Andre De Garmeaux v. Dnv Concepts, Inc. T/a

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1400-14T1

ANDRE de GARMEAUX and
PAULA KUGLER,
APPROVED FOR PUBLICATION
Plaintiffs-Appellants/
Cross-Respondents, December 20, 2016

v. APPELLATE DIVISION

DNV CONCEPTS, INC. t/a THE
BRIGHT ACRE,

Defendant-Respondent/
Cross-Appellant,

and

PROFESSIONAL FIREPLACE SERVICES,
JAMES RISA, and ROBERT ROCCO
individually and trading as D's
HANDS TO SERVE,

Defendants.
______________________________________

Argued September 14, 2016 – Decided December 20, 2016

Before Judges Alvarez, Accurso and Manahan.

On appeal from Superior Court of New Jersey,
Law Division, Monmouth County, Docket No. L-
5513-11.

Susan E. DiMaria argued the cause for
appellants/cross-respondents (O'Malley,
Surman & Michelini, attorneys; Ms. DiMaria,
on the briefs).

Ronald L. Lueddeke argued the cause for
respondent/cross-appellant (Lueddeke Law
 Firm, attorneys; Mr. Lueddeke, of counsel,
Karri Lueddeke, on the brief).

The opinion of the court was delivered by

MANAHAN, J.A.D.

In this case of first impression, we are called upon to

determine, among other arguments, whether prevailing plaintiffs

in a Consumer Fraud Act (CFA) action are entitled to attorney's

fees incurred in defense of a counterclaim. As we conclude that

the defense of the counterclaim was inextricably intertwined with

the defense of the CFA claim, consideration by the trial court of

the attorney's fees incurred by plaintiffs for that purpose was

proper.

Andre de Garmeaux and Paula Kugler (collectively plaintiffs)

appeal from a September 30, 2014 order reducing the award of

attorney's fees in their successful prosecution of a CFA claim

from $70,911.12 to $20,000. On December 11, 2014, defendant DNV

Concepts Inc., t/a The Bright Acre (Bright Acre), cross-appealed

the trial court's denial of a judgment notwithstanding a verdict

and the entire award of attorney's fees. For the reasons stated

below, we reverse the trial court's decision on the quantum of the

counsel fee award and affirm the decision on the denial of

defendant's judgment notwithstanding the verdict.

We discern the following facts culled from the trial record,

as essential to our determination. Plaintiffs visited Bright Acre
2 A-1400-14T1
in early 2010 for the purpose of replacing their gas fireplace

which had been damaged in a storm. Bright Acre's store manager,

Patricia Van Ness, agreed to assist plaintiffs with the process

of replacing the fireplace and submitting an insurance claim.

Plaintiffs testified that during one of several visits, Van Ness

introduced defendant James Risa as "your installer Jim." Risa was

employed by Bright Acre as an operations manager, and had worked

at Bright Acre for approximately twenty years. Additionally, Risa

owned and operated an independent company, Professional Fireplace

Services. According to Bright Acre's owner, Darryl Dworkin,

installation work was referred to its own employees who owned

installation service companies, giving a customer one installer's

name per purchase. During the timeframe plaintiffs purchased

their fireplace, Risa received most, if not all, of the

installation referrals from Bright Acre.

On March 31, 2010, Risa emailed plaintiffs a $3700 estimate

for installation services. Plaintiffs agreed to the price and on

June 4, 2010, Van Ness submitted approximately four fireplace

estimates to the insurance company. A sales order in the amount

of $2450 was placed on August 24, 2010. Plaintiffs wrote a check

to Bright Acre for that amount that same day.

In September 2010, plaintiffs wrote a check to Professional

Fireplace Services for the first installment on the $3700

3 A-1400-14T1
installation cost. On October 26, 2010, a construction permit was

issued for the installation, and the new fireplace was delivered

shortly thereafter. Risa dismantled the existing fireplace and

stored the new fireplace in plaintiffs' family room.

Plaintiffs became dissatisfied with Risa, noting he kept an

unpredictable schedule, working a couple of hours at a time mixed

with stretches of days of complete absence. Plaintiffs contacted

Van Ness, in her capacity as Risa's boss, about Risa's schedule

and requested she speak with Risa about completing the job.

Additionally, Risa's workmanship was unsatisfactory to

plaintiffs. Specifically, the grout around the stone mantel was

sloppy, some bricks were uneven, and metal wiring was exposed.

Risa attempted to correct the work, however, the installation did

not meet plaintiffs' standards. In December 2010, plaintiffs

alleged they became aware that Risa was not directly working for

Bright Acre, rather he was working in the capacity as owner of

Professional Fireplace Services. Plaintiffs contacted Bright Acre

to resolve the installation issues. After receiving no response

from Bright Acre, plaintiffs hired another contractor to complete

the installation.

In November 2011, plaintiffs filed a civil complaint against

Bright Acre. The seven-count complaint alleged several causes of

action, among them, a violation of the New Jersey CFA, N.J.S.A.

4 A-1400-14T1
56:8-1 to 198. Bright Acre filed an answer and thereafter, an

amended answer which included a counterclaim. The counterclaim

sought damages from plaintiffs for fraudulent concealment or

alteration of evidence, for defamation, and for filing a frivolous

lawsuit.

The predicate for the fraudulent concealment or alteration

of evidence claim was the disparity in the form of the installation

quote from Risa to plaintiffs relating to the existence of a

masthead. In the form provided by plaintiffs in discovery, the

quote did not reference a business masthead. During de Garmeaux's

deposition, Bright Acre's counsel produced an email dated March

31, 2010, which attached a form of the Risa quote that referenced

"Professional Fireplace Services" in its masthead. This invoice

was acknowledged by de Garmeaux as received from Risa. Kugler

also acknowledged receipt of this invoice during her trial

testimony. Notwithstanding their acknowledgment, both de Garmeaux

and Kugler denied altering the document.

The trial was conducted over five days before a jury. At the

conclusion of the proofs by the parties, Bright Acre moved for a

directed verdict on plaintiffs' CFA claim and its fraudulent

alteration claim. Both motions were denied.

Prior to deliberations, due to the number of claims and

parties, the trial court provided jurors with a verdict sheet

5 A-1400-14T1
which instructed them to respond to the questions on the sheet

sequentially. The jury returned a verdict in favor of plaintiffs.

Specifically, the jury found that Bright Acre, Professional

Fireplace Services, and Risa were negligent and were the proximate

cause of plaintiffs' damages. Additionally, the jury found that

Bright Acre, Professional Fireplace Services, and Risa committed

an act of omission of consumer fraud that proximately led to

plaintiffs' damages. Professional Fireplace Services, Risa, Robert

Rocco, and D's Hands to Serve were found to have violated

provisions of the New Jersey Home Improvement Practices Act (Home

Improvement Act).1 Plaintiffs were awarded $4790 on the negligence

claim, holding Bright Acre 30% liable, and Risa, together with

Professional Fireplace Services, 70% liable. Plaintiffs were

awarded $1500 on the CFA and Home Improvement Act claims; $500

attributable to Bright Acre and $1000 attributable to Risa and

Professional Fireplace Services. The jury found no cause for

action on the counterclaim.

As a result of the verdict, plaintiffs' counsel filed an

"Affidavit of Attorney Services" along with a form of judgment.

Thereafter, plaintiffs' counsel filed a supplemental certification

relating to the counsel fee request which sought the payment of

1
Defendants Risa, Professional Fireplace Services, Rocco, and D's
Hands to Serve defaulted and did not participate in the trial.
6 A-1400-14T1
$70,911.12. Without hearing argument on the issue, the trial

court entered judgment in favor of plaintiffs, awarding $20,000

to plaintiffs' counsel as reasonable attorney's fees.

The trial court attached a statement of reasons to the

September 30, 2014 order. In reaching the determination of the

fees, the trial court included fees generated in defense of the

counterclaim; finding the counterclaim related to "the transaction

that gave rise to plaintiffs' affirmative claims." The trial

court also provided the bases for the quantum award.

On November 17, 2014, plaintiffs filed a notice of appeal.

On December 11, 2014, Bright Acre filed a notice of cross-appeal.

Plaintiffs raise the following points on appeal:

POINT I

THE TRIAL COURT ERRED IN REDUCING THE
ATTORNEY[']S FEES TO A FLAT AMOUNT BASED IN
PART ON THE AMOUNT OF THE DAMAGES AWARDED ON
THE CONSUMER FRAUD ACT CLAIM AS THERE IS NO
PROPORTIONALITY REQUIREMENT BETWEEN THE
QUANTUM OF DAMAGES AND THE AMOUNT OF THE FEES.

POINT II

THE FEE AWARD DID NOT COMPORT WITH THE
LEGISLATIVE INTENT OF THE NEW JERSEY CONSUMER
FRAUD ACT, N.J.S.A. 56:8-1 [to -198], TO GIVE
CONSUMERS ACCESS TO THE COURT SYSTEM,
ENCOURAGE COUNSEL TO TAKE ON CONSUMER FRAUD
CLAIMS AND PUNISH DEFENDANTS WHO HAVE
DEFRAUDED CONSUMERS.

A reviewing court should not set aside an award of attorneys'

fees except "on the rarest occasions, and then only because of a
7 A-1400-14T1
clear abuse of discretion." Rendine v. Pantzer, 141 N.J. 292, 317

(1995). Where the lower court's determination of fees was based

on irrelevant or inappropriate factors, or amounts to a clear

error in judgment, the reviewing court should intervene. Masone

v. Levine, 382 N.J. Super. 181, 193 (App. Div. 2005) (citing Flagg

v. Essex Cty. Prosecutor, 171 N.J. 561, 571 (2002)).

Fee shifting is permitted statutorily by the CFA. N.J.S.A.

56:8-19. Our Supreme Court has noted that the CFA's fee-shifting

provision advances the statute's policy of ensuring that

plaintiffs with bona fide claims are able to find lawyers to

represent them and encourages counsel to take on private cases

involving an infringement of statutory rights. Coleman v. Fiore

Bros., Inc., 113 N.J. 594, 598 (1989).

However, where a party presents "distinctly different claims

for relief" in one lawsuit, work on those non-CFA claims are not

counted against a defendant. Silva v. Autos of Amboy, Inc., 267

N.J. Super. 546, 556 (App. Div. 1993) (quoting Hensley v.

Eckerhart, 461 U.S. 424, 435, 103 S Ct. 1933, 1940, 76 L. Ed. 2d

40, 51 (1983)). A court may shift fees on the CFA claim or claims

that involve the common core of CFA-related facts. See ibid. Such

a suit should not be viewed as a series of discrete claims, rather

the attorneys' fees related to the common core of CFA-related work

8 A-1400-14T1
may be considered by a court when calculating the award. See

ibid.

We are informed in our analysis by a decision reached in

another jurisdiction which allowed for an award of counsel fees

incurred in the defense of counterclaims relative to Wisconsin's

unfair trade statute. See Benkoski v. Flood, 626 N.W.2d 851, 862

(Wis. Ct. App. 2001); See also Benkoski v. Flood, 599 N.W.2d 885

(Wis. Ct. App. 1999). That state's unfair trade statute, like the

CFA, is remedial in nature, and provides for fee shifting to a

successful litigant. Wis. Stat. § 100.20(5) (2016). In Benkoski,

supra, 626 N.W.2d at 862, the Wisconsin Appeals Court held that a

trial court properly exercised its discretion in awarding a

plaintiff attorneys' fees incurred in defense of defendant's

counterclaims. We recite the factual and procedural history of

Benkoski relevant to our analysis.

Benkoski arose from a dispute over a commercial lease.

Benkoski, supra, 599 N.W.2d at 886. Defendant, Flood, leased lots

in a mobile home park to Benkoski who, in turn, leased the mobile

homes he owned on the lots to third parties. Id. at 887. The

lease provided that Benkoski could not sublet the sites unless

prior approval had been granted by Flood. Ibid. Flood later

added an additional condition requiring that any purchaser of a

mobile home owned by Benkoski would have to remove the home at the

9 A-1400-14T1
end of the lease. Ibid. When Benkoski attempted to sell one of

the mobile homes, Flood refused to approve the application for

tenancy because Benkoski would not agree to the removal condition.

Ibid.

In his complaint, Benkoski alleged that Flood's conduct

violated Wisconsin's Unfair Trade Practices Act (the Act). Wis.

Stat. § 100.20 (2016); Wis. Stat. § 710.15 (2016); Wis. Admin.

Code ATCP § 125.06 (2016); Benkoski, supra, 599 N.W.2d at 887.

Flood filed a counterclaim, premised on Benkoski's agreement to

discontinue subletting and to remove the mobile homes as they

became vacant. Benkoski, supra, 599 N.W.2d at 887. Benkoski

moved for partial summary judgment dismissing the counterclaim.

Ibid. Flood cross-moved for dismissal of the complaint for failure

to state a claim. Ibid. The trial court granted Benkoski's motion

and dismissed the counterclaim. Ibid. The court denied outright

dismissal of the complaint, holding that Benkoski as an operator,

not a resident, could seek an injunction, but could not claim

money damages under the Act. Id. at 888. Benkoski appealed and

Flood cross-appealed. Ibid.

The appeals court held Benkoski was both a resident and a

tenant, was entitled to relief under the Act, and that Flood

violated the Act entitling Benkoski to damages. Benkoski, supra,

599 N.W.2d at 893. The matter was remanded for further proceedings

10 A-1400-14T1
to determine the amount of damages. Ibid. Subsequent to the

remand, the trial court awarded pecuniary damages, as well as

counsel fees and costs incurred by Benkoski in defense of the

counterclaim. Benkoski, supra, 626 N.W.2d at 854. Flood appealed.

Ibid.

The appeals court found as to the award of counsel fees and

costs that the relief sought by the counterclaim was the "very

crux" of Benkoski's claims of an unfair trade practice by Flood

and that the competing claims were "inextricably caught up with

each other." Id. at 862. As such, the appeals court concluded

that the trial court did not erroneously exercise its discretion

in awarding Benkoski his counsel fees incurred in defense of

Flood's counterclaim. Ibid.

Here, in reaching its determination to award counsel fees,

the trial court held:

In determining that $20,000 is a
reasonable award of attorney fees, the [c]ourt
was guided by R. 4:42-9 which references
factors enumerated under [Rules of
Professional Conduct 1.5(a)]. The attorney
principally responsible for the handling of
the matter on behalf of [p]laintiffs, Susan
DiMaria, was admitted to the bar in 1987, and,
thus, brought over twenty[-]five years'
experience to this matter. The [c]ourt viewed
Ms. DiMaria's hourly rate of $200 per hour as
reasonable given her level of experience. The
gravamen of [p]laintiffs' claim sounded in
consumer fraud involving multiple parties; and
while consumer fraud is hardly a novel issue,
its successful prosecution generally requires
11 A-1400-14T1
 a heightened level of skill and attention
especially where, as here, a vigorous defense
was marshalled against the claim by
experienced counsel for the defense. The
[c]ourt acknowledges that its $20,000 award
substantially discounts the requested amount
of $70,911.12. However, the [c]ourt, having
reviewed the invoices, determined to exclude
from its calculation the many entries
reflecting intra-office consultation and
communications with other attorneys in the
firm as well as what the [c]ourt deemed to be
excessive time spent on reviewing and
responding to correspondence. The [c]ourt
also factored into its award the amount the
jury ultimately awarded [p]laintiffs,
particularly as to their consumer fraud claim.

Plaintiffs' CFA claim was premised on a fraudulent omission.

Plaintiffs averred they were never advised by Bright Acre that the

installation performed by Risa would be in his capacity as owner

of Professional Fireplace Services; not as its employee. In

defending this claim and in prosecuting its counterclaim, Bright

Acre proffered the two invoices; one with and one without the

Professional Fireplace Services masthead. These "conflicting"

invoices were the lynchpin of Bright Acre's defense intended to

demonstrate that plaintiffs were aware of Risa's employment

capacity for purpose of the installation. Bright Acre's fraudulent

alteration counterclaim was premised upon an alleged alteration

by plaintiffs of the same invoice.

The CFA is a remedial statute which encourages its use by,

among other things, reasonably compensating those who prevail

12 A-1400-14T1
through fee shifting. Coleman, supra, at 552. Consistent with

the CFA's intent and in adopting the analysis of Benkoski, we hold

that Bright Acre's utilization of the invoices for the dual purpose

of both shield and sword rendered counsel fees incurred by

plaintiffs in response thereto compensable as both "inextricably

caught up with" and related to the common core of the CFA claim.

Silva, supra, 267 N.J. Super. at 556; Benkoski, supra, 626 N.W.2d

at 862.

Having reached this determination, we next turn to the quantum

of the fees awarded; which both parties argue was in error. New

Jersey generally follows the "American Rule," which requires that

each party pay its own legal costs. Rendine, supra, 141 N.J. at

322. Fees may be shifted when permitted by statute, court rule,

or contract. Packard-Bamberger & Co. v. Collier, 167 N.J. 427,

440 (2001). Regardless of the source authorizing fee shifting,

the same reasonableness test governs. Litton Indus., Inc. v. IMO

Indus., Inc., 200 N.J. 372, 386 (2009).

When fee shifting is permissible, a court must ascertain the

"lodestar"; that is, the "number of hours reasonably expended by

the successful party's counsel in the litigation, multiplied by a

reasonable hourly rate." Id. (citing Furst v. Einstein Moomjy,

Inc., 182 N.J. 1, 22 (2004)). To compute the lodestar, the trial

court must first determine the reasonableness of the hourly rates

13 A-1400-14T1
charged by the successful party's attorney in comparison to rates

"for similar services by lawyers of reasonably comparable skill,

experience and reputation" in the community. Rendine, supra, 141

N.J. at 337 (quoting Rode v. Dellarciprete, 892 F.2d 1177, 1183

(3d Cir. 1990)). After evaluating the hourly rate, the trial

court must then determine the reasonableness of the hours expended

on the case. Furst, supra, 182 N.J. at 22. "Whether the hours

the prevailing attorney devoted to any part of a case are excessive

ultimately requires a consideration of what is reasonable under

the circumstances" and should be informed by the degree of success

achieved by the prevailing party. Id. at 22-23. The award need

not be proportionate to the damages recovered. Id. at 23.

Rules of Professional Conduct (RPC) 1.5(a), requires that

"[a] lawyer's fee shall be reasonable in all cases, not just fee-

shifting cases[.]" Id. at 21-22. In determining reasonableness,

RPC 1.5(a) requires courts to consider:

(1) the time and labor required, the novelty
and difficulty of the questions involved, and
the skill requisite to perform the legal
service properly;

(2) the likelihood, if apparent to the client,
that the acceptance of the particular
employment will preclude other employment by
the lawyer;

(3) the fee customarily charged in the
locality for similar legal services;
(4) the amount involved and the results
obtained;
14 A-1400-14T1
 (5) the time limitations imposed by the client
or by the circumstances;

(6) the nature and length of the professional
relationship with the client;

(7) the experience, reputation, and ability
of the lawyer or lawyers performing the
services;

(8) whether the fee is fixed or contingent.

In reviewing the trial court's methodology for an award of

fees, we are guided by our Supreme Court's declaration that "there

is no precise formula . . . [and that t]he ultimate goal is to

approve a reasonable attorney's fee that is not excessive."

Litton, supra, 200 N.J. at 388.

The issue of reasonableness of counsel fees has been the

subject of numerous decisions. Our Supreme Court has provided

direction to trial courts faced with determining the amount of an

award a litigant is entitled to receive.

[I]t is incumbent on the trial court to
"analyze the [relevant] factors in determining
an award of reasonable counsel fees and then
must state its reasons on the record for
awarding a particular fee."

[R.M. v. Supreme Court of N.J., 190 N.J. 1,
12 (2007) (quoting Furst, supra, 182 N.J. at
21) (alteration in original).

The Court has also noted that when considering the

reasonableness of counsel fees in conjunction with a fee-shifting

statute, the trial court's obligation to carefully review the
15 A-1400-14T1
lodestar fee request is heightened. Szczepanski v. Newcomb Med.

Ctr. Inc., 141 N.J. 346, 366 (1995). The trial court's evaluation

must include "not only the damages prospectively recoverable and

actually recovered, but also the interest to be vindicated . . .

as well as any circumstances incidental to the litigation that

directly or indirectly affected the extent of counsel's efforts."

Id. at 366-67.

Here, the trial court employed proportionality as a factor

in arriving at the counsel fee award. In Szczepanski, our Supreme

Court explicitly rejected a proportionality requirement between

damages recovered and the attorney fee award, although noting the

degree of success obtained remains an important factor. Id. at

366. We add that the level of success achieved should also be

measured, in appropriate circumstances, by other means; such as

here by plaintiffs' attainment of a favorable outcome in defending

the counterclaim. Other than what was a proper consideration by

the trial court of counsel fees incurred in defending the

counterclaim, the trial court did not employ that "success" in

determining an appropriate fee award.2

Further, since it was not referenced in the statement of

reasons, we are unable to conclude that the trial court considered

2
We intend no criticism of the trial court as, by our decision,
we have addressed an additional factor in crafting an appropriate
fee award.
16 A-1400-14T1
the public policy of the CFA for fee-shifting; deterrence of

fraudulent conduct, and encouragement of counsel to undertake

representation of plaintiffs. Furst, supra,182 N.J. at 21. When

fee-shifting is permitted, the public policy of the enabling

statute is a relevant factor to be considered in conjunction with

the factors enumerated in RPC 1.5(a) in determining the award. In

addition to the "interests to be vindicated," a trial court must

further determine whether the time expended in pursuit of those

interests along with the "underlying statutory objectives" and

recoverable damages is equivalent to the time "competent counsel

reasonably would have expended to achieve a comparable

result. . . ." Id. at 22 (citing Rendine, supra, 141 N.J. at

336). Because the trial court neither specifically addressed the

CFA's public policy nor considered plaintiffs' full "measure of

success" as factors in the award, we are constrained to remand for

reconsideration of the counsel fee award.

In reaching our determination, we recognize that a trial

court's determination of an appropriate counsel fee award in CFA

fee-shifting cases is premised upon fact-sensitive scenarios. We

also recognize that there is no "precise formula" that uniformly

produces a reasonable counsel fee award. Litton, supra, 200 N.J.

at 388. There is, however, ample guidance for the determination

provided by the public policy providing for fee-shifting, by

17 A-1400-14T1
precedential case law and by the RPC. Through the trial court's

resort to that guidance, it is likely that the resultant award

will serve the CFA's legislative policy of access to the courts,

even in the face of an aggressively litigated counterclaim which

might otherwise deter CFA litigants and their lawyers from pursuing

a statutory remedy, while offering the prevailing litigant only

those counsel fees reasonably expended to obtain the result.

Finally, we address the arguments raised by Bright Acre on

its cross-appeal:

POINT I

THE TRIAL COURT ERRED IN DENYING DEFENDANT'S
MOTION FOR A JUDGMENT NOTWITHSTANDING THE
VERDICT ON ITS FRAUDULENT ALTERATION CLAIM.

[A.] THE TRIAL COURT'S SOLE BASIS
FOR DENYING [BRIGHT ACRE'S] MOTION
FOR JUDGMENT AT TRIAL WAS PAULA
KUGLER'S PERJURED TESTIMONY.

[B.] THE JUDGMENT OF THE TRIAL COURT
FINDING NO CAUSE OF ACTION ON
DEFENDANT'S COUNTERCLAIM SHOULD BE
VACATED AS IT BASED UPON PLAINTIFF'S
PERJURED TESTIMONY.

[C.] PLAINTIFFS' OWN PRIOR
CERTIFIED STATEMENTS IN THIS ACTION
INDICATE THAT PLAINTIFFS PERJURED
THEMSELVES DURING THE TRIAL.

POINT II

DEFENDANT [BRIGHT ACRE] IS ENTITLED TO A NEW
TRIAL BASED UPON THE EXTREME BREVITY OF THE
JURY DELIBERATION.

18 A-1400-14T1
 POINT III

THE TRIAL COURT ERRED IN ENTERING JUDGMENT
AGAINST DEFENDANT [BRIGHT ACRE] ON PLAINTIFFS'
CFA CLAIM BY ACTS OF OMISSION.

POINT IV

DEFENDANT [BRIGHT ACRE] IS ENTITLED TO A NEW
TRIAL BASED UPON PLAINTIFFS' COUNSEL[']S
SUMMATION. (POINT NOT RAISED BELOW)

POINT V

DEFENDANT'S LEGAL BRIEF IN OPPOSITION TO
PLAINTIFF[S'] APPEAL.

A. LEGAL STANDARD TO BE APPLIED TO
THE INSTANT FEE APPLICATION.

B. THE ATTORNEY FEE AWARD OF $20,000
SHOULD BE DECREASED OR NEGATED FOR
THE FOLLOWING REASONS.

We have considered these arguments in light of the record and

controlling principles of law and have determined, with the

exception of that addressed below, they are without sufficient

merit to warrant discussion in a written opinion. R. 2:11-

3(e)(1)(E).

The standard for reviewing a motion for judgment

notwithstanding the verdict is whether the evidence, together with

the legitimate inferences therefrom, could sustain a judgment in

favor of the party opposing the motion. Sons of Thunder v. Borden,

Inc., 148 N.J. 396, 415 (1997). In other words, if, accepting as

true all the evidence which supports the position of the nonmoving

19 A-1400-14T1
party, reasonable minds could differ, the motion must be denied.

Ibid. This standard applies to any reviewing tribunal, and ensures

the appellate court does not overstep its bounds by usurping the

jury's task of assessing witness credibility. Ibid. This standard

ensures that the jury's factual determinations will only be

disturbed if that jury could not have reasonably used the evidence

to reach its verdict. Ibid.

Bright Acre argues that the denial of its motion for judgment

notwithstanding the verdict was erroneous. Its argument is

premised upon the contention that Kugler committed perjury by her

testimony relating to the alteration of the invoices. Bright Acre

raised this argument during the trial. Counsel for Bright Acre

made Kugler's lack of credibility a prominent and recurring theme

during his cross-examination of her as well as in his opening and

closing arguments. Further, the facially disparate invoices were

admitted in evidence and presumably considered by the jury in its

deliberations.3

The plain conclusion to be drawn by the jury's verdict was

that it rejected Bright Acre's lack of credibility argument and

found Kugler to be credible. Given the above, the court's

3
Bright Acre has not raised the jury instructions as a point of
error. Notwithstanding, from our review of the instructions
contained in the record, we are satisfied the jury was properly
instructed by the court regarding credibility.
20 A-1400-14T1
determination to deny the motion was firmly grounded in the record

and was not erroneous.

Affirmed in part, reversed in part, and remanded for

proceedings consistent with our decision. We do not retain

jurisdiction.

21 A-1400-14T1