Borough in this third trial. In Franklin, one party sought to hold its adversary to its decision, made prior to the first trial, not to enforce a right to a jury trial that was conferred on that party by the contract between the parties. The New Jersey Supreme Court held that that party had the right to a jury at the second trial, because its failure to enforce its right to a jury at the first trial was the result of oversight by counsel, rather than by deliberate decision. Franklin, at 492-93. In our present setting, the Borough did not stipulate its liability as the result of oversight. Rather, the Borough's decision was a calculated, tactical one. Thus, even if Franklin Discount Company, notwithstanding extremely dissimilar facts, could be extended to cover this circumstance, its holding does not relieve the Borough of the stipulation it entered into deliberately, rather than inadvertently.
The Borough cites State v. Cooper, 165 N.J. Super. 57, 397 A.2d 702 (App.Div. 1979), a criminal case, to support its argument that the prior stipulation does not bind it because "the parties are returned to their original positions on a new trial and may introduce evidence and assert new defenses not presented at the first trial." The issue before the Cooper court was whether the defendant in an armed robbery case could challenge a pre-trial identification of him at a second trial on remand, when such challenge already had been unsuccessfully raised by him at the first trial. The Appellate Division determined that the defendant could challenge the pre-trial identification at the second trial, even though he had already done so in the first, where it was determined that the procedure used by the police did pass constitutional muster. For obvious reasons this case does not support the Borough's position.
The holding of Kearney and Trecker v. Master Engraving, 234 N.J. Super. 466, 560 A.2d 1320 (Law Div. 1988), is also advanced. There, a defendant in a breach of contract case, in a counterclaim, had asserted a right to relief based on a breach of warranty theory. Upon review of the trial judgment, the case was reversed and remanded for retrial. On remand, the counterclaiming party sought to recover on a theory not proffered at the first trial, specifically, that it had revoked its acceptance of the plaintiff's offer, thereby entitling it to a judgment. The plaintiff objected to the defendant's advancing a new theory. The trial court held that the defendant could present a new theory, revocation of acceptance, because at that time all parties had an opportunity "to present anew any issues they feel are relevant to a disposition of the matter." Kearney and Trecker at 469. That holding determines that a party, generally, is not limited at a second trial to the same legal theories advanced by it at an earlier one. Kearney and Trecker does not decide, nor pretend to decide, the issue of whether stipulations voluntarily entered into at a first trial by a party will bind it at a subsequent trial.
Finally, the Borough seeks support for its position from Miller v. Linde, 33 N.J. Super. 41, 109 A.2d 290 (App. Div. 1954), which concluded that where a trial court's charge to a jury is basically and fundamentally in error, a "new trial must be granted and the entire controversy restored to the same status as if no previous trial had been had. " Miller, at 45. Here, the Court of Appeals did not reverse the second trial of this case on the basis of an improper jury charge. Miller v. Linde is not relevant.
Case Law Precludes the Borough From Withdrawing its Stipulation
As earlier discussed, the stipulation of the Borough before the second trial was not rendered a nullity by the subsequent reversal of the trial verdict. Thus, it is well-settled by decisonal law in this and other circuits that a stipulation remains in effect unless the trial court finds that such vitality would result in "manifest injustice." See, Wheeler v. John Deere Co., 935 F.2d 1090, 1097 (10th Cir. 1991); Morrison v. Genuine Parts Co., 828 F.2d 708 (11th Cir. 1987), cert. denied, 484 U.S. 1065, 98 L. Ed. 2d 990, 108 S. Ct. 1025 (1988); Hunt v. Marchetti, 824 F.2d 916 (11th Cir. 1987); United States v. Montgomery, 620 F.2d 753 (10th Cir. 1980). See also, Stickler v. C.I.R., 464 F.2d 368 (3d Cir. 1972); In re Ram Manufacturing Inc., 56 Bankr. 769 (E.D.Pa. 1985); 73 Am.Jur.2d Stipulations § 10 (1974).
A stipulation is an admission which "cannot be disregarded or set aside at will." Wheeler v. John Deere Co., 935 F.2d 1090, 1097 (10th Cir. 1991) (citations omitted). A pre-trial stipulation is analogous to a pre-trial order under Rule 16 of the Federal Rules of Civil Procedure, which can be modified subsequently, "only to prevent manifest injustice." Hunt v. Marchetti, 824 F.2d 916 (11th Cir. 1987). It has been held that stipulations are not absolute, and may be withdrawn whenever necessary to prevent manifest injustice. See, Wheeler, at 1098. (citing United States v. Montgomery, 620 F.2d 753 (10th Cir. 1980)). District courts are vested with broad discretion in determining whether to hold a party to a stipulation or whether the interests of justice require that the stipulation be set aside. See, Wheeler, at 1098. (citing Morrison v. Genuine Parts Co., 828 F.2d 708 (11th Cir. 1987), cert. denied, 484 U.S. 1065, 98 L. Ed. 2d 990, 108 S. Ct. 1025 (1988)). Whether a stipulation entered into for a particular trial should remain binding during a trial on remand depends upon its nature and the circumstances underlying its formulation. Wheeler, at 1098. Relevant to this inquiry is whether the stipulation was expressly limited to a single trial or entered into as the result of fraud or a mistaken interpretation of law. Id.
Courts have squarely addressed the issue of whether a stipulation entered into before a trial would be binding in a second trial after remand. Wheeler v. John Deere Company, 935 F.2d 1090 (10th Cir. 1991) presents factual circumstances similar to those here. Plaintiff was injured by a product manufactured by the defendant and sued the maker in a products liability action. Before the trial, the defendant stipulated that it would have been technologically and economically feasible for the defendant to have prevented plaintiff's injury by incorporating a different product design, but that it chose not to. The jury returned a verdict for the plaintiff, which the 10th Circuit Court of Appeals reversed and remanded for a new trial. Before the new trial, the district court denied the defendant's application to withdraw its prior stipulation conceding the feasibility of a safer design. The defendant argued that it had entered the stipulation only because it was mistaken in its interpretation of the law of evidence and therefore, it should have been allowed to withdraw the admission.
On review, the Court of Appeals affirmed the district court's denial of the defendant's application. The appeals court opined that the defendant's claim that it entered the stipulation in reliance on a mistaken belief of law, "did not ring true." Wheeler, at 1098. According to the reviewing court, the defendant sought to withdraw its stipulation because it would be "disadvantaged tactically" at the subsequent trial. Id. The Circuit court held that binding the defendant to its prior judicial admissions under such circumstances did not result in manifest injustice and therefore, approved of the district court's refusal to grant the defendant's application:
Whether a stipulation entered into for a particular trial should remain binding during a retrial of the same case depends on the nature of the stipulation and the circumstances underlying its formulation: