Sorry, Alexia, but I still have to mind about my business, and it requires travelling sometimes... I understand, don’t worry about those little reminders, they are somewhat automatic because of the need to remind people who are busy and may otherwise not come back during the same month. When that happens, we lose all credit for that answer that month, which can be painful J
You are suggesting me looking for an appellate decisions on new trial motions based on fraud, etc., new evidence, etc. Yes, that is because the only decisions that exist are appellate. A case must be ‘appealed’ to be given an answer by a higher court, and also that higher court must not only write a decision but allow it to be published publicly as precedent.
On the other hand, my motion has to be moved to the trial court. That is, it is not exactly clear to me what to look for and where. If you can find an annotated copy of your Court rules (check court library), you can check to see if the court rule that allows for a motion to the trial court to vacate its own decision (or Motion for Relief from Order, same thing) (based on fraud) has some exemplary case law noted, and see if they fit your facts. This is if you think that the facts do not speak for themselves in terms of their application to that Court rule. This is a fairly basic Court rule, so there is little to ‘interpret’, possibly, but it is always nice to have some case law that has not been overturned and remains good law, thrown in.
If you do not have annotations for that court rule, You will want to ideally subscribe to Westlaw or LexisNexis and research cases that involved such a motion. You do a query, not so dissimilar from what you would ask a Google search, actually. For instance, you can search for cases that involved the actual Court Rule # (in quotes) + “fraud”, or “fraud on court” possibly, for instance.
Could you give me any directions? See above.
I cannot but mention ZDN here again who kindly found for me quite a few clues on cross examination for my appeal (you may take a look at that thread). Yes, he is very kind. Unfortunately, NH case law requires a subscription for research it. I do not pay for a full time subscription to that particular State, but use subscriptions on an ad hoc, as needed basis. If you had a subscription and were permitted to provide me access, I could possibly devote the necessary time, but it could not be done in a time frame consistent with the scope of this transaction. This is because proper research requires, typically, hours and hours of cross checking and sheppardizing – you don’t want to use a case that was subsequently overturned and is no longer good law, based on a later case. ZDN may have done that for you if he subscribes, which is very kind, or he may have not, I can not say. I do not know if his case law is still good law or not.
That being said, that is also a different type of document. With his question, you are appealing an act by the Court, so you MUST show how the court did not apply the correct law, or applied it incorrectly, or simply disregarded that court law. It is all about showing law that shows the court used wrong law, or used it wrongfully or right law not at all.
Here, in this kind of motion, you are claiming no such thing – you are saying, “here is a court rule where a court can vacate a judgment if it determines that it was based on fraud (or is otherwise a miscarriage of justice), and here are the facts showing you, Court, that fraud was perpetutated on the court and this party, that had it not been so perpetuated, the court’s decision would likely have been very different. “ That would be the basic tenor of my Motion. AND, when the other party gets served with it, HE will have to argue that either, your facts concerning Alex are not true (and that will be hard for him to do, since you and Alex are arguing otherwise) or that there is caselaw that shows that your facts should NOT result in a vacation of the judgment. HE will have to present those cases. This makes is a bit easier for you, as the moving party, because you can then look up his specific cases, and 1) see if they are actually on point (often not very much, if the other side is desperately grabbing at straws) and 2), if so, are they still “good” law (this is where you will want to sheppardize them) and 3) if not totally on point, ie not really relevant, explain how they are distinguished from your case and therefore do not rule the day on your case.
Note that a motion to vacate/new trial under 526 has been the subject of recent litigation where it has been argued that 526 motions must be made to the superior court over the district court (although others had made it in district court previously, as the trial court) and it has also been litigated that superior court can not entertain a motion on a district court trial, only cases it itself heard. For this reason, any cases you find you will definitely want to sheppardize to see if a final published ruling has come down on way or another. It may still be unsettled, but if the opponents of 526 application to district court small claims win, and if your defendant actually does HIS research and fights you on that (do you think he is that diligent?) then you may be left with your 10 day limit (rather than 3 years) for filing that post judgment motion (long since past, right?) and your appeal. However, you could consider reporting what you know about the fraud to the Attorney General, since you have another party (Alex) confirming, and the contractor could be prosecuted on grounds of perjury.
And another thing concerning the appeal. In it, I'm asking three questions - about the judges failure to give me proper opportunities to examine the evince presented by the opposition (the fake invoice and a similarly fake fax), and the lack of any other evidence from that side. Could there be another question - on possible prejudice? I don’t think so. Not all unfavorable rulings, even WRONG ones, mean prejudice.
What I mean, is as follows.
The judge had presided at the hearing on another my claim a few months before - against a tiler (an alcoholic whom I hadn't got the measure of in time). I won the case. That actually may show that he realizes you have meritorious cases and don’t just sue anyone, right or wrong.
However, when it became clear that I was the same claimant he had dealt with before, he expressed visible irritation. I am sure he’d not admit to that.
He almost definitely took me for a picky customer who was terrorizing honest contractors. (As a matter of fact, during the three weeks when my wife and granddaughter were in Europe, I had seven contractors doing renovations in our home - five of them did their job properly, the other two, not quite...) That definitely affected his position during the trial - with bad results for me. The question is, can you prove that from the record? It must be evident from the record, for your appeal. And really, that would then be covered by the part about him simply making an improper ruling, such as keeping your evidence. When we feel a judge has a conflict of interest, we can file a motion for recusal, but if you didn’t do it then, I don’t see you can do it now unless the bias is clear from the record. For instance, did he say on the record: “I have seen you before, I think you are sue happy and there is no way I am going to support you in suing yet another person.” Of course not.
In particular, one of the key issues was that of the sample board the scum had brought to my home. None of the two witnesses from the supplier of the wrong material - either the manager, or the salesman - corroborated giving any sample board to the scum. Instead of pursuing the issue by interrogating the witnesses (especially the salesman) on the subject who could have given the board to the scum - if anybody at all as there are just 12-15 staffers at the company - the judge kind of soothingly announced that probably somebody else had given the board to the defendant. He is not supposed to do YOUR cross examination or direct examination for you – that would be a bit of a conflict. You do your own, your opponent does his own. So that is not a error, typically. You should have pursued it.
That is, I was effectively represented as a lier maintaining that the material on the sample board and the one laid down in my home had nothing in common. If that was his determination, that is his job to make credibility findings – the nature of the beast. We may not agree with his finding, but that is the role of the fact finder, be it a jury or a judge.
That is, from the very beginning, the judge got in favor of the scum. His job is to determine what he believes, based on the evidence, or lack thereof, what he believes to be true or not true. Or not substantiated enough for him to find it as such.
He gave up reading my statement, that required at least nine minutes, That as probably a mistake on your part – you testify to what you want on the record, you don’t give the judge a letter that he reads, at least I would not.
…after a mere four and a half minutes of reading - just to ask me a little bit later a question the detailed answer to which was in the statement... And so he gave you the opportunity to testify to the answer – did you take it?
What of the above can be used in the appeal - if anything of that? I think that the 3 things you mentioned: If the record makes clear that he considered the invoice over your objections… and if there really wasn’t a scintilla of evidence upon which he could have made a particular finding, but he did anyway, that may be a basis of appeal – insufficient evidence such that no reasonable factfinder could have found XX to be so beyond a preponderance of the evidence, presuming that is the level of proof needed… Although if you were the plaintiff, you had the burden of that proof. The appellate court will not substitute in what IT would have found… it is not permitted to. It will look to see if there was enough evidence such that SOMEONE could have reasonably found it as such, even if IT would not have. And, certainly, if he considered last minute submitted invoice and denied you the right to examine so you could object or not object, that may be a strong point. I hope this helps! Let me know if you need follow up before or after RATING me. And PLEASE know that my job depends on a POSITIVE rating now and at least an 8-10 feedback rating later. Thanks! I won't forget your support.
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