SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1627-19

S. JAY MIRMANESH AND 

LISA ANN MIRMANESH, 

individually and derivatively

for WATERVIEW ESTATES

CONDOMINIUM 

ASSOCIATION, INC.,

Plaintiffs-Appellants,

v.

STEVEN and DAWN BRASSLETT,

RALPH and CHERYL CALIRI,

MARION MACKINNON, and

WILLIAM AND LOIS MAGUIRE,

Defendants-Respondents,

_____________________________

Argued February 23, 2021 – Decided March 16, 2021

Before Judges Yannotti and Natali.

On appeal from the Superior Court of New Jersey, 

Chancery Division, Cape May County, Docket No. C000005-12.

NOT FOR PUBLICATION WITHOUT THE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.
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A-1627-19

Steven E. Angstreich argued the cause for appellants 

(Weir & Partners LLP, attorneys; Steven E. Angstreich 

and Peter Nakonechni, on the briefs).

Kathleen Barnett Einhorn argued the cause for 

respondents (Genova Burns LLC, attorneys; Angelo J. 

Genova and Kathleen Barnett Einhorn, of counsel and 

on the brief; Michael C. McQueeny on the brief).

PER CURIAM

This appeal returns to us following a remand ordered by our previous 

opinion, Mirmanesh v. Brasslett, No. A-5680-16 (App. Div. May 9, 2019), 

where we directed the trial court to make additional findings as to whether 

plaintiffs were entitled to recover the attorneys' fees incurred by the law firm of 

Greenbaum, Rowe, Smith & Davis (Greenbaum). Having reviewed and 

considered the trial court's December 3, 2019 opinion, we affirm. 

I. 

We incorporate by reference the factual and procedural history as set forth 

in our prior opinion. By way of brief overview, the Waterview Estates 

Condominium Association (Association) is a non-profit corporation which 

operates a five-unit condominium complex in Ocean City. On January 18, 2012, 

plaintiffs filed a complaint against defendants, all unit owners, and members of 

the Association, seeking to enforce a May 15, 2006 settlement agreement. 
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Following a bench trial, the court issued a November 6, 2013 oral decision

finding both parties violated provisions of the settlement agreement. The judge 

also denied both parties' requests for counsel fees and indemnification because 

"each side . . . contributed to the conflagration of the issues," and there was "a 

little bit of bad faith on each side." The court memorialized its decision in a 

January 6, 2014 order (Final Judgment) which also appointed Michael A. Fusco 

(Receiver) as receiver for the Association. Plaintiffs filed an appeal after their 

motion for reconsideration was denied. 

On August 18, 2014, while plaintiffs' appeal was pending, the trial court 

entered an order in response to the Receiver's motion which granted him 

authority to amend the Master Deed and By-Laws. Plaintiffs amended their 

notice of appeal to include the August 18, 2014 order. On June 23, 2015, we 

vacated the August 18, 2014 order and remanded the matter for further 

proceedings after we determined the court erred in refusing to enforce certain 

provisions of the settlement agreement. 

Plaintiffs filed a motion for attorneys' fees and costs incurred during their 

appeal. We granted plaintiffs' application and awarded $72,557.22 in counsel 

fees to be paid by the Association. 
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On remand, plaintiffs moved to terminate the Receiver's appointment 

claiming he had a "predisposition to advance the interests of the defendants at 

the expense of the plaintiffs." Plaintiffs also sought an order directing the 

Association to adopt and record an amended Master Deed and By-Laws that 

plaintiffs alleged comported with our June 23, 2015 decision. Plaintiffs further 

requested relief from certain provisions of the January 6, 2014 and August 18, 

2014 orders. 

On December 28, 2015, the Receiver submitted a report for the "[c]ourt's 

consideration [regarding] the pending motions" which detailed his interactions 

with the parties. In that letter, the Receiver stated, "it was obvious . . . that Dr. 

Mirmanesh1 would continue to legally challenge virtually any proposed new 

document not to his liking irrespective of what the majority of the owners would 

elect." The Receiver further noted that in dealing with Dr. Mirmanesh he 

learned that "unless what is proposed is agreeable to Dr. Mirmanesh, he will 

either ignore the proposal or legally challenge the same" and that compromise 

"is not a word Dr. Mirmanesh embraces." 

1 The Receiver referred to plaintiff S. Jay Mirmanesh by his professional 

designation and we do the same for purposes of clarity. 
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On August 31, 2016, the trial court granted plaintiffs' motion, terminated 

the Receiver's appointment, and entered an order approving the amended Master 

Deed and By-Laws. On November 30, 2016, plaintiffs submitted an amended 

supplemental complaint against the Receiver and a motion for $303,066.79 in 

attorneys' fees and costs. Plaintiffs' request included $152,777.79 in fees 

incurred by the firm of Perskie, Mairone, Brog & Baylinson (Perskie), which 

represented plaintiffs during the trial proceedings from January 2012 to January 

2014, and $150,289 in fees incurred by Greenbaum, which was retained in May 

2014 and represented plaintiffs in the post-trial matters until January 2017. 

On May 19, 2017, the court denied plaintiffs' request for attorneys' fees. 

In support of its decision, the court relied upon the previous judge's

determination that both parties acted in bad faith. The court also concluded that 

an award of attorneys' fees would effectively overturn the previous judge's

factual and legal conclusions. The court further noted that plaintiffs failed to 

appeal the portion of the Final Judgment denying the award of attorneys' fees 

and therefore waived any challenge to the court's decision on that issue. In 

addition, the judge determined that plaintiffs' claims were barred by res judicata.
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Plaintiffs appealed, and in our May 9, 2019 unpublished decision, we 

affirmed in part and reversed in part the court's denial of attorneys' fees. Id. at 

7-8. We first addressed the Perskie fees and concluded that:

The [trial] court did not abuse its discretion in denying 

plaintiffs' motion, as the court's January 6, 2014 

decision denying those fees was amply supported by the 

record, and plaintiffs waived any request for those fees 

as a result of their failure to raise that issue when it 

appealed the court's January 6, 2014 order. 

[Id. at 6.]

With respect to the Greenbaum fees, however, we concluded that we were

"unable to make a substantive determination as to whether plaintiffs may recover 

the Greenbaum fees, as the trial court failed to make the necessary factual 

findings with respect to that portion of plaintiffs' application." Id. at 7. We

stated that:

[T]he [trial] court's May 19, 2017 decision detailed 

three bases for denying plaintiffs' fee request: 1) the 

trial court found that the parties acted in bad faith; 2) 

plaintiffs failed to challenge the denial of the attorney's 

fees in its appeal from the January 6, 2014 order; and 

3) the doctrine of res judicata barred plaintiffs' claims 

for attorney's fees. 

With respect to the first basis, the trial court's bad faith 

finding related only to the parties' conduct leading to 

the January 6, 2014 final judgment. The fees incurred 

by Greenbaum, however, are unrelated to those 

proceedings. Further, plaintiffs did not waive the right 
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to seek recovery of the post-remand Greenbaum fees, 

as they were not yet incurred and could not be subject 

of the January 6, 2014 order. For similar reasons, 

neither res judicata, nor the law of the case doctrine 

barred those fees. 

[Id. at 7-8.]

We also concluded that "because none of the court's factual and legal 

conclusions supporting its denial of the Perskie fees apply to the Greenbaum 

fees, we are unable to conclude, on this record, if there is a legal and factual 

basis to award plaintiffs these fees, and if they are reasonable." Id. at 8.

Accordingly, we remanded the matter for the trial court to make factual findings, 

consistent with Rule 1:7-4. Ibid.

On remand, plaintiffs argued that they were entitled to the Greenbaum 

fees under the New Jersey Nonprofit Corporations Act, N.J.S.A. 15A:3-4 and

under section 9.02 of the Association By-Laws, which provides: 

Indemnification. Each Trustee, officer or committee 

member of the Association, shall be indemnified by the 

Association against the actual amount of net loss 

including counsel fees, reasonably incurred or imposed 

upon him in connection with any action, suit or 

proceeding to which he may be a party by reason of his 

being or having been a Trustee, officer, or committee 

member of the association, except as to matters for 

which he shall be ultimately found in such action to be 

liable for gross negligence or willful misconduct. 
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On December 3, 2019, Judge Michael J. Blee issued an order and a written 

decision denying plaintiffs' application for the Greenbaum fees, concluding that 

plaintiffs were not entitled to those expenses because they acted in bad faith. In 

support of his finding, Judge Blee "consider[ed] the entirety of the litigation and 

[did] not simply consider a small segment of the litigation in which it could be 

argued plaintiffs were a prevailing party." 

Judge Blee found that a majority of the work associated with the 

Greenbaum fees dealt with "issues" pertaining to the Receiver. The judge 

adopted the Receiver's observations in his December 28, 2015 letter and 

specifically referenced the Receiver's statement that "compromise is not a word 

that Dr. Mirmanesh 'embraces'" and that he would "legally challenge virtually 

any proposed new document not to his liking, irrespective of what the majority 

of owners would elect." 

Judge Blee specifically rejected plaintiffs' argument that the Greenbaum 

fees were recoverable under Section 9.02 of the Association Bylaws. In support

of that determination, Judge Blee referenced ten findings from the Final 

Judgment where the court determined that plaintiffs acted "wrongfully and 

willfully." These findings included multiple violations of the condominium 

documents. 
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The judge also concluded that indemnification under Section 9.02 would 

be contrary to public policy. Relying on Cohen v. Southbridge Park, Inc., 369 

N.J. Super. 156, 160-61 (App. Div. 2004), the judge explained that 

indemnification provisions are intended:

[T]o promote the desirable end that corporate officials 

will resist what they consider unjustified suits and 

claims, secure in the knowledge that the reasonable 

expenses will be borne by the corporation they have 

served if they are vindicated . . . to encourage capable 

men to serve as corporate directors, secure in the 

knowledge that expenses incurred by them in upholding 

their honesty and integrity as directors will be borne by 

the corporation they serve. 

Judge Blee determined that plaintiffs' application of Section 9.02 did not 

serve the "purpose underlying indemnification." The judge also found that 

plaintiffs, in part, brought the action in their individual capacity rather than in 

the capacity of a "trustee, office, or member of the Association" which was 

contrary to the provisions of Section 9.02. 

The judge further emphasized plaintiffs' bad faith conduct during the time 

they were represented by Greenbaum. The judge again relied on the Receiver's 

comment that: 

What the Receiver has learned in the two years of 

Receivership is Dr. Mirmanesh believes in majority 

rule or compliance with the Receiver's instructions and 

decisions, so long as he agrees with them. If he does 
10 A-1627-19

not and they do not fit his agenda, they do not apply to 

him. So, he either ignores them or claims he is 'bullied'

by their existence.

Finally, the judge found that Section 9.02 was supposed to be used as "a 

shield for unit owners from costs attendant to their mandatory duties as members 

of the Board of Trustees and not a sword with which one unit owner can use to 

threaten or coerce another." In light of his decision that plaintiffs were not 

entitled to fees because they acted in bad faith, the court did not address whether 

plaintiffs were a prevailing party or whether the Greenbaum fees were 

reasonable. This appeal followed. 

On appeal, plaintiffs contend in their first point that the trial court erred 

by considering the findings in the Final Judgment and the Receiver's comments 

regarding the plaintiffs' bad faith as they did not address the period covered by 

the Greenbaum fees. Plaintiffs also maintain that Judge Blee was prohibited 

from considering the Receiver's comments pursuant to N.J.S.A. 15A:3-4(h). 

Plaintiffs argue in their second point that the trial court erred by finding 

that granting plaintiffs' request for indemnification under Section 9.02 would be 

contrary to public policy. Specifically, plaintiffs assert that both Section 9.02 

and Section 16 of the Association's Master Deed entitled them to 

indemnification. 
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In plaintiffs third point, they claim that the trial court erred in failing to 

consider whether plaintiffs were a prevailing party and that the Greenbaum fees 

were reasonable. We disagree with all of these arguments and affirm 

substantially for the reasons expressed by Judge Blee in his December 3, 2019 

written decision. 

II. 

"Although New Jersey generally disfavors the shifting of attorneys' fees, 

a prevailing party can recover those fees if they are expressly provided for by 

statute, court rule, or contract." Packard-Bamberger & Co. v. Collier, 167 N.J. 

427, 440 (2001). Rule 4:42-9 allows awards of attorneys' fees in specific 

situations, including "[i]n all cases where attorney's fees are permitted by 

statute." R. 4:42-9(a)(8); see also Pressler & Verniero, Current N.J. Court Rules, 

cmt. 2.10 on R. 4:42-9 (noting that "[a]ttorney's fees may be allowed where the 

parties have agreed thereto in advance by . . . agreement or contract"). 

In awarding attorneys' fees, a court should properly consider "[b]ad faith 

and assertion of an unreasonable position." Diehl v. Diehl, 389 N.J. Super. 443, 

455 (App. Div. 2006). Our review of an award of attorneys' fees award is 

deferential, Packard-Bamberger & Co., 167 N.J. at 444, and "fee determinations 

by trial courts will be disturbed only on the rarest occasions, and then only 
12 A-1627-19

because of a clear abuse of discretion." Rendine v. Pantzer, 141 N.J. 292, 317 

(1995). 

Here, Judge Blee conducted an extensive review of the proceedings before 

the trial court and determined that plaintiffs acted in bad faith throughout the 

litigation, including the period when they were represented by Greenbaum. 

Judge Blee was permitted, after undertaking a thorough and independent review 

of the record, to rely upon the comments by the Receiver which indicated 

plaintiffs were unwilling to compromise and refused to negotiate in good faith,

and we reject plaintiffs' contention that N.J.S.A. 15A:3-4(h)2 prohibited the 

judge from relying on the Receiver's report. Nothing in that statute supports 

plaintiffs' contention that Judge Blee was precluded from relying on the record 

from the earlier phases of litigation in concluding that plaintiffs acted in bad 

2

 N.J.S.A. 15A:3-4(h) provides that "[t]he indemnification and advancement of 

expenses provided by or granted pursuant to the other subsections of this section 

shall not exclude any other rights to which a corporate agent may be entitled 

under a certificate of incorporation, bylaw, agreement, or otherwise; provided 

that no indemnification shall be made to or on behalf of a corporate agent if a 

judgment or other final adjudication adverse to the corporate agent establishes 

that his acts or omissions (1) were in breach of his duty of loyalty to the 

corporation or its members, (2) were not in good faith or involved a knowing 

violation of law, or (3) resulted in receipt by the corporate agent of an improper 

personal benefit."
13 A-1627-19

faith to inform his consideration of plaintiffs' actions during the period they were 

represented by Greenbaum. 

Second, contrary to plaintiffs' assertion, the Receiver's comments discuss 

the period covered by the Greenbaum fees. Plaintiffs retained Greenbaum for 

the post-trial matters in May 2014. Notably, the Receiver was appointed in the 

January 6, 2014 Final Judgment and the comments relied upon by Judge Blee 

regarded interactions stemming from July 2014. Accordingly, plaintiffs'

conduct that the Receiver describes in his December 28, 2015 correspondence 

occurred during the time they were represented by Greenbaum.3 

Third, Judge Blee properly determined Section 9.02 did not indemnify 

plaintiffs for their bad faith conduct. The judge found that Section 9.02 was 

meant to be used as a shield instead of a sword "with which one unit owner can 

use to threat or coerce another." Judge Blee also noted that the Final Judgment 

included ten instances of wrongful and willful conduct which precluded 

plaintiffs from indemnification under the terms of Section 9.02. Moreover, the 

court noted that plaintiffs did not bring this action entirely in their capacity as 

3 We note that the Receiver's letter was not available for this court to review 

when we awarded plaintiffs $72,557.22 in attorneys' fees on July 27, 2015.
14 A-1627-19

"trustee, officer, or committee member of the Association." We conclude that 

there is sufficient credible evidence in the record to support this finding. 

Plaintiffs also assert that Section 16 of the Association Master Deed 

entitles them to indemnification. Similar to Section 9.02, this provision permits 

indemnification of a board member unless they are "adjudged guilty of willful 

misfeasance or malfeasance and/or gross negligence." After a review of that 

provision against the record before us, we conclude, like Section 9.02, Section 

16 does not indemnify plaintiffs for their bad faith and wrongful and willful 

conduct. Finally, because the judge concluded plaintiffs were not entitled to 

attorneys' fees, we need not address if plaintiffs were a prevailing party or if the 

Greenbaum fees were reasonable. 

Accordingly, we discern no abuse of discretion in the judge's denial of 

plaintiffs' request for attorneys' fees and costs as the court's finding that 

plaintiffs acted in bad faith and contrary to the terms of the By-Laws and Master 

Deed, was supported by substantial credible evidence in the record. PackardBamberger & Co., 167 N.J. at 444; Diehl, 389 N.J. Super. at 455. To the extent 

not addressed, plaintiffs' remaining arguments lack sufficient merit to warrant 

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

Affirmed.