NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A- 0918

- 22 J.P. ELECTRIC, INC., properly identified as JUAN PEREZ ELECTRIC CO., Plaintiff-Respondent, and JUAN PEREZ, Plaintiff/Third-Party Defend an t-Respondent,

v. LPMG CONSTRUCTION MANAGEMENT, LLC , Defendant/Third-Party Plaintiff-Appellant, and 1 NORTH BOSTON, LLC, and DAVID NOVOTNY , Defendants,

a nd DAVID PRATTS, Defendant/Third-Party APPROVED FOR PUBLICATION November 2 , 2023 APPELLATE DIVISIONA- 0918

- 22 2 Defendant.

______ _______________________

Submitted October 23, 2023

– Decided November 2, 2023 Before Judges Sabatino, Mawla and Vinci. On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Docket No. L- 0219

- 18

. Brian E. O'Neill (Elliott Greenleaf, PC), attorney for appellant. Respondents have not filed a brief. The opinion of the court was delivered by SABATINO, P.J.A.D. This appeal involves a straightforward application of the terms of the Offer of Judgment provisions in Rule 4:5 8-1 to -6. Defendant LPMG Construction Management, LLC ("LPMG"), appeals from the court's post-trial denial of its application for an award of counsel f ees and costs pursuant to Rule 4:58

- 6. In February 2018, plaintiff J.P. Electric, Inc. fil ed a complaint against LPMG (and other defendants that were dismissed from the action). Before trial, LPMG served upon plaintiff in March 2022 an offer of judgment under Rule 4:58 -1 "to allow judgment to be entered against it and in favor of [p]laintiff for damages in the amount of $5,000 . . . to resolve all of [p]laintiff'sA- 0918

- 22 3 claims in this action of any kind, including all cl aims for damages of any kind, actual or otherwise . . . ." Plaintiff rejected th e offer. The trial court held a two-day bench trial. At the close of plaintiff's evidence, the court granted LPMG's motion for invol untary dismissal pursuant
to Rule 4:37 -2(b). Thereafter, LPMG moved for over $50,000 in attorney's fees and costs pursuant to Rule 4:58

- 6. The trial court denied defendant's application for fees. In its written decision of October 28, 2022, the court explained t hat "a dismissal pursuant to R[ ule ] 4:37 -2(b) precludes an award of attorney's fees as it i s a dismissal. The court finds R[ ule ] 4:58 -3(c) does not provide for any allowances for fees when 'the claimant's claim is dismissed.'" On appeal, LPMG argues the trial court misapplied t he pertinent Rules , stressing that an involuntary dismissal under Rule 4:37 -2(b) represents an adjudication on the merits of the case. The trial court correctly and sensibly applied the pertinent Rules. "[W] e review the meaning or scope of a court rule de novo , apply ing 'ordinary principles of statutory construction to interpret t he court rules ." DiFiore v. Pezic, 254 N.J. 212, 228 (2023) (quoting State v. R obinson, 229 N.J. 44, 67 (2017)). Although Rule 4:58 -3(a) authorizes an offeror to recover fees "[i]f t heA- 0918

- 22 4 offer of a party other than the claimant is not acc epted, and the claimant obtains a judgment . . . that is favorable to the o fferor as defined by this rule," that authorization does not apply when "the claiman t's claim is dismissed," see Rule 4:58 -3(c)(1), or "a no-cause verdict is returned," see Rule 4:58 -3(c)(2). Because a successful motion under Rule 4:37 -2(b) results in the "dismissal of the action" as "the plaintiff has sho wn no right to relief[,]" no verdict was returned so the trial court's denial of fees was manifestly correc t. The policy reasons underlying the zero-recovery exc eptions to Rule 4:58 -3(c) would be undermined if such fee-shifting were permi tted. See Schettino v. Roizman Dev., Inc., 158 N.J. 476, 486 (1999) (notin g that the preclusion of fee-shifting under the Rule in instances when a pla intiff does not prevail "prevent[s] the transformation of the offer- of -judgment rule into a general feeshifting rule"). Affirmed. Lest there be any doubt, a mid-trial inv oluntary dismissal does not entitle a defendant offeror to fee-shiftin g under the Rule.