled to a hearing on the issue of whether he had a full and

fair opportunity to litigate the issues in the state court proceeding

since: (1) the alleged negligence of Braen’s counsel did not deprive

him of his right to contest respondents’ claims for damages; and

(2) the medical evidence presented by Braen with concerning the

impairment of his ability to participate meaningfully in his defense

was not persuasive.

On April 27, 1990, the Court of Appeals denied Braen’s petition

for rehearing (A 57).

14

—

ARGUMENT AMPLIFYING REASONS FOR

DENIAL OF A WRIT OF CERTIORARI

ISSUE NO. 1

SINCE THERE IS NO CONFLICT AMONG

THE DECISIONS OF THE CIRCUIT COURTS

OF APPEAL ON THE ISSUE OF THE BURDEN

OF PROOF REQUIRED BY FEDERAL LAW

TO SUBSTANTIATE A CLAIM OF

NONDISCHARGEABILITY UNDER 11 U.S.C.

523(A)(6) THE REQUEST FOR CERTERIORI

SHOULD BE DENIED.

The Court of Appeals held that, under federal law, “...creditors

claiming a nondischargeable debt under Section 523(a)(6) must

prove a malicious and willful injury inflicted by the debtor by a

preponderance of the evidence.” (Footnote omitted)(A10); Jn re

Braen, 900 F.2d 621, 626. Braen urges that a grant of certiorari

is appropriate because the Third Circuit’s resolution of the question

is at odds with the holdings of other Courts of Appeal. On closer

scrutiny, it is evident that the conflict is illusory. Accordingly,

the Petition presents insufficient grounds on which to invoke this

Court’s discretionary jurisdiction.

Most of decisions cited in the Petition (at pp. 16-17) concern

the standard of proof in fraud cases brought under Section 523

(a)(2). Consequently, those holdings are plainly distinguishable

on their facts. Only two federal appellate courts, other than the

Third Circuit, have actually discussed the standard of proof applicable

under Section 523(a(6). See, Chrysler Credit Corp. v. Rebhan,

15

842 F.2d 1257 (11th Cir. 1988); Combs v. Richardson, 838 F.2d

112 (4th Cir. 1988). Those cases also fail to give rise to a conflict.

The Third and Fourth Circuits, in clear and well reasoned

opinions, have concluded that the “preponderance of the evidence”

standard furnishes the requisite burden in establishing a claim under

Section 523(a)(6). In re Braen, 900 F.2d, at 625; Combs v.

Richardson, 838 F.2d, at 116. The Eleventh Circuit in Chrysler

Credit, without any real analysis, commented in dicta that “clear

and convincing evidence” was required to prove the willfulness

and malicious of the act cited as the basis for nondischargeability.

842 F.2d, at 1262. However, the Court’s view was not essential

to its decision, the creditor having shown by overwhelming evi-

dence the diversion and conversion of the trust receipts. Thus,

the purported “conflict” among the Circuits dissipates under close

scrutiny, being founded upon distinquishable cases decided under

Section 523(a)(2) and the abbreviated dictum in Chrysler Credit.

There is also no need for this Court to review the question

in conjunction with its consideration of the Eighth Circuit’ s decision

in In re Garner, 881 F.2d, 579, (1989) cert. granted sub. nom.

Grogan v.Garner,___U.S.____, 110 S. Ct. 1945, 109 L. Ed.2d

308 (1990). In Garner, the Eighth Circuit ruled that the standard

of proof required to establish a fraud exception to discharge under

Section 523(a)(2) is the “clear and convincing” standard. Thus,

Garner, implicates a different exception to discharge from that

at issue here. Morover, as the Court in Braen aptly noted, Congress

16

could not have intended that the Bankruptcy Courts apply a single

standard of proof in all non-dischargeability actions, given the

broad range of the recognized exceptions. /n re Braen, 900 F.2d

at 625.

Petitioner nonetheless suggests that a combined disposition

of the questions presented in Garner and in this case will allow

the Court to address “...whether there should be a single standard

of proof for all exemptions under Section 523(a) or whether the

standard should vary with the type of exemption” (Petition, at

pg. 17). Neither Garner nor Braen posit that all discharge ex-

ceptions are subject to the same standard of proof. The Court

is fully capable of settling the “uniformity” issue in any event solely

within the confines of its decision in Garner. If this Court endorses

the approach utilized by the Eighth Circuit in defining the appro-

priate evidentiary standard in fraud cases under Section 523(a)(2)

(as discussed infra), approval of the. Third Circuit’s decision

ineluctably follows. The Third Circuit pursued the same line of

reasoning as did the Eighth Circuit, albeit to a different result. In

contrast, were the Court to determine that it is the preponderance

standard which should be applied in discharge matters involving

fraud, then, a fortiori, the Third Circuit’s view that the lesser

evidentiary burden is controlling in a case under Section 523(a)(6)

may not be criticized. Under either scenario, the Third Circuit’s

decision remains intact.

While reaching divergent results in Braen and Garner, the

17

Third and Eighth Circuits actually concur on the methodology for

framing their conclusions. Simply stated, the opposite results, per

se, do not create a conflict. Rather, the decisions are attributable

to the fact that the prevailing standard of proof in matters of fraud

and in matters of intentional and malicious injury are different.

The Eighth Circuit in Garner employed an analytical/historical

approach to the problem later echoed by the Third Circuit in the

instant matter. In Garner, the Eighth Circuit observed:

While the legislative history is scant as to this issue,

we feel that it is fair to presume that Congress was

aware that the prevailing view at the time of

adoption was that fraud, for both Section 523 and

State common law purposes, had to be proved by

clear and convincing evidence. [881 F.2d at 582]

Here, the Third Circuit noted that, “...with the sole exception

of defamation in ‘public figure’ cases, states normally require that

malice in the context of a tort suit be proven by a preponderance

of the evidence.” (A8); 900 F.2d at 625. The Third Circuit then

proceeded to distinguish the pre-Garner holdings in the Section

523(a)(2) fraud cases on the following grounds:

Aswehave noted, in contrast toactions for malicious

prosecution, common law actions for fraud have

historically employed the heavier clear and con-

vincing evidence burden of proof. See,¢.g.,Lalone

v. United States, 164 U.S. 255, 257 (1896) (“In

all proceedings instituted...on the ground of al-

leged fraud practiced by a defendant upon a plain-

tiff, the rule is of long standing and is of universal

application, that the evidence tending to prove the

fraud and upon which to found a verdict or decree

must be clear and convincing.”) Consequently,

the fact that virtually all courts have adopted the

clear and convincing standard in disputes under

Section 523(a)(2) comports with our view that the

appropriate burden of proof under Section 523 is

the prevailing standard used by courts to resolve

the types of claims underlying the particular

exception at issue. [A8-9; 900 F.2d at 625-626.]

The Courts in Braen and Garner dealt with different exceptions

todischarge in disparate ways for purposes of assessing the relevant

standard of proof. Both Courts nevertheless adhered to a unified

line of analysis, reasoning that the prevailing common law standard

(Federal and State) delineates the appropriate evidentiary burden

in each class of cases under Section 523(a). Therefore, this Court's

grant of certiorari in Garner does not provide any cogent basis

for the grant of Braen’s petition.

ISSUE NO. 2

THE COURT OF APPEALS CORRECTLY RE-

FUSED TO ALLOW THE PETITIONER A

HEARING ON THE ISSUE OF WHETHER THE

ALLEGED MALPRACTICE OF HIS ATTOR-

NEYS DEPRIVED HIM OF A FULL AND FAIR

GPPORTUNITY TOLITIGATERESPONDENTS'

MALICIOUS PROSECUTION CLAIMS IN THE

STATE COURT PROCEEDING SINCE MAL-

PRACTICE WHICH DOES NOT RESULT IN A

DENIAL OF FUNDAMENTAL RIGHTS IS NOT

SUFFICIENT TO BAR THE APPLICATION OF

COLLATERAL ESTOPPEL

After a careful and thorough review of the record, the Court

of Appeals concluded that petitioner was notentitied toanevidentiary

hearing on the question of the fairness of the state court proceedings.

The Court reasoned that petitioner’s “...allegations, even if taken

as true, would not justify an exception to the general rule of issue

preclusion.” (A18, n.5); 900 F.2d at 629, n.5. That determination

is not in derogation of the letter or spirit of this Court’s previous

holdings on the application of collateral estoppel. Moreover, the

issue presented is not one requiring the invocation of this Court's

jurisdiction. This Court and the lower courts have evolved a sound

and effective structure for assessing claims that attorney malprac-

tice should prevent the application of collateral estoppel.

A redetermination of an issue previously adjudicated is only

warranted if there is reason to doubt the quality, extensiveness

and fairness of the procedures followed in the prior litigation.

Kremerv.Chemical Const.Co.,456U.S.461,481,(1982), Montana

v. United States, 440 U.S. 147, 164, n.11, (1979). In Kremer,

this Court defined the content of the requirement that the first

adjudication offer a “full and fair opportunity” to litigate the issue

in terms of whether the state court proceedings satisfied the

minimal procedural requirements of the Due Process Clause of

the Fourtecath Amendment. 456 U.S., at 482. There is no question

here that Braen was accorded the full and complete measure of

procedural due process. He vigorously cross-examined respondents’

witness, marshalled his defense through his own testimony and

20

the testimony of five (5) witnesses, presented documentary evi-

dence, argued all legal questions and obtained judicial review of

the Judgment in post-trial, appeal and certification proceedings.

Under the circumstances, no more protection could have been

offered, nor was more required, to grant preclusive effect to the

state court Judgment. Kremer v. Chemical Construction Corp.,

456 US. at 481-485.

The decision in Blonder-Tongue Lab., Inc. v. University of

Illinois F oundation, 402 U.S. 313 (1971) is not to the contrary.

In Blonder-Tongue, the Court overruled Triplett v. Lowell297 U.S.

632 (1936) to the extent that Triplett foreclosed a plea of estoppel

or res judicata by one facing a charge of infringement of a patent

a plaintiff-patentee who had suffered an adverse judgment in an

earlier suit would be “permitted to demonstrate, if he can,” that

he did not have “a fair opportunity procedurally, substantively and

evidentially to pursue his claim the first time.” 402 U.S. at 332.

The Court furnished this procedural right as a policy matter in

order tocomprehend the “important concerns about the complexity

of patent litigation and the posited hazard that the prior proceedings

were seriously defective.” The Court did not specify that an

evidentiary hearing was required to dispose of the issue, if raised.

In any event, even assuming that the Blonder-Tongue mandate

in patent cases is relevant here, petitioner was afforded an oppor-

tunity in the Bankruptcy Court to attack the fairness of the state

21

court proceedings. Furthermore, whether petitioner was deprived

of “crucial evidence or witnesses” is just one of the several factors

enumerated and discussed by the Court as being relevant in

considering a claim as to full and fair opportunity to litigate. 402

U.S., at 333. In the final analysis, the Bankruptcy Court properly

evaluated the interests of “justice and equity”, marked as the

touchstones in Blonder-Tongue, 402 U.S., at 334, in determining

that no relief was justified with regard to Braen’s request to

relitigate the matter.

The alleged malpractice of Braen’s trial counsel, per se, does

not provide adequate and sufficient grounds to which to challenge

issue preclusion. The Court of Appeals commenced its analysis

by reference to the “general rule” that “‘ignorance or carelessness

of an attorney’ does not provide a basis for relief from the effects

of an adverse civil judgment.” (A14); 900 F.2d at 699. The Court

then analogized the instant matter to various cases decided under

Rule 60(b) in which relief from a judgment on the ground of

counsel’s negligence had been denied. The Court noted that such

relief was warranted only in exceptional cases, where “...a client

was deprived of his day in court because his lawyer failed altogether

to respond to a motion for a default judgment or a motion for

summary judgment”, citing Boughner v. Secretary of HEW, 572

F.2d 976 (3rd Cir. 1978) and Augusta Fiberglass Coatings, Inc.

v. Fodor Contracting Corp., 843 F.2d 808 (4th Cir. 1988). 900

F.2d at 629.

22

A similar rule has been devised in cases involving the appli-

cation of collateral estoppel to claims of attorney malpractice. The

fact patterns and rationale of exemplary cases like Ackerman v.

Ackerman, 676 F.2d 898 (2nd Cir. 1982) and Clark v. Department

of Correctional Services, 564 F.Supp. 787 (S.D.N.Y. 1983) project

an onerous standard for the grant of relief from issue preclusion.

Under the test, a litigant must show gross or egregious incom-

petence, materially and adversely affecting the exercise of fun-

damental rights on the issues in the prior litigation, to secure relief.

At a minimum, counsel’s errors must have deprived petitioner of

the opportunity to have a hearing in state court. Where, as here,

a plenary trial was conducted, mere errors in judgment, or even

professional negligence on the part of counsel, should not prevent

the application of the doctrine of collateral estoppel. Without a

lengthy recapitulation, respondents submit that Braen’s attack on

his earlier representation clearly does not suffice to meet this heavy

burden.

It is entirely fair and appropriate to compel litigants like the

petitioner to satisfy a rigorous and demanding standard before

permitting relitigation of issues previously adjudicated. As Judge

Weinfeld incisively observed in Cerbone v. County of Westchester,

508 F. Supp. 780, 785-786 (S.D.N.Y. 1981):

“It would enfeeble the collateral estoppel rule if

unsupported and conclusory allegations could call

into question a litigant’s past opportunity to fully

and fairly litigate his case, particularly since the

burden of showing that one has been denied a full

and fair opportunity rests with the litigant opposing

the application of collateral estoppel.” [Footnote

omitted]

Braen’s contention that his attorneys failure to provide the

“best defense” constitutes a denial of procedural due process is

unavailing. Braen’s request for a grant of certiorari on that issue

should, accordingly, be denied.

ISSUE NO. 3

THE COURT OF APPEALS’ DETERMINA-

TION THAT COLLATERAL ESTOPPEL IS

APPLICABLE TO THE STATE COURT

JURY’S FINDING THAT THE DEBTOR

ACTED WITHIN THE PARAMETERS OF §

) 523(a6) ENTIRELY COMPORTS WITH

SETTLED LEGAL PRINCIPLES AND DOES

NOT GENERATE ANY BASIS FOR A GRANT

OF CERTIORARI

In an effort to generate an argument cognizable under Sup.

Ct. R. 10, Braen, ignores material portions of the State Court trial

record and relies upon inapposite legal precedents. The Court of

Appeals’ conclusion that the State Court’s jury instructions

sufficiently charged conduct falling within the confines of 11

U.S.C. § 523(a)(6) is fully supported by the trial record and entirely

comports with settled legal principles. Braen’s petition for

A

certiorari should thus be denied.

As the Court of Appeals correctly concluded, Braen’s effort

to assign error based upon isolated phrases in the State Court’s

jury charge is unavailing. A court must interpret the totality of

the jury instructions. See, e.g., Cupp v. Naughton, 414 U.S. 141,

146-47 (1973); United States v. Piccolo, 835 F.2d 517, 520 (3d

Cir. 1987); United States v. Clark, 765 F.2d 297, 303 (2d Cir.

1985). Although Braen argues that in two, isolated instances the

State Court jury instructions allowed for a finding of a lack of

probable cause based upon negligent or reckless conduct, in

analyzing the entire trial record, the Court of Appeals determined

that the jury was, on the whole, properly instructed on the standard

for a finding of “malice”.

As noted by the Court of Appeals, the trial judge twice defined

“malicious motive” as requiring intent’* and further instructed the

jury that in order to find Braen liable for malicious prosecution,

three distinct elements, one of which required a “malicious

motive”, must be proved.’> In re Braen, 900 F.2d at 627.

indeed, as the Court of Appeals observed, the jury’s responses

“The trial judge defined malicious motive as “the intentional doing of a wrongful

or unlawful act without just cause or excuse.” Jn re Braen, 900 F.2d at 627 (emphasis

in original).

"The trial judge instructed the jury as follows:

So, the plaintiff in order to ... prevail ... must prove by a preponderance of the evidence

that the defendant caused the criminal proceedings to be instituted against him. And

also by a preponderance of the evidence, must prove that there was a lack of reasonable

or probable cause for the criminal prosecution. Third, that the defendant or defendants

were activated by malicious motive in proceeding with the criminal complaint.

25

to the special interrogatories clearly established that the jury found

Braen, Jr. to have acted intentionally and with an improper motive

in wrongfully implicating Laganella:

1. Do you find the plaintiff has proved by a

preponderance of the evidence that the named

defendants acted to bring about or were responsible

for the institution of [sic] underlying criminal

proceeding against plaintiff?

A. Yes.

2. Do you find that plaintiff has proved by a

preponderance of the evidence that there was a

lack of reasonable or probable cause for the crimi-

nal prosecution?

A. Yes.

3. Do you find that the plaintiff has proved by

a preponderance of the evidence that the defendant

was activated by malicious motive in prosecuting

the criminal complaint against the plaintiff.

A. Yes.

In re Braen, 900 F.2d at 627.

Consequently, the Court of Appeals properly rejected Braen’s

effort to bootstrap isolated sentences in the course of a jury charge

into “ambiguous” jury instructions. Contrary to Braen’s conten-

tion, there is no doubt as to the jury’s finding that Braen acted

with a malicious motive. The Court of Appeals’ application of

collateral estoppel was thus entirely appropriate.

Braen’s reliance on legal precedents in an attempt to establish

legal error is unavailing. The decisions relied upon by Braen, see,

26

e.g., Wheeler v.Laudini,783 F.2d 610(6th Cir. 1986); Inre Pererira,

44 B.R. 248 (Bankr. D. Mass. 1984), all involve a denial of issue

preclusion because the State Court verdict did not encompass the

actual litigation of an issue establishing a “witiful and malicious

injury” under 11 U.S.C. §523(a)(6).

Here, in stark contrast, the jury made an express finding that

Braen was actuated by a malicious motive. Furthermore, the tort

of malicious prosecution, by definition, requires a maliciouss

motive. Earl v. Winne, 14 N.J. 119, 134 (1953). The legal

precedents relied upon by Braen are thus inapposite.

Braen’s failure to advance any argument that would qualify

for a grant of certiorari pursuant to Sup. Ct. R. 10 requires that

the petition be denied.

CONCLUSION

For the reasons set forth above, respondents respectfully suggest

that none of the arguments presented by petitioner warrant the

issuance of a writ of certiorari.

*HERBERT C. KLEIN

LEONARD A. PEDUTO, JR.

MICHAEL A. SAFFER

c/o Klein Chapman

935 Allwood Road

P.O. Box 2048

Clifton, New Jersey 07015

(201) 777-8900

Counsel for Respondents

*Counsel of Record

Dated: October 11, 1990

27