# Opposition Brief — Braen v. Laganella > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385020_2761%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 1991 - **Citation:** 498 U.S. 1066 ## Text 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 ) 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385020_2761%3A2. Public record. Not legal advice.