SPK_1 0:00 The next matter on the calendar we do have, all justices and counsel is Jones v. David, et al. SPK_1 0:07 Mr. Heather, I can see. SPK_1 0:08 I can also see. SPK_1 0:10 Mr. Fudali. SPK_1 0:12 Mr. Heather, if you say something to make sure you're audible to us, please. SPK_2 0:16 Good morning, you, honor. SPK_1 0:17 Good morning. SPK_1 0:18 Mr. Fudali, if you'll do the same, please. SPK_3 0:21 Good morning, you, Honor. SPK_1 0:22 All right, thank you very much. SPK_1 0:24 Mr. SPK_1 0:24 Heavy. SPK_1 0:25 You've asked for 30 minutes. SPK_1 0:28 If you'd like to reserve some time for rebuttal. SPK_1 0:30 I'll try to serve as your backup timekeeper, but I would ask to keep your eye on the cog as well. SPK_2 0:36 I will do that. SPK_2 0:37 I will ask to reserve 10 minutes. SPK_2 0:39 Your Honor, I may not use the full 20 minutes in my opening argument. SPK_2 0:46 It depends, I think, on how many questions there are. SPK_2 0:50 But there are a number of issues. SPK_2 0:52 There are a number of issues that have been addressed. SPK_1 0:55 Yes. SPK_1 0:57 I'm sorry, your Honor, I didn't mean to interrupt. SPK_1 1:00 Are we missing Justice Collins? SPK_1 1:02 I believe. SPK_1 1:03 I thought I saw three justices. SPK_1 1:06 But you're right. SPK_1 1:07 I do not see Justice Collins. SPK_1 1:08 So thank you for interrupting. SPK_2 1:10 Thank you. SPK_1 1:13 That may have been Justice Curry from the prior argument. SPK_2 1:30 Perhaps we can have the clerk try to call. SPK_1 1:33 Yeah, we'll try to get in touch with her. SPK_1 1:36 All right. SPK_1 1:36 Mr. Heather. SPK_1 1:37 Mr. Fudali, just be patient with us, please. SPK_1 1:39 Thank you. SPK_3 1:43 It. SPK_1 2:55 Hello, Sandy. SPK_1 2:56 Were you looking for me? SPK_3 2:59 Yes. SPK_1 3:02 Okay. SPK_1 3:04 Yes, I can hear. SPK_1 3:05 I can hear and see you, But I'm not. SPK_1 3:12 I'm not on this case, but I can hear and see you. SPK_1 3:15 I think you are, according to this. SPK_1 3:18 Are we on Jones? SPK_1 3:19 Okay. SPK_1 3:20 Yes. SPK_1 3:21 Okay. SPK_1 3:22 Okay. SPK_1 3:23 Sorry. SPK_1 3:23 Okay. SPK_3 3:24 We're all good. SPK_1 3:25 We have three justices and we have two council. SPK_1 3:28 All right, Mr. Heather, thank you. SPK_2 3:31 May we restart the clock, your honor? SPK_1 3:34 Of course. SPK_2 3:34 Thank you. SPK_2 3:36 Okay. SPK_2 3:37 There are a number of issues that have been briefed. SPK_2 3:39 I want to address two. SPK_2 3:42 And the first issue that I'd like to address is the issue of inconsistent verdicts, because I don't think that was fully fleshed out in the briefing. SPK_2 3:52 And I believe there are several inconsistent verdicts that were rendered in this case. SPK_2 3:56 I think the first is the inconsistency between the jury's finding on battery and sexual battery. SPK_2 4:04 And I'm going to make this argument in reference primarily to the special verdicts which were not addressed in the respondents brief and for the use of the court, I'll cite to the AA page numbers on these, unless the court doesn't think that's helpful. SPK_2 4:21 But in the battery special verdict, the jury answered no to whether or not Alky David touched Jaste Jones with the intent to harm or offend. SPK_2 4:33 But in the sexual battery special verdict and batteries at AA2675, and sexual batteries at AA2676, the jury found that there was an intent to harm or offend and that there was sexual contact. SPK_2 4:59 Now, the respondents in their brief do make the following statement at page 57, and I'll quote this one few words. SPK_2 5:07 Since sexual battery is a form of battery, a finding of sexual battery requires a finding of battery. SPK_2 5:16 And I agree with that. SPK_2 5:18 And I'll address what the defenses and explanations by the respondent and by Judge Ongako are a little bit later. SPK_2 5:25 But if I may, I'd like to address what I think are the other conflicts. SPK_2 5:32 The next conflict is the conflict between assault, which appears at AA2678, and sexual battery. SPK_2 5:40 Because the jury found when asked, did affidavit act intending to cause a harmful or an offensive contact with Chastity Jones or intending to place her in fear of a harmful or offensive contact, they answered, no, he did not. SPK_2 5:59 And in sexual battery, they answered yes to Special verdict number 37. SPK_2 6:07 Did Alky David intend to cause a harmful or offensive contact with an imminent part of Chastity Jones or did he cause an imminent fear of a harmful or offensive contact? SPK_2 6:21 And I believe those two findings are inconsistent. SPK_2 6:26 I think it is also inconsistent with the gender violence, cause of action and battery, because gender violence requires a finding that and that appears on AA2677. SPK_2 6:45 In answering question 41, the jury said yes to did Alky Davis commit a physical intrusion or physical invasion of a sexual nature under coercive conditions on the plaintiff's person? SPK_2 6:58 And I think it can't reasonably argue that if the jury makes that finding that they can consistently not find in battery that he did not touch Chastity Jones with an intent to harm or offend. SPK_2 7:12 And I know the respondent's argument is, well, maybe he did that in order to pleasure himself, but that could be an excuse for any kind of sexual assault. SPK_2 7:24 And a sexual assault as precisely defined and as seriously defined as gender violence, I think has to include the act of battery. SPK_1 7:36 Now,. SPK_2 7:38 There are two explanations or defenses to why this doesn't matter. SPK_2 7:44 One is that according to the respondent, that battery and assault requirements, finding of reasonableness and sexual battery does not. SPK_2 7:57 But there are two problems with that explanation. SPK_2 7:59 First, the jury never got under battery or assault. SPK_2 8:03 The question of whether or not the contact was the reaction to the contact was reasonable. SPK_2 8:10 But in the jury instructions, the definition I will refer to the jury instruction on assault, which appears at a 2717, says a touching is offensive if it offends a reasonable sense of personal dignity. SPK_2 8:29 And the jury instruction on sexual battery, which appears at AA2719, says offensive contact means contact that offends a reasonable sense of personal dignity. SPK_2 8:45 In effect the same standard. SPK_2 8:53 Now the explanation that Judge Ungeko gave and which the respondents adopt is that, and I'll quote from the respondents brief at page 58, quoting Judge Ungeko, the trial court properly ruled, quote, it was not improper for the jury to consider the lesser assault and battery claims superfluous given their other findings. SPK_2 9:21 But the law, I believe is clear that that is a conclusion that the court is prohibited from making when there is an irreconcilable conflict. SPK_1 9:33 First of all, that's up to the court. SPK_1 9:37 First of all, it has to be inconsistent if it's not possible to reconcile. SPK_1 9:44 So that is it. SPK_1 9:45 It's irreconcilable. SPK_1 9:48 So if a party requests clarification, then the trial court interprets it. SPK_1 9:53 Looking at the jury instructions here, no party requested clarification of the jury's verdict. SPK_1 9:59 So it was up to the court to interpret the verdict in light of the instructions and the evidence. SPK_1 10:07 And its conclusion, as you properly stated, was that the jury considered the lesser claim superfluous in light of all of the evidence of sexually motivated touching presented at trial and that that was a reasonable thing for the jury to do. SPK_1 10:26 We would have to find that the court abused its discretion. SPK_1 10:31 And so finding and denying a new trial due to that, so far I don't see an abuse of discretion there in its conclusion that the jury could have found this superfluous. SPK_2 10:46 Well, I think there are two answers to that, you, Honor. SPK_2 10:48 First, the battery finding in the special verdict form came first. SPK_2 10:57 So I think it's not. SPK_2 10:59 I think it is. SPK_2 11:00 It is not a reasonable argument to say that when the jury first decided there was no battery, that they later decided because they found sexual battery, that their earlier finding was superfluous, they had already made it. SPK_2 11:14 But I do think it is contrary to what the controlling cases are. SPK_2 11:20 And I'm going to just cite to, if I may, four cases that are in the brief and I'll say where they are. SPK_2 11:32 The cases say that where there is a conflict and I, and I, first thing is they compel a new trial. SPK_2 11:40 And I agree with your honor that that's when the conflict is irreconcilable. SPK_2 11:45 But the Oxford and City of San Diego cases, which are cited on page 36 of our reprieve brief, and I'm going to quote, if I may, just. SPK_1 12:00 From the. SPK_2 12:03 City of San Diego case. SPK_2 12:09 It states where there are inconsistencies between or among answers within a special verdict, both are. SPK_2 12:19 All the questions are equally against the law. SPK_2 12:23 The appellate court is not permitted to choose between inconsistent answers. SPK_2 12:31 And the other cases that I cited that require new trial. SPK_2 12:34 Morrison, Shaw, they say, and I don't have the specific language, but they say that it doesn't matter whether there was a request for clarification or not, that it is not the function of the trial judge once there's an inconsistent verdict. SPK_2 12:52 And certainly it's not the function of the appellate court once an inconsistency is shown, to start interpreting what it would have been reasonable for the jury to have concluded when no one knows what the jury's thought process is, because if that is allowed, then there would be no purpose for the rule against inconsistency. SPK_2 13:16 Now, that's my argument, my best answer to your honor's question that I can give you. SPK_2 13:23 The second issue I would like to address is the issue of the first amendment complaint. SPK_2 13:32 There was never any request for leave to file an amendment complaint in this case. SPK_2 13:39 There wasn't one. SPK_2 13:41 There certainly wasn't a second. SPK_2 13:44 And there was never an order granting leave to amend this complaint, not once and certainly not a second time. SPK_2 13:55 And yet, despite that, and in fact, the first amendment complaint that was filed was dismissed by judge Ngeko. SPK_2 14:06 It was filed on September 17, 2017. SPK_2 14:11 And on September 28, 2017, Judge O. N. Gekko dismissed that complaint. SPK_1 14:21 He told the defendants to serve the notice of ruling. SPK_1 14:25 That notice of ruling is not in the record. SPK_1 14:28 And the court's order striking the first amended complaint doesn't appear in the online docket. SPK_1 14:35 Interestingly, when the defendants filed the first amended counterclaim on June 27, 2018, they noted the first amended complaint was filed September 14, 2017. SPK_2 14:50 Yes. SPK_1 14:52 And then, of course, we have the discussion on the first day in which the court is asking the parties, you know, what's happening here? SPK_1 15:04 I'm a little bit confused. SPK_1 15:07 And the parties basically sort of agree that the first Amendment, I mean, nobody says, hey, wait, this was wrong. SPK_1 15:18 This is 18 months later, of course, when the court asked the parties if the first amended complaint was the operative complaint. SPK_1 15:24 Jones council says, yes, it is. SPK_1 15:26 And Pelland's counsel says, that was our understanding, and then later filed the answer to the first amended complaint, and, you know, apparently don't discover this until sometime later. SPK_1 15:39 But just speaking for me myself, there's an issue here of the failure to preserve the claim of error, since the court and parties all tried the case on the assumption that that cause of action was fled under the theory of trial. SPK_1 15:57 And to stand by without objection and just try the case that way as though it's proper. SPK_1 16:02 And then on appeal now, you know, say the complaint failed to present it is, in my view, just a failure to preserve that issue, even though the court sort of said at the time, you know, well, I don't have the first Amendment. SPK_1 16:20 I thought it was stricken. SPK_1 16:21 But if you, you know, if you guys agree, if you both agree, I mean, that's fine. SPK_1 16:25 And certainly at the latest, that was the time, it seems to me, to seek clarification or lodge an objection. SPK_1 16:32 Instead, defense counsel actually proffered a copy of the first amended complaint to the court and proceeded to trial on the merits. SPK_1 16:41 And just speaking for myself, raising the issue after filing the motion for new trial in cure or remedy, the lack of time, the objection after both parties proceeded through trial on it. SPK_2 16:54 Okay, why, your honor, I understand your. SPK_2 16:58 Your honor's view of the record, and I would like to address that and respond. SPK_1 17:04 And Mr. Hubert, I just, I want to join in, since you're responding to that, that question, that I have the same concern. SPK_1 17:12 A contrary rule would seem to me to simply be endorsing sandbagging. SPK_1 17:19 If a party can go to trial on a claim with everyone operating under the assumption that it's been properly pled and after the fact, say, gotcha, I cannot imagine we would want to set forth such a rule. SPK_2 17:33 Well, your honor, I agree with you, and I don't think that's what's happening here. SPK_2 17:38 And I will try to address both concerns that have been raised and in the context, and this is explained in the brief that the counsel. SPK_2 17:49 And by the way, I should note that when judge ON Gekko dismissed the first Amendment complaint, he also ruled that there would not be leave to amend on his rulings that day. SPK_2 18:03 And as judge Justice Collins pointed out, that ruling dismissing the first 2am Amendment complaint did not show in the docket. SPK_2 18:12 It showed under a categorization of the other rulings he had made that day. SPK_2 18:19 And the attorney for Mr. David at the time, Barry Rothman, died unexpectedly and suddenly. SPK_2 18:28 And the Venable firm, which wrote the briefs in this case, took over the case. SPK_1 18:36 Yes. SPK_2 18:36 And Ms. Jones attorneys, and it's in the. SPK_2 18:41 It's in the record, and it's in the briefs, told the Venable firm that the operative complaint was the first amended complaint. SPK_2 18:51 They did not Tell them that the complaint had been dismissed. SPK_1 18:54 What difference does that make? SPK_1 18:56 If they wouldn't have even tried the case? SPK_1 18:57 What difference does that make? SPK_1 18:58 And surely competent lawyer. SPK_1 19:01 I can't imagine that that's. SPK_1 19:04 Purely. SPK_1 19:04 Competent attorneys are tasked with reviewing the record sufficiently to know what's going on. SPK_1 19:11 But. SPK_1 19:11 But in any event, they tried the case on that theory. SPK_2 19:15 I. I understand that, your honor. SPK_1 19:16 Okay. SPK_2 19:17 And there may be criticism of counsel, and I'm going to try to make the argument that there's an overriding. SPK_2 19:24 Consider consideration to trump that. SPK_2 19:27 But if I may kind of finish my analysis of the record, the fact of the matter is the dismissal of the first amendment complaint did not appear on the docket. SPK_2 19:38 It was not in the former counsel's files. SPK_2 19:43 And counsel for Ms. Jones informed Mr. David's new counsel that the operative complaint was the first amended complaint. SPK_2 19:52 And now I would like to address the colloquy that did occur on that first day of trial that justice Collins referred to, because I do think it deserves a little more careful analysis for the point I ultimately want to make. SPK_2 20:10 And so I'd like to read sort of line by line what was said between counsel and the court in order to make my point, if you will indulge me. SPK_2 20:22 The court judge and Gekko sat on the bench on the first day of trial with the original complaint in his hand. SPK_2 20:32 The material difference between the original complaint and the first amendment complaint was that the original complaint did not contain a claim of gender violence. SPK_2 20:42 And Johnson, Gekko said, let me ask the plaintiffs, though, there. SPK_2 20:47 There is a complaint. SPK_2 20:49 The original complaint on February 2, 2017, is the operative pleading. SPK_2 20:57 And Ms. Bloom. SPK_2 20:59 Lisa Bloom, Ms. Jones, counsel said to judge Ungeko, there is a first amended complaint, your honor. SPK_2 21:07 That was not correct. SPK_2 21:10 Then the court said, not the first amended complaint, is it? SPK_2 21:15 I thought that was stricken because it was not. SPK_2 21:18 And before he could finish his sentence, Mr. Goldstein interrupted the judge and took over from his bloom and said, may I approach, your honor? SPK_2 21:31 The court said, sure. SPK_2 21:33 Mr. Goldstein said, thank you, your honor. SPK_2 21:35 Alan Goldstein for the plaintiffs, there is a first amendment complaint that was a false statement. SPK_2 21:43 The court said, I thought that was stricken because it was filed without permission or something like that. SPK_2 21:52 And Mr. Goldstein said, no, that was a false statement. SPK_2 21:59 He said, perhaps there was a previous first amendment complaint, but there's a first amended complaint. SPK_2 22:07 That's the operative complaint. SPK_2 22:10 Then there was two. SPK_2 22:12 So that was a false statement. SPK_2 22:15 There were never two first amended complaints. SPK_2 22:18 One that was stricken and one that was approved. SPK_2 22:21 And the court then said, do we agree? SPK_2 22:25 And Ms. Garofalo said that's our understanding, because they had been told by Mr. David's counsel that that was the First Amendment, that that was the operative complaint. SPK_2 22:41 Now, my argument is that you can talk about waiver, you can talk about the obligations of counsel, and you can talk about should it be raised later. SPK_2 22:56 But I think this is a case which proceeded on misrepresentations to the court, serious misrepresentation. SPK_2 23:09 And when that happens, that I submit to trump everything. SPK_2 23:15 And what's interesting is if you look in the respondents brief, there's no mention of this colloquy, the language that I quoted, and then there's a duty to correct. SPK_1 23:33 Mr. Heather, sorry, you interrupted. SPK_1 23:35 If you wish to reserve time for rebuttal, you're at your 20 minutes now. SPK_1 23:38 Obviously, it's entirely up to you. SPK_2 23:41 Okay, I'm going to take a few more minutes, your honor, and I appreciate your letting me know that. SPK_2 23:46 Let me just look at my clock so I can not use it. SPK_3 23:49 All right. SPK_2 23:51 When on the new trial motion, Judge Ungeko said, I'm going to do it from memory. SPK_2 24:07 Actually, I don't have to do it from memory. SPK_2 24:09 In his neutral motion, he said the issue of the first amendment complaint was waived and it appears to be disputed. SPK_2 24:24 Now let me talk something about the duty to correct. SPK_1 24:29 I don't see the part where it appears to be disputed. SPK_1 24:32 I see the part in which the trial court says it deems this issue waived and or subject to estoppel because the court made a specific inquiry. SPK_1 24:43 And then the court goes on to say the entire trial was necessarily premised on the viability of the first amended complaint and it proceeded. SPK_1 24:50 All parties have full and fair opportunity to litigate the first amended complaint. SPK_1 24:54 It's too late to complain about an earlier court order that may have been stricken. SPK_1 24:58 Okay. SPK_1 24:58 Oh, and that appears to be disputed. SPK_2 25:01 Apparently referring to that. SPK_1 25:03 And then the court ends by saying, even if it were stricken, parties are deemed to have agreed the first amended complaint was the operative pleading and are stopped for maintaining otherwise. SPK_2 25:13 I understand that was the court's ruling. SPK_2 25:18 The point I'm trying to make is that there's a duty to correct among counsel whatever you impose on the new counsel who took over from someone who suddenly passed away, you should impose a higher standard on the council that know the facts. SPK_2 25:35 And those counsel, in light of that colloquy, if they could credibly say, well, when I had that dialogue with Judge Ngeko and I kept pushing back and interrupting him to force the amended complaint on the process they surely should have gone back and said, were we right about that? SPK_2 25:55 What's the judge talking about? SPK_2 25:56 What was their duty? SPK_2 25:58 And they had a duty to correct. SPK_2 26:00 And not only did they not correct it, had they come back in the next day, they didn't correct it. SPK_2 26:05 On the new trial motion, they kept saying, if you look at the underlying briefs, it was the operative complaint. SPK_2 26:11 So the whole trial? SPK_2 26:13 Yes, your honor, justice Collins was premised on the operative complaint. SPK_2 26:19 And it was premised on a complaint that became the operative complaint through misrepresentation to the court. SPK_1 26:25 I think you get the argument, Mr. Heather. SPK_1 26:27 I think we get it. SPK_2 26:29 Okay, so let me conclude this way. SPK_2 26:34 A bulk of the beginning of the opposition brief, the respondents brief, was spent talking about Mr. David's courtroom behavior. SPK_2 26:42 And I understand how that behavior contrasts with what the court is entitled to and expects from litigants, not just counsel. SPK_2 26:53 But notwithstanding Mr. David's conduct in his frustration about this case, what's more important is the integrity of the process. SPK_2 27:06 And I think given the combination of the inconsistent verdicts in this case and the clear never explained, never admitted misrepresentations to the court about a cause of action which had previously been dismissed without leave to mend, could cause this court to send this case back for a new trial. SPK_2 27:34 Your honor, do I have any time left? SPK_1 27:37 You do. SPK_2 27:38 All right, I'm going to stop now. SPK_1 27:40 Okay. SPK_1 27:41 You do. SPK_1 27:45 Thank you, Mr. Heather. SPK_1 27:46 Mr. Fudali. SPK_3 27:48 Thank you, your honor. SPK_3 27:49 I'm going to begin with the last argument made by counsel, and that is this duty to correct. SPK_3 27:54 That is not. SPK_3 27:55 That has not been made in any of the appellant briefs filed in this matter. SPK_3 27:59 That is a new issue, this so called duty to correct. SPK_3 28:02 And I think that that should be disregarded by this court. SPK_3 28:05 I'd also like to move on to this, the accusation of misrepresentations. SPK_3 28:09 And I take offense to the accusation Mr. Heather is discussing integrity of the court and then is accusing counsel of misrepresenting something to the court. SPK_3 28:18 There is no evidence that this was an intentional misrepresentation. SPK_3 28:22 And in fact, this was a mutual mistake. SPK_3 28:26 And as your honor stated earlier on that mistake was waived. SPK_3 28:30 Okay. SPK_3 28:31 The defense counsel in this case, the appellant, filed an answer to the first amendment complaint. SPK_3 28:37 Appellant's counsel filed a cross complaint to the first amendment complaint. SPK_3 28:41 Appellant's counsel agreed to the jury instructions that included the gender violence cause of action. SPK_3 28:47 That was only in the first amended complaints and on the record in front of the court when appellant's counsel had the opportunity to dispute or object or even look into whether the first amended complaint was the operative complaint. SPK_3 29:01 Mr. Garofalo stated, and I quote, that was our understanding referencing that the first amended complaint was the operative complaint. SPK_3 29:10 This was never brought up. SPK_3 29:11 Again, there was not a single objection on the record as to whether this was or was not the operative complaint. SPK_3 29:18 And more importantly, defendant had the full and fair opportunity to try the first amended complaint. SPK_3 29:24 It's important to note that the first amended complaint did not contain a single fact that was not in what would have been the operative complaint had the mutual mistake not been made. SPK_3 29:33 The only difference was the gender violence claim. SPK_3 29:36 And I will go even further to state that once we. SPK_3 29:38 Let's assume we get beyond this waiver issue, which I don't think we should, there is no authority that says the inclusion of this gender violence claim is reversible error. SPK_3 29:48 It's not as if gender violence was the only cause of action the jury found in favor of the plaintiff. SPK_3 29:53 In fact, there were nine causes of action for which the jury found in favor of the plaintiff. SPK_3 29:58 And in fact, the only argument.