JOSEPH MASTROPOLE v. GIUSEPPE GIUDICE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4941-13T2

JOSEPH MASTROPOLE,

Plaintiff-Appellant,

v.

GIUSEPPE GIUDICE, TERESA

GIUDICE, MIZZONE & TESTA,

P.A., AND JOHN A. TESTA,

Defendants-Respondents.

January 11, 2016

 

Before Judges Reisner, Hoffman and Whipple.

On appeal from Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-5007-12.

William H. Michelson argued the cause for appellant.

Michael P. DeMarco argued the cause for respondents Giuseppe Giudice and Teresa Giudice (DeMarco & DeMarco, attorneys; Mr. DeMarco, on the brief).

Robert B. Hille argued the cause for respondents Mizzone & Testa, P.A., and John A. Testa (McElroy, Deutsch, Mulvaney & Carpenter, LLP, attorneys; Mr. Hille, of counsel and on the brief; Paul L. Croce, on the brief).

PER CURIAM

Plaintiff Joseph Mastropole appeals from Law Division orders entered on April 22 and May 13, 2014, dismissing his claims on summary judgment. We affirm.

I.

In 2005, plaintiff and defendant Giuseppe Giudice (Giuseppe)1 formed various limited liability companies (LLCs) for the purpose of buying real estate. Thereafter, they utilized these LLCs to purchase various properties in East Orange, including 17 Webster Place (Webster Place), 168-170 South Clinton Street (Clinton Street), and 6 Glenwood Avenue (Glenwood Avenue). In 2006, Giuseppe agreed to buy out plaintiff's interest in the three LLCs for $586,000. This sum was secured by mortgages on each of the three properties for the full amount owed.

In March 2007, the Giudices retained defendant John A. Testa to file suit against plaintiff and his mother, Frances Mastropole (collectively, the Mastropoles). Testa filed suit in Passaic County, alleging breach of contract and related claims. The focal point of this action was a property located on Union Avenue in Paterson (the Paterson Property), which was transferred to Frances in consideration for the Mastropoles agreeing to obtain a mortgage or other financing to satisfy two mortgages against the property in Teresa's name.

In May 2007, plaintiff and Giuseppe met without counsel and agreed to settle their disputes. They wrote the terms on a cocktail napkin and signed it. The napkin read "$300,000 [within] 10 days; $260,000 6 [months]; mortgage on 17 Webster; [payment] due six [months] with personal guaranty. Not [paid] in 6 [months], interest 10% per [month]."

The settlement terms were formalized in a stipulation of settlement2 (the Settlement Agreement) between the Giudices and Mastropoles filed with the court on June 13, 2007. The Settlement Agreement provided for the dismissal of the Giudices' lawsuit regarding the Paterson Property, and for the Mastropoles to refinance and satisfy all outstanding mortgages on that property. The Giudices agreed to pay plaintiff $560,000, representing the amount owed to him from the buy-out, with $300,000 of that amount to be paid by June 30, 2007, from the refinancing of Clinton Street. Plaintiff would then execute mortgage modification agreements for the mortgages on Webster Place and Glenwood Avenue, reducing their balances to $260,000, with the Giudices to sign a personal guaranty3 for this remaining balance. Pursuant to the Settlement Agreement, the Union Avenue mortgages in Teresa's name were satisfied and plaintiff was paid $300,000 from the Clinton refinancing.

On June 27, 2007, Giuseppe canceled the mortgage that plaintiff held on Webster Place by filing a discharge of mortgage that contained plaintiff's forged signature. Giuseppe was later determined to have perpetrated the fraud, utilizing the Rinzler and Rinzler law firm to have the discharge notarized and recorded.

In December 2007, Giuseppe retained Testa to handle a refinancing of Webster Place.4 In connection with the refinancing, Testa ordered a title search on the property. Because of the fraudulent discharge of plaintiff's mortgage, the search did not disclose any lien in favor of plaintiff. Testa performed the closing as settlement agent on December 22, 2007, and paid off the liens of record against the property. Testa then paid the balance of the loan proceeds to 17 Webster Place Associates, LLC, as the owner of the property.

In March 2008, the Passaic County matter was reopened because the Giudices failed to pay the $260,000 balance of their debt to plaintiff, as required by the Settlement Agreement. The case was then transferred to Bergen County on August 22, 2008 (Bergen I). Following mediation, Bergen I was dismissed as settled in March 2009.

On September 17, 2009, Wachovia Bank (Wachovia) initiated proceedings in Essex County to foreclose on Webster Place. Wachovia named plaintiff as a defendant in its complaint after learning that plaintiff "may claim to have an interest" in the property based on his previous mortgage.

On September 23, 2009, the Mastropoles filed a motion to reinstate their pleadings in Bergen I on the basis that the matter was mistakenly marked as settled following a failed mediation attempt. They also sought an interlocutory final judgment and leave to amend their pleadings.

On October 19, 2009, while the September 23, 2009 motion was pending, plaintiff filed a separate complaint in Bergen County (Bergen II) against the Giudices, Testa, and other parties seeking the unpaid $260,000, and related relief.5

On October 23, 2009, in Bergen I, Judge Ellen L. Koblitz issued an order of judgment in favor of the Mastropoles in the amount of $255,000,6 with interest. Judge Koblitz denied all other requested relief, including leave to file an amended complaint and attorney's fees. No appeal was taken from this judgment.

Six days later, on October 29, 2009, the Giudices filed for bankruptcy. Plaintiff filed a complaint in the bankruptcy proceeding, objecting to the discharge of the October 23, 2009 judgment and seeking attorney's fees. On January 3, 2011, following trial, Judge Morris Stern excepted from discharge the debt owed by Giuseppe pursuant to the October 23, 2009 judgment, but dismissed plaintiff's claim for exception to discharge against Teresa; he did not award attorney's fees.

Relevant to this appeal, Judge Stern found that there was a "business divorce" between Giuseppe and plaintiff, resulting in a $586,000 obligation; that Giuseppe committed a fraud against plaintiff regarding the June and December 2007 transactions; and that Giuseppe committed conversion with respect to plaintiff's property interests.

Thereafter, Teresa entered a consent order withdrawing her bankruptcy case and thus received no discharge from any debts. The bankruptcy case was then dismissed, and Giuseppe also received no discharge from any debts. On May 15, 2011, following the conclusion of bankruptcy proceedings, Webster Place was sold, and the Mastropoles received $330,000 in satisfaction of their $255,000 judgment against the Giudices.

Bergen II was reinstated on February 17, 2012. On June 15, 2012, Judge Harry G. Carroll of the Chancery Division entered an order dismissing seven counts of plaintiff's complaint and transferring the remaining counts to the Law Division. As summarized by Judge Carroll, plaintiff sought the $260,000 he argued was owed to him by the Giudices pursuant to the Settlement Agreement, plus interest and costs; "more than $260,000 in legal fees and costs for his actions in the above lawsuits from all defendants; Saffer7 fees from the Testa defendants only; and punitive damages."

Testa and his law firm then moved for summary judgment. For reasons set forth in a twenty-one-page written decision, Judge Robert L. Polifroni granted Testa's motion for summary judgment in its entirety, dismissing with prejudice all remaining claims against Testa and his firm. He also granted, in part, the Giudices' motion for summary judgment, ordering the dismissal of all claims against Teresa with prejudice. Additionally, he dismissed the following claims against Giuseppe with prejudice: any demand for amounts due from the Settlement Agreement between the parties, any demand for attorney's fees or costs associated with prior lawsuits between the parties, and any claim sounding in malicious use of process.

Judge Polifroni additionally denied Giuseppe's summary judgment motion "as to any other damages sought through plaintiff's remaining claims," and granted plaintiff's cross-motion for summary judgment against Giuseppe for liability only on claims for fraud and conversion. Finally, the order stated that plaintiff must proceed to trial on the issues of proximate cause and damages.

Judge Polifroni found that Testa did not induce reliance or "violate[] his duty not to provide misleading information on which plaintiff would foreseeably rely," pointing out that plaintiff failed to identify an affirmative statement on which he relied or a duty that Testa owed to plaintiff. The judge also dismissed plaintiff's negligence claim against Testa, finding that plaintiff failed to timely exercise the remedies for securing the second installment owed to him that were available in the Settlement Agreement.

Regarding the conversion claim against Testa, Judge Polifroni found that plaintiff was unable to establish that the funds associated with Webster Place were his, and therefore, while the discharge of the mortgage was fraudulently entered, it provided 17 Webster Place, LLC with the title to the property without an encumbrance. Importantly, the judge noted that plaintiff conceded that Testa had no knowledge of the discharge of the mortgage at that time of the Webster Place refinancing.

Judge Polifroni concluded that plaintiff's only possible claim to the disputed funds was that he was entitled to the closing proceeds through the Settlement Agreement with Giuseppe. However, the judge determined that the debt Giuseppe owed to plaintiff was general since the Settlement Agreement stated that he was free to pay plaintiff from any source. Because plaintiff failed to secure the proceeds by executing a mortgage modification, filing a lis pendens, or filing foreclosure proceedings, the judge found that the debt was general. Therefore, since Testa did not owe a duty to plaintiff, and since the excess proceeds from the refinancing of Webster Place were not plaintiff's chattel, plaintiff's claim for conversion against Testa failed.

Judge Polifroni also dismissed plaintiff's equitable fraud claim, noting that plaintiff had not sought any equitable remedies. Furthermore, the judge found that Testa did not involve plaintiff in the closing of Webster Place because Giuseppe represented to Testa that the closing was not related to the Settlement Agreement. Thus, Testa did not have knowledge of fraud or wrongdoing and "his silence cannot form the basis for an incorrect statement," in the absence of duty.

In addressing the Giudices' argument that Judge Koblitz's October 23, 2009 order resolved all claims against them, Judge Polifroni concluded that viewing the facts in the light most favorable to plaintiff, the order did not resolve plaintiff's additional claims against the Giudices. Specifically, Judge Polifroni concluded that the order was only preclusive with respect to the settlement amount due and the "attorney's fees and costs associated with the attempt to collect and enforce the settlement," in the absence of clear language that the order barred future claims.

Judge Polifroni further explained that because plaintiff's application to amend his complaint was denied, the claims he sought to add fraud, conversion, misrepresentation, and related claims could be brought in a separate suit. Judge Polifroni therefore concluded that "Judge Koblitz's ruling is only [preclusive] as to the claims it adjudicated" - enforcement of the Settlement Agreement and rejection of the application for fees and costs relating thereto.

Judge Polifroni found that plaintiff had "no factual or legal basis for the assertion that his dispute as to the settlement was not adjudicated on the merits or that he did not 'receive' any of the funds," and was collaterally estopped from pursuing them. Therefore, plaintiff's potential relief was limited to "any of his affirmative claims against the defendants that were not addressed by prior litigation."

Judge Polifroni also concluded that plaintiff waived his right to seek attorney's fees in the bankruptcy court by not bringing the motion during the bankruptcy proceedings. Furthermore, he found that Judge Stern's determination regarding Teresa's lack of involvement in the bankruptcy case and his findings that there was a "total absence of evidence connecting her other than as a spouse to her husband's real estate business affairs" is preclusive as to the claims against her. He noted that the only issue not addressed by Judge Stern was Teresa's personal guaranty to pay the settlement amount due. Because plaintiff had been paid the amount due and Teresa had no other involvement, her actions could not be found to be a proximate cause with respect to any of plaintiff's remaining claims. The judge also found that plaintiff could not seek attorney's fees incurred during prior lawsuits against Giuseppe.

Next, Judge Polifroni addressed plaintiff's motion for summary judgment, as to liability only against Giuseppe. The judge found that "Judge Stern's determination as to fraud and conversion are res judicata," as Judge Stern decided both claims when exempting those claims against Giuseppe from discharge in bankruptcy. Thus, he concluded that "plaintiff may seek damages that may lie under the law, other than legal fees[.]"

Finally, Judge Polifroni found that plaintiff's claim of malicious use of process was "procedurally improper and unpersuasive," as it was not alleged in his complaint, nor had plaintiff sought to amend his complaint to allege it.

On May 13, 2014, Judge Kenneth J. Slomienksi heard argument regarding Giuseppe's motion to dismiss all remaining claims against him. The judge first noted that he "cannot second guess Judge Polifroni, or Judge Koblitz, or any other [j]udge, the matter that's brought before me for trial with a prior order, which in effect basically says, there is no compensatory [damages]." After determining that punitive damages was the only issue remaining, the judge granted Giuseppe's motion to dismiss the remaining counts of plaintiff's complaint, explaining that "[a] punitive damage trial is conducted only . . . if compensatory damages have been awarded." Because it was not disputed that plaintiff's mortgage was previously satisfied, the judge concluded that there were no compensatory damages to support plaintiff's punitive damage claim.

On appeal, plaintiff argues

POINT ONE

PLAINTIFF WAS ENTITLED TO SUMMARY JUDGMENT AGAINST GIUSEPPE GIUDICE ON MULTIPLE TORT AND CONTRACT THEORIES.

POINT TWO

BOTH GIUSEPPE AND TERESA GIUDICE ARE LIABLE TO PLAINTIFF, DUE TO PERSONAL GUARANTEES, FOR DAMAGES CONSISTING LARGELY OF ATTORNEY'S FEES AND LITIGATION COSTS FROM THE UNDERLYING MATTERS, NOTWITHSTANDING WHAT WAS DONE IN U.S. BANKRUPTCY COURT.

POINT THREE

TESTA AND HIS FIRM WERE LIABLE TO PLAINTIFF, NOTWITHSTANDING THAT THERE WAS NO ATTORNEY-CLIENT RELATIONSHIP BETWEEN THEM, DUE TO HIS FAILURE TO PAY PLAINTIFF OUT OF THE REFINANCING PROCEEDS CONTEMPLATED IN THE PRIOR AGREEMENT, OR AT LEAST TO ADVISE PLAINTIFF'S THEN-ATTORNEY TO TAKE ACTION.

POINT FOUR

PLAINTIFF WAS ENTITLED TO PUNITIVE DAMAGES, COUNSEL FEES AND COSTS AGAINST GIUSEPPE GIUDICE, IN THE SITUATION WHERE HIS LIABILITY TO PLAINTIFF WAS [RES JUDICATA] FROM THE BANKRUPTCY LITIGATION, AND DID NOT REQUIRE A TRIAL ON LIABILITY OR ACTUAL DAMAGES IN STATE COURT.

II.

Review of a ruling on summary judgment is de novo, and we apply the same legal standard as the trial court. Nicholas v. Mynster, 213 N.J. 463, 477-78 (2013). Summary judgment is appropriate where "the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law." R. 4:46-2(c).

When determining whether there is a genuine issue of material fact, we must consider "whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party." Brill v. Guardian Life Ins. Co of Am., 142 N.J. 520, 540 (1995). We afford no deference to the trial court's legal conclusions. Nicholas, supra, 213 N.J. at 478.

A.

Plaintiff first argues that Giuseppe is directly liable for fraud, conversion, and malicious use of process, and is vicariously liable for the actions of his attorneys, Rinzler and Rinzler. He additionally argues that issues of material fact exist as to his claims against Teresa. He asserts that he was awarded summary judgment against Giuseppe by Judge Stern, and also that Judge Polifroni did not outline what damages he could claim, but only limited the type of damages he could receive.

Plaintiff further asserts that while Judge Stern concluded that Giuseppe committed fraud and conversion, plaintiff also "presents several other causes of action, that would not have been litigable in U.S. Bankruptcy Court," including: "(1) breach of fiduciary duty owed by one partner to another; (2) breach of contract by not paying [plaintiff] off in December 2007; (3) conversion by not paying [p]laintiff when due; (4) liability of Testa on any theory;" and "(5) malicious use of process[.]" Plaintiff argues that the principles of collateral estoppel apply to these additional claims and therefore he was entitled to summary judgment.

Collateral estoppel or issue preclusion is an equitable principle providing that "[w]hen an issue of fact or law is actually litigated and determined by a valid and final judgment, and the determination is essential to the judgment, the determination is conclusive in a subsequent action between the parties, whether on the same or a different claim." Winters v. N. Hudson Reg'l Fire & Rescue, 212 N.J. 67, 85 (2012) (quoting Restatement (Second) of Judgments 27 (1982)). In order for this doctrine to apply and foreclose relitigation,

the party asserting the bar must show that: (1) the issue to be precluded is identical to the issue decided in the prior proceeding; (2) the issue was actually litigated in the prior proceeding; (3) the court in the prior proceeding issued a final judgment on the merits; (4) the determination of the issue was essential to the prior judgment; and (5) the party against whom the doctrine is asserted was a party to or in privity with a party to the earlier proceeding.

[Ibid. (quoting Olivieri v. Y.M.F. Carpet, Inc., 186 N.J. 511, 521 (2006)).]

Plaintiff fails to show that he was entitled to summary judgment on the contract and tort claims because of collateral estoppel. As he stated in his own brief, these claims were not "litigable" in the bankruptcy court. Therefore, they could not have been decided by Judge Stern and collateral estoppel cannot apply to any of the claims except for conversion and fraud. Moreover, plaintiff also fails to identify any evidence in the record to support his claim that summary judgment should have been granted as to "multiple tort and contract theories."

B.

Plaintiff also argues that an issue of material fact exists as to whether Teresa knew of Giuseppe's "escapades." He asserts that even though Teresa testified that she did not remember signing the personal guaranty, Testa testified that Teresa told him she agreed to the personal guaranty and that he witnessed it. Plaintiff posits that because Testa was not a party to the bankruptcy case, Judge Stern did not need to resolve these two opposing testimonies. Plaintiff therefore concludes that "[i]t is a pretty good bet that Testa['s testimony] would prevail," making Teresa a participant in Giuseppe's fraud.

The record lacks any evidence to support plaintiff's assertion that Judge Stern did not consider the conflicting testimonies heard during the bankruptcy proceeding. Judge Stern found no connection between Teresa and her husband's fraud, noting a "total absence of evidence other than as a spouse to her husband's real estate business affairs." Additionally, Judge Stern noted that plaintiff essentially "conceded the dismissal of Teresa from the case after a short discussion of [existing] precedent and regarding imputed liability of a business partner." Thus, plaintiff's argument that issues of material fact exist as to Teresa's involvement lacks merit.

C.

Plaintiff next presents an argument, for the first time on appeal, that Giuseppe is vicariously liable for "whatever guilt Rinzler may have borne, for aiding and abetting this fraud[.]" He bases this argument on the fact that Rinzler was Giuseppe's transactional attorney, and that an attorney is his client's agent.

When an issue is not raised in the trial court, we apply the plain error rule. Under Rule 2:10-2, "any error or omission shall be disregarded by the appellate court unless it is of such a nature as to have been clearly capable of producing an unjust result, but the appellate court may, in the interests of justice, notice plain error not brought to the attention of the trial . . . court." See also State v. Ross, 218 N.J. 130, 142-43 (2014) (quoting R. 2:10-2). In addition, we ordinarily do not consider arguments raised for the first time on appeal. Nieder v. Royal Indem. Ins. Co., 60 N.J. 229, 234 35 (1973). However, even if we consider this issue, it has no merit.

"Generally, a principal is liable for the tortious acts of an agent acting within the scope of his or her authority." Baldsarre v. Butler, 132 N.J. 278, 289 (App. Div. 1993). However,

[i]t is not every agent whose fault is attributable to the principal. If the principal is the master of an agent who is his servant, the fault of the agent, if acting within the scope of his employment, will be imputed to the principal by reason of respondeat superior. But there is a vast difference between an employee agent and a non-employee agent. And, as a matter of legal terminology, the non-employee agent is, generally, nothing else but an independent contractor.

[JMB Enters. v. Atl. Emp'rs. Ins. Co., 228 N.J. Super. 610, 617 (App. Div. 1988).]

An independent contractor is "characterized by the attributes of self-employment and self-determination in the economic and professional sense." Baldsarre, supra, 132 N.J. at 291 (quoting Rokos v. State, Dep't of Treasury, 236 N.J. Super. 174, 181 (App. Div. 1989)). These characteristics "are generally present in the attorney-client relationship[,]" and attorneys are generally "not subject to their clients' actual control or direction." Ibid.

Plaintiff's argument that Giuseppe should be liable for Rinzler's actions lacks merit. Vicarious liability is inapplicable, as Rinzler was Giuseppe's attorney and therefore an independent contractor. Additionally, there is no evidence in the record establishing that Rinzler knowingly engaged in any misconduct; plaintiff dropped Rinzler as a defendant and no findings of guilt or liability were made against him. The record does not support plaintiff's claim of plain error. See R. 2:10-2.

D.

Plaintiff next argues that Giuseppe is liable for malicious use of process. He asserts that Giuseppe used process to discharge a mortgage from the public record when it had not been satisfied.

The tort of malicious use of process requires the same four elements as malicious prosecution, plus an additional element: "(1) a criminal action instituted by this defendant against this plaintiff; (2) the action was motivated by malice; (3) there was an absence of probable cause to prosecute; and (4) the action was terminated favorably to the plaintiff." LoBiondo v. Schwartz, 199 N.J. 62, 90 (2009). The fifth element for the tort of malicious use of process requires "that the plaintiff has suffered a special grievance caused by the institution of the underlying civil claim." Ibid.

As noted by Judge Polifroni, plaintiff never alleged this tort in his complaint, nor did he seek to amend his complaint to allege it. Regardless, it is clear that plaintiff could not prove the required elements of the cause of action. Giuseppe did not file a criminal complaint against plaintiff. Plaintiff's contention lacks sufficient merit to warrant further discussion. See R. 2:11-3(e)(1)(E).

E.

Plaintiff also argues that he is entitled to attorney's fees from Giuseppe, as well as costs accrued from suing both Testa and Teresa. Plaintiff first relies on the personal guarantees signed by both Giuseppe and Teresa as permitting the award of counsel fees. He also argues that the failure of Judge Koblitz or Judge Stern to award attorney's fees is of no moment. We disagree.

The entire controversy doctrine is codified in Rule 4:30A, which provides

Non-joinder of claims required to be joined by the entire controversy doctrine shall result in the preclusion of the omitted claims to the extent required by the entire controversy doctrine, except as otherwise provided by R. 4:64-5 (foreclosure actions) and R. 4:67-4(a) (leave required for counterclaims or cross-claims in summary actions).

"At a minimum, all parties to a suit should assert all affirmative claims and defenses arising out of the underlying controversy." Oliver v. Ambrose, 152 N.J. 383, 394 (1998) (quoting Prevratil v. Mohr, 145 N.J. 180, 187 (1996)). "It is the core set of facts that provides the link between distinct claims against the same parties . . . and triggers the requirement that they be determined in one proceeding." DiTrolio v. Antiles, 142 N.J. 253, 267-68 (1995).

Nonetheless, the "polestar of the application of the rule is judicial fairness." Id. at 272. Therefore, the doctrine is not limitless and its "application is left to judicial discretion based on the factual circumstances of individual cases." Brennan v. Orban, 145 N.J. 282, 291 (1996).

Plaintiff again brings a claim for attorney's fees related to the proceedings in Bergen I, despite the denial of his request by Judge Koblitz in her October 23, 2009 order. He also attempts to seek attorney's fees regarding matters that are from the same core of facts already addressed in the bankruptcy case. Judge Polifroni denied, with prejudice, plaintiff's request to collect fees "associated with his efforts to secure the settlement proceeds."

"[F]ee determinations by trial courts will be disturbed only on the rarest of occasions, and then only because of a clear abuse of discretion." Packard-Bamberger & Co. v. Collier, 167 N.J. 427, 444 (2001) (quoting Rendine v. Pantzer, 141 N.J. 292, 317 (1995)). Plaintiff engaged in piecemeal litigation, contrary to the entire controversy doctrine, by attempting to bring claims for attorney's fees that were not awarded in Bergen I or in bankruptcy court.

Plaintiff asserts that Judge Stern was not permitted to award attorney's fees in the bankruptcy matter. This claim lacks merit. Fed. R. Bankr. P. 7008(b) requires that a party requesting attorney's fees must plead it as a claim before the bankruptcy court. Additionally, Fed. R. Bankr. P. 7058 provides that Fed. R. Civ. P. 58 applies in adversary proceedings. Rule 54(d)(2) of the Federal Rules of Civil Procedure provides that a claim for attorney's fees must be made by motion unless substantive law requires fees to be proved at trial as an element of damages, and must be filed no later than fourteen days after a judgment has been entered. Fed. R. Civ. P. 54(d)(2)(A) and (B). Plaintiff sought an award for attorney's fees in his adversarial complaint pursuant to the Fed. R. Bankr. P. 7008(b), but then did not bring a motion for these fees following the entry of the judgment.

Plaintiff failed to appeal Judge Koblitz's decision denying attorney's fees in 2009, and failed to file the required motion to obtain attorney's fees in the bankruptcy proceeding. We discern no abuse of discretion in Judge Polifroni's denial of plaintiff's requests for attorney's fees.

F.

Plaintiff further asserts that he was entitled to punitive damages and counsel fees based on the bankruptcy judge's findings against Giuseppe for fraud and conversion.

We review the trial court's ruling on punitive damages de novo. Rusak v. Ryan Auto., L.L.C., 418 N.J. Super. 107, 118 (App. Div. 2011). "Because de novo review means that no special deference will be accorded to a trial court's findings of fact and conclusions of law, the trial court's characterization of the evidence in support of the award of punitive damages is of little significance." Baker v. Nat'l State Bank, 353 N.J. Super. 145, 153 (App. Div. 2002) (citation omitted).

The Punitive Damages Act governs punitive damages, N.J.S.A. 2A:15-5.9 to 5.17. The statute provides that upon request, actions involving punitive damages shall be conducted in a bifurcated trial. N.J.S.A. 2A:15-5.13(a). Additionally, "[p]unitive damages may be awarded only if compensatory damages have been awarded in the first stage of the trial. An award of nominal damages cannot support an award of punitive damages." N.J.S.A. 2A:15-5.13(c). See Smith v. Whitaker, 160 N.J. 221, 245 (1999) (holding that "an award of compensatory damages [i]s a predicate for a punitive damages award").

Judge Slomienski properly found that plaintiff's remaining claims for punitive damages could not be granted in the absence of compensatory damages. See N.J.S.A. 2A:15-5.13(b). Plaintiff was not awarded compensatory damages in the bankruptcy matter by Judge Stern or in the state court matters decided by Judge Koblitz and Judge Polifroni. Therefore, punitive damages were not available and plaintiff's remaining claims were properly dismissed.

G.

Plaintiff next presents a series of arguments positing that Testa was liable to plaintiff for legal malpractice, conversion, and aiding and abetting fraud.

The operative question here is whether the trial court's finding that Testa was not aware of Giuseppe's wrongdoings and fraudulent activities is supported by the evidence. As this is a question of fact, the trial court's conclusion must be supported by "adequate, substantial and credible evidence." Manahawkin Convalescent v. O'Neill, 217 N.J. 99, 115 (2014) (quoting Pheasant Bridge Corp. v. Twp. of Warren, 169 N.J. 282, 293 (2001), cert. denied, 535 U.S. 1077, 122 S. Ct. 1959, 152 L. Ed. 2d 1020 (2002)).

We conclude that Judge Polifroni's finding that Testa was unaware of Giuseppe's actions is supported by the undisputed evidence. Testa testified that he had no role in the mortgage discharge and did not know about it prior to the title search. As Judge Polifroni noted, plaintiff conceded that at the time of the refinancing that Testa did not know about the fraudulent mortgage discharge. The mortgage discharge includes the signatures of Giuseppe's former employees and was returnable to the law firm of Rinzler and Rinzler. Testa was not involved in the mortgage discharge, and the record lacks evidence to the contrary. The Settlement Agreement did not provide that plaintiff needed to be paid from the proceeds of Webster Place specifically, and Giuseppe misinformed Testa that the two were unrelated, providing further support that Testa had no knowledge of Giuseppe's fraud.

Plaintiff next argues that Testa committed legal malpractice. He first asserts that Testa owed him a duty of care, even though Testa was not his attorney. Plaintiff contends that Testa should have known that Webster Place was related to the Settlement Agreement and thus should have discovered the fraudulent discharge of the mortgage. Plaintiff further posits that Testa had a fiduciary duty to plaintiff because Testa "should have been surprised by his client's assertion that [plaintiff] had nothing to do with this closing, and by the absence of the [m]ortgage in the title binder, that he had a fiduciary duty to check it out."

To establish a claim for legal malpractice, a claimant must show: "(1) the existence of an attorney-client relationship creating a duty of care upon the attorney; (2) the breach of that duty; and (3) proximate causation." Conklin v. Hannoch Weisman, 145 N.J. 395, 416 (1996). To establish the "requisite causal connection between a defendant's negligence and plaintiff's harm, plaintiff must present evidence to support a finding that defendant's negligent conduct was a 'substantial factor' in bringing about plaintiff's injury, even though there may be other concurrent causes of the harm." Froom v. Perel, 377 N.J. Super. 298, 313 (App. Div.) (quoting Conklin, supra, 145 N.J. at 419), certif. denied, 185 N.J. 267 (2005).

"The determination of the existence of a duty is a question of law for the court." Petrillo v. Bachenberg, 139 N.J. 472, 479 (1994) (citations omitted). Whether an attorney owes a duty to "a non-client third party depends on balancing the attorney's duty to represent clients vigorously, with the duty not to provide misleading information on which third parties foreseeably will rely." Ibid. (citations omitted); see also Banco Popular N. Am. v. Ghande, 184 N.J. 161, 180 (2005) ("[I]f the attorney does absolutely nothing to induce reasonable reliance by a third party, there is no relationship to substitute for the privity requirement."). "[T]he grounds on which any plaintiff may pursue a malpractice claim against an attorney with whom there was no attorney-client relationship are exceedingly narrow." Green v. Morgan Props., 215 N.J. 431, 458 (2013).

We conclude that Judge Polifroni correctly determined that Testa breached no duty to plaintiff, a non-client. As plaintiff admits he was not Testa's client, in order for a duty to exist, plaintiff must show that Testa provided misleading information on which plaintiff relied. See Petrillo, supra, 139 N.J. at 479. As Judge Polifroni noted, Testa made no representations to plaintiff on which he relied. Plaintiff's assertion that Testa had an affirmative duty to inform plaintiff of Giuseppe's wrongdoing is unsupported, as the record lacks any evidence that Testa knew about the fraud.8

Plaintiff's remaining appellate arguments lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

Affirmed.

1 For ease of reference, we refer to defendants Giuseppe Giudice and Teresa Giudice, individually, by their first names, and collectively by their last name. We also refer to plaintiff's mother, Frances Mastropole, by her first name.

2 The stipulation was signed by the parties' attorneys, Testa for the Giudices, and William Saracino, Sr. (Saracino), for the Mastropoles.

3 A personal guaranty was allegedly executed by the Giudices on June 15, 2007; however, Teresa later testified in bankruptcy court that she never signed the personal guaranty. Giuseppe testified that he may have signed Teresa's name for her.

4 The record contains no evidence that Testa was aware of the forgery at this time. The record indicates that Testa first learned of the forgery during a hearing in July 2008.

5 On December 11, 2009, plaintiff filed a third-party complaint in the Webster Place foreclosure action, asserting claims against various parties, including Testa, his law firm, and Teresa. On March 3, 2010, this third-party complaint was consolidated with Bergen II.

6 While plaintiff claims that judgment should have been entered for $260,000, he states that he has waived the $5000 difference.

7 See Saffer v. Willoughby, 143 N.J. 256, 272 (1996) (holding that a negligent attorney who commits malpractice "is responsible for the reasonable legal expenses and attorney fees incurred by a former client in prosecuting the legal malpractice action").

8 Like Judge Polifroni, we note that plaintiff could have easily avoided the harm he sustained. Plaintiff failed to timely serve the notice to cure referenced in the Settlement Agreement, which would have alerted Testa to the default before the Webster Place refinancing.