STEVEN D'AGOSTINO VS. GESHER LLC (L-0522-12, OCEAN COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2968-16T1
STEVEN D'AGOSTINO,
Plaintiff-Appellant/
Cross-Respondent,
v.
GESHER LLC, SCOTT LINDENBAUM,
KEITH LINDENBAUM, KAREN
LINDENBAUM, GENNARO PAGANO,
ANTOINETTE PAGANO, CENTURY 21/
GEMINI REO LLC,
Defendants-Respondents
Cross-Appellants,
and
GAYLE COLAVITO and FEIN SUCH
KAHN AND SHEPARD, PC,
NEWPORT REALTY, INC. AND
NICHOLAS MANDVENO,
Defendants.
______________________________
Argued May 24, 2018 – Decided June 8, 2018
Before Judges Simonelli and Haas.
On appeal from Superior Court of New Jersey,
Law Division, Ocean County, Docket No. L-0522-
12.
Steven D'Agostino, appellant/cross-
respondent, argued the cause pro se.
Alyse Berger Heilpern argued the cause for
respondents/cross-appellants Century 21/
Gemini REO LLC, Gennaro Pagano and Antoinette
Pagano (L'Abbate, Balkan, Colavita & Contini,
LLP, attorneys; John R. Gonzo, of counsel and
on the brief).
Kevin P. Gilmartin argued the cause for
respondents/cross-appellants Gesher LLC, and
Scott, Keith and Karen Lindenbaum (Rothstein,
Mandell, Strohm & Halm, PC, attorneys; Michael
L. Pescatore, of counsel and on the brief).
PER CURIAM
Plaintiff Steven D'Agostino appeals from the February 3, 2017
Law Division order, which denied his motion for post-judgment
interest pursuant to Rule 4:42-11. Defendants Century 21/Gemini
REO, LLC, Gennaro and Antoinette Pagano (collectively Pagano), and
defendants Gesher LLC and Scott, Keith, and Karen Lindenbaum
(collectively Gesher)1 cross-appeal from the denial of their cross-
motions to impose frivolous lawsuit sanctions pursuant to N.J.S.A.
2A:15-59.1. We affirm.
I.
This matter involved plaintiff's claims against defendants
for allegedly interfering with his attempt to purchase property.
1
We shall sometimes refer to Pagano and Gesher collectively as
defendants.
2 A-2968-16T1
The trial court dismissed the complaint with prejudice pursuant
to Rule 4:6-2(e) for failure to state a claim upon which relief
could be granted and denied plaintiff's motion for
reconsideration. See D'Agostino v. Gesher LLC, No A-1040-12 (App.
Div. Jan. 15, 2015) (slip op. at 1). We reversed and remanded.
Id. at 19.
Thereafter, plaintiff filed a motion with this court for
appellate costs and sanctions. In a February 23, 2015 order, we
denied the motion. Plaintiff took no further action with respect
to the order. Accordingly, he is not entitled to costs and
sanctions for the first appeal.2
On April 29, 2016, the parties entered a global settlement
in the amount of $70,000, with Pagano paying plaintiff $55,000 and
Gesher paying $15,000 within thirty days. The settlement did not
provide for post-settlement interest. Plaintiff agreed to the
global settlement under oath on the record and testified he entered
into it freely, voluntarily, and without force or coercion.
2
Plaintiff argues in the present appeal that he is entitled to
costs for the first appeal, citing only part of Rule 2:11-5 that
states costs on appeal "shall be taxed by the clerk of the
appellate court . . . in favor of the prevailing party." He
conveniently omits the language that costs on appeal "shall be
taxed by the clerk of the appellate court in the manner ordered
by the appellate court. . . ." (Emphasis added). We did not
order an award of costs to plaintiff.
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On April 29, 2016, the trial court entered an order of
dismissal, which listed the terms of the settlement, marked the
case settled, and dismissed it with prejudice. All parties signed
the order. Contrary to plaintiff's position on appeal, the order
did not award him any money or order defendants to make payment.
Accordingly, the order was not a judgment or enforceable as a
judgment.
Before the expiration of thirty days, on May 4, 2016,
plaintiff filed a motion to vacate the global settlement as to
Gesher only. As a result, defendants, who were ready, willing,
and able to pay the settlement money, withheld payment pending
disposition of the motion, and filed cross-motions to enforce the
settlement and for attorney's fees and costs. On June 7, 2016,
the court entered an order enforcing the settlement and denying
all other relief.
Plaintiff appealed and defendants cross-appealed. Pagano
filed a motion with this court to deposit its portion of the
settlement with the court. In an August 29, 2016 order, we granted
Pagano's motion. In a November 14, 2016 order, we dismissed
plaintiff's appeal for failure to prosecute. Defendants
subsequently withdrew their cross-appeals.
Thereafter, plaintiff demanded payment of post-judgment
interest, but defendants declined. On January 10, 2017, plaintiff
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filed a motion for post-judgment interest pursuant to Rule 4:42-
11 and for sanctions. Defendants filed cross-motions for frivolous
lawsuit sanctions pursuant to N.J.S.A. 2A:15-59.1. In a February
3, 2017 order, the motion judge denied all motions. In a statement
of reasons, the judge found plaintiff's appeal from the order
enforcing the settlement was meritless. Citing Mehta v. Johns-
Manville, 163 N.J. Super. 1 (App. Div. 1978), the judge found it
would be inequitable to compel defendants to pay interest for a
delay in payment not attributable to them. Citing Gerhardt v.
Continental Ins. Co., 48 N.J. 291 (1966), the judge found "[a]n
award of counsel fees, sanctions and costs is disfavored unless
sanctioned under [Rule] 4:42-9 and no compelling reasons are
established for the award." This appeal followed.
II.
On appeal, plaintiff argues he is entitled to post-judgment
interest as a matter of right; Pagano should be responsible for
retrieving the money deposited with the court; and he is entitled
to costs for this appeal. We have considered these arguments in
light of the record and applicable legal principles and conclude
they are without sufficient merit to warrant discussion in a
written opinion. R. 2:11-3(e)(1)(E). However, we make the
following brief comments.
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Plaintiff cites no authority requiring Pagano to retrieve the
settlement money deposited with the court. There was no judgment
entered in this case. Thus, cases plaintiff cites regarding the
right of judgment creditors to post-judgment interest are
inapplicable.
Further, Hagrish v. Olson, 254 N.J. Super. 133 (App. Div.
1992), on which plaintiff relies to argue he is entitled to
interest absent a judgment, is also inapplicable. There, the
defendants refused to finalize the settlement, thus forcing the
plaintiffs to file a motion to enforce. Id. at 136-37. We
reversed the trial court's denial of the plaintiff's motion, and
remanded for entry of an order requiring immediate payment of the
settlement money plus interest. Id. at 139.
Here, it was plaintiff who refused to abide by the global
settlement and defendants who were forced to file a motion to
enforce and defend a frivolous appeal. Defendants cannot be
compelled to pay interest on the settlement where they clearly did
not cause the delay.
Contrary to plaintiff's position, Mehta is still good law and
has been cited with approval by this court. See Regino v. Aetna
Casualty & Sur. Co., 200 N.J. Super. 94, 99 (App. Div. 1985);
Baker v. Nat'l State Bank, 353 N.J. Super. 145, 177 (App. Div.
2002. In Mehta, the defendants appealed from an order adding
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interest to a settlement. 163 N.J. Super. at 2. We reversed,
concluding, "it is inequitable to compel the payment of interest
by defendants for a delay which [cannot] be attributed to them in
any respect whatsoever." Id. at 6-7. So too, it is inequitable
to compel defendants here to pay interest, as the delay in payment
cannot be attributed to them in any way whatsoever. Further, it
would be utterly inequitable to award interest to a party, such
as plaintiff, who was solely responsible for the delay in payment.
Had plaintiff abided by the global settlement and not filed the
motion to vacate and the frivolous appeal, he would have received
the payment of the settlement funds long ago. We cannot permit
plaintiff to benefit with any interest under the circumstances of
this case.
III.
On cross-appeal, defendants argue the motion judge erred in
failing to award frivolous lawsuit sanctions against plaintiff
under N.J.S.A. 2A:15-59.1 for his motion for post-judgment
interest.3 We disagree, but for reasons different from those
3
We decline to address Pagano's additional argument that the
court erred in failing to award attorney's fees for plaintiff's
motion to vacate the settlement. Pagano voluntarily dismissed its
cross-appeal from the June 7, 2016 order denying its cross-motion
for attorney's fees and costs, and the time to reinstate that
appeal has long expired. Further, Pagano's notice of cross-appeal
states it is only appealing from the February 3, 2017 order. "[I]t
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stated by the motion judge. See Aquilio v. Cont'l Ins. Co. of
N.J., 310 N.J. Super. 558, 561 (App. Div. 1998).
Claims against parties governed by N.J.S.A. 2A:15-59.1 are
affected by the procedural but not the substantive provisions of
Rule 1:4-8. Toll Bros., Inc. v. Twp. of W. Windsor, 190 N.J. 61,
69-73 (2007). The procedural provisions of Rule 1:4-8(b)(1) are
as follows, in pertinent part:
An application for sanctions under this rule
shall be by motion made separately from other
applications and shall describe the specific
conduct alleged to have violated this rule.
No such motion shall be filed unless it
includes a certification that the applicant
served written notice and demand pursuant to
R. 1:5-2 to the attorney or pro se party who
signed or filed the paper objected to. The
certification shall have annexed a copy of
that notice and demand, which shall (i) state
that the paper is believed to violate the
provisions of this rule, (ii) set forth the
basis for that belief with specificity, (iii)
include a demand that the paper be withdrawn,
and (iv) give notice, except as otherwise
provided herein, that an application for
sanctions will be made within a reasonable
time thereafter if the offending paper is not
withdrawn within 28 days of service of the
written demand. . . . The certification shall
also certify that the paper objected to has
not been withdrawn or corrected within the
appropriate time period provided herein
is only the judgments or orders or parts thereof designated in the
notice of appeal which are subject to the appeal process and
review." Pressler and Verniero, Current N.J. Court Rules, cmt. 6
on R. 2:5-1(f)(1) (2018); see 1266 Apt. Corp. v. New Horizon Deli,
Inc., 368 N.J. Super. 456, 459 (App. Div. 2004).
8 A-2968-16T1
following service of the written notice and
demand.
Failure to conform to the rule's procedural requirements will
result in a denial of the request for a counsel fee sanction.
State v. Franklin Sav. Account No. 2067, 389 N.J. Super. 272, 281
(App. Div. 2006).
Here, the record is devoid of evidence that defendants served
the required written notice and demand on plaintiff or filed the
required certification, and defendants do not argue on appeal that
they complied with the rule. Because of defendants' failure to
conform to the rule's procedural requirements, we are constrained
to affirm the denial of their motion for frivolous lawsuit
sanctions.
Affirmed.
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