NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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.
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-1081-24
NAGEL RICE, LLP,
Plaintiff-Appellant,
v.
STARKEY, KELLY, KENNEALLY, CUNNINGHAM & TURNBACH,
Defendant-Respondent. ____________________________
Argued October 28, 2025 – Decided November 12, 2025
Before Judges Gilson and Perez Friscia.
On appeal from the Superior Court of New Jersey, Chancery Division, Ocean County, Docket No. C- 000139-24.
Bruce H. Nagel argued the cause for appellant (Nagel Rice, LLP, attorneys; Bruce H. Nagel, of counsel and on the briefs).
Aileen F. Droughton argued the cause for respondent (Traub Lieberman Straus & Shrewsberry LLP, attorneys; Aileen F. Droughton, of counsel and on the brief). PER CURIAM
Plaintiff Nagel Rice, LLP, appeals from the November 8, 2024 order
granting defendant Starkey, Kelly, Kenneally, Cunningham & Turnbach's Rule
4:6-2(e) motion to dismiss plaintiff's complaint for failure to state a claim.
Having reviewed the record, parties' arguments, and applicable law, we affirm.
I.
We summarize the facts derived from the record, focusing on the
complaint and documents referenced in the pleading, which are largely
undisputed. In reviewing the facts asserted in plaintiff's complaint we accord
"every reasonable inference of fact." Guzman v. M. Teixeira Int'l, Inc., 476 N.J.
Super. 64, 67 (App. Div. 2023) (quoting Major v. Maguire, 224 N.J. 1, 26
(2016)).
Plaintiff began representing a non-party to this action, Benjamin Ringel
(Ringel), sometime before 2020. Ringel had been named a defendant in multiple
Ocean County Chancery Division lawsuits, including claims filed by his sister,
Chana Ringel, and a commercial lender, RCG, LV Debt IV Non-Reit Assets
Holdings, LLC (RCG). Defendant and multiple other law firms also represented
Ringel in chancery actions.
A-1081-24 2 In a Chancery Division lawsuit involving RCG, a judgment was entered
in 2016 against Ringel for over $22,000,000. RCG later assigned the judgment
to JDWC, LLC (JDWC), resulting in JDWC's intervention in the litigation. On
October 25, 2019, the court entered an order pursuant to N.J.S.A. 42:2C-43
imposing a lien against Ringel's interests in real estate properties until the
judgment to JDWC was satisfied. In June 2020, JDWC filed a separate
collection action against Ringel seeking the remaining $5,759,218 owed on the
judgment and temporary restraints against Ringel's interests. The JDWC action
was consolidated with Chana Ringel's action. The court ordered the law firm
representing JDWC to hold in escrow Ringel's received funds from various
commercial properties. Plaintiff later represented Ringel in a chancery action
involving JDWC and Chana Ringel, which had settled in 2020 with the parties
"arbitrating certain claims."
On March 10, 2021, the court ordered defendant to serve as an escrow
agent (escrow order) in the JDWC action. Defendant was to escrow Ringel's
"50% of the escrowed funds held by" JDWC's law firm. The court ordered that
defendant
will release the funds to the educational institution(s) for payment of outstanding tuition or directly to Ringel's legal representatives [plaintiff], Sills Cummis & Gross PC . . .[,] and [defendant] for payment of legal
A-1081-24 3 fees upon receipt of documentation verifying the fees or tuition due. Ringel retains the right to request the release of additional funds from the JDWC Escrow in an amount up to 50% of the JDWC Escrow for future bona fide educational expenses incurred by the beneficiaries of the Trust or additional outstanding legal fees with the remaining 50% to be simultaneously disbursed to JDWC. [Defendant] will provide JDWC with copies of all invoices received and payments made to said law firms and educational institutions.
Defendant began overseeing Ringel's portion of funds the same month.
On September 15, 2021, Ringel emailed Kevin Starkey, Esq., a member
of defendant, instructing, "Each month you receive a check for $15,000 please
send the amount received to [plaintiff] as payment for legal fees going forward."
The same day Starkey responded by email to Ringel and copied Robert H.
Solomon, Esq., and Bruce H. Nagel, Esq., members of plaintiff. Starkey stated,
"I need a monthly invoice from [Nagel] because I have to keep documentation
under the [escrow] [o]rder that the expenditure is for legal fees or for your
children's tuition and healthcare, I don't need a detailed bill, just something each
month I can have for my file." On September 20, Nagel emailed Starkey
inquiring about the escrow balance and stating, "We are to get this now."
On October 20, Nagel emailed Starkey asserting that Ringel had "agreed
that we get all monthly payments and I have not gotten a check or a reply. If I
do not hear from you by Friday, I will file suit to compel the payments." On
A-1081-24 4 October 28, Starkey confirmed $30,000 would be sent to plaintiff, representing
two months of escrow payments. On November 2, Solomon emailed Starkey
confirming receipt of the check and indicated, "As you know, [Ringel] has
agreed that [plaintiff] is to get the full amount of all monthly payments. On a
going forward basis, please send us a check for the full amount of payments you
receive."
In January 2022, Starkey sent a payment of $14,700. On February 1
Solomon emailed Starkey again stating, "As you know, [Ringel] has agreed that
[plaintiff] is to get the full amount of all monthly payments." Thereafter, at
Ringel's direction, Starkey dispersed escrowed funds to "others[,] including
lawyers."
On June 1, Nagel emailed Starkey stating, "Confirming our discussion,
you or [Ringel] must pay our firm the $18,000 that was sent to [another
attorney], and agree that all escrow funds will be paid to our firm per the prior
agreement." Starkey responded on the same day stating, "I confirm that you
have requested that all future escrow funds be paid to you and your firm going
forward. Currently there is approximately $50.00 in the account." Starkey
further asserted, "I do not want to be put into the middle of a fee dispute between
you and [Ringel], so if you and [Ringel] cannot resolve this issue, I will have to
A-1081-24 5 apply to the [c]ourt for a motion to be relieved as counsel." On June 2, Nagel
wrote Starkey referencing Ringel's September 15, 2021 email, asserting that
Starkey had confirmed by email that he would pay plaintiff, and directing that
Starkey "not disburse any monies." Nagel and Solomon had sent multiple other
emails asserting plaintiff's entitlement to the funds.
In October 2022, Chana Ringel and JDWC filed an order to show cause,
requiring defendant to release escrowed funds covering Ringel's owed portion
of the arbitrator's fee and asserting the arbitrator would not release a decision
without payment.1 On November 18, the court heard arguments on the motion.
Plaintiff argued that, during the arbitration between JDWC, Chana Ringel, and
Ringel, it had unsuccessfully "moved at least three times to be relieved" as
counsel because it was not getting paid. Plaintiff objected to defendant paying
any arbitrator fees from the escrowed funds. Plaintiff argued it represented
Ringel as an "unwilling participant." Further, plaintiff asserted entitlement to
all Ringel's escrowed funds held by defendant because an agreement was
allegedly entered with Ringel and Starkey, as evidenced "in [the] series of
emails."
1 We include the undisputed facts referenced by the parties and court from the related proceeding for context. A-1081-24 6 During the argument regarding the release of funds to the arbitrator,
Starkey represented to the court that he had abided by the escrow order and only
released escrowed funds that Ringel had authorized pursuant to the order.
Starkey asserted he "did not agree" that the funds would go to plaintiff and added
that he did not think it was "within [his] authority to make an agreement as to
where those funds would go." Further, Starkey relayed that any purported
agreement would be contrary to the court's order because the order authorized
only Ringel to direct distributions. Nagel admitted before the court that Ringel
had "discretion as to certain areas he could use his share of the funds in escrow ,"
but argued Ringel elected to "pay our firm." The court ordered payment to the
arbitrator from the escrowed funds held by defendant because Ringel had the
right to distribute "funds collected and escrowed . . . for certain specific
purposes," including "legal fees," and that payment to the arbitrator falls within
"legal fees."
In February 2023, Ringel requested defendant issue a second payment to
the arbitrator from the escrowed funds. Plaintiff objected via email asserting,
"[A]nyone [that] seeks to take those funds . . . may be liable for tortious
interference." On February 7, Chana Ringel moved for an order authorizing
defendant to make the second payment to the arbitrator from the escrowed funds.
A-1081-24 7 Plaintiff again objected. On February 15, defendant moved to be relieved as
Ringel's counsel and as the escrow agent. Ringel certified he had not entered
into an agreement for plaintiff to receive all the escrowed funds. He also noted
he had paid plaintiff "over $600,000."
On March 3, the court heard arguments on the motions and ordered
defendant to pay the arbitrator. The court granted defendant's motion to
withdraw as counsel and modified the escrow order, providing that the "[e]scrow
[wa]s transferred to Bruce Nagel, Esq.['s] [f]irm, subject to the same
conditions." Thereafter, plaintiff moved to modify the March 3 order and strike
paragraph three, which directed JDWC to cease releasing Ringel's portion of the
escrowed funds, effectively pausing any distribution.
JDWC cross-moved for the court to reconsider plaintiff's appointment as
the escrow agent stating that it "is likely to result in more disputes, as Ringel
will now be in conflict with the agent of the Ringel [e]scrow." In April, the
court heard the parties' motions regarding the March 3 order and granted
plaintiff's motion to strike paragraph three, resuming escrow distribution. The
court denied JDWC's cross-motion to remove plaintiff as escrow agent but
reiterated that the escrow order "will remain in full force and effect" and retained
jurisdiction to decide disputes related to the disposition of escrowed funds.
A-1081-24 8 On April 7, while motion proceedings regarding the March 3 order were
ongoing before the Ocean County court, plaintiff filed a complaint against
defendant in Essex County for breach of contract. Plaintiff later filed an
amended complaint requesting a jury demand. Plaintiff alleged it had a contract
with Ringel for the release of all future escrowed funds. The amended complaint
posited that a contract was also entered with defendant to release Ringel's
escrowed funds, as evidenced by emails between the parties, and that defendant
breached the contract by failing to make escrow payments only to plaintiff.
After defendant filed a motion to dismiss, an Essex County trial judge
issued an order dismissing the complaint without prejudice. The judge found
plaintiff's claims had to be brought before the Ocean County Chancery Division
trial court presiding over "the consolidated Chancery Action."
A-1081-24 9 On August 6, 2024, plaintiff filed a new complaint against defendant
before the court "as part of the JDWC action." 2 Plaintiff again alleged that the
September emails were sufficient to indicate that "the parties reached [an]
agreement." About a month later, defendant moved to dismiss plaintiff's
complaint or, alternatively, to stay the matter. Defendant argued Starkey never
entered an agreement with plaintiff to release all of Ringel's escrowed funds and
that no such agreement could exist without violating the court's escrow order.
Plaintiff argued the complaint contained sufficient facts to glean a breach of
contract claim. While plaintiff argued there were many email communications,
the parties had no formal written agreement, and no specific oral agreement was
alleged.
During oral argument, the court referenced plaintiff's alleged facts and
confirmed with plaintiff's counsel that the complaint "reference[d] the emails"
2 At oral argument before us, plaintiff argued it had asserted a breach of fiduciary duty claim in its complaint and that it was also challenging the court's dismissal of that claim. A liberal review of plaintiff's complaint does not reveal a breach of fiduciary duty claim. Further, we note plaintiff conceded the issue was not briefed on appeal. We decline to consider issues that are not formally briefed and deem issues not properly raised as waived. See In re Bloomingdale Convalescent Ctr., 233 N.J. Super. 46, 49 n.1 (App. Div. 1989) (dismissing an appeal that was not briefed); State v. D.F.W., 468 N.J. Super. 422, 447 (App. Div. 2021) (disallowing consideration of issues not formally briefed by defendant); Rule 2:6-2(6).
A-1081-24 10 at issue regarding whether an agreement was entered with defendant. After the
court recited the history of Ringel's matters, the court found plaintiff averred
insufficient facts to support a contract with defendant as to the release of all
escrowed funds. The court also found that if such a contract had been entered it
would have violated the escrow order, which governed defendant's disbursement
of Ringel's escrowed funds. The court noted the escrow order gave Ringel the
discretion to authorize defendant to make payments from the escrowed funds for
legal fees and educational expenses. It observed there was no provision
permitting "the future of all these payments . . . going to" plaintiff. The court
added that if plaintiff entered an agreement with defendant that conflicted with
the escrow order—removing Ringel's discretion to designate where payments
were made—it would be unenforceable. While plaintiff did not argue that an
opportunity to amend the complaint should be afforded, the court found no
"amendment of this complaint" would change the result.
On appeal, plaintiff contends the court erred by ruling that plaintiff failed
to adequately state a claim supporting an agreement with defendant, and an
agreement between the parties would be contrary to the escrow order.
A-1081-24 11 II.
The "decision granting or denying a motion to dismiss for failure to state
a claim pursuant to Rule 4:6-2(e) is reviewed de novo." Maia v. IEW Constr.
Grp., 257 N.J. 330, 341 (2024). "The plaintiff is entitled to the benefit of every
reasonable inference as we 'search[] the complaint in depth and with liberality
to ascertain whether the fundament of a cause of action may be gleaned even
from an obscure statement of claim, opportunity being given to amend if
necessary.'" Pace v. Hamilton Cove, 258 N.J. 82, 96 (2024) (omission in
original) (quoting Printing Mart-Morristown v. Sharp Elecs. Corp., 116 N.J.
739, 746 (1989)). "When deciding a motion to dismiss under Rule 4:6-2(e), the
test to determine 'the adequacy of a pleading' is 'whether a cause of action is
"suggested" by the facts.'" Doe v. Est. of C.V.O., 477 N.J. Super. 42, 54 (App.
Div. 2023) (quoting MasTec Renewables Constr. Co. v. SunLight Gen. Mercer
Solar, LLC, 462 N.J. Super. 297, 309 (App. Div. 2020)). "A trial court's
interpretation of the law and the legal consequences that flow from established
facts are not entitled to any special deference." Manalapan Realty, L.P. v. Twp.
Comm. of Manalapan, 140 N.J. 366, 378 (1995).
"Where, however, it is clear that the complaint states no basis for relief
and that discovery would not provide one, dismissal of the complaint is
A-1081-24 12 appropriate." Johnson v. City of Hoboken, 476 N.J. Super. 361, 371 (App. Div.
2023) (quoting Sparroween, LLC v. Township of West Caldwell, 452 N.J.
Super. 329, 339 (App. Div. 2017)). Indeed, "the essential facts supporting
plaintiff's cause of action must be presented in order for the claim to survive;
conclusory allegations are insufficient in that regard." AC Ocean Walk, LLC v.
Am. Guarantee & Liab. Ins. Co., 256 N.J. 294, 311 (2024) (quoting Scheidt v.
DRS Techs., Inc., 424 N.J. Super. 188, 193 (App. Div. 2012)).
Courts may consider documents specifically referenced in the complaint
"without converting the motion into one for summary judgment." Myska v. New
Jersey Mfrs. Ins. Co., 440 N.J. Super. 458, 482 (App. Div. 2015) (quoting E.
Dickerson & Son, Inc. v. Ernst & Young, LLP, 361 N.J. Super. 362, 365 n.1
(App. Div. 2003), aff'd, 179 N.J. 500 (2004)). "In evaluating motions to dismiss,
courts consider 'allegations in the complaint, exhibits attached to the complaint,
matters of public record, and documents that form the basis of a claim.'" Ibid.
(quoting Banco Popular N. Am. v. Gandi, 184 N.J. 161, 183 (2005)).
To prevail on a breach of contract claim, a plaintiff must prove the
following elements by a preponderance of the evidence:
[F]irst, that "[t]he parties entered into a contract containing certain terms"; second, that "plaintiff[ ] did what the contract required [it] to do"; third, that "defendant[ ] did not do what the contract required [it]
A-1081-24 13 to do[,]" defined as a "breach of the contract"; and fourth, that "defendant['s] breach, or failure to do what the contract required, caused a loss to the plaintiff[ ]."
[Globe Motor Co. v. Igdalev, 225 N.J. 469, 482 (2016) (second and seventh alterations in original) (quoting Model Jury Charge (Civil), 4.10A, "The Contract Claim—Generally" (approved May 1998)).]
"[T]he fundamental elements of contract formation are mutual assent,
offer and acceptance, [and] consideration." Fazio v. Altice U.S., 261 N.J. 90,
103 (2025) (alterations in original) (quoting Comprehensive Neurosurgical, P.C.
v. Valley Hosp., 257 N.J. 33, 65 (2024)) (internal quotation marks omitted). "'A
contract arises from [an] offer and acceptance, and must be sufficiently definite
"that the performance to be rendered by each party can be ascertained with
reasonable certainty."'" Goldfarb v. Solimine, 245 N.J. 326, 339 (2021) (quoting
Weichert Co. Realtors v. Ryan, 128 N.J. 427, 435 (1992)).
"The plain language of the contract is the cornerstone of the interpretive
inquiry; 'when the intent of the parties is plain and the language is clear and
unambiguous, a court must enforce the agreement as written, unless doing so
would lead to an absurd result.'" Barila v. Bd. of Educ. of Cliffside Park, 241
N.J. 595, 616 (2020) (quoting Quinn v. Quinn, 225 N.J. 34, 45 (2016)). Further,
"[t]he parties are bound by the contracts they make for themselves, with the
understanding that 'a meeting of the minds is an essential element to the valid
A-1081-24 14 consummation' of any agreement." Barr v. Barr, 418 N.J. Super. 18, 32 (App.
Div. 2011) (quoting Ctr. 48 Ltd. P'ship v. May Dep't Stores Co., 355 N.J. Super.
390, 406 (App. Div. 2002)). "Mutual assent to an agreement requires mutual
understanding of its terms." Atalese v. U.S. Legal Servs. Grp., L.P., 219 N.J.
430, 447 (2014). "As a basic premise, it is true that 'no contract is enforceable
. . . without the flow of consideration--both sides must "get something" out of
the exchange.'" Oscar v. Simeonidis, 352 N.J. Super. 476, 484 (App. Div. 2002)
(quoting Cont'l Bank of Pa. v. Barclay Riding Acad., Inc., 93 N.J. 153, (1983)).
However, "[t]o the extent any ambiguity exists, . . . a court may discern the
parties' intent from evidence bearing on the circumstances of the agreement's
formation, and of the parties' behavior in carrying out its terms." EQR-LPC
Urban Renewal N. Pier, LLC v. City of Jersey City, 452 N.J. Super. 309, 319
(App. Div. 2016) (citations omitted). "The interpretation of a contract is
generally subject to de novo review." Arbus, Maybruch & Goode, LLC v.
Cogen, 475 N.J. Super. 509, 515 (App. Div. 2023).
III.
Plaintiff contends its complaint asserts a cognizable breach of contract
cause of action. Specifically, plaintiff contends the parties' emails formed a
contract and defendant breached the contract by failing to disburse all of Ringel's
A-1081-24 15 escrowed funds to plaintiff for its legal fees. Having reviewed the complaint
and emails, we disagree because no contract was formed with defendant.
It is undisputed that the court's escrow order provided Ringel with the
discretion to direct defendant to disburse escrowed funds for legal fees owed to
various law firms and for Ringel's children's educational expenses. The court's
escrow order did not give defendant, as the escrow agent, the authority to decide
who would receive funds, the priority of the funds disbursed, or the amount paid.
Plaintiff's complaint alleges that "the parties reached th[eir] agreement in
September" and relies on the referenced emails to memorialize the parties'
alleged contract. Plaintiff initially relies on Ringel's September 15, 2021 email
instructing Starkey, "Each month you receive a check for $15,000 please send
the amount received to [plaintiff] as payment for legal fees going forward."
Notably, while Ringel's email authorized defendant to make payments to
plaintiff from that date forward, it did not state that plaintiff was to receive
$15,000 each month in perpetuity from the escrowed funds. Ringel's email does
not mention an agreement with plaintiff for all future escrowed funds nor does
he state the authorized future payments to plaintiff are permanent and
interminable.
A-1081-24 16 Plaintiff next argues that Starkey's email response to Ringel and the
parties' other emails sufficiently demonstrate that the parties entered a contract
for defendant to disburse all the escrowed funds to plaintiff. Starkey sent an
immediate response to Ringel's email, copying plaintiff, that "each month"
Starkey required "a monthly invoice from" plaintiff "to keep documentation
under the [escrow] [o]rder that the expenditure is for legal fees or for your
children's tuition and healthcare." A plain reading of Starkey's email does not
evidence a contract between the parties. Stated another way, no contract was
formed between the parties simply because Starkey required plaintiff to provide
an invoice for each month that Ringel authorized plaintiff to receive an escrow
disbursement. We conclude, when viewing the emails liberally and providing
all reasonable inferences, that plaintiff has failed to state a claim because the
parties' emails do not demonstrate a meeting of the minds with consideration to
enter a contract.
Further, plaintiff references emails and claims they show a course of
conduct. They do not. Instead, the emails show that Starkey followed Ringel's
directions and the few payments made to plaintiff did not establish an
enforceable course of conduct governing future disbursements from the escrow.
A-1081-24 17 We conclude the trial court soundly found, "plaintiff has not pled sufficient facts
. . . that there was any agreement."
We also reject plaintiff's argument that the court erred in finding that any
agreement between the parties to release escrowed funds would have violated
the court's escrow order and been unenforceable. The court was familiar with
the parties and action, had entered the escrow order, and was interpreting its
own order in finding that, had the parties entered a contract to release escrowed
funds, it would have violated the escrow order. After a de novo review of the
plain meaning of the escrow order we discern no reason to disturb the court's
interpretation.
Finally, we recognize that a trial court's dismissal of a complaint under
Rule 4:6-2(e) is generally without prejudice. Hoffman v. Hampshire Labs, Inc.,
405 N.J. Super. 105, 116 (App. Div. 2009) ("A motion to dismiss pursuant to
Rule 4:6-2(e) ordinarily is granted without prejudice."). "[A] dismissal with
prejudice is 'mandated where the factual allegations are palpably insufficient to
support a claim upon which relief can be granted,' . . . or if 'discovery will not
give rise to such a claim.'" Mac Prop. Grp. LLC & The Cake Boutique LLC v.
Selective Fire & Cas. Ins. Co., 473 N.J. Super. 1, 17 (App. Div. 2022) (citations
reformatted) (first quoting Rieder v. State, 221 N.J. Super. 547, 552 (App. Div.
A-1081-24 18 1987) then quoting Dimitrakopoulos v. Borrus, Goldin, Foley, Vignuolo,
Hyman, and Stahl, P.C., 237 N.J. 92, 107 (2019)).
In this case, as we have concluded plaintiff failed to sufficiently state a
breach of contract claim, even liberally viewing the facts alleged in its
complaint, we discern no reason to disturb the court's determination that further
amendment would be futile and dismissal with prejudice was appropriate.
Affirmed.
A-1081-24 19