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NOT FOR PUBLICATION [Docket Nos. 483 & 488] 

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

CAMDEN VICINAGE

FINANCIAL CASUALTY & SURETY, 

INC., 

Plaintiff,

 v.

JOHN BONINO and 007 BAIL BONDS, 

INC., 

Defendants.

Civil No. 11-4316 (RMB/JS)

OPINION 

Appearances:

Samuel M. Silver

2050 Route 27, Suite 105

North Brunswick, NJ 08902

Attorneys for Plaintiff

Michael Resavage

Law Office of Resavage and Battista, LLC

9 Vella La Vella Lane

Egg Harbor Township, NJ 08234

Attorneys for the BGM Defendants

Joseph Liguori

Mazraani & Liguori, LLP

1901 Route 130

Second Floor 

North Brunswick, NJ 08902

Ksenia Proskurchenko 

Proskurchenko Law Group, LLC 

570 North Broad Street, Suite 13

Elizabeth, NJ 07208

Attorneys for Defendants John Bonino and 007 Bail Bonds 

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I. Introduction

This matter comes before the Court upon two post-trial 

motions filed by Plaintiff, Financial Casualty & Surety, Inc.,

(“FCS”) [Docket Nos. 482 & 483], and the supplemental briefing 

of the parties, including Defendants, John Bonino and 007 Bail 

Bonds (the “Defendants”), addressing whether an implied contract 

is sufficient to sustain an award of attorney’s fees and whether 

a new trial is warranted. [Docket Nos. 481, 482 & 484]. The 

Bail Group Management, LLC, James Mascola and Genevieve Steward, 

(the “BGM Defendants”) have also submitted a brief on the issue 

of their dismissal from this matter. [Docket No. 475]. 

In a prior Opinion dealing with the parties’ respective 

post-trial motions, this Court requested further briefing on the 

following issues, including the submission of appropriate record 

citations and supporting materials where applicable:

• Whether the verdict was irreparably inconsistent and 

required a new trial pursuant to Federal Rule of Civil 

Procedure 49(b)(4)1;

• Whether attorney’s fees can be awarded pursuant to an 

implied contract either as a matter of law, and, if so,

whether there was evidence at trial sufficient to sustain 

the award;

• Whether contingent attorney’s fees could be awarded; and 

 1 Rule 49(b)(4) states: “When the answers are inconsistent with 

each other and one or more is also inconsistent with the general 

verdict, judgment must not be entered; instead, the court must 

direct the jury to further consider its answers and verdict or 

must order a new trial.”

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• Whether the Order of Dismissal should be set aside as to 

the BGM Defendants. 

Based on the record now before it, this Court will discuss the 

resolution of these issues below.2 

II. Motion to Set Aside Dismissal of the BGM Defendants

In the previous Opinion, this Court found that it would not 

address Plaintiff’s Motion to Set Aside Order of Dismissal and 

to Enforce Settlement [Doc. No. 483] until the BGM Defendants

submitted a response. BGM subsequently submitted a response to 

this Court. 

 Following the first day of trial, Plaintiff reached a 

settlement agreement with the BGM Defendants and the relevant 

terms of that settlement were read into the record on May 7, 

2014. Specifically, Plaintiff noted on the record that the 

terms of the settlement called for, in relevant part:

Entry of an agreed judgment in the amount of $750,000 in 

favor of Financial Casualty and Surety Company against 

James Mascola, Genevieve Steward and Bail Group Management. 

East Coast Bail Bonds will be dismissed from this 

proceeding with prejudice. 

May 7, 2014 Tr. 400:7-11.

The following dialogue also occurred with the Court with 

 2 This Court, again, notes the poor briefing that has been 

submitted in this matter. Many, if not most, of the case 

citations are from jurisdictions not relevant here and the brief 

submitted by Bonino and 007 contains no record citations 

whatsoever. To say that this has imposed an undue burden on the 

Court is putting it mildly. 

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respect to the settlement: 

THE COURT: Okay. I assume that the Court will retain 

jurisdiction over the matter.

MR. SHEINESS: It will.

THE COURT: Okay. And the documents will be submitted. 

MR. IRELAN: Immediately post-trial.

* * * 

THE COURT: All right. Well, that will include the consent 

judgment.

MR. SHEINESS: Motion to dismiss and a consent judgment. 

Motion order to dismiss East Coast and then the consent, 

agreed consent judgment.

THE COURT: Well, what I’ll do is I’ll terminate the BGM v. 

[sic] East Coast and the individual defendants pursuant to 

the terms of the settlement, and you folks will have 60 

days to work out your settlement papers. And if you need 

more time, then you’ll make your application. 

May 7, 2014 Tr. 403:2-20 (emphasis added). Pursuant to an Order 

dated May 7, 2014, the BGM Defendants were dismissed from this 

matter and the Court expressly retained jurisdiction over the 

parties’ settlement. The Order of dismissal states:

(1) This action is hereby DISMISSED as to defendants James 

V. Mascola, Genevieve Steward, Bail Group Management, LLC 

and East Coast Bail Bonds, LLC, only without costs and 

without prejudice to the right, upon motion and good cause 

shown, within 60 days, to reopen this action if the 

settlement is not consummated; and

(2) If any party shall move to set aside this Order of 

Dismissal as provided in the above paragraph or pursuant to 

the provisions of Fed. R. Civ. P. 60(b), in deciding such 

motion the Court retains jurisdiction of the matter to the 

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extent necessary to the extent necessary to enforce the 

terms and conditions of any settlement entered into between 

the parties.

Docket No. 432 (emphasis added).3 

Thereafter, both the BGM Defendants and Plaintiff submitted 

an Agreed Final Judgment, the consent judgment referred to 

above, to this Court on June 20, 2014 [Doc. No. 473]. It is now 

apparent that due to a clerical oversight, this Court did not 

execute or enter the agreed final judgment that was signed by

both parties and provided to this Court. Plaintiff now seeks 

relief from this Court pursuant to Federal Rule of Civil 

Procedure 60(b), alleging that the BGM Defendants were 

mistakenly dismissed from this matter and are now in violation 

of the settlement agreement for failure to pay the agreed upon 

amount of $750,000. [Doc. No. 483]. In response, the BGM 

Defendants contend that “it is unclear that the parties intended 

to have an executed Judgment signed by the Court and filed of 

record – in other words, entered.” Doc. 490 at 2.

Under Federal Rule of Civil Procedure 60(b)(1) or (3), a 

party is entitled to relief where: “On motion and just terms, 

the court may relieve a party or its legal representative from a 

 3 Because this Court expressly retained jurisdiction, it may 

decide the motion to enforce the settlement. See Kokkonen v. 

Guardian Life Ins. Co. of Am., 511 U.S. 375 (1994)(discussing 

interplay of jurisdiction and enforcement of settlement 

agreements).

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final judgment, order, or proceeding for the following reasons:

(1) mistake, inadvertence, surprise, or excusable neglect;

* * *

(3) fraud (whether previously called intrinsic or 

extrinsic), misrepresentation, or misconduct by an opposing 

party[.]” 

The BGM Defendants assert that the Plaintiff’s motion is 

untimely because, per the text of the Rule itself, “[a] motion 

under Rule 60(b) must be made within a reasonable time—and for 

reasons (1), (2), and (3) no more than a year after the entry of 

the judgment or order or the date of the proceeding.” Fed. R. 

Civ. P. 60(c)(1). 

As an initial matter, this Court notes that Plaintiff’s 

motion was submitted less than a year after the Court’s Order 

dismissing BGM was entered. Moreover, because it is most 

likely, indeed reasonable, that Plaintiff expected that this 

Court would eventually sign and enter the judgment, Plaintiff 

cannot be faulted for the Court’s delay. Therefore, this Court 

finds the motion timely.

The Court also agrees with Plaintiff that BGM should be 

judicially estopped from asserting its frivolous argument that 

the Judgement was not intended by the parties to be entered by 

this Court. For judicial estoppel to apply: (1) the party to be 

estopped must have taken two irreconcilably inconsistent 

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positions; (2) the party must have changed his or her position 

in bad faith; and (3) the Court's application of judicial 

estoppel must be narrowly tailored to address the identified 

harm, or remedy the damage done. Montrose Med. Grp. 

Participating Sav. Plan v. Bulger, 243 F.3d 773, 779-80 (3d Cir. 

2001). This doctrine applies here. 

BGM’s statement that it is “unclear that the parties 

intended to have an executed Judgment signed by the Court and 

filed of record,” is directly contradicted by its prior 

representations to the Court on the record: counsel for BGM 

specifically asserted that an “agreed consent judgment” would be 

submitted by the parties. Moreover, the proposed judgment 

submitted to the Court contained the signatures of counsel for 

both Plaintiff and BGM. BGM’s about-face is in bad faith. See

Detz v. Greiner Indus., 224 F. Supp. 2d 905, 918 (E.D. Pa. 

2002)(noting that “any benefit or advantage sought or gained by 

inconsistent positions may be considered as evidence of bad 

faith.”). It was clear that the parties agreed to the entry of 

a consent judgment. BGM Defendants cannot defeat that agreement 

simply because it was not timely entered by the Court. 

Accordingly, this Court finds that entering the judgment, which 

was previously not entered due to a simple clerical oversight,

and enforcing the settlement agreement is a narrowly tailored 

way to address the harm at issue. See Malascalza v. AMTRAK, No. 

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93-474, 1996 U.S. Dist. LEXIS 4198, *13 (D. Del. Mar. 12, 

1996)(enforcing settlement agreement via judicial estoppel and 

noting that “[t]he guiding principle which has given rise to the 

doctrine of judicial estoppel is that a ‘party who has gained an 

advantage by characterize the law or facts involved in a case 

should not later be able to contradict that characterization to 

obtain a further advantage.’”), aff’d, 118 F.3d 1576 (3d Cir. 

1997). 

In light of the above, this Court will enter the Judgment 

as submitted by the parties as an Agreed Final Judgment to this 

Court on June 20, 2014, [Doc. No. 473], and will grant 

Plaintiff’s Motion to Enforce Settlement. 

III. Inconsistent Verdict and Motion for New Trial

While this Court has expressed serious concern as to 

whether the inconsistent verdict rendered by the jury 

(specifically its finding that both Defendants John Bonino and 

007 Bail Bonds breached their implied contract, but awarding 

damages against Defendant Bonino only), it is mindful of its 

duty to “attempt to harmonize the [jury's] answers, if it is 

possible under a fair reading of them: 'Where there is a view of 

the case that makes the jury's answers to special 

interrogatories consistent, they must be resolved that way.'" 

Gallick v. Baltimore & O.R.R. Co., 372 U.S. 108, 119 (1963) 

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(quoting Atl. & Gulf Stevedores, Inc. v. Ellerman Lines, Ltd., 

369 U.S. 355, 364 (1962)). See Graboff v. Colleran Firm, 744 

F.3d 128, 138 (3d Cir. 2014)(“when faced with a seemingly 

inconsistent verdict, a court, to the extent possible, should 

read the verdict to resolve the inconsistencies.”).4 In other 

words, this Court must review the jury’s verdict and that 

verdict “‘must be molded consistently with a jury's answers to 

special interrogatories when there is any view of the case which 

reconciles the various answers.’ Thus, a trial court is ‘under a 

constitutional mandate to search for a view of the case that 

makes the jury's answers consistent.’" Loughman v. ConsolPennsylvania Coal Co., 6 F.3d 88, 105 n.17 (3d Cir. 

1993)(quoting McAdam v. Dean Witter Reynolds, Inc., 896 F.2d 

750, 763-64 (3d Cir. 1990)).

Keeping this obligation in mind, this Court finds that, at 

this juncture, it is still unable to determine whether the 

jury’s answers in the verdict are irreconcilable such that a new 

trial is warranted. For example, the jury awarded damages 

against Bonino but not against 007 Bail Bonds even though it 

 4 The Court notes that counsel for Defendants raised the issue of 

an inconsistent verdict before the jury was dismissed and, 

therefore, preserved the objection. Tr. 893:2-7. See Frank C. 

Pollara Group, LLC v. Ocean View Inv. Holding, LLC, 784 F.3d 

177, 191 (noting that an inconsistency objection must be made 

prior to the jury being discharged). Thus, Plaintiff’s 

contention that “No party preserved Rule 49(b) complaints” is 

unfounded. 

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found a breach by both parties. While seemingly inconsistent at 

first blush, this view may be reconciled if the evidence 

presented to the jury at trial demonstrates that 007 Bail Bonds 

is now defunct. At this juncture, however, the parties have not 

briefed this specific issue, nor do the record cites provided 

address the issue of the business status of 007 vis a vis 

Bonino. This Court cannot be expected to recall such evidence 

without the assistance of the record. 

During jury deliberations the jury presented the following 

two questions: 

• Why are John Bonino and 007 Bail Bonds separate on the 

Verdict Form? 

• Is 007 Bail Bonds Agency still operating as a company?

 

[Doc. No. 449]. In response to these questions, the Court 

stated that “Mr. Bonino may be sued individually and 007 Bail 

Bonds may be sued,” and referred the jury to Instruction No. 12.5 

With respect to the second question: the Court stated “it is 

 5 This instruction stated: 

A corporation, like 007 Bail Bonds, is a creature of legal 

fiction which can act only through its officers, directors and 

other agents, and acts of a corporate agent which are performed 

within the scope of his authority are binding upon the corporate 

principal. Because of the nature of a corporation, it obviously 

can act through its agents. The ability of an officer of the 

corporation to bind the corporation to a contract is governed by 

the law of agency. For example, an executive officer, such as 

John Bonino, may bind a corporation, like 007 Bail Bonds, by way 

of an ordinary contract made in the regular course of a 

corporation's business dealings.

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your recollection of the evidence that governs.” Id. 

Because this Court is without briefing or portions of the 

record that discuss this issue, it cannot make an appropriate 

determination at this time. The evidence before the jury, when

combined with the jury instruction given, will guide this Court 

as to whether the jury’s verdict may be reconcilable. For 

example, in Associated Business Telephone Systems Corp. v. 

Dalia, 729 F. Supp. 1488, 1507-08 (D.N.J. 1990), aff’d, 919 F.2d 

133 (3d Cir. 1990), the Court was able to reconcile a verdict 

where the jury awarded punitive damages only against the 

officers of a corporation, the Cohns, but awarded only 

compensatory damages against the corporation. The Court found 

that the jury’s error was “one of form, not of substance.” Id.

at 1508. In so doing, the Court stated that:

we think it is clear that the reason the jury did not find 

the Cohns individually liable for compensatory damages is 

because they had already found the corporation liable, and 

they had an obvious desire to prevent a double recovery. 

The special interrogatories first requested that the jury 

determine the amount of compensatory damages to be assessed 

against the corporation. On the next line the 

interrogatories requested the same regarding the Cohns. By 

the time they filled out the first line, however, they had 

accounted for all the compensatory damages. The jury was 

not specifically instructed on joint and several liability, 

but that was their intent. It is apparent that they acted 

under the belief that an award against the corporation 

functioned as an award against the individual defendants. 

They found both the corporation and the Cohns guilty of 

conversion.

Id. The parties should discuss in their briefs whether similar

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logic should apply in the instant case. Thus, this Court will

require the parties to submit further briefing on this issue

addressing the above points, which must include appropriate 

record citations. In the event the parties no longer wish to 

pursue this argument, it shall so advise the Court.

IV. Attorney’s Fees Based on Implied Contract

While the Court requires additional briefing and evidence 

on the issue of the jury’s damages award, the parties have made 

additional submissions on the issue of attorney’s fees. As set 

forth in the prior Opinion, this Court has questioned the 

availability of attorney’s fees based in implied contract both 

as a matter of law and based on the evidence presented at trial. 

For that reason, the prior Opinion called on Plaintiff to submit 

specific citations to the trial record to support the award of 

attorney’s fees rendered by the jury.

The Plaintiff’s submissions have not convinced this Court 

that the fees are available as a matter of law.6 Plaintiff has 

 6 Again, the case law is clear that an implied contract, in and 

of itself, is insufficient to sustain an award of attorney’s 

fees. See e.g., Agritrack, Inc., v. Dejohn Housemoving Inc., 25 

P.3d 1187, 1193 (Colo. 2001)(“The question of whether attorney’s 

fees can be awarded on an implied contract is, at first blush, a 

legal one and can be easily answered. The answer is no: there 

is no authority in Colorado law that would permit attorney’s 

fees to be awarded to the prevailing party on a quantum meruit 

claim.”). 

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still cited no case law from this jurisdiction supporting an 

argument to the contrary in circumstances analogous to those 

currently before the Court. See e.g., Maule v. Phila. Media 

Holdings, LLC, 2010 U.S. Dist. LEXIS 105865 (E.D. Pa. Oct. 1, 

2010)(discussing an express and not an implied contract). Even 

assuming, arguendo, that such fees were available via an implied 

contract theory, Plaintiff has nevertheless failed to point to 

evidence in the record sufficient to sustain such an award. 

Instead, Plaintiff points to evidence sufficient to sustain the 

other portion of the jury’s award i.e., $3,307.00 premium on 

reported bonds and $65,280.00 on bond forfeiture judgments and 

consent judgments. See Doc. 487 (citing Trial Tr. at 848-8497). 

Any attempts to point to liability for attorney’s fees here 

mistakenly rely on the express terms of the written contract; a 

contract the jury found did not exist between the parties. See

Doc. No. 450 (Jury Verdict finding no breach of express 

contract). For example, in arguing that attorney’s fees are 

warranted, Plaintiff points to the Producer Agreement, presented 

as evidence at trial, which “specifically provided for 

Bonino/007 to indemnify FCS for any attorney’s fees it incurred 

in enforcing the agreement.” Doc. No. 488 at ¶ 16. Again, the 

 7 The Court notes, however, that the portion of the record cited 

is from closing argument which, by definition, does not 

constitute evidence presented to the jury. Christine v. Davis, 

600 F. App’x. 47, 50 (3d Cir. 2015). 

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jury did not find that this contract was breached. Instead, 

Plaintiff asks this Court to make a leap in logic and find that 

the jury “was . . . entitled to conclude the implied contract 

contained all the terms of the express contract which Bonino 

claimed was forged, including Paragraph 18 [which provides for 

indemnification for attorney’s fees].” There are, however, no 

citations to the record that support this conclusion; instead, 

Plaintiff tries to bootstrap the terms of Paragraph 18 of the 

express written contract into an implied agreement. 

In light of the above, this Court finds that the attorney’s 

fees award is not warranted and shall be stricken. Because the 

fee award will not be upheld, this Court need not address the 

availability of contingent fees for an appeal. 

V. Conclusion

For the reasons set forth above, the Court finds that the 

parties shall submit briefs to this Court on the issue of the 

evidence presented to the jury regarding 007 Bail Bonds business 

status in relation to Bonino and whether the verdict can be 

reconciled. The Court will enter the proposed judgment and 

enforce the settlement against the BGM Defendants. Finally, the 

Court will strike the attorney’s fees award from the verdict as 

unsupported by the law or evidence. An appropriate Order will 

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issue this date. 

 

s/Renée Marie Bumb 

RENÉE MARIE BUMB

United States District Judge

Dated: September 3, 2015

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