NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-0855-22
STEVEN D'AGOSTINO,
Plaintiff-Appellant,
and
VALERIE D'AGOSTINO,
Plaintiff,
v.
DIRKES AUTO LLC,
Defendant-Respondent,
CRAMER'S AUTO RECYCLING and DOUBLE D'S AUTO LLC,
Defendants. ____________________________
Argued January 13, 2025 – Decided September 29, 2025
Before Judges Gummer, Berdote Byrne and Jacobs. On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Docket No. SC-000332-22.
Steven D'Agostino, appellant, argued the cause pro se.
John B. Kearney argued the cause for respondent (Kearney & Associates, PC, attorneys; John B. Kearney, on the brief).
The opinion of the court was delivered by
GUMMER, J.A.D.
In a case involving plaintiffs' attempt to sell a car their deceased mother
had owned, plaintiff Steven D'Agostino appeals from orders dismissing the
complaint, awarding counsel fees to defendant Dirkes Auto LLC, and denying
his cross-motions for sanctions, reconsideration, enforcement of a purported
settlement agreement, and leave to amend. 1 Perceiving no error in the trial
court's determination that plaintiffs lacked standing and legal authority to sell
the car or file the lawsuit, we affirm.
1 The complaint also identified Valerie D'Agostino as a plaintiff. She did not participate in this appeal. Accordingly, we refer to Steven D'Agostino as plaintiff or Steven. We use plaintiffs' first names for ease of reading given their shared last name and mean no disrespect in doing so. We refer to Steven and Valerie collectively as plaintiffs. The complaint identifies Dirkes Used Auto Parts as a defendant. According to defense counsel, the correct name for that entity is Dirkes Auto LLC (Dirkes). A-0855-22 2 I.
On May 30, 2022, plaintiffs, who were self-represented, filed a complaint
in the Special Civil Part, naming as defendants Dirkes, Cramer's Auto Recycling
(Cramer's), and Double D's Auto LLC, entities purportedly involved in the
scrap-metal or metal-recycling business.2 We derive these facts from the
allegations plaintiffs made in the complaint.
Plaintiffs, who are siblings, alleged that, before their mother died, she had
"signed the title" of a vehicle she owned, "leaving the transferee field blank,
with the understanding that after her death, [plaintiffs] would sell the car and
share the money from the sale." According to plaintiffs, when they contacted
Dirkes after their attempt to sell the car to Cramer's, someone at Dirkes agreed
to pay $500 for the car and pick it up, and plaintiffs accepted the offer. When
no one from Dirkes appeared that day to collect the car, plaintiffs placed online
classified ads to sell it. They parked the car on the street in front of Valerie's
property and placed in it a sign with Steven's phone number.
2 According to Steven, Double D's Auto LLC was never served with the complaint, and plaintiffs withdrew their claims against Cramer's after the court dismissed the case. Consequently, Double D's Auto LLC did not participate in this litigation, and Cramer's did not participate in this appeal. A-0855-22 3 On May 11, 2022, Steven learned from police the car had been towed to
Dirkes's junkyard as an abandoned vehicle. The next day, he called Dirkes, a
Dirkes employee offered $400 for the car, and he accepted the offer. The
employee told Steven he would have to provide the car's title to receive payment;
Steven accepted that condition and agreed to provide the title within a few days.
Ten minutes later, the employee called Steven and advised him he had spoken
with his boss. Instead of paying $400 for the car, the boss was willing to apply
$400 as a credit to the $530 Dirkes was charging for towing and storing the car.
Plaintiffs pleaded causes of action for breach of contract and breach of the
implied covenant of good faith and fair dealing as to Dirkes and Cramer's and
asserted Dirkes had violated the New Jersey Consumer Fraud Act, N.J.S.A.
56:8-1 to -229. Plaintiffs also pleaded a cause of action entitled "Unjust
Enrichment," contending that if the court were to find "there was not a meeting
of the minds" on the terms of the alleged contract, Dirkes should not be allowed
to keep the car.
Dirkes moved to dismiss the complaint, contending plaintiffs did not own
the car and, thus, did not have standing to bring the lawsuit. In a certification
submitted in support of the motion, defense counsel cited plaintiffs' assertion in
the complaint that their mother had signed the car's title but had left the
A-0855-22 4 transferee line blank. Thus, ownership of the vehicle had not been transferred
and remained in their deceased mother's name.
After the court adjourned oral argument of the motion at Steven's request
and following a mediation session that took place on the original return date of
the motion, Dirkes again moved to dismiss the complaint for lack of standing.
Steven opposed the motion and cross-moved to sanction Dirkes's counsel for
alleged conduct during the mediation session, to sanction both defendants'
counsel for sending "bogus [Rule] 1:4-8 letters," and to enforce a verbal
settlement agreement the parties allegedly had "initially agreed upon" during the
mediation. Dirkes opposed the motion, denying the parties had settled the case
during the mediation.
On September 23, 2022, the court placed a decision on the record and
entered orders granting Dirkes's dismissal motion and denying the cross-motion.
Regarding the cross-motion, the court found the Rule 1:4-8 letters were not
"improper" but were "appropriate" under the circumstances and Steven had not
established the existence of a settlement agreement. Regarding the motion to
dismiss, the court found plaintiffs did not have standing to bring the lawsuit.
The court explained:
This whole notion that the decedent left title to her two children with the buyer's name empty, how do I know
A-0855-22 5 the decedent doesn't have other children or others in interest or a husband? What's needed, what the [c]ourt looks to, and the [c]ourt's presented with these types of situations all [the] time, I need some authority for the [p]laintiffs, or if the reverse was true, if it was the [d]efendants, I need some authority. And the [p]laintiffs haven't shown it, that either of them is the executor or executrix, the administrator or the administratrix of the Estate of Carol D'Agostino. And without that they have no authority to act. Counsel's correct, it's an asset of the estate.
Dirkes moved for an order sanctioning plaintiffs for violating Rule 1:4-8.
In support of the motion, Dirkes submitted its attorney's certification and a copy
of an August 16, 2022 letter the attorney had sent to plaintiffs. In that letter,
counsel stated the complaint constituted frivolous litigation under Rule 1:4-8
and N.J.S.A. 2A:15-59.1 because plaintiffs had "no standing to bring a claim
based upon property that [they had] no ownership interest in." Counsel told
plaintiffs Dirkes would move for an award of counsel fees and costs if they did
not dismiss the complaint within twenty-eight days. In his certification, counsel
noted plaintiffs had sued defendants, claiming "they had enforceable contracts
with the defendants to sell those defendants an automobile" when "[t]he
automobile in question was not owned by the plaintiffs and, as such, the
plaintiffs had no right to sell that automobile."
A-0855-22 6 Steven opposed the motion and cross-moved to vacate the September 23,
2022 dismissal order and for leave to "amend the complaint with the proper
plaintiff, whom now has standing pursuant to the [c]ourt's rulings." He did not
state who the proper plaintiff was or include a copy of a proposed amended
complaint. Instead, he asked the court "to decide the most appropriate name(s)
for the [p]laintiff(s) in this particular case." Steven asserted that after the court
dismissed the case, he had undertaken "the necessary steps and expenses so that
[he] could act as the administrator of [his] late mother's estate." To support that
assertion, he submitted an "Affidavit of Heir in Lieu of Administration (Next of
Kin)" he had executed on October 5, 2022, and submitted to the Atlantic County
Surrogate Court. In that affidavit, he asserted he was "entitled to" his mother's
car "without the Letters of Administration, in accordance with N.J.S.A. 3B:10 -
4."3 He further contended the amount of sanctions sought was excessive and
unfair. Dirkes opposed the cross-motion.
On October 21, 2022, the court placed a decision on the record and entered
an order denying the cross-motion and an order granting the motion for sanctions
and requiring plaintiffs to pay Dirkes a judgment of $4,860.49 in attorney's fees
3 Steven also asserted in the affidavit he had "presented for filing" Valerie's consent, which is required under N.J.S.A. 3B:10-4, but he did not submit to the trial court or this court a copy of that consent document. A-0855-22 7 and costs. The court found the complaint "was frivolous upon filing because it
was commenced, used or continued in bad faith, solely for the purpose of
harassment, delay or malicious injury." The court considered the cross-motion
to vacate the dismissal order as a reconsideration motion and concluded its
decision to dismiss the case on September 23 "wasn't wrong." The court
explained: "Again, the key date is May 30th of the year when the complaint was
filed. The [p]laintiff may have taken . . . some steps with respect to the Atlantic
County Surrogate. That's all well and good. That comes too little too late as far
as this action is concerned." The court denied leave to amend the complaint
because "[t]he simple fact of the matter is there's no reason to amend a complaint
that's already been dismissed . . . ."
After additional proceedings and submissions, Dirkes moved again for
sanctions pursuant to Rule 1:4-8, seeking a total award of $11,020.49. Steven
opposed the motion and cross-moved for reconsideration of the dismissal and
sanction orders and for other relief. Dirkes opposed the cross-motion. On
February 28, 2023, the court placed a decision on the record and entered an order
denying the cross-motion and granting in part the sanctions motion, awarding
an additional $4,040 in counsel fees.
A-0855-22 8 This appeal followed. In his amended notice of appeal, Steven
specifically referenced orders dated September 23, 2022, October 21, 2022, and
February 28, 2023. In his appellate briefing, he did not address all aspects of
those orders. We deem waived and do not address issues that were not briefed.
See Green Knight Cap., LLC v. Calderon, 469 N.J. Super. 390, 396 (App. Div.
2021) (declining to reach an issue plaintiff had failed to raise or brief on appeal);
N.J. Dep't of Env't Prot. v. Alloway Twp., 438 N.J. Super. 501, 505 n.2 (App.
Div. 2015) (finding "[a]n issue that is not briefed is deemed waived upon
appeal").
II.
We review a trial court's ruling on a motion to dismiss de novo, giving
"no deference . . . to the trial court's conclusions." AC Ocean Walk, LLC v. Am.
Guar. & Liab. Ins. Co., 256 N.J. 294, 310 (2024). "Although the review of the
factual allegations of a complaint on a motion to dismiss is to be 'undertaken
with a generous and hospitable approach,' '[a] pleading should be dismissed if it
states no basis for relief and discovery would not provide one.'" Mueller v. Kean
Univ., 474 N.J. Super. 272, 283 (2022) (alteration in original) (first quoting
Printing Mart-Morristown v. Sharp Elecs. Corp., 116 N.J. 739, 746 (1989); and
then quoting Rezem Fam. Assocs., LP v. Borough of Millstone, 423 N.J. Super.
A-0855-22 9 103, 113 (App. Div. 2011)); see also AC Ocean Walk LLC, 256 N.J. at 311 ("the
essential facts supporting plaintiff's cause of action must be presented in order
for the claim to survive" (quoting Scheidt v. DRS Techs., Inc., 424 N.J. Super.
188, 193 (App. Div. 2012))).
We review a trial judge's decision on a motion for frivolous-lawsuit
sanctions under an abuse-of-discretion standard. Wolosky v. Fredon Twp., 472
N.J. Super. 315, 327 (App. Div. 2022). An abuse of discretion "arises when a
decision is 'made without a rational explanation, inexplicably departed from
established policies, or rested on an impermissible basis.'" Flagg v. Essex Cnty.
Prosecutor, 171 N.J. 561, 571 (2002) (quoting Achacoso-Sanchez v. Immigr. &
Naturalization Serv., 779 F.2d 1260, 1265 (7th Cir. 1985)). Reversal of a
sanctions order is warranted when the trial court's decision "was not premised
upon consideration of all relevant factors, was based upon consideration of
irrelevant or inappropriate factors, or amount[ed] to a clear error in judgment."
Ferolito v. Park Hill Ass'n, 408 N.J. Super. 401, 407 (App. Div. 2009) (quoting
Masone v. Levine, 382 N.J. Super. 181, 193 (App. Div. 2005)). We also review
reconsideration orders and fee awards under an abuse-of-discretion standard.
Branch v. Cream-O-Land Dairy, 244 N.J. 567, 582 (2021); Diamond Beach,
LLC v. March Assocs., Inc., 457 N.J. Super. 265, 285 (App. Div. 2018).
A-0855-22 10 A. The Dismissal of the Complaint
"To possess standing in state court, a party must have 'a sufficient stake
in the outcome of the litigation' and 'real adverseness,' and there must be 'a
substantial likelihood that the party will suffer harm in the event of an
unfavorable decision.'" In re Establishment of Cong. Dists. by N.J. Redistricting
Comm'n, 249 N.J. 561, 570 (2022) (quoting In re Camden Cnty., 170 N.J. 439,
449 (2002)). In short, standing "focuses on whether a party has a legal
entitlement to seek relief from the court." EnviroFinance Grp., LLC v. Env't
Barrier Co., 440 N.J. Super. 325, 339 (App. Div. 2015).
To enter a contract to sell property, the seller must own or otherwise have
authority to enter the contract. See In re Est. of Yates, 368 N.J. Super. 226, 235-
36, 237 (App. Div. 2004) (explaining the contract for the sale of property was
valid when the seller "held legal title to the property when the contract was
made"); see also Borromeo v. DiFlorio, 409 N.J. Super. 124, 140 (App. Div.
2009) (holding the sheriff had no authority to sell property when there was a
substantive error in the writ of execution). Any action taken without legal
authority is void ab initio. Grasso v. Borough of Spring Lake Heights, 375 N.J.
Super. 41, 48 (App. Div. 2004). "An action that is void ab initio is void from
the beginning." Heyert v. Taddese, 431 N.J. Super. 388, 429 (App. Div. 2013).
A-0855-22 11 A seller has standing to enforce a contract for the sale of property if the
party held legal title to the property at the time the contract was entered. See In
re Est. of Yates, 368 N.J. Super. at 235-36, 237 (remanding for entry of a
judgment for specific performance on the contract when the seller "held legal
title to the property when the contract was made"); see also Ross v. Lowitz, 222
N.J. 494, 513-16 (2015) (holding the plaintiffs could not proceed with a claim
against defendant insurers for breach of the implied covenant of good faith and
fair dealing because they did not hold an assignment of rights from the named
insured); B & D Assoc., Ltd. v. Twp. of Franklin, 32 N.J. Tax 81, 90 (N.J. Tax
Ct. 2020) (holding an owner of real property has standing to challenge the
property's tax assessment "while it holds title to the property").
Based on our de novo review of the allegations of the complaint, we reach
the same conclusion the trial court reached: plaintiffs did not have legal
authority to enter into a contract to sell the car and did not have standing to bring
this lawsuit. Plaintiffs stated in the complaint their mother had signed the title
but left the transferee field blank. Thus, before her death, their mother did not
transfer title of the car to plaintiffs or anyone and the car remained an asset of
her estate. Plaintiffs brought the lawsuit in their individual capacities, not as
administrators, executives, or other representatives of the estate – a status they
A-0855-22 12 apparently did not have given Steven's post-complaint submission to the
Surrogate Court.
Plaintiffs did not have an ownership interest in the car or any other legal
authority to enter into a contract to sell it when they attempted to sell the car to
Dirkes. In failing to plead facts demonstrating an ownership interest in the car
or legal authority to enter into a contract to sell it, plaintiffs failed to plead
"essential facts supporting [their] cause[s] of action," including the existence of
a valid, legally-enforceable contract. Scheidt, 424 N.J. Super. at 193. And with
no legal entitlement to seek relief from the court, plaintiffs had no standing to
bring this lawsuit. EnviroFinance Grp., LLC, 440 N.J. Super. at 339. That
Steven submitted to the Surrogate Court an affidavit of heir in lieu of
administration after the dismissal of the case does not change the fact plaintiffs
had no legal authority to enter into the purported contract with Dirkes or to file
the lawsuit.
Steven contends he and his sister had standing to sue as third-party
beneficiaries. But they did not plead any facts in the complaint that support that
contention. To the contrary, they alleged they were direct parties, not third-
party beneficiaries, to a contract they purportedly entered into with Dirkes. A
third-party beneficiary is not one of "the parties who actually made the contract"
A-0855-22 13 but someone not involved in the creation of the contract the contracting parties
intended to benefit. Pollack v. Quick Quality Rests., Inc., 452 N.J. Super. 174,
186 (App. Div. 2017) (quoting Broadway Maint. Corp. v. Rutgers, State Univ.,
90 N.J. 253, 259 (1982)).
Plaintiffs also failed to allege facts necessary to support an unjust-
enrichment claim. The unjust-enrichment doctrine "requires that plaintiff show
that it expected remuneration from the defendant at the time it performed or
conferred a benefit on defendant and that the failure of remuneration enriched
defendant beyond its contractual rights." Thieme v. Aucoin-Thieme, 227 N.J.
269, 288 (2016) (quoting Iliadis v. Wal-Mart Stores, Inc., 191 N.J. 88, 110
(2007)). Plaintiffs did not allege they had conferred a benefit on defendant for
which they expected remuneration. They alleged they had left the car parked on
the street for several days, and when it was reported as an abandoned vehicle, it
was towed to Dirkes's junkyard. Those facts do not support an unjust-
enrichment claim.
For those reasons, we affirm the September 23, 2022 order granting
Dirkes's motion to dismiss, the October 21, 2022 order denying the cross-motion
to vacate the September 23, 2022 order and for leave to amend, and the February
28, 2023 order denying the cross-motion for reconsideration.
A-0855-22 14 B. The Award of Sanctions
"Sanctions for frivolous litigation against a party are governed by the
frivolous litigation statute, N.J.S.A. 2A:15-59.1." Wolosky, 472 N.J. Super. at
327. "On the one hand, 'the statute serves a punitive purpose, seeking to deter
frivolous litigation.'" Toll Bros., Inc. v. Twp. of W. Windsor, 190 N.J. 61, 67
(2007) (quoting Deutch & Shur, P.C. v. Roth, 284 N.J. Super. 133, 141 (App.
Div. 1995)). "On the other hand, the statute serves a compensatory purpose,
seeking to reimburse 'the party that has been victimized by the party bringing
the frivolous litigation.'" Ibid. (quoting Deutch & Shur, 284 N.J. Super. at 141).
Pursuant to the statute, a court may "award reasonable counsel fees and
litigation costs to a prevailing party in a civil action if the court determines 'that
a complaint, counterclaim, cross-claim or defense of the nonprevailing person
was frivolous.'" Ibid. (quoting N.J.S.A. 2A:15-59.1(a)(1)). A complaint is
frivolous if it was "commenced, used or continued in bad faith, solely for the purpose of harassment, delay or malicious injury," N.J.S.A. 2A:15–59.1(b)(1), or if "[t]he nonprevailing party knew, or should have known, that the complaint, counter-claim, crossclaim or defense was without any reasonable basis in law or equity and could not be supported by a good faith argument for an extension, modification or reversal of existing law," N.J.S.A. 2A:15–59.1(b)(2).
[Ibid.]
A-0855-22 15 "Rule 1:4-8 prescribes the procedure for seeking sanctions against an
attorney or pro se party who files a frivolous 'pleading, written motion, or other
paper.'" Toll Bros., 190 N.J. at 69 (quoting R. 1:4-8(b)). "Strict compliance
with each procedural requirement of Rule 1:4-8 is 'a prerequisite to recovery[,]'
and failure to conform to the rule's procedural requirements will result in a
denial of the request for an attorney's fees sanction." Bove v. AkPharma Inc.,
460 N.J. Super. 123, 149 (App. Div. 2019) (quoting State v. Franklin Sav. Acct.
No. 2067, 389 N.J. Super. 272, 281 (App. Div. 2006)). "[A] frivolous litigation
motion must be filed 'no later than [twenty] days following the entry of final
judgment.'" Ibid. (quoting R. 1:4-8(b)(2)). Additionally, a party seeking
frivolous litigation sanctions must "file a separate motion [for the sanction]
describing the specific conduct alleged to be a violation of the Rule." Ibid.
(alteration in original) (quoting Toll Bros., 190 N.J. at 69). Furthermore, before
filing the motion, the party seeking sanctions must serve a "safe harbor" notice
"on the attorney or pro se party, which must include a request that the allegedly
frivolous paper [or pleading] be withdrawn." Id. at 149-50 (quoting Toll Bros.,
190 N.J. at 69).
If all procedural requirements are satisfied, "sanctions for frivolous
litigation may include 'reasonable attorneys' fees and other expenses incurred as
A-0855-22 16 a direct result of the violation, or both.'" Masone v. Levine, 382 N.J. Super.
181, 192 (App. Div. 2005) (quoting R. 1:4-8(d)(2)). In awarding attorney's fees,
a judge must "determine the 'lodestar': the number of hours reasonably
expended multiplied by a reasonable hourly rate." Rendine v. Pantzer, 141 N.J.
292, 334-35 (1995). Sanctions are "left to the trial court's discretion and will
not be disturbed if [they are] just and reasonable in the circumstances." Lanzo
v. Cyprus Amax Minerals Co., 467 N.J. Super. 476, 525-26 (App. Div. 2021)
(quoting Bldg. Materials Corp. of Am. v. Allstate Ins. Co., 424 N.J. Super. 448,
472 (App. Div. 2012)).
Applying that law to the facts of this case, we perceive no legal error in
the trial court's determination that plaintiffs' complaint and prosecution of the
complaint constituted frivolous litigation and no abuse of discretion in its
decision to award counsel fees to Dirkes or in the amounts awarded. Dirkes
complied with the applicable procedural requirements in moving for sanctions,
and the trial court considered the appropriate elements in determining whether
and in what amount to award fees. We also perceive no error or abuse of
discretion in the court's denial of Steven's cross-motion to impose sanctions on
defense counsel. For these reasons, we affirm the October 21, 2022 and
February 28, 2023 orders granting Dirkes's motions for sanctions, the September
A-0855-22 17 23, 2022 order denying the cross-motion to impose sanctions, and the February
To the extent we have not otherwise commented on issues briefed by
plaintiff, we have duly considered his arguments concerning those issues and
conclude they lack sufficient merit to warrant discussion. R. 2:11-3(e)(1)(E).
Affirmed.
A-0855-22 18