NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-2100-24
PARADIGM HEDGE, LLC, and PARADIGM DEVIATION, LLC,
Plaintiffs-Appellants,
v.
MARY ANN FOLCHETTI, Individually and as EXECUTRIX OF THE ESTATE OF MARIE CERLIONE, MICHAEL FOLCHETTI, ASHLEY L. FOLCHETTI, and JAMES FOLCHETTI,
Defendants-Respondents. _____________________________
Argued December 17, 2025 – Decided March 16, 2026
Before Judges Smith and Jablonski.
On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L- 2934-18.
Michael Confusione argued the cause for appellants (Hegge & Confusione, LLC, attorneys; Michael Confusione, on the briefs). Louis E. Granata (Louis E. Granata, PC) argued the cause for respondents.
PER CURIAM
Plaintiffs appeal from a Law Division order requiring them to pay
attorney's fees and costs to defendants following the dismissal of their matter
and the entry of judgment in defendants' favor. While we agree with the trial
court's finding that plaintiffs defaulted on their contractual payment obligation
to defendants, we disagree with the amount of fees awarded. Accordingly, we
affirm the trial court's decision to award attorney's fees but remand the matter
to the trial court to modify the fees to reflect only that work attributable to
defendants' efforts to obtain their judgment.
I.
In February 2014, plaintiffs agreed to sell and defendants agreed to
purchase (the agreement) an eleven-acre property in Holmdel conditioned on at
least six acres of that property being clear of protected wetlands and subject to
plaintiffs' responsibility to pay for certain environmental remediation.
Separately, the parties executed a $500,000 mortgage note on March 21,
2016 ("Note"). The Note included this language under a subsection titled
"Default":
A-2100-24 2 If [plaintiffs] fail [] to make any payment required by this Note within (30) thirty days after the due date, [defendants] may declare [plaintiffs] in [d]efault on the [m]ortgage and this Note. Upon [de]fault, [plaintiffs] must immediately pay the full amount of all unpaid principal and any other amounts due on the [m]ortgage and this Note, [defendants'] costs of collection and reasonable attorney['s] fees.
On April 17, 2017, the parties modified the Note to reduce the principal
from $500,000 to $200,000 and to change the accrued interest on the
obligation. The parties also specifically agreed to add the following language:
"remaining Principal of $200,000.00 less the costs and expenses of the
Remediation Work at the Property . . . plus accrued interest, shall be remitted
to [defendants] within thirty . . . days of the completion of the Remediation
Work at the Property, or March 21, 2018, whichever is sooner." The
amendment confirmed the "provisions of the [original] Note remain unchanged
and continue in full force and effect."
On July 25, 2018, defendants' counsel advised plaintiffs in a "Notice of
Default" that the remediation work that plaintiffs agreed to perform had not
been completed and the deadline for the payment under the amendment to the
Note passed. Defendants acknowledged plaintiffs sought further amendments
to the Note, but those efforts were rejected. According to that letter, if
plaintiffs failed to pay the $200,000 within thirty days of the Notice of
A-2100-24 3 Default, defendants' counsel would "enforce [his] client's rights under the Note
and Mortgage and seek attorney['s] fees and costs." Plaintiffs responded with
a lawsuit alleging breach of contract, fraud, and other claims. Defendants
counterclaimed for the outstanding balance on the Note and to foreclose on the
property.
After a bench trial, the Law Division denied plaintiffs' claims, granted
defendants' counterclaim, and awarded a $200,000 judgment to defendants
with interest. Without explanation, the trial court also denied both parties'
requests for counsel fees and costs.
Plaintiffs appealed. We affirmed the judgment but remanded to the trial
court to issue a statement of reasons limited to the issue of the entitlement to
the award of attorney's fees. Paradigm Hedge v. Cerlione, No. A-1161-21
(App. Div. May 11, 2023) (slip op. at 21).
On remand, the trial court initially observed that "[p]ursuant to the terms
of the Mortgage in the event of a default . . . plaintiffs must immediately pay
the full amount of the unpaid principal, interest, and other amounts due on the
Note and this Mortgage and the cost of collection and reasonable attorney['s]
fees." It also noted "[Rule] 4:42-9(a)(4) . . . provides for an award of
attorneys' fees and an action for the foreclosure on the Mortgage." Following
A-2100-24 4 these principles, the trial court considered the certifications provided by
counsel, made a few deductions, and ultimately awarded defendants
$71,246.97.
Plaintiffs appeal and argue the trial court mistakenly awarded attorney's
fees and costs to defendants. They assert defendants are not legally entitled to
recover these fees because plaintiffs initiated the lawsuit rather than
defendants. Additionally, they contend this litigation is not a collection action
resulting from a default under the Note and Mortgage. Finally, plaintiffs
emphasize defendants' right to recover fees and costs under the Note and
Mortgage would only be triggered if there were a declared default under the
Note- a conclusion plaintiffs argue the trial court did not make.
II.
Plaintiffs first argue the attorney's fee award was improper because the
trial court never concluded plaintiffs defaulted under the terms of the Note
and, therefore, never triggered the obligation to pay these amounts. We
disagree.
We review de novo a trial court's interpretation of a contract.
Fastenberg v. Prudential Ins. Co. of Am., 309 N.J. Super. 415, 420 (App. Div.
1998). "The determination of whether a contract term is clear or ambiguous is
A-2100-24 5 a pure question of law requiring plenary review." In re Teamsters Indus. Emp.
Welfare Fund, 989 F.2d 132, 135 (3d Cir. 1993). "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)). "[U]nambiguous contracts
will be enforced as written unless they are illegal or otherwise violate public
policy." Manahawkin Convalescent v. O'Neill, 217 N.J. 99, 118 (2014)
(quoting Leonard & Butler P.C. v. Harris, 279 N.J. Super. 659, 671 (App. Div.
1995)). The "court's task [i]s 'not to rewrite a contract for the parties better
than or different from the one they wrote for themselves.'" Globe Motor Co. v.
Igdalev, 225 N.J. 469, 483 (2016) (quoting Kieffer v. Best Buy, 205 N.J. 213,
223 (2009)).
Free access — add to your briefcase to read the full text and ask questions with AI
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-2100-24
PARADIGM HEDGE, LLC, and PARADIGM DEVIATION, LLC,
Plaintiffs-Appellants,
v.
MARY ANN FOLCHETTI, Individually and as EXECUTRIX OF THE ESTATE OF MARIE CERLIONE, MICHAEL FOLCHETTI, ASHLEY L. FOLCHETTI, and JAMES FOLCHETTI,
Defendants-Respondents. _____________________________
Argued December 17, 2025 – Decided March 16, 2026
Before Judges Smith and Jablonski.
On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L- 2934-18.
Michael Confusione argued the cause for appellants (Hegge & Confusione, LLC, attorneys; Michael Confusione, on the briefs). Louis E. Granata (Louis E. Granata, PC) argued the cause for respondents.
PER CURIAM
Plaintiffs appeal from a Law Division order requiring them to pay
attorney's fees and costs to defendants following the dismissal of their matter
and the entry of judgment in defendants' favor. While we agree with the trial
court's finding that plaintiffs defaulted on their contractual payment obligation
to defendants, we disagree with the amount of fees awarded. Accordingly, we
affirm the trial court's decision to award attorney's fees but remand the matter
to the trial court to modify the fees to reflect only that work attributable to
defendants' efforts to obtain their judgment.
I.
In February 2014, plaintiffs agreed to sell and defendants agreed to
purchase (the agreement) an eleven-acre property in Holmdel conditioned on at
least six acres of that property being clear of protected wetlands and subject to
plaintiffs' responsibility to pay for certain environmental remediation.
Separately, the parties executed a $500,000 mortgage note on March 21,
2016 ("Note"). The Note included this language under a subsection titled
"Default":
A-2100-24 2 If [plaintiffs] fail [] to make any payment required by this Note within (30) thirty days after the due date, [defendants] may declare [plaintiffs] in [d]efault on the [m]ortgage and this Note. Upon [de]fault, [plaintiffs] must immediately pay the full amount of all unpaid principal and any other amounts due on the [m]ortgage and this Note, [defendants'] costs of collection and reasonable attorney['s] fees.
On April 17, 2017, the parties modified the Note to reduce the principal
from $500,000 to $200,000 and to change the accrued interest on the
obligation. The parties also specifically agreed to add the following language:
"remaining Principal of $200,000.00 less the costs and expenses of the
Remediation Work at the Property . . . plus accrued interest, shall be remitted
to [defendants] within thirty . . . days of the completion of the Remediation
Work at the Property, or March 21, 2018, whichever is sooner." The
amendment confirmed the "provisions of the [original] Note remain unchanged
and continue in full force and effect."
On July 25, 2018, defendants' counsel advised plaintiffs in a "Notice of
Default" that the remediation work that plaintiffs agreed to perform had not
been completed and the deadline for the payment under the amendment to the
Note passed. Defendants acknowledged plaintiffs sought further amendments
to the Note, but those efforts were rejected. According to that letter, if
plaintiffs failed to pay the $200,000 within thirty days of the Notice of
A-2100-24 3 Default, defendants' counsel would "enforce [his] client's rights under the Note
and Mortgage and seek attorney['s] fees and costs." Plaintiffs responded with
a lawsuit alleging breach of contract, fraud, and other claims. Defendants
counterclaimed for the outstanding balance on the Note and to foreclose on the
property.
After a bench trial, the Law Division denied plaintiffs' claims, granted
defendants' counterclaim, and awarded a $200,000 judgment to defendants
with interest. Without explanation, the trial court also denied both parties'
requests for counsel fees and costs.
Plaintiffs appealed. We affirmed the judgment but remanded to the trial
court to issue a statement of reasons limited to the issue of the entitlement to
the award of attorney's fees. Paradigm Hedge v. Cerlione, No. A-1161-21
(App. Div. May 11, 2023) (slip op. at 21).
On remand, the trial court initially observed that "[p]ursuant to the terms
of the Mortgage in the event of a default . . . plaintiffs must immediately pay
the full amount of the unpaid principal, interest, and other amounts due on the
Note and this Mortgage and the cost of collection and reasonable attorney['s]
fees." It also noted "[Rule] 4:42-9(a)(4) . . . provides for an award of
attorneys' fees and an action for the foreclosure on the Mortgage." Following
A-2100-24 4 these principles, the trial court considered the certifications provided by
counsel, made a few deductions, and ultimately awarded defendants
$71,246.97.
Plaintiffs appeal and argue the trial court mistakenly awarded attorney's
fees and costs to defendants. They assert defendants are not legally entitled to
recover these fees because plaintiffs initiated the lawsuit rather than
defendants. Additionally, they contend this litigation is not a collection action
resulting from a default under the Note and Mortgage. Finally, plaintiffs
emphasize defendants' right to recover fees and costs under the Note and
Mortgage would only be triggered if there were a declared default under the
Note- a conclusion plaintiffs argue the trial court did not make.
II.
Plaintiffs first argue the attorney's fee award was improper because the
trial court never concluded plaintiffs defaulted under the terms of the Note
and, therefore, never triggered the obligation to pay these amounts. We
disagree.
We review de novo a trial court's interpretation of a contract.
Fastenberg v. Prudential Ins. Co. of Am., 309 N.J. Super. 415, 420 (App. Div.
1998). "The determination of whether a contract term is clear or ambiguous is
A-2100-24 5 a pure question of law requiring plenary review." In re Teamsters Indus. Emp.
Welfare Fund, 989 F.2d 132, 135 (3d Cir. 1993). "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)). "[U]nambiguous contracts
will be enforced as written unless they are illegal or otherwise violate public
policy." Manahawkin Convalescent v. O'Neill, 217 N.J. 99, 118 (2014)
(quoting Leonard & Butler P.C. v. Harris, 279 N.J. Super. 659, 671 (App. Div.
1995)). The "court's task [i]s 'not to rewrite a contract for the parties better
than or different from the one they wrote for themselves.'" Globe Motor Co. v.
Igdalev, 225 N.J. 469, 483 (2016) (quoting Kieffer v. Best Buy, 205 N.J. 213,
223 (2009)). "It is well-settled that '[c]ourts enforce contracts based on the
intent of the parties, the express terms of the contract, surrounding
circumstances and the underlying purpose of the contract.'" In re Cnty. of
Atlantic, 230 N.J. 237, 254 (2017) (alteration in original) (quoting
Manahawkin Convalescent, 217 N.J. at 99) (internal quotation marks omitted).
"A party violates the terms of a contract by failing to fulfill a requirement
A-2100-24 6 enumerated in the agreement." Woytas v. Greenwood Tree Experts, Inc., 237
N.J. 501, 512 (2019).
Central to resolving this dispute is the determination of whether
plaintiffs defaulted on their payment obligations under the contract established
between plaintiffs and defendants through the Mortgage Note. We conclude
plaintiffs did, in fact, default.
Default is "the omission or failure to perform a legal or contractual duty;
[especially], the failure to pay a debt when due." Roach v. BM Motoring,
LLC, 228 N.J. 163, 176 n.4 (2017) (citing Sink v. Aden Enters., Inc., 352 F. 3d
1197, 1199 n.2. (9 th Cir. 2003)) (quoting Default, Black's Law Dictionary (7th
ed. 1999)).
In this matter, the term is defined by the language of subsection titled
"Default": "If [plaintiffs] fail [] to make any payment required by this Note
within (30) thirty days after the due date, the [l]ender may declare [b]orrower
in default on the Mortgage and this Note."
Despite the trial court's failure to explicitly use the term "default" in its
decision, the record reveals plaintiffs defaulted. Sufficient evidence was
presented to establish that plaintiffs did not fulfill their payment obligation
under the terms of the Note because they failed to make any payment due as
A-2100-24 7 required by the agreement. Specifically, under the terms of the amended Note,
plaintiffs were obligated to pay $200,000 to defendants within thirty days of
the "completion of the Remediation Work or March 21, 2018, whichever is
sooner." Plaintiffs failed to comply with both aspects.
Defendants also notified plaintiffs of their non-compliance in a "Notice
of Default," and provided plaintiffs thirty days to remedy their payment
deficiency. When plaintiffs failed to do so, defendants deemed them "in
default under the Mortgage and Note." Consequently, under the terms of the
obligation, plaintiffs were immediately required to pay the full amount of all
unpaid principal, any other amounts due on the Mortgage and Note, as well as
defendants' costs of collection and attorney's fees.
III.
Since plaintiffs defaulted in their obligation under the Note, defendants
were, therefore, entitled to recover their "costs of collection and reasonable
attorney fees." The trial judge agreed and, after making certain deductions
from the certifications in support of that request, awarded defendants
$71,246.97, or $62,090.05 for legal fees and $9,156.92 in costs.
New Jersey courts have consistently enforced contractual provisions
requiring the payment of attorneys' fees and costs. See State Dep't of Envtl.
A-2100-24 8 Protection v. Ventron Corp., 94 N.J. 473, 504 (1983) (holding that attorneys'
fees provisions are enforceable where expressly authorized by contract, statute,
or court rule) (citations omitted) On appeal, plaintiffs argue that the amount is
excessive since the award includes attorney's fees charged for matters
unrelated to work defendants did to obtain their judgment. We agree because
any charges unrelated to defendants' counsel's litigation efforts render the fee
unfair and unreasonable.
Preliminarily, we note that we will only disturb a trial court's award of
attorney's fees "'only on the rarest of occasions, and then only because of a
clear [misapplication] of discretion.'" Packard-Bamburg & Co., Inc. v. Collier,
167 N.J. 427, 444 (2001) (quoting Rendine v. Pantzer, 141 N.J. 292, 317
(1995)). Here, we acknowledge that although the trial court ostensibly
reviewed the certifications and made certain conclusory deductions, the record
is devoid of the required analysis reflecting the judicial scrutiny of the
reasonableness of the fees related to the transactions for which defendants'
counsel sought recovery.
According to the Note, upon plaintiffs' default, the unpaid principal is
accelerated and they are required to pay "costs of collection and reasonable
attorney fees." Because costs of collection and attorney's fees appear together
A-2100-24 9 in the same sentence, it is reasonable to conclude that any recoverable
attorney's fees are limited to those incurred specifically during the collection
process, rather than reimbursement for all fees paid by the prevailing party
throughout the entire representation. Our jurisprudence mandates the trial
court to scrutinize and to adjust, if necessary, the requested fees to reflect the
particular circumstances of the case to arrive at a number that is reasonable
and fair. "The ultimate goal is to approve a reasonable attorney's fee that is
not excessive." Litton Indus. Inc., Inc. v. IMO Indus. Inc., 200 N.J. 372, 388
(2009).
In assessing an award, it is well-established that trial courts must
carefully evaluate the fee's overall reasonableness. To that end, "[t]he court's
first step . . . is determining the lodestar, 'which equals the number of hours
reasonably expended multiplied by a reasonable hourly rate.'" Jacobs v. Mark
Lindsay & Son Plumbing & Heating, Inc., 458 N.J. Super. 194, 209 (App. Div.
2019) (quoting Furst v. Einstein Moomjy, Inc., 182 N.J. 1, 21 (2004)).
There are four considerations in setting the lodestar. The first is the reasonableness of the attorney's fee, evaluated under the factors set forth in RPC 1.5(a). Second, the court considers the reasonableness of the time billed by the attorney, since a party is not entitled to [attorney's] fees for excessive and unnecessary hours. Third, the court determines whether the award should be decreased because the plaintiff "achieved
A-2100-24 10 limited success in relation to the relief he [or she] had sought." Fourth, the court must decide whether the attorney is entitled to a fee enhancement if the attorney worked under a contingency agreement.
[Heyert v. Taddese, 431 N.J. Super. 388, 443-44 (App. Div. 2013) (footnote omitted) (citations omitted) (first citing Furst, 182 N.J. at 21-22; then quoting Furst, 182 N.J. at 23)].
In considering the reasonableness of the proposed attorney's fees, "the
court evaluates the 'rate of the prevailing attorney in comparison to rates "for
similar services by lawyers of reasonably comparable skill, experience, and
reputation" in the community.'" Jacobs, 458 N.J. Super. at 210 (quoting Furst,
182 N.J. at 22).
As for the reasonableness of the time billed, the trial court must consider
"whether the time expended in pursuit of the 'interests to be vindicated,' the
'underlying statutory objectives,' and recoverable damages is equivalent to the
time 'competent counsel reasonably would have expended to achieve a
comparable result.'" Ibid. (quoting Furst, 182 N.J. at 22). If after the court
establishes the lodestar fee, the court determines that an enhancement is
warranted, "'the court should consider the result achieved, the risks involved,
and the relative likelihood of success in the undertaking' to determine the
amount of [the] enhancement." Id. at 210 (quoting Furst, 82 N.J. at 23).
A-2100-24 11 Similarly, "[t]he court must not include excessive and unnecessary hours
spent on the case in calculating the lodestar." Furst, 182 N.J. at 22. Therefore,
the amount of the lodestar "may be reduced[.]" R.M. v. Sup. Ct. of N.J., 190
N.J. 1, 11 (2007).
We conclude that on remand, the trial court did not sufficiently engage
in this analysis. We are constrained, therefore, to remand the matter for a
detailed consideration of the attorney's fee award with a specific mandate the
trial court only consider those charges with a reasonable nexus to defendants'
efforts to obtain the $200,000 judgment after plaintiffs' default. We express no
view as to the reasonableness of any of those time entries and leave that to the
trial court on remand.
To the extent we have not addressed any of plaintiffs' remaining
arguments, we conclude those arguments lack sufficient merit to warrant
discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed in part, reversed and remanded for the trial court to address the
attorney's fees award in accordance with this opinion. We do not retain
jurisdiction.
A-2100-24 12