SUPERIOR COURT OF NEW JERSEY 

 APPELLATE DIVISION 

 DOCKET NO. A-0690-21 

BRUCE KAYE, individually and as 

trustee of THE BRUCE KAYE 

REVOCABLE TRUST and THE 

BRUCE KAYE DYNASTY TRUST, 

JASON KAYE, FLAGSHIP RESORT 

DEVELOPMENT CORPORATION, 

FIRST RESORTS MANAGEMENT 

COMPANY, INC., ATLANTIC 

PALACE DEVELOPMENT, LLC, and 

LA SAMMANA VENTURES, LLC, 

 Plaintiffs-Respondents, 

v.

ALAN P. ROSEFIELDE, PLUMROSE 

COMPANY, INC., ROSE 

ASSOCIATES, INC. OF MIAMI, 

LA SAMMANA MANAGEMENT, 

LLC, and BA MANAGEMENT, LLC, 

 Defendants/Third-Party 

Plaintiffs-Appellants, 

v.

DEBORAH KAYE, 2000 BRUCE 

KAYE DYNASTY TRUST, 

HOWARD ALTER, SUSAN 

NOT FOR PUBLICATION WITHOUT THE 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.
2 A-0690-21

TUNNEY, MICHAEL VALENTI, 

RONNIE STRANSKY, KENNETH 

WOLFE, and DENNIS RICHARD, 

 Third-Party Defendants. 

______________________________

Argued November 28, 2023 – Decided January 29, 2024 

Before Judges Whipple, Mayer and Enright. 

On appeal from the Superior Court of New Jersey, 

Chancery Division, Atlantic County, C-000017-05.

Andrew W. Rubin argued the cause for appellants. 

Jordan L. Barbone argued the cause for respondents 

(Jacobs & Barbone, PA, attorneys; Jordan L. Barbone, 

on the brief). 

PER CURIAM 

 The case returns to us for the third time, after having been remanded to 

the trial court, by this court and the Supreme Court, for further consideration of 

certain issues. We affirm the September 23, 2023 judgment in its entirety. 

 This litigation commenced in 2005. The facts of this case were wellchronicled in our prior opinions, Kaye v. Rosefielde (Kaye I), 432 N.J. Super. 

421, 435-59 (App. Div. 2013), and Kaye v. Rosefielde (Kaye III), No. A-149-17 

(App. Div. Oct. 7, 2019), and in the Supreme Court's opinion in Kaye v. 

Rosefielde (Kaye II), 223 N.J. 218, 222-27 (2015), and need not be fully 
3 A-0690-21

repeated to understand the orders currently under review. The case stems from 

a failed business relationship between plaintiff Bruce Kaye and defendant Alan 

Rosefielde and their affiliated entities. Kaye employed Rosefielde for a period 

of two years, between January 2003 and January 2005, paying him $500,000 per 

year to run three timeshare businesses in Atlantic City and Brigantine, New 

Jersey, that Kaye principally owned or controlled. Kaye alleged that during 

those two years, Rosefielde "was an unfaithful servant who plundered his 

companies, caused his companies to suffer considerable losses as the result of 

his nonfeasance and misfeasance, and fraudulently acquired ownership and 

income interest in three of the companies."

 The case was tried before the court over several months in 2007. On July 

9, 2007, the court issued an oral ruling from the bench. On November 1, 2007, 

the court entered a final judgment and issued a written post-trial opinion, as well 

as a separate opinion on counsel fees and punitive damages. The court largely 

found in favor of plaintiffs on their causes of action. 

The court awarded equitable remedies that rescinded transactions through 

which Rosefielde had acquired financial interests in the plaintiff entities, 

awarded plaintiffs' requests for counsel fees and costs on the legal malpractice 

and fraud claims in the amount of $803,189.99, awarded $250,000 punitive 
4 A-0690-21

damages on the fraud claims, and awarded $4,000 in compensatory damages. 

However, the court denied plaintiffs' request for disgorgement on the unfaithful 

servant claim because it believed, as a legal matter, that it could not award 

disgorgement in the absence of a quantifiable loss; otherwise, the court would 

have required disgorgement. The court awarded defendants $86,514.23 in 

counsel fees and costs. Ultimately, net of the award to defendants, the court 

awarded $966,675.76 to plaintiffs. 

Both parties appealed. In November 2012, before we issued our first 

opinion, the parties entered into a settlement agreement but did not notify the 

court about the settlement. The settlement agreement referenced the then 

pending appeal from the trial court's award of $966,675.76 plus interest to 

plaintiffs by its docket number (A-1120-07) and labeled it the "New Jersey 

Action." The settlement agreement also referenced actions in Florida and New 

York, wherein plaintiffs were seeking enforcement and recovery on the 

judgment, as well as an additional litigation and an arbitration in Florida. 

The parties expressed their desire to "resolve all disputes among the 

parties, finally dismiss the Actions with prejudice, and release each other from 

potential claims, known or unknown, including those raised or that could have 

been raised in the Actions, except as expressly provided in this Agreement." 
5 A-0690-21

In August 2013, not having been advised of the settlement, we issued a 

written opinion. Kaye I, 432 N.J. Super. 421 (App. Div. 2013). 

We affirmed the equitable relief of rescission awarded to plaintiffs, by 

which the trial court rescinded Rosefielde's ownership interests in La Sammana, 

La Sammana Management, and BA Management; we also affirmed the award of 

compensatory damages on these rescinded transactions. Id. at 433, 494-95. We

also affirmed the findings that Rosefielde committed legal malpractice and civil 

fraud. Id. at 433, 495. We vacated the award of counsel fees to plaintiffs based 

upon those claims, however, because plaintiffs "were unable to prove that 

Rosefielde's legal malpractice and fraudulent conduct proximately caused any 

compensable damages to them." Id. at 434; see also id. at 495. The court 

remanded "for the trial court to reconsider and, if necessary, recalculate the 

amount of counsel fees, if any, that plaintiffs are entitled to receive under the 

circumstances presented." Ibid.

We vacated an award of punitive damages and remanded for 

reconsideration of whether the award of punitive damages was "sustainable 

based only on the compensatory damages correctly awarded for Rosefielde's 

improper use of corporate funds to pay for his personal trip to Las Vegas." Ibid.
6 A-0690-21

Finally, on plaintiffs' cross-appeal, we affirmed the trial court's denial of 

the remedies of disgorgement and forfeiture. Id. at 434, 494-95.

Plaintiffs filed a petition for certification, and defendants moved to 

dismiss the petition based upon the settlement. By order dated March 11, 2014, 

the Supreme Court denied the motion without explanation, but the Court granted 

the petition, in May 2014, limited to the issue of whether we erred by affirming 

the trial court's holding that economic damage is a necessary prerequisite for 

disgorgement of the employee's salary. 

Meanwhile, in 2013, Rosefielde had filed an action in Florida to enforce 

the settlement agreement and obtain payments pursuant to the agreement, 

arguing that he had prevailed in the New Jersey appellate proceedings. In 

response, in March 2014, Kaye moved for summary judgment, arguing that 

Rosefielde's claims were premature because the New Jersey proceedings were 

not yet concluded. The court granted Kaye's motion, agreeing with his 

interpretation of the settlement agreement: that it required the conclusion of all 

proceedings in the "New Jersey Action" in order to determine whether payments 

might be due under the settlement agreement. 

In September 2015, the Supreme Court issued its opinion on the merits, 

without mentioning the settlement. Kaye II, 223 N.J. 218 (2015). The Court 
7 A-0690-21

reversed this court, in part, ruling that the trial court could order equitable 

disgorgement as a remedy, even though plaintiffs had not sustained economic 

loss as a consequence of Rosefielde's breach of his duty of loyalty. Id. at 221-

22, 236-37. The Court "remand[ed] to the trial court to determine whether the 

remedy of disgorgement should be imposed in this case." Id. at 222. 

 On remand to the Chancery Division, Rosefielde moved to enforce the 

settlement and dismiss the case as moot. By opinion and order dated August 9, 

2017, the court granted the motion, finding that plaintiffs had released the right 

to pursue or obtain any further recovery from defendants in the New Jersey 

litigation, including disgorgement. 

 Plaintiffs appealed, after which we temporarily remanded to the trial court 

to address defendants' motion for indemnification of all legal fees incurred since 

the settlement agreement was signed. By opinion and order dated March 29, 

2018, the Chancery Division ruled defendants were entitled to indemnification, 

but only for the fees incurred in litigating the motion to dismiss made after the 

Supreme Court remand, which amounted to $32,445. 

 Once again, the matter returned to this court and, by opinion dated October 

7, 2019, we concluded we were "constrained to reverse both orders and remand 

for proceedings consistent with" the Supreme Court's ruling, that is, for a 
8 A-0690-21

determination as to whether plaintiffs should receive disgorgement of 

Rosefielde's compensation, because "[n]otwithstanding the argument that the 

settlement agreement foreclosed further litigation," in issuing its opinion, the 

Supreme Court had not specified "whether it considered the case a live 

controversy or whether it was deciding the case under the public interest 

exception to the mootness doctrine." Kaye III, slip op. at 9. 

 On November 5, 2019, Rosefielde filed a petition for certification, which 

the Supreme Court denied. That tortured procedural saga leads us to the present 

appeal of the latest remand to the Chancery Division. 

In July 2020, defendants moved to amend their answer to plead additional 

affirmative defenses premised on the settlement agreement, including accord 

and satisfaction, and a counterclaim seeking specific performance of the 

settlement agreement. The Chancery Division denied the motion on October 14, 

2020.

 The court conducted a hearing over four days in March and April 2021, 

and considered the parties' extensive written submissions, in which they drew 

the court's attention to portions of the trial court's evidentiary record and rulings 

and argued the legal issues. 
9 A-0690-21

The court issued its decision on May 28, 2021, applying the factors 

specified by the Supreme Court, and concluded that disgorgement was an 

appropriate remedy for Rosefielde's disloyalty. The court considered: 

Rosefielde's degree of responsibility and level of compensation; the degree to 

which Kaye relied upon Rosefielde for both legal and management matters; the 

number of acts of disloyalty and the extent of Rosefielde's schemes; the extent 

to which Rosefielde's acts exposed Kaye and his businesses to potential civil 

and criminal liability; and Rosefielde's careful planning of his complex schemes. 

The court also gave significant weight to the trial judge's statement that he would 

have awarded disgorgement damages if he felt he could lawfully do so, and the 

trial court's finding that Rosefielde's misconduct occurred through his entire 

tenure. 

Pertinent to the present appeal, the court expressly accepted plaintiffs' 

timeline of Rosefielde's disloyalty, stating: "Attached as Exhibit B to 

plaintiff[s'] submissions is a timeline of Rosefielde's disloyal schemes which the 

[c]ourt accepts as fact." The court also detailed the timing of Rosefielde's acts 

of disloyalty, with the various instances of misconduct extending from January 

2003 to December 2004. And the court expressly rejected defendants' "attempts 

to isolate" specific pay periods when the disloyalty occurred, stating: "This 
10 A-0690-21

[c]ourt finds that Mr. Rosefielde entered his relationship with the intentional 

scheme to pilfer from Mr. Kaye and his holdings. It is not reasonable or 

equitable to attempt to isolate these incidents as requested by the [d]efendant." 

The court expressly found that Rosefielde's disloyalty "lasted the entire two[-] 

year duration of his employ," which is what the trial judge previously found. 

The court also rejected Rosefielde's argument that disgorgement was 

inappropriate because he was not an employee of the corporate entities. As to 

this issue, the court noted: the trial judge's finding that Rosefielde had been an 

"unfaithful servant"—which was unchallenged on appeal—and the Supreme 

Court's finding that Rosefielde was an employee and not an independent 

contractor. 

Finally, the court rejected Rosefielde's argument that any disgorgement 

must be exclusively from Plumrose Company, Inc. and Rose Associates of 

Miami because "no payments were made to Alan Rosefielde." As to this issue, 

the court noted the plain language of the order entered by the trial judge, 

pursuant to which judgment was granted in favor of plaintiffs and against all 

defendants, including Rosefielde individually. 

Thus, as a remedy for Rosefielde's being an unfaithful servant, breaching 

his fiduciary responsibilities, and committing fraud, the court awarded plaintiffs 
11 A-0690-21

$1,000,000 in disgorgement damages, which amounted to the entirety of 

Rosefielde's compensation during his two years of employment. 

Turning to the question of punitive damages, the court first noted that we

had reversed the trial court's award of $250,000 in punitive damages and 

remanded for reconsideration "based upon the proportionality of the modest 

$4,000 compensatory damage award" (for a Las Vegas trip). We also had 

commented, however, that disgorgement of Rosefielde's salary could form a 

basis for punitive damages, while noting that disgorgement was unavailable as 

a legal matter. 

Reconsidering the question of punitive damages under these directives, 

and under the Punitive Damages Act, N.J.S.A. 2A:15-5.9, the court found by 

clear and convincing evidence that plaintiffs were entitled to punitive damages 

with respect to: Rosefielde's fraudulent acquisition of an ownership interest in 

BA Management—actuated by actual malice or wanton and willful disregarding 

of Kaye's interests—and Rosefielde's use of corporate funds to pay for a 

personal trip to Las Vegas, which constituted theft and was done with willful 

and wanton disregard for his corporate fiduciary obligation and the harm that 

would occur to the corporation. 
12 A-0690-21

Considering the statutory factors and the evidentiary record, and in light 

of the $1 million disgorgement award and the substantial counsel fee award, the 

court found the appropriate amount of punitive damages was $350,000, which 

represented an upward adjustment of $100,000 from the original award of 

$250,000. 

Regarding counsel fees, the court considered our holding that the counsel 

fee award was disproportionate to the $4,000 compensatory damage award and 

instructions on remand. The court found our rationale regarding the trial judge's 

methodology no longer applicable—because the Supreme Court had determined 

plaintiff had a valid claim for disgorgement damages—and awarded $1 million 

in disgorgement damages. The court also found evidence in the record to value 

the businesses as to which the trial judge had ordered rescission. 

Accordingly, the court reinstated the original counsel fee award to 

plaintiffs ($716,675.76) and held that plaintiffs were entitled to additional 

counsel fees to be determined in subsequent motion practice. 

Finally, the court rejected defendants' equitable arguments, holding in 

particular that: it could not consider the effect of the parties' settlement 

agreement or whether there had been an accord and satisfaction, given the 

limited scope of the prior remands; and "once the proportionality of the 
13 A-0690-21

compensatory award shifted significantly, this [c]ourt had the right to adjust 

upward the punitive award and grant counsel fees." And the court vacated the 

indemnification fee award to Rosefielde of $32,445, concluding "that defendant 

Rosefielde is not entitled to indemnification of counsel fees as the result of his 

previously successful motion that was reversed by the Appellate Division." 

After issuing this opinion, the court considered additional submissions 

relating to plaintiffs' application for counsel fees and costs and held a hearing 

on the application on August 19, 2021. On September 23, 2021, the court 

awarded $289,628.06 in counsel fees to plaintiffs, in addition to the previous 

award of $716,675.76. On November 19, 2021, the court issued a corrected 

judgment in order to correct a mathematical error. 

 This appeal followed. 

 Defendants contend the remand court erred in denying their motion for 

leave to amend their answer to assert affirmative defenses based upon the 

settlement agreement and to assert a counterclaim to enforce the settlement 

agreement. They argue: the proposed amendment was not prohibited by the 

remand orders and was permitted under Rule 4:9-1; the entire controversy 

doctrine required the court to grant the motion both as to the proposed 

affirmative defenses and the proposed counterclaim; New Jersey's strong public 
14 A-0690-21

policy favoring the enforcement of settlements required the court to permit the 

amendment; and plaintiffs were estopped from objecting to the amendment. 

Alternatively, defendants contend the remand court erred by not dismissing the 

case after finding disgorgement because, under the settlement agreement, 

plaintiffs had waived any right to receive further payments from defendants. We 

find no merit to these arguments. Based on our review, we conclude the court 

did not abuse its discretion in denying the motion for leave to amend because 

the proposed amendments were barred by the remand orders. 

The Supreme Court's remand to the trial court was expressly limited "to 

determine whether the remedy of disgorgement should be imposed in this case." 

Kaye II, 223 N.J. at 222. Our first remand to the trial court was limited to: (1) 

"reconsider and, if necessary, recalculate the amount of counsel fees, if any, that 

plaintiffs are entitled to receive consistent with this opinion"; and (2) 

"reconsider whether an award of punitive damages is sustainable consistent with 

this opinion." Kaye I, 432 N.J. Super. at 495. And in Kaye III, we reversed an 

order dismissing the case based upon the settlement agreement (as well as an 

order for indemnification of Rosefielde for legal fees incurred on the motion to 

dismiss) and held that, notwithstanding the settlement, the remand court must 

consider the remand issues, consistent with the prior remand orders. Kaye III, 
15 A-0690-21

(slip op. at 9-10). Based on our review, we conclude the proposed amendments 

were barred by the remand orders. 

We also reject the argument that a New Jersey court must resolve the 

parties' conflicting interpretations of the settlement agreement. In the settlement 

agreement, the parties acknowledged that they had litigated their disputes in 

multiple states, including New Jersey and Florida. The settlement agreement 

expressly anticipated that the piecemeal litigation would continue, that is: the 

New Jersey Action would proceed through the appellate process, and any 

disputes relating to the settlement agreement would be litigated in a Florida 

court, applying Florida law. Settlement agreements, like any contracts, are to 

be enforced as clearly written. Serico v. Rothberg, 234 N.J. 168, 178 (2018); 

Nolan v. Lee Ho, 120 N.J. 465, 472 (1990); Pascarella v. Bruck, 190 N.J. Super. 

118, 124-25 (App. Div. 1983). 

The terms of the settlement agreement appear to preclude plaintiffs from 

recovering on any post-settlement judgment entered in the New Jersey Action, 

stating: "Kaye and the Kaye Entities agree to accept . . . the Settlement Payment 

in full and complete satisfaction of the Judgment and warrant that they will not 

seek any further payment from Rosefielde and/or the Rosefielde Entities . . . ." 

(Emphasis added). The settlement agreement also includes a release of "claims, 
16 A-0690-21

liabilities, expenses, causes of action[,] and other proceedings whatsoever . . . ." 

As previously discussed, the settlement agreement permits continuation of the 

New Jersey Action, but only to determine whether plaintiffs must pay a clawback amount to defendants. 

Defendants argue "the remand court committed reversible error because it 

failed to follow the directions of the Supreme Court to determine whether 

disgorgement was justified for each pay period and further erred because it 

failed to apply the right standards to determine disloyalty." We disagree. 

 On remand, the trial court performed the analysis required by the Supreme 

Court and considered and applied each of the factors specified, concluding that 

disgorgement was an appropriate remedy for Rosefielde's disloyalty. 

Furthermore, the court: accepted the trial court's finding that Rosefielde's 

misconduct occurred through his entire tenure; accepted plaintiffs' timeline of 

Rosefielde's disloyalty; detailed the timing of Rosefielde's acts of disloyalty, 

with the various instances of misconduct extending from January 2003 to 

December 2004; and found that Rosefielde's disloyalty "lasted the entire two[-] 

year duration of his employ."

The remand court's findings are well-supported by the record, including 

the trial court's opinions, as well as by our opinion in Kaye I and the Supreme 
17 A-0690-21

Court's opinion in Kaye II, each of which detailed the extent of Rosefielde's

misconduct and the timing of his misdeeds, which spanned the entirety of his 

two-year employment. Contrary to defendants' argument, there was no error in 

the remand court's finding that disgorgement was appropriate for the entire two 

years of Rosefielde's tenure. 

 We reject defendants' assertion the grant of additional punitive damages 

was beyond the scope of the remands and not supported by the evidence. On 

the post-trial appeal, we rejected most of defendants' arguments as to why the 

punitive damages award was unwarranted but remanded on their argument that 

"there is no factual support in the record for punitive damages." Kaye I, 432 

N.J. Super. at 487-88. We agreed punitive damages were appropriate on counts 

three and five, but expressed concern that the punitive damages award was 

disproportionate to the actual damages plaintiffs suffered as a result of certain 

actions. Id. at 490-92; see also N.J.S.A. 2A:15-5.14. We anticipated a reduction 

of the punitive damages award on remand. However, our analysis was premised 

upon the disproportionately large punitive damage award in relation to the small 

compensatory damages awarded on counts three and five, with disgorgement 

damages not permitted. 
18 A-0690-21

That proportionality concern was substantially altered by the Supreme 

Court's reversal of our disgorgement ruling and the remand court's finding that 

a $1 million disgorgement award was appropriate, along with an increase in the 

award of counsel fees and costs. The substantial increase in the actual damages 

awarded permitted the remand court to order a proportionate increase in the 

punitive damage award.

For similar reasons, we reject defendants' contention the counsel fee 

award was beyond the scope of the remands and not adequately supported. The 

remand court found that, under this new set of circumstances, plaintiffs had 

obtained a substantial amount of compensable damages—thereby justifying the 

original fee award, as well as an additional award for the efforts on remand 

necessary to obtain the disgorgement. After considering the parties' submissions 

and arguments, the court reiterated its authority to make an additional award of 

fees and costs based upon the terms of the remands from the Appellate Division 

and the Supreme Court, and it awarded additional counsel fees and costs of 

$289,628.06 for the remand proceedings. 

The remand court's reinstatement of the prior award of counsel fees and 

costs, as well as its award of additional fees and costs, were consistent with the 

remand instructions that the fee award be proportional to the actual damages. 
19 A-0690-21

Tomaino v. Burman, 364 N.J. Super. 224, 232 (App. Div. 2003). Since the 

actual damages awarded increased on remand, the reasonable fee award also 

increased. 

 This record presents no basis for finding a clear abuse of discretion. 

"Because the trial court was in the best position to weigh the equities and 

arguments of the parties in this lengthy and contentious case," we will not 

disturb its award. Packard-Bamberger & Co. v. Collier, 167 N.J. 427, 447

(2001). Plaintiffs achieved complete success in the remand proceedings, 

ultimately fending off defendants' motion to dismiss and obtaining full 

disgorgement of Rosefielde's $1,000,000 salary, as well as a $100,000 increase 

in punitive damages. 

Any question of whether plaintiffs are entitled to recover the post-remand 

fee award is a matter to be resolved by a Florida court interpreting the parties' 

settlement agreement. Plaintiffs may not collect on the post-remand judgment 

unless otherwise ordered by a Florida court in its interpretation of the agreement, 

applying Florida law. Indeed, the Florida court has already ruled as such, 

finding that the New Jersey proceedings must be complete "in order to determine 

whether payments might be due under the settlement agreement." 
20 A-0690-21

Any remaining arguments raised are without sufficient merit to warrant 

discussion in a written opinion. R. 2:11-3(e)(1)(E). 

Affirmed.