S. JAY MIRMANESH VS. STEVEN AND DAWN BRASSLETT (C-000005-12, CAPE MAY AND ATLANTIC COUNTIES AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-5680-16T3

S. JAY MIRMANESH and
LISA ANN MIRMANESH,
individually and derivatively
for WATERVIEW ESTATES
CONDOMINIUM
ASSOCIATION, INC.,

Plaintiffs-Appellants,

v.

STEVEN and DAWN BRASSLETT,
RALPH and CHERYL CALIRI,
MARION MACKINNON, and
WILLIAM AND LOIS MAGUIRE,

Defendants-Respondents.
__________________________________

Argued February 12, 2019 – Decided May 9, 2019

Before Judges Yannotti, Gilson and Natali.

On appeal from Superior Court of New Jersey,
Chancery Division, Cape May and Atlantic Counties,
Docket No. C-000005-12.
 Paul A. Leodori argued the cause for appellants (Law
Offices of Paul Leodori, PC, attorneys; Paul A.
Leodori, on the briefs).

Kathleen Barnett Einhorn argued the cause for
respondents Steven and Dawn Brasslett, Ralph and
Cheryl Caliri, Marion MacKinnon, and William and
Lois Maguire (Genova Burns LLC, attorneys; Angelo
J. Genova and Kathleen Barnett Einhorn, of counsel
and on the brief; Michael C. McQueeny, on the brief).

Frank L. Corrado argued the cause for respondent
Michael A. Fusco (Barry, Corrado, Grassi & Gillin-
Schwartz, PC, attorneys; Frank L. Corrado, on the
brief).

PER CURIAM

Plaintiffs, S. Jay Mirmanesh and Lisa Ann Mirmanesh, individually and

on behalf of the Waterview Estates Condominium Association, Inc.

(Association), appeal from the Chancery Division's May 19, 2017 Order that

denied their motion to change venue, for leave to file a complaint against the

then court-appointed receiver Michael A. Fusco, II, Esq., and for attorney's

fees.1 After reviewing the record, the parties' arguments, and the applicable

1
Plaintiffs' notice of appeal indicated they also appealed from the court's
January 6, 2014, February 26, 2014, August 18, 2014, and July 28, 2017 orders.
Other than seeking to vacate these orders, which we address at pp. 15-17,
plaintiffs failed to brief any substantive challenges to those orders. Accordingly,
we deem any viable appellate issues waived. Sklodowsky v. Lushis, 417 N.J.
Super. 648, 657 (App. Div. 2011) ("An issue not briefed on appeal is deemed
waived.").
A-5680-16T3
2
legal principles, we affirm in part, reverse in part, and remand for further

proceedings.

I.

The Association is a non-profit corporation formed pursuant to the New

Jersey Condominium Act, N.J.S.A. 46:8B-1 to -7. It operates a five-unit

condominium complex located in Ocean City. On January 18, 2012, plaintiffs

filed a complaint against defendants, all unit owners at the complex, seeking to

enforce a May 15, 2006 Settlement Agreement (Agreement), in which the parties

agreed to amend the Association's By-Laws to address issues such as the rotation

of officer positions within the Association's Board of Trustees, the allowance of

proxy voting, and the repair and maintenance of the Association's common

elements.

On November 6, 2013, after a non-jury trial that spanned seven days, in

which plaintiffs claimed defendants failed to comply with the Agreement, the

court entered an oral decision and concluded that both plaintiffs and defendants

violated certain provisions of the Association's Master Deed and By-Laws. The

court also denied the parties' requests for counsel fees. The court determined

that a fee award would be inappropriate because the court "entered partial

judgments in favor of . . . and against" each party. Further, it concluded that

A-5680-16T3
3
because "each side has contributed to the conflagration of the issues" and

engaged "in a little bit of bad faith," a fee award pursuant to the governing

documents was unwarranted. The court memorialized its decision in a January

6, 2014 final judgment in which it characterized the legal fees incurred by each

defendant as "legitimate expenses of the . . . [A]ssociation," to be satisfied by

each party contributing an amount in accordance with his or her respective share

in the Association.

The January 6, 2014 order also appointed Fusco as receiver, pursuant to

N.J.S.A. 14A:14-2(2)(c).2 Fusco was charged with undertaking "any and all

lawful actions as will best and most expeditiously comport the operation of the

. . . [A]ssociation with the terms and provisions of the New Jersey Condominium

Act, N.J.S.A. 46:8B-1 [to -7] and the [M]aster [D]eed, [B]y-[L]aws[,] and

[R]ules/[R]egulations."

Plaintiffs filed a motion for reconsideration on January 27, 2014, and the

court heard oral arguments on February 20, 2014. On February 26, 2014, the

court entered an order denying reconsideration, but amending the January 6,

2
In its January 6, 2014 order, the court incorrectly relied on N.J.S.A. 14A:14-2.
That statute applies to for-profit corporations. Because the Association is a
non-profit corporation, N.J.S.A. 15A:14-2 governs the appointment and powers
of receivers.
A-5680-16T3
4
2014 order with respect to the attorney's fees award by ordering that defendants'

counsel's fees were to be divided evenly among the four units they each owned.

The court also concluded that plaintiffs were to pay their own counsel's fees,

"all through the [A]ssociation." On April 7, 2014, plaintiffs filed an appeal from

the January 6, 2014 and February 26, 2014 orders.

On June 5, 2014, while plaintiffs' appeal was pending, Fusco filed a

motion seeking, among other relief, authority from the court to replace the

existing Association Master Deed, By-Laws, Rules and Regulations, and

Agreement with new governing documents. Plaintiffs opposed the motion and

filed a cross-motion.

The trial court heard oral arguments on July 22, 2014. On August 18,

2014, the trial judge entered an order granting the receiver the authority to

replace the existing Master Deed and By-Laws as he deemed appropriate, but

stayed the recording of any revised Master Deed and By-Laws pending the

resolution of plaintiffs' appeal. On September 17, 2014, plaintiffs amended their

notice of appeal to challenge the court's August 18, 2014 order.

In an unpublished decision, we concluded that the court erred in refusing

to enforce certain provisions of the Agreement. See Mirmanesh v. Brasslett,

No. A-3433-13T (June 23, 2015). Our 2decision remanded the matter for the

A-5680-16T3
5
court to consider the parties' proposed amended governing documents, and

determine whether they complied with the Agreement. We also vacated the

court's August 18, 2014 order because the trial court lacked jurisdiction to enter

the order in light of plaintiffs' pending appeal.

On July 6, 2015, plaintiffs filed a motion for attorney's fees and costs

incurred with respect to the appeal. We granted the application on July 27, 2015,

and awarded plaintiffs $64,460.50 in counsel fees and $8,096.72 in costs, for a

total of $72,557.22, to be paid by the Association.

On remand, the parties attempted to agree on revised documents that

conformed to the Agreement and our opinion. According to Fusco, "he became

convinced that drafts prepared by plaintiffs' counsel significantly exceeded what

the [A]greement contemplated." Fusco also concluded that a previous draft of

the Association's governing documents prepared by defense counsel was

acceptable. Accordingly, on November 2, 2015, Fusco emailed defense counsel

and suggested that counsel submit those documents directly to the court for

consideration. The email stated:

Now that the "fee issue" is apparently behind us (unless
[plaintiffs' counsel] and his staff try to make some
further issue out of it), you might wish to give some
thought to filing an application with [the court] to
approve the "changes" to the existing condominium
documentation to comply with the Settlement

A-5680-16T3
6
 Agreement and the Appellate [Division opinion]. You
and your clients might consider "striking" the first
effort on the subject to beat [plaintiffs' counsel] to the
proverbial "punch." Just a thought, as I would rather be
in a position to support such a [motion] for the reasons
we have previously discussed, rather than instituting
such a move which could be construed as my "taking
sides" on behalf of a side in the apparent "amendment
dispute." I would rather respond then initiate which
would deprive [plaintiffs' counsel] of at least one thing
to complain about. I think your clients have a sound
basis to make such a move in light of the historical
perspective of the former settlement.

On November 17, 2015, plaintiffs moved to terminate Fusco as receiver

in light of his November 2, 2015 email, which plaintiffs described as indicating

a "predisposition to advance the interests of the defendants at the expense of the

plaintiffs." Plaintiffs also sought an order directing the Association to adopt and

record an amended Master Deed and By-Laws that plaintiffs represented were

revised "to comport with the Appellate Division's decision . . . ." Finally,

plaintiffs requested relief from certain provisions of the court's January 6, 2014

and August 18, 2014 orders.

On August 29, 2016, plaintiffs sought leave to file a "supplemental

complaint" against the receiver, alleging negligence and breach of fiduciary

duty. On August 31, 2016, the motion judge granted plaintiffs' November 17,

2015 motion and entered an order approving the amended Master Deed and

A-5680-16T3
7
By-Laws. He also terminated Fusco as the court-appointed receiver, and

directed him to prepare a status report on certain outstanding matters.

The August 31, 2016 order did not, however, address plaintiffs' request to

file a supplemental pleading against Fusco. On September 7, 2017, Fusco filed

a certification in opposition to that application. On November 30, 2016,

plaintiffs submitted an amended proposed supplemental complaint against

Fusco to include claims for declaratory judgment, disgorgement, breach of

contract, bad faith, promissory estoppel, malicious use of process, abuse of

process, tortious interference, and "prima facie tort."

In addition to its request to serve a supplemental complaint upon the

then-discharged receiver, plaintiffs also filed a motion for attorney's fees,

seeking $303,066.793 in connection with the trial and post-trial proceedings,

excluding the $72,557.22 in fees awarded in accordance with our July 27, 2015

order. Plaintiffs' motion was supported by certifications from Alexander J.

Barrera, Esq., a Perskie attorney, and Dennis A. Estis, Esq., and Emily Kaller,

Esq., attorneys at Greenbaum. Perskie represented plaintiffs during the trial

proceeding from January 2012 to January 2014. Thereafter, Greenbaum

3
Plaintiffs sought $152,777.79 in fees incurred by Perskie Mairone Brog &
Baylinson (Perskie), and $150,289 incurred by Greenbaum, Rowe, Smith, &
Davis LLP (Greenbaum).
A-5680-16T3
8
represented plaintiffs in the post-trial matters, including the appellate and

remand proceedings.

On March 25, 2017, plaintiffs filed a pro se motion for change of venue,

ostensibly under Rule 4:3-3.4 The motion was heard by a second motion judge.

Plaintiffs based their request for a change of venue on four grounds. First, they

claimed they were disadvantaged based on the receiver's hostility toward them

and his "notoriety" in the vicinage. Second, they claimed that in 2002, the

second motion judge, prior to his appointment to the bench, mediated a case

involving the receiver. Third, plaintiffs contended that Dorothy McCrosson,

Esq., who was hired by the Association in 2004 to prepare the Association's

governing documents, including the Master Deed and By-Laws, was a partner

in the receiver's law firm, and actively socializes with the receiver. Fourth,

plaintiffs contended that the court proceedings were imbued with an appearance

of impropriety because McCrosson was the mother of the first and second

motion judges' law clerk.

4
Although plaintiff expressly based its motion on Rule 4:3-3, the court
evaluated plaintiffs' application as a motion for disqualification, pursuant to
Rule 1:12-2. We address the issue consistent with the trial court's interpretation
of plaintiffs' application.
A-5680-16T3
9
 The court heard oral arguments on the outstanding motions on May 19,

2017, and entered an order and written opinion the same day denying plaintiffs'

motions for change of venue, for leave to file a supplemental complaint against

the receiver, and for attorney's fees. After thoroughly considering the parties'

arguments, the court determined that plaintiffs failed "to establish a ground upon

which [it] could transfer this case to a new venue." The second motion judge

found plaintiffs' arguments regarding either the court's, or the receiver's,

impartiality, based on any relationship with McCrosson to be meritless. As the

court noted, McCrosson left the receiver's law firm twenty-four years prior to

the date of the hearing and "it [was] unclear how [that personal relationship]

would affect the professional judgment of th[e] [c]ourt." The court, similarly,

found it "entirely unreasonable to believe that a [j]udge may not hear a case in

which there is a party for whom he mediated [a case] thirteen years prior," and

noted that judges are permitted to hear cases "in which that [j]udge's former

partner is counsel, so long as at least seven years has elapsed since the [j]udge

had any interest in that firm."

In denying plaintiffs' fee request, the court explained that the court's

January 6, 2014 judgment, which denied the parties' request for attorney's fees,

was grounded in the court's finding that the parties acted in bad faith. The court

A-5680-16T3
10
concluded that granting plaintiffs' motion would effectively overturn that factual

and legal conclusion. Further, the court noted that by failing to appeal the

portion of the January 6, 2014 order denying plaintiffs' request for attorney's

fees, plaintiffs waived any challenge to those fees. Finally, the court concluded

that application of the res judicata doctrine mandated denial of plaintiffs'

motion.

With respect to plaintiffs' motion for leave to file a supplemental

complaint, the court explained that because there was no factual or legal basis

for any of the eleven proposed claims, permitting an amendment would be futile.

The court noted that the parties actively negotiated the amended governing

documents consistent with our June 23, 2015 opinion, and submitted those

materials to the court for its independent evaluation. After reviewing those

amended governing documents, the court, not the receiver, approved them and

discharged the receiver at plaintiffs' request.

Plaintiffs filed a motion for reconsideration on June 7, 2017. After

hearing oral arguments, the court entered an order on July 28, 2017, denying the

motion. This appeal followed.

On appeal, plaintiffs raise three points of error. First, plaintiffs maintain

that the court improperly denied their request to file an amended complaint

A-5680-16T3
11
against the receiver. Second, they contend that in accordance with Rule 1:12,

the court should have disqualified itself, and transferred the matter to another

court, in light of the "appearance of impropriety" caused by the professional

relationship between McCrosson and defendants, and the fact that McCrosson

was the mother of the was first and second motion judges' law clerk. Finally,

plaintiffs claim that the trial court abused its discretion when it denied their

application for reimbursement of the Perskie and Greenbaum fees.

We disagree with plaintiffs' first and second arguments and affirm

substantially for the reasons detailed in the court's May 19, 2017 written

decision. We also disagree with plaintiffs' claim that the court abused its

discretion when it denied their fee application with respect to the Perskie fees,

and similarly affirm for the reasons detailed in the court's opinion. However,

because we are unable to determine the factual or legal bases for the court's

decision denying plaintiffs' motion regarding the Greenbaum fees, we reverse

that portion of the court's May 19, 2017 order, and remand for additional factual

findings, consistent with Rule 1:7-4.

II.

With respect to their first argument, plaintiffs assert that the court abused

its discretion when it denied their motion to file a supplemental complaint

A-5680-16T3
12
against the receiver. Plaintiffs further claim that the court's decision to deny

their motion to serve a supplemental complaint was the "product of judicial bias

and the appearance of judicial bias." We disagree.

"Rule 4:9-1 requires that motions for leave to amend be granted liberally."

Notte v. Merchs. Mut. Ins. Co., 185 N.J. 490, 501 (2006) (quoting Kernan v.

One Washington Park Urban Renewal Assocs., 154 N.J. 437, 456 (1998)). The

court's decision on a party's motion to file an amended complaint "always rests

in the court's sound discretion." Ibid. "That exercise of discretion requires a

two-step process: whether the non-moving party will be prejudiced, and whether

granting the amendment would nonetheless be futile." Ibid. An abuse of the

court's 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 Cty. Prosecutor, 171 N.J. 561, 571 (2002)

(quoting Achacoso-Sanchez v. Immigration & Naturalization Serv., 779 F.2d

1260, 1265 (7th Cir. 1985)).

In determining whether a requested amendment is futile, the court must

ask "whether the amended claim will nonetheless fail and, hence, allowing the

amendment would be a useless endeavor." Notte, 185 N.J. at 501. Accordingly,

"courts are free to refuse leave to amend when the newly asserted claim is not

A-5680-16T3
13
sustainable as a matter of law." Ibid. (quoting Interchange State Bank v. Rinaldi,

303 N.J. Super. 239, 256-57 (App. Div. 1997)). Stated otherwise, "there is no

point to permitting the filing of an amended pleading when a subsequent mot ion

to dismiss must be granted." Ibid. (quoting Interchange State Bank, 303 N.J.

Super. at 257).

As the second motion judge correctly noted in his May 19, 2017 opinion,

"when a receiver is appointed by the court to manage property," he acts "in [an]

official capacity and [can] only be found liable in that capacity, not personally."

J.L.B. Equities v. Dumont, 310 N.J. Super. 366, 374 (App. Div. 1998). Here,

plaintiffs claim the receiver improperly discharged his official responsibilities,

wasted Association assets, and acted partially when preparing the amended

governing documents. As the court correctly concluded, there was no support

in the record to support plaintiffs' claims against the receiver. The parties,

assisted by competent counsel, negotiated the amended governing documents in

accordance with our June 23, 2015 opinion. Further, plaintiffs' counsel

submitted the documents to the court. The court thereafter reviewed, approved,

and adopted "[p]laintiffs' proposed [amended] Master Deed and By-Laws" and

memorialized that finding in its August 31, 2016 order. Any opinions the

receiver may have expressed to defendants in the November 2, 2015 email had

A-5680-16T3
14
no effect on the final governing documents approved by the court. Further, the

court comprehensively evaluated each of the eleven proposed causes of action

and determined they were factually baseless. We therefore conclude the court

did not abuse its discretion when it denied plaintiffs' application to sue the

receiver, as their claims would not have survived a subsequent motion to

dismiss.

III.

We also reject plaintiffs' claim that the second motion judge erred in

failing to disqualify himself, and refusing to vacate the May 19, 2017 order,

"and all other rulings made by the trial court in this matter." We also disagree

with plaintiffs' claim that the court failed to address properly the issue of

McCrosson's son serving as the law clerk to the first and second motion judges,

disclose whether McCrosson discussed her prior representation of the

Association with her son, and advise if either motion judge took any precautions

to prevent any improper conversation between McCrosson and her son regarding

this matter.

Pursuant to Rule 1:12-2, "any party, on motion to the judge before trial or

argument and stating the reasons therefor, may seek that judge's

disqualification." "The disposition of a motion for disqualification is entrusted

A-5680-16T3
15
to the sound discretion of the trial judge whose recusal is sought." Chandok v.

Chandok, 406 N.J. Super. 595, 603 (App. Div. 2009). Additionally, pursuant to

Rule 1:12-1(g):

The judge of any court shall be disqualified on the
court's own motion and shall not sit in any matter . . .
where there is any . . . reason which might preclude a
fair and unbiased hearing and judgment, or which might
reasonably lead counsel or the parties to believe so.

A judge is not required to "withdraw from a case upon a mere suggestion

that he is disqualified unless the alleged cause of recusal is known by him to

exist or is shown to be true in fact." Panitch v. Panitch, 339 N.J. Super. 63, 66

(App. Div. 2001) (quotation marks omitted). However, a party seeking a judge's

disqualification need not prove actual prejudice, but instead, "the mere

appearance of bias may require disqualification so long as the belief of

unfairness is objectively reasonable." Chandok, 406 N.J. Super. at 604

(quotation marks omitted). Thus, courts should ask whether "a reasonable, fully

informed person [would] have doubts about the judge's impartiality." DeNike

v. Cupo, 196 N.J. 502, 517 (2008).

After a thorough review of the record, we conclude that the second motion

judge did not abuse his discretion in refusing to disqualify himself and transfer

the matter. As the court correctly noted, McCrosson's representation of the

A-5680-16T3
16
Association ended in 2004, thirteen years before the second motion judge

presided over this matter.

Further, the second motion judge explained that although McCrosson had

a role in drafting the Association's Master Deed and By-Laws, her representation

of the Association took place prior to the execution of the Agreement, and before

any disputes arose that led to the 2013 trial. In addition, with respect to the

appearance of impropriety based on the purported relationship between the

receiver, McCrosson, and her son, the court explained in its May 19, 2017

opinion that "[p]laintiffs' claims are . . . subjective and unestablished, sometimes

patently false." We conclude that there is nothing in the record that would lead

a "reasonable, fully informed person" to doubt the court's impartiality here. In

fact, from our review of the record it is clear that the court thoroughly and fairly

considered all of plaintiffs' claims. Finally, we conclude that the court complied

with its obligation under Rule 1:7-4.

IV.

Finally, we address plaintiffs' attorney's fee argument in the manner they

presented it, by first addressing the fees incurred by Perskie, and then the

Greenbaum fees. As to the Perskie fees, we conclude that the court did not abuse

its discretion in denying plaintiffs' motion, as the court's January 6, 2014

A-5680-16T3
17
decision denying those fees was amply supported by the record, and plaintiffs

waived any request for those fees as a result of their failure to raise that issue

when it appealed the court's January 6, 2014 order.

"Although New Jersey generally disfavors the shifting of attorneys' fees,

a prevailing party can recover those fees if they are expressly provided for by

statute, court rule, or contract." Packard-Bamberger & Co. v. Collier, 167 N.J.

427, 440 (2001). Rule 4:42-9 allows awards of attorney's fees in specific

situations, including "[i]n all cases where attorney's fees are permitted by

statute." R. 4:42-9(a)(8). In awarding attorney's fees, a court should properly

consider "[b]ad faith and assertion of an unreasonable position." Diehl v. Diehl,

389 N.J. Super. 443, 455 (App. Div. 2006). Our review of an award of attorney's

fees award is deferential, Packard-Bamberger & Co., 167 N.J. at 444, and "fee

determinations by trial courts will be disturbed only on the rarest occasions, and

then only because of a clear abuse of discretion." Rendine v. Pantzer, 141 N.J.

292, 317 (1995).

In his May 19, 2017 decision, the second motion judge explained that the

court's January 6, 2014 denial of plaintiffs' request for attorney's fees was based

on "the equitable principle of bad faith." Indeed, the trial judge noted that "each

side . . . contributed to the conflagration of the issues," and there was "a little

A-5680-16T3
18
bit of bad faith on each side." The record supports the initial judge's bad faith

finding, and his discretionary decision to deny fees to both parties.

To the extent plaintiffs disagreed with any portion of the January 6, 2014

final judgment, they were obligated to file a timely notice of appeal identifying

all issues to be raised on appeal. See R. 2:5-1; Fusco v. Bd. of Educ. of City of

Newark, 349 N.J. Super. 455, 461 n.1 (App. Div. 2002) ("The appellant should

explicitly designate all judgments, orders[,] and issues on appeal in order to

assure preservation of their rights on appeal."). As noted, when plaintiffs

appealed the January 6, 2014, February 26, 2014, and August 18, 2014 final

orders, they did not appeal the court's denial of their request for attorney's fees,

and our June 23, 2015 opinion appropriately did not address the issue. We agree

with the court that by failing to seek appellate review regarding the

recoverability of their attorney's fees related to the 2013 trial, plaintiff waived

any challenge to that portion of the court's January 6, 2014 order.

Plaintiffs incorrectly argue that because they prevailed in the initial

appeal, and were awarded $72,557.22 in attorney's fees and costs, they are

entitled to all attorney's fees incurred at trial totaling $152,777.79, pursuant to

the preclusive doctrines of res judicata and the law of the case doctrine. See

Velasquez v. Franz, 123 N.J. 498, 505 (1991) ("[T]he doctrine of res judicata

A-5680-16T3
19
provides that a cause of action between parties that has been finally determined

on the merits by a tribunal having jurisdiction cannot be relitigated by those

parties or their privies in a new proceeding."); State v. Hale, 127 N.J. Super.

407, 410 (App. Div. 1974) ("[T]he 'law of the case' doctrine 'applies to the

principle that where there is an unreversed decision of a question of law or fact

made during the course of litigation, such decision settles that question for all

subsequent stages of the suit.'"). As noted, we appropriately did not consider

the court's January 6, 2014 denial of attorney's fees in the initial appeal because

plaintiffs did not challenge that ruling. Thus, neither res judicata nor the law of

the case doctrine has any application to plaintiffs' subsequent attorney's fees

request.

We reach a different conclusion, however, with respect to the Greenbaum

fees. Plaintiffs argue that as the prevailing party, they are entitled to all the fees

they incurred for Greenbaum's services, pursuant to N.J.S.A. 15A:3 -4(c), Rule

4:42-9, and the Association's governing documents.

We are unable to make a substantive determination as to whether plaintiffs

may recover the Greenbaum fees, as the trial court failed to make the necessary

factual findings with respect to that portion of plaintiffs' application. Pursuant

to Rule 1:7-4, the court is required to, "by an opinion or memorandum decision,

A-5680-16T3
20
either written or oral, find the facts and state its conclusions of law thereon ."

The court "must state clearly its factual findings and correlate them with the

relevant legal conclusions." Curtis v. Finneran, 83 N.J. 563, 570 (1980).

As noted, the court's May 19, 2017 decision detailed three bases for

denying plaintiffs' fee request: 1) the trial court found that the parties acted in

bad faith; 2) plaintiffs failed to challenge the denial of the attorney's fees in its

appeal from the January 6, 2014 order; and 3) the doctrine of res judicata barred

plaintiffs' claims for attorney's fees.

With respect to the first basis, the trial court's bad faith finding related

only to the parties' conduct leading to the January 6, 2014 final judgment. The

fees incurred by Greenbaum, however, are unrelated to those proceedings.

Further, plaintiffs did not waive the right to seek recovery of the post -remand

Greenbaum fees, as they were not yet incurred and could not be subject of the

January 6, 2014 order. For similar reasons, neither res judicata, nor the law of

the case doctrine barred those fees. See Velasquez, 123 N.J. at 505; Hale, 127

N.J. Super. at 410.

As a result, because none of the court's factual and legal conclusions

supporting its denial of the Perskie fees apply to the Greenbaum fees, we are

unable to conclude, on this record, if there is a legal and factual basis to award

A-5680-16T3
21
plaintiffs these fees, and if they are reasonable. See Rendine, 141 N.J. at 317.

Therefore, we remand for the court to make factual findings, consistent with

Rule 1:7-4. We pass no judgment as to the merits of plaintiffs' application.

To the extent we have not addressed any of plaintiffs' arguments, we deem

them without sufficient merit to warrant discussion in a written opinion. See R.

2:11-3(e)(1)(E).

Affirmed in part, reversed in part and remanded for further proceedings

consistent with this opinion. We do not retain jurisdiction.

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22