Financial Casualty & Surety, Inc. v. Mascola et al
Filing
485
OPINION FILED. Signed by Judge Renee Marie Bumb on 6/16/15. (js)
NOT FOR PUBLICATION
[Docket Nos. 481, 482, 483 & 484]
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CAMDEN VICINAGE
FINANCIAL CASUALTY & SURETY,
INC.,
Plaintiff,
Civil No. 11-4316 (RMB/JS)
v.
JOHN BONINO and 007 BAIL BONDS,
INC.,
OPINION
Defendants.
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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A. 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 both 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. [Docket
Nos. 481, 482 1 & 484].
The Defendants have also renewed their
motion for a new trial. [Doc. No. 484].
In a prior Opinion dealing with post-trial motions, this
Court not only requested supplemental briefing, but also ordered
the parties to provide adequate record citations to support
their motions.
The Court notes that while the motions were re-
filed, neither the relevant portions of the transcripts cited
nor trial exhibits have been provided to this Court, including
the record as it relates to Plaintiff’s pending motion to Set
Aside Order of Dismissal and to Enforce Settlement [Doc. No.
483].
The Court cannot properly perform its role without the
excerpts from the appropriate record. 2
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In the alternative to arguing that it is entitled to attorney’s
fees, the Plaintiff argues that they be awarded sanctions
pursuant to a previously filed Motion for Sanctions. [Doc. No.
355]. That motion was denied as moot by this Court. [See Doc.
No. 445]
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New Jersey Local Civil Rule 5.2, Section 8 states:
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Nonetheless, and despite the poor briefs submitted by the
parties, the Court has reviewed the pending motions along with
the jury questions and verdict rendered in this case.
What has
emerged is this Court’s belief that a new trial is warranted for
the reasons set forth herein.
B. The Trial
From May 5, 2014 to May 12, 2014, the Court conducted a
jury trial as to the only remaining Defendants, John Bonino and
007 Bail Bonds. 3
The jury found that Defendants had not breached
an express contract with Plaintiff, but had breached an implied
agreement to Plaintiff. [Doc. No. 450 at Question 2 and Question
5].
Despite the jury’s finding of a breach by both Defendants,
the jury awarded damages against Bonino only.
In addition, the
jury awarded attorney’s fees in the amount of “$100,000.00
An ECF Filing User shall submit in electronic form all
documents referenced as exhibits or attachments, including
briefs, in accordance with the Court’s requirements found
on the website at www.njd.uscourts.gov, including file size
limitations contained therein, unless otherwise ordered by
the Court. An ECF Filing User shall submit as exhibits or
attachments only those excerpts of the referenced documents
that are directly germane to the matter under consideration
by the Court. Excerpted materials must be clearly and
prominently identified as such. The Court may require
parties to file additional excerpts or the complete
document.
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The Defendants James V. Mascola, Genevieve Steward, Bail Group
Management, LLC, and East Coast Bail Bonds, LLC (“BGM
Defendants”) settled on the second day of trial, May 7, 2014,
and the terms of the settlement were placed on the record. Doc.
No. 433.
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contingency $27,000 (on appeal)” against Bonino only.
Id. at
Question No. 3.
C. Grounds for a New Trial
It is well established that an inconsistent verdict
provides adequate grounds for a new trial.
See e.g., Fed. R.
Civ. P. No. 49(b)(4) “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.”; Graboff v. Colleran Firm, 744 F.3d
128, 139 n.9 (3d Cir. 2014)(noting that granting a new trial is
a manner of dealing with an inconsistent verdict). Indeed,
Plaintiff’s motion for joint and several liability, [Doc. No.
482], serves to highlight the verdict’s inconsistency: “There
was no evidence that Bonino acted in an individual capacity –
instead, every action he took was in his capacity as an agent
for 007.
007.”
Nonetheless the jury did not impose damages against
[Doc. No. 482 at 8] (emphasis added).
Pursuant to Monaco v. Camden,
a court may order a new trial based on inconsistent
verdicts only if "no rational jury could have brought back
the verdicts that were returned." Pearson v. Welborn, 471
F.3d 732 (7th Cir. 2006) (internal quotations and citations
omitted). Accordingly, when one party challenges a jury's
verdicts as inconsistent, the court has an obligation first
to "attempt to reconcile the jury's findings" to determine
"whether the jury could have, consistent with its
instructions, rendered the challenged verdicts." Davignon
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v. Hodgson, 524 F.3d 91, 109 (1st Cir. 2008) (citations
omitted); see Gallick v. Baltimore & O. R. Co., 372 U.S.
108, 119, 83 S. Ct. 659, 9 L. Ed. 2d 618 (1963) ("[I]t is
the duty of the courts to attempt to harmonize the 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.'") (quoting Atlantic & Gulf Stevedores,
Inc. v. Ellerman Lines, Ltd., 369 U.S. 355, 364, 82 S. Ct.
780, 7 L. Ed. 2d 798 (1962)). In undertaking to read the
verdicts consistently, the court must "view the facts in
the light most favorable to the verdict." Davignon, 524
F.3d at 109.
366 F. App’x 330, 332 (3d Cir. 2010).
Because the jury clearly determined that 007 Bail Bonds
breached the implied contract and had been instructed that “[a]
plaintiff who is awarded a verdict for breach of contract is
entitled to compensatory damages for such losses as may fairly
be considered to have arisen naturally from the defendant’s
breach of contract,” the Court finds it cannot reconcile the
jury’s finding that no damages should be awarded against
Defendant 007 Bail Bonds.
permeated the proceedings.
Thus, it seems, jury confusion
See Brown v. Nutrition Mgmt. Servs.
Co., 2010 U.S. App. LEXIS 5535, *4 (3d Cir. Mar. 17, 2010)(“A
new trial may be granted ‘when the verdict is contrary to the
great weight of the evidence; that is where a miscarriage of
justice would result if the verdict were to stand’ or when the
court believes the verdict results from jury
confusion.”)(quoting Pryer v. C.O. 3 Slavic, 251 F.3d 448, 453
(3d Cir. 2001)); Lightning Lube v. Witco Corp., 802 F. Supp.
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1180, 1197 (D.N.J. 1992)(“When a trial judge is convinced that
there has been a miscarriage of justice, it is his or her duty
to set aside the verdict.”).
In addition to the inconsistency and jury confusion
discussed above, the Court is troubled by the fact that at no
time did either party raise the issue of whether attorney’s fees
can be awarded pursuant to an implied contract.
The parties
agree that New Jersey follows the American Rule with respect to
attorney’s fees, which states that legal expenses are only
permitted pursuant to statute, court rule or express contract.
McGuire v. Jersey City, 125 N.J. 310, 593 A.2d 309, 317-18 (N.J.
1991).
Generally speaking, attorney’s fees are not available
where there exists only an implied contract.
Cf. Dardovitch v.
Haltzman, 190 F. 3d 125, 145 (3d Cir. 1999)(noting that one
exception to the American Rule involves the discretion of courts
to grant fees in cases involving trusts). Indeed, the very case
law cited by FCS stands for the proposition that fees are not
warranted where there is only an implied contract.
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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Plaintiff has cited no case law from this jurisdiction
supporting an argument to the contrary in circumstances
analogous to those currently before the Court.
At trial, the jury instruction with respect to attorney’s
fees read: “If you award a verdict for breach of contract in
favor of FCS, Plaintiff has requested an award of reasonable
attorney’s fees.”
This instruction wrongly did not
differentiate between a breach of the alleged express contract
of the parties (which would permit an award of attorney’s fees)
and a breach of implied contract, which would not.
This
instruction was in error for reasons already discussed above,
and a new trial appears warranted because it clearly contributed
to the judgment at issue.
See Murphy v. Radnor Twp., 2015 U.S.
App. LEXIS 4555, at *6 (3d Cir. Mar. 20, 2015)(“When a jury
instruction is erroneous, a new trial is warranted unless such
error is harmless. An error is harmless if it is highly probable
that the error did not contribute to the judgment.”)
The Court notes that there is an additional potential error
with respect to the attorney’s fees instruction that, like the
issue of implied contract, was never raised by the parties.
Here, the jury awarded prospective attorney’s fees to Plaintiff
in the amount of a contingency $27,000 for a potential appeal of
the jury verdict.
In reviewing the parties’ post-trial motions,
this Court has found case law from the Third Circuit wherein it
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appears to be the Circuit’s responsibility to award attorney’s
fees for a party’s appeal.
See e.g., Urban Outfitters v. BCBG
Max Azria Group, 430 F. App’x 131 (3d Cir. June 1,
2011)(granting plaintiff’s petition for attorney’s fees from
first appeal); Maldonado v. Houstoun, 256 F.3d 181 (3d Cir.
2001)(deciding attorney’s fees motion for attorney work on
appeal).
Again, such an apparently errant jury instruction
would warrant a new trial.
See Murphy, 2015 U.S. App. LEXIS
4555, at *6.
D. Next Steps
Before ordering a new trial, however, this Court will
afford the parties an opportunity to convince the Court that a
verdict against both Defendants in the amount of $3,307.00 and
$65,280.00 with no attorney’s fees obviates the need for a new
trial, i.e., the errors identified above were harmless.
If the
parties are unable to convince the Court that jury confusion and
errant instructions identified were harmless, this Court will
set a date for the new trial.
E. Motion to Set Aside Dismissal of the BGM Defendants
Finally, the Court will address Plaintiff’s Motion to Set
Aside Order of Dismissal and to Enforce Settlement. [Doc. No.
483].
There has been no response to this motion by the BGM
Defendants who, Plaintiff alleges, were mistakenly dismissed
from this matter and who are in violation of the settlement for
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failure to fund.
The BGM Defendants shall have three (3) weeks
to respond to this Court’s Order and show cause why the relief
requested by Plaintiff should not be granted.
F. Conclusion
For the reasons set forth above, the parties shall have three
(3) weeks from the date of this Opinion to submit briefs to this
Court as to whether the errors identified are harmless.
The BGM
Defendants shall have similarly have three (3) weeks to show
cause why this Court should not grant the relief requested by
Plaintiff.
An appropriate Order will issue this date.
s/Renée Marie Bumb
RENÉE MARIE BUMB
United States District Judge
Dated:
June 16, 2015
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