SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1581-16T1

KELVIN SMITH,

Plaintiff-Appellant/

Cross-Respondent,

v.

JOHN F. JOHNSON, 

RALPH ALLOCCA, ESQ., 

BRIAN FRUEHLING, ESQ., 

and TICOR TITLE INSURANCE

COMPANY OF FLORIDA,

Defendants,

and

PAUL J. BURR, ESQ.,

Defendant-Respondent/

Cross-Appellant.

________________________________

Argued December 4, 2018 – Decided January 17, 2019

Before Judges Yannotti and Rothstadt.

NOT FOR PUBLICATION WITHOUT THE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-1581-16T1

On appeal from Superior Court of New Jersey, Law 

Division, Hudson County, Docket No. L-1599-15.

Jessica A. Tracy argued the cause for appellant/crossrespondent (Curcio Mirzaian Sirot, LLC, attorneys; 

Paul F. Campano, of counsel; Jessica A. Tracy, on the 

briefs).

Raphael M. Rosenblatt argued the cause for 

respondent/cross-appellant (Rosenblatt Law PC, 

attorneys; Raphael M. Rosenblatt, of counsel and on the 

briefs).

PER CURIAM

In this case, plaintiff Kelvin Smith asserted claims against defendant Paul 

J. Burr for legal malpractice and conversion. The matter was tried before a jury, 

which returned a verdict for defendant on both causes of action. Plaintiff then 

filed a motion for judgment notwithstanding the verdict (JNOV). Defendant

demanded that plaintiff withdraw the motion, claiming it was frivolous. Plaintiff

refused to withdraw the motion, and defendant filed a cross-motion pursuant to 

Rule 1:4-8 for sanctions. 

The trial judge entered orders dated November 4, 2016, denying the 

motions. Plaintiff's appeal and defendant's cross-appeal followed. On plaintiff's

appeal, we affirm the trial court's order denying the motion for a JNOV. On 

defendant's cross-appeal, we affirm the order denying defendant's motion for 

sanctions, and dismiss the other issues raised as moot. 
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I.

We briefly summarize the relevant facts and procedural history. John 

Johnson agreed to sell plaintiff certain real property on Rose Avenue in Jersey 

City. Attorney Ralph P. Allocca acted as the settlement agent for plaintiff and 

Johnson. Before the closing, plaintiff obtained a $300,000 loan to purchase the 

property, and some of these funds were to be applied to pay off Johnson's 

outstanding mortgage loan. America's Servicing Company (ASC), the 

mortgage-servicing company, agreed to accept $230,126.26 to pay off Johnson's 

loan and discharge the mortgage on the property.

The closing took place on January 26, 2009, and title to the property was 

transferred to plaintiff, and thereafter Allocca sent ASC a check drawn on his 

attorney trust account to pay off Johnson's loan. On January 28, 2009, ASC 

returned the check to Allocca, and told him payment had to be made by cashier's 

check or with certified-bank funds. 

On March 26, 2009, US Bank, N.A., filed a foreclosure action against 

Johnson, plaintiff, and others claiming that Johnson's mortgage loan remained 

due and owing. On April 13, 2009, Allocca obtained a cashier's check, payable 

to ASC, in the amount of $230,728.42 to pay off Johnson's loan. It appears that 

the check was given to Anthony Garvin, the broker who introduced plaintiff to 
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the property and negotiated the terms of the sale. On April 17, 2009, Garvin 

endorsed the check and deposited the funds into an account at Bank of America, 

in the name of "Laura Mae LLC d/b/a/ Master Builders," an entity that Garvin 

owned. 

At his deposition, plaintiff testified that he never saw the check; however,

at trial, plaintiff admitted he endorsed the check over to Garvin expecting that 

Garvin would use the funds to pay off Johnson's loan. Plaintiff believed this 

would remove ASC's lien on the Rose Avenue property and resolve the pending

foreclosure action.

In July 2010, Johnson retained defendant to recover the monies from the 

sale of the property that should have been used to pay off his loan. Johnson and 

defendant entered into a "Legal Services Agreement" (LSA), which provided,

among other things, that defendant's engagement was limited to: (1) actions or 

claims by Johnson arising from the sale of the Rose Avenue property; (2) 

disputes with any creditor or lender claiming monies that Johnson owed for 

services provided; and (3) "action[s] or dispute[s] arising after the collection of 

the unpaid proceeds" from the sale of the property. 

The LSA further provided that Johnson would "be solely responsible for 

the payment of any and all loan proceeds, including but not limited to, any 
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deductions of legal fees and costs paid to attorney, due on the" property. In 

addition, the LSA stated that defendant would not be responsible for paying any 

of Johnson's debts, loans, or other obligations. 

On July 1, 2010, defendant wrote to Allocca and stated that Johnson had 

retained him to investigate and collect monies from the January 26, 2009 

closing, which were supposed to be applied to pay off Johnson's loan. Defendant 

demanded a copy of Allocca's closing file.

Allocca responded in a letter dated July 12, 2010. He stated that ASC had 

returned the check to pay off Johnson's loan because the check was drawn on an 

attorney-trust account. Allocca said he thereafter obtained a cashier's check, 

and apparently the check was given to Garvin. According to Allocca, Garvin 

deposited the funds into a bank account, without his knowledge or approval. 

Allocca provided defendant with a copy of the check, which plaintiff and Garvin 

had endorsed. 

Defendant did not hear anything further from Allocca for several months, 

and on November 9, 2010, he wrote to Allocca and demanded additional 

information. Allocca replied in a letter dated November 10, 2010, and enclosed 

a copy of his closing file. In the letter, Allocca stated that he had done "nothing 

improper, illegal or unethical." He added that if anyone had converted the funds
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that were supposed to be used to pay off Johnson's loan, plaintiff and Garvin 

were the persons responsible. 

On November 30, 2010, defendant wrote to plaintiff and informed him

that Johnson had retained him to investigate the apparent misapplication of the 

proceeds from the sale of the Rose Avenue property, make formal criminal and 

civil complaints, retrieve the funds, and collect damages and legal fees. 

Defendant told plaintiff he should retain an attorney and contact his office. A 

tenant at the Rose Avenue property provided plaintiff with the letter. Plaintiff 

then called defendant. He said he did not want defendant to represent him or 

take any legal action on his behalf. 

On March 17, 2011, Allocca wrote to defendant and advised him he had 

$233,000 in his trust account, which Garvin had given to him to pay off 

Johnson's loan. In the letter, Allocca stated that if defendant wanted him to, he 

would transfer the monies to defendant to be "h[eld] in escrow pending a 

resolution of this matter." Allocca also proposed to resolve Johnson's claim 

against Garvin for damages. Allocca did not, however, provide defendant with

a proposed escrow agreement, and defendant never agreed in writing to hold any 

funds in escrow. Defendant testified that he understood Allocca's letter to mean 
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that he should hold the monies pending resolution of Johnson's claim against 

Garvin for damages. 

Allocca died on April 15, 2011. Thereafter, a Chancery Division judge in 

Morris County appointed Brian J. Fruehling to act as trustee for Allocca's law 

practice. On May 10, 2011, Fruehling sent defendant a check in the amount of 

$233,000, drawn upon Allocca's trust account. Fruehling also provided 

defendant with a copy of a letter that Allocca had written to defendant. In the

letter, Allocca stated he was enclosing the $233,000 check, and he asked 

defendant to "[p]lease hold these funds in your trust account pending the 

resolution of all claims regarding the property." 

On June 1, 2011, defendant wrote to plaintiff and Garvin and stated that 

unless he heard from them within five business days, he would release the funds 

to Johnson. On June 7, 2011, defendant wrote to Johnson and reminded him of 

his obligation to pay the outstanding loan. In the letter, defendant stated that 

the letter served as confirmation "that [y]ou have directed me to release said 

funds to you; and that you are fully aware that [y]ou remain responsible to pay 

the mortgage loan on [the subject property]; and that [y]ou have stated that you 

will attempt to resolve and pay said mortgage loan on your own." Because 

plaintiff and Garvin had not contacted defendant, he deducted his legal fee from 
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the funds, and distributed the balance to Johnson. Plaintiff testified that as of 

the date of the trial, the mortgage was still on the property.

On August 3, 2011, plaintiff's attorney wrote to defendant and claimed 

that while title to the Rose Avenue property may have been transferred, "a 

closing has not occurred." Plaintiff's attorney stated that unless Johnson's 

mortgage loan was paid off within five days, "and a proper closing of title held," 

plaintiff would file "suit to undo the entire transaction and receive a refund of 

the monies being held in [defendant]'s trust account." Plaintiff's attorney did 

not, however, file an action to undo the transaction. 

In September 2014, plaintiff filed an answer to the pending foreclosure 

complaint, a cross-claim, and a third-party complaint, asserting claims against

Johnson, Allocca, Fruehling, Ticor Title Insurance of Florida, and defendant. In 

December 2014, the Chancery Division severed plaintiff's claims from the 

foreclosure action and transferred them to the Law Division for disposition. 

Defendant filed an answer to plaintiff's complaint. He later filed an 

amended answer, counterclaim, cross-claim, and fourth-party complaint against 

Garvin. The trial court subsequently dismissed the claims against Ticor, 

Fruehling, Allocca, and Johnson. 
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In July 2016, defendant filed a motion for summary judgment, which the 

court denied as untimely under Rule 4:46-1. Thereafter, plaintiff's claims 

against defendant were tried before a jury. At the trial, plaintiff testified and 

called defendant as a witness. Plaintiff also presented expert testimony from 

Anthony Ambrosio. 

At the conclusion of plaintiff's case, defendant moved for involuntary 

dismissal or entry of a judgment on plaintiff's claims, pursuant to Rule 4:37-2(b) 

and Rule 4:40-1. Defendant argued that plaintiff's legal malpractice claim failed 

because plaintiff had not established that he owed plaintiff a duty. Defendant

further argued that plaintiff failed to prove he converted the monies. He also 

contended that both claims should be dismissed because plaintiff failed to 

establish he was damaged by defendant's alleged wrongful acts. 

While the motions were pending, defendant presented expert testimony by 

Bennett J. Wasserman. At the conclusion of Wasserman's testimony, the trial 

judge denied defendant's motions to dismiss plaintiff's legal malpractice and 

conversion claims, but reserved decision on the motion to dismiss both claims 

for lack of proof of damages. The attorneys for the parties then provided closing 

arguments, and the judge charged the jury. After deliberations, the jury returned 

a verdict for defendant on both causes of action. 
10 A-1581-16T1

Thereafter, the judge denied as moot defendant's motion to dismiss based 

on plaintiff's alleged failure to prove damages. Plaintiff filed a motion for a

JNOV, which the judge denied. The judge also denied defendant's motion for 

sanctions under Rule 1:4-8 with regard to the JNOV motion. This appeal and 

cross-appeal followed. 

II.

On appeal, plaintiff argues the trial judge erred by denying his motion for 

a JNOV. When reviewing a trial court's order denying a motion for a JNOV, we

apply the standard that governs the trial court. Riley v. Keenan, 406 N.J. Super. 

281, 298 (App. Div. 2009) (citing Frugis v. Bracigliano, 177 N.J. 250, 269 

(2003)). 

The standard for a motion for a JNOV is the same that applies to a motion 

for involuntary dismissal under Rule 4:37-2(b) and a motion for judgment under 

Rule 4:40-1. Filgueiras v. Newark Pub. Sch., 426 N.J. Super. 449, 455 (App. 

Div. 2012). Therefore, we "must accept as true all the evidence which supports 

the position of the party defending against the motion and according [that party]

the benefit of all inferences which can reasonably and legitimately be deduced 

therefrom, and if reasonable minds could differ, the motion must be denied."

Riley, 406 N.J. at 298 (citing Dolson v. Anastasia, 55 N.J. 2, 5 (1969)).
11 A-1581-16T1

A. Wasserman's Testimony

On appeal, plaintiff argues that Wasserman's testimony constituted a net 

opinion, which the jury improperly relied upon in rendering its verdict. Plaintiff

asserts Wasserman "fail[ed] to impart special knowledge or expertise," provided 

"bare opinions based on speculation," and "distract[ed] and confus[ed] the jury"

in other ways. 

It is well established that an expert witness may not provide a "net 

opinion." Pomerantz Paper Corp. v. New Cmty. Corp., 207 N.J. 344, 372 

(2011). "The net opinion rule is a 'corollary of [N.J.R.E. 703] . . . which forbids 

the admission into evidence of an expert's conclusions that are not supported by 

factual evidence or other data.'" Townsend v. Pierre, 221 N.J. 36, 54 (2015)

(alterations in original) (quoting Polzo v. Cty. of Essex, 196 N.J. 569, 583 

(2008)). The rule requires an expert to "'give the why and wherefore' that 

supports the opinion, 'rather than a mere conclusion.'" Id. at 54 (quoting 

Borough of Saddle River v. 66 E. Allendale, LLC, 216 N.J. 115, 144 (2013)).

Furthermore, an expert's opinion must have "objective support" and may 

not be based on a standard that is "personal." Pomerantz, 207 N.J. at 373. "In 

the context of legal malpractice, an expert must base his or her opinion on 

standards accepted by the legal community and not merely on the expert's 
12 A-1581-16T1

personally held views." Carbis Sales, Inc. v. Eisenberg, 397 N.J. Super. 64, 79 

(App. Div. 2007) (citing Kaplan v. Skoloff & Wolfe, P.C., 339 N.J. Super. 97, 

103 (App. Div. 2001); Stoeckel v. Twp. of Knowlton, 387 N.J. Super. 1, 14 

(App. Div. 2006)). In New Jersey, the Rules of Professional Conduct "set forth 

an appropriate standard of care by which to measure an attorney's conduct." 

Kaplan, 339 N.J. Super. at 103 (quoting Baxt v. Liloia, 281 N.J. Super. 50, 57 

(App. Div. 1995)).

In this case, Wasserman was qualified as an expert in the field of 

professional legal malpractice and ethics. Plaintiff contends Wasserman failed 

to provide authority for his opinion that defendant did not owe him a duty under 

RPC 1.15 because plaintiff did not have a "bona fide claim" to the funds

defendant had collected for Johnson. 

The rule applies when a lawyer holds property of a client or another 

person. RPC 1.15(a). The rule states in pertinent part that 

[w]hen in the course of representation a lawyer is in 

possession of property in which both the lawyer and 

another person claim interests, the property shall be 

kept separate by the lawyer until there is an accounting 

and severance of their interests. If a dispute arises 

concerning their respective interests, the portion in 

dispute shall be kept separate by the lawyer until the 

dispute is resolved.

[RPC 1.15(c).]
13 A-1581-16T1

The rule does not expressly use the term "bona fide," but Wasserman 

opined that the rule applies when a client or some third person has an ownership 

interest or legitimate claim to the property a lawyer possesses. Wasserman's 

understanding of the rule's requirement is supported by its plain language. He 

did not cite case law to support his interpretation, and this was an appropriate 

subject for cross-examination. However, Wasserman's testimony had sufficient 

support in RPC 1.15(c). It was not a net opinion. 

Plaintiff further argues that Wasserman improperly testified as to 

plaintiff's state of mind, usurped the jury's role as fact-finder by addressing the 

ultimate issue of fact, made statements that were not supported by the evidence, 

provided factual and legal conclusions that had no basis in fact, and offered a 

highly prejudicial legal opinion. The record shows that plaintiff's trial counsel 

objected at various times during Wasserman's testimony. 

The judge sustained some objections, directed the jury to disregard certain 

statements, and overruled other objections. On appeal, plaintiff contends the 

jury's verdict indicates that it gave great weight to Wasserman's testimony and 

this resulted in a miscarriage of justice.

"The admission or exclusion of expert testimony is committed to the 

sound discretion of the trial court." Townsend, 221 N.J. at 52 (citing State v. 
14 A-1581-16T1

Berry, 140 N.J. 280, 293 (1995)). An appellate court gives deference to the 

"trial court's decision to admit expert testimony, reviewing it against an abuse 

of discretion standard." Id. at 53 (quoting Pomerantz, 207 N.J. at 371–72).

"Under that standard, an appellate court should not substitute its own judgment 

for that of the trial court, unless 'the trial court's ruling was so wide of the mark 

that a manifest denial of justice resulted.'" State v. Brown, 170 N.J. 138, 147 

(2001) (quoting State v. Marrero, 148 N.J. 469, 484 (1997)). 

Here, the trial judge carefully considered plaintiff's objections to 

Wasserman's testimony. As noted, the judge sustained some objections to 

Wasserman's testimony, overruled others, ordered the jury to disregard certain 

statements, and provided curative instructions when the judge deemed such 

instructions were required. Plaintiff's attorney had the opportunity to crossexamine Wasserman on statements that allegedly lacked factual support. 

We are convinced from our review of the record that the judge's rulings 

on the objections to Wasserman's testimony were a reasonable exercise of 

discretion. Plaintiff had not established that the judge's rulings resulted in a 

"manifest denial of justice." Brown, 170 N.J. at 147 (quoting Marrero, 148 N.J. 

at 484). 
15 A-1581-16T1

B. The Jury Instructions

Plaintiff also argues that the trial judge erred by failing to instruct the jury 

that defendant had a duty under RPC 1.15 to hold the proceeds from the sale of 

the property in his trust account pending resolution of all claims regarding those 

funds, including plaintiff's claim that the monies should be applied to pay off 

Johnson's mortgage loan. He contends the judge's failure to instruct the jury in 

this manner resulted in a miscarriage of justice.

In considering allegations of error in jury instructions, "[t]he ultimate 

question is whether, taking the charge as a whole and reading it in context, the 

jury was misled or inadequately informed." Mehlman v. Mobil Oil Corp, 153 

N.J. 163, 194 (1998) (citing Navarro v. George Koch & Sons, Inc., 211 N.J. 

Super. 558, 570–71 (App. Div. 1986)). Generally, "an appellate court will not 

disturb a jury's verdict . . . 'where the charge, considered as a whole, adequately 

conveys the law and is unlikely to confuse or mislead the jury, even though part 

of the charge, standing alone, might be incorrect.'" Wade v. Kessler Inst., 172 

N.J. 327, 341 (2002) (quoting Fischer v. Canario, 143 N.J. 235, 254 (1996)). 

Here, the trial judge denied defendant's motion for involuntary dismissal 

or a judgment, and ruled that when viewing the facts in the light most favorable 

to plaintiff, the jury could find that defendant owed a duty to plaintiff as a non-
16 A-1581-16T1

client, citing Petrillo v. Bachenberg, 139 N.J. 472 (1995), Dynasty Bldg. Corp. 

v. Ackerman, 376 N.J. Super. 280 (App. Div. 2005), and Innes v. MarzanoLesnevich, 435 N.J. Super. 198 (2014), aff'd as modified, 224 N.J. 584 (2016). 

The judge stated under Petrillo, a jury could find that defendant had a duty 

to plaintiff if defendant represented he was going to pay off Johnson's loan once 

he collected the funds. In addition, the judge ruled that under Dynasty and Innes, 

the jury could find that defendant had a duty to hold the monies pending 

resolution of plaintiff's claim. The judge also determined that based on the 

testimony and evidence presented, a jury could find that defendant breached 

both duties. 

Thereafter, the judge charged the jury as follows:

Typically a legal malpractice case requires an 

attorney client relationship between the plaintiff and 

defendant attorney. However, the uncontested 

evidence in this case shows that plaintiff was not a 

client of the defendant . . . . The law does permit a 

claim to be made by a non-client against an attorney in 

certain situations. The first situation is where the nonclient relied on the attorney to take some action, or 

refrain from taking some action, on the part of that third 

party. And that such reliance was reasonable under the 

circumstances.

In addition, a non-client plaintiff must establish 

that his or her reliance on the attorney was foreseeable 

to the attorney. That the attorney knew or should have 

known that the non-client is relying on him or her to 
17 A-1581-16T1

take certain action or refrain from certain actions in the 

attorney's professional capacity. In other words, 

[plaintiff] must establish, by a preponderance of the 

credible evidence, that it was reasonably foreseeable 

for [plaintiff] to rely upon the representations of 

[defendant], that he would pay off the mortgage and/or 

safeguard the funds to pay off the mortgage. If you find 

that plaintiff has established these facts by a 

preponderance of the evidence you should find 

defendant . . . guilty of malpractice and return the 

verdict for plaintiff. 

An attorney may also be found liable to a third 

party when the attorney has reason to foresee the 

specific harm that occurred to that third person, such as 

the plaintiff in this case. In other words, [plaintiff]

must show, by a preponderance of the evidence, that 

[defendant] knew or should've known that [plaintiff]

had a claim to the money that [defendant] collected on 

behalf of John Johnson and that [defendant] improperly 

distributed the money to himself and others thereby 

damaging [plaintiff].

If you find that the defendant has complied with 

the standard of care[,] he is not liable to plaintiff 

regardless of the result. On the other hand, if you find 

that the defendant has departed from this standard of 

care resulting in injury or damage, then you should find 

defendant liable for his malpractice.

On appeal, plaintiff argues that the judge erred by asking the jury to decide 

the question of whether defendant owed plaintiff a duty with regard to the funds 

he collected for Johnson. We disagree. The judge's instruction made clear that 

the issue of whether defendant owed plaintiff a duty of care turned on material 
18 A-1581-16T1

issues of fact, specifically whether defendant represented he would pay off 

Johnson's loan with monies he collected, and whether defendant knew or had 

reason to know that plaintiff had a claim to the money that defendant collected 

on behalf of Johnson. The judge's instructions were legally correct. 

Plaintiff also takes issue with the first question of the verdict sheet 

provided to the jury, which he claims, "was even worse" than the jury charge.

The question asked the jury to determine whether plaintiff had proven by a 

preponderance of credible evidence that defendant "deviated from accepted 

standards of legal practice with regard to the handling of the subject funds in his 

trust account in connection with plaintiff's legal malpractice claim?" Plaintiff 

argues that there is nothing in this question that clarifies for the jury whether 

defendant had a legal duty to safeguard the mortgage payoff funds. 

"A verdict sheet is intended for recordation of the jury's verdict and is not 

designed to supplement oral jury instructions." State v. Gandhi, 201 N.J. 161, 

196 (2010) (citing State v. Reese, 267 N.J. Super. 278, 287 (App. Div. 1993)). 

If the trial court's instructions "were sufficient to convey an understanding of 

the elements [of the cause of action] to the jury, and . . . the verdict sheet was 

not misleading, any error in the verdict sheet can be regarded as harmless." Id.

at 197 (citing Reese, 267 N.J. Super. at 287-89; State v. Vasquez, 265 N.J. 
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Super. 528, 547 (App. Div. 1993)). Generally, a verdict sheet is not grounds for 

reversal unless it was "misleading, confusing, or ambiguous." Ponzo v. Pelle, 

166 N.J. 481, 490 (2001) (quoting Sons of Thunder, Inc. v. Borden, Inc., 148 

N.J. 396, 418 (1997)). 

We note that the trial judge used the verdict sheet that plaintiff proposed.

In any event, as we stated previously, the judge's charge was legally correct and 

the instructions properly guided the jury in addressing plaintiff's legal 

malpractice claim. The verdict sheet was not "misleading, confusing, or 

ambiguous." Ibid. (quoting Borden, 148 N.J. at 418).

We therefore conclude that the trial judge did not err by denying plaintiff's 

motion for a JNOV. 

III.

In his cross-appeal, defendant argues that the trial judge erred by denying 

his motion for involuntary dismissal of plaintiff's claims under Rule 4:37-2, or 

a judgment pursuant to Rule 4:40-1 because plaintiff failed to present sufficient

evidence to establish he was damaged as a result of defendant's alleged wrongful 

acts or omissions. Defendant further argues that the judge erred by failing to 

grant his motion to strike Ambrosio's expert testimony as an impermissible net 
20 A-1581-16T1

opinion. In view of our decision affirming the trial court's order denying 

plaintiff's motion for a JNOV, these issues are moot.

Defendant also argues that the trial judge erred by denying his motion for 

sanctions under Rule 1:4-8. Defendant argues that plaintiff's motion for a JNOV

lacked any basis in existing law or fact. He contends that at trial, plaintiff failed 

to present sufficient evidence to support his claims for legal malpractice and 

conversion. He argues that plaintiff should have been sanctioned for bringing 

the motion for a JNOV. 

Rule 1:4-8 allows the court to sanction an attorney for asserting a frivolous 

claim on behalf of his or her client. United Hearts, L.L.C. v. Zahabian, 407 N.J. 

Super. 379, 389 (App. Div. 2009). A claim "is deemed frivolous when 'no 

rational argument can be advanced in its support, . . . it is not supported by any 

credible evidence, or it is completely untenable.'" First Atl. Fed. Credit Union 

v. Perez, 391 N.J. Super. 419, 432 (App. Div. 2007) (quoting Fagas v. Scott, 251 

N.J. Super. 169, 190 (Law Div. 1991)). 

Sanctions will not be awarded "[w]here a party has a reasonable and good 

faith belief in the" claims being asserted. See ibid. The trial court's ruling on a 

motion for sanctions under Rule 1:4-8 will not be disturbed unless shown to be 
21 A-1581-16T1

a mistaken exercise of discretion. United Hearts, 407 N.J. Super. at 390 (citing 

Masone v. Levine, 382 N.J. Super. 181, 193 (App. Div. 2005)).

In ruling on defendant's motion, the judge stated that plaintiff's attorney

had pursued the matter on behalf of his client diligently and zealously. The 

judge found that plaintiff's motion for a JNOV was brought in good faith, based 

on counsel's interpretation of the evidence presented at trial. 

The judge noted that defendant argued that the motion was frivolous 

because plaintiff's expert had not calculated damages, but the jury had not 

reached the issue of damages, and the jury's verdict had made this issue moot. 

The judge stated that she never addressed this issue and it would be 

inappropriate to do so in ruling on defendant's sanctions motion. 

The judge found that plaintiff's alleged failure to establish damages was 

not a basis for imposing sanctions upon plaintiff's counsel for bringing the 

motion for a JNOV. We are convinced the record supports the judge's findings.

We conclude the decision denying defendant's motion was not a mistaken 

exercise of discretion.

Accordingly, on the appeal, we affirm the trial court's order denying 

plaintiff's motion for a JNOV. On the cross-appeal, we affirm the trial court's 
22 A-1581-16T1

order denying defendant's motion for sanctions under Rule 1:4-8, and dismiss 

the other arguments raised as moot. 

Affirmed on the appeal; affirmed in part and dismissed in part on the 

cross-appeal.