J.P. Electric, Inc. v. Lpmg Construction Management, LLC

• Court: New Jersey Superior Court Appellate Division
• Decided: November 2, 2023
• Docket: A-0918-22
• Status: Published

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-0918-22

J.P. ELECTRIC, INC., properly identified as JUAN PEREZ ELECTRIC CO., APPROVED FOR PUBLICATION

Plaintiff-Respondent, November 2, 2023 APPELLATE DIVISION and

JUAN PEREZ,

Plaintiff/Third-Party Defendant-Respondent,

v.

LPMG CONSTRUCTION MANAGEMENT, LLC,

Defendant/Third-Party Plaintiff-Appellant,

and

1 NORTH BOSTON, LLC, and DAVID NOVOTNY,

Defendants,

DAVID PRATTS,

Defendant/Third-Party Defendant. _____________________________

Submitted October 23, 2023 – Decided November 2, 2023

Before Judges Sabatino, Mawla and Vinci.

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Docket No. L-0219-18.

Brian E. O'Neill (Elliott Greenleaf, PC), attorney for appellant.

Respondents have not filed a brief.

The opinion of the court was delivered by

SABATINO, P.J.A.D.

This appeal involves a straightforward application of the terms of the

Offer of Judgment provisions in Rule 4:58-1 to -6. Defendant LPMG

Construction Management, LLC ("LPMG"), appeals from the court's post -trial

denial of its application for an award of counsel fees and costs pursuant to

Rule 4:58-6.

In February 2018, plaintiff J.P. Electric, Inc. filed a complaint against

LPMG (and other defendants that were dismissed from the action). Before

trial, LPMG served upon plaintiff in March 2022 an offer of judgment under

Rule 4:58-1 "to allow judgment to be entered against it and in favor of

[p]laintiff for damages in the amount of $5,000 . . . to resolve all of [p]laintiff's

A-0918-22 2 claims in this action of any kind, including all claims for damages of any kind,

actual or otherwise . . . ." Plaintiff rejected the offer.

The trial court held a two-day bench trial. At the close of plaintiff's

evidence, the court granted LPMG's motion for involuntary dismissal pursuant

to Rule 4:37-2(b). Thereafter, LPMG moved for over $50,000 in attorney's

fees and costs pursuant to Rule 4:58-6.

The trial court denied defendant's application for fees. In its written

decision of October 28, 2022, the court explained that "a dismissal pursuant to

R[ule] 4:37-2(b) precludes an award of attorney's fees as it is a dismissal. The

court finds R[ule] 4:58-3(c) does not provide for any allowances for fees when

'the claimant's claim is dismissed.'"

On appeal, LPMG argues the trial court misapplied the pertinent Rules,

stressing that an involuntary dismissal under Rule 4:37-2(b) represents an

adjudication on the merits of the case.

The trial court correctly and sensibly applied the pertinent Rules. "[W]e

review the meaning or scope of a court rule de novo, applying 'ordinary

principles of statutory construction to interpret the court rules." DiFiore v.

Pezic, 254 N.J. 212, 228 (2023) (quoting State v. Robinson, 229 N.J. 44, 67

(2017)).

Although Rule 4:58-3(a) authorizes an offeror to recover fees "[i]f the

A-0918-22 3 offer of a party other than the claimant is not accepted, and the claimant

obtains a judgment . . . that is favorable to the offeror as defined by this rule,"

that authorization does not apply when "the claimant's claim is dismissed," see

Rule 4:58-3(c)(1), or "a no-cause verdict is returned," see Rule 4:58-3(c)(2).

Because a successful motion under Rule 4:37-2(b) results in the

"dismissal of the action" as "the plaintiff has shown no right to relie f[,]" no

verdict was returned so the trial court's denial of fees was manifestly correct.

The policy reasons underlying the zero-recovery exceptions to Rule 4:58-3(c)

would be undermined if such fee-shifting were permitted. See Schettino v.

Roizman Dev., Inc., 158 N.J. 476, 486 (1999) (noting that the preclusion of

fee-shifting under the Rule in instances when a plaintiff does not prevail

"prevent[s] the transformation of the offer-of-judgment rule into a general fee-

shifting rule").

Affirmed. Lest there be any doubt, a mid-trial involuntary dismissal

does not entitle a defendant offeror to fee-shifting under the Rule.

A-0918-22 4