                                NOT FOR PUBLICATION WITHOUT THE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-4909-15T2

RD LEGAL FUNDING PARTNERS,
LP,

          Plaintiff-Respondent,

v.

MEL POWELL, ESQ., and POWELL
LAW FIRM, PC,

          Defendants,

and

JEFFREY C. BOGERT, ESQ., and LAW
OFFICE OF JEFFREY C. BOGERT,

          Defendants/Third-Party
          Plaintiffs-Appellants,

v.

DANIEL OSBORN, ESQ., BEATIE &
OSBORN, LLP, a New York Limited
Liability Partnership, OSBORN LAW,
PC, a New York Professional Corporation,
and OSBORN LAW GROUP,

          Third-Party Defendants-Respondents.
_____________________________________

           Argued March 28, 2019 – Decided July 29, 2019

           Before Judges Simonelli, Whipple and Firko.

           On appeal from the Superior Court of New Jersey,
           Chancery Division, Bergen County, Docket No. C-
           000026-15.

           Barry Joseph Muller argued the cause for appellants
           (Fox Rothschild LLP, attorneys; Barry Joseph Muller
           and Jonathan D. Weiner, of counsel and on the briefs).

           Kevin Joseph Musiakiewicz argued the cause for
           respondent RD Legal Funding Partners, LP (Calcagni
           & Kanefsky, attorneys; Eric Todd Kanefsky, of counsel
           and on the briefs; Kevin Joseph Musiakiewicz and
           Martin B. Gandelman, on the briefs).

           Levi & Korsinsky LLP, attorneys for respondents
           Daniel Osborn, Beatie and Osborn LLP, Osborn Law,
           PC, and Osborn Law Group (Eduard Korsinsky, of
           counsel and on the brief).

PER CURIAM

     Defendants/third-party plaintiffs Jeffrey C. Bogert, Esq. and the Law

Office of Jeffrey C. Bogert (collectively, Bogert) appeal from the March 10,

2016 Chancery Division orders granting summary judgment to plaintiff RD

Legal Funding Partners, LP (RD Legal) and third-party defendants Daniel

Osborn, Beatie & Osborn, LLP (B&O), Osborn Law P.C. and Osborn Law

Group (collectively, Osborn), and dismissing the third-party complaint with

                                                                     A-4909-15T2
                                     2
prejudice. Bogert also appeals from the May 7, 2018 order denying his motion

to vacate judgment.1 We affirm.

                                        I.

      We derive the following facts from the evidence submitted by the parties

in support of, and in opposition to, the summary judgment motions, viewed in

the light most favorable to Bogert, who opposed entry of summary judgment.

Elazar v. Macrietta Cleaners, Inc., 230 N.J. 123, 135 (2017).

      In 2005, Bogert, Osborn and defendants Mel Powell and Powell Law, LC

(collectively, Powell) began working as co-counsel in pursuing personal injury



1
   Bogert's notice of appeal indicates he also appealed from the April 18, 2016
order denying his motion for reconsideration; however, he did not address this
issue in his merits brief. The issue, therefore, is deemed waived. See
Sklodowsky v. Lushis, 417 N.J. Super. 648, 657 (App. Div. 2011); Pressler &
Verniero, Current N.J. Court Rules, cmt. 5 on R. 2:6-2 (2019). In addition, we
consider the trial court's summary judgment decision based solely on the motion
record and not based on evidence presented later. Ji v. Palmer, 333 N.J. Super.
451, 463-64 (App. Div. 2000). Accordingly, we will not consider documents
submitted or arguments made for the first time on Bogert's motion for
reconsideration. See Cummings v. Bahr, 295 N.J. Super. 374, 384 (App. Div.
1996) (a party is not permitted to use a motion for reconsideration as a basis for
presenting facts or arguments that could have been provided in opposition to the
original motion). Even if we considered the issue, we discern no abuse of
discretion in the trial court's denial of the motion, Pitney Bowes Bank, Inc. v.
ABC Caging Fulfillment, 440 N.J. Super. 378, 382 (App. Div. 2015), and would
affirm substantially for the reasons the court expressed in its written opinion
dated April 18, 2016.


                                                                          A-4909-15T2
                                        3
claims involving a class of drugs manufactured and sold by Novartis, Merck,

and Proctor & Gamble/Aventis. They pursued these claims in three separate

multi-district actions, two in the United States District Court for the Southern

District of New York and one in the United States District Court for the Middle

District of Tennessee (the ONJ Litigations).

      Powell primarily collected the cases and referred them to Osborn and

Bogert for handling.     In December 2005, the parties executed two Fee

Agreements, one between B&O and Powell and the other between B&O and

Bogert.   Under the agreements, Powell would receive forty percent of the

attorney's fees derived from the ONJ Litigations and Osborn and Bogert would

split the remaining sixty percent based on their relative contributions. At the

time, Russell Beatie and Osborn were partners in B&O.

      B&O sought to obtain funding from RD Legal to finance the ONJ

Litigations costs and expenses. On October 23, 2007, B&O and RD Legal

executed a Master Assignment and Sale Agreement (the B&O Agreement).

Under the B&O Agreement, RD Legal would provide funding to B&O on an as-

needed basis in exchange for B&O's sale and assignment of attorney's fees it

derived from the ONJ Litigations (Prospective Fees). Each sale and purchase of




                                                                        A-4909-15T2
                                       4
Prospective Fees would be a separate transaction memorialized in a separately

executed schedule.

      In December 2008, B&O was dissolved and Osborn formed Osborn Law,

PC. Beatie and Osborn agreed that Osborn would continue to prosecute ninety-

five percent of the ONJ Litigations. On December 31, 2008, Osborn, Bogert

and Powell entered into a Fee Agreement, which provided for the same division

of attorney's fee as the prior Fee Agreement.

      Bogert claimed that on January 6, 2009, he and Osborn met with Roni

Dersovitz, the principal and general partner of RD Legal, to discuss RD Legal's

continued purchase of Prospective Fees following B&O's dissolution. Bogert

alleged the parties agreed that RD Legal would purchase Prospective Fees in an

amount sufficient to provide Osborn with approximately $200,000 per month in

gross sale proceeds and Osborn, in turn, would pay Bogert $10,000 per month

from those proceeds (the Alleged Oral Agreement).

      On January 24, 2009, Osborn and Bogert executed a Fee Sharing

Agreement, whereby Bogert would continue to act as co-counsel with Osborn in

prosecuting the ONJ Litigations, and Osborn would receive sixty-five percent

of the attorneys' fees derived from the litigations and Bogert would receive

thirty-five percent.


                                                                       A-4909-15T2
                                       5
      On January 29, 2009, RD Legal and Osborn executed a Master

Assignment and Sale Agreement, which contained all of the same material and

operative terms of the B&O Agreement (the Osborn Agreement). Osborn also

executed an Assumption Agreement, whereby he assumed the obligations B&O

incurred in a September 2007 loan and security agreement with RD Legal (the

B&O Loan Agreement). Osborn thereafter assigned and sold his Prospective

Fees to RD Legal, as required by the Assumption Agreement.

      In mid-2009, it became apparent that Osborn and Bogert needed

substantial additional funding for the ONJ Litigations. By that time, the total

obligations under the B&O and Osborn Agreements had accrued significantly

and RD Legal had extended the deadlines associated with each of the schedules

issued under the agreements. Due to the significant outstanding balance and the

absence of any imminent prospect of a payment, RD Legal agreed to provide

continued funding so long as Bogert and Powell executed a Subordination

Agreement.

      Prior to executing his Subordination Agreement, on September 1, 2009,

Bogert obtained a loan in the amount of $63,000 from another litigation funding

company, JD Capital LP I (JD Capital), and pledged to JD Capital an interest in

the attorneys' fees he would derive from unrelated personal injury actions and


                                                                       A-4909-15T2
                                      6
some of the ONJ Litigations. Bogert claimed he notified RD Legal in writing

of this transaction, but RD Legal did not respond.

      Thereafter, on September 30, 2009, Bogert executed a Subordination

Agreement, whereby he agreed to assign, transfer and convey to RD Legal the

attorney's fees he derived from the ONJ Litigations in exchange for RD Legal's

continued purchase of Prospective Fees from Osborn.2 Bogert acknowledged in

the Subordination Agreement that he

            derives a benefit from the [B&O and Osborn]
            Agreements and the B&O Loan Agreement and, in
            consideration thereof, desires to enter into this
            [Subordination] Agreement in order to further induce
            RD Legal to enter into and perform under [the B&O and
            Osborn] Agreements and the B&O Loan Agreement.


Bogert also agreed to the following terms:

            1.    TERMS OF SUBORDINATION

                  1.1 In consideration and conditioned upon the
            covenants and promises set forth in this Agreement, and
            in order to induce RD Legal to provide financing to
            [Osborn] . . . pursuant to the terms of the [B&O and


2
  Powell also executed a Subordination Agreement, which was almost identical
to Bogert's agreement, except that Powell only assigned the first $1 million in
attorney's fees derived from the ONJ litigations and retained the right to
terminate his agreement as to RD Legal's future advances of funds to Osborn on
or after May 1, 2010.


                                                                       A-4909-15T2
                                       7
Osborn] Agreements and the B&O Loan Agreement,
Bogert . . . hereby:

      1.1.1 assigns, transfers and conveys to RD Legal
[Bogert's] portion of all Legal Fees that are at any time
due and payable to Bogert . . . under any of the Fee
Agreements, in each case as additional collateral
securing [B&O's] present and future obligations to RD
Legal . . . pursuant to the terms and conditions hereof
and of the [B&O and Osborn] Agreements and the B&O
Loan Agreement . . . and

1.1.2 subordinates in favor of RD Legal any right, title,
interest or lien that Bogert . . . may have or hereafter
acquire in [Bogert's] portion of the Legal Fees that are
at any time due and payable to [Bogert] under any of
the Fee Agreements . . . . Accordingly, such Legal Fees
shall be subject and subordinate to the payment in full
of all [B&O's] and Osborn['s] Obligations.

      ....

       1.5. RD Legal may at any time, in its sole and
absolute discretion . . . enter into such agreements with
[B&O] and [Osborn] as RD Legal may deem desirable
without notice to or further assent from [Bogert] and
without in any way affecting RD Legal's rights or
[Bogert's] obligations hereunder. [Bogert] waives any
rights [he] may have to claim that the enforceability of
this Agreement may be affected by any subsequent
modification, release, extension, or other change,
material or otherwise, to any or all of the [B&O and
Osborn] Agreements and the B&O Loan Agreement, or
in respect of the Obligations.

      1.6. This Agreement is and shall be deemed to
be a continuing subordination and assignment, and
shall be irrevocable and remain in effect until the

                                                            A-4909-15T2
                           8
Obligations have been indefeasibly paid in full. This is
a continuing agreement of subordination and [Bogert]
acknowledges that RD Legal may continue, at any time
and without notice to [Bogert] to extend financial
accommodations for the benefit of [B&O] and [Osborn]
on the faith hereof, in such amounts and on such terms
and conditions as RD Legal, [B&O] and [Osborn] may
agree.

      ....

11.   ASSIGNMENT; BINDING EFFECT

      11.1 . . . RD Legal shall have the right to assign
any portion or all of its rights, interests and obligations
under this Agreement. RD Legal shall also have the
right to pledge or grant a security interest in this
Agreement relative to any Legal Fee or Legal Fees.

      ....

15.   CONFLICTS WITH OTHER AGREEMENTS

      15.1. Unless otherwise expressly stated in any
other agreement between all or certain of the parties
hereto, if a conflict exists between the provisions of this
Agreement and the provisions of such other agreement,
the provisions of this agreement shall control. . . .

16.   ENTIRE AGREEMENT, AMENDMENT AND
      WAIVER

      16.1 No promises of any kind have been made
by RD Legal or any third party to induce [Bogert] to
execute this Agreement. No course of dealing, course
of performance or trade usage, and no parole evidence
of any nature, shall be used to supplement or modify
any terms of this Agreement. Only a writing signed by

                                                              A-4909-15T2
                            9
            all parties hereto may amend this Agreement. No
            failure or delay in exercising any rights hereunder shall
            impair any such right that RD Legal may have, nor shall
            any waiver by RD Legal hereunder be deemed a waiver
            of any default or breach subsequently occurring. RD
            Legal's rights and remedies herein are cumulative and
            not exclusive of each other or of any rights or remedies
            that RD Legal would otherwise have.

            [(Emphasis added).]

      Bogert alleged he and Osborn agreed that if, as a result of the

Subordination Agreement, Bogert was required to repay RD Legal an amount

greater than what he received from Osborn under the Alleged Oral Agreement,

Osborn would reimburse him for the difference (the Alleged Reimbursement

Agreement).

      RD Legal claimed that in November 2009, it discovered the transaction

between Bogert and JD Capital and demanded that Bogert arrange for JD Capital

to remove its lien on the attorney's fees Bogert would derive from the ONJ

Litigations. The dispute was not resolved. Bogert claimed that in January 2010,

RD Legal instructed Osborn to cease paying him any proceeds from the sale of

Prospective Fees to RD Legal.

      By the end of 2014, all of the ONJ Litigations had settled, but the

litigations did not yield attorney's fees sufficient to cover the funds RD Legal

had provided to Osborn. Osborn thereafter transferred all of the attorney's fees

                                                                        A-4909-15T2
                                      10
he derived from the ONJ Litigations to RD Legal, but Bogert and Powell did not

do so and also did not establish a joint deposit account, as required by their

Subordination Agreements.

        RD Legal filed a verified complaint against Bogert and Powell asserting

claims for breach of contract; conversion; breach of the implied covenant of

good faith and fair dealing; breach of fiduciary duty; unjust enrichment; an

accounting; and injunctive relief.3 Bogert filed a counterclaim against RD Legal

and third-party complaint against Osborn for declaratory judgment that the

Subordination Agreement was void and for breach of the implied duty of good

faith and fair dealing. Bogert also sought reimbursement from Osborn pursuant

to the Alleged Reimbursement Agreement in the event he had to pay RD Legal

an amount greater than the sale proceeds he received from Osborn under the

Alleged Oral Agreement.

        On February 4, 2016, after the close of discovery, the parties each filed

motions for summary judgment. Bogert argued the Subordination Agreement

was unenforceable because there was no meeting of the minds or mutual assent

to form the Subordination Agreement, and there was a failure of consideration.

He maintained that his right to receive a portion of the sale proceeds under the


3
    RD Legal later settled with Powell.
                                                                         A-4909-15T2
                                          11
Alleged Oral Agreement was the actual bargained-for consideration for the

Subordination Agreement, and RD Legal and Osborn breached both agreements

by depriving him of that right. He also argued that RD Legal breached the

implied covenant of good faith and fair dealing by directing Osborn to stop

payment and providing funding to Osborn in an arbitrary and capricious manner.

      In a March 10, 2016 written opinion, the court granted summary judgment

to RD Legal and Osborn and dismissed the third-party complaint with prejudice.

The court found that Bogert signed the Subordination Agreement and the clear

language of the agreement established there was a meeting of the minds with

respect to its terms. The court also found there was mutual assent because

Bogert signed the Subordination Agreement with no changes and failed to

submit evidence supporting his claim that he made changes to the agreement.

      Addressing consideration, the court noted that Bogert conceded the

Subordination Agreement contained no provision regarding his right to receive

monthly payments from the sale proceeds. The court reviewed the language of

the Subordination Agreement and found the consideration to Bogert was for RD

Legal to continue providing funds to Osborn so that Bogert and Osborn could

continue to prosecute the ONJ Litigations. The court emphasized:

                 Without funding provid[ed] by [RD Legal],
            [Bogert] and [Osborn] would have been unable to

                                                                       A-4909-15T2
                                     12
           continue representing their clients in the [ONJ
           Litigations]. While the [ONJ Litigations] ultimately
           did not yield [Bogert] and [Osborn] fees sufficient to
           cover the funds provided by [RD Legal], [Bogert] and
           [Osborn] were provided the opportunity to prosecute
           the actions to win these awards and try to win much
           greater rewards, and that constitutes consideration.

     Addressing the Alleged Oral Agreement, the court again noted that Bogert

conceded there was no provision in the Subordination Agreement or any other

written agreement between the parties regarding that Alleged Oral Agreement.

The court reviewed the record and concluded there was no evidence of the

Alleged Oral Agreement existed.

     The court determined neither RD Legal nor Osborn breached the implied

covenant of good faith and fair dealing because there was no evidence the

Alleged Oral Agreement and Section 1.6 of the Subordination Agreement

expressly permitted the manner in which RD Legal provided funding to Osborn:

           [Bogert] acknowledges that RD Legal may continue, at
           any time and without notice to [Bogert], to extend
           financial accommodations for the benefit of [B&O] and
           [Osborn] on the faith hereof, in such amounts and on
           such terms and conditions as RD Legal, [B&O] and
           [Osborn] may agree.

The court thus concluded the Subordination Agreement was enforceable.

     As to Bogert's claim against Osborn for reimbursement, the court found

there was no evidence the Alleged Reimbursement Agreement existed. The

                                                                     A-4909-15T2
                                    13
court also found no basis to compel Osborn to contribute to Bogert to what

Bogert owed RD Legal.

                                       II.

      Bogert first contends the court erred in granting summary judgment to RD

Legal because there were genuine issues of material fact regarding the

relationship of the parties, their intentions in entering into the various

agreements, and the consideration to Bogert for entering into the Subordination

Agreement. Bogert argues the court ignored the parties' course of dealing, failed

to consider evidence of the Alleged Oral Agreement, disregarded the context in

which the parties' entered into the Subordination Agreement, and ignored certain

provisions of the Subordination Agreement that incorporated by reference his

Fee Agreement.

      Our review of a ruling on summary judgment is de novo, applying the

same legal standard as the trial court. Conley v. Guerrero, 228 N.J. 339, 346

(2017). Thus, we consider, as the trial judge did, "whether the evidence presents

a sufficient disagreement to require submission to a jury or whether it is so one-

sided that one party must prevail as a matter of law." Liberty Surplus Ins. Corp.

v. Nowell Amoroso, P.A., 189 N.J. 436, 445-46 (2007) (quoting Brill v.

Guardian Life Ins. Co., 142 N.J. 520, 536 (1995)). Summary judgment must be


                                                                          A-4909-15T2
                                       14
granted "if 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." Templo Fuente De Vida Corp. v. Nat'l

Union Fire Ins. Co., 224 N.J. 189, 199 (2016) (quoting R. 4:46-2(c)).

      "To defeat a motion for summary judgment, the opponent must 'come

forward with evidence that creates a genuine issue of material fact.'" Cortez v.

Gindhart, 435 N.J. Super. 589, 605 (App. Div. 2014) (quoting Horizon Blue

Cross Blue Shield of N.J. v. State, 425 N.J. Super. 1, 32 (App. Div. 2012)).

"[C]onclusory and self-serving assertions by one of the parties are insufficient

to overcome the motion." Sullivan v. Port Auth. of N.Y. & N.J., 449 N.J. Super.

276, 283 (App. Div. 2017) (alteration in original) (quoting Puder v. Buechel,

183 N.J. 428, 440-41 (2005)).      "Competent opposition requires 'competent

evidential material' beyond mere 'speculation' and 'fanciful arguments.'"

Hoffman v. Asseenontv.Com, Inc., 404 N.J. Super. 415, 426 (App. Div. 2009)

(quoting Merchs. Express Money Order Co. v. Sun Nat'l Bank, 374 N.J. Super.

556, 563 (App. Div. 2005)).

      If there is no genuine issue of material fact, we must then "decide whether

the trial court correctly interpreted the law." DepoLink Court Reporting & Litig.


                                                                          A-4909-15T2
                                       15
Support Servs. v. Rochman, 430 N.J. Super. 325, 333 (App. Div. 2013) (quoting

Massachi v. AHL Servs., Inc., 396 N.J. Super. 486, 494 (App. Div. 2007)). We

review issues of law de novo and accord no deference to the trial judge's legal

conclusions. Nicholas v. Mynster, 213 N.J. 463, 478 (2013). Applying the

above standards, we discern no reason to reverse the grant of summary judgment

to either RD Legal or Osborn.

      Bogert concedes he agreed to the Subordination Agreement to induce RD

Legal to continue purchasing Prospective Fees. However, he reiterates that the

actual bargained-for consideration was his right to receive a portion of the sale

proceeds under the Alleged Oral Agreement, and RD Legal deprived him of that

consideration by instructing Osborn to stop payment.

      "In general, contracts are enforceable only if they are supported by

consideration."   Sipko v. Koger, Inc., 214 N.J. 364, 380 (2013).        "If the

consideration requirement is met, there is no additional requirement of gain or

benefit to the promisor, loss or detriment to the promisee, equivalence in the

values exchanged, or mutuality of obligation." Ibid. (quoting Martindale v.

Sandvik, Inc., 173 N.J. 76, 87 (2002)). Furthermore, "[i]t has been long accepted

that the value given or received as consideration need not be monetary or

substantial[.]" Oscar v. Simeonidis, 352 N.J. Super. 476, 485 (App. Div. 2002).


                                                                         A-4909-15T2
                                      16
Thus, "[c]ourts . . . do not inquire into the adequacy of consideration in

determining whether to enforce a contract." Seaview Orthopaedics v. Nat'l

Healthcare Res., Inc., 366 N.J. Super. 501, 508-09 (App. Div. 2004). As we

have held:

             Any inquiry into the presence of consideration does not
             depend upon the comparative value of the "things"
             exchanged. Instead, when we speak of the need for an
             exchange of valuable consideration what is meant is
             that the consideration "must merely be valuable in the
             sense that it is something that is bargained for in fact."

             [Id. at 509 (citation omitted) (quoting Borbely v.
             Nationwide Mut. Ins. Co., 547 F. Supp. 959, 980
             (D.N.J. 1981)).]

      "When a trial court's decision turns on its construction of a contract,

appellate review of that determination is de novo." Manahawkin Convalescent

v. O'Neill, 217 N.J. 99, 115 (2014). "If the language of a contract 'is plain and

capable of legal construction, the language alone must determine the

agreement's force and effect.'" Id. at 118 (quoting Twp. of White v. Castle Ridge

Dev. Corp., 419 N.J. Super. 68, 74-75 (App. Div. 2011)). Interpretation and

construction of a contract may be decided on summary judgment "unless the

meaning is both unclear and dependent on conflicting testimony." Celanese Ltd.

v. Essex Cty. Improvement Auth., 404 N.J. Super. 514, 528 (App. Div. 2009)



                                                                          A-4909-15T2
                                        17
(quoting Bosshard v. Hackensack Univ. Med. Ctr., 345 N.J. Super. 78, 92 (App.

Div. 2001)).

      The language in the Subordination Agreement regarding consideration is

clear and unambiguous. The Subordination Agreement expressly provides that

Bogert assigned and subordinated to RD Legal all his attorney's fees derived

from the ONJ Litigations "in consideration" for "induc[ing] RD Legal to provide

financing to [B&O] and Osborn . . . pursuant to the terms of the [B&O and

Osborn] Agreements and the B&O Loan Agreement[.]" This language leaves

no doubt that Bogert agreed to the Subordination Agreement so that RD Legal

would continue providing funds to Osborn that he and Bogert needed to continue

prosecuting and financing the ONJ Litigations. RD Legal's continued purchase

of Prospective Fees therefore constituted valuable consideration to Bogert for

the Subordination Agreement. "The court will not make a different or better

contract than the parties have seen fit to make for themselves." Great Atl. &

Pac. Tea Co. v. Checchio, 335 N.J. Super. 495, 501 (App. Div. 2000) (quoting

Schnakenberg v. Gibraltar Sav. & Loan Ass'n, 37 N.J. Super. 150, 155 (App.

Div. 1955)).4


4
  Bogert relies on an Iowa Supreme Court case, Hubbard Mill Co. v. Citizens
State Bank, 385 N.W.2d 255 (Iowa 1986), to support his argument that a defense


                                                                       A-4909-15T2
                                     18
      We reject Bogert's claim that the actual bargained-for consideration for

the Subordination Agreement was his right to a portion of the sale proceeds

under the Alleged Oral Agreement. The Subordination Agreement expressly

provides that if there was a conflict between its provisions and the provisions of

any other agreement, its provisions "shall control" and "[o]nly a writing signed

by all parties hereto may amend this Agreement." The Subordination Agreement

contains no language supporting or referring to Bogert's version of

consideration, his version conflicts the Subordination Agreement, and he

admitted his version was not memorialized. Thus, the consideration term in the

Subordination Agreement controls.

      Second, there is no evidence that Bogert communicated to RD Legal that

he intended his version of consideration be the actual bargained-for

consideration for the Subordination Agreement.         On the contrary, Bogert

admitted he did not engage in negotiations over the terms of the Subordination

Agreement and he executed the Subordination Agreement RD Legal presented

to him with no changes.




of lack of consideration "is not precluded even when the parties recite some
consideration in their argument." However, we are not bound by published out-
of-state opinions. Pressler & Verniero, Current N.J. Court Rules, cmt. 3.5 on R.
1:36-3 (2019).
                                                                          A-4909-15T2
                                       19
      Further, Bogert claimed that, prior to executing the Subordination

Agreement, he faxed an unsigned copy of it to RD Legal, advising of his

transaction with JD Capital. However, he admitted he did not express his intent

that his version of consideration be the actual bargained-for consideration and

did not ask anyone to put this version in the Subordination Agreement.

      It is well-established that "the secret, unexpressed intent of a party cannot

be used to vary the terms of an agreement." Domanske v. Rapid-American

Corp., 330 N.J. Super. 241, 246 (App. Div. 2000). "A contracting party is bound

by the apparent intention he or she outwardly manifests to the other party. It is

immaterial that he or she has a different, secret intention from that outwardly

manifested." Cumberland Farms, Inc. v. N.J. Dep't of Envtl. Prot., 447 N.J.

Super. 423, 440 (App. Div. 2016) (quoting Hagrish v. Olson, 254 N.J. Super.

133, 138 (App. Div. 1992)).

      By executing the Subordination Agreement, and without engaging in

negotiations, Bogert "outwardly manifest[ed] to the other party" an intention to

accept the terms of the agreement and the consideration provided therein. See

ibid. (quoting Hagrish, 254 N.J. Super. at 138). Thus, to the extent Bogert

claims he entered into the Subordination Agreement for reasons other than those

provided by its express terms, such a "different, secret intention" cannot be used


                                                                           A-4909-15T2
                                       20
to vary the consideration expressly provided in the agreement. Ibid. (quoting

Hagrish, 254 N.J. Super. at 138). Accordingly, Bogert is bound by the terms of

the Subordination Agreement and his private intent to condition his performance

on his version of consideration "did not create a material question of fact for

purposes of summary judgment analysis." Domanske, 330 N.J. Super. at 247-

48.

      We also reject Bogert's argument that the court erred by ignoring the

parties' course of dealing prior to the Subordination Agreement.            The

Subordination Agreement clearly and unambiguously provides that "[n]o course

of dealing, course of performance or trade usage, and no parole evidence of any

nature, shall be used to supplement or modify any terms of this Agreement. Only

a writing signed by all parties hereto may amend this Agreement." Thus, Bogert

cannot rely on the parties' course of dealing to vary or alter the consideration

expressed in the Subordination Agreement.

      Even accepting as true Bogert's claim that he was entitled to a portion of

the sale proceeds, his right to those proceeds could not have constituted valid

consideration for the Subordination Agreement.       According to Bogert, the

Alleged Oral Agreement, which obligated Osborn to pay him $10,000 per month

from the sale proceeds, was made on January 6, 2009, eight months before


                                                                        A-4909-15T2
                                      21
Bogert executed the Subordination Agreement on September 30, 2009. That

obligation therefore was pre-existing and could not constitute valid

consideration for the Subordination Agreement. See Segal v. Lynch, 211 N.J.

230, 253 (2012) ("[C]onsideration cannot be a promise to perform a pre-existing

duty."); Bernetich, Hatzell & Pascu, LLC v. Med. Records Online, Inc., 445 N.J.

Super. 173, 183 (App. Div. 2016) ("[C]onsideration generally may not be

furnished by fulfilling a pre-existing legal duty."). "The principle is firmly

imbedded in our jurisprudence that a promise to do what the promisor is already

legally bound to do is an unreal consideration." M. N. Axinn Co. v. Gibraltar

Dev., Inc., 45 N.J. Super. 523, 533 (App. Div. 1957).

      In addition, even accepting the Alleged Oral Agreement existed, Bogert

admitted he was only entitled to receive a portion of the sale proceeds for one

year, until January 2010. He also admitted he received a portion of the sale

proceeds until January 2010, when RD Legal allegedly instructed Osborn to stop

payment. Thus, Bogert was not deprived of the benefit he claims he was entitled

to under the Alleged Oral Agreement because he received a portion of the sale

proceeds for the entire term of the Alleged Oral Agreement.

      Nevertheless, Bogert argues he did not benefit from the funds provided to

Osborn because Osborn only used a portion of the sale proceeds to fund the ONJ


                                                                       A-4909-15T2
                                     22
Litigations. However, Bogert ignores the fact that there were no restrictions on

RD Legal's advancement or Osborn's use of the sale proceeds.                   The

Subordination Agreement clearly and unambiguously provides "that RD Legal

may continue, at any time and without notice to [Bogert] to extend financial

accommodations for the benefit of [B&O] and [Osborn] in such amounts and on

such terms and conditions as RD Legal, [B&O] and [Osborn] may agree." It is

therefore clear that Osborn was not restricted in his use of the sale proceeds, and

the fact that he may have used only a portion to fund the ONJ Litigations did

not alter the consideration for Bogert's Subordination Agreement.

      This argument also fails under the principle that "[a]ny inquiry into the

presence of consideration does not depend upon the comparative value of the

'things' exchanged." Seaview Orthopaedics, 366 N.J. Super. at 509. "A very

slight advantage to one party, or a trifling inconvenience to the other, is a

sufficient consideration to support a contract[.]" Oscar, 352 N.J. Super. at 485

(quoting Joseph Lande & Son, Inc. v. Wellsco Realty, Inc., 131 N.J.L. 191, 198

(E. & A. 1943)). Furthermore, "[i]f the consideration requirement is met, there

is no additional requirement of gain or benefit to the promisor, loss or detriment

to the promisee, equivalence in the values exchanged, or mutuality of




                                                                           A-4909-15T2
                                       23
obligation." Ibid. (quoting Shebar v. Sanyo Bus. Sys. Corp., 111 N.J. 276, 289

(1988)).

      The consideration to Bogert for the Subordination Agreement was RD

Legal's continued purchase of Prospective Fees.        RD Legal provided this

consideration by continuing to purchase Prospective Fees after the effective date

of the Subordination Agreement and Bogert benefitted from same through his

ability to continue prosecuting and funding the ONJ Litigations. There is no

additional requirement that Bogert gain a monetary benefit, or that there be an

"equivalence in the values exchanged, or mutuality of obligation." See ibid.

(quoting Shebar, 111 N.J. at 289).

      Bogert also argues that if the consideration was RD Legal's continued

purchase of Prospective Fees, RD Legal would have required him to enter into

the Subordination Agreement sooner, when it initially began purchasing those

fees. However, Bogert provides no basis for this claim and ignores that RD

Legal was not obligated to purchase Prospective Fees under the B&O and

Osborn Agreements. RD Legal was entitled to deny a request for additional

funding at any time, or request additional security for that funding. In this

instance, RD Legal required Bogert and Osborn to execute a Subordination




                                                                         A-4909-15T2
                                      24
Agreement because it "was concerned about collateral and security and told

[Osborn] that [it] might have to discontinue funding."

      Bogert further argues that RD Legal breached the implied covenant of

good faith and fair dealing by instructing Osborn to stop payment and allowing

Osborn to sell Bogert's interest under the Fee Agreement for no consideration to

Bogert in breach of the Alleged Oral Agreement. We disagree.

      "A covenant of good faith and fair dealing is implied in every contract in

New Jersey." Wilson v. Amerada Hess Corp., 168 N.J. 236, 244 (2001). It has

been formulated by our Supreme Court as follows:

            In every contract there is an implied covenant that
            neither party shall do anything which will have the
            effect of destroying or injuring the right of the other
            party to receive the fruits of the contract; which means
            that in every contract there exists an implied covenant
            of good faith and fair dealing.

            [Id. at 245 (quoting Sons of Thunder, Inc. v. Borden,
            Inc., 148 N.J. 396, 421 (1997)).]

To establish a claim for a breach of that duty, the claimant must therefore allege

conduct by the opposing party which "destroyed [the claimant]'s reasonable

expectations and right to receive the fruits of the contract[.]" Sons of Thunder,

148 N.J. at 425.




                                                                          A-4909-15T2
                                       25
      RD Legal did not breach the implied covenant of good faith and fair

dealing, nor did Osborn. The Subordination Agreement expressly permitted RD

Legal "to extend financial accommodations for the benefit of [B&O] and Osborn

. . . on the faith hereof, in such amounts and on such terms and conditions as RD

Legal, [B&O] and [Osborn] may agree." As our Supreme Court has consistently

held, "the 'implied covenant of good faith and fair dealing cannot override an

express term in a contract.'" Seidenberg v. Summit Bank, 348 N.J. Super. 243,

258 (App. Div. 2002) (quoting Wilson, 168 N.J. at 244).

      Second, and perhaps most important, Bogert failed to substantiate the

existence of the Alleged Oral Agreement.       Thus, as the trial court found,

breaching the Alleged Oral Agreement cannot constitute a breach of the implied

covenant of good faith and fair dealing. Even accepting as true that RD Legal

instructed Osborn to stop payment, this is of no moment.         Bogert had no

entitlement to the sale proceeds under the B&O and Osborn Agreements, and

his receipt of a portion of same from Osborn under the Alleged Oral Agreement

was not a "fruit" of the Subordination Agreement.

      Further, Bogert misconstrues the factual record. He contends that RD

Legal instructed Osborn to stop payment in January 2010. However, the record

reveals that Bogert received $4000 from Osborn in February 2010, $3000 in


                                                                         A-4909-15T2
                                      26
March 2010, $2,195.46 in June 2010, $4,832.80 in August 2010, and $1400 in

September 2010, after the alleged stop payment.          Osborn testified at his

deposition that he stopped paying Bogert because he could no longer afford to

do so. While Bogert disputes that explanation, the payments Osborn made to

him after the alleged payment stoppage severely undercut his claim that RD

Legal instructed Osborn to stop paying him in January 2010.

      Bogert insists the grant of summary judgment to RD Legal was improper

because there is a genuine issue of material fact regarding whether or not the

Alleged Oral Agreement existed and whether his rights thereunder constituted

the bargained-for consideration for the Subordination Agreement.           Bogert

argues the court erred in finding there was no evidence that the Alleged Oral

Agreement existed, citing to a list of facts he claims the court failed to view in

the light most favorable to him. However, these "facts" do not support Bogert's

claim that the Alleged Oral Agreement existed. Moreover, even if Bogert had

provided sufficient evidence to show the Alleged Oral Agreement existed,

Osborn's obligations thereunder do not create a genuine issue of material fact

sufficient to defeat RD Legal's summary judgment motion.

      "[T]he mere existence of some alleged factual dispute between the parties

will not defeat an otherwise properly supported motion for summary judgment;


                                                                          A-4909-15T2
                                       27
the requirement is that there be no genuine issue of material fact." Alfano v.

Schaud, 429 N.J. Super. 469, 475 (App. Div. 2013) (alteration in original)

(quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986)). Thus,

"[w]hile 'genuine' issues of material fact preclude the granting of summary

judgment, those that are 'of an insubstantial nature' do not." Brill, 142 N.J. at

530 (citation omitted) (quoting Judson v. Peoples Bank & Tr. Co., 17 N.J. 67,

75 (1954)). "In other words, where the party opposing summary judgment points

only to disputed issues of fact that are 'of an insubstantial nature,' the proper

disposition is summary judgment." Id. at 529 (quoting Judson, 17 N.J. at 75).

      Although the parties dispute whether the Alleged Oral Agreement actually

existed, the existence of that agreement was not relevant to the issues raised in

RD Legal's summary judgment motion unless Bogert's rights thereunder

constituted valid consideration for the Subordination Agreement, which they did

not. As previously noted, the clear and unambiguous terms of the Subordination

Agreement and the principles of contract law contradict Bogert's version of

consideration. The Subordination Agreement clearly sets forth the consideration

for the agreement and mentions nothing about the Alleged Oral Agreement or

Bogert's intent that his right to a portion of the sale proceeds was the bargained-

for consideration. It is therefore clear, as a matter of law, that even if it existed,


                                                                              A-4909-15T2
                                        28
the Alleged Oral Agreement could not have constituted the consideration for the

Subordination Agreement, and therefore the issue of whether or not the

agreement existed was immaterial to RD Legal's motion for summary judgment.

      "To send a case to trial, knowing that a rational jury can reach but one

conclusion, is indeed 'worthless' and will 'serve no useful purpose.'" Id. at 541.

As the trial court found, the competent evidential materials presented leave no

doubt about whether the Subordination Agreement was enforceable and entitled

RD Legal to the attorney's fees Bogert derived from the ONJ Litigations. There

is no evidence from which a jury could conclude that RD Legal deprived Bogert

of his bargained-for consideration. Accordingly, summary judgment in favor of

RD Legal was appropriate.

                                       III.

      Bogert next contends the court erred in granting summary judgment to

Osborn and dismissing Bogert's claim for reimbursement. He argues there was

a material question of fact as to whether he and Osborn entered into the Alleged

Reimbursement Agreement.         He maintains that pursuant to the Alleged

Reimbursement Agreement, he was entitled to reimbursement from Osborn in

the event he had to pay RD Legal the attorney's fees he derived from the ONJ




                                                                          A-4909-15T2
                                       29
Litigations in an amount greater than what he received from Osborn from the

sale proceeds.

      The court found that Bogert provided "no written evidence of [the Alleged

Reimbursement Agreement], no evidence referring to the existence of any such

agreement, no details on when it was entered or what its specific terms are."

The court thus concluded there was no evidence the Alleged Reimbursement

Agreement existed.

      The court's conclusion is unassailable. There was no evidence beyond

Bogert's naked assertions to substantiate the existence of the Alleged

Reimbursement Agreement. "[C]onclusory and self-serving assertions by one

of the parties are insufficient to overcome the motion." Sullivan, 449 N.J. Super.

at 283 (alteration in original) (quoting Puder, 183 N.J. at 440-41). Accordingly,

the grant of summary judgment to Osborn and dismissal of the third-party

complaint was proper.




                                       IV.

      Bogert filed a notice of appeal on July 15, 2016. On September 13, 2017,

he moved before this court to remand the matter to the trial court to enable him


                                                                          A-4909-15T2
                                       30
to file a motion to vacate judgment pursuant to Rule 4:50-1(b) based on newly

discovered evidence. We granted the motion, remanded the matter to the trial

court, and retained jurisdiction.

      On February 23, 2018, Bogert filed a motion to vacate judgment as to RD

Legal based on newly discovered evidence consisting of evidence derived from

a July 14, 2016 administrative action the Securities and Exchange Commission

(SEC) brought against Dersovitz and RD Legal Capital, a general partner of RD

Legal. Bogert's motion concerned two areas of Dersovitz's testimony in the SEC

litigation, which, according to Bogert, contradicted material information RD

Legal provided in this litigation. First, RD Legal represented in this litigation

that it lost money on its purchase of Prospective Fees when it, in fact made a

$500,000 profit by engaging in a side Participation Agreement with a third-party

investor, Constant Cash Yield Ltd. (CCY). Second, RD Legal did not continue

purchasing Prospective Fees for Bogert's benefit in reliance on the

Subordination Agreement, but rather provided funding to Osborn to keep

Osborn afloat as a "workout" situation to protect RD Legal's position and

collateral and to ensure repayment of past-due funds.

      In a May 7, 2018 written opinion, the court determined the evidence was

new. However, the court was not satisfied this new evidence was unavailable


                                                                         A-4909-15T2
                                      31
in this litigation. In sum, the court held that Bogert failed to inquire as to

whether RD Legal was engaged in a "workout" with Osborn, whether RD Legal

considered that its advances to Osborn enhanced the protections to RD Legal's

collateral and position, or whether RD Legal was involved in transactions with

third-party investors. After reviewing the discovery demands and responses, the

court concluded "there were [not] any false or misleading responses as to the

matters under consideration[.]" 5

      Addressing the merits, the court found that neither RD Legal's

Participation Agreement with CCY, nor the alleged "true purpose" behind RD

Legal's continued advancement of funding to Osborn, altered its initial

decisions. The court held:

            [t]hat RD Legal entered into a side-agreement with a
            third-party investor — which RD Legal was
            specifically entitled to do under the Subordination
            Agreement — does not in any way affect the rights or
            obligations of the parties under the Subordination
            Agreement. This court's decision did not turn on
            whether there was any such third-party investor
            agreement — which it now appears there was — nor
            whether RD Legal earned income as a result of any such
            third-party investor agreement — which it appears RD
            Legal did.



5
  This holding directly conflicts with Bogert's continued argument that RD
Legal deliberately failed to disclose these matters in discovery.
                                                                       A-4909-15T2
                                     32
      We review the trial court's denial of a motion to vacate final judgment for

abuse of discretion. Deutsche Bank Nat'l Tr. Co. v. Russo, 429 N.J. Super. 91,

98 (App. Div. 2012). "'The trial court's determination under [Rule 4:50-1]

warrants substantial deference,' and the abuse of discretion must be clear to

warrant reversal." Ibid. (alteration in original) (quoting U.S. Bank Nat'l Ass'n

v. Guillaume, 209 N.J. 449, 467 (2012)). "It is within the trial court's sound

discretion, guided by equitable principles, to decide whether relief should be

granted pursuant to Rule 4:50-1." In re Guardianship of J.N.H., 172 N.J. 440,

473 (2002).

      "To obtain relief from a judgment based on newly discovered evidence

[under Rule 4:50-1(b)], the party seeking relief must demonstrate 'that the

evidence would probably have changed the result, that it was unobtainable by

the exercise of due diligence for use at the trial, and that the evidence was not

merely cumulative.'" DEG, LLC v. Twp. of Fairfield, 198 N.J. 242, 264 (2009)

(quoting Quick Chek Food Stores v. Twp. of Springfield, 83 N.J. 438, 445

(1980)).

      Under the Subordination Agreement, RD Legal had "the right to assign

any portion or all of its rights, interests and obligations under this Agreement."

Given this right, even accepting as true that RD Legal (1) made a profit on its


                                                                          A-4909-15T2
                                       33
investment by engaging in a side transaction with a third-party investor, and (2)

advanced monies not for Bogert's benefit but to enhance and protect its own

collateral, neither claim is relevant.

       The Subordination Agreement expressly permitted the Participation

Agreement between RD Legal and CCY, and therefore that agreement has no

impact on Bogert's obligations under the Subordination Agreement. Bogert is

therefore not entitled to a credit against his obligations for the amounts RD Legal

received from CCY.       As the Subordination Agreement expressly provides,

Bogert is obligated to "subordinate [his share of Prospective Fees] to the

payment in full of all of [Osborn's] [o]bligations"; there is no "set off" for funds

received by RD Legal by way of a third-party side-agreement.

       Bogert's argument also ignores the reality that the "profit" referenced in

the SEC action was based on the aggregate figure RD Legal received from the

return on its advancements to Osborn, and the advances RD Legal itself received

from CCY, and did not account for RD Legal's obligations to CCY.

       Under the terms of the Participation Agreement between RD Legal and

CCY:

             (1) RD Legal agreed to sell to CCY . . . "undivided
             fractional interest[s]" in RD Legal's rights to legal fees
             from certain litigations, including the ONJ Litigations;


                                                                            A-4909-15T2
                                         34
            (2) CCY would be entitled to share, or "participate," in
            the collections of those legal fees "pro rata" with RD
            Legal and all other participants; and

            (3) RD Legal agreed to be responsible to CCY for
            deficiencies in the collection of the legal fees purchased
            by CCY.

            [(Citations omitted).]

Thus, the alleged "profit" of approximately $500,000 is no true profit at all. As

stated by RD Legal in this appeal:

            [A]s reflected in SEC Exhibit 3116 and explained by
            . . . Dersovitz, RD Legal (i) advanced a total of
            $13,442,143 for the benefit of Osborn and his co-
            counsel, and (ii) received a total of $13,951,073 from
            two separate sources -- $6,423,782 in Legal Fees from
            Osborn and Powell, and $7,527,291 in proceeds from
            the sale of [l]egal [f]ees to CCY. RD Legal, however,
            still has the obligation to pay to CCY the substantial
            portion of [l]egal [f]ees that it purchased in exchange
            for the payments totaling $7,527,291 regardless of
            whether that portion is ever collected from Osborn,
            Bogert and Powell.

            [(Citations omitted).]

Clearly, under the terms of the Participation Agreement, RD Legal has not truly

profited. As, or even if, fees are remitted from Osborn to RD Legal, RD Legal

must repay CCY for its advances. Logic dictates that CCY did not "participate"

for free, and RD Legal's obligation to CCY is significant.



                                                                         A-4909-15T2
                                       35
      Finally, even if we ignored RD Legal's obligations to CCY and accepted

the total of $13,951,037 as the total collected such that RD Legal has "profited,"

that number is less than half of the $26 million RD Legal is owed from its

advances to Osborn as of November 2014, "and an even smaller percentage of

the total obligations once the per diem interest [that] has accrued over the last

four years is added."       Again, per the express terms of the Subordination

Agreement, Bogert was obligated to subordinate his attorney's fees to the extent

of any outstanding obligations, and not merely to the extent that RD Legal

recovered its investment.

      Ultimately, the court held that this "new evidence" would not alter the

grant of summary judgment to RD Legal because the Subordination Agreement

expressly permitted the Participation Agreement with CCY. However, it is

apparent that Bogert's argument that RD Legal has profited from its

advancements to Osborn is itself without merit.

      Regarding Bogert's argument about the continued advancement of funding

to Osborn to enhance and protect RD Legal's collateral, the court held:

            the idea that RD Legal was concerned about Osborn's
            economic viability and that it infused him with cash to
            enhance its collateral and protect its collateral is
            likewise not a piece of information that would cause the
            court to undo any of the factual or legal predicates of
            its summary judgment decisions or its denial of

                                                                          A-4909-15T2
                                       36
            Bogert's motion for reconsideration. It does not relate
            to the parties' rights and remedies under the
            Subordination Agreement . . . .

      Nevertheless, Bogert maintains, for the third time, that genuine issues

clearly exist as to whether he received the consideration he bargained for in

entering the Subordination Agreement. Bogert's argument is predicated on his

purported right to share in the funds advanced by RD Legal to Osborn; this

"consideration" for entering the Subordination Agreement was frustrated, says

Bogert, when RD Legal advanced monies to Osborn out of its own "selfish"

motivation – the enhancement and protection of its collateral, including non-

ONJ Litigation collateral – while simultaneously denying Bogert the right to

share in the advances to which he was allegedly entitled.

      The court rejected this argument each time Bogert raised it, and so do we.

The Subordination Agreement, not any unsubstantiated oral agreements, dictates

the consideration to Bogert. Further, the Subordination Agreement dictated that

the continued advancement of funding to Osborn was at RD Legal's discretion,

and the modification of the funding arrangements would not affect Bogert 's

obligations under the Subordination Agreement.

      In addition, there was nothing new about the fact that RD Legal provided

funding to Osborn to protect non-ONJ collateral after the execution of the


                                                                        A-4909-15T2
                                      37
Subordination Agreements. To the contrary, the parties' deposition testimony,

along with the contemporaneous documents produced on summary judgment,

confirmed that Bogert knew during both the pursuit of the ONJ Litigations and

discovery in this action that RD Legal was advancing funds to support non-ONJ

cases in which Bogert had no interest or involvement.

      Because this information was known to Bogert prior to summary

judgment, it cannot serve as "newly discovered evidence" for a Rule 4:50-1(b)

motion. State v. Speare, 86 N.J. Super. 565, 582 (App. Div. 1965) (newly

discovered evidence "must . . . have been discovered since the former trial and

be such as could not have been discovered before such trial by the exercise of

due diligence"). In line with the trial court's holding, while the evidence itself

may be "new," the information contained therein surely was not.

      It is important to note that at the time of the Subordination Agreement,

Osborn, Bogert, and Powell were in financial trouble. RD Legal was frustrated,

and was going to turn off its spigot. As Powell testified at in his deposition,

            the only viable option that we had that we knew of at
            the time to protect the interests of the clients was to
            keep [Osborn] alive, and the only way apparently to do
            that . . . was to agree to sign the [S]ubordination
            [A]greement so that RD Legal would continue to
            provide the funding to . . . keep [Osborn] in business.



                                                                          A-4909-15T2
                                       38
      Osborn also testified to the realities of their situation: "Dersovitz made it

clear that . . . he was concerned about collateral and security and told me that he

might have to discontinue funding." As a result, Bogert and Powell signed

subordination agreements to keep the funding flowing.          However, per the

express terms of Bogert's Subordination Agreement, RD Legal was permitted to

fund Osborn in its sole discretion, including funding of non-ONJ Litigation, and,

while Bogert may now wish to undo his decision to enter into the Subordination

Agreement, such funding does not provide grounds to invalidate it.

      Affirmed.




                                                                           A-4909-15T2
                                       39
