SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5821-17T1

TWIN CITIES MANAGEMENT,

LLC,

Plaintiff-Appellant/

Cross-Respondent,

v.

ABID IGBAL and IGGY

MANAGEMENT, LLC,

Defendants-Respondents/

Cross-Appellants.

____________________________

Argued March 2, 2020 – Decided April 23, 2020

Before Judges Fasciale and Rothstadt.

On appeal from the Superior Court of New Jersey, 

Law Division, Camden County, Docket No. L-4316-

15.

William C. Mac Millan argued the cause for 

appellant/cross-respondent (Law Offices of Igor 

Sturm, attorneys; William C. Mac Millan, on the 

briefs).

NOT FOR PUBLICATION WITHOUT THE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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Michael James Confusione argued the cause for 

respondents/cross-appellants (Hegge & Confusione, 

LLC, attorneys; Michael James Confusione, of 

counsel and on the brief).

PER CURIAM 

Plaintiff Twin Cities Management, LLC (Twin Cities), appeals from a 

March 27, 2018 judgment entered after a jury found in favor of defendant Abid 

Iqbal (Iqbal); and two orders dated July 20, 2018, denying plaintiff's motions 

for a new trial and reimbursement of counsel fees under Rule 4:5-1(b)(2), for 

Iqbal's and defendant's Iggy Management, LLC (Iggy), failure to disclose a 

related litigation in New York. Defendants cross-appeal from that part of the 

judgment stating that defendants had no ownership interest in Twin Cities. We 

affirm but remand on the fee issue. 

Brothers Ashish and Amish Parikh (collectively the Parikhs) and Iqbal dispute 

ownership of Twin Cities. The Parikhs formed Twin Cities to acquire and 

operate Popeyes franchise restaurants in Minnesota. The parties' Memorandum 

of Understanding (MOU) addressed circumstances under which Iqbal could 

obtain an ownership interest in Twin Cities. After a breakdown in the parties' 

relationship, plaintiff sought a declaratory judgment that defendants had no 

ownership interest in Twin Cities or monies owed to them. Defendants filed 

counterclaims asserting an ownership interest in Twin Cities and claims for 
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monies owed as profit-sharing and wages. The jury found that: (1) Iqbal had 

no ownership interest in Twin Cities; and (2) plaintiff owed Iqbal $421,197, the 

amount Iqbal paid for an ownership interest in the company, plus $10,000 in 

unpaid salary. 

On appeal, plaintiff argues the verdict was against the weight of the evidence, 

the judge erred by denying its motion for a new trial, and the judge misapplied 

Rule 4:5-1(b)(2). On cross-appeal, defendants argue the judge erroneously 

charged the jury by stating Iqbal had the burden of proving oral modifications 

to the MOU by clear and convincing evidence, and that the judge committed 

plain error by not sua sponte awarding them pre-judgment interest. 

I.

The Parikhs have been in business together since 2006, owning and 

operating Popeyes franchise restaurants. They started their business using 

money loaned to them by their father, who had operated Dunkin Donuts 

franchises. As of 2011, they operated between eighty-five and ninety restaurants 

nationwide. 

Popeyes approved the Parikhs' franchise application after they satisfied its 

criteria for financial liquidity and operational experience. After obtaining 

approval, the Parikhs agreed to operate the restaurants in accordance with 
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Popeyes' standards, understanding that Popeyes would perform periodic audits 

to ensure compliance and that failing an audit could result in loss of franchise. 

Iqbal worked for the Parikh's father, who previously employed him as a Dunkin 

Donuts manager. Iqbal met with the Parikhs and discussed opportunities for 

working together.

In 2011, Popeyes planned to redevelop some Kentucky Fried Chicken 

restaurants in Minnesota, and it solicited proposals from top franchisees for this 

opportunity⸻referred to as the "Viking Project." The Parikhs submitted a 

business plan for the Viking Project, and on December 6, 2012, they created 

Twin Cities, through which they proposed to own and operate the Minnesota 

restaurants. Each of the restaurants would be its own separate company⸻owned 

by Twin Cities⸻of which the Parikhs were each fifty-percent owners. The 

Parikhs discussed the Viking Project with Iqbal and Iqbal's friend, Iftikhar Ali 

(referred to as Gilani), who also worked for the Parikhs' father. The Parikhs 

offered Iqbal and Gilani the opportunity to jointly operate the Minnesota 

franchises and become fifteen-percent owners of Twin Cities.

On January 15, 2013, the Parikhs and Iqbal entered into the MOU, which 

described the conditions under which Iqbal could obtain the fifteen-percent

ownership interest and be responsible for the day-to-day operations of the twelve 
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franchised Popeyes locations in Minnesota.1 The same day, the Parikhs and 

Gilani entered into the MOU with the same terms. The MOU explains the 

Parikhs' relationship with Popeyes and the costs that the Parikhs incurred on the 

Viking Project.

[The Parikh's] are approved franchisees of 

[Popeyes]. Popeyes is the owner of twelve (12) 

locations in the state of Minnesota, which are 

proposed to become "Franchised Restaurant 

Locations" . . . . Popeyes has offered to [the Parikhs] 

the privilege of becoming the operators of the 

Franchised Restaurant Locations under a lease and/or 

sublease for each location under certain terms and 

conditions which have been accepted by the Parikhs. 

The Parikhs have paid to [Popeyes] the sum of 

$750,000[], representing a $12,500[] development fee 

for each Franchised Restaurant Location, for a total of 

$150,000[] and a $50,000[] conversion deposit for 

each Franchised Restaurant Location which totals 

$600,000[] . . . . Thereafter, prior to the opening of 

each Franchised Restaurant Location, a remaining 

$125,000[] conversion fee and a $30,000[] franchise 

fee will be due and payable. 

[The Parikhs], for the purpose of this transaction 

. . . formed [Twin Cities] in which [the Parikhs] each 

hold a fifty percent (50%) membership interest. For 

each of the twelve (12) Franchised Restaurant 

Locations . . . the Parikhs and/or [Twin Cities] shall 

form Minnesota limited liability companies each to 

operate their [Popeyes restaurants] under a lease or 

sublease agreement with [Popeyes]. Each of the 

1

 Initially there were twelve restaurants in Minnesota. However, the number 

grew to fourteen.
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twelve (12) specific entities shall be a franchisee for 

that location under a franchise agreement with 

[Popeyes]. [Twin Cities] shall be the sole member of 

each specifically formed limited liability company for 

a Franchised Restaurant Location. 

Thereafter, the MOU set forth Iqbal's relationship with the Parikhs and the 

Viking Project.

Iqbal has requested of the Parikhs the 

opportunity to become co-owner and co-operator of 

the Popeyes restaurant at each of the Franchised 

Restaurant Locations. The Parikhs and [Twin Cities] 

recognize the need for trusted and efficient 

management for each of the Popeyes locations in the 

State of Minnesota. The parties recognize that . . . 

Iqbal is not currently an approved franchisee of 

[Popeyes]. It is the joint desire by the Parikhs and by 

Iqbal to seek the approval of Iqbal as a franchisee of 

[Popeyes] for the benefit of the Franchised Restaurant 

Locations. By reason of Iqbal's experience and 

business know how, the Parikhs have agreed to admit 

Iqbal as a member in [Twin Cities] provided only if 

Iqbal is approved as a franchisee, with his admission 

only taking place after being approved by the 

franchisor. 

Iqbal has requested of the Parikhs the 

opportunity to acquire a fifteen[-]percent (15%) 

membership interest in [Twin Cities] and to be 

admitted as a member, and further has agreed to be the 

day to day co-operator of the contemplated Popeyes 

restaurants at the Franchised Restaurant Locations, 

and [the] Parikhs have agreed to accept the offer of 

Iqbal, under the specific terms and conditions 

contained in this MOU.
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The MOU expressed that all of the recitals under "Background" were the 

MOU's conditions and provisions. And the MOU set forth Iqbal's financial 

obligations, and the consequences of him becoming, or not becoming, an 

approved franchisee.

2. Iqbal shall tender to [Twin Cities] the sum of 

$112,500[] representing fifteen percent (15%) of the 

amount heretofore paid to [Popeyes] under the above 

scenario.

3. At a time prior to the opening of each 

Franchised Restaurant Location, Iqbal shall tender to 

[Twin Cities] the sum of $27,000[] representing 

fifteen percent (15%) of the expenditure for the 

$125,000[] conversion fee, the $30,000[] franchise 

fee, and a $25,000[] anticipated expenditure for a 

SICOM Register System required for each Franchised

Restaurant Location. 

4. The tenders by Iqbal shall be retained by [Twin 

Cities] in escrow until Iqbal is approved by [Popeyes] 

as a franchisee for each or all of the Franchise 

Restaurant Locations. Should Iqbal not be approved 

as a franchisee by [Popeyes], then in that event, the 

tenders made by Iqbal shall be refunded to Iqbal 

without interest, and the understanding between them 

shall terminate and shall become of no legal effect. 

5. Upon approval of Iqbal as a franchisee of 

[Popeyes] the Operating Agreement of [Twin Cities] 

shall be amended to reflect the interests of the 

admitted member. 

. . . . 
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7. The Parikhs and Iqbal specifically agree that if 

[Popeyes] does not approve Iqbal as a franchisee prior 

to the opening for business of the first Franchised 

Restaurant Location, then, in that event the Parikhs or 

Iqbal shall have the right to terminate this MOU, or in 

the alternative, continue with the understanding set 

forth herein until such time as Iqbal is approved as a 

franchisee. However, Iqbal shall not receive any 

ownership interest in [Twin Cities] until such time as 

he is approved as a franchisee by [Popeyes]. 

In the event the franchisor [Popeyes] declines to 

approve Iqbal as a franchisee, then upon such 

declination the sums tendered by Iqbal shall be 

refunded to Iqbal, without interest, and this 

Understanding shall terminate, and become null and 

void and of no further legal effect. 

8. The parties to this Agreement recognize that the 

agreement to admit Iqbal as a member is for the 

purpose of being a hands-on operating member 

together with Gilani . . . of the twelve (12) Franchised 

Restaurant Location. Iqbal covenants and agrees that 

as a member of [Twin Cities] he will devote his full 

time as to the operation of each of the Franchised 

Restaurant Locations for the benefit of [Twin Cities] 

o[n] a day to day basis. Iqbal further recognizes the 

importance of [Twin Cities] to be and to remain in 

good standing with the franchisor [Popeyes], without 

the privileges granted to [Twin Cities] interrupted, 

jeopardized or terminated, and he shall fulfill his 

operational duties conscientiously and in good faith. 

[9.] This [MOU] shall be interpreted and enforced 

under the laws of the State of New Jersey and may 

only be amended or modified in writing and signed by 

all the parties. 
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Thus, under the MOUs' terms, Iqbal and Gilani would operate the 

Minnesota restaurants and become fifteen-percent owners of the franchises, and 

they would need to pay the Parikhs: $112,500 plus $27,000 per restaurant 

($324,000 for twelve restaurants), totaling $436,500. 

Three days after executing the MOUs, on January 18, 2013, the Parikhs 

signed a franchise agreement with Popeyes for a Minnesota restaurant. Pertinent 

to the present case, the agreement required the franchisor's consent for any 

transfer of ownership by the franchisee, and it stated that the agreement would 

be terminated if any transfer occurred without the franchisor's consent. The 

following month, in February 2013, the Parikhs entered into another agreement 

with Popeyes, setting forth the Parikhs' financial obligations as to each of the 

twelve Minnesota restaurants, with the Parikhs' costs corresponding to the 

percentage costs charged to Iqbal and Gilani under their MOUs.

At trial, Iqbal testified that his agreement with the Parikhs differed from 

the terms of the written MOU. For example, he testified that his understanding 

was that he became a part owner of Twin Cities when he executed the MOU. 

He stated that he was treated as an owner in terms of signing paperwork on 

behalf of the business and receiving distributions of profits⸻ which he used to 

pay the amounts owed under the MOU on a schedule that was different than the 
10 A-5821-17T1

MOU's schedule. Also, he was issued K-1 tax forms, which indicated that he 

was an owner. Iqbal further testified that, notwithstanding the MOU's language, 

he did not need to become an approved Popeyes franchisee to be a part owner 

of Twin Cities. He also said that the Parikhs prevented him from becoming an 

approved franchisee because they refused to submit the necessary paperwork 

until he paid the entire capital contribution. 

At trial, plaintiff took the position that the parties' relationship was 

governed by the MOU's terms. As to profit-sharing, the Parikhs admitted that, 

from the beginning, they paid Iqbal fifteen percent of the Minnesota restaurants' 

profits as a measure of good faith and in recognition of his moving from New 

York to Minnesota. Moreover, they admitted that Iqbal was permitted to use the 

profits for his required capital contributions because he did not have sufficient 

funds to pay the amounts set forth in the MOU at the times the MOU mandated. 

However, the Parikhs maintained that they shared profits with numerous 

employees, either as an incentive for good work or in recognition for good 

performance, and that they gave K-1s to everyone with whom they shared 

profits. At his deposition, Ashish Parikh acknowledged that Iqbal should not 

have received a K-1.
11 A-5821-17T1

As to becoming an approved franchisee, plaintiff maintained that it was 

Iqbal's responsibility to become an approved Popeyes franchisee, as set forth in 

the MOU. The Parikhs claimed they reached out to Popeyes to advise the 

company that Iqbal and Gilani wanted to become franchisees, and Popeyes 

advised Iqbal and Gilani that they needed to complete applications. However, 

the Parikhs had no involvement in the applications, and Iqbal never became an 

approved franchisee. By contrast, Gilani became an approved franchisee in July 

2013, after which he became a fifteen-percent owner of Twin Cities, because he 

additionally paid his share of capital contributions.

After the MOUs' executions, Iqbal and Gilani were trained in Popeyes 

restaurant operations, as were Iqbal's sons and the Parikhs' relative, Sahill 

Parikh. Thereafter, these individuals moved to Minnesota and worked to open 

and manage the Minnesota restaurants. Over time, the Parikhs came to believe 

Iqbal was not doing a good job managing the restaurants. The restaurants had 

increasing costs, decreasing revenue, and missing deposits. Iqbal expressed 

dissatisfaction with the Popeyes brand, and the Parikhs believed Iqbal was 

spending most of his time in New York and leaving the restaurants' management 

to others. Popeyes also expressed concern about the Minnesota operations due 

to failed audits, and it threatened to close one of the restaurants. 
12 A-5821-17T1

One of the audits revealed underreporting of sales, which resulted in an 

underpayment of royalties, and as a result, the Parikhs had to pay Popeyes 

$49,297. In addition, in 2013, the Parikhs learned that the Minnesota 

Department of Labor was addressing complaints by restaurant employees. In 

2014, they received notice of a class action lawsuit filed with respect to alleged 

labor law violations at one of the Minnesota restaurants, which resulted in costly 

legal fees and settlement funds. Iqbal denied the restaurants' poor management. 

He testified that he worked long hours, and he denied responsibility for the 

declining profits, failed audits, and labor litigation, and instead blamed 

others⸻including Gilani, Sahill Parikh, Popeyes' suppliers, and Popeyes—for 

problems with the restaurant renovations and the Parikhs' accounting errors. 

In July 2015, the Parikhs met with Iqbal and discussed his leaving the 

business amicably, with a payout of any monies owed to him. Iqbal also wanted 

out of the business at that time. However, he was unsatisfied with the Parikhs' 

accounting of what he was owed, and he threatened a lawsuit. The Parikhs 

claimed they terminated the business relationship with Iqbal on the date of that 

meeting. But Iqbal asserted he continued to work in the restaurants until midFebruary 2016. At trial, the parties agreed that Iqbal was entitled to payment of 

a certain amount of money⸻but they disagreed about the amount.
13 A-5821-17T1

Iqbal claimed entitlement to a greater amount of profit distributions from 

plaintiff than he had been allocated, although the amount he claimed he was 

owed is difficult to discern from his testimony.2 As to this issue, he maintained 

that the Parikhs inappropriately reduced the Minnesota restaurants' reported 

profits by wrongly charging for certain expenses, such as capital improvements, 

management fees, and back-office services. He also claimed his profit-sharing 

was understated because he was charged for money paid to another individual.3

Iqbal also claimed entitlement to unpaid wages. However, the amount is 

unclear from his testimony.4 It was undisputed that Iqbal received a salary in 

2013. But Iqbal pointed to a period between December 11, 2012 and mid-March 

2013, when he was in training but not paid. He also claimed he had been 

promised a salary of $80,000 or $100,000⸻it was undisputed that he was paid 

$60,000 per year. Iqbal also claimed he was not paid a salary between 2014 and 

2

 Defense counsel discussed calculations in his summation, claiming that out 

of $678,683 in profits, $84,793 was kept, leaving $593,890 paid over to the 

Parikhs.

3

 On plaintiff's motion for judgment at trial, the judge limited the damages on 

defendants' breach of contract claim to profits earned through December 31, 

2015.

4

 In summation, defense counsel interpreted Iqbal's testimony and provided 

the jury with calculations of back wages allegedly owed to Iqbal, based upon 

an $80,000 salary and a $100,000 salary.
14 A-5821-17T1

mid-February 2016⸻the time he stopped working at the Minnesota restaurants, 

but this was disputed. 

Specifically, by email dated December 29, 2013, Iqbal told the Parikhs to 

stop paying salaries to him and Gilani, and the Parikhs complied. Iqbal asserted 

that he was induced to stop taking a salary because he started working with the 

Parikhs on another project, involving Dunkin Donuts franchises, as to which he 

was assured a thirty-percent ownership interest. By contrast, the Parikhs 

suggested that Iqbal stopped taking a salary so he could receive compensation 

in other ways, with fewer taxes owed. 

First, the Parikhs noted that the non-payment of salaries to Iqbal and 

Gilani had the effect of increasing the businesses' profits, of which Iqbal 

received a percentage share without any W-2 deductions. Second, it was 

undisputed that, starting in 2014, notwithstanding his declining salary, Iqbal 

began receiving periodic payments from the businesses. The Parikhs 

characterized these payments as advances on future profit distributions. 

However, Iqbal characterized these payments as non-recourse loans in lieu of a 

salary, although he never reported these payments as income. Finally, testimony 

showed that Iqbal received non-salary through his business, defendant Iggy 

Management, LLC, which Iqbal formed on December 30, 2013. Thereafter, 
15 A-5821-17T1

Iqbal reduced the taxes he owed on these payments to Iggy Management, LLC, 

by taking deductions for business-related expenses and profit-sharing with his 

sons.

The Parikhs presented an accounting of monies allegedly paid to Iqbal and 

monies paid by him towards a potential ownership interest in Twin Cities. Based 

upon this accounting, they determined that plaintiff owed Iqbal $181,846. More 

specifically, the Parikhs claimed Iqbal had been paid or was entitled to $411,197 

in profit-sharing, which was applied to his capital contributions, including the 

initial $112,500 payment owed under the MOU.5 From that amount, the Parikhs

deducted $229,351 in distributions made to Iqbal in 2014 and 2015 and monies 

taken from sales, and reached an amount due of $181,846. Addressing the 

Parikhs' calculations, Iqbal agreed that $411,197 was applied to his capital 

contribution to plaintiff, but said it was money he had never received. He further 

claimed that he paid at least $700,000 toward the Twin Cities deal. 6

5

 Under the MOU, Iqbal needed to pay $112,500, plus $27,000 per restaurant 

($324,000 for twelve restaurants), totaling $436,500.

6

 In summation, defense counsel claimed Iqbal was entitled to $593,890 in 

profit-sharing paid over to the Parikhs, plus $42,853 in wages, totaling 

$782,943.
16 A-5821-17T1

II.

We begin by addressing plaintiff's argument that the jury's damages 

verdict was inconsistent, illogical, and against the weight of the evidence. 

Plaintiff contends that the jury miscalculated the amount of the damages it 

awarded to Iqbal. We conclude there is nothing inconsistent, illogical, or 

irreconcilable about the jury's calculations. 

A jury's verdict "is entitled to very considerable respect." Baxter v. 

Fairmont Food Co., 74 N.J. 588, 597 (1977). In considering whether a jury 

verdict, including a damages award, is against the weight of the evidence, we 

should not reverse unless we are clearly convinced, giving due regard to the 

jury's opportunity to assess the credibility of all evidence, that there has been a 

miscarriage of justice under the law. R. 2:10-1; Cuevas v. Wentworth Grp., 226 

N.J. 480, 501 (2016); Risko v. Thompson Muller Auto. Grp., Inc., 206 N.J. 506, 

521-22 (2011); Baxter, 74 N.J. at 597-98; Dolson v. Anastasia, 55 N.J. 2, 6-7 

(1969). The court should carefully weigh the evidence, but it should not 

substitute its judgment for that of the jury. Dolson, 55 N.J. at 6. The object of 

a reversal would be "to correct clear error or mistake by the jury." Ibid.

The jury answered several questions related to defendants' damages. As 

to Question One on the verdict sheet, the jury answered "yes" on whether Iqbal 
17 A-5821-17T1

paid the initial required payment of $112,500. Answering Question Two, the 

jury found that defendant paid $298,697 towards the additional required 

$324,000 payment of $27,000 for each of the twelve franchise restaurants. 

Answering Question Fourteen, the jury added these numerical responses and 

found that plaintiff owed Iqbal $411,197 pursuant to the MOU. As to Question 

Three, the jury concluded that the MOU had been orally modified to permit 

defendants to pay any remaining money out of his share of profits. Thereafter, 

answering Question Nine, the jury found that Iqbal was entitled to receive 

$334,889 in profit-sharing. Answering Question Eleven, the jury found that 

$234,282 of the profit-sharing was applied as a credit owed under the MOU. 

And answering Question Ten, the jury found that $100,607 of the profit-sharing 

was not applied as a credit owed under the MOU. On Questions Twelve and 

Thirteen, the jury found that Iqbal never received any withdrawals or advances 

against profit-sharing, nor did he receive any loans from plaintiff. Finally, 

answering Question Eighteen, the jury concluded that defendants had not been 

paid the $10,000 in salary that was owed. 

Thus, when the jury awarded defendants $411,197 in damages pursuant to 

the MOU, it reached that amount by adding the $112,500 initial payment Iqbal 

made (Question One), plus $298,697 Iqbal paid toward the $27,000 per 
18 A-5821-17T1

restaurant that he was obligated to pay (Question Two). The $411,197 damage 

award also corresponds to a figure set forth on one of plaintiff's trial exhibits, in 

which plaintiff calculated the amount it allegedly owed to defendants. 

Specifically, the jury added: (1) Contributions made and 2013 profit 

distributions ($258,522), plus (2) share of profit entitlement for 2014 

($122,260), plus (3) share of profit entitlement for the period of January 1, 2015 

through July 13, 2015 ($30,415), totaling $411,197. Finally, this damages 

award also corresponded to the testimonies of Ashish Parikh and Iqbal, with 

both men agreeing that Iqbal contributed at least this amount toward his 

financial obligation under the MOU.

In denying plaintiff's motion for a new trial, the judge found that the 

verdict "fell within a reasonable range which a jury could have reached based 

upon the evidence by both sides in this case," and it did not shock the conscience. 

The judge found the $411,197 damages award consistent with the total amount 

the jury found that Iqbal contributed towards an ownership interest in Twin 

Cities ($112,500 plus $298,697). As for the award of $10,000 in wages, the 

judge found that it most likely related to the period in early 2013, when Iqbal 

testified that he was not being paid. Finally, as for the other jury calculations 

on the verdict sheet, the judge noted that the evidence as to payments made or 
19 A-5821-17T1

withheld from Iqbal was hotly contested relating to amount and purpose (e.g., 

profit-sharing, wages, or non-recourse loans), and neither side presented strong 

evidence on that issue. Thus, the jury made its own calculations, both accepting 

and rejecting testimony presented by each side, which it was entitled to do. 

The evidence supports the jury's calculation of damages. At trial, the 

parties agreed that Iqbal made at least $411,197 in capital contributions. 

Plaintiff argued that this amount should be reduced to account for monies Iqbal 

owed, while Iqbal argued he was entitled to more, based upon plaintiff's alleged 

failure to properly account for profits and losses, and thus its failure to pay him 

his fair share of profits and all wages owed. However, the jury was entitled to 

reject the parties' calculations and resolve the damages amount based upon the 

amount the parties agreed upon for capital contributions and to reach its own 

calculation of lost wages. See, e.g., State v. Muhammad, 182 N.J. 551, 577 

(2005) (stating that the jury is not bound to believe testimony of any witness). 

The jury also reasonably found that plaintiff owed Iqbal $10,000 in back pay. 

The parties agreed that Iqbal was not paid until March 2013, although Iqbal

claimed entitlement to wages back to December 2012. The parties also disputed 

whether Iqbal was compensated for his work in 2014 and thereafter. As the 
20 A-5821-17T1

judge found, the $10,000 figure corresponds closely with what Iqbal alleged 

plaintiff owed him for his work in 2013.

III.

Plaintiff argues that a new trial on damages is warranted because 

defendants' counsel made improper remarks throughout the trial. 7 Plaintiff did 

not object to all of the comments raised on appeal, particularly those comments 

that defendants' counsel made in summation. We see no error that warrants the 

judgment's reversal.

Plaintiff complains that on cross-examination, defense counsel referred to 

Ashish Parikh as a "very wealthy man." Its counsel immediately objected to this 

comment, and the judge sustained the objection and advised the jury to 

"disregard the comments of counsel." We have no reason to believe that the jury 

did not follow that instruction. 

Plaintiff complains that, in a move orchestrated by defense counsel, Iqbal 

falsely testified that the Parikhs had criminal records. Its counsel immediately 

objected to this testimony and moved for a mistrial. The judge denied the motion 

7

 We address the comments about which plaintiff complains in its initial 

appellate brief. It raised additional comments in its reply brief, however, it is 

inappropriate to raise new issues in a reply brief. Borough of Berlin v. 

Remington & Vernick Eng'rs, 337 N.J. Super. 590, 596 (App. Div. 2001). 
21 A-5821-17T1

but sustained the objection and issued a cautionary instruction to the jury, 

stating: "[T]here is absolutely no evidence in this case that any of the witnesses 

or parties have any criminal record[s]. And you are to disregard any testimony 

to the contrary in this case." The jury followed that instruction. 

The judge rejected plaintiff's contention that the comments, including 

those made by defendants' counsel in summation to which there was no 

objection, did not warrant a new trial. The judge stated:

Defense counsel here did on at least a couple of 

occasions go beyond the permissible bounds of 

argument, impermissibly expressing his personal 

belief. No objection was raised at the time this 

occurred, which would have allowed the [c]ourt to 

give an appropriate cautionary instruction at that time. 

The comments, which were relatively brief and 

fleeting, the [c]ourt notes, were extremely unlikely to 

have any prejudicial impact on the jury. 

More importantly, to ensure that there was no 

prejudicial effect, the [c]ourt emphasized in the jury 

charge the caution that the statements and comments 

of counsel were not evidence.

It's the [c]ourt's belief that this eliminated any 

potential prejudice as a result of the comments by 

defense counsel.

The [c]ourt also notes that there's nothing here 

about the verdict in this case which shocks the 

conscience.
22 A-5821-17T1

Rather, the verdict fell within a reasonable range 

which a jury could have reached based upon the 

evidence by both sides in this case. 

Counsel are expected to zealously advocate for their clients. At the same time, 

they may not misrepresent the evidence, and "it is improper for an attorney to 

make derisive statements about parties, their counsel, or their witnesses." 

Szczecina v. PV Holding Corp., 414 N.J. Super. 173, 178 (App. Div. 2010); 

accord RPC 3.4(e); Risko, 206 N.J. at 522-23; Geler v. Akawie, 358 N.J. Super. 

437, 463-64, 467 (App. Div. 2003); Rodd v. Raritan Radiologic Assocs., P.A.,

373 N.J. Super. 154, 171 (App. Div. 2004).

Here, the remarks that plaintiff complains of on appeal were either struck 

from the record upon plaintiff's counsel's objections or were not objected to by 

plaintiff's counsel at trial, indicating that counsel did not deem them prejudicial. 

Risko, 206 N.J. at 523. As to the comments in summation, the judge instructed 

the jurors that counsel's arguments were not evidence, and they must rely upon 

their own review of the record in reaching their verdict. The jury is presumed 

to have followed the judge's instructions. State v. Santamaria, 236 N.J. 390, 

412-13 (2019).
23 A-5821-17T1

IV.

Plaintiff argues that the judge erred by denying its post-trial motion for 

counsel fees and costs based upon Iqbal's failure to disclose related litigation in 

New York, as required under Rule 4:5-1(b)(2). Defendants' appellate counsel 

concedes that trial counsel should have reported the New York litigation, but 

argues that the judge did not abuse his discretion in declining to award counsel 

fees. On this issue, we reverse and remand for further proceedings consistent 

with this opinion. 

In the New York litigation, Iqbal sought the same relief he seeks in the 

present litigation, based upon the same set of facts. The named defendants in 

the New York litigation were Ashish Parikh, Amish Parikh, and Prabodh Parikh 

(the Parikhs' father), individually and as owners of the Parikh Network. Plaintiff 

filed this complaint in November 2015, more than two years before Iqbal filed 

the New York litigation. Additionally, this case was tried in March 2018, three 

months after Iqbal filed the New York litigation.

The judge found that in the New York action, Iqbal sought the same relief 

in the present action, based upon the same set of facts. Defense counsel clearly 

violated Rule 4:5-1(b)(2) by failing to disclose the New York litigation. In 

denying the motion, the judge stated:
24 A-5821-17T1

It's crystal clear to the [c]ourt that . . . defendant

violated the provisions of Rule 4:5-1(b)(2), failing to 

notify the [c]ourt or the opposing party, in . . . this 

action, the pendency of the New York suit. 

. . . .

With respect to the second portion of the relief 

sought by [p]laintiff, the [c]ourt concludes that it does 

not have jurisdiction to enter a decision with respect to 

an action pending in New York. 

The [c]ourt happens to agree that had the same 

action been filed in this [c]ourt, both the entire 

controversy and the doctrine of collateral estoppel 

would bar the New York suit in its entirety. 

The problem is that New Jersey doesn't have the 

power to order such a finding by the New York courts, 

and that's an application that must be addressed in the 

New York courts. 

Rule 4:5-1(b)(2) does provide that the [c]ourt 

may impose an appropriate sanction, including 

dismissal of the successive action. Obviously . . . the 

sanction of dismissal of the successive action is not 

something this [c]ourt can address since this [c]ourt 

doesn't have jurisdiction over that action. 

The conduct of counsel for defendant here is the 

type of practice condemned by the Appellate Division 

in [Simmermon v. Dryvit Systems, Inc., 196 N.J. 316, 

334 (2008)].

The Appellate Division there, however, 

recognized that in dealing with cases pending in 

different jurisdictions, here the other jurisdiction, New 
25 A-5821-17T1

York, must make the decisions and not a New Jersey 

court. 

The improper conduct here appears to have been 

a tactical decision seeking to gain an unfair advantage. 

Nevertheless, it does not appear to have resulted in 

any additional costs being incurred in the New Jersey 

action. 

Rather, the additional costs being incurred by 

[p]laintiff, or the principals thereof, are being incurred 

. . . in the New York action and not in the New Jersey 

action. 

The [c]ourt also notes that while the Parikhs . . .

were principals and testified here, of Twin Cities, they 

were not parties here. Any compensation for expenses 

being incurred by those individuals it seems to the 

[c]ourt must be addressed by the New Jersey courts. 

Accordingly, because the successive action is 

not pending in New Jersey, the [c]ourt will deny the 

motion.

We review the judge's ruling for an abuse of discretion. Karpovich v. Barbarula, 

150 N.J. 473, 483 (1997) (holding that violation of Rule 4:5-1(b)(2) does not 

mandate dismissal of second litigation; "[r]ather, a court must exercise its 

discretion and consider the purposes of the entire controversy doctrine before 

barring a subsequent action").

Rule 4:5-1(b)(2) requires disclosure of related actions. It provides, in 

pertinent part:
26 A-5821-17T1

Each party shall include with the first pleading a 

certification as to whether the matter in controversy is 

the subject of any other action pending in any court 

. . . or whether any other action . . . is contemplated; 

and, if so, the certification shall identify such actions 

and all parties thereto. Further, each party shall 

disclose in the certification the names of any nonparty who should be joined in the action . . . or who is 

subject to joinder . . . because of potential liability to 

any party on the basis of the same transactional facts. 

Moreover, the Rule's disclosure obligation is a continuing one: "Each 

party shall have a continuing obligation during the course of the litigation to file 

and serve on all other parties and with the court an amended certification if there 

is a change in the facts stated in the original certification[.]" R. 4:5-1(b)(2).

In terms of sanctions for failing to make the required disclosure, the Rule

provides:

If a party fails to comply with its obligations under 

this rule, the court may impose an appropriate 

sanction including dismissal of a successive action 

against a party whose existence was not disclosed or 

the imposition on the noncomplying party of litigation 

expenses that could have been avoided by compliance 

with this rule. A successive action shall not, however, 

be dismissed for failure of compliance with this rule 

unless the failure of compliance was inexcusable and 

the right of the undisclosed party to defend the 

successive action has been substantially prejudiced by 

not having been identified in the prior action. 

[Ibid. (emphasis added).]
27 A-5821-17T1

The courts are charged with enforcing this Rule, the goal of which is to 

avoid "piecemeal litigation." Kent Motor Cars, Inc. v. Reynolds & Reynolds, 

Co., 207 N.J. 428, 444-45 (2011); see also Gelber v. Zito P'ship, 147 N.J. 561, 

567-68 (1997). "Although the Rule specifies dismissal and imposition of 

litigation costs as two enforcement mechanisms, they are not the only sanctions 

available to the court. Rather, the clear language also broadly authorizes the 

court to 'impose an appropriate sanction.'" Kent Motor Cars, 207 N.J. at 445 

(quoting R. 4:5-1(b)(2)). 

For example, in Simmermon, 196 N.J. at 334-35, the Court found that the 

defendant made a tactical decision to violate Rule 4:5-1(b)(2) by not notifying 

the court of a class action litigation pending in Tennessee until the opt-out 

deadline expired and the settlement was approved, thereby precluding the 

plaintiff's New Jersey litigation. The Court held that the defendant's violation 

of Rule 4:5-1(b)(2) did not warrant a refusal to give full faith and credit to the 

judgment in the class action suit. Id. at 336. Instead, the Court found that the 

plaintiff should seek relief from the judgment in Tennessee. Id. at 336-38. 

On the other hand, the Court found that it was "only fair that [the 

defendant] be held responsible for those litigation expenses, including attorneys' 
28 A-5821-17T1

fees, that would not have been incurred by [the] plaintiff had [the defendant] 

filed a timely certification." Id. at 335. More specifically, the Court stated:

[The defendant] will be responsible for all litigation 

expenses, including attorneys' fees, incurred by [the] 

plaintiff in seeking relief from the Tennessee 

judgment. If [the] plaintiff applies for relief in 

Tennessee and is not excluded as a class member from 

the settlement and the Tennessee judgment remains in 

effect, then the Law Division in this state must give 

preclusive effect to that judgment. In such case, [the 

defendant] will also be responsible for all litigation 

expenses, including attorneys' fees, incurred by [the] 

plaintiff from the time it breached Rule 4:5-

1(b)(2)⸻March 15, 2002, the date that [the defendant] 

filed an answer without the required certification. 

If Tennessee excludes [the] plaintiff from the 

class action settlement, he then may proceed with his 

remaining New Jersey claims. In such case, because 

the appeals to the Appellate Division and this Court 

clearly could have been avoided had [the defendant] 

filed the required Rule 4:5-1(b)(2) certification, the 

trial [judge] is directed to impose the litigation 

expenses, including attorneys' fees, incurred by [the] 

plaintiff in those appeals. The trial [judge] will also 

determine all other such litigation expenses incurred 

by [the] plaintiff at the pretrial stage that are 

attributable to the violation of the [Rule]. Under that 

scenario, [the defendant] would not be liable for 

litigation expenses for pretrial work, such as 

depositions and motions, related to the substantive 

claims advanced by [the] plaintiff.

[Id. at 338-39.]
29 A-5821-17T1

See also Potomac Ins. Co. of Ill. ex rel. OneBeacon Ins. Co. v. Pa. Mfrs. Ass'n 

Ins. Co., 425 N.J. Super. 305, 326-28 (App. Div. 2012) (affirming verdict in 

second litigation, for defense costs in underlying action, because in the 

underlying action "the parties and their attorneys entered into an intentionally 

ambiguous agreement and both sides failed to comply with [Rule 4:5-1(b)(2)]").

Here, in denying sanctions, the judge seemed to be under the 

misapprehension that the only sanction available was dismissal of the New York 

action, which it did not have jurisdiction to grant. However, that clearly was 

not the case. Rule 4:5-1(b)(2) permits the judge to determine an appropriate 

sanction depending upon the circumstances. In this case, for example, the judge 

could have awarded plaintiff the counsel fees and costs associated with the 

motion for sanctions. Moreover, consistent with Simmermon, the judge could 

have ruled that, if plaintiff moved to dismiss the New York litigation on res 

judicata and entire controversy grounds, and the New York court denied the 

motion, then the judge would consider the New York court's decision and 

defendant would potentially be held responsible for plaintiff's litigation costs in 

New Jersey from the date of defendant's violation of the Rule⸻at the very least, 

the date the complaint was filed in New York. We therefore reverse and remand 

for the judge to reconsider the sanction question. 
30 A-5821-17T1

V.

In their cross-appeal, defendants contend the judge erred by instructing 

the jury that oral modifications to a contract must be proven by clear and 

convincing evidence. They argue, therefore, that a new trial should be ordered 

on Iqbal's claim of a fifteen-percent ownership interest in Twin Cities. We 

conclude the judge erred, but this error does not warrant the judgment's reversal 

because the jury determined that Iqbal had not made the required financial 

contributions to become a fifteen-percent owner of Twin Cities. Therefore, his 

claim to an ownership interest in Twin Cities fails, regardless of the error.

Plaintiff's counsel argued that a clear and convincing standard applied to 

modifications of a written contract, where the written contract provides only for 

written modifications, not oral modifications. Defense counsel objected, stating 

that the case law plaintiff cited to only talked about "clear conduct," and "[n]ot 

necessarily clear and convincing evidence." However, defense counsel also 

stated: "[I]f that's what the law is, then I have to live with it. But I don't have 

to just say okay because they say so." The judge agreed with plaintiff's argument 

and gave the clear and convincing evidence charge as requested.

The judge charged the jury, in pertinent part, as follows:

With regard to the claimed oral modification of 

the written contract, which is the [MOU], it is the 
31 A-5821-17T1

obligation of the party claiming a modification to 

prove those allegations by clear and convincing 

evidence. Clear and convincing evidence is evidence 

that produces in your minds a firm belief or conviction 

that the allegations sought to be proved by the 

evidence are true. It is evidence so clear, direct, 

weighty in terms of quality, and convincing as to 

cause you to come to a clear conviction of the truth of 

the precise facts in issue. The clear and convincing 

standard of proof requires that the result shall not be 

reached by a mere balancing or doubts or 

probabilities, but rather by clear evidence which 

causes you to be convinced that the allegations sought 

to be proved are true. 

Thereafter, the judge repeated the clear and convincing evidence standard when 

reciting the elements of defendant's cause of action for breach of an oral 

modification of the contract, and as to defendant's specific allegation of an oral 

modification.

In Question Three on the verdict sheet, the jury found that Iqbal proved

one oral modification of his contract with plaintiff, that is, for him to make his 

required payments through profit distributions. Plaintiff conceded this 

modification at trial. But the jury also found, as reflected on the verdict sheet:

4. Under the terms of the [MOU], was [Iqbal] 

required to be approved as a franchisee by [Popeyes] 

before he was permitted to receive a [fifteen-percent] 

ownership interest in [Twin Cities]?

YES X No _____ (7-1)
32 A-5821-17T1

5. Was [Iqbal] ever approved as a franchisee of 

[Popeye's]? 

YES No X (8-0)

6. Did the conduct of [Twin Cities] prevent [Iqbal] 

from becoming an approved franchisee of [Popeye's]? 

YES No X (7-1) 

. . . . 

8. Did [Iqbal] comply with all conditions required for 

him to receive [fifteen-percent] ownership interest in 

[Twin Cities] in accordance with the terms of the 

[MOU] and any agreed upon modifications to that 

agreement? 

YES No X (8-0)

. . . . 

15. Did [Twin Cities] breach the [MOU] to provide 

[Iqbal] with a [fifteen-percent] ownership in [Twin 

Cities]? 

YES No X (7-1) 

"[I]t is fundamental that the jury charge should set forth in clear 

understandable language the law that applies to the issues in the case." Toto v. 

Ensuar, 196 N.J. 134, 144 (2008); accord Estate of Kotsovska ex rel. Kotsovska 

v. Liebman, 221 N.J. 568, 591 (2015); Mogull v. CB Commercial Real Estate 

Grp., 162 N.J. 449, 464 (2000). In considering a trial judge's jury charge, a 
33 A-5821-17T1

reviewing court must read the charge as a whole to determine if it was correct. 

Toto, 196 N.J. at 144; Sons of Thunder, Inc. v. Borden, Inc., 148 N.J. 396, 418 

(1997). We do not reverse "where the charge adequately conveys the law and 

does not confuse or mislead the jury." Sons of Thunder, 148 N.J. at 418. 

However, even erroneous jury instructions do not require reversal where the 

instructions were incapable of producing an unjust result or prejudicing 

substantial rights. Ibid.; accord Toto, 196 N.J. at 144.

In general, a contract is formed where there is an offer and acceptance 

between the parties. Morton v. 4 Orchard Land Tr., 180 N.J. 118, 129-30 (2004). 

After formation, the contracting parties "may, by mutual assent, modify it." 

County of Morris v. Fauver, 153 N.J. 80, 99 (1998). "A contract modification 

is 'a change in one or more respects which introduces new elements into the 

details of a contract and cancels others but leaves the general purpose and effect 

undisturbed.'" Wells Reit II-80 Park Plaza, LLC v. Dir., Div. of Taxation, 414 

N.J. Super. 453, 466 (App. Div. 2010) (quoting Int'l Bus. Lists, Inc. v. Am. Tel. 

& Tel. Co., 147 F.3d 636, 641 (7th Cir. 1998)).

Generally, modifications to a written contract are not required to be made 

in writing. To the contrary, a "modification can be proved by an explicit 

agreement to modify, or . . . by the actions and conduct of the parties, so long as 
34 A-5821-17T1

the intention to modify is mutual and clear." County of Morris, 153 N.J. at 99; 

accord Wells Reit, 414 N.J. Super. at 466; DeAngelis v. Rose, 320 N.J. Super. 

263, 280 (App. Div. 1999). However, an agreement to modify a contract "must 

be based upon new or additional consideration." County of Morris, 153 N.J. at 

100. The consideration need not be significant; whatever consideration the 

parties agree to is sufficient. Oscar v. Simeonidis, 352 N.J. Super. 476, 485

(App. Div. 2002). 

The model jury charge on contract modifications does not set forth a clear 

and convincing standard of proof. Model Jury Charges (Civil), 4.10I "Bilateral 

Contracts – Modification" (approved May 1998). However, the clear and 

convincing standard of proof applies to a limited number of contract claims, 

including where a statute requires a contract for the transfer of real property be 

in writing. See, e.g., N.J.S.A. 25:1-12; N.J.S.A. 25:1-13; Morton, 180 N.J. at 

125-26; Tiedemann v. Cozine, 297 N.J. Super. 579, 582 (App. Div. 1997); Aiello 

v. Knoll Golf Club, 64 N.J. Super. 156, 160-61 (App. Div. 1960). See also

N.J.S.A. 2A:81-2 (requiring proof by clear and convincing evidence to establish 

agreement with individual who is mentally incapacitated).

On appeal, as it did before the judge, plaintiff relies on these land 

transfer/statute of fraud cases. Plaintiff also relies on Home Owners 
35 A-5821-17T1

Construction Co. v. Borough of Glen Rock, 34 N.J. 305, 316-17 (1961), a public 

construction contract case, in which the Court required clear and convincing 

proof for oral modifications of the contracted work. However, that case did not 

purport to establish a general rule requiring clear and convincing proof for all 

alleged oral modifications of written contracts.

"As a general rule, the preponderance of the evidence standard applies in 

civil actions." Liberty Mut. Ins. Co. v. Land, 186 N.J. 163, 169 (2006). The 

clear and convincing evidence standard is more stringent than the preponderance 

of the evidence standard. It "establishes a standard of proof falling somewhere 

between the ordinary civil and criminal standards" of preponderance of the 

evidence and beyond a reasonable doubt. Aiello, 64 N.J. Super. at 162; accord

Land, 186 N.J. at 169-70. Evidence is clear and convincing when it "produce[s]

in the mind of the trier of fact a firm belief or conviction as to the truth of the 

allegations sought to be established." Aiello, 64 N.J. Super. at 162.

Here, there was no statutory requirement that the parties' contract be in 

writing, nor was there any statutory requirement imposing a clear and 

convincing evidence standard for oral contract formation or modification. 

Therefore, the judge erred by charging the jury that the MOU's oral 

modifications must be proven by clear and convincing evidence. Absent a clear 
36 A-5821-17T1

and convincing evidence standard, the jury might have found in defendants'

favor on the oral modification claim. Typically, that would require the 

judgment's reversal and a new trial.

On the record presented, however, we conclude the error was harmless in 

light of the jury's finding that Iqbal had not fulfilled the conditions necessary to 

become a fifteen-percent owner of Twin Cities. It was undisputed that one of 

those conditions was making the necessary financial contributions, and the jury 

concluded that Iqbal had contributed less than the required amount. Thus, even 

if the jury found that the contract had been orally modified to eliminate this 

requirement of becoming an approved Popeyes franchisee, Iqbal still was not 

entitled to a fifteen-percent ownership interest in Twin Cities because the jury 

found he had not made the required financial contributions.

Furthermore, the alleged oral modification is not supported by the 

evidence at trial, even applying a preponderance of the evidence standard. Iqbal 

presented no evidence that plaintiff agreed to an oral modification of the MOU, 

such that he could become a part owner of Twin Cities without becoming an 

approved Popeyes franchisee, nor did he present any evidence as to an exchange

of new or additional consideration for this alleged oral modification of the 

MOU. Thus, he did not provide the required evidence for an oral modification 
37 A-5821-17T1

of contract claim, no matter what standard of proof is applied. Plaintiff is 

correct, as well, that defendants produced no evidence as to damages, that is, the 

value of a fifteen-percent ownership interest in Twin Cities.

Indeed, Iqbal did not rely on the contract modification theory to obtain 

relief. Iqbal testified that he was an owner from the start based upon his 

understanding of the agreement and by how he was treated. In other parts of his 

testimony, he seemed to admit that it was his contractual obligation to become 

an approved Popeyes franchisee; however, he maintained that the Parikhs made 

it impossible for him to become one because they did not submit his application. 

And defense counsel did not argue the elements of a contract modification claim. 

Rather, defense counsel pursued theories of detrimental reliance on the Parikhs' 

promises to submit the franchise application, and excusal of a contract condition 

due to the Parikhs' misconduct in not submitting the application. The verdict 

sheet, however, reflects that the jury rejected defendants' claim that plaintiff 

prevented Iqbal from becoming an approved franchisee. 

Finally, we note that Iqbal's oral modification allegation obviously

implicates the rights of a third party⸻Popeyes. Iqbal clearly understood that 

Popeyes' rights were implicated because the terms of his written agreement with 

Twin Cities referenced Popeyes' ongoing interest in all of the Minnesota 
38 A-5821-17T1

restaurants. However, pursuant to the Parikhs' franchise agreement with 

Popeyes, the Parikhs could not transfer ownership of Twin Cities without 

Popeyes' consent. Indeed, the franchise agreement provides that the agreement 

would be terminated if any transfer occurred without Popeyes' consent.

At trial, Iqbal presented testimony that other individuals were part owners 

of Twin Cities, without being approved franchisees. However, he presented no 

evidence that Popeyes consented to the Parikhs' transferring to him a fifteenpercent ownership interest in Twin Cities. Therefore, even if Iqbal proved a 

modification of his written agreement with Twin Cities, such that he did not 

have to be an approved franchisee in order to be a part owner of Twin Cities 

(which he did not), he still did not prove any right to a fifteen-percent ownership 

of Twin Cities because he did not show that Popeyes consented to such transfer.

VI.

In their cross-appeal, defendants contend the judge committed plain error 

by not sua sponte granting them prejudgment interest on the award of damages. 

Our review of an award of prejudgment interest, and the calculation of that 

amount, is for an abuse of discretion. County of Essex v. First Union Nat'l Bank, 

186 N.J. 46, 61 (2006); P.F.I., Inc. v. Kulis, 363 N.J. Super. 292, 301 (App. Div. 

2003). We see no abuse. 
39 A-5821-17T1

Prejudgment interest on contract and equitable claims is a matter of 

equity. Litton Indus., Inc. v. IMO Indus., Inc., 200 N.J. 372, 390 (2009). In 

such cases, prejudgment interest is meant to cover the period of time during 

which the defendant had use of the amount in question, while the plaintiff was 

entitled to have it. Ibid.

Here, defendants did not request prejudgment interest before the trial 

judge, either in their counterclaim or in a post-trial motion. Moreover, since 

prejudgment interest is a discretionary decision in this contract action, the judge 

was under no obligation to order prejudgment interest sua sponte, and there was 

no abuse of discretion. On remand, defendants may raise the pre-judgment issue 

by filing an appropriate motion. 

We affirm the judgment. We remand for further proceedings on the 

sanction and pre-judgment issues. We do not retain jurisdiction.