Financial Casualty & Surety, Inc. v. Mascola et al

Filing 493

OPINION FILED. Signed by Judge Renee Marie Bumb on 9/3/15. (js)

NOT FOR PUBLICATION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,
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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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.”
2

•

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.
3

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.

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See Malascalza v. AMTRAK, No.

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. Consol-

Pennsylvania 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.”
at 1508.

Id.

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

6

Plaintiff has

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 848-849 7).
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.

7

Again, the

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.

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An appropriate Order will

issue this date.

s/Renée Marie Bumb
RENÉE MARIE BUMB
United States District Judge
Dated:

September 3, 2015

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